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Mark Struk v. Michael Bush; et al

November 18, 2011


The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

[Doc. No. 25]


Currently pending before the Court is Defendant Michael Bush's motion for summary judgment. [Doc. No. 25] Plaintiff filed an opposition on June 3, 2011 [Doc. No. 29] and Defendant filed a reply on June 15 [Doc. No. 32]. On July 11, 2011, the Court determined the matter suitable for decision on the papers and without oral argument pursuant to Civil Local Rule 7.1(d)(1). [Doc. No. 34.] For the reasons set forth below, the Court GRANTS Defendant's motion for summary judgment.


The following facts are not reasonably in dispute.*fn1 At approximately 12:30 a.m. on January 4, 2009, Plaintiff Mark Struk was driving northbound on Interstate 5 near Solana Beach with his friend Elizabeth Roberts. [Pl.'s Oppo. to Def.'s MSJ, Doc. No. 29, p.1.] Traffic began to slow, and ultimately came to a stop, because five lanes of traffic were merging into two lanes due to a fatal hit-and-run vehicle collision on the northbound side of the freeway. [Id.; Def.'s MSJ, Doc. No. 25-1, p.1-2.] As Plaintiff approached the scene of the collision, his passenger Ms. Roberts saw a purse among the debris on the ground and she got out of the car to retrieve it. [Doc. No. 29, p.1.] Shortly after getting back in the car, Plaintiff saw a man near the damaged vehicle and dropped the purse to the ground near the man, assuming he was involved in the collision. [Id.]

Two independent witnesses saw Ms. Roberts retrieve the purse and get back in the car. These witnesses contacted the California Highway Patrol ("CHP") to report that someone had taken a purse from the collision scene. [Doc. No. 25-1, p.2.] Both witnesses reported they saw a female get out of a dark-colored Subaru wagon with California license plate 6BUU546, take the purse from the roadway, and get back into the vehicle. [Id. at p.2-3.] According to both witnesses, the car continued driving northbound, and neither witness saw Plaintiff give the purse to a man standing on the side of the road. [Id.; see Doc. No. 29, Exh. 4 at 111:22-25.] One witness, Stacey Prida, described the female who exited the vehicle as being approximately 25-30 years old, White or light-skinned Hispanic, with dark hair. [Doc. No. 25-1, p.3.] Ms. Prida did not provide a description of the vehicle's driver. [Id.] The second witness, Mike Stenzel, "provided a general description of the female passenger and of the male driver, whom he believed was Caucasian and taller than the female." [Id.]

The hit-and-run collision killed Yines Gonzalez and her unborn fetus. At the scene, Yines' husband reported that his wife's purse could not be found. Defendant Michael Bush, an investigator with the CHP, is one of the officers assigned to assist in the investigation of the fatal collision and suspected theft. [Id. at p.1.] Investigator Bush was informed about the two witnesses who reported seeing a female take a purse off the roadway near the collision, and that the victim's husband had reported his wife's purse was missing. [Id. at p.2.] Investigator Bush learned that Mr. Gonzalez indicated his wife's purse contained several important documents, including a passport and other identifying documents, as well as credit cards and approximately $500 in cash. [Id.] Investigator Bush reviewed the two eyewitness reports and called them to discuss what they saw the night of the collision; both witnesses verified the information in their respective reports to the CHP. [Doc. No. 25-1, p.2; Doc. No. 29, Exh. 4 at 53:11-54:25, 7:3-21.] Defendant did not place a follow-up call to Mr. Gonzalez because he had already returned to Mexico. [Doc. No. 29, Exh. 4 at 44:3-12.]

On January 4, Investigator Bush conducted a vehicle registration search for the license plate number provided by the eyewitnesses. [Doc. No. 25-1, p.2.] The search revealed California license plate number 6BUU546 was owned by Plaintiff, whose date of birth is June 10, 1977. [Id.] Investigator Bush determined that the vehicle was registered to an address in Carlsbad, which was also listed as Plaintiff's address. [Id.] After performing additional searches, Investigator Bush learned that a female named Donna Tamblyn, with a date of birth of October 24, 1973, resided at the address in Carlsbad with Plaintiff. [Id.] On January 5, Investigator Bush traveled to Carlsbad to verify the address he obtained for Plaintiff and Ms. Tamblyn, and that the two individuals resided there. [Id. at p.3.] Defendant determined Ms. Tamblyn matched the general description of the female passenger provided by the witnesses. Investigator Bush then "planned a surveillance operation on the residence for the following day . . . to locate and detain Plaintiff and [Ms.] Tamblyn and seize the Subaru." [Id.]

