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Sergei Portnoy v. City of Woodland; Detective Towle #883

May 16, 2013

SERGEI PORTNOY, PLAINTIFF,
v.
CITY OF WOODLAND; DETECTIVE TOWLE #883;
OFFICER CHAN #806; OFFICER DROBISH #859. DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

This action proceeds before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Defendants City of Woodland ("City" or "City of Woodland"), Detective Richard Towle ("Detective Towle"), Officer Kent Chan ("Officer Chan"), and Officer Jason Drobish ("Officer Drobish") (collectively, "defendants") move for summary judgment and/or summary adjudication. Dckt. No. 43. A hearing on the motion was held on December 19, 2012. Attorney Jeri Lynn Pappone appeared at the hearing on behalf of defendants; plaintiff appeared pro se. For the reasons stated herein, the court recommends that defendants' motion be granted in its entirety.

I. BACKGROUND

On June 27, 2011, plaintiff filed this action against the City, Detective Towle, Officer Chan, and Officer Drobish, alleging causes of action for (1) violations of his Fifth Amendment and (2) Fourteenth Amendment rights, (3) violation of the Human Rights Act, (4) assault, (5) trespassing, (6) intentional infliction of emotional distress, and (7) negligent infliction of emotional distress related to his arrest for violation of California Penal Code section 476a on February 23, 2011. Plaintiff seeks compensatory and punitive damages in the combined amount of $700,000. Compl., Dckt. No. 1.

Defendants move for summary judgment, arguing that (1) plaintiff has not stated a claim against the City of Woodland in light of Monell and California Government Code section 815; (2) there is no valid "Human Rights Act" claim; (3) plaintiff's arrest without a warrant was legal and defendants had probable cause; (4) there was no unlawful seizure of plaintiff; (5) the officers are entitled to qualified immunity; (6) there is no valid claim against the officers for trespassing; (7) the officers did not conduct an impermissible search; (8) there are no allegations to support an assault claim against the officers; (9) plaintiff has no claim for violation of equal protection or due process; (10) plaintiff's does not have a claim for loss of familial association; and (11) plaintiff has not stated a claim for intentional or negligent infliction of emotional distress.*fn1 Dckt. No. 43-1. Plaintiff opposes the motion. Dckt. Nos. 44, 45.

II. FACTS

Based on the pleadings and evidence on file in this action, and except as otherwise specifically provided in this section, the court finds the following facts to be undisputed:*fn2

Simeon McKenzie is a law enforcement officer employed by the City of Woodland Police Department and was so employed in 2010 and 2011, during the time of the events referred to in this litigation. Defs.' Undisputed Material Fact ("UMF") 1.*fn3 On or about December 14, 2010, Officer McKenzie received a report of fraud from Donna Sutherland, the assistant branch manager of River City Bank in Woodland, California. UMF 2. Ms. Sutherland informed Officer McKenzie that a customer named Elena Portnoy had an active account with River City Bank. UMF 3. Ms. Portnoy was believed by bank personnel to be out of the United States and currently in the Country of Georgia (of the former Soviet Union). UMF 4. The bank was informed verbally by telephone from Ms. Portnoy that her husband, plaintiff Sergei Portnoy, was allowed to use her account. UMF 5.

Ms. Sutherland informed Officer McKenzie that plaintiff had used Ms. Portnoy's bank account for some time and at times had cashed checks and overdrawn the account. In the past, when the account was overdrawn, the bank would contact plaintiff and he would come into the bank and pay the negative balance in cash. UMF 6. Ms. Sutherland informed Officer McKenzie that on three recent occasions, November 22, 23, and 26, 2010, plaintiff deposited checks, each in the amount of $2000.00, into Ms. Portnoy's account via the ATM for a total deposit of $6000.00. UMF 7. The checks deposited were issued from an account at USAA Federal Savings Bank in the name of Karina Arutyunova, which listed the same address as plaintiff's address in Woodland, California. UMF 8. Ms. Sutherland informed Officer McKenzie that after plaintiff deposited the three checks, he withdrew the $6000.00 from Ms. Portnoy's account. However, the three checks had been returned by USAA Federal Savings Bank for insufficient funds in Arutyunova's account. UMF 9. Attempts by River City Bank to contact plaintiff to return the $6000.00 were unsuccessful. UMF 10.

Officer McKenzie's subsequent investigations revealed that plaintiff had been arrested in 2006 on similar charges of bank forgery or fraud, but the charges were dismissed when the only witness in the case went back to Russia. UMF 11. In addition, Officer McKenzie's inquiries revealed that plaintiff currently lives at the address on both the USAA Federal Savings Bank checks and account records and the River City Bank checks and account records. UMF 12.

