Pickens v. County of Riverside CA4/1

Filed 5/19/23 Pickens v. County of Riverside CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

TAMARIA PICKENS, D080922

Plaintiff and Appellant,

v. (Super. Ct. No. RIC1901399)

COUNTY OF RIVERSIDE et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Riverside County,

Harold W. Hopp, Judge. Affirmed.

Mahoney & Soll, Paul M. Mahoney and Ryan P. Mahoney for Plaintiff

and Appellant.

Hurrell Cantrall, Thomas C. Hurrell, Melinda Lee Cantrall and Natalie

Luongo for Defendants and Respondents.

Plaintiff and appellant Tamaria Pickens appeals a summary judgment

and demurrer entered in favor of respondents County of Riverside (County),

City of Moreno Valley, and Riverside County Sheriff Sergeant Edwin Baeza

on Pickens’s complaint for damages arising from her primary claim of false

arrest and imprisonment.

The trial court sustained without leave to amend the demurrer on her

causes of action for intentional and negligent infliction of emotional distress

in the operative second amended complaint, concluding all respondents were

immune under Government Code section 821.6. It overruled the demurrer on

the false arrest and imprisonment cause of action as to all defendants. As to

Sergeant Baeza, it overruled the demurrer on the claim of violation of civil

rights (42 U.S.C. § 1983 (section 1983)); but it sustained it as against the

public entity defendants, granting Pickens leave to amend. Pickens did not

amend her complaint.

The court granted Sergeant Baeza’s summary judgment motion on the

section 1983 cause of action, and granted it as to all respondents on the false

arrest and imprisonment cause of action.

Pickens contends the court erroneously: (1) ruled on respondents’

evidentiary objections in the summary judgment proceedings; (2) granted

summary judgment on all causes of action because respondents lacked

probable cause to arrest her, as a reasonable officer cannot rely on illegally

obtained statements to create probable cause and the arrest warrant did not

establish probable cause; (3) sustained the demurrer as to the public entity

defendants on the section 1983 cause of action; (4) ruled Sergeant Baeza was

entitled to qualified immunity; and (5) sustained the demurrer as to the

causes of action for intentional and negligent infliction of emotional distress.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In reviewing the court’s ruling on a summary judgment, we state the

undisputed facts and other facts in the light most favorable to Pickens as the

opposing party, resolving evidentiary doubts and ambiguities in her favor.

(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.)

2

The undisputed facts in the summary judgment papers show that in

May 2017, B.P. reported to the Riverside County Sheriff’s Department that

her six-year-old daughter, D.A., said that Pickens touched her private area on

two occasions while they were living in Pickens’s home in 2017.

Sergeant Baeza, who was employed by County and an investigator with

the City of Moreno Valley police station, investigated the allegations.

Sergeant Baeza arranged for a forensic interview of D.A. with a

children’s social worker. During the video-recorded interview, which

Sergeant Baeza observed from another room, D.A. said that Pickens, whom

she called “granny,” had touched her vagina on two occasions.

Sergeant Baeza did not order a physical examination of D.A., reasoning

it was intrusive and unlikely to yield any evidence due to the passage of time.

Based on D.A.’s forensic interview, Sergeant Baeza arranged for B.P. to

make a pretext call to Pickens. During the call, Pickens initially denied

touching D.A., saying D.A. bathed herself at Pickens’s house. However, after

B.P. suggested that maybe Pickens had accidentally touched D.A.’s private

parts while applying lotion to her after helping her bathe, Pickens changed

her story and said she had helped D.A. put on her clothing, and showed her

how to apply lotion. Pickens told B.P. this was a “family situation,” which

they should handle themselves and not report to Child Protective Services.

Sergeant Baeza and another officer interviewed B.P., who was

consistent in her statements and showed concern for her child.

In May 2017, Sergeant Baeza asked Pickens to come to the police

station voluntarily, and she did so. Sergeant Baeza told her she would return

home that night and, “[i]f at any point you feel uncomfortable, all you have to

do is get up, and I’ll follow you and escort you to the front.” Pickens stated

she wanted to proceed with the interview. It lasted less than one hour.

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Although Pickens suggested that D.A. was lying, she could think of no reason

D.A. did that. Sergeant Baeza was polite to Pickens and did not raise his

voice at her. She was not concerned about being arrested. Pickens

understood that Sergeant Baeza needed to investigate the allegations as part

of his job. Sergeant Baeza asked Pickens if she would like to take a

polygraph test, and she agreed. The certified polygrapher asked Pickens

whether she had touched D.A.’s vagina. Her negative response to that

question elicited a notification stating, “deception indicated.”

