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Berger v. Brandon

November 17, 2010

LEO BERGER, PLAINTIFF,
v.
J.T. BRANDON, AS AN INDIVIDUAL IN AN INDIVIDUAL CAPACITY, AND MACDOWELL, AS AN INDIVIDUAL IN AN INDIVIDUAL CAPACITY, DEFENDANTS.*FN1



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Defendant J.T. Brandon moves for summary judgment on Plaintiff's first and third causes of action, and Defendant John MacDowell moves for summary judgment on Plaintiff's third cause of action. Defendants argue Plaintiff agreed to dismiss his second cause of action during a deposition. Plaintiff's Second Amended Complaint is comprised of three causes of action; Brandon is a defendant in the first and third causes of action, and MacDowell is a defendant in Plaintiff's third cause of action. Brandon also seeks summary judgment on Plaintiff's first cause of action based on his qualified immunity defense. However, it is unnecessary to reach the merits of this defense because of the ruling below.

During oral argument on the motion Plaintiff agreed to dismiss his second cause of action, but opposes the rest of the motion. Therefore, Plaintiff's second cause of action is dismissed.

I. LEGAL STANDARD

A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If this burden is satisfied, "the non-moving party must set forth, by affidavit or as otherwise provided in [Federal] Rule [of Civil Procedure] 56, specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quotations and citation omitted) (emphasis in original).

On an issue as to which the nonmoving party will have the burden of proof, however, the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case. If the moving party meets its initial burden, the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial.

Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citations and internal quotation marks omitted). "Where disputed issues of material fact exist, . . . [a]ll reasonable inferences must be drawn in favor of the non-moving party." Bryan v. McPherson, 608 F.3d 614, 619 (9th Cir. 2010)(citations omitted).

II. STATEMENT OF UNCONTROVERTED FACTS

Plaintiff Leo Berger and his wife ("Mrs. Berger") left a friend's party at about 11 p.m. on July 28, 2006, in a car driven by Plaintiff. (Statement of Undisputed Facts ("SUF") ¶ 1; Plaintiff's Separate Statement in Opp'n ("PSS") ¶ 12.) Plaintiff and Mrs. Berger were "involved in a single car traffic accident[,]" in which "Mrs. Berger sustained injuries . . . including bleeding from her nose/face." (SUF ¶¶ 1,4; PSS ¶ 15.)

Officers Brandon, MacDowell, and Dougherty investigated the accident. (Brandon Dep. 13:15-21; 15:17-23.) Plaintiff "told investigating officers that he was the driver of the car[,]" and that "he had a few drinks." (SUF ¶¶ 2,3.) Plaintiff "refused to submit to a Field Sobriety Test or to answer any further questions regarding the accident." Id. ¶ 6. "Officers noted that [Plaintiff] smelled of alcoholic beverages[.]" Id. ¶ 8. Plaintiff argues otherwise but he does not support this argument with evidence. (PSS ¶ 8.) "Mere argument does not establish a genuine issue of material fact to defeat summary judgment." MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993).

Brandon arrested Plaintiff under California Vehicle Code § 23153. (Decl. in Supp. of Opp'n Ex. 1.) This vehicle code section proscribes driving under the influence of alcohol or drugs during which the intoxicated driver causes bodily injury to another person. The People of the State of California subsequently filed criminal charges against Plaintiff under California Vehicle Code §§ 23153(a), 23153(b), which were ultimately dismissed pursuant to the People's oral motion. Id. Ex. 3.

III. DISCUSSION

1. First Cause of Action

Defendants seek summary judgment on Plaintiff's first cause of action, in which Plaintiff alleges claims against Brandon for false arrest and malicious prosecution. (Defs.' Mot. for Summ. J. ("Mot.") 5:9-10.) Plaintiff alleges Brandon had no probable cause to arrest him and that Brandon falsified the police ...


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