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Therese Arizmendi v. City of San Jose

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


November 9, 2012

THERESE ARIZMENDI, PLAINTIFF,
v.
CITY OF SAN JOSE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Edward J. Davila United States District Court United States District Judge

ORDER GRANTING DEFENDANTS' RENEWED MOTION FOR SUMMARY JUDGMENT [Re: Docket No. 144]

United States District Court For the Northern District of California

Plaintiff Therese Arizmendi ("Plaintiff") has filed a civil rights action under 42 U.S.C. § 1983 bringing several claims of various constitutional violations against the City of San Jose, San 20 Jose Police Chief Robert Davis, and thirteen police officers and sergeants (collectively 21 "Defendants"). The lawsuit arises out of an incident that took place on January 27, 2008 involving 22 Plaintiff and several of the Defendant officers. 23

Presently before the Court is Defendants' Renewed Motion for Summary Judgment. See Docket Item No. 144. Federal Jurisdiction arises pursuant to 28 U.S.C. § 1331. The Court has 25 carefully reviewed the parties' papers for this matter, and for the reasons explained below, 26 Defendants' motion will be granted. 27 28

1.Background

1.1Factual Background

The Court will refer to a previous Order by Judge James Ware granting Defendants' Motion 4 for Summary Judgment to provide a summary of the undisputed facts of this case: 5

On January 27, 2008, the San Jose Police department received a 911 call from 6 two men who claimed that a man had "pulled a gun" on them that appeared to be an AK-47. The 911 callers reported that the man had clicked the gun as though he was 7 loading it while stating that "he was going to get [the two men]." [Declaration of Daisy M. Nishigaya, Docket Item No. 106, Ex. 10 (Official Transcript of the 911 8 Call) at 1.] When asked where the man with the gun was at present, the caller 9 reported that the gunman was "at home" at "556 N. 16th Street" in a "two story" home, "two houses down" from "544 N. 16th Street" with "black trucks out front," 10 describing in detail Plaintiffs' residence. (Id. at 1, 3, 4.) When asked, "In the house?" the caller responded affirmatively, "Yeah." (Id. at 3.)

A few minutes after the call, Defendant Officers arrived at Plaintiffs' home at 556 N. 16th Street and set up a perimeter to investigate. [Def.'s Mot. for Summ. J. 12 at 3, Docket Item No. 105; Memo. in Opp'n re Mot. for Summ. J. at 3, Docket Item 13 No. 115.] Some time after Defendant Officers arrived, Plaintiff Arizmendi exited the home, entered a black Lincoln Navigator SUV and proceeded to drive down the 14 street. (Id.; Id.) Defendant Officers stopped Plaintiff Arizmendi's vehicle shortly after she had begun to drive away from the residence. (Id.; Id.) Defendant Officers 15 searched Plaintiff Arizmendi's person and inside the vehicle, placed her in handcuffs and held her in custody for a period of time. (Id. at 4; Id. at 4.)

Defendant Officers then arrested Plaintiff Arizmendi's husband and, on notice 17 that eleven-month-old Baby Arizmendi was asleep inside the house, entered the home. (Motion at 4; Opp'n at 4-5.) Defendant Officers undertook multiple searches 18 of the home and located two guns, an unloaded rifle and a loaded handgun. (Id. at 5; Id. at 5-6.) During the searches, Plaintiff Arizmendi requested that Defendant 19 Officers reunite her with Baby Arizmendi, and Defendant Officers complied after locating the infant in an upstairs bedroom. (Id.; Id.) 20 Arizmendi v. City of San Jose, No. C 08-05163 JW, at 2 (N.D. Cal. Dec. 15, 2010), Docket Item 21 No. 128 (hereinafter "Ware Order"). 22 23

1.2Procedural History

On November 13, 2008 Plaintiff filed her Complaint with this Court. The named defendants 25 were the City of San Jose, San Jose Police Chief Robert Davis, Sergeant Bennett, Sergeant Pate, 26 Sergeant Imobersteg, Sergeant Boyle, Officer R. Vaughn, Officer C. Parente, Officer Lutticken, 27 28

Cause of Action

Plaintiff(s)

Defendant(s)

First

Monell (Policy or Practice; Alleging Violations of Plaintiffs' First, Fourth, Fifth, Sixth, Eighth, Fourteenth Amendment Rights and "Excessive Force")

Arizmendi and Baby

San Jose

Second

Monell (Acts of Chief as Final Policymaker; Alleging Violations of Plaintiffs' First, Fourth, Fifth, Sixth, Eighth, Fourteenth Amendment Rights and "Excessive Force")