Sergeant Baeza and his partner conducted a post-polygraph interview

of Pickens, which was audio-recorded. Pickens was advised of her rights

under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) at the start of this

interview.1

Pickens testified in a deposition that she told Sergeant Baeza in the

post-polygraph interview that she had probably touched D.A.’s vagina with

skin-to-skin contact on at least two occasions. Pickens claims Sergeant Baeza

asked her if she would write an apology letter, and she “went along” with his

request.

Sergeant Baeza prepared and submitted a probable cause statement to

the Riverside County District Attorney’s office. In May 2017, Pickens was

detained for two days and released. After Sergeant Baeza resubmitted the

file to the district attorney around the end of June 2017, he stopped

investigating this case.

1 Pickens purports to dispute this claim by asserting she “did not

understand ‘Miranda Rights’ and was scared and following Sergeant Baeza’s

orders because of his status as a police officer and because she no longer had

her vehicle.” (Italics added.) We conclude Pickens’s clarification does not

create a material dispute of fact.

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The District Attorney pressed charges against Pickens, and the court

approved an arrest warrant. In September 2017, she was arrested a second

time.

Pickens in discovery produced a police report stating that in August

2018, the Oceanside Police Department investigated a separate incident in

which B.P. claimed that a family member had sexually abused D.A. The

police concluded the allegations were not credible.

In October 2018, the Riverside District Attorney reportedly dismissed

the charges against Pickens based on the Oceanside Police Department’s

investigation, and she was released from detention.

In November 2018, Pickens filed a government claim against the City

of Moreno Valley. That same month, she filed a government claim against

County.2

2 Respondents in their separate statement of material facts stated

Pickens’s claim was untimely under the Government Claims Act. Pickens

disputed that, asserting the claim was timely as she “was released from an

unlawful incarceration and was suffering from the effects of the Defendant’s

[sic] tortious conduct. As a result, there is a triable issue as to when her

action began tolling. [She] had been in jail and was suffering from a nervous

breakdown therefore defendants cannot benefit from a statutory deadline

when they were complicit in the incarceration and elapse of time. Moreover,

equitable considerations cannot be barred by the [d]efendant [sic] as a matter

of law.”

The court did not expressly rule that Pickens’s claim was time-barred,

but by relying on the immunity provision of the Government Claims Act, it

impliedly concluded Pickens’s claim was timely. In any event, Pickens has

not meaningfully challenged the court’s implied ruling on appeal. She merely

asserts with no citation to the record or case law: “[She] was held without

her consent by respondents for one year. Once she was released in late 2018

and the charges were dismissed, she filed her claim. It was timely filed in

November of 2018.”

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In her operative complaint, Pickens alleged claims for: (1) violation of

section 1983; (2) intentional infliction of emotional distress; (3) negligent

infliction of emotional distress; and (4) false arrest and false imprisonment.

Pickens alleged as to all causes of action: “[Sergeant] Baeza violated

[her] constitutional rights in a number of ways. First, he conducted illegal

warrantless surveillance of [her] in violation of [her] 4th Amendment right to

be free from an unreasonable search. [Her] 1st Amendment privacy rights

are also implicated by [Sergeant] Baeza’s conduct . . . . [He] also subjected

[her] to a coercive interrogation in violation of her 5th Amendment rights.

[She] was denied the assistance of counsel throughout [Sergeant] Baeza’s

interrogation. Finally, [his] arrest of [her] was made without probable cause

and in violation of her 4th Amendment right to be free from an unreasonable

seizure. [Sergeant] Baeza lacked probable cause because, as described

previously, he knew prior to [her] arrest that [B.P.] was a sick liar who

previously lied about child molestation and therefore could not be trusted

with respect to her allegations. He also knew that [B.P.’s] allegations were

uncorroborated by any other source. . . . As a direct result of [Sergeant]

Baeza’s conduct, Pickens lost her job, was separated from her family, and

suffered a nervous breakdown in prison.” Pickens incorporated the above

allegations by reference to all causes of action.

Pickens further alleged a claim under Monell v. New York City Dept. of

Social Services (1978) 436 U.S. 658, 690 (Monell). Under Monell, government

officials sued in their official capacity cannot be held liable under section

On appeal, respondents maintain that Pickens’s state law claims are

untimely. However, even if we interpret this issue in Pickens’s favor and

assume without deciding that her claim was timely presented, we resolve this

appeal on other grounds.

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1983 under a respondeat superior or vicarious liability theory. (Id. at p. 691.)

