Schmidlin v. City of Palo Alto (157 Cal. App. 4th 728, 2007)

Opinion

RUSHING, P. J.

Plaintiff Michael Schmidlin brought this action against the City of Palo Alto and several of its police officers, alleging that the officers committed various constitutional and common law torts when they detained and arrested him for public drunkenness. After various claims were dismissed on legal grounds, a jury found that officers had used excessive force against plaintiff, but rejected claims of unlawful arrest and fabrication of police reports. Both parties appeal on numerous grounds. We find no reversible error, and affirm the judgment.

Background

According to plaintiff, he and two companions, Jim Walker and Bill D’Honau, were walking along a downtown Palo Alto street in the early morning hours of March 29, 1997, when they were accosted by two young women in a car driving the wrong way on the street. As plaintiff tried to persuade the women not to drive in their condition, defendant Bertrand Milliken, a Palo Alto police officer, arrived in his patrol car. Thinking the women were about to be arrested, plaintiff began to walk away. His companions, however, remained behind to watch, so plaintiff turned and waited for them near a sign. Plaintiff and his companions testified that plaintiff was not drunk and did not appear drunk.

Milliken testified that plaintiff staggered drunkenly to the sign, where he appeared to be urinating. He approached plaintiff to investigate. Plaintiff was not urinating, but Milliken asked him for identification anyway. Plaintiff balked at this, and told Milliken he had left his identification in his truck. Plaintiff and his companions told Milliken they were on their way home. Milliken conceded that they told him they were just walking down the street a few blocks and that Walker and D’Honau said they were with plaintiff. Milliken testified that plaintiff appeared drunk, and that soon after their exchange began, plaintiff became hostile, put his face close to Milliken’s, and seemed to be going to fight him. According to Milliken, plaintiff started to walk away several times, whereupon Milliken ordered him to remain. Plaintiff and his companions denied this, though Walker testified that plaintiff averted his gaze at one point and plaintiff testified that he stepped back as Milliken got extremely close to him.

At least four and a half minutes after approaching plaintiff, Milliken placed a nonurgent call for backup. In response, defendant Officer Martin drove to the scene. When he arrived, Milliken told plaintiff he was under arrest. Without warning, according to plaintiff and his companions, the officers grabbed plaintiff’s arms and threw him face first to the ground, both landing on top of him. Plaintiff testified that Martin then began punching him, grabbing his head by the hair and jamming it into the sidewalk, producing cuts and abrasions on his face. A third officer, defendant Trujillo, ran up and hit plaintiff on the legs with a baton.

Plaintiff’s companions Williams and D’Honau complained at the scene about his treatment, and a police sergeant, defendant Carole Baldwin, arrived to speak to them. Although her report indicated that they were upset about the officers’ treatment of plaintiff, they testified that she attributed to them statements they did not make, and omitted statements they did make.

After plaintiff’s arrest, officers took him to Stanford Hospital for an assessment of his injuries. Plaintiff said that officers refused to let him use the bathroom at this time, but defendant Milliken told plaintiff he could use the bathroom if he would provide a urine sample. Plaintiff agreed, although he did not want to provide a urine sample because, he testified, he feared officers might tamper with it. After using the bathroom, he presented a sample cup filled with water. When he went to the bathroom a second time, defendants Milliken and Martin followed him and, according to plaintiff, threw him to the floor and elbowed and kneed him.

Plaintiff was subsequently charged with a number of misdemeanors, as more fully described below. (See p. 741, post.) During the course of the criminal prosecution he made a motion to suppress evidence, alleging that Officer Milliken had lacked sufficient grounds to conduct an investigatory detention, and that all evidence flowing from that detention should be excluded. That motion was denied, and plaintiff was tried in January 1999 on charges of resisting arrest, public intoxication, false identification, assault on a police officer (Martin), and battery on a police officer (Milliken). The jury found him guilty of false identification and not guilty of public drunkenness and assault, but failed to reach a verdict on resisting arrest and battery. Plaintiff successfully moved for a new trial on the false identification charge based on instructional error and juror misconduct. After announcing an intention to retry the remaining charges, the prosecutor dismissed them on the eve of trial.

On December 12, 2000, plaintiff brought this action against Officers Milliken, Martin, Trujillo, and Baldwin, the Palo Alto Police Department, and the City of Palo Alto. Defendants brought a motion for summary judgment, arguing among other things that the denial of plaintiff’s suppression motion precluded him from pursuing his claims for unlawful detention and arrest, and that the statute of limitations barred the claims for excessive force. The court denied the motion.

The matter came on for trial, and after proceedings described more fully below, the jury found that Officers Milliken, Martin, and Trujillo had violated plaintiff’s constitutional rights by using excessive force against his person. The jury rejected his claims of false arrest and fabrication of police reports. The trial court denied defendants’ motion for judgment notwithstanding the verdict. Defendants, followed by plaintiff, filed timely notices of appeal.

I. Defendants’ Appeal

A. Sufficiency of Evidence of Excessive Force

Defendants assert that the evidence was insufficient to support the jury’s finding of excessive force. At least we so construe their brief, which alludes in passing to the insufficiency of the evidence, but which is actually devoted almost entirely to rearguing the facts. This approach disregards the fundamental principles governing appellate review of factual findings, and the “daunting burden” those principles impose upon an appellant who challenges the sufficiency of the evidence to support a judgment. (In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328-329 [249 Cal.Rptr. 798].) “ ‘The rule is well established that a reviewing court must presume that the record contains evidence to support every finding of fact, and an appellant who contends that some particular finding is not supported is required to set forth in his brief a summary of the material evidence upon that issue. Unless this is done, the error assigned is deemed to be waived. [Citation.] It is incumbent upon appellants to state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings.’ [Citations.]” (In re Marriage of Fink (1979) 25 Cal.3d 877, 887 [160 Cal.Rptr. 516, 603 P.2d 881].)

Defendants state that “even assuming the version of events most favorable to [plaintiff], the force used to arrest him and to control him while in custody was not constitutionally excessive.” But defendants nowhere set forth the version of events most favorable to plaintiff, although doing so is part of their fundamental obligation to this court, and a prerequisite to our consideration of their challenge. “A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]” (Roemer v. Pappas (1988) 203 Cal.App.3d 201, 208 [249 Cal.Rptr. 743], italics added.) Where a party presents only facts and inferences favorable to his or her position, “the contention that the findings are not supported by substantial evidence may be deemed waived.” (Oliver v. Board of Trustees (1986) 181 Cal.App.3d 824, 832 [227 Cal.Rptr. 1].)