Arizmendi and Baby

San Jose

Third

Monell (Ratification by Chief Davis as Final Policymaker; Alleging Violations of Plaintiffs' First, Fourth, Fifth, Sixth, Eighth, Fourteenth Amendment Rights and "Excessive Force")

Arizmendi and Baby

San Jose

Fourth

Monell (Failure to Train; Alleging Violations of Plaintiffs' First, Fourth, Fifth, Sixth, Eighth, Fourteenth Amendment Rights and "Excessive Force")

Arizmendi and Baby

San Jose

Fifth

42 U.S.C. § 1983 (Fourth Amendment Violations under a Supervisory Theory of Liability)

Arizmendi and Baby

Davis; Bennett; Pate; Imobersteg; Boyle

Sixth

42 U.S.C. § 1983 (Alleging Violations of Plaintiffs' First, Fourth, Fifth, Sixth, Eighth, Fourteenth Amendment Rights and "Excessive Force")

Arizmendi and Baby

All Officers

Seventh

False Arrest

Arizmendi and Baby

Vaughn; Lutticken; Bennett; Cook; Sit

Eighth

False Imprisonment

Arizmendi and Baby

Vaughn; Lutticken; Bennett; Cook; Sit

Ninth

Assault

Arizmendi

Vaughn

Tenth

Battery

Arizmendi

Vaughn; Lutticken

Officer Ordaz, Officer Kurrle, Officer Sit, Officer Miri, Officer Cook, and Officer De Los Santos. 2

The Complaint brought forth various 42 U.S.C. § 1983 claims of constitutional violations as well 3 claims based upon state tort law and California statutes. Plaintiff had also brought forth several 4 claims on behalf of Baby Arizmendi. The table below is a summary of the Complaint: 5 6

Eleventh

Intentional Infliction of Emotional Distress

Arizmendi and Baby

Vaughn; Lutticken; Bennett; Cook; Sit

Twelfth

Trespass

Arizmendi

Vaughn; Lutticken; Bennett; Cook; Sit

Thirteenth

Bane Civil Rights Act, Cal. Civil Code § 52.1

Arizmendi and Baby

All Defendants

Fourteenth

Civil Conspiracy

Arizmendi and Baby

All Defendants

Fifteenth

Aiding and Abetting

Arizmendi and Baby

All Defendants

Sixteenth

Negligence

Arizmendi and Baby

All Defendants

Seventeenth

Injunctive Relief

Arizmendi and Baby

All Defendants

See Ware Order at 3. 8

Following completion of significant discovery, which included deposing several of the 9 actors involved in the incident, Defendants filed a Motion for Summary Judgment on May 17, 10 2010. See Docket Item. No. 105. On December 15, 2010, Judge Ware issued an order granting in part and denying in part this motion. See Docket Item No. 105. The outcome of the Ware Order 12 can be summarized as follows:

* Granted Defendants' motion with regard to all claims on brought on behalf of Baby 13

Arizmendi;

* Granted Defendants' motion with regard to the § 1983 claims of Fourth Amendment violations arising out of the search and seizure of Plaintiff's car;

* Granted Defendants' motion with regard to the § 1983 claims of Fourth Amendment 16 violations arising out the search of Plaintiff's residence;

* Denied Defendants' motion with regard to the § 1983 claims of Fourth Amendment violations arising out of the search of Plaintiff's person;

* Granted Defendants' motion with regard to all of Plaintiff's Monell claims against the City 19 of San Jose;

* Dismissed sua sponte all § 1983 claims of violations of Plaintiff's First, Sixth, Eighth, and Fourteenth Amendment rights; and

* Granted Defendants' motion with regard to all state law claims except for those claims 22 arising out of the search, seizure and detention of Plaintiff and her vehicle.

In light of the Ware Order, the claims which remain at present are (1) the federal claims against the 24 individual Defendant Officers of constitutional violations arising out of the pat down and search of 25

Plaintiff's person, and (2) the state claims of violations arising out of the search, detention, and 26 seizure of Plaintiff's person and her vehicle. 27 28

On April 25, 2011, this case was reassigned to Judge Edward J. Davila. See Docket Item

No. 138. On October 28, 2011 Defendants filed their Renewed Motion for Summary Judgment, the 3 motion presently before the court. This motion seeks summary judgment in Defendants' favor on 4 the following claims: (1) federal claims against all individual officer defendants who did not have 5 an integral participation in the pat down search of Plaintiff's person; (2) all § 1983-based claims of 6 a violation of the Fifth Amendment; (3) claims against specific individual officers who were not 7 integrally involved in the activities that underlay Plaintiff's state law-based claims; and (4) the 8 claim of a violation of Cal. Civ. Code § 52.1. 9

