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Barsamian v. City of Kingsburg

January 28, 2009

KIMBERLY BARSAMIAN, PLAINTIFF,
v.
CITY OF KINGSBURG, MARTIN SOLIS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER FOR THE CITY OF KINGSBURG POLICE 100, INCLUSIVE, DEPARTMENT, AND DOES 1 THROUGH DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER RE DEFENDANT CITY OF KINGSBURG'S MOTION FOR SUMMARY ADJUDICATION AND PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION

I. INTRODUCTION

Before the court is Defendant City of Kingsburg's motion for summary adjudication and Plaintiff Kimberly Barsamian's cross-motion for summary adjudication, on different issues.

An on-duty police officer for the City of Kingsburg ("City"), Defendant Martin Solis ("Solis" or "Officer Solis") was dispatched to the residence of Plaintiff Kimberly Barsamian ("Plaintiff") in response to her mother's request. At the residence, among other things, Officer Solis evaluated whether Plaintiff, a twenty-six year old female, was under the influence of narcotics. He determined that Plaintiff was not under the influence. Officer Solis remained on the premises, received oral sex from Plaintiff, ejaculated and left the scene. Based on this encounter, Plaintiff filed a state court action asserting various claims. The action was removed to federal court and, subsequently, the City and Plaintiff filed the instant motions.

The following background facts are taken from the parties' submissions in connection with the motions and other documents on file in this case.

II. BACKGROUND

From April 1999 to October 2000, Solis worked as a reserve officer for the City, a municipal entity. Thereafter Solis served as a full-time police officer for the City from October 2000 to June 9, 2005, when the City terminated his employment. (Doc. 98 at 2.) The disputed sexual incident with Plaintiff occurred on June 5, 2005. Prior to that date, Officer Solis had encountered Plaintiff before. Back in 2003, Solis observed Plaintiff and placed her under a California Welfare & Institution Code 5150 (unable to care for her own safety or the safety of others). (Doc. 95 at 2.)*fn1 There is no evidence that Officer Solis and Plaintiff had a dating or personal relationship after that time, or at any point prior to June 5, 2005.

At approximately 12:51 p.m. on June 5, 2005, Officer Solis was dispatched to a family disturbance call at Plaintiff's residence located at 2200 Sierra Street in Kingsburg, California. (Doc. 95 at 3.) This family disturbance call originated from Plaintiff's mother, Carol Barsamian, who had contacted the Kingsburg police department and asked the dispatcher to send an officer to her home. (Doc. 98 at 2.) The dispatcher revealed to Officer Solis that Plaintiff's mother had called the Kingsburg Police Department because she, Mrs. Barsamian, wanted to speak to an officer regarding her daughter, Plaintiff Kimberly Barsamian, who Mrs. Barsamian suspected was under the influence of narcotics, had not slept for five days and had tried to jump out of a moving vehicle that morning. (Doc. 95 at 3; Solis Dep. 80:11-25; 81:15-18.)

Officer Solis radioed that he arrived on the scene at 1:03 p.m. (Doc. 95 at 3.) On the scene, Officer Solis apparently met Mrs. Barsamian at the doorway of the residence. Mrs. Barsamian told Officer Solis that she wanted Plaintiff evaluated to determine if Plaintiff was under the influence of narcotics. (Id. at 4.) Officer Solis spoke with Plaintiff outside on the front porch. Plaintiff asked Officer Solis if he was going to arrest her and he stated "No." (Id.) Officer Solis did not state, at any time while at the Barsamian residence, that he was going to arrest Plaintiff. (Doc. 98 at 21.) As they spoke, Plaintiff sat on a bench in the front the residence. Plaintiff believed that while she was sitting on the bench, she could not leave Officer Solis's presence. (Pl. Dep. 151:6-13.)

Plaintiff revealed to Officer Solis that she was voluntarily entering a drug rehab center in Florida and that she had ingested some narcotics a few days prior. (Doc. 95 at 4.) According to Plaintiff, she also mentioned that she was scared about a situation she got herself into with an ex-boyfriend who was into "witchcraft" and feared that she had been "brainwashed into it." (Pl. Dep. 145:25-146:1.) Plaintiff testified at her deposition that Officer Solis talked about problems he was having with his wife and told Plaintiff she was lucky because when she "went to Florida all [her] problems would just go away, and [she] could start a new life there." (Pl. Dep. 146:7-8.) He further stated, according to Plaintiff, that Plaintiff "didn't have to worry," and "he was holding a -- a manilla folder saying this would just go away -- this case would just go away." (Pl. Dep. 146:13-15.)

According to Officer Solis, based on his experience as a police officer and visual observations, he determined that Plaintiff was not under the influence of any substance on June 5, 2005. (Doc. 95 at 4.) Previously, while serving as a full-time officer with the City, Solis had completed a POST (Peace Officer Standards & Training) sponsored program at Fresno City College and received certification that he completed a course on "Drug Influence -- H&S 11550." (Doc. 98 at 14.) Officer Solis was certified as qualified to determine whether a person was under the influence of narcotics. (Id.)