In addition to neglecting these requirements, defendants’ brief pervasively alludes to factual matters unaccompanied by record citations. It is the duty of counsel to refer us to the portion of the record supporting his contentions on appeal. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 589, p. 624; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545 [35 Cal.Rptr.2d 574]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108 [75 Cal.Rptr.2d 27]; see People v. Hyatt (1971) 18 Cal.App.3d 618, 624 [96 Cal.Rptr. 156] [where brief fails to specify portions of record supporting appellant’s factual assertions, record is presumed to support trial court’s rulings].) “It is not incumbent upon this court to search a record of this character to determine a point raised in this manner.” (Erro v. City of Santa Barbara (1932) 123 Cal.App. 508, 513 [11 P.2d 890]; see In re Marriage of Fink, supra, 25 Cal.3d at p. 888 [“It is neither practical nor appropriate for us to comb the record on [the appellant’s] behalf’].)

Even overlooking these deficiencies, we find defendants’ challenge to the sufficiency of the evidence unpersuasive. Defendants assert as a “paramount and indisputable fact” that when officers threw plaintiff to the ground he was “so intoxicated that he presented a danger to himself and others,” and as “an objective fact” that “the arresting officers faced a severely intoxicated individual . . . .” But the supposed facts cited for this characterization are that (1) plaintiff had five beers over a period of six hours, and (2) plaintiff professed to be unable to “dispute Agent Milliken’s observations that he had red and glassy eyes and a strong odor of alcohol, because these are observations uniquely observable only by someone other than himself.” The weight to be assigned to these reported observations was for the jury, not this court, and even if they were credited at face value they would hardly establish beyond peradventure that plaintiff was “severely intoxicated” or that he presented any occasion for the use of force.

Defendants similarly assert, without record citations, that plaintiff exhibited an “uncooperative and resistive attitude toward complying with the officers’ commands.” Accepting this fact, even coupled with plaintiff’s consumption of five beers over six hours, would hardly oblige the jury to find that officers were entitled to throw plaintiff to the ground, pile on top of him, grind his face into the sidewalk, and beat his legs with a baton. Worse, defendants rely on Officer Milliken’s paraphrased testimony that plaintiff “repeatedly tried to walk away to avoid questioning and eventually squared off in a tense stance when the way was blocked,” even while acknowledging that plaintiff “denied this entirely.” For purposes of the issue tendered by defendants, plaintiff’s denial is presumed to be true because it supports the judgment; contrary testimony is all but irrelevant.

Defendants’ brief continues in this vein, alluding to and arguing from supposed evidence, almost none of which is supported by record citations. Plaintiff points all this out in his responding brief. Defendants do not meet the point in their reply brief, but continue in the same manner. Thus they belatedly acknowledge plaintiff’s testimony that drinking five or six beers over an evening would not make him feel excessively intoxicated, or affect his ability to walk or talk, but would just leave him feeling mellow and relaxed; but they assert that this evidence “must be disregarded in examining the constitutionality of the level of force employed to effect his arrest because they attest to an alleged mental state rather than objective indications of intoxication.” On the contrary, plaintiff’s testimony about his reactions to alcohol, which the jury presumptively credited at least to the extent that it left him feeling “mellow,” would support an inference that he posed no threat to officers whatever, and that any evidence to the contrary was not true. Plaintiff’s brief includes a nine-page catalog of other evidentiary details— fully backed by citations to the record—supporting the verdict but absent from defendant’s presentation. This catalog confirms that the present case is a prime candidate for application of the rule that failure to present a full and fair summary of the evidence supporting the judgment effects a “waive[r]” of any challenge to the sufficiency of the evidence. (Oliver v. Board of Trustees, supra, 181 Cal.App.3d at p. 832.) In any event, depending as it does on disputed facts and inferences, defendant’s presentation is insufficient to impeach the judgment.

B. Qualified Immunity

Defendants raise several arguments to the effect that the trial court erred in not sustaining their defense of qualified immunity. As with the challenge to the evidence of excessive force, their appellate presentation is so fundamentally flawed that it is unnecessary to delve into the applicable substantive law.

Their first argument is that the trial court should not have let the case go to the jury, or should have granted judgment notwithstanding the verdict, because “there was no evidence upon which the jury (or the trial court) could conclude that an objectively reasonable officer absolutely could not believe that the ‘take-down’ approach was a reasonably necessary and effective technique for handcuffing an intoxicated, uncooperative, and potentially dangerous individual.” That formulation rests on factual premises that defendants have failed to establish for purposes of this appeal, and that appear to be contrary to what the jury was entitled to find, i.e., that plaintiff did not appear sufficiently intoxicated, uncooperative, or potentially dangerous to permit a reasonable officer to believe it was reasonably necessary to knock him down, strike, and club him. Once again defendants’ argument is offered in defiance of the substantial evidence rule and the appellate presumption of correctness.

Defendants also assert that the trial court erred in instructing the jury that “it was clearly established law at the time of plaintiff’s arrest that excessive force could not be used to effect an arrest.” The nature of the claimed error eludes us. The ensuing argument addresses the question, not whether an officer might have thought it was permissible to use excessive force at the time of plaintiff’s arrest, but whether it was established law that the force used by the officers was excessive. Obviously the two questions differ markedly. As far as it went, the challenged instruction was a correct statement of law. If defendants have a grievance, it must be that the court committed some error in instructing on what constituted excessive force under established law. Defendants make no effort to identify such an error, shifting instead to an argument that plaintiff failed to carry his burden of showing that established law at the time prohibited the conduct attributed to defendant officers. In the absence of a proper showing to this effect, we presume in support of the judgment that the evidence supported a contrary determination. Further, the argument again rests on controverted, unsubstantiated, and presumptively rejected factual assertions, e.g., that plaintiff was a “physically resistive suspect” engaged in “vigorous physical resistance to handcuffing”; that an officer pressed his forearm against plaintiff’s head rather than, as plaintiff testified, pulling his hair; and that officers’ attack on plaintiff at the hospital served “the legitimate police purpose of preventing another falsified urine sample which would delay medical clearance.” A challenge thus poisoned by controverted factual premises presents no legal issue to decide. It is on its face devoid of merit.