On May 4, 2012, the Court conditionally granted Plaintiff's attorney's Motion to Withdraw

10 as Attorney for Plaintiff. See Docket Item No. 162. Since then, Plaintiff has proceeded in this case

2012, as requested by the Court, Defendants filed a Post-Hearing Supplemental Brief in support of 13 their Renewed Motion for Summary Judgment. See Docket Item No. 171. 14 15

17 material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a); 18

Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The moving party bears the 19 initial burden of informing the court of the basis for the motion and identifying the portions of the 20 pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the 21 absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 22

If the moving party meets this initial burden, the burden then shifts to the non-moving party to go 23 beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." 24

Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. The court must regard as true the opposing party's 25 evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324. 26

However, the mere suggestion that facts are in controversy, as well as conclusory or speculative 27 28

pro se. The parties appeared before the Court in a hearing on September 7, 2012. On September 21, 12

2.Motion for Summary Judgment Standard

A motion for summary judgment should be granted if "there is no genuine dispute as to any testimony in affidavits and moving papers, is not sufficient to defeat summary judgment. See 2

Thornhill Publ'g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Instead, the non-moving 3 party must come forward with admissible evidence to satisfy the burden. Fed. R. Civ. P. 56(c); see 4 also Hal Roach Studios, Inc. v. Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1990). 5

A genuine issue for trial exists if the non-moving party presents evidence from which a reasonable 6 jury, viewing the evidence in the light most favorable to that party, could resolve the material issue 7 in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248--49, 106 S.Ct. 2505, 91 8 L.Ed.2d 202 (1986); Barlow v. Ground, 943 F.2d 1132, 1134--36 (9th Cir. 1991). Conversely, 9 summary judgment must be granted where a party "fails to make a showing sufficient to establish 10 the existence of an element essential to that party's case, on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. 12 13

As noted, Defendants' Renewed Motion for Summary Judgment seeks summary judgment

15 on several of Plaintiff's claims that are still pending after the filing of the Ware Order. The Court 16 will discuss each of these arguments in turn. 17 18

3.Discussion 14

3.1Federal Claims Resulting from the Pat Down Search

Defendants' first argument concerns claims that arose from the pat down search of

Plaintiff's person. Defendants argue that the Court should grant summary judgment on the claims 21 against some of the individual officers as well as against the supervising officers. 22 23

25 against individual officer defendants who did not have an integral participation in the pat down 26 search. In support of this request, Defendant notes that the Ware Order limited Plaintiff's federal 27 28

3.1.1Individual Officers

This Court will first decide whether to grant summary judgment on the federal claims civil rights claims to only those claims that arose from the pat down and search of Plaintiff's 2 person. Defendant argues that Plaintiff therefore cannot as a matter of law bring federal claims 3 against those officers who did not participate in this search. Defendants contend that the following 4 individuals did not have any personal participation or integral involvement in the pat down and 5 therefore no federal claim arising from that search can be brought against them: Officers Parente, 6

Bennett; and Chief Davis. It is Defendants' position that only Officer Lutticken conducted and 8 participated in the pat down search of Plaintiff, and as such, only the claim against him should 9 remain. 10

Kurrle, Miri, Sit, De Los Santos, Cook, Ordaz, and Vaughn; Sergeants Imobersteg, Boyle, and 7

Plaintiff does not appear to dispute the theory behind Defendants' argument. Plaintiff notes that in her Complaint she only alleged that Officers Vaughn and Lutticken participated in the pat 12 down: "Plaintiff does not dispute that the remaining officers other than Vaughn and Lutticken (and 13 their supervisors) did not participate in the search." Pl.'s Opp'n to Def.'s Renewed Mot. for Summ. 14

Direct individual liability under 42 U.S.C. § 1983 exists only after establishing that the

16 defendant personally participated in the allegedly unconstitutional search. Taylor v. List, 880 F.2d 17

1040, 1045 (9th Cir. 1989). A plaintiff must establish "integral participation" of the individual 18 officer in the alleged constitutional violation. Chuman v. Wright, 76 F.3d 292, 294--5 (9th Cir. 19

1996). Summary Judgment, therefore, is proper when there is no question of fact or dispute that 20 specific individual defendants did not participate personally in an allegedly unconstitutional search. 21

