United States District Court, S.D. California
For Jane Doe, an individual, Plaintiff: Browne Greene, LEAD ATTORNEY, Greene, Broillet & Wheeler LLP, Santa Monica, CA; Linda G Workman, LEAD ATTORNEY, Dicks and Workman APC, San Diego, CA; Andrew J. Spielberger, Balaban & Spielberger LLP, Los Angeles, CA; Daniel K. Balaban, Balaban & Spielberger, LLP, Los Angeles, CA; Holly N. Boyer, Esner, Chang & Boyer, Pasadena, CA; Joseph Gary Dicks, DICKS & WORKMAN, APC, San Diego, CA.
For San Diego, City of, by and through the San Diego Police Department, a public entity, William Lansdowne, an individual, Kevin Friedman, an individual, Defendants: Christina M Milligan, LEAD ATTORNEY, Donald F Shanahan, Office of the City Attorney, San Diego, CA; Keith W Phillips, LEAD ATTORNEY, City of San Diego, City Attorneys Office, San Diego, CA; Michelle Landis Gearhart, LEAD ATTORNEY, Daley & Heft LLP, San Diego, CA; Mitchell D Dean, LEAD ATTORNEY, Daley and Heft, Solana Beach, CA.
For Anthony Arevalos, an individual, Defendant: Kevin M Osterberg, LEAD ATTORNEY, Haight Brown and Bonesteel LLP, Riverside, CA.
For David Bejarano, an individual, Defendant: Christina M Milligan, LEAD ATTORNEY, Donald F Shanahan, Office of the City Attorney, San Diego, CA; Karen Lynn Rogan, LEAD ATTORNEY, Chula Vista City Attorneys Office, Chula Vista, CA; Keith W Phillips, LEAD ATTORNEY, City of San Diego, City Attorneys Office, San Diego, CA; Michelle Landis Gearhart, LEAD ATTORNEY, Daley & Heft LLP, San Diego, CA; Mitchell D Dean, LEAD ATTORNEY, Daley and Heft, Solana Beach, CA.
For Danny Hollister, Max Verduzco, Victoria Binkerd, Robert Kanaski, Rudy Tai, Defendants: Keith W Phillips, LEAD ATTORNEY, City of San Diego, City Attorneys Office, San Diego, CA; Michelle Landis Gearhart, LEAD ATTORNEY, Daley & Heft LLP, San Diego, CA; Mitchell D Dean, LEAD ATTORNEY, Daley and Heft, Solana Beach, CA; Christina M Milligan, Donald F Shanahan, Office of the City Attorney, San Diego, CA.
For Jorge Guevara, Defendant: Keith W Phillips, LEAD ATTORNEY, City of San Diego, City Attorneys Office, San Diego, CA; Michelle Landis Gearhart, LEAD ATTORNEY, Daley & Heft LLP, San Diego, CA; Christina M Milligan, Office of the City Attorney, San Diego, CA.
For U-T San Diego, NBC 7, KGTV 10 News, Fox 5, KFMB News 8, Voice of San Diego, Intervenors: Guylyn Remmenga Cummins, LEAD ATTORNEY, Sheppard Mullin Richter and Hampton, San Diego, CA.
ORDER GRANTING PLAINTIFF JANE DOE'S MOTION FOR PARTIAL SUMMARY JUDGMENT [Doc. No. 202]
Hon. Michael M. Anello, United States District Judge.
This case arises out of the alleged predatory sexual behavior of former San Diego Police Officer Anthony Arevalos. Plaintiff Jane Doe (" Plaintiff" or " Doe" ) was one of
Arevalos' many victims. Plaintiff filed suit against Defendants City of San Diego (the " City" ), Arevalos, and nine of Arevalos' past supervisors in the San Diego Police Department. In the present motion, Plaintiff seeks to hold the City vicariously liable for Arevalos' tortious conduct. In addition, Plaintiff seeks summary judgment against the City on her claims of sexual assault and battery. Upon consideration of the comprehensive record before the Court, including the written and oral arguments of counsel, the Court GRANTS Plaintiff's motion for partial summary judgment.
On March 8, 2011, Plaintiff Jane Doe attended a Mardi Gras event in the downtown area of San Diego. At approximately 10:45 p.m., Doe left the event in anticipation of her night shift at a youth center. While proceeding out of downtown, Doe was pulled over by on-duty San Diego Police Department Officer Anthony Arevalos for failing to use a turn signal. Officer Arevalos used his lights and loudspeaker to effectuate his stop of Plaintiff. Arevalos asked Doe if she had been drinking alcohol; Doe acknowledged doing so earlier in the evening. Arevalos then asked if Doe was willing to perform a field sobriety test or a preliminary alcohol screen (" PAS" ) test, administered using a handheld device denoting alcohol level. Doe agreed to perform the PAS test. The test indicated that her blood alcohol content (" BAC" ) was .09. Doe then agreed to perform another breath test using the intoxilyzer machine located in the trunk of Arevalos' police car. The second and third tests recorded that Doe's BAC registered at .08 and .09.