C. Statute of Limitations

1. Background

Defendants contend that plaintiff’s excessive force claim was barred by the statute of limitations. Defendants did not raise this issue during trial, but asserted it before trial by motion for summary judgment, and again after trial by motion for judgment notwithstanding the verdict. The trial court rejected it on both of those occasions. Defendants have failed to carry their burden of demonstrating that these rulings were incorrect.

It is undisputed that the officers’ use of excessive force against plaintiff occurred on March 29, 1997. Plaintiff was arrested on that date, and was released from custody, apparently on bail, on March 30, 1997. A criminal complaint was filed on April 18, 1997, charging plaintiff with public intoxication (Pen. Code, § 647, subd. (f)) and resisting an officer in the discharge of his duties (Pen. Code, § 148, subd. (a)). The complaint was later amended to add charges including battery on a peace officer in the performance of his duties (Pen. Code, §§ 242, 243, subd. (b)), vandalism (Pen. Code, § 594, subds. (a), (b)(4)), and giving a false name to a police officer (Pen. Code, § 148.9). The matter went to trial in January 1999, resulting in an acquittal of public intoxication and assault on Officer Martin, a conviction for false identification, and a hung jury on resisting arrest and battery against Officer Milliken. Plaintiff’s motion for a new trial on the false identification charge was granted on the ground that the jury had been prejudicially misinstructed. A new trial was scheduled for December 1999 on the charges of resisting arrest, battery, and false identification. On December 13, 1999, however, the prosecutor dismissed the remaining charges.

Plaintiff filed this action on December 12, 2000.

2. Procedural Framework

Before reaching the merits of the limitations issue we must address the premise, on which the dissent pervasively relies, that the only question properly before us is whether the trial court erred in denying defendants’ motion for summary adjudication. According to the dissent, defendants were “entitled to prevail on [their] summary adjudication motion asserting that the statute of limitations barred Schmidlin’s federal excessive force cause of action . . . .” (Dis. opn., post, at pp. 780-781.)

Other potential objections to this view aside, our adoption of it is precluded by two seemingly insurmountable obstacles: (1) defendants have expressly disclaimed any such claim of error, and (2) they never made a motion to adjudicate the “federal excessive force cause of action.” They did move for summary adjudication, but the motion as made was insufficient on its face to justify the order the dissent says the trial court should have made. Accordingly, the dissent misses the mark insofar as it concentrates on supposed error in the denial of summary judgment.

Defendants have explicitly disclaimed any attempt to predicate reversal of the present judgment on error in the trial court’s ruling on their motion for summary judgment. True, in their opening brief they asserted, without citation of authority, that “an erroneous reason formed the basis for the pretrial denial of summary judgment. . . .” But they did not claim a right to reversal on that basis; rather, they focused on the court’s denial of judgment notwithstanding the verdict. By the time of their reply brief this focus was exclusive. They there defined the governing question as, “Did the trial court err in denying Defendants’] motion for judgment notwithstanding the verdict on the issue of the statute of limitations bar?” (Italics added.) They went on to explicitly disclaim any contention that reversible error could be predicated on the summary judgment ruling, stating, “Schmidlin’s Combined Brief mischaracterizes Defendants’] appeal on the statute of limitation issue as an appeal from the denial of summary judgment. [Record citation.] Defendants are appealing from the denial of JNOV and from the judgment, presenting on appeal the contention that the trial judge erred in denying JNOV and in entering judgment against defendants Milliken and Martin on the application of the statute of limitations to undisputed facts judicially noticeable in the record from the summary judgment proceedings.” They reiterated this statement almost verbatim in supplemental briefing.

We would not hesitate to relieve defendants from an improvident concession in proper circumstances, but they have not requested such relief either expressly or by implication. Instead they have consistently sought an adjudication on the substantive merits of the limitations defense. There is simply no justification for the dissent’s efforts to constrain the analysis of these issues within the procedural straitjacket of summary judgment procedure.

Furthermore, even if the analysis were so constrained, an evenhanded application of summary judgment law would compel the conclusion that the trial court did not err in denying defendant’s motion. Again, the dissent characterizes defendants’ motion as one for “summary adjudication . . . asserting that the statute of limitations barred Schmidlin’s federal excessive force cause of action.” (Dis. opn., post, at p. 781, italics added.) Later the dissent again refers to “the City’s motion for summary adjudication of the federal excessive force cause of action.” (Dis. opn., post, at p. 783.) But defendants brought no such motion. As relevant to plaintiff’s federal causes of action, they moved for “summary adjudication . . . on the . . . Seventh, Eighth, Ninth .. . Causes of Action .. ..” Plaintiffs claim for excessive force appeared in the portion of his complaint designated the seventh cause of action, as did most of his other federal claims. The central allegation of the seventh cause of action was that “Defendants unlawfully detained, arrested, and imprisoned plaintiff; used unreasonable and excessive force against against [szc] him; [and] testified falsely in their police reports and in court so that he would be charged and convicted of crimes he did not commit.”

By choosing to attack this allegation in its entirety, defendants lost any chance to secure the order the dissent insists should have been made. A motion for summary adjudication tenders only those issues or causes of action specified in the notice of motion, and may only be granted as to the matters thus specified. The movant must “state[] specifically in the notice of motion and . . . repeatQ, verbatim, in the separate statement of undisputed material facts,” “the specific cause of action, affirmative defense, claims for damages, or issues of duty” as to which summary adjudication is sought. (Cal. Rules of Court, former rule 342(b); see now Cal. Rules of Court, rule 3.1350(b).) The motion must be denied if the movant fails to establish an entitlement to summary adjudication of the matters thus specified; the court cannot summarily adjudicate other issues or claims, even if a basis to do so appears from the papers. (See Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1546 [235 Cal.Rptr. 106] [“ ‘If a party desires adjudication of particular issues or subissues, that party must make its intentions clear in the motion. . . .’ [Citation.] There is a sound reason for this rule: ‘. . . the opposing party may have decided to raise only one triable issue of fact in order to defeat the motion, without intending to concede the other issues. It would be unfair to grant a summary adjudication order unless the opposing party was on notice that an issue-by-issue adjudication might be ordered if summary judgment was denied’ ”].)

