Filed 12/26/13 Lieberman v. City of Los Angeles CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

B. JAMES LIEBERMAN,
Plaintiff and Appellant,

v.
CITY OF LOS ANGELES et al.,
Defendants and Respondents. B243466
(Los Angeles County Super. Ct. No. SC112186)

APPEAL from a judgment of the Superior Court of Los Angeles County. Norman Tarle, Judge. Affirmed.

______ Law Offices of Gary S. Casselman, Ga ry S. Casselman and Danielle Leichner Casselman for Plaintiff and Appellant. Michael N. Feuer, City Attorney, Amy Jo Field, Supervising City Attorney, and Blithe S. Bock, Deputy City Attorney, for Defe ndants and Re spondents.

______2 B. James Lieberman appeals from the judgment entered after the trial court granted summary judgment for the City of Los Angeles and four Los Angeles Police Department (LAPD) officers (collectively, defendants) in his action against them for violation of Civil Code section 52.1, subdivision (b), battery and negligence.
Lieberman contends triable issues of di sputed material fact s precluded summary judgment. We disagree and thus affirm the judgment.
FACTUAL AND PROCED URAL BACKGROUND
1. The Complaint On April 11, 2011, Lieberman filed an action against the City of Los Angeles, two police officers and Doe defendants alle ging causes of action for violation of Civil Code section 52.1, subdivision (b), ba ttery and negligence. According to the complaint, on or about May 12, 2010, Lieber man, “a senior citizen, was a U.S. census worker, acting in the capacity as [a] census numerator, and at all times relevant hereto had proper identification badg e, vehicle placard(s) and other census issued materials clearly identifying him as such .” About 1:30 p.m., Lieberman sat inside his vehicle reviewing paperwork outside th e home he was scheduled to visit next when, “[w]ithout reasonable suspicion to detain or probable cause to search or a rrest, . . . police officers . . . point[ed] their guns at him and ordered him to exit the vehicle with his hands up.” Lieberman complied and identified himself as a census worker. Lieberman was handcuffed in an “unreasonably tight manner ” and “exclaimed in pain” when a “male
officer removed the handcuffs . . . .” Lieb erman was “told that he was stopped because someone had complained that a person was knocking on doors, ri nging doorbells, looking in windows and/or walking on to driveways in the Beverlywood, area of Los Angeles, though this was not sufficient probable cause or reasonable suspicion to seize [him].” Lieberman sought compensatory , special and punitive damages, as well as attorney fees and costs pursuant to Civil Code section 52. 1, subdivision (h), based on his cause of
action under that statute. Lieberman amended his complain t, substituting in four police3 officers as Doe defendants, a nd later dismissed the action without prejudice as to the two police officers originally named in the complaint. 1

2. The Summary Judgment Motion and Opposition Defendants moved for summary judgment , arguing that Lieberman’s detention was objectively reasonable ba sed on a reasonable suspici on of burglary and did not convert into an arrest requiring probable cau se. Defendants also argued that handcuffing Lieberman was objectively reasonable under th e circumstances, as was the use of force applied in the handcuffing. Lieberman op posed summary judgment, contending that
triable issues of material fact existed as to whether his detention amounted to an arrest requiring probable cause and th e use of force was excessive.
3. The Trial Court’s Ruling The trial court granted the motion for summa ry judgment. It concluded that, as a matter of law, the police officers detained Lieb erman pursuant to a valid “Terry-stop” and
did not affect an arrest of him. It then determined that no triable issue of material fact
existed as to the reasonableness of the deten tion. According to the court, the officers were informed of “a 911 call about an attemp ted residential burglary. [The officers] responded with guns drawn and immediately ha ndcuffed [Lieberman]. Within five to 25 minutes, they were satisfied that [Lieberman] was merely a census worker, and they
removed the handcuffs. After another twen ty minutes, during which time the officers talked to the 911 caller and also to [Lieberman ], they released him. While [Lieberman’s] shoulder and wrist injuries are an unfortuna te result of [the] activity, and while it is possible [the officers] could have, in hind sight, used less force, the Court cannot find triable issues of material fact with respec t to the force used in the case.” The court entered judgment for defendants. Lieberman filed a timely notice of appeal.