On January 6, Investigator Bush met with other CHP investigators and members of the San Diego County District Attorney's Office involved in the investigation. [Id.] Investigator Bush briefed those at the meeting "on the facts then known by the CHP and the intended follow-up investigation regarding the missing purse, including the plan to locate and arrest Plaintiff and [Ms.] Tamblyn. Everyone was in agreement." [Id.] Later that day, Investigator Bush's team set up surveillance at the Carlsbad residence while Bush secured a search warrant. [Id. at p.4.] Within a few hours Investigator Bush and his team arrested Plaintiff and Ms. Tamblyn; Defendant did not have an arrest warrant for either individual. [Id.] After questioning Ms. Tamblyn at the CHP office, it was determined she was not involved in the alleged theft and she was released. [Id.]

Conversely, at Investigator Bush's instruction, Investigator Jio arrested Plaintiff outside of a market for grand theft, and transported him to the Oceanside Area Office to speak with Investigator Bush. [Id. at p.4-5.] Although Plaintiff recounted the events of January 4 and informed Investigator Bush that he had given the purse to a man at the collision scene, Plaintiff was not released, and he was eventually taken to the Vista Detention Facility and booked. [Id. at p.5; Doc. No. 29, p.2.] Plaintiff was fingerprinted, photographed, searched and held in the County jail until he posted bail. [Doc. No. 29, p.2.] Plaintiff later learned that Investigator Bush had successfully obtained a search warrant for his Carlsbad residence and Subaru after Plaintiff's arrest, but nothing was found. [Id. at p.2-3.]

Ultimately, Investigator Bush corroborated Plaintiff's story and located the missing purse in the victim's damaged vehicle, which was described as a "woman's wallet" on the vehicle inventory form. [Id. at p.3.] A Superior Court Judge declared Plaintiff factually innocent of the charges brought against him, and Plaintiff initiated the pending action against several defendants alleging claims for: (1) unlawful seizure in violation of his Fourth Amendment rights under 42 U.S.C. section 1983; (2) negligence; (3) false arrest; (4) and violations of his civil rights under California Civil Code section 52.1. [Doc. No. 14.] Defendant Bush moves for summary judgment in his favor as to all four claims on the ground that probable cause existed to arrest Plaintiff, and even if it did not, Defendant Bush is immune from liability. [Doc. No. 25-1.]*fn2


Pursuant to Federal Rule of Civil Procedure 56, a party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Hubbard v. 7-Eleven, 433 F. Supp. 2d 1134, 1139 (S.D. Cal. 2006) (citing former Fed. R. Civ. P. 56(c)(2)). It is beyond dispute that "[t]he moving party bears the initial burden to demonstrate the absence of any genuine issue of material fact." Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007) (citation omitted). "Once the moving party meets its initial burden, . . . the burden shifts to the nonmoving party to set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation marks and citations omitted).

A mere scintilla of evidence is not sufficient "to defeat a properly supported motion for summary judgment; instead, the nonmoving party must introduce some 'significant probative evidence tending to support the complaint.'" Fazio v. City & County of San Francisco, 125 F.3d 1328, 1331 (9th Cir. 1997) (quoting Anderson, 477 U.S. at 249, 252). Thus, in opposing a summary judgment motion it is not enough to simply show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted). However, when assessing the record to determine whether there is a "genuine issue for trial," the court must "view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in his favor." Horphag, 475 F.3d at 1035 (citation omitted). On summary judgment, the Court may not make credibility determinations; nor may it weigh conflicting evidence. See Anderson, 477 U.S. at 255. Thus, as framed by the Supreme Court, the ultimate question on a summary judgment motion is whether the evidence "presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.



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