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Yolanda Mary Kalb v. City of Oceanside

March 29, 2013


The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge


On April 21, 2011, Plaintiff Yolanda Mary Kalb filed this lawsuit under 42 U.S.C. § 1983 against the City of Oceanside, Oceanside Police Department, and Officers Brian Wray, Marcus Woods, Nicholas Olsen, Justin Pecchia, and Jon Seabron. Plaintiff alleges excessive force and false arrest in violation of her Fourth Amendment rights.

Defendants have filed a summary-judgment motion. Plaintiff Kalb opposes the motion. The Court decides the matter on the papers submitted and without oral argument under Civil Local Rule 7.1(d)(1). For the reasons stated below, the Court GRANTS Defendants' motion [Doc. 40].


On the night of June 23, 2010, Oceanside Police Officer Brian Wray responded to a complaint that an individual had attempted to expose himself in a local restaurant. (See Wray Decl. [Doc. 40-13] ¶¶ 1-2; Woods Decl. [Doc. 40-12] ¶ 2.) Based on the individual's description, Officer Wray suspected Joshua Kalb, Plaintiff Yolanda Kalb's son, was the individual in question.*fn1 (Wray Decl. ¶ 3.) Joshua had a history of mental-health problems, and had been arrested multiple times for substance abuse and "DUI." (Compl. [Doc. 1], ¶ 14; Y. Kalb Decl. [Doc. 44-1], ¶ 3; Def.s' NOL, Ex. 22 ("J. Kalb Depo.") [Doc. 40-3], 35:1--21.)

Officer Wray approached Joshua in an alley behind the Sunshine Brooks Theater, which Yolanda co-manages. (Wray Decl., ¶ 3; Compl., ¶ 13.) Upon seeing Officer Wray approach, Joshua ran through the theater's back door and locked the door. (Wray Decl.,

¶ 2.) Officer Wray knocked on the door, and Yolanda responded. (Wray Decl., ¶2, Kalb Decl., ¶ 3.) While talking to Yolanda, another theater employee told Officer Wray that Joshua had run out of the front door and headed south. (Wray Decl., ¶ 3.)

Officer Wray left the theater to pursue Joshua, and was joined by Officer Marcus Woods. The two officers found Joshua in the bar next door. (Wray Decl., ¶ 3.) As Officer Woods entered the bar, he heard Officer Wray yell, "turn around and place your hands behind your back." (Woods Decl., ¶ 4.) Joshua then charged Officer Wray and threw a punch, which glanced the top left side of Officer Wray's head. (Wray Decl., ¶ 4; Def.s' NOL, Ex. 24 ("Buxton Depo.") [Doc. 40-3], 19:19--21 and Ex. 25 ("Diamond Depo.") [Doc. 40-4], 20:9--22.) Officer Woods tackled Joshua by the bar's entrance, but Joshua fought to get free and stood back up. (Woods Decl., ¶ 4.) The two officers continued to struggle with Joshua, and they fell back inside the bar's entrance, knocking over a small wooden podium, a plant and eventually knocking up against a large wooden Tiki. (Wray Decl., ¶ 4; Woods Decl., ¶ 5; Buxton Depo., 20:25--21:1.) Although the officers managed to get Joshua onto the ground again, they were having a hard time controlling him, and it did not look like they were going to be able to keep Joshua down. (Def.s' NOL, Ex. 26 ("Blackburn Depo.") [Doc. 40-4]., 44:7--14.) Ken Jarboe, the bar's security guard, then joined to help the officers. (Id.; Woods Decl., ¶ 6; Wray Decl., ¶ 5.)

As the struggle with Joshua continued inside the bar, Officer Olsen arrived at the scene. (Olsen Dec. [Doc. 40-8], ¶ 3.) He observed Officers Woods and Wray on either side of Joshua, who was on the ground, and the bar's security guard holding Joshua's legs. (Olsen Decl., ¶ 3; Woods Decl., ¶ 6; Wray Decl., ¶ 5.) The officers repeatedly told Joshua to stop resisting. (Olsen Decl., ¶ 4; Woods Decl., ¶ 6; Wray Decl., ¶ 5.) Bar patrons observing the melee stated that Joshua was "fighting like a furious beast," that he "just went crazy," and that he appeared to either want to run away or harm the officers. (Def.s' NOL, Ex. 21 ("Blackburn & Diamond Statements") [Doc. 40-2], 5:4--5; Ex. 25 ("Diamond Depo.") [Doc. 40-4], 20:15--22; Blackburn Depo., 41:22--42:1.)

Eventually, Officer Woods managed to handcuff Joshua's right wrist, but Joshua forcefully hid his left hand under his body. (Wray Decl., ¶ 5; Woods Decl., ¶ 6; Olsen Decl., ¶ 4.) Officer Wray believed that Joshua was attempting to grab a weapon with his left hand and "distributed two 'distraction blows'" with his right fist to Joshua's rib cage. (Wray Decl., ¶ 5.)

At approximately this time, Yolanda entered the bar. (Y. Kalb Decl. [Doc. 44-1], ¶ 4; Wray Decl., ¶ 5; Buxton Depo., 23:12--22.) She approached to within one to three feet of the struggle and began telling Joshua to calm down. (Y. Kalb Decl., ¶¶ 5--6.) When Officer Wray struck Joshua in the ribs, Yolanda told the officers to stop hurting her son. (Y. Kalb Decl., ¶¶ 6--8; Diamond Depo., 59:15--21.) Joshua then called-out for her assistance. (Diamond Depo., 29:6--10, 34:15--17.) Yolanda contends that "up to this time," she did not touch any officer and when told to get back, took one step back; however, she reached toward her son, as if wanting to help him. (Y. Kalb Decl., ¶¶ 9--10;

Y. Kalb Depo., 281:13--16; Diamond Depo., 59:5--10, 64:5--8.*fn2

As the struggle continued, Officer Wray was concerned about the patrons in the small bar, and that the situation could get out of control. (Wray Decl., ¶ 6.) Officer Olsen took Officer Wray's place in the struggle with Joshua. (Id., ¶ 7; Olsen Decl., ¶ 4.) Officer Wray then stood up, took one step, and grabbed Yolanda by the wrists. (Wray Decl., ¶ 7; Y. Kalb Decl., ¶ 11.) According to Yolanda's declaration, Officer Wray yanked her arms downward, then up over her head and moved her back (approximately a foot) up against the wall. (Kalb Decl., ¶¶ 12, 14, 16; Diamond Depo., 77:4--8.) She immediately experienced pain in her wrist and arm, which led her to scream and act in a way that "anybody would think that I was pretty much a raving maniac." (Y. Kalb Depo., 213:15--19.) She further concedes that given the way she was screaming and the pain she was experiencing, witnesses could have "interpreted [her] to be resisting" Officer Wray. (Id., 280:22--281:5.) Officer Wray then placed Yolanda in handcuffs and pushed her onto a bench against the wall. (Kalb Decl., ¶ 17.)

Yolanda was eventually seen by paramedics and transported to the hospital. While at the hospital, Yolanda stated that she had consumed one or two glasses of wine that night. (Y. Kalb Depo., 88:4--25.) Officer Wray then read Yolanda her Miranda rights. (Wray Decl., ¶ 12.) She was taken into custody and charged with violation of California Penal Code 148(1), for resisting an officer. (Id., ¶ 8; See Def.s' RJN [Doc. 40-5], Ex. 2.) Joshua was also arrested and pled guilty to violation of California Penal Code 69. (See Def.s' RJN, Ex. 1.)


Summary judgment is appropriate under Rule 56(c) where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23. "Disputes over irrelevant or unnecessary ...

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