Rather, liability must be based on an official policy that was the moving force

behind the constitutional violation. (Id. at p. 694.) Pickens alleged her

“injuries were directly caused by the official policies, customs, and practices

of County of Riverside and the City of Moreno Valley . . . [which] treat

allegations of child molestation and sexual assault differently from other

crimes.” She further alleged that when Sergeant Baeza investigated and

arrested her, he and others were aware of these official policies. She alleged

on information and belief that it is the official policy of County to provide no

training to those who are directed and employed to investigate child

molestation. Pickens also alleged County failed to promulgate proper and or

adequate rules, regulations, policies and procedures for training and

supervising officers and agents of the Riverside County Sheriff’s Department

and County with respect to the conduct of interrogations and techniques for

questioning criminal suspects and witnesses.

Defendants demurred to the complaint, and the court sustained the

demurrer on the causes of action for intentional and negligent infliction of

emotional distress without leave to amend, concluding respondents enjoyed

immunity under Government Code section 821.6. It sustained the demurrer

on the section 1983 cause of action as to the public entity defendants with

leave to amend; however, Pickens did not amend. It overruled the demurrer

as to Sergeant Baeza on the section 1983 cause of action. The court overruled

the demurrer on the false arrest and imprisonment cause of action as to all

defendants.

Defendants moved for summary judgment on the section 1983 claim

against Sergeant Baeza, and the false arrest and imprisonment claim against

all defendants. They argued Sergeant Baeza had probable cause to arrest

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Pickens, who could not establish a violation of her Fourth Amendment rights.

They also contended Sergeant Baeza was entitled to qualified immunity as a

matter of law. They claimed as to the Fifth Amendment claim that Sergeant

Baeza conducted a proper voluntary interview of Pickens. They further

argued as to the false arrest and imprisonment cause of action that Pickens

failed to comply with the six-month statute of limitations for presenting a

claim under the Government Code section 911.2; therefore, her state law

claims were barred as a matter of law. Defendants also argued the City of

Moreno Valley was not a proper defendant because its police station was

operated by the Riverside County Sheriff’s Department. In support of their

motion, defendants filed their separate statement of undisputed material

facts and other supporting documents.3

Pickens in opposition submitted her declaration and declarations of her

husband, Frank Taylor, and an expert, David Martinez, a former law

enforcement officer.

Defendants in reply objected to parts of the declarations Pickens

submitted.

The court granted defendants’ summary judgment motion, finding no

triable issue of fact existed and they were entitled to judgment as a matter of

law. It concluded regarding the section 1983 cause of action that probable

cause existed to arrest Pickens: “[Sergeant] Baeza testified that he did

investigate [Pickens’s] statements that [B.P.] had made prior false

accusations, but had no reason to not believe the victim in light of [Pickens’s]

3 Defendants filed a separate volume of evidence; an application to file

under seal certain exhibits attached to their separate volume of evidence;

certain exhibits filed under seal; declarations of Sergeant Baeza and Natalie

Luongo, Esq.; and a request for judicial notice of Pickens’s Government

Claims Act filings.

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inconsistent statements. . . . Here, the victim’s statements along with

[Pickens’s] statements were sufficient to constitute probable cause. (This is

particularly so when [Pickens] admitted at deposition that she did not make

any involuntary statements to the officers.)” The court added: “Under [ ]

Penal Code section 847, [subdivision] (b), there is no liability for false arrest

or false imprisonment if the arrest was lawful or if the officer had reasonable

cause to believe the arrest was lawful, which echoes the Fourth Amendment

issue presented by the [section 1983] cause of action.” (Italics omitted.) The

court stated Pickens failed to demonstrate that a medical exam of D.A. was

necessary to establish probable cause to arrest Pickens. The court found

that, even assuming the police did not give Pickens Miranda warnings before

Sergeant Baeza’s interview, that failure could not be the basis of a section

1983 claim.

The court sustained several of defendants’ objections to specific

statements contained in the declarations of Pickens, Taylor and Martinez. It

found that “the parties agree [Pickens] cannot maintain her cause of action

against the City of Moreno Valley in any event—the police station was

operated by the Riverside County Sheriff’s Office and [Sergeant] Baeza was

employed by that agency.”4

DISCUSSION

I. Challenge to Evidentiary Rulings

We begin with Pickens’s challenge to the court’s evidentiary rulings

because on review of a summary judgment, we normally disregard all

properly excluded evidence. (Code Civ. Proc., § 437c, subd. (c); Reid v. Google,

Inc. (2010) 50 Cal.4th 512, 535.)