Plaintiff ultimately got up from the bench of her own volition without having to ask for permission. (Doc. 98 at 22.) Plaintiff went back into her residence, Officer Solis followed, and inside the residence he continued to counsel her regarding her narcotics addiction. (Doc. 98 at 22; Doc. 95 at 4.) Inside the residence, Plaintiff offered and provided Officer Solis with something to drink, and they talked while sitting at the kitchen table. (Doc. 98 at 23.) Plaintiff testified at her deposition that, at the kitchen table, "I told him about my brother's wedding, how I ruined his wedding, all the methadone and meds I was taking. And I started crying." (Pl. Dep. 160:18-20.) At some point during their conversation, Plaintiff told Officer Solis that she was going to drug rehab with the hope that she could overcome her low self-esteem and depression. (Doc. 95 at 4.) While Plaintiff and Officer Solis were at the kitchen table, Plaintiff's parents left the residence. (Doc. 98 at 23.) Before she left, Mrs. Barsamian (Plaintiff's mother) provided Officer Solis with a videotape regarding mental illness and told him that it was about how to deal with people with bi-polar disorder. (Doc. 95 at 4.) After the parents left, Officer Solis and Plaintiff talked a bit more, and as Solis was preparing to leave, a hug and kiss occurred between Solis and Plaintiff. As Plaintiff testified at her deposition:

Q: Did you parents left? Continue to talk to Mr. Solis after your

A: your parents are gone,

Briefly, yeah. But he stood and I don't want them to up and he said, 'While disrespect me, so you know, and he started kissing me.

'I won't I'd disrespect better be leaving now.' And I said, you,' and I gave him a hug,

Q: Why did you give Mr. Solis a hug?

A: Just I'm a friendly person. I used to be.

(Pl. Dep. 164:7-15.) According to Officer Solis, Plaintiff kissed him, not the other way around. (Doc. 95 at 5.) After the kiss, it is undisputed that Plaintiff and Officer Solis ended up in Plaintiff's bedroom together. The parties dispute, however, how that occurred.

According to Plaintiff, after the kiss, she expected Solis to leave the house (Pl. Dep. 170:11-13) and she immediately went to her bedroom (Pl. Dep. 168:22-169:3). She did not invite Solis to her bedroom; she just walked off by herself and he followed her there. (Pl. Dep. 168:1-10.)

According to Officer Solis, after the kiss, Plaintiff stated that she wanted to talk some more. (Solis Dep. 105:7-8.) As Officer Solis testified at his deposition:

Q: stay, she wanted to talk to you some more; correct?

And at that point you went to leave and she told you

A: Yes.

Q: Did you leave at that point? . . . .

A: No.

Q: Why not?

A: Because I wanted to see what else she had to say.

Q: Why did you want to see what else she had to say?

A: I was just interested to find out what she had to

Q: say? When you say you were interested, were you interested from your perspective as an officer with the Kingsburg

A: Yes.

Police Department?

Q: As part of your investigation that you were conducting; correct?

A: Yes.

(Solis Dep. 105:19-21; 105:25-106:13.) According to Solis, they continued to talk for about a minute in the living room where she asked him questions about his marriage and his family. (Solis Dep. 106:14-21.) He indicated he would rather not answer, told her he was leaving, and he walked towards the door at which time "she told me she needed to show me something and grabbed me and led me through the hallway." (Solis Dep. 107:23-25.) According to Solis, he went with her because he wanted to see what Plaintiff was going to show him -- Plaintiff led him into her bedroom. (Solis Dep. 108:6-11; 109:2-6.)

In the bedroom, it is undisputed that Plaintiff played some music from her computer to break up the silence. (Doc. 98 at 26.) The parties offer different accounts of what next occurred.

According to Plaintiff, once she noticed Officer Solis had come into her bedroom, she "showed him music on my computer, tried to show him, and he was uninterested in it. And he sat on my bed, and he motioned for me to come over to him." (Pl. Dep. 171:16-18.) He also exposed his penis. (Pl. Dep. 179:4-9.) While sitting at the foot of her bed, Officer Solis grabbed Plaintiff by her waist area and pulled her towards him. (Pl. Dep. 180:12-25; 181:3-5.) While Officer Solis pulled her towards him, Plaintiff testified that she was scared and did not know what was going on. (Pl. Dep. 181:6-11.) He started kissing her, and she did not return the kisses. (Pl. Dep. 182:1-7.) She "was just kind of frozen." (Pl. Dep. 182:16.) In her words, he "kept pushing my head down, and he kept using more and more force pushing my head down, and I finally asked him what -- what did -- did he want, and he told me a blow job. And I just did it. And I remember him leaving just afterward." (Pl. Dep. 183:2-6.) Plaintiff remained off the bed the entire time.

On Solis's recollection, after being led to her bedroom Plaintiff "told me that she was showing me her music" (Solis Dep. 109:13-14) and then, while standing at the foot of her bed, "she kissed me and put her hand on my crotch" (Solis Dep. 109:16-20). At that time, Officer Solis did not attempt to leave -- he "didn't do anything." (Solis Dep. 110:7-9.) To Officer Solis, Plaintiff seemed rational, calm and coherent. (Solis Dep. 110:12-14.) Then she made a comment like "I know what you'd like, you'd like a blow job." (Solis Dep. 110:16-17.) He did not answer her. (Solis Dep. 110:20-21.) She pushed him on his chest and onto her bed. (Solis Dep. 110:23-111:1; 111:25-112:10.) Officer Solis did not take any action to avoid being pushed onto her bed, and the push onto her bed was not against his will. (Solis Dep. 113:12-17.) Plaintiff then unzipped Officer Solis's pants and performed oral sex on him. (Solis Dep. 113:21-25.) He did not make any comment during that time. (Solis Dep. 114:1-5.)

It is undisputed that after receiving oral sex for approximately one minute, Officer Solis ejaculated on Plaintiff's hair and then left the residence. (Doc. 95 at 6.) Plaintiff said "bye" before he left. (Pl. Dep. 185:15.) Officer Solis went to his patrol car and notified dispatch that he was clearing the call at 2:16 p.m. (Doc. 95 at 6.) He requested a case number regarding the investigation from ...


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