1 The four police officer defendants are O fficers Jeannette Garcia, Antonio Lacunza, Richard Ballesteros and Andre Rodriguez.4 DISCUSSION
1. Standard of Review A trial court must grant a summary judgm ent motion when no tr iable issue exists as to any material fact and th e moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We inde pendently review the trial court’s decision, “considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and th e uncontradicted infe rences the evidence reasonably supports. [Citation.] In the tria l court, once a moving defendant has ‘shown
that one or more elements of the cause of ac tion, even if not separately pleaded, cannot be established,’ the burden shifts to the plaintiff to sh ow the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of
material fact exists as to that cause of action . . . .’ [Citations.]” ( Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
2. Summary Judgment Was Proper

a. The detention issue
Lieberman contends the trial court erre d by summarily resolving his cause of
action for violation of Civil Code section 52.1, subdivision (b) 2 , because, at a minimum,
triable issues of material fact exist as to whether his detention, which he concedes was lawful, amounted to an illegal arrest for whic h the police officers la cked probable cause.
“The federal Constitution’s Fourth Amen dment, made applicable to the states through the Fourteenth Amendment, proh ibits unreasonable seizures. Our state Constitution includes a similar prohibition. [Citation.] ‘A seizure occurs whenever a

2 Civil Code section 52.1, subdivision (b), provides, “Any individual whose exercise or enjoyment of rights secured by the Cons titution or laws of the United States, or of rights secured by the Constitutio n or laws of this state, has been interfered with, or attempted to be interfered with, [by threats, intimidation, or coercion,] may institute and prosecute in his or her own na me and on his or her own behalf a civil action for damages, including, but not limited to, damages under Section 52, injuncti ve relief, and other appropriate equitable relief to protect the peaceab le exercise or enjoyment of the right or rights secured.”5 police officer “by means of physical force or s how of authority” restrains the liberty of a person to walk away.’ [Citation.]” ( People v. Celis (2004) 33 Cal.4th 667, 673 ( Celis ).) A seizure amounting to an arrest requires that the police officer have probable cause to justify his or her actions. ( Gallegos v. City of Los Angeles (9th Cir. 2002) 308 F.3d 987, 990 ( Gallegos ).) In Terry v. Ohio (1968) 392 U.S. 1, 9 ( Terry ), the United States Supreme Court “‘created a limited exceptio n to th[e] general rule’ that police detentions require probable cause, wherein ‘certain seizures are justifiable under the
Fourth Amendment if there is articulable su spicion that a person has committed or is
about to commit a crime .’ [Citation.] Under Terry and its progeny, the Fourth Amendment allows police to conduct a brief, inve stigatory search or seizure, so long as they have a reasonable, articulable suspicion that justifies their actions. The reasonable suspicion standard ‘is a less demanding sta ndard than probable cause,’ and merely requires ‘a minimal level of objectiv e justification.’ [Citations.]” ( Gallegos , at p. 990.) “Thus, an officer who lacks pr obable cause to arrest can conduct a brief investigative
detention when there is ‘“some objective manifestation” that criminal activity is afoot and that the person to be stop ped is engaged in that ac tivity.’ [Citations.]” ( Celis , at p. 674.) “There is ‘no bright line rule for dete rmining when an investigatory stop crosses
the line and becomes an arrest .’ [Citation.] Rather, whether a police detention is an arrest or an investigatory stop is a fact-sp ecific inquiry, [citation], guided by the general Fourth Amendment requirement of reasonableness, [citation]. This inquiry requires us to
consider ‘all the circumstances surrounding the encounter’ betw een the individual and the police, [citation], ‘by evaluating not only how intrus ive the stop was, but also whether the methods used [by police] were reasonable given the specific circumstances ,’ [citation].” ( Gallegos , 308 F.3d at p. 991.) “Because an i nvestigative detention allows the police to ascertain whether suspicious conduct is cr iminal activity, such a detention ‘must be temporary and last no longer th an is necessary to effectuate the purpose of the stop.’ [Citations.]” ( Celis
, supra , 33 Cal.4th at p. 674.) The “ ‘focus [is] on whether the police diligently pursued a means of investigation re asonably designed to dispel or confirm their suspicions quickly, using the least intrus ive means reasonably available under the6 circumstances.’ [Citations.] Important to th is assessment, however, are the ‘duration, scope and purpose’ of the stop. [Citation.]” ( Id . at p. 675.) “With respect to duration, the United St ates Supreme Court has said that ‘“the brevity of the invasion of the individual’s Fourth Amendment intere sts is an important factor in determining whether th e seizure is so minimally intr usive as to be justifiable on reasonable suspicion.”’ [Citati on.] [¶] With regard to the sc ope of the police intrusion, stopping a suspect at gunpoint, handcuffing him, and making him sit on the ground for a short period . . . do not convert a detention into an arrest. [Citations.] [¶] Of significance