4 Pickens does not challenge this finding on appeal.

9

Pickens contends she “never received from the court the evidentiary

rulings” despite requesting them twice. She adds she “is well aware of all the

COVID excuses, but the bottom line [is] a poor Black respondent was abused

by the court system. It was only through a lot of yelling and screaming by

[her] counsel that the objections were ultimately received.” (Emphasis

omitted.) On the substance of Pickens’s claim regarding the statements in

the declarations, she argues with no citation to the record: “The objections

that were sustained were wrong. Martinez has more experience than any

police officer involved in this case. He stated very clearly what needs to be

shown in this kind of a case. He has substantial training in these types of

cases. He found no physical evidence and no probable cause.” She adds:

“The same is true with regard to the rest of the declaration[s] for appellant

which includes the declaration of appellant and her husband Frank Taylor.

These court’s rulings [sic] as to these declarations were not sent to [her]

counsel.”

Pickens has forfeited any challenge to the trial court’s ruling on the

evidentiary objections by failing to cite any authority for her argument. An

appellant must provide an argument and legal authority to support her

contentions. “This burden requires more than a mere assertion that the

judgment is wrong. ‘Issues do not have a life of their own: If they are not

raised or supported by argument or citation to authority, [they are] . . .

waived.’ [Citation.] It is not our place to construct theories or arguments to

undermine the judgment and defeat the presumption of correctness. When

an appellant fails to raise a point, or asserts it but fails to support it with

reasoned argument and citations to authority, we treat the point as waived.”

(Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)

Moreover, Pickens fails to point to any specific excluded statement in the

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declarations to support her claim the trial court erred in making its

evidentiary rulings.

II. Probable Cause to Arrest Pickens

Pickens contends the court erroneously granted summary judgment on

the section 1983 cause of action as to Sergeant Baeza and the false arrest and

imprisonment claim as to all defendants because triable issues of fact exist

regarding whether Sergeant Baeza had probable cause to arrest her. She

argues she told Sergeant Baeza in the first interview that B.P was lying

about the allegations against her, and B.P. had similarly fabricated

accusations against D.A.’s father. Pickens further contends a reasonable

officer cannot rely on statements obtained in violation of Miranda to create

probable cause. Pickens specifically contends the “alleged ‘inconsistent

statements’ elicited by [Sergeant] Baeza were not in fact voluntary but were a

direct result of an illegal custodial interrogation.” Pickens contends Sergeant

Baeza “lacked enough evidence to arrest [her] following his interview of the

alleged victim. . . . Nor did he have probable cause after the pretext call and

[Pickens’s] voluntary interview.”

Pickens contends the issuance of an arrest warrant did not establish

probable cause as a matter of law, as Sergeant Baeza omitted material

exculpatory information from his warrant declaration; specifically, that B.P.

“has a history of making false allegations of child molestation”; and “the

factual circumstances of the polygraph.” Pickens explains Sergeant Baeza

omitted “the fact that [he] misled [her] about the location of the polygraph,

made her ride in the backseat of a police vehicle to San Bernadino, made

[her] wait several hours before taking the polygraph, and isolated her from

her boyfriend who wanted to provide moral support.”

A. Summary Judgment Legal Principles and Standard of Review

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Summary judgment is proper only if there are no triable issues of

material fact and the moving party is entitled to judgment as a matter of law.

(Code Civ. Proc., § 437c, subd. (c); Regents of University of California v.

Superior Court (2018) 4 Cal.5th 607, 618; Flores v. City of San Diego (2022)

83 Cal.App.5th 360, 371.) A defendant moving for summary judgment has

the burden of producing evidence to show a cause of action lacks merit

because the plaintiff either cannot establish an element of the cause of action

or there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar

v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see Regents, at p. 618;

Flores, at p. 371.) If the defendant satisfies this initial burden, the burden

shifts to the plaintiff to present evidence demonstrating there is a triable

issue of material fact with respect to that cause of action or defense. (Code

Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850; Flores, at p. 371.)

We review the entire record and the trial court’s decision de novo,

considering all the evidence set forth in the moving and opposing papers

except that to which objections were made and sustained. (Hampton v.

County of San Diego, supra, 62 Cal.4th at p. 347; Andrews v. Metropolitan

Transit System (2022) 74 Cal.App.5th 597, 603.) We examine the facts

presented to the trial court and determine their effect as a matter of law.

(Regents of University of California v. Superior Court, supra, 4 Cal.5th at p.

618; Andrews, at p. 603.) “ ‘ “We liberally construe the evidence in support of

the party opposing summary judgment and resolve doubts concerning the

evidence in favor of that party.” ’ ” (Hampton, at p. 347; accord, Regents, at p.

618; Andrews, at pp. 603-604.) “[A]ny doubts as to the propriety of granting a

summary judgment motion should be resolved in favor of the party opposing

the motion.” (Reid v. Google, supra, 50 Cal.4th at pp. 534-535.)