Here defendants’ separate statement reflects no attempt to comply with this requirement. That alone precludes a holding that the trial court erred in denying the motion. Nor was the notice of motion sufficient to tender, as a distinct subject for summary adjudication, plaintiff’s federal claim for excessive force. It prayed only for an adjudication of the entire seventh cause of action. Since that cause of action included several other alleged deprivations of constitutional rights, including false statements in police reports and in testimony at plaintiff’s criminal trial, the motion as framed by defendants entitled them to no relief respecting plaintiff’s excessive force claim unless they showed as a matter of law that all of the claims asserted in the seventh cause of action were unsustainable. Defendants were entitled either to summary adjudication on the entire seventh cause of action, or to no relief at all.

Defendants’ motion fell well short of demonstrating an entitlement to judgment on all of plaintiff’s federal claims. It essentially ignored at least one of them, namely, the claim based on false statements in police reports. Defendants did not establish the limitations defense, or any defense, as to that claim. Their separate statement of governing facts set out no facts concerning the date on which that claim would have accrued or otherwise laying a factual foundation for holding it barred. Their supporting memorandum ignored the claim altogether. It acknowledged plaintiff’s somewhat similar claim “that the police officers gave false statements in court testimony,” seeking to sweep it under the rug by noting that more than a year passed between the giving of that testimony and plaintiff’s filing of suit. But they wholly ignored the immediately adjacent allegation of a federal civil rights violation based upon false police reports.

The false reports claim obviously required a limitations analysis wholly distinct from the one applicable to the excessive force claim. For one thing, it could not have arisen on the night of plaintiff’s arrest, when the excessive force claim did. No claim based on false statements could exist until the false statements were made. And such a claim would presumably not accrue—the limitations period would not begin to run—until plaintiff knew or had reason to know “ ‘of the injury which is the basis of the action.’ ” (Lavellee v. Listi (5th Cir. 1980) 611 F.2d 1129, 1131.) Plaintiff could not know of any injuries resulting from the false statements in police reports, or anywhere else, until he knew or had reason to know that those statements had been made.

Defendants’s failure to address these issues, either factually or legally, does not appear inadvertent. Rather the record affirmatively suggests that they were not in a position to carry their burden of establishing an entitlement to summary adjudication on the false statements claim. The only relevant evidence then before the trial court was the declaration by plaintiff’s counsel, who stated—in a paragraph partially quoted by the dissent—that he began requesting copies of police reports “[wjithin a few weeks after Mr. Schmidlin’s arrest,” but was only able to obtain them “after the District Attorney filed charge[s].” The apparent meaning of this averment is that plaintiff (or his counsel) did not see the police reports, and could not have known of any false statements in them, until some time after the district attorney filed charges— presumably a reference to the criminal complaint filed on April 18, 1997. It is beyond dispute that under Government Code section 945.3 (section 945.3), discussed at length in the following parts, plaintiff was disabled from filing suit, and the statute of limitations was tolled, commencing no later than that date. This effect extended to any claim “based upon conduct of the peace officer relating to the offense for which the accused is charged, including an act or omission in investigating or reporting the offense . . . .” (§ 945.3, italics added.) It thus affirmatively appears from the papers before the court on summary judgment that the claim for false police reports did not accrue until sometime after plaintiff’s right to sue was abated, and the limitations period tolled, by section 945.3. Certainly defendants did not show otherwise—or even attempt to do so.

Nor did defendants offer any other basis—any ground distinct from the limitations defense—to dispose of the false reports claim. Aside from their blanket assertion of the statute of limitations, their only arguments in their moving papers were that all federal claims predicated on the unlawfulness of plaintiffs arrest were barred by collateral estoppel; that the claim based on “perjury at trial” was barred by absolute immunity; that “supervisory liability” could not properly be imposed upon Sergeant Baldwin-, that liability for plaintiff’s arrest was barred by qualified immunity; and that no evidence supported the imposition of “entity liability” upon the city and the Department. (Italics added.)

Indeed, defendants did not acknowledge plaintiff’s false reports claims at all until their reply memorandum, which was of course too late to make the showing required of a moving party on summary judgment. Even there they relied entirely on obfuscation, writing, “Schmidlin’s federal claims for false testimony in police reports and in court [Complaint | 67] and conspiracy to give false testimony [Complaint 1 71] must have accrued at or before the January 1999 trial when all the officers testified. By waiting almost two years until December 12, 2000, to file suit, these claims [szc] are barred by the one-year statute of limitations.” This argument deals with the false report claim only by conflating it with the false testimony claim. More tellingly, it ignores the effect of section 945.3. Plaintiff’s claim for false reports may well have accrued long before the date identified by defendants, perhaps as early as when he first saw the reports. But no matter when the cause of action arose or accrued, section 945.3 tolled the running of the limitations period for any claim based on an “act or omission in . . . reporting the offense . . . .” (§ 945.3.) It therefore squarely applied to the false reports claim, and defeated any limitations defense with respect to that claim.

Because defendants offered no basis for disposing of the false reports claim, their motion failed on its face to state a basis for adjudicating the seventh cause of action. Given defendants’ failure to effectively move for a narrower ruling, the court did not err in denying their motion, no matter what the merits may have been of the limitations argument with respect to other claims. The dissent’s concentration on that ruling is therefore misplaced.

3. Analytical Framework

The soundness of a statute of limitations defense depends on four variables: (1) What is the governing limitations period? (2) On what date did the cause of action accrue, such that the limitations period began to run? (3) How much time elapsed between accrual and the filing of the complaint? (4) For what period(s) of time, if any, was the running of the statute suspended (tolled)? If the elapsed time from accrual to filing, less any period of tolling, exceeds the limitations period, then the statute ran before the complaint was filed and the action is barred.

The first variable here is not in dispute; the governing limitations period is one year. A cause of action under 42 United States Code section 1983 (section 1983), is subject to the forum state’s “residual or general personal injury statute of limitations.” (Owens v. Okure (1989) 488 U.S. 235, 236 [102 L.Ed.2d 594, 109 S.Ct. 573]; see Wallace v. Kato (2007) 549 U.S. 384 [166 L.Ed.2d 973, 127 S.Ct. 1091, 1094, 1098] (Wallace).) In 1997, when the events underlying this suit occurred, the limitations period for personal injury actions was one year. (Code Civ. Proc., former § 340, subd. (3); see Silva v. Crain (9th Cir. 1999) 169 F.3d 608, 610.) The period was later extended to two years (Code Civ. Proc., § 335.1; Stats. 2002, ch. 448, §§ 2, 3), but plaintiff does not contend that the extended period applies to him.