too are the facts known to the officers in de termining whether their actions went beyond those necessary to effectuate the purpose of th e stop, that is, to quickly dispel or confirm police suspicions of criminal activity. [Citations.] Altho ugh a routine traffic stop would rarely justify a police officer in drawing a gun or using handcuffs, such actions may be appropriate when the stop is of someone suspected of committing a felony.” ( Celis
, supra , 33 Cal.4th at pp. 675-676.) As relevant to the detention question, according to the undisputed facts here, on May 12, 2010, Officers Garcia and Lacunza, while on patrol in West Los Angeles,
received a radio broadcast from LAPD co mmunications, based on a 911 call from a Beverlywood resident. The broadcast stated , “‘West LA units, 459 suspect there now, 9722 Alcott, 9722 Alcott, suspect vehicle is a white BMW still outside, suspect is male white, 60 years, white hair, beige shir t, short sleeve shirt, Code 3, NRD857.” The officers interpreted the ca ll as one reporting a residential burglary, as Penal Code section 459 is the burglary statute, and responded, according to the communication, Code 3, which requires officers to respond as quickly as po ssible with lights and sirens. Within minutes, the officers heard a second broadcast, which stated, “‘West LA units responding to Alcott Avenue, suspect attemp ted to gain entry through the mail slot, suspect is still in front of location inside the white BMW, has handicap[] tag in the mirror, suspect is unknown to the victim, vic tim is still inside location.’” A third broadcast came minutes later, reporting, “‘ Suspect vehicle is now driving towards7 Beverwil. Suspect is making a left on Beve rwil from 9722 Alcott. Suspect vehicle is a white BMW with a handicap[] placard in the mirror.’”
Officers Garcia and Lacunza located the suspect, who was identified as Lieberman, as reported by LA PD communications. Lieberma n was ordered out of his vehicle at gunpoint and detained while the 911 call was investigated. Officers Ballesteros and Rodriguez, along with two other officers, arrived on the scene and assisted with the investigation. Lieberman was placed in hand cuffs by Officer Garcia , who explained that, “based on the type of radio call that we were responding to—and . . . burglary suspects could have . . . weapons and tools [that] ca n be used as weapons—yeah, technically he was a [possible] threat.” Based on the LAPD communications, the officers considered that they were responding to “a high-prior ity crime” as “a high risk traffic stop.”
Lieberman remained in handcuffs for five minutes (according to the accounts of Lieberman and Officer Garcia) to 25 minutes (according to Officer Ballesteros whose primary involvement was interv iewing the 911 caller). Lieberman identified himself as
an enumerator for the United St ates Census Bureau, showed officers his credentials and told them he was visiting home s of people who had not turned in their census material. According to Lieberman, his job was to kn ock on doors in an attempt to deliver notifications to those at the homes he visited; if no one answered, he left the notifications on the front porch. Two officers went to th e residence of the 911 caller and interviewed her. According to Officer Ballesteros, wh o was the primary interviewer, the caller reported that a man had been “pounding on [h er] door, knocking on the door. She didn’t know who it was. And he was grabbing the doorknob trying to get inside the door. And . . . he put his hands inside the mail sl ot . . . . She seemed very fearful for her safety . . . .” Based on this report and th e officers’ contact with Lieberman, Lieberman
was unhandcuffed and released soon thereaf ter. Officer Ballesteros explained to
Lieberman that that “there had been a call of a possible burglary and that he matched the description” of the suspect. These undisputed facts demonstrate as a ma tter of law that Lieberman was legally detained not, as he contends , arrested without probable cause. Based on the LAPD8 communications, the officers understood they were responding to a report of a burglary, a possible violent and serious violent felo ny (Pen. Code, §§ 667.5, subd. (c)(21), 1192.7, subd. (c)(18)), or attempted burglary, a possible serious felony ( id . at § 1192.7, subd. (c)(18) & (39)), with a suspect who had left the location. Lieberman was
handcuffed from five to 25 minutes. He was re leased as soon as officers had completed their investigation. Given the nature of the LAPD communications, handcuffing
Lieberman for no more than 25 minutes did not, as Lieberman suggests, transform the
detention into an arrest. The officers used the detention to “quick ly dispel . . . police suspicions of criminal activity.” ( Celis
, supra , 33 Cal.4th at p. 676.) Contrary to Lieberman’s contentions, his ag e of 78 years old (not 60 years old as reported by LAPD communicati ons—although he appeared mu ch younger than his actual age) and immediate identification of himself to the officers as a census worker did not
create triable issues of material fact on the detention question. Lieberman assumes that, despite communications to the officers of a burglary or attempted burglary, they should
have concluded their detention of him once th ey learned that he was 78 years old and a
census worker and their failure to do so converted the detenti on into an arrest. But such facts did not eliminate the possi bility that a felony offense had been committed. Indeed, the officers did account for Lieberman’s age b ecause, although they ha ndcuffed him, they elected under the circumstances not to require him to lie prone on th e ground. In total, the detention was of relatively short duratio n, narrowly tailored to address the reports received by the officers and in line with th e potential crimes being investigated.