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“When the seizure of a person amounts to an arrest, it must be

supported by an arrest warrant or by probable cause.” (People v. Celis (2004)

33 Cal.4th 667, 673.) “Probable cause is shown ‘when the facts known to the

arresting officer would persuade someone of “reasonable caution” that the

person to be arrested has committed a crime.’ ” (People v. Zaragoza (2016) 1

Cal.5th 21, 57.) “ ‘[T]here is no hard and fast line to distinguish permissible

investigative detentions from impermissible de facto arrests. Instead, the

issue is decided on the facts of each case, with focus on whether the police

diligently pursued a means of investigation reasonably designed to dispel or

confirm their suspicions quickly, using the least intrusive means reasonably

available under the circumstances.’ ” (Celis, supra, at pp. 674-675.)

The existence of probable cause for an arrest presents a question of law

we review using our independent judgment. (People v. Thompson (2006) 38

Cal.4th 811, 818.) Since the operative facts regarding probable cause here

are undisputed, our entire review is de novo. (Ibid.) The concept of probable

cause has been described as “incapable of precise definition.” (People v. Celis,

supra, 33 Cal.4th at p. 673.) That is intentionally so, because “probable cause

is a fluid concept—turning on the assessment of probabilities in particular

factual contexts.” (Illinois v. Gates (1983) 462 U.S. 213, 232.) “Probable

cause exists when the facts known to the arresting officer would persuade

someone of ‘reasonable caution’ that the person to be arrested has committed

a crime.” (Celis, at p 673.) The substance of the definition of probable cause

is “ ‘ “a reasonable ground for belief of guilt.” ’ ” (Ibid., citing Maryland v.

Pringle (2003) 540 U.S. 366, 371.)

Once probable cause to arrest someone is established, an officer is

under no duty to investigate further or look for additional evidence which

may exculpate the accused. (Broam v. Bogan (9th Cir. 2003) 320 F.3d 1023,

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1032.) In addition, exculpatory omissions are not material where, after

amending the warrant to omit the alleged misrepresentations, probable cause

still exists. (Beltran v. Santa Clara County (9th Cir. 2010) 389 Fed.Appx.

679, 681.)

A failed polygraph examination may support probable cause for an

arrest. (Reed v. City of Chino (9th Cir. 2007) 224 Fed.Appx. 625, 626

[summary judgment properly granted in favor of defendant on plaintiff’s

section 1983 claim, as there was probable cause to arrest plaintiff for arson,

including the fact that the plaintiff had been deceptive when asked during a

polygraph examination about his involvement in the fire]; U.S. v. Wong (9th

Cir. 2003) 334 F.3d 831, 836 [probable cause supported warrant where

suspect withheld information from the police and appeared deceptive during

a polygraph test].)

B. Analysis

We conclude the court did not err in finding that probable cause existed

to arrest Pickens. The undisputed evidence is that B.P. informed law

enforcement Pickens had inappropriately touched D.A. In a separate forensic

interview, D.A. recounted the same information. During the pretext call,

Pickens initially denied bathing or dressing D.A. However, she later changed

her story and conceded she may have touched D.A.’s vagina by accident while

applying lotion after helping to bathe D.A. During the polygraph

examination, Pickens’s response regarding the inappropriate touching

returned a response of “deception indicated.” After she received the Miranda

warnings, Pickens admitted to touching D.A.’s bare vagina. She also wrote

an apology letter regarding the touching.

“Information provided by a crime victim or chance witness alone can

establish probable cause if the information is sufficiently specific to cause a

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reasonable person to believe that a crime was committed and that the named

suspect was the perpetrator.” (Gillan v. City of San Marino (2007) 147

Cal.App.4th 1033, 1045.) Although Pickens argues Sergeant Baeza omitted

from his arrest warrant petition that he knew B.P. had falsely accused D.A.’s

father of inappropriate contact with the child, “neither a previous

demonstration of reliability nor subsequent corroboration is ordinarily

necessary when witnesses to or victims of criminal activities report their

observations in detail to the authorities.” (People v. Ramey (1976) 16 Cal.3d

263, 269.)

To the extent Pickens relies on her complaint’s allegation of a

constitutional violation of the right against self-incrimination under the Fifth

Amendment of the federal Constitution and the prophylactic rule set forth in

Miranda, the United States Supreme Court has stated that the failure to

provide a Miranda warning “cannot be grounds for a [section] 1983 action.”

(Chavez v. Martinez (2003) 538 U.S. 760, 772.)

