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Drew Josfan v. Indochine

January 13, 2012


The opinion of the court was delivered by: Honorable A. Howard Matz, U.S. District Judge



Present: The Honorable A. HOWARD MATZ, U.S. DISTRICT JUDGE

Stephen Montes Not Reported

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys NOT Present for Plaintiffs: Attorneys NOT Present for Defendants:

Proceedings: IN CHAMBERS (No Proceedings Held)

This matter is before the Court on the motion for summary judgment or partial summary judgment filed by Santa Barbara Police Department Officers Thomas Eccles ("Officer Eccles"), Ed Ruiz ("Officer Ruiz"), and Mark Corbett ("Officer Corbett") (collectively "Defendants"). Defendants argue the Court should grant summary judgment in their favor because they are immune from suit under the doctrine of qualified immunity. For the reasons set forth below, the Court GRANTS the motion in part and DENIES it in part.*fn1


On October 29, 2009, Plaintiff filed his original complaint alleging various causes of action arising from his arrest at the Indochine nightclub in Santa Barbara, California. Plaintiff named as defendants Indochine, Mike George ("George"), Michael Gomez ("Gomez"), Officer Eccles, Officer Ruiz, Officer Corbett, and the City of Santa Barbara. On April 19, 2010, Plaintiff filed the first amended complaint ("FAC"), which is the operative complaint. The FAC added Nylon Project LLC (doing business as Indochine) as a defendant. On February 22, 2011, pursuant to stipulation, the Court dismissed the claims against defendants the City of Santa Barbara and the City of Santa Barbara Police Department and dismissed Plaintiff's cause of action for Monell liability. On March 23, 2011, again pursuant to stipulation, the Court dismissed Plaintiff's causes of action for false arrest and negligent employment, and dismissed the allegations of false arrest in Plaintiff's cause of action for conspiracy.

Officer Eccles, Officer Ruiz, and Officer Corbett are named only in Plaintiff's first cause of action for violation of his civil rights, pursuant to 42 U.S.C. section 1983, through unreasonable force, false arrest, malicious prosecution, and conspiracy to deprive Plaintiff of his civil rights. Defendants seek summary judgment in their favor on each of these claims within the first cause of action.


The following facts are undisputed, unless otherwise noted.*fn2 On February 28, 2008, Plaintiff was attending a community policing seminar in Santa Barbara, California in connection with his job as a deputy district attorney for the County of Los Angeles. Statement of Undisputed Facts ("SUF") ¶ 1. Plaintiff met Dusan Pavlovic ("Pavlovic"), another attendee, during the seminar's first day. SUF ¶ 2. At some point that day, a group of seminar attendees, including Plaintiff and Pavlovic, decided to meet at a local cafe at around 6 p.m. to watch a Los Angeles Lakers basketball game. SUF ¶ 3. Plaintiff drank four martinis at the cafe. SUF ¶ 5. He also drank a "shot" of alcohol, but he isn't sure whether he consumed the shot at the cafe or at another bar later in the evening. SUF ¶ 6. The group left the cafe around 10:00 p.m. and went to a bar, where Plaintiff had another drink. SUF ¶¶ 7-8.

After passing about 20 minutes at the second bar, Plaintiff and Pavlovic decided to leave and go to Indochine. SUF ¶ 9. Sometime after arriving at Indochine, Plaintiff went into the bathroom and telephoned a friend. SUF ¶ 10. Plaintiff then went looking for Pavlovic and found him in an outdoor area of the nightclub. SUF ¶ 11. Pavlovic handed Plaintiff a drink and then, within seconds, Gomez (Indochine's "bouncer") approached Plaintiff and told him that Plaintiff had to get Pavlovic out of the bar. SUF ¶ 12. Meanwhile, George (Indochine's manager) called the Santa Barbara Police Department to report an ongoing disturbance involving Plaintiff and Pavlovic. SUF ¶ 16. George gave physical descriptions of two men, who George reported were harassing female customers and refusing to leave the nightclub. SUF ¶ 16. Plaintiff does not dispute the fact that George called the police and relayed this information, but instead disputes that he actually refused to leave Indochine or was harassing female customers. Statement of Genuine Issues ("SGI") ¶ 16. Since SUF ¶ 16 is intended only to establish the fact of George's phone call to the police and the substance of that call, rather than the truth of George's statements, the Court treats SUF ¶ 16 as undisputed.