This case is similar to Gallegos
, supra , 308 F.3d 987, in wh ich the Ninth Circuit concluded on summary judgment that a detention did not transform into an arrest. In that case, “[r]esponding to a 911 ca ll and mistakenly believing [the plaintiff] to be a burglary suspect, police pulled him over, ordered him out of his truck at gunpoint, handcuffed him, and placed him in the back of a patrol car. Police then bro ught [the plaintiff] to the scene of the reported incident, where it was confir med that he was not the suspect. He was
returned to his truck and released less than an hour after he was initially detained.” ( Id . at p. 989.) The plaintiff argued that “his detention went beyond a valid investigatory9 stop” because “he was ordered fr om his truck at gunpoint, . . . handcuffed, . . . put in the back of a patrol car, . . . detained for betwee n forty-five minutes and an hour, and . . . less intrusive options were available to police.” ( Id . at p. 991.) Viewing the facts of the detention “in the context of the totality of th e circumstances,” the Ninth Circuit rejected the plaintiff’s argument. ( Ibid .) According to the appellate court, summary resolution of the plaintiff’s constitutional claims was pr oper because “[t]he whole point of an investigatory stop, as the name suggests, is to allow police to investigate , in this case to make sure that they have the right person. For police to draw their guns in ordering [the plaintiff] from the truck, when unsure if he was armed; for police to handcuff [the plaintiff] in the back of a . . . patrol car, when unsure of who he was; and for police to bring him back to [the scene of the reporte d criminal activity]—this was not, under the circumstances, an unreasonable wa y of finding out if [the pl aintiff] was the person they were looking for. Our cases have made clea r that an investigative detention does not automatically become an arrest when officers draw th eir guns, [citation], use handcuffs [citations] . . . . Viewed in context, [the officers’] conduct was reasonable.” ( Id . at pp. 991-992.) The Ninth Circuit concluded, “Of course, it is unfortunate that an innocent man, in the wrong place at the wrong time, was inc onvenienced for up to an hour. But by the same token, this investigative stop work ed as it should. The detention was brief, calculated solely to make sure they had the right man, and resulted in [the plaintiff’s] prompt vindication. ‘ Terry accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment accepts that risk’ as well. [Citation.] Courts cannot prevent mistakes such as this from taking place; we can only ensure that mistakes are kept to a minimum by requiring officers to act reasonably, for articul able reasons, and not on a hunch.” ( Gallegos
, supra , 308 F.3d at p. 992.) As in Gallegos , the officers did not act on a hunch. They responded to LAPD communications of a 911 call reporting a burglary or attempted burglary, detained the person identifie d by the caller, acted within a short amount of time to dispel the possibility of criminal activity ba sed specifically on the communications they had received and then re leased him. Such an investigative stop10 under the totality of the circumstances, as a matter of law, was a detention based on reasonable suspicion that di d not amount to an arrest without probable cause.
Lieberman’s reliance on In re Antonio B. (2008) 166 Cal. App.4th 435 is misplaced. According to Lieberman, that case demonstrat es that “handcuffing a suspect did not convert a detention into an arrest, such as when at the time of the detention, the
officer had a reasonable basis to believe the detainee presented a physical threat to the officer or would flee ,” and he presented no such “d anger.” The physical threat or possibility of fleeing described in In re Antonio B. , however, was merely a summary of certain examples of when a handcuffing did not render a detention an arrest. Other examples included when “po lice officers conducted the stops based upon reports of violent felonies by persons ma tching the descriptions of th e detained suspects and/or their vehicles [citations], or reports indi cating that the suspect was armed [citations] or that the suspect was seen leaving the sc ene of an attempted burglary [citation].” ( Id . at p. 441.) The appellate court in that case held that detention of the suspect constituted an arrest requiring probable cause because “no ev idence . . . suggest[ed] that the officers had any basis to believe that [he] posed a danger to them or that handcuffing him was necessary to effectuate the purpose of the stop, i.e., to determine whether [he] had been smoking marijuana.” ( Id . at p. 442.) Unlike In re Antonio B. , this case fits into the examples in which handcuffi ng did not render a detention an arrest because, at the time of Lieberman’s detention, the officers had reports of a burglary or attempted burglary, crimes in which undisputedly suspec ts often have weapons or tools that they can use as weapons, by a man matching Lieberma n’s description who had left the scene.
In re Antonio B. thus does not support Lieberman’ s suggestion that handcuffing is justified in a detention only wh en the suspect constitutes a phys ical threat or a possibility exists that he may flee. 3