Officer McKenzie obtained California Driver's License information, including signatures, on Karina Arutyunova, Elena Portnoy, and plaintiff. UMF 13. He also contacted USAA Federal Savings Bank regarding the account in the name of Karina Arutyunova, and was informed by an employee of the bank that the account was valid, but the bank would not disclose any further information. UMF 14.

On January 7, 2011, Officer McKenzie returned to River City Bank and obtained legal copies of the checks at issue, an operating loss report, additional copies of the checks, and photographs of plaintiff at the ATM. He booked the foregoing into evidence. UMF 15.

On January 13, 2011, Officer McKenzie went to plaintiff's home and spoke with plaintiff, who confirmed his identity. Plaintiff told Officer McKenzie that Elena Portnoy was his wife and that she was currently in the country of Georgia, having been deported from the United States. UMF 16. Plaintiff also identified Arutyunova as his ex-wife, with whom he has a seventeen year old son. Plaintiff stated that he did not know where Arutyunova lived, nor did he know how to contact her. He stated that Arutyunova kept her location private from him because she did not want him to see their son. UMF 17. He also reported that Arutyunova spoke broken English and he believed she could not write in English. He stated that the signatures on the three checks were Arutyunova's. UMF 18. Plaintiff did not know why his address was on her checks and stated that the checks were sent to him by Arutyunova because she owed him money. UMF 19. However, at the same time, he told Officer McKenzie that he was paying child support to Arutyunova through a state agency. He would not tell Officer McKenzie how much he was paying in child support, nor why Arutyunova owed him money. UMF 20. Plaintiff told Officer McKenzie that he had been unemployed since March of 2009. UMF 21.

Officer McKenzie's attempts to locate Arutyunova and obtain a statement and writing sample from her were unsuccessful. UMF 22. Officer McKenzie prepared a report which included the documents obtained by him in his investigation. Officer McKenzie then forwarded the case to Investigations. UMF 23.

Richard Towle is a detective employed by the City of Woodland Police Department and was so employed in 2010 and 2011, during the time of the events referred to in this litigation. UMF 24. On or about January 27, 2011, Detective Towle was assigned the investigation from Officer McKenzie regarding plaintiff, and the checks naming Ms. Portnoy and Arutyunova. He reviewed the case file from Officer McKenzie on about February 15, 2011, including the copies of the checks in question. UMF 25. It appeared from the content of Officer McKenzie's reports and the evidence compiled by Officer McKenzie that plaintiff owed Arutyunova money for child support, that he had been fired from his job in March of 2009, and that he refused to provide a reason for Arutyunova to be giving him $6000.00, contrary to the appearance of his debt to her. UMF 26.

Detective Towle attempted to locate Arutyunova, including asking San Francisco Police to check the most recent address he had found for her, but San Francisco Police were unable to locate her at the address. As of February 23, 2011, Detective Towle was unable to make any contact with Arutyunova or discover where she was living. UMF 27.

At 8:40 a.m. on February 23, 2011, with full knowledge of all the information contained in the report and file previously prepared by Officer McKenzie, Detective Towle prepared a Probable Cause Declaration for plaintiff's arrest. UMF 28. On February 23, 2011, at approximately 10:54 a.m., Detective Towle then contacted Officer Drobish, who was a City law enforcement officer on patrol at the time, and asked him to locate plaintiff and arrest him. UMF 29-31. Officer Kent Chan was also on patrol at that time and was requested to assist Officer Drobish in locating and arresting a plaintiff. UMF 32-33.

At approximately 11:00 a.m. on February 23, 2011, Officers Drobish and Chan arrived at plaintiff's residence and contacted him at the front door. UMF 34. The officers confirmed plaintiff's identity and asked if they could talk to him. UMF 35. Plaintiff then invited both officers into his home. UMF 36. Because they had plaintiff's permission, and for their safety and so they would not lose sight of plaintiff as he moved from the front door further into the house, the officers followed plaintiff into his residence and he proceeded to turn off his computer. UMF 37. Officer Chan conducted a quick protective sweep of the residence to ensure there were no other people present in the house that could potentially be a threat to the officers. UMF 38. No search of or for evidence, things, or plaintiff's belongings was done. UMF 39. Officer Drobish informed plaintiff that they were there to arrest him based upon probable cause pertaining to fraud committed by him according to case #11-107. UMF 40. Plaintiff responded, "OK, but you are making a big mistake." UMF 41. Officer Drobish detained plaintiff in handcuffs and sat him down on his desk chair. UMF 42.