After representing that Doe had failed the alcohol breathalyzer tests, Arevalos told Doe they might be able to " work something out" in order for her to avoid being arrested for driving under the influence. Arevalos asked Doe what her " ideal situation would be," and she responded to have someone pick her up. Arevalos ignored her request. Because they had been at the roadside location for " too long," Arevalos instructed Plaintiff to drive to a nearby 7-Eleven. Arevalos followed her in his patrol car. She parked in front of the 7-Eleven and Arevalos parked his patrol car next to her car, effectively blocking her in.
Arevalos came up to Doe's car window and asked Doe what she would be willing to do to get out of a DUI arrest. Doe did not suggest anything because she did not want to put any ideas in his head. Arevalos suggested that she give him her bra and panties. Doe was hesitant to give her bra, but would " if that's what he wanted." Arevalos said her panties would suffice. He gave Doe the option to take her panties off either in the car or inside the 7-Eleven bathroom. Not wanting to undress in front of Arevalos, Doe chose the bathroom.
Doe and Arevalos entered the 7-Eleven together. After retrieving the bathroom key, Arevalos opened the bathroom door, and Doe entered. To Doe's astonishment, Arevalos followed Doe into the single stall bathroom; shut the door; and positioned himself between Doe and the door. Doe then took off her pants and panties and handed the panties to Arevalos. Arevalos told Doe he wanted to see her breasts, and she pulled up her shirt and bra and exposed her breasts.
The parties disagree as to what occurred next. Doe alleges that Arevalos put his arm around her, pulled her against his shoulder, and started to rub her vagina. The City disputes that an intimate touching occurred.
After Doe and Arevalos left the bathroom, Doe took another breathalyzer test that allegedly registered .07. Arevalos told Plaintiff he would contact her to let her know when all the paperwork was gone and she was " safe." Arevalos then released Plaintiff and allowed her to drive to her job at the youth center. After Plaintiff arrived at work, Arevalos sent her a text message stating that he would contact her at the end of the month.
While at work, Plaintiff called San Diego Police Department Officer Kelly Besker regarding the sexual misconduct;  Besker instructed Plaintiff to call the Department's main number. Plaintiff called the number, and a sex crimes team was dispatched to meet with Plaintiff. Detective Lori Adams asked Plaintiff to participate in two pretext calls with Arevalos. Plaintiff agreed. These calls occurred on March 10, 2011, and were both recorded.
The First Pretext Call
The conversation in the first pretext call included the following exchanges between Arevalos and Doe:
Doe: Hey Anthony, I'm just . . . I don't know, I haven't been able to sleep. I've been freaking out, like I'm just . . . stressed . . . I don't know [if] you're still gonna turn me in or if you still have paperwork on me.
Arevalos: Okay, now listen . . . I made the executive decision that night, it's like okay. I am not gonna do this girl, I'm not gonna screw her career. She has too much education . . . . Now, unless I turn the paperwork in to the District Attorney's Office, then this thing's never gonna happen, okay? You have to trust me on this as much as I trust you, okay? I mean I want you to believe in me because I believe in . . . you as a person that you shouldn't have been behind that wheel that night. I mean do . . . you understand that that, you get that?
Doe: . . . I was just a little scared 'cause you know you gave me the panties back and you said you wanted them and I just didn't know what that meant.
Arevalos: No, . . . I'm not gonna take anything of value from you. . . . I just want to . . . I want you to be comfortable that I made the decision that night, you know to . . . not make the arrest. I mean that's that. I mean I can make the decisions, and I call that out there in the field.
[. . .]
Doe: I just keep thinking like the next time I drive I'm gonna get . . . someone's
gonna (unintelligible) . . . DUI [laughing] on my record.
Arevalos: Yeah. Exactly! The next time you register your plates or something. You know I . . . I understand what you're saying. Okay, the only way that's gonna happen is if you know like I said you know the third week of March, whatever it is, that you know the computer report comes out and then they're just . . . basically on my ass, (unintelligible) 'What happened to this?' But that's why . . . I've been doing this for 18 years you know, so . . . I know what I'm doing out there. I know what it takes to make the arrests, and I hold the paperwork in my hand and nobody can tell me to hand it in, it's up to me to hand it in. If I don't hand it in then nobody knows about it. . . . And there's no . . . you know there's no computer input, there's no record, there's nothing.
Doe: Okay, I just . . . I just feel like, I don't know, like I didn't do my part 'cause you gave the panties back.
Arevalos: [Laughing] Do you want . . . Do you ah . . . Um . . . I want you to be alright with everything. I want you to be comfortable with everything, you know? You know it's hard for me to explain things over the phone, ah . . . to show you and tell you how this thing goes down, the process works, it was very difficult. You know I mean . . . I mean . . . It's up to you, do you want to wait until . . . if you want to wait until the third week to meet with coffee, that's fine. You want to meet there. If you wanta talk earlier than that, I can explain some things to you, that's your call.
[. . .]
Arevalos: Listen to me. Listen to me. This has to be . . . this has to be between you and I, you understand that, right?
Doe: No, defi . . . I don't want anyone to know what happened at all. I . . . No. No.
[. . .]
Doe: I don't know, I guess I'm just that . . . that . . . nervous that it's like . . . I don't know 'cause you had said that the deal was you know . . .
Arevalos: Right. Right.
Doe: . . . for the panties. And then you gave 'em back, so I just . . . I