3 Because Lieberman’s detention was prope r, and not a wrongful arrest without probable cause, we need not decide whether an unlawful arrest, standing alone, would support a violation of Civil Code section 52.1, subdivision (b).11 b. The excessive force question Lieberman also contends that summary resolution of his battery and negligence causes of action was improper because triable issu es of material fact exist as to whether the police officers used excessi ve force by handcuffing him. “[A] police officer must have control over the manner and means of making an arrest or detention.” ( Edson v. City of Anaheim (1998) 63 Cal.A pp.4th 1269, 1273 ( Edson ).) “[C]laims [of excessive force] are properly anal yzed under the Fourth Amendment’s ‘objective reasonablen ess’ standard . . . .” ( Graham v. Connor (1989) 490 U.S. 386, 388 ( Graham ).) “Determining whether the force used to effect a particular
seizure is ‘reasonable’ under the Fourth Ame ndment requires a careful balancing of ‘“the nature and quality of the intr usion on the individual’s Fo urth Amendment interests”’ against the countervailing governmental inte rests at stake. [Citation.] Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. [C itation.] Because ‘[t]he test of reasonableness under the Fourth Amendment is not capabl e of precise definition or mechanical application,’ [citation], however, its proper ap plication requires careful attention to the facts and circumstances of each particular ca se, including the severity of the crime at issue, whether the suspect poses an immediat e threat to the safety of the officers or others, and whether he is activel y resisting arrest or attemptin g to evade arrest by flight. [Citation.]” ( Id . at p. 396.) State law battery a nd negligence causes of action based on
the use of excessive force are evaluated under the same sta ndard of objective reasonableness. ( Edson , at p. 1274 [police officer battery cause of action]; Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 514 [neglig ence cause of action against police officers].) “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scen e, rather than with the 20/20 vision of hindsight. [Citation.] . . . With respect to a cl aim of excessive force, the . . . standard of reasonableness at the moment applies: ‘Not every push or shove, even if it may later12 seem unnecessary in the peace of a judge’s chambers,’ [citation], violates the Fourth
Amendment. The calculus of reasonablene ss must embody allowance for the fact that police officers are often forced to make sp lit-second judgments—in circumstances that are tense, uncertain, and rapidl y evolving—about the amount of force that is necessary in a particular situation. [¶] As in othe r Fourth Amendment contexts, however, the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectivel y reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. [Citations.]” ( Graham
, supra , 490 U.S. at pp. 396-397.) According to Lieberman, su mmary resolution of his batte ry and negligence causes of action based on excessive force was impr oper because “[t]he same facts [that] supported [the officers’] . . . decision not to prone [him] out—his obvious advanced age and appearance—should have supported a choice not to handcuff him. Per their training, [the officers] had discretion not to ha ndcuff, in the presence of extenuating circumstances. They foolishly elected to proc eed and continue to ha ndcuff, and did so in a manner causing pain, discomfort and bleeding; [h]e was caused in ternal shoulder and wrist injuries. [¶] No fo rce was needed here.” Although the officers may have had disc retion not to handcuff Lieberman, their