Plaintiff informed the officers that he had a fifteen year old son and a five year old daughter at school, with no one else to care for them. UMF 43. Officer Drobish informed Detective Towle that he and Officer Chan had located plaintiff at his home and had him in custody at that time. Officer Drobish also informed Detective Towle that plaintiff had two minor children who were in school at the time and there was no one to care for them when they were out of school. UMF 44. Because the children had to be taken care of, Detective Towle went to plaintiff's home to arrange for a family member to care for them, or to coordinate with Child Protective Services ("CPS") for the care and custody of the children. Detective Towle also knew that if CPS needed to be called, the CPS worker would want to talk to the parent(s) of the children that are being taken into custody. UMF 45. Officer Drobish informed Detective Towle that while they were awaiting my arrival, plaintiff stated he wanted to talk to Detective Towle and was waiting to talk with him. UMF 46.

While awaiting the arrival of Detective Towle, plaintiff continued to tell Officers Drobish and Chan that the police were making a big mistake and that he was going to sue them and the Department. UMF 47. Plaintiff spontaneously stated that he did deposit the subject checks into the bank account, but that it was not his problem that the bank gave him the money to withdraw. UMF 48. Plaintiff continued that this was a "civil issue and it will just get dismissed, so go ahead and arrest me; I'll just get more money from a lawsuit like last time." UMF 49. Plaintiff kept insisting on speaking with Detective Towle, and stating, it was okay, he would wait for Detective Towle. UMF 50.

Detective Towle arrived at plaintiff's home at approximately 11:28 a.m. When he arrived, he activated his digital recorder and entered the residence. UMF 51. Plaintiff was handcuffed in the living room of his residence in the presence of Officers Drobish and Chan. UMF 52. According to defendants, plaintiff did not tell Detective Towle not to enter his home, did not object to Detective Towle entering his home, and did not ask for Detective Towle to leave. UMF 53. However, plaintiff disputes that fact and contends that with regard to defendants' entry into his home, the following occurred:

4. One of the males asked me: "Are you Sergei Portnoy?". I answered: "Yes", and asked: "What Do You Need?". I was told: We Want To Ask You Some Questions". I told to them: "OK, You Can Ask Right Now". After this one of the males asked me: "Can We Enter The House?", I answered: "I Go Turn Off My Computer and You Can Come".

5. Factually, two males in police uniform had my voluntary consent: To Enter The House, To Ask Some Questions, but I never gave to anybody, voluntary consent: To Enter The House, For Search and Arrest.

***

15. About half an hour later one more male without uniform, came into my residence without my permission.

16. He started to walk and whisper with the other males all over my residence.

17. I demanded to all of them, that they shall be every time in the living room before my eyes.

18. Male without uniform came into living room and told me that I should prove that I am not guilty. I answered that: "First, I Didn't Need To Do Anything, For Anyone; Second, I Didn't Want To Talk With People Who Acted Like Gangster, and by Misrepresentation, Without Warrants Came Into My Residence, Handcuffed Me and Walked Around My Residence As If They Were The Owner."

19. For the second time I warned all three of them that their actions are illegal and demanded that they take off my handcuffs, and leave the house immediately. Dckt. No. 44-1, Pl.'s Decl., at 2, 3, 4(emphasis in original).

Plaintiff proceeded to answer Detective Towle's questions regarding the children. UMF 54. Officer Chan then left the scene since Detective Towle and Officer Drobish needed no further assistance from him. UMF 55.

Detective Towle told plaintiff that he would make arrangements for someone to care for his children if he wished. Plaintiff informed Detective Towle that he had no one available to care for his children. UMF 56. Detective Towle then informed plaintiff that he was going to have to take his children into protective custody. UMF 57. Detective Towle contacted Yolo County CPS and Ramiz Ali returned his call. Mr. Ali informed Detective Towle that he would be responding to the location from Davis, and that he needed to interview the parent before the officers transported plaintiff to jail. UMF 58.

According to defendants, Detective Towle advised plaintiff of his Miranda rights in the presence of Officer Drobish, and Detective Towle asked plaintiff if he understood his rights. UMF 59. However, plaintiff disputes this fact, citing to the following three paragraphs in his declaration:

3. When I opened the door I saw through the screening door, two males in police uniform (without badges). They were standing just outside of my residence at my screen door.

***

8. Without any questions they grabbed me and handcuffed me against my will ...


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