Nor do the parties dispute that the complaint was filed on December 12, 2000, some 1,354 days after the events giving rise to the cause of action, and 989 days beyond the one-year anniversary of those events. The parties’ dispute centers around the questions of when plaintiff’s excessive force claim accrued, and the extent to which the statute was tolled. The first question is one of federal law. (Wallace, supra, 549 U.S. at p._[127 S.Ct. at p. 1095]; Cabrera v. City of Huntington Park (9th Cir. 1998) 159 F.3d 374, 379 (Cabrera).) The second is one of state law. (Wallace, supra, 549 U.S. at p._ [127 S.Ct. at p. 1098].)

In our initial analysis of this matter, we concluded—as the trial court apparently did—that federal law delayed the accrual of plaintiff’s cause of action from the time of his arrest until the final disposition of the charges against him. That conclusion rested on Cabrera, supra, 159 F.3d 374, which interpreted Heck v. Humphrey (1994) 512 U.S. 477, 486-487 [129 L.Ed.2d 383, 114 S.Ct. 2364] (Heck) to mean that whenever a section 1983 claim rests on allegations proof of which would invalidate a conviction on related criminal charges, the claim does not accrue until final disposition of the charges. Since the officers’ use of excessive force would furnish a defense to several of the charges against plaintiff (see Judicial Council of Cal. Crim. Jury Instns. (2007-2008) CALCRIM No. 2652 [“A peace officer is not lawfully performing his or her duties if he or she is . . . using unreasonable or excessive force in his or her duties”]; People v. Curtis (1969) 70 Cal.2d 347, 354 [74 Cal.Rptr. 713, 450 P.2d 33], abrogated on another point in People v. Gonzalez (1990) 51 Cal.3d 1179, 1222 [275 Cal.Rptr. 729, 800 P.2d 1159]); we agreed that plaintiff’s cause of action for excessive force did not accrue under Cabrera until those charges were dismissed. However, Cabrera’s reading of Heck was repudiated in Wallace, where the court held in essence that Heck’s only effect is to bar the filing of a section 1983 claim in the face of an existing conviction, the validity of which is incompatible with the allegations on which the section 1983 claim rests. (Wallace, supra, 549 U.S. at p._[127 S.Ct. at p. 1098].) Thus, until a conviction is entered, the cause of action accrues normally. Under Wallace, therefore, plaintiff’s cause of action accrued at the time of the use of excessive force, and the rule of Heck never came into play, since plaintiff was never convicted of any offense to which the officers’ use of excessive force would constitute a defense.

Since the parties had focused largely on the Heck-Cabrera rule, which is now abrogated, we asked them to submit supplemental briefs on the issue, also raised below but less fully briefed on appeal, whether plaintiff’s claims were tolled under section 945.3. That statute prohibits the filing of claims such as plaintiff’s, and tolls the statute of limitations, so long as related criminal charges are “pending before a . . . court.” (§ 945.3.) It is undisputed that charges were pending before a court for these purposes from April 18, 1997, when a criminal complaint was filed, to December 13, 1999, when the prosecutor dismissed the remaining charges. This accounted for 969 days, leaving some 20 days in dispute. In essence, the question is whether the statute was running during the 20 days between the use of excessive force and the filing of the criminal complaint. If it was running for any substantial part of this time, plaintiff’s claim is barred by the one-year statute of limitations.

As pertinent here, application of section 945.3 presents two questions: (1) For purposes of the statute, at what point is a person “charged by indictment, information, complaint, or other accusatory pleading charging a criminal offense”? and (2) when are “the charges against the accused” properly said to be “pending before a . . . court”? Plaintiff contends that a notice to appear, which inferentially was served on him shortly after his arrest, was an “accusatory pleading charging a criminal offense,” which commenced the period during which charges were “pending” before the municipal court. Defendants contend that the notice to appear was not an “accusatory pleading” and that in any event no charges were “pending before a court” until the district attorney filed a criminal complaint.

The application of the statute thus turns on the meaning of the phrases “accusatory pleading charging a criminal offense” and “charges . . . pending before a . . . court.” In answering such a question, we must ascertain the intent of the lawmakers so as to effectuate the purpose of the law. (In re Harris (1993) 5 Cal.4th 813, 844 [21 Cal.Rptr.2d 373, 855 P.2d 391].) To determine the Legislature’s intent, we first examine the words of the statute in context, giving them if possible their plain, everyday, commonsense meaning. If we find no ambiguity or uncertainty, we presume that the Legislature meant what it said, rendering further inquiry into legislative intent unnecessary. (See Day v. City of Fontana (2001) 25 Cal.4th 268, 272 [105 Cal.Rptr.2d 457, 19 P.3d 1196].) If, on the other hand, the statutory language is unclear or ambiguous, i.e., it permits more than one reasonable interpretation, we may consider various extrinsic aids to help us ascertain the Legislature’s intent, including legislative history, public policy, settled rules of statutory construction, and an examination of the evils to be remedied and the legislative scheme encompassing the statute in question. (Ibid.; People v. Garrett (2001) 92 Cal.App.4th 1417, 1422 [112 Cal.Rptr.2d 643].) In such circumstances, we select the interpretation that comports most closely with the apparent intent of the Legislature, with a view toward promoting, rather than defeating, the general purpose of the statute and avoiding an interpretation that would lead to absurd consequences. (People v. Walker (2002) 29 Cal.4th 577, 581 [128 Cal.Rptr.2d 75, 59 P.3d 150].) We also attempt to give effect to every word in a statute and avoid constructions that render statutory terms superfluous or meaningless. (People v. Craft (1986) 41 Cal.3d 554, 560 [224 Cal.Rptr. 626, 715 P.2d 585].)

