1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CRYSTAL R. SANCHEZ, No. 2:19-cv-01545-MCE-AC 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 COUNTY OF SACRAMENTO, et al., 15 Defendants. 16 17 Presently before the Court is Plaintiff Crystal R. Sanchez’s (“Plaintiff”) Motion for 18 Summary Adjudication, ECF No. 83, which seeks resolution only “on the legal issue of 19 whether [Defendant Deputy Daren D. Allbee’s (‘Allbee’)] decision to impound Plaintiff’s 20 vehicle violated the Fourth Amendment to the U.S. Constitution and Article I, Section 13 21 of the California Constitution.” Pl.’s Mem. ISO Mot. Summ. Adjudication, ECF No. 83-1, 22 at 4 (“Pl.’s Mem.”). Defendants Allbee, County of Sacramento, and Sacramento County 23 Sheriff’s Department (collectively, “Defendants”) oppose the Motion. ECF No. 87 (“Defs.’ 24 Opp’n”). For the following reasons, Plaintiff’s Motion is DENIED.1 25 /// 26 /// 27 1 Because oral argument would not have been of material assistance, the Court ordered this 28 matter submitted on the briefs. E.D. Local Rule 230(g). 1 STANDARD 2 3 The Federal Rules of Civil Procedure provide for summary judgment when “the 4 movant shows that there is no genuine dispute as to any material fact and the movant is 5 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. 6 Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to 7 dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325. 8 Rule 56 also allows a court to grant summary judgment on part of a claim or 9 defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may 10 move for summary judgment, identifying each claim or defense—or the part of each 11 claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v. 12 Madan, 889 F. Supp. 374, 378–79 (C.D. Cal. 1995). The standard that applies to a 13 motion for partial summary judgment is the same as that which applies to a motion for 14 summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep’t of Toxic 15 Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary 16 judgment standard to motion for summary adjudication). 17 In a summary judgment motion, the moving party always bears the initial 18 responsibility of informing the court of the basis for the motion and identifying the 19 portions in the record “which it believes demonstrate the absence of a genuine issue of 20 material fact.” Celotex, 477 U.S. at 323. If the moving party meets its initial 21 responsibility, the burden then shifts to the opposing party to establish that a genuine 22 issue as to any material fact actually does exist. Matsushita Elec. Indus. Co., Ltd. v. 23 Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); First Nat’l Bank v. Cities Serv. Co., 24 391 U.S. 253, 288–89 (1968). 25 In attempting to establish the existence or non-existence of a genuine factual 26 dispute, the party must support its assertion by “citing to particular parts of materials in 27 the record, including depositions, documents, electronically stored information, 28 affidavits[,] or declarations . . . or other materials; or showing that the materials cited do 1 not establish the absence or presence of a genuine dispute, or that an adverse party 2 cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The 3 opposing party must demonstrate that the fact in contention is material, i.e., a fact that 4 might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 5 Inc., 477 U.S. 242, 248, 251–52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and 6 Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992). The opposing party must also 7 demonstrate that the dispute about a material fact “is ‘genuine,’ that is, if the evidence is 8 such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 9 477 U.S. at 248. In other words, the judge needs to answer the preliminary question 10 before the evidence is left to the jury of “not whether there is literally no evidence, but 11 whether there is any upon which a jury could properly proceed to find a verdict for the 12 party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251 13 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) (emphasis in original). 14 As the Supreme Court explained, “[w]hen the moving party has carried its burden under 15 Rule [56(a)], its opponent must do more than simply show that there is some 16 metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Therefore, 17 “[w]here the record taken as a whole could not lead a rational trier of fact to find for the 18 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587. 19 In resolving a summary judgment motion, the evidence of the opposing party is to 20 be believed, and all reasonable inferences that may be drawn from the facts placed 21 before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 22 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 23 obligation to produce a factual predicate from which the inference may be drawn. 24 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 25 810 F.2d 898 (9th Cir. 1987). 26 /// 27 /// 28 /// 1 ANALYSIS2 2 3 “The impoundment of an automobile is a seizure within the meaning of the Fourth 4 Amendment.” Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th Cir. 2005); see 5 Sandoval v. Cnty. of Sonoma, 912 F.3d 509, 515 (9th Cir. 2018) (holding that “30-day 6 impounds under [California Vehicle Code §] 14602.6 are seizures for Fourth Amendment 7 purposes.”).3 “[A] seizure conducted without a warrant is per se unreasonable under the 8 Fourth Amendment,” and thus the question before this Court is “whether any specifically 9 established and well-delineated exceptions to the warrant requirement apply that would 10 make the impound[] reasonable.” Id. (citation and internal quotation marks omitted). 11 Because Allbee did not have a warrant to impound Plaintiff’s vehicle, the parties 12 invoke the community caretaking exception to the Fourth Amendment. “In their 13 ‘community caretaking’ function, police officers may impound vehicles that ‘jeopardize 14 public safety and the efficient movement of vehicular traffic.’” Miranda, 429 F.3d at 864 15 (quoting South Dakota v. Opperman, 428 U.S. 364, 368–69 (1976)).