Taylor, 880 F.2d at 1045--46 (affirming a granting of summary judgment to dismiss a claim against 22 an officer who did not personally participate in an alleged constitutional violation). Accordingly, 23 the Court will grant Defendants' Motion with regard to the officers who did not personally 24 participate in the pat down search of Plaintiff's person. 25

26 claims amounted to a constitutional violation; therefore the § 1983 claims based on an alleged 27 28

J. ("Pl.'s Opp'n") at 16--17. 15

There is no dispute as to Officer Lutticken's participation in the activity which Plaintiff Fourth Amendment violation in the course of the pat down against him must remain. There does, 2 however, appear to be a dispute as to whether Officer Vaughn participated in the search. 3

Defendants contend that Vaughn did not pat down Plaintiff and cites to Vaughn's deposition as 4 support. See Decl. of Daisy M. Nishigaya, Docket Item No. 141, Ex. 2 Deposition of Officer 5

Vaughn participated in the pat down. Pl.'s Opp'n at 16--17. Plaintiff has not presented any evidence 7 to support this notion or any evidence that suggests there is a question of fact as to Officer 8

Raymond Vaughn ("Vaughn Depo"), at 190:17--19. Plaintiff disputes this merely by asserting that 6

Vaughn's participation. A mere allegation without submission of evidence demonstrating a dispute 9 of facts is insufficient; as such, summary judgment will be granted with regard to Plaintiff's federal 10 claims of a constitutional violation arising from the pat down search against Officer Vaughn. See

Thornhill Publ'g Co.,594 F.2d at 738; see also Chuman, 76 F.3d at 294 (noting that the presence of 12 an officer as a bystander to an alleged constitutional violation is insufficient to subject that officer 13 to § 1983 liability). 14 15

Defendants also argue that no federal claim vis-a-vis the pat down search can be brought

17 against the supervising officers as well. As the Ninth Circuit has noted, "A supervisor is only liable 18 for constitutional violations of his subordinates if the supervisor participated in or directed the 19 violations, or knew of the violations and failed to act to prevent them. There is no respondeat 20 superior liability under section 1983." Taylor, 880 F.2d at 1045; see also Ybarra v. Reno 21

Thunderbird Mobile Home Village, 723 F.2d 675, 680--81 (9th Cir. 1984). Because Plaintiff has 22 not presented evidence demonstrating a material question of fact as to whether any of the 23 supervising officer Defendants participated in, directed, or knew of and failed to prevent the 24 alleged constitutional violations, summary judgment is appropriate. 25 26 27 28

3.1.2Supervisor Liability

3 alleged Fifth Amendment violation. As noted in the above factual background subsection, Plaintiff 4 had alleged violations of the First, Fourth, Fifth Sixth, Eighth, and Fourteenth Amendments. The 5

Eighth, and Fourteenth Amendment rights." Ware Order at 21. Defendants seek to have claims 7 based on an alleged Fifth Amendment violation to be dismissed as well. See Def.'s Renewed Mot. 8 for Summ. J. at 12 ("From the context of the Court Order, it appears that the court fully intended to 9 include the fifth Amendment in this list of other constitutional claims that were being dismissed 10 sua sponte."). Plaintiff has no quarrel with this contention. Pl.'s Opp'n at 18 ("[T]he Court

11

3.2Section 1983 Claims Based on Alleged Violations of the Fifth Amendment

Defendant next argues that summary judgment is proper on any § 1983 claim based on an

Ware Order dismissed Plaintiff's § 1983 and Monell claims of violations of her "First, Sixth, 6

identified plaintiff's allegation as to the Fifth Amendment and stated that they were insufficient and 12 invited plaintiff to amend these claims. Plaintiff did not amend her complaint as to the Fifth 13

Amendment. Nevertheless, to the extent that a Fifth Amendment Cause of Action remains, plaintiff 14 is prepared to dismiss it."). Accordingly, this Court will dismiss any federal claim based on an 15 alleged violation of the Fifth Amendment. 16 17

18

19 were not personally involved in the activity underlying such claims. As noted above, Plaintiff has 20 failed to provide evidence that sufficiently demonstrates a question of fact as to whether an officer 21 other than Lutticken was involved in the pat down search of Plaintiff's person. Plaintiff has 22 presented evidence that Officer Vaughn may have participated in some of the activities which 23 underlies the state tort claims; this Defendants do not dispute. As such, the Court finds that 24 summary judgment is proper to dismiss the following: 25

26

3.3State Law Claims Against Individual Officers

Defendant next seeks dismissal of the state law claims against individual Defendants who