Plaintiff claims that he was standing between Gomez and Pavlovic as Gomez started shoving them toward the back door of the bar. SUF ¶¶ 13-15. While this was happening, Pavlovic started saying, "We're DAs, we're DAs." SUF ¶ 13. Pavlovic also reached over Josfan to grab Gomez. SUF ¶ 13.*fn3 It is undisputed that Gomez was involved in pushing Plaintiff and Pavlovic out of Indochine and into the alley behind the nightclub. SUF ¶ 17. Plaintiff asserts that George and two other men aided Gomez. Plaintiff's Separate SUF ¶ 2. This dispute is irrelevant for purposes of this motion. After the door closed behind them, Pavlovic pounded on the door and repeatedly shouted, "This is fucking bullshit." SUF ¶ 18. Plaintiff yelled at Pavlovic to explain to him why they had been thrown out of Indochine. SUF ¶ 19.

While Plaintiff and Pavlovic remained in the alley behind Indochine, Officer Eccles, Officer Ruiz, and Officer Corbett arrived at the nightclub in response to George's call. SUF ¶ 21. George testified at his deposition that he told Officer Eccles, "The two guys I called the police on we just got them out the back door. One guy hit me in the throat. I got pushed and shoved. They're out back." SUF ¶ 21. According to Officer Eccles' report, before the officers entered the alley, George told him "that two belligerent male subjects had threatened and assaulted him and had refused to leave the bar." Defendants' Exhibit D at 38.*fn4 Plaintiff does not dispute that George so testified at his deposition, but Plaintiff does dispute that George actually made such a statement to Officer Eccles on the night of the incident. SGI ¶ 21. In support of this contention, Plaintiff cites to Gomez's deposition testimony that he did not recall seeing George speaking to the officers before the officers went into the alley to find Plaintiff and Pavlovic. Plaintiff's Exhibit E at 131:4-13. The fact that Gomez merely could not recall at his deposition whether he had seen George speak to the police -- as opposed to affirmatively denying that George spoke to the police -- is not sufficient evidence to create a genuine dispute.

Plaintiff also cites to George's interview with Santa Barbara Police Department Detective Ella, who conducted a follow-up investigation. George told Detective Ella, "I could see flashlights in the hallway and I knew it was the police. So I ran out and I said, hey, they're in the back. So we all ran back here. I opened the door for the cops." Plaintiff's Exhibit B at 5:12-16. This evidence actually reinforces the evidence that George spoke to the police before they confronted Plaintiff and Pavlovic. Further, George's statement to Detective Ella that George told the police, "[H]ey, they're in the back" is consistent with his later deposition testimony that he told the police, "They're out back." That George did not relate to Detective Ella everything he told the officers before they entered the alley does not create a genuine dispute. This is particularly true because George's deposition testimony does not contradict his earlier statement to Detective Ella. Thus, the Court treats SUF ¶ 21 as undisputed.*fn5

Gomez also testified at his deposition that he spoke to the officers before they entered the alley for the first time, and told them,"These two gentleman have been asked to leave repeatedly. One of them exposed themselves. They've both been pushing against us while I tried to get them to leave. They grabbed my manager by the throat. And they were trying to restrain both of us from pushing them out." Defendants' Exhibit B at 10:10-15. In contrast, Plaintiff claims that Gomez said nothing more to the officers than, "They're out here." SGI ¶ 31; Plaintiff's Exhibit D at 131. But the portion of Gomez's deposition testimony relied upon by Plaintiff does not contradict Gomez's fuller testimony later in the same deposition, and so does not create a genuine dispute as to what Gomez told the officers before they entered the alley for the first time.

Officer Eccles, who was wearing a uniform, was the first officer who stepped through Indochine's back door and into the alley. SUF ¶ 22. Officer Ruiz and Officer Corbett, both of whom were in plain clothes, followed Officer Eccles into the alley. SUF ¶ 22; Plaintiff's Opp. at 2; Defendants' Exhibit D at 43. Defendants claim that Officer Eccles ordered both Plaintiff and Pavlovic to lie on the ground. SUF ¶ 22. Although Plaintiff does not dispute SUF ¶ 22, Plaintiff "[d]isputes that [he] did not comply with Eccles, Corbett's or Ruiz's orders and that there were any directed to Plaintiff." SGI ¶ 32. Thus, the Court treats SUF ¶ 22 as disputed only regarding whether Officer Eccles specifically ordered not just Pavlovic, but also Plaintiff to the ground. Pavlovic said, "This is bullshit" and did not comply with Officer Eccles' order. SUF ¶ 21. Officer Eccles eventually shot Pavlovic with his taser device and subdued Pavlovic. SUF ¶ 22.