4. “Accusatory Pleading”

We must first consider whether a notice to appear constitutes an “accusatory pleading charging a criminal offense” for our purposes. Ordinarily, a person arrested for a misdemeanor, as plaintiff was, is released upon being served with a “written notice to appear in court . . . .” (Pen. Code, § 853.6 (section 853.6), subd. (a).) Such a notice, also known as a citation (e.g., Gates v. Municipal Court (1992) 9 Cal.App.4th 45, 49, fn. 1 [11 Cal.Rptr.2d 439]; People v. Domagalski (1989) 214 Cal.App.3d 1380, 1383 [263 Cal.Rptr. 249]), must set forth “the name and address of the person [charged], the offense [with which he is] charged, and the time when, and place where, [he] shall appear in court.” (§ 853.6, subd. (a).) Such an instrument is undoubtedly an “accusatory pleading” as that phrase is generally understood. (See Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2007) Arraignment, § 6.5, p. 142 [“California courts employ four kinds of accusatory pleadings: citation, complaint, information, and indictment.”].) Moreover it must be accepted as such for purposes of section 945.3, because otherwise the statutory reference to a “person charged by indictment, information, complaint, or other accusatory pleading charging a criminal offense” would be superfluous. Apart from the pleadings specifically mentioned in the statute, a notice to appear (citation) appears to be the only other “accusatory pleading charging a criminal offense” known to our law. (See Cal. Criminal Law: Procedure and Practice, supra, Arraignment, § 6.5, p. 142.) Thus if the phrase “other accusatory pleading” does not refer to a notice to appear, it refers to nothing, and the Legislature acted idly in using it. As noted above, the law enjoins us not to impute useless acts to the Legislature when a reasonable alternative appears.

The dissent alludes to Penal Code section 691, subdivision (c) (section 691(c)), which defines “ ‘accusatory pleading’ ” to “include an indictment, an information, an accusation, and a complaint.” This list echoes section 945.3 except that the latter contains no reference to an “accusation.” Could this be the “other accusatory pleading” to which it alludes? We think not. For one thing, had that been what the Legislature intended, it would have saved ink by merely copying the definition from section 691(c), or better yet, cross-referencing it. Moreover, as used in section 691(c), “accusation” refers to the instrument issued by a grand jury in a proceeding under Government Code section 3060 to remove a public officer for wilful or corrupt misconduct. (See Pen. Code, § 949.) Although an action under that statute is considered a “ ‘[c]riminal proceeding’ ” for purposes of evidentiary privileges (Evid. Code, § 903), and is sometimes characterized as a “criminal proceeding” for other purposes (e.g., People v. Hale (1965) 232 Cal.App.2d 112, 117 [42 Cal.Rptr. 533] [assigning criminal case number on appeal]), it is not viewed as a criminal prosecution in substance. (Bradley v. Lacy (1997) 53 Cal.App.4th 883, 890 [61 Cal.Rptr.2d 919] [“[P]rosecution of an accusation under section 3060 et seq. is not a criminal proceeding. [Citations.] . . . [Citation.] [It] is more closely analogous to civil abatement of a nuisance [citation], than to a criminal prosecution”].) Moreover, section 945.3 is not triggered in all “criminal proceedings” but only by an “accusatory pleading charging a criminal offense . . . .” Penal Code section 15 describes removal from office as a “punishmentQ” which will support characterization of the predicate conduct as a “crime or public offense,” but to constitute such an offense, the conduct must occur “in violation of a law forbidding or commanding it. . . .” (Italics added.)

A statute authorizing removal from office for “willful or corrupt misconduct in office” (Gov. Code, § 3060) cannot itself be understood to forbid or command any act. Nor can misconduct justifying such removal otherwise be viewed as a “criminal offense,” unless of course it independently offends a penal statute. (See People v. Superior Court (Hanson) (1980) 110 Cal.App.3d 396, 400-401 [168 Cal.Rptr. 21] [official subjected to removal proceeding not situated similarly to felony defendant so as to claim equal protection entitlement to preliminary hearing]; People v. Hale, supra, 232 Cal.App.2d at p. 119 [statute is “not designed to convict an office-holder of crime, but merely to remove him from his office”; removal may be warranted by “conduct . . . below the standard of decency rightfully expected of a public official”]; People v. Tice (1956) 144 Cal.App.2d 750, 754 [301 P.2d 588] [marshal charged with repeatedly overdrawing public bank account; “the phrase ‘misconduct in office’ is broad enough to include any wilful malfeasance, misfeasance or nonfeasance in office”]; Coffey v. Superior Court (1905) 147 Cal. 525, 529 [82 P. 75] [same]; People v. Harby (1942) 51 Cal.App.2d 759, 767 [125 P.2d 874] [“It is not required that the misconduct charged against an official should necessarily constitute a crime.”]; In the Matter of Burleigh (1904) 145 Cal. 35, 37 [78 P. 242] [“the misconduct charged need not necessarily include an act which would itself constitute a crime, and if it does include such crime the judgment on the accusation would not be a bar to a subsequent prosecution for such crime”]; but see Coffey v. Superior Court, supra, 147 Cal. at p. 533 [“The charge . . . constitutes both at common law and under the provisions of the Penal Code a public offense,—a misdemeanor in office,—and the proceedings ... are of a criminal nature.”]; In re Curtis (1895) 108 Cal. 661, 662 [41 P. 793] [misconduct in office “is ... a public offense,” and action “is a criminal proceeding in the nature of an impeachment”].) Given this context we doubt that the Legislature had such proceedings in mind when it formulated a tolling rule for lawsuits “based upon conduct of [a] peace officer relating to the offense for which the accused is charged____” (§ 945.3.)

Furthermore, the Penal Code expressly makes a notice to appear, in many if not most misdemeanor cases, the equivalent of a complaint, which is unquestionably an accusatory pleading. (See Pen. Code, § 691, subd. (c).) The code provides that once the arresting officer has prepared such a notice, he must file it “as soon as practicable.” (§ 853.6, subd. (e).) If the prosecuting attorney has so directed, the officer must file the notice with the magistrate. (§ 853.6, subd. (e)(2).) Otherwise he must file it, along with relevant police reports, with the prosecutor. (Id., subd. (e)(3).) In that case the statute gives the prosecutor 25 days from the date of arrest to file the notice to appear or a formal complaint with the court. (§ 853.6, subd. (e).) If he elects not to proceed, he is required to send the arrestee notice to that effect. (Ibid.) However he can also simply let the citation lapse, in which case “any further prosecution shall be preceded by a new and separate citation or an arrest warrant.” (Ibid.)