Having concluded there was probable cause to support Pickens’s arrest,

we also conclude Sergeant Baeza was entitled to state law statutory

immunity with respect to the state law false arrest and imprisonment claim

under Penal Code section 847, subdivision (b)(1). That statute provides in

part: “There shall be no civil liability on the part of, and no cause of action

shall arise against, any peace officer or federal criminal investigator or law

enforcement officer described in subdivision (a) or (d) of Section 830.8, acting

within the scope of his or her authority, for false arrest or false imprisonment

arising out of any arrest under any of the following circumstances: . . . The

arrest was lawful, or the peace officer, at the time of the arrest, had

reasonable cause to believe the arrest was lawful.”

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As this court stated in Hamilton v. City of San Diego (1990) 217

Cal.App.3d 838, “by their terms Penal Code sections 847 and 836 relieve

peace officers of liability so long as reasonable cause for arrest has been

established. No other condition is placed upon the statutory immunity.” (Id.

at p. 845; accord, Cornell v. City & County of San Francisco (2017) 17

Cal.App.5th 766, 786 [“California Courts speak of ‘reasonable cause’ and

‘probable cause’ interchangeably . . . . The statutory scheme of which Penal

Code section 847 is a part . . . uses both terms without differentiation.”].)

Based on the above, we reject Pickens’s claim Sergeant Baeza was not

entitled to qualified immunity under Penal Code section 847. Pickens

argues, “The second amended complaint specifically alleges that [Sergeant

Baeza] did not have reasonable cause to arrest. . . . The respondents offer no

authority to support the argument that a police officer who engages in the

deliberate misconduct is entitled to qualified immunity with respect to false

arrest.” As stated, there was sufficient probable cause to arrest Pickens;

therefore, the premise of Pickens’s argument fails.

To the extent Pickens relies on her complaint’s allegation of a violation

of her First Amendment right to privacy, she has not presented any

argument regarding this issue on appeal, and we conclude there is no triable

issue of material fact regarding this claim, and the defendants are entitled to

summary adjudication of it.

III. Demurrer on the Section 1983 Claim

Pickens contends the court improperly sustained the demurrer to the

section 1983 cause of action as to the public entity defendants under Monell,

supra, 436 U.S. 658, 690, which holds that a local government agency may

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only be liable for constitutional violations under section 1983 “when

execution of a government’s policy or custom, whether made by its lawmakers

or by those whose edicts or acts may fairly be said to represent official policy,

inflicts the injury.” (Monell, supra, 436 U.S. at p. 694.)

Pickens further contends: “[T]he second amended complaint lays out

how County of Riverside deployed an official and illegal policy with respect to

the investigation of child molestation and that [ ] Sergeant Baeza followed

that policy in his treatment of [her]. The demurrer should have been

overruled on these allegations alone since a facially plausible second

amended complaint need only be supported by sufficient factual matter and

not detailed allegations. [Citation.] However, . . . the second amended

complaint further describe[s] in detail how the County of Riverside, and not

just [ ] Sergeant Baeza, knowingly deployed unconstitutional investigatory

methods on innocent people in Moreno Valley. Constitutional violations

could occur not only by employing coercive interview techniques known to

yield false evidence, but also by deliberately mischaracterizing witness

statements and falsely claiming to have interviewed witnesses.” (Some

capitalization omitted.)

Pickens relies on this allegation in the complaint: “The official policy,

as promulgated by and through memorandums from County of Riverside and

its law enforcement agencies, was the moving force behind Pickens’s arrest

and subsequent injuries. Moreover, County of Riverside and the City of

Moreno Valley acted with deliberate indifference to the constitutional rights

of [Pickens] and every other resident of County of Riverside, by directing that

its officers pursue a blatantly unconstitutional policy regarding child

molestation.” (Some capitalization and emphasis omitted.)

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Pickens contends County may also be liable for her injuries under

section 1983 for its failure to train its employees, pointing to this allegation

in her complaint: “Appellant is informed and believes that it is the official

policy of County of Riverside to provide no training to those who are directed

and employed to investigate child molestation. County of Riverside, as an

official policy and as demonstrated through various interagency agreements

between County of Riverside and the City of Moreno Valley, employed

individuals who have literally no training in how to investigate allegations of

child molestation.” (Some capitalization and emphasis omitted.)

A. Demurrer Standard of Review and Applicable Law

“ ‘In reviewing an order sustaining a demurrer, we examine the

operative complaint de novo to determine whether it alleges facts sufficient to

state a cause of action under any legal theory.’ [Citation.] ‘ “ ‘ “We treat the

demurrer as admitting all material facts properly pleaded, but not

contentions, deductions or conclusions of fact or law. . . . Further, we give

the complaint a reasonable interpretation, reading it as a whole and its parts

in their context.’ ” ’ ” (Mathews v. Becerra (2019) 8 Cal.5th 756, 768; see also

Zhang v. Superior Court (2013) 57 Cal.4th 364, 370.)