* the seventh claim-false arrest-against Sergeant Bennett, and Officers Cook and Sit;

* the eighth claim-false imprisonment-against Sergeant Bennett and Officers Cook

and Sit;

* the tenth claim-battery-against Officer Vaughn;

* the eleventh claim-intentional infliction of emotional distress-against all named

Defendants;

* the twelfth claim-trespass-against Sergeant Bennett and Officers Vaughn, Cook, and Sit;

* the fourteenth claim-civil conspiracy-against all named Defendants;

* the fifteenth claim-aiding and abetting-against all named Defendants;

* the sixteenth claim-negligence-against all named Defendants except Officer

Lutticken; and

* the seventeenth claim-injunctive relief-against all named Defendants.

3.4Claims of a Violation of California Civil Code Section 52.1

Lastly, Defendant seeks a granting of summary judgment on Plaintiff's thirteenth claim, an

United States District Court

For the Northern District of California

alleged violation of the Bane Civil Rights Act, Cal. Civ. Code § 52.1. The relevant language of this

statute provides,

If a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or

coercion, with the exercise or enjoyment by any individual or individuals of rights

secured by the Constitution or laws of the United States, or of the rights secured by

the Constitution or laws of this state, the Attorney General, or any district attorney

or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to

protect the peaceable exercise or enjoyment of the right or rights secured.

Cal. Civ. Code § 52.1(a). The Act also allows for the individual whose rights were allegedly 20 interfered with in the way section 52.1(a) describes to initiate a civil action for damages, injunctive 21 relief, or other appropriate remedy. Id. § 52.1(b). Defendants argue that Plaintiff fails to state a 22 claim for a violation of this statute because she fails to sufficiently allege that any of the individual 23 defendants interfered or attempted to interfere with her constitutional rights specifically by the use 24 of threats, intimidation, or coercion. 25

26 interfered with or attempted to interfere with the plaintiff's constitutional or statutory right by 27 28

The elements of a cause of action under the Bane Act are as follows: (1) that the defendant

threatening or committing violent acts; (2) that the plaintiff reasonably believed that if she 2 exercised her constitutional right the defendant would commit violence against her or her property; 3

(3) that the defendant injured the plaintiff or her property to prevent her from exercising her 4 constitutional right or retaliate against the plaintiff for having exercised her constitutional right; (4) 5 that the plaintiff was harmed; and (5) that the defendant's conduct was a substantial factor in 6 causing the plaintiff's harm. Austin B. v. Escondido Union Sch. Dist., 149 Cal. App. 4th 860, 882 7

Act cause of action is the allegation that the defendant specifically used threats, intimidation, or 9 coercion. Id. at 883. 10

11

(2007) (citing Judicial Council of California Civil Jury Instructions No. 3025). Critical to a Bane 8

As noted, the only individual defendant that engaged in the activity that may have

constituted a violation of Plaintiff's constitutional rights was Officer Lutticken. (Officer Vaughn 12 may have had some involvement as well, but only enough to give rise to state law tort claims.) 13

Nevertheless, while Officer Lutticken's pat down of Plaintiff may have amounted to a 14 constitutional violation, Plaintiff has not presented evidence that he did so using threats, 15 intimidation, or coercion as is required for a prima facie Bane Act claim. Mere participation in the 16 activity is insufficient to succeed on such a claim. Id. at 882--83. Therefore, the Court will grant 17 summary judgment in Defendants' favor on Plaintiff's claims of a violation of the Bane Act. 18 19

21 be GRANTED in its entirety. As such, the following claims remain: 22

under 42 U.S.C. section 1983 for the alleged search of Plaintiff's person;

4.Conclusion and Order

For the aforementioned reasons, Defendants' Renewed Motion for Summary Judgment will

* Sixth claim for relief against Officer Lutticken for Fourth Amendment alleged violation

* Seventh claim for relief against Officers Lutticken and Vaughn for a state cause of action for False Arrest of Plaintiff;

* Eighth claim for relief against Officers Lutticken and Vaughn for a state cause of action for False Imprisonment of Plaintiff;

* Ninth claim for relief against Officer Vaughn for a state cause of action for Assault of Plaintiff;

* Tenth claim for relief against Officer Lutticken for a state cause of action for Battery of Plaintiff;

* Twelfth claim for relief against Officer Lutticken for trespass for the search of Plaintiff's vehicle; and

* Sixteenth claim for relief for Negligence against Officer Lutticken for the search of Plaintiff Arizmendi and her vehicle.

IT IS SO ORDERED.

20121109

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