Critically, the code declares that the citation (notice to appear), if filed with the magistrate by either the officer or the prosecutor, operates “in lieu of a verified complaint” and “shall constitute a complaint to which the defendant may plead ‘guilty’ or ‘nolo contendere.’ ” (Pen. Code, § 853.9 (section 853.9), subd. (a); see Cal. Criminal Law: Procedure and Practice, supra, Arraignment, § 6.6, p. 142 [arraignment on citation].) The prosecutor must file a formal complaint if the defendant fails to appear, fails to post bail, or pleads other than guilty or no contest, but that requirement may be waived in writing (§ 853.9, subd. (a)). Moreover, even in the stated situations, if the notice to appear is prepared on a form approved by the Judicial Council, “when filed with the magistrate [it] shall constitute a complaint to which the defendant may enter a[ny] plea . . . .” (Id., subd. (b).) The defendant then may insist on a formal complaint only if the notice is unverified. (Ibid.) The prosecutor has discretion to file a formal complaint in all cases, whether or not required to do so. (See Cal. Criminal Law: Procedure and Practice, supra, Arraignment, § 6.7, p. 143; cf. § 853.6, subd. (e).) In many cases, however, he may elect not to do so, and the notice to appear will then be the only accusatory pleading ever promulgated.

These provisions make it clear that a notice to appear is an accusatory pleading, though one subject to supersession by a complaint, or defeasance through prosecutorial inaction. The dissent acknowledges this express (though conditional) statutory equation between a notice to appear and a criminal complaint, but characterizes it without explanation as operating only under “limited circumstances.” (Dis. opn., post, at p. 792.) The dissent also emphasizes the significance of the “complaint” in initiating misdemeanor prosecutions, but of course this misses the point that a notice to appear is a “complaint” under the circumstances set forth above, i.e. (1) if it is filed with the magistrate and the defendant pleads to it (§ 853.9, subd. (a)), or (2) if it is filed on an approved form and verified, or if unverified, the defendant does not insist on a formal complaint (§ 853.9, subd. (b)).

We are satisfied that a notice to appear is an “accusatory pleading” as that term is used in section 945.3.

5. Charges “Pending Before a Court”

The more difficult question is at what point, or for what period, charges embodied in a notice to appear are “pending before a . . . court” for purposes of section 945.3. We must first consider whether that phrase has a plain, unambiguous, usual and ordinary meaning as applied in such a context. Plainly it does not. We have elsewhere had occasion to consider what steps in the criminal procedure of this state constitute the initiation of criminal proceedings for purposes of attachment of the Sixth Amendment right to counsel. (People v. Viray (2005) 134 Cal.App.4th 1186 [36 Cal.Rptr.3d 693].) We there recognized that such questions may produce markedly varying answers depending on the context in which they arise. (See id. at p. 1199.) They are not only context driven but inherently abstract and esoteric. All of these qualities contribute to an inescapable, and obvious, ambiguity. To adopt one specific meaning for such terms on the premise that it is “plain” would be to decide the case by arbitrary proclamation, rather than reasoned adjudication.

The Supreme Court acknowledged a similar point in discussing the “difficulty” experienced by the Legislature in “drafting a workable definition” of the date on which the statutory right to a speedy trial attaches in misdemeanor cases. (In re Smiley (1967) 66 Cal.2d 606, 628 [58 Cal.Rptr. 579, 427 P.2d 179].) One early version of the statute had started the clock running when “ ‘the defendant is arrested and brought within the jurisdiction of the court.’ ” (Ibid., quoting Pen. Code, former § 1382, subd. (3), italics added.) “That formulation,” wrote the court, “proved unsatisfactory because of its vagueness, giving rise to a variety of appellate interpretations of its meaning.” (In re Smiley, supra, 66 Cal.2d at p. 628, italics added.) The court cited an example in which the majority concluded that where a defendant was arrested and then a complaint filed, the right attached upon filing of the complaint. (Ibid., citing Brewer v. Municipal Court (1961) 193 Cal.App.2d 510, 514 [14 Cal.Rptr. 391].) A concurring justice opined that the period commenced when the defendant underwent arrest and posted bail. (See Brewer, supra, at p. 517 (cone. opn. of Vallee, Acting P. J.).)

If the phrase “within the jurisdiction of the court” is vague, the phrase “pending before a court” is no less so. Defendants insist otherwise, asserting that the phrase is “plain and unambiguous” because “pending means begun but not yet completed or awaiting decision,” and a charge cannot be pending until it is “filed,” because prior to that point “there is nothing to decide and no question to await on that charge.” We reject virtually every component premise of this argument. Most obviously, the word “pending” is not intrinsically unambiguous, but quite the reverse. It does not necessarily mean begun but unfinished', it can also mean inchoate or imminent, i.e., about to begin or come into being. (Merriam-Webster’s Collegiate Dict. (10th ed. 1999) p. 858 [“1: not yet decided: being in continuance 2: imminent, impending”]; American Heritage College Dict. (3d ed. 1993) p. 1010 [to same effect].) Indeed the term “pending” is commonly used to describe criminal charges that may be filed but have not been formalized by any means, even an arrest.

In our view the key language in the statute is not the word “pending” but the phrase “before a . . . court.” To speak of charges as “pending before a court” implies that a process to bring about their adjudication is not only “imminent” or “impending,” but underway. The critical question, which defendants neglect entirely to address, is what concrete steps are required to place charges “before [the] court” for purposes of the statute. The quoted phrase is both abstract and figurative; the resulting ambiguity is compounded by the intricacies of California law with respect to the preliminary stages of misdemeanor prosecutions.