“ ‘If the complaint states a cause of action under any theory, regardless

of the title under which the factual basis for relief is stated, that aspect of the

complaint is good against a demurrer. “[W]e are not limited to plaintiffs’

theory of recovery in testing the sufficiency of their complaint against a

demurrer, but instead must determine if the factual allegations of the

complaint are adequate to state a cause of action under any legal

theory . . . .” ’ ” (Zhang v. Superior Court, supra, 57 Cal.4th at p. 370, see also

id. at p. 383.)

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It is Pickens’s burden to show in what manner she can amend the

complaint and how that amendment will change the legal effect of the

pleading. (See HFH, Ltd. v. Superior Court (1975) 15 Cal.3d 508, 513, fn. 3.)

Such a showing may be made for the first time on appeal. (Smith v. BP

Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 144-145.) But when a

demurrer to an original complaint has been sustained without leave to

amend, the question becomes whether the complaint shows on its face that it

is incapable of amendment. (City of Stockton v. Superior Court (2007) 42

Cal.4th 730, 747 [“[L]eave to amend is properly granted where resolution of

. . . legal issues does not foreclose the possibility that the plaintiff may supply

necessary factual allegations”].)

California courts recognize that federal law applies to determine the

sufficiency of a complaint alleging a federal civil rights cause of action under

section 1983. (Arce v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th

1455, 1471; Bach v. County of Butte (1983) 147 Cal.App.3d 554, 563.)

The basic principles of federal law for pleading a cause of action are

similar to California’s. Rule 8(a) of the Federal Rules of Civil Procedure

provides that a pleading must contain a “short and plain statement of the

claim showing the pleader is entitled to relief” and a “demand for the relief

sought.” A motion to dismiss may assert a “failure to state a claim upon

which relief can be granted.” (Fed. Rules Civ.Proc., rule 12(b)(6).) A

complaint meets federal standards if it contains sufficient factual matter,

accepted as true, to “state a claim to relief that is plausible on its face.” (Bell

Atlantic Corp. v. Twombly (2007) 550 U.S. 544, 570.) This facial plausibility

standard is satisfied “when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” (Ashcroft v. Iqbal (2009) 556 U.S. 662, 678 (Iqbal).)

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Determining whether a claim is plausible is a context-specific task requiring

the court to draw on its judicial experience and common sense. (Id. at p.

679.)

A local government agency may only be liable for constitutional

violations under section 1983 “when execution of a government’s policy or

custom, whether made by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy, inflicts the injury.” (Monell, supra,

436 U.S. at p. 694; accord, Pierce v. San Mateo County Sheriff’s Dept. (2014)

232 Cal.App.4th 995, 1007; Perry v. County of Fresno (2013) 215 Cal.App.4th

94, 105.) To establish liability under Monell, “[t]he plaintiff must establish

that (1) the plaintiff was deprived of a constitutional right; (2) the

government entity had a policy [or custom]; (3) this policy amounted to

deliberate indifference to the plaintiff’s constitutional right; and (4) the policy

was the moving force behind the constitutional violation.” (Perry, at pp. 105-

106.)

Claims against government employees sued in their official capacity

are treated as claims against the employing agency and are subject to the

Monell requirements. (Kentucky v. Graham (1985) 473 U.S. 159, 166 [“As

long as the government entity receives notice and an opportunity to respond,

an official-capacity suit is, in all respects other than name, to be treated as a

suit against the entity”]; Payne v. McDermott (9th Cir. 2017) 683 Fed.Appx.

643, 645 [applying Monell to section 1983 claim against sheriff’s deputies who

confiscated sexually explicit comic book in jail on basis “suit against a

government employee in his official capacity is a suit against the government

entity the individual represents”].)

The federal courts have applied the pleading requirements of Iqbal,

supra, 556 U.S. at page 678 (requiring more than conclusory allegations) to

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Monell claims. (See Galindo v. City of San Mateo (N.D.Cal., Dec. 7, 2016, No.

16-cv-03651-EMC) 2016 WL 7116927, *5 [“Monell allegations must be

pleaded with specificity as required under Twombly and Iqbal”]; accord,

Bedford v. City of Hayward (N.D.Cal., Oct. 15, 2012, No. 3:12-cv-00294-JCS)

2012 WL 4901434, *12 [“to withstand a motion to dismiss for failure to state

a claim, a Monell claim must consist of more than mere ‘formulaic recitations

of the existence of unlawful policies, conducts or habits’ ”].)