decision to do so does not establish excessive fo rce. As with his cl aim that the detention amounted to a wrongful arrest, Lieberman inco rrectly assumes that his advanced age and appearance eliminated the possibility that he had commi tted a crime. Such is not the
case. Given the LAPD communications of a burglary or attempted burglary by a man who matched Lieberman’s description and was detained by police in the reported location, the officers acted objectively reason able in handcuffing Lieberman as they began and conducted their investigation. As noted, based on the information they received from LAPD communications, the office rs considered their response as one to “a high-priority crime” and Lieberman’s detentio n “a high risk traffic stop.” In addition, the officers considered that, “bas ed on the type of radio call that [they] were responding to—and . . . burglary suspects could have . . . weapons and tools [that] can be used as13 weapons . . . .” Their decision not to require him to lie prone on the ground while they handcuffed him demonstrates they evaluated the circumstances based on his advanced age and appearance; it does not, as Lieber man suggests, establish their decision to
handcuff constituted excessive force. Lieberman’s primary claim on appeal is th at no force was necessary and thus that handcuffing, which necessarily involves some force, was excessive. He also suggests
that the manner of the handcu ffing exacerbated a prior shou lder injury and caused his wrist to be cut, creating a triable issue of ma terial fact on the use of excessive force. Despite his failure to dispute defendants’ de scription of a routin e handcuffing based on his own deposition testimony, he stated in his declaratio n supporting his opposition to summary judgment that the o fficer who handcuffed him “for cefully grabbed [his] hand, yanked it downward and twisted it painfully, as [he] complain ed that the handcuffs were hurting [him].” Nevertheless, the declaration did not esta blish a triable issue of material fact on the question of excessive force. The officer s kept Lieberman in handcuffs for between five and 25 minutes while they began to conduct their investigation; according to Lieberman, he spent five minutes in hand cuffs. The officers undisputedly took the handcuffs off before they had completed th e investigation and determined he had no criminal background and had not committed a crime. Ha ndcuffing necessa rily involves some degree of force ( Wertish v. Krueger (8th Cir. 2006) 433 F. 3d 1062, 1067), and the manner of handcuffing described by Lieberma n in his declaration does not go beyond that inherent force. Moreover, Lieberma n admittedly did not inform the handcuffing officer that he had a prior sh oulder injury. His wrist bl ed upon the release of the handcuffs. He refused medical assistance, put a Band-Aid on the cut and, when released by the officers, immediately resumed his du ties as a census worker by continuing his
house visits for that afternoon. Lieberma n’s claimed injuries thus did not preclude summary resolution of his battery and neglig ence causes of action based on the use of excessive force. ( Rodriguez v. Farrell (11th Cir. 2002) 280 F.3d 1341, 1351-1353 [summary resolution of excessive force claim, as “[p]ainful handcuffing, without more, is14 not excessive force in cases where the resu lting injuries are minimal”; “[w]hat would ordinarily be considered reasonable force does not become excessive force when the force aggravates (however severely) a pre- existing condition the extent of which was
unknown to the office r at the time”].)
DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED.

ROTHSCHILD, Acting P. J. We concur:

JOHNSON, J.

MILLER, J. *

* Judge of the Los Angeles Superior Cour t, Assigned by the Ch ief Justice pursuant to article VI, section 6 of the California Constitution.