As noted above, a notice to appear may be fully sufficient by itself to place charges before the court for adjudication. If the notice is filed with the magistrate, it is in law a complaint, and the charges are, as of that moment, “pending before [the] court” in every sense. (See § 853.9.) Application of the quoted phrase remains uncertain, however, where a citation is served on the accused but filed with the prosecutor, who may elect to file it with the magistrate, file a formal complaint, drop the prosecution, or defer action. Are the charges “pending before a . . . court” while the citation sits on the prosecutor’s desk? One way of dealing with this uncertainty in the case at hand would be to note the absence of evidence that this occurred here. Indeed, evidence that a citation may have been promptly filed with the magistrate appears from the municipal court docket sheet, of which we have taken judicial notice at plaintiff’s request, and over defendants’ objection that plaintiff should have offered it earlier. The docket shows that on April 1, 1997, bail was posted by a bonding company in the amount of $3,000. Plaintiff argues that this amount must have been set by a magistrate, since it represents a near trebling of the scheduled bail amount of $1,050 set forth in the booking information sheet and probable cause affidavit. Specified inferior officials are authorized to release a defendant on bail, but only (as relevant here) in the scheduled amount. (See Pen. Code, § 1269b, subds. (a), (b).) In contrast, section 853.6, subdivision (e), empowers the magistrate to fix bail in an amount he deems appropriate “[ujpon the filing of the notice [to appear] with the magistrate by the officer, or the filing of the notice or a formal complaint by the prosecutor . . . .” Because no formal complaint was filed until April 18, we fail to see how the question of bail could have properly come before the magistrate on April 1 (or sooner), unless the officer or prosecutor had filed a notice to appear by then.

However, we decline to decide the case on the narrow basis that the record supports an inference that a notice to appear was actually filed with the magistrate in time to save plaintiff’s cause of action. We believe that the principles of statutory construction, to which we have adverted, mandate a reading of section 945.3 that is both simpler of application and more respectful of the legislative objective underlying the statute. Under that reading, charges were “pending before a court” when plaintiff was directed to appear before the court on specified charges by service upon him of a notice to appear, regardless whether that notice was ever filed with a court.

The first question in any case of statutory construction is whether the language under scrutiny is ambiguous. In view of the procedural complexities and related authorities noted above, we have no doubt that the intended effect of the phrase “charges pending before a . . . court” is uncertain as potentially applicable in situations like the present one. Given that uncertainty we must consult the purpose of the statute.

The avowed legislative objective of section 945.3 is to prevent the filing of civil suits in situations where their pendency might give the plaintiff an unfair advantage in defending against criminal charges. The statute originated with the Police Officers Research Association of California (PORAC), which sought to “eliminate the bringing of civil actions by criminal defendants merely to frustrate and harass the plea bargaining process.” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 511 (1981-1982 Reg. Sess.) as amended May 14, 1981, p. 2 (Assembly Judiciary Analysis).) PORAC contended that “frivolous civil damage actions against peace officers are filed for use as chips in the plea bargaining process.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 511 (1981-1982 Reg. Sess.) as introduced, p. 2.) The stated purpose of the bill was “to attempt to eliminate the use of civil damage complaints as plea bargaining levers.” {Ibid.) In urging the Governor to sign the bill, the author asserted that civil actions against arresting or investigating officers “[o]ften times ... are frivolous and are brought with the specific intent to frustrate and harass the plea bargaining process of the criminal charges.” (Sen. Ed Davis, letter to Governor Edmund G. Brown, Jr., Aug. 26, 1981, re Sen. Bill No. 511 (1981-1982 Reg. Sess.).)

The Legislature contemplated that, consistent with this objective, the statute would effect a complete bar to civil suits while criminal charges remained unresolved. It was reported that the bill would “prohibit a criminal defendant from bringing a civil action . . . before final disposition of the pending criminal charges at the trial level.” (Assem. Judiciary Analysis, supra, p. 1, italics added; see id. at pp. 2-3 [bill “would prohibit a criminal defendant from filing a civil action . . . until the criminal charges have been disposed of at the trial level”]; id. at p. 3 [“a civil action for damages based on criminal charges could not be filed . . . until final disposition of the case at the trial level”].)

It has been suggested that the statute had a further purpose, i.e., “prevent[ing] use of civil false arrest suits as a device to inquire into prosecutorial materials and investigative information while the criminal charge is pending.” (Mohlmann v. City of Burbank (1986) 179 Cal.App.3d 1037, 1042 [225 Cal.Rptr. 109]; see McMartin v. County of Los Angeles (1988) 202 Cal.App.3d 848, 855 [249 Cal.Rptr. 53]; Harding v. Galceran (9th Cir. 1989) 889 F.2d 906, 908-909; Emmert v. County of Sonoma (N.D.Cal. 1993) 836 F.Supp. 715, 716.) Although we find no explicit legislative history to this effect, inferential support may be drawn from the 1983 amendments to section 945.3. As relevant here, those amendments declared that the disability arising under the statute did not extend to the filing of a pre-suit claim under Government Code section 945.4 with the public entity employing the alleged officer-tortfeasors. The effect of the amendments was to compel civil claimants to file such a claim within 100 days after accrual of the cause of action, whether or not criminal charges were pending. This amendment seems difficult to reconcile with the original avowed concern over the use of civil complaints as “bargaining chips,” because a criminal defendant could now seemingly employ his pending claim under Government Code section 945.4, and the eventual civil suit it anticipated, as a bargaining chip. However it is easily reconciled, and indeed is fully consistent, with an intent to withhold from criminal defendants the discovery devices that would become available with the filing of a civil action.

Both of these objectives—avoiding the use of a civil complaint as a bargaining chip in plea negotiations, and preventing the use of civil discovery tools to probe the prosecution’s case in a related criminal matter—would be disserved by reading the statute to permit a suit to be filed between the time of serving a citation and the filing of the citation (or a complaint) with a court. Such a regime would encourage a race to the courthouse between law enforcement authorities and arrestees. The legislative history suggests no intent to permit such a circumvention of statutory purpose. The Legislature’s goals, both explicit and inferred, are plainly best served if the disability commences when a misdemeanor defendant is put on notice, by service of a notice to appear, that charges are being pursued in court. By restricting the statute’s effect to charges pending before a court, the Legislature was evidently seeking not to delay the starting point of the disability, but to provide a workable formula for determining its end point. Without the adverbial qualifier (“before a . . . court”), it might be supposed that charges not resolved by judgment or dismissal remained “pending” until some other prohibition, such as the criminal statute of limitations, barred further prosecution. Under that regime, mere prosecutorial inaction would place the plaintiff’s cause of action in limbo. To avoid such open-ended tolling, the Legislature provided that the arrestee would regain the right to file a civil action—and the limitations period would resume running—when the charges could no longer be pursued without new or additional prosecutorial pleadings.

This reading is largely consistent with Torres, supra, 108 F.3d 224,