B. Analysis

Pickens’s conclusory and argumentative allegations do not meet the

Iqbal pleading standard as they do not set forth a specific policy that bears on

her claim the public entity defendants had a policy or custom that deprived

her of a constitutional right and amounted to a deliberate indifference to that

right (see Perry v. County of Fresno, supra, 215 Cal.App.4th at p. 105), or any

policy showing they failed to train their officers. Further, she does not state

what facts she could allege to support a widespread failure to train

amounting to deliberate indifference or other policy or custom supporting her

Monell claim. Pickens’s allegations also do not satisfy California pleading

standards: “An appellate court’s ‘ “only task in reviewing a ruling on a

demurrer is to determine whether the complaint states a cause of action.” ’

[Citations.] The reviewing court assumes the truth of allegations in the

complaint which have been properly pleaded and gives it a reasonable

interpretation by reading it as a whole and with all its parts in their context.

[Citations.] However, the assumption of truth does not apply to contentions,

deductions, or conclusions of law and fact.” (Gentry v. eBay, Inc. (2002) 99

Cal.App.4th 816, 824.) Pickens’s allegations are argumentative conclusions

of law and fact that we do not treat as true.

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In any event, if a plaintiff did not suffer an underlying constitutional

deprivation by a deputy or officer of a government entity, the plaintiff’s

Monell claim automatically fails. In City of Los Angeles v. Heller (1986) 475

U.S. 796, 799, the United States Supreme Court held that if a person has

suffered no constitutional injury at the hands of the individual police officer,

the fact that departmental regulations might have authorized the

unconstitutional conduct is “quite beside the point.” (Accord, Rivera v. Rhode

Island (1st Cir. 2005) 402 F.3d 27, 39 [as plaintiff failed to establish a

constitutional violation, the City of Canton’s failure to train claim likewise

failed]; and Reed v. City of Chino, supra, 224 Fed.Appx. at p. 625, fn. 1

[because the officer had probable cause for plaintiff’s arrest, it was

unnecessary for the court to address the potential liability of the public

entity].) Here, as we have concluded probable cause existed to arrest

Pickens, she suffered no constitutional injury by the public entity defendants.

The court did not err in sustaining the demurrer on the section 1983 cause of

action as to the public entity defendants.

IV. Demurrer on Emotional Distress Claims

Pickens contends the court erroneously sustained the demurrer as to

the causes of action for intentional and negligent infliction of emotional

distress, as Sergeant Baeza’s conduct was extreme and outrageous.

She adds Sergeant Baeza “is not protected by Government Code Section

821.6.” (Italics omitted.)

“[B]ecause ‘all governmental tort liability is based on statute, the

general rule that statutory causes of action must be pleaded with

particularity is applicable. Thus, “to state a cause of action against a public

entity, every fact material to the existence of its statutory liability must be

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pleaded with particularity.” ’ ” (City of Los Angeles v. Superior Ct. (2021) 62

Cal.App.5th 129, 138.)

A cause of action for intentional infliction of emotional distress

requires: 1) extreme and outrageous conduct with the intention of causing, or

reckless disregard of the probability of causing, emotional distress; 2) severe

or extreme emotional distress; and 3) actual and proximate causation of the

emotional distress by the outrageous conduct. (Grenier v. Taylor (2015) 234

Cal.App.4th 471, 486.) Conduct is considered outrageous when it is “so

extreme as to exceed all bounds of that usually tolerated in a civilized

community.” (Ibid.) The defendant’s conduct must be “intended to inflict

injury or engaged in with the realization that injury will result.” (Hughes v.

Pair (2009) 46 Cal.4th 1035, 1050-1051.) With respect to the requirement

that the plaintiff show severe emotional distress, the California Supreme

Court has set a high bar: “ ‘Severe emotional distress means “ ‘emotional

distress of such substantial quality or enduring quality that no reasonable

[person] in civilized society should be expected to endure it.’ ” ’ ” (Id. at p.

1151.)

We conclude Pickens has not alleged facts to show that Sergeant

Baeza’s conduct was extreme and outrageous. The allegations in the

operative complaint that Sergeant Baeza did not properly or completely

investigate the allegations against Pickens, or that in deciding to arrest her

he prioritized certain information over other information showing that B.P.

was lying, fall far short of conduct that is so “outrageous” that it “ ‘ “exceed[s]

all bounds of that usually tolerated in a civilized community.” ’ ” (Potter v.

Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.) Besides, we have

concluded based on the same allegations that Sergeant Baeza’s had probable

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cause to arrest Pickens. Accordingly, the court did not err in sustaining the

demurrer as to the emotional distress causes of action.

DISPOSITION

The judgment is affirmed.

O’ROURKE, Acting P. J.

WE CONCUR:

DATO, J.

BUCHANAN, J.

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