Throughout, Pavlovic was screaming, "Fuck you. This is bullshit. I'm going to fucking sue you." SUF ¶ 24. Meanwhile, Officer Ruiz and Officer Corbett "took [Plaintiff] down to the ground" and Officer Ruiz handcuffed him. SUF ¶¶ 22-23.

Plaintiff admits that the police officers never kicked, struck, punched, or otherwise hit him at any time. SUF ¶ 27. Nonetheless, in the process of the officers forcing Plaintiff to the ground and handcuffing him, Plaintiff sustained some physical injuries to his hand and his lip. SUF ¶ 28. Defendants describe Plaintiff's injuries as "a cut on his hand, a 'small' cut on his lip, and an abrasion to his hand." SUF ¶ 28. Plaintiff disputes this and claims that he suffered "3 separate lacerations to [his] left palm and a cut lip from hitting the ground." SGI ¶ 28. These descriptions of Plaintiff's injuries are nearly identical and do not amount to a material factual dispute.

Defendants assert it is undisputed that "[i]n handcuffing [Plaintiff], SBPD Officers Ruiz and Corbett used a minimal amount of force on [Plaintiff], including grabbing his arm and forcing him on the ground. Officer Eccles had no physical contact with [Plaintiff]." SUF ¶ 26. It is undisputed that Officer Eccles had no physical contact with Plaintiff. Nor does there appear to be a genuine dispute regarding the amount of force used by Officers Ruiz and Corbett. Plaintiff disputes SUF ¶ 26 by claiming, "Neither Ruiz nor Corbett were authorized to use force on the plaintiff, including the takedown." SGI ¶ 26. But whether the officers were legally authorized to use force does not place into dispute the amount of force they used.

The various accounts of the amount of force used on Plaintiff are fairly consistent. Officer Corbett's report states that he was responsible for subduing Plaintiff:

I grabbed on to [Plaintiff's] right shoulder and chest area and told him directly that we were the police and to get on the ground. [Plaintiff] did not comply with our commands . . . . At that point, I grabbed [Plaintiff's] clothing and pulled him forward and down towards the ground. I was able to force [Plaintiff] down on to his belly, where Officer Ruiz and I were able to overcome his resistance and place him in handcuffs. [Plaintiff] was not physically combative, but more resistant to our commands, which caused us to have to use physical force in order to get him to comply.

Defendants' Exhibit D at 73 (emphasis added).

Officer Ruiz's report states that he "grabbed [Plaintiff] by the shoulders and tried to pull him down to the ground, by grabbing on to his clothes and pushing him down to the ground. Josfan pulled away from me and I lost my grip on his shirt. . . . I noticed Officer Corbett grabbing on to Josfan and he was able to push him down on the ground. As Josfan went down to the ground, I went on his back and placed both of my knees on his back." Defendants' Exhibit D at 75.

At his deposition, Plaintiff testified that he remembered the officers "grabbing me and throwing me down to the ground . . . ." Defendants' Exhibit A at 27:3-4. Andrew Schoener, an Indochine employee who witnessed Plaintiff's confrontation with the police, claimed in a declaration dated March 28, 2011 that he "saw two men, who later turned out to be undercover Santa Barbara PD officers . . . rush [Plaintiff], and together 'clothesline' him, forcibly taking [Plaintiff] to the ground." Plaintiff's Exhibit C at 1.*fn6

When Detective Ella interviewed Schoener on February 27, 2008, just over a week after the incident, Schoener said that he "saw [Plaintiff] taken down to the ground and that's it." Plaintiff's Exhibit C at 8.

Plaintiff notes that Officer Corbett testified at his deposition that he and Officer Ruiz "more or less guided [Plaintiff] onto his belly" and that Officer Ruiz testified at his deposition that Officer Corbett, not Officer Ruiz, "pushed [Plaintiff] to the ground". Opposition ("Opp.") at 12. The Court does not base its conclusion on Officer Corbett's deposition testimony on this point, because what matters is that Defendants admit that Officer Corbett and Officer Ruiz grabbed Plaintiff ...

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