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CRYSTAL R. SANCHEZ, No. 2:19-cv-01545-MCE-AC 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 COUNTY OF SACRAMENTO, et al., 15 Defendants. 16 17 Presently before the Court is Plaintiff Crystal R. Sanchez’s (“Plaintiff”) Motion for 18 Summary Adjudication, ECF No. 83, which seeks resolution only “on the legal issue of 19 whether [Defendant Deputy Daren D. Allbee’s (‘Allbee’)] decision to impound Plaintiff’s 20 vehicle violated the Fourth Amendment to the U.S. Constitution and Article I, Section 13 21 of the California Constitution.” Pl.’s Mem. ISO Mot. Summ. Adjudication, ECF No. 83-1, 22 at 4 (“Pl.’s Mem.”). Defendants Allbee, County of Sacramento, and Sacramento County 23 Sheriff’s Department (collectively, “Defendants”) oppose the Motion. ECF No. 87 (“Defs.’ 24 Opp’n”). For the following reasons, Plaintiff’s Motion is DENIED.1 25 /// 26 /// 27 1 Because oral argument would not have been of material assistance, the Court ordered this 28 matter submitted on the briefs. E.D. Local Rule 230(g). 1 STANDARD 2 3 The Federal Rules of Civil Procedure provide for summary judgment when “the 4 movant shows that there is no genuine dispute as to any material fact and the movant is 5 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. 6 Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to 7 dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325. 8 Rule 56 also allows a court to grant summary judgment on part of a claim or 9 defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may 10 move for summary judgment, identifying each claim or defense—or the part of each 11 claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v. 12 Madan, 889 F. Supp. 374, 378–79 (C.D. Cal. 1995). The standard that applies to a 13 motion for partial summary judgment is the same as that which applies to a motion for 14 summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep’t of Toxic 15 Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary 16 judgment standard to motion for summary adjudication). 17 In a summary judgment motion, the moving party always bears the initial 18 responsibility of informing the court of the basis for the motion and identifying the 19 portions in the record “which it believes demonstrate the absence of a genuine issue of 20 material fact.” Celotex, 477 U.S. at 323. If the moving party meets its initial 21 responsibility, the burden then shifts to the opposing party to establish that a genuine 22 issue as to any material fact actually does exist. Matsushita Elec. Indus. Co., Ltd. v. 23 Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); First Nat’l Bank v. Cities Serv. Co., 24 391 U.S. 253, 288–89 (1968). 25 In attempting to establish the existence or non-existence of a genuine factual 26 dispute, the party must support its assertion by “citing to particular parts of materials in 27 the record, including depositions, documents, electronically stored information, 28 affidavits[,] or declarations . . . or other materials; or showing that the materials cited do 1 not establish the absence or presence of a genuine dispute, or that an adverse party 2 cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The 3 opposing party must demonstrate that the fact in contention is material, i.e., a fact that 4 might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 5 Inc., 477 U.S. 242, 248, 251–52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and 6 Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992). The opposing party must also 7 demonstrate that the dispute about a material fact “is ‘genuine,’ that is, if the evidence is 8 such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 9 477 U.S. at 248. In other words, the judge needs to answer the preliminary question 10 before the evidence is left to the jury of “not whether there is literally no evidence, but 11 whether there is any upon which a jury could properly proceed to find a verdict for the 12 party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251 13 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) (emphasis in original). 14 As the Supreme Court explained, “[w]hen the moving party has carried its burden under 15 Rule [56(a)], its opponent must do more than simply show that there is some 16 metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Therefore, 17 “[w]here the record taken as a whole could not lead a rational trier of fact to find for the 18 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587. 19 In resolving a summary judgment motion, the evidence of the opposing party is to 20 be believed, and all reasonable inferences that may be drawn from the facts placed 21 before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 22 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 23 obligation to produce a factual predicate from which the inference may be drawn. 24 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 25 810 F.2d 898 (9th Cir. 1987). 26 /// 27 /// 28 /// 1 ANALYSIS2 2 3 “The impoundment of an automobile is a seizure within the meaning of the Fourth 4 Amendment.” Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th Cir. 2005); see 5 Sandoval v. Cnty. of Sonoma, 912 F.3d 509, 515 (9th Cir. 2018) (holding that “30-day 6 impounds under [California Vehicle Code §] 14602.6 are seizures for Fourth Amendment 7 purposes.”).3 “[A] seizure conducted without a warrant is per se unreasonable under the 8 Fourth Amendment,” and thus the question before this Court is “whether any specifically 9 established and well-delineated exceptions to the warrant requirement apply that would 10 make the impound[] reasonable.” Id. (citation and internal quotation marks omitted). 11 Because Allbee did not have a warrant to impound Plaintiff’s vehicle, the parties 12 invoke the community caretaking exception to the Fourth Amendment. “In their 13 ‘community caretaking’ function, police officers may impound vehicles that ‘jeopardize 14 public safety and the efficient movement of vehicular traffic.’” Miranda, 429 F.3d at 864 15 (quoting South Dakota v. Opperman, 428 U.S. 364, 368–69 (1976)). “Whether an 16 impoundment is warranted under this community caretaking doctrine depends on the 17 location of the vehicle and the police officers’ duty to prevent it from creating a hazard to 18 other drivers or being a target for vandalism or theft.” Miranda, 429 F.3d at 864 19 (citations omitted). 20 It is undisputed that Plaintiff did not have a valid driver’s license or proof of 21 insurance when her vehicle was impounded on May 17, 2019. See Defs.’ Response 22 Pl.’s Statement of Undisputed Material Facts, ECF No. 87-1 ¶¶ 14–15, 17, 21–22; see 23 also Ex. B, Merin Decl., ECF No. 83-3, at 34 (Allbee’s written citation listing violations of 24
25 2 The Court will only recount the arguments, evidence, and matters necessary to reach its decision here. However, the Court has reviewed and considered the parties’ briefings and submitted evidence in their entirety. 26
3 Although Allbee impounded Plaintiff’s vehicle pursuant to a state statute, “[t]he question in this 27 Court upon review of a state-approved search or seizure is not whether the search (or seizure) was authorized by state law. The question is rather whether the [seizure] was reasonable under the Fourth 28 Amendment.” Sibron v. New York, 392 U.S. 40, 61 (1968) (citation and internal quotation marks omitted). 1 California Vehicle Code § 14601.1(a) (driving when privilege revoked or suspended) and 2 § 16028(a) (no proof of insurance)). “However, those facts alone do not automatically 3 justify [an officer’s] decision to impound” a vehicle. Long v. Gill, 981 F. Supp. 2d 966, 4 969 (D. Or. 2013); see also Miranda, 429 F.3d at 864 (stating that a driver’s “citation for 5 a non-criminal traffic violation . . . is not relevant except insofar as it affects the driver’s 6 ability to remove the vehicle from a location at which it jeopardizes the public safety or is 7 at risk of loss.”). To the extent Allbee believed that if the vehicle was not impounded, 8 then “nothing would prohibit [Plaintiff] from driving the vehicle later that day,” see Ex. A, 9 Allbee Dep., ECF No. 83-3, at 28, the Ninth Circuit has held that “[t]he need to deter a 10 driver’s unlawful conduct is by itself insufficient to justify a tow under the ‘caretaker’ 11 rationale.” Miranda, 429 F.3d at 866. 12 Plaintiff’s primary theory behind her Motion is that because there were specific 13 licensed drivers present ready to take possession of her vehicle and Plaintiff authorized 14 them to do so, Allbee’s decision to impound her vehicle was unreasonable. See Pl.’s 15 Mem., at 6 (citing Sandoval, 912 F.3d at 516 (holding that once an unlicensed driver is 16 “able to provide a licensed driver who could take possession of the [vehicle], the . . . 17 community caretaking function [is] discharged.”));4 Sanchez Decl., ECF No. 83-4 ¶¶ 3–4. 18 4 Defendants posit that the Ninth Circuit’s holding in Sandoval cannot be reconciled with the 19 United States Supreme Court’s decision in Colorado v. Bertine, 479 U.S. 367, 373–74 (1987). See Defs.’ Opp’n, at 3–4 (asserting that Bertine “stated the Fourth Amendment does not require officers to give the 20 vehicle owner an opportunity to make alternative arrangements to avoid the tow” and that “the Fourth Amendment does not require alternatives like presenting other drivers to avoid a tow”). However, the 21 Court’s decision is not so limited and instead suggests that a police officer is not required to exhaust alternatives before impounding a vehicle, especially if there is an urgent need to move it. See Bertine, 479 22 U.S. at 374 (stating that “while giving Bertine an opportunity to make alternative arrangements would undoubtedly have been possible, . . . [t]he reasonableness of any particular governmental activity does not 23 necessarily or invariably turn on the existence of alternative less intrusive means.”) (quoting Illinois v. Lafayette, 462 U.S. 640, 647 (1983)) (internal quotation marks omitted); see also Miranda, 429 F.3d at 865 24 n.6 (“An officer, acting within the scope of his or her community care-taking function, is not required to consider ‘the existence of alternative less intrusive means’ when the vehicle must in fact be moved to 25 avoid the creation of a hazard or the continued unlawful operation of the vehicle.”) (citing Bertine, 479 U.S. at 374). On the other hand, if an immediate and available alternative is present at the time that would eliminate the hazard or unlawful operation of the vehicle, then such alternative is at least relevant in 26 determining whether the impound was reasonable under the Fourth Amendment. In Sandoval, the drivers did not have valid California driver’s licenses, but their friends did and could have immediately driven the 27 car away, thus ending their unlawful operation, i.e., driving without a valid license. See 912 F.3d at 513– 14, 516–17. There were no facts in Bertine indicating that an immediate alternative arrangement was 28 /// 1 Defendants respond that even if true, “the community caretaking function is served by 2 not allowing an uninsured vehicle on the road” and that they “would be placed in a 3 potential position for liability from other drivers or even from those who take possession if 4 they were to get in an accident in Plaintiff’s uninsured vehicle.”5 Defs.’ Opp’n, at 4. 5 The Court finds a triable issue of fact exists as to whether it was reasonable for 6 Allbee to impound the vehicle rather than release it to another licensed driver based on 7 the vehicle being uninsured. Plaintiff contends that “Defendants’ argument amounts to 8 nothing more than an insufficient ‘general argument that such impounds are justified as 9 a deterrent or penalty.’” Pl.’s Reply ISO Mot. Summ. Adjudication, ECF No. 89, at 6 10 (citations omitted). However, the issue is not just about preventing Plaintiff from driving 11 her own vehicle without a valid license or insurance but also whether it is reasonable to 12 let another licensed driver take possession and responsibility of and drive another 13 person’s uninsured vehicle. See Miranda, 429 F.3d at 864 (stating that whether the 14 impoundment is warranted under the community caretaking exception depends, in part, 15 on “the police officers’ duty to prevent it from creating a hazard to other drivers”). 16 Furthermore, Plaintiff simply argues that other licensed drivers could have taken 17 possession of the car but does not discuss whether those licensed drivers could have 18 even legally driven Plaintiff’s vehicle given that it is uninsured. See Sandoval, 912 F.3d 19 at 513–14, 516–17 (stating that the drivers only lacked valid licenses, not proof of 20 insurance). 21 available at the time, such as the presence of other licensed drivers ready to take possession. As a result, 22 the Court finds the two decisions are reconcilable.
23 5 Defendants also argue that Plaintiff has not provided “sufficient evidence that persons with valid driver’s license[s] were present and/or that [] Deputy Allbee was aware of the same.” Defs.’ Opp’n, at 3. 24 However, Allbee’s statements in his declaration that he does not recall either “anyone presenting a valid driver’s license to [him]” or “Plaintiff giving any particular person permission to take control of her vehicle,” 25 Allbee Decl., ECF No. 87-5 ¶¶ 5–6, are insufficient to overcome Plaintiff’s own declaration and create a triable issue of fact. See Fed. Elec. Comm’n v. Toledano, 317 F.3d 939, 950 (9th Cir. 2002) (stating that a “failure to remember and lack of knowledge are not sufficient to create a genuine dispute.”). Regardless, 26 Defendants have made clear that even if there were other licensed drivers present, Allbee still would have impounded the vehicle. See Ex. A, Allbee Dep., ECF No. 83-3, at 28 (stating that he “did not feel safe 27 releasing the vehicle to anybody else”) (emphasis added); Defs.’ Opp’n, at 4 (“Even assuming a validly licensed driver [was] present and could have taken possession, the community care taking function would 28 still be served by keeping [a] known uninsured vehicle off the street.”). 1 Because a triable issue of fact exists based on the lack of insurance, there are 2 other factors the Court must consider in deciding whether the impound was 3 unreasonable. As previously stated, “the decision to impound a vehicle after the driver 4 has violated a vehicle regulation must consider the location of the vehicle, and whether 5 the vehicle was actually ‘impeding traffic or threatening public safety and convenience’ 6 on the streets, such that impoundment was warranted.” Miranda, 429 F.3d at 865 7 (citation omitted). It is undisputed that the event in question occurred in the vicinity of 8 Gordon Drive and Thurman Way off Stockton Boulevard in Sacramento, California. See 9 Pl.’s Response Defs.’ Separate Statement of Undisputed Facts, ECF No. 89-2 ¶¶ 3–4. 10 In her declaration, Plaintiff states that she “parked [her] vehicle legally on the street.” 11 Sanchez Decl., ECF No. 83-4 ¶ 2; but see Ex. A, Allbee Dep., ECF No. 83-3, at 21–22 12 (unable to confirm whether Plaintiff “parked in a proper parking space” or if her vehicle 13 was wrongly positioned). However, the word “legally” does not explain how or where the 14 vehicle was parked. Additionally, Allbee states in his declaration that he is “generally 15 familiar” with the area in question and that “[i]n May 2019 it was experiencing a high 16 homeless issue and is a high crime area.” Allbee Decl., ECF No. 87-5 ¶ 2. Based on 17 this knowledge, Allbee further declares that “had Plaintiff’s vehicle been left there, it 18 would have been subject to risk of vandalism and theft.” Id. ¶ 4; see also Ex. 1, Not. 19 Errata to Allbee Decl., ECF No. 88, at 3 (image of Gordon Drive). Plaintiff did not 20 discuss any of these contentions given her position that the presence of other licensed 21 drivers resolved any need for the impound. 22 Ultimately, the inquiry as to whether the impound of a vehicle is warranted under 23 the community caretaking exception is very fact intensive, as evidenced by the cases the 24 parties themselves rely on. While the Court agrees with Plaintiff that the presence of 25 licensed drivers authorized to take possession of her vehicle is important, it is not 26 dispositive in this case; the lack of vehicle insurance, the location of the vehicle, how and 27 where the vehicle was parked, and whether the vehicle would be subject to vandalism or 28 theft if left there are all factors not considered or addressed by Plaintiff. As such, the 1 | Court cannot definitively say that Allbee’s decision to impound Plaintiff's vehicle was 2 || unreasonable and thus violated the Fourth Amendment.® Similarly, summary judgment 3 | on Plaintiff's California Constitution claim is not warranted given that it relies on the same 4 | reasoning as her Fourth Amendment cause of action. Accordingly, Plaintiff's Motion for 5 | Summary Adjudication is DENIED in its entirety.” 6 7 CONCLUSION 8 9 Based on the foregoing, Plaintiff's Motion for Summary Adjudication, ECF No. 83, 10 | is DENIED without prejudice. Because the Court finds denial is warranted based on the 11 | above analysis, Defendants’ Objections to Plaintiff's Evidence Submitted in Support of 12 | Plaintiffs Motion, ECF No. 87-2, are DENIED as moot. 13 IT 1S SO ORDERED. 14 15 | Dated: February 27, 2023 Eo 16 { late rf LEK. " SENIOR UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 ® The Court notes that it would have reached the same conclusion had Defendants moved for 26 summary judgment in their favor on this claim for the aforementioned reasons and because the presence of other licensed drivers ready to take possession of the vehicle raises a question as to whether it was 27 reasonable to impound the vehicle rather than release it to one of them. 7 The Court need not address Defendants’ alternative arguments as to qualified immunity or 28 | whether Plaintiff's state law claim is barred under Yount v. City of Sacramento, 43 Cal. 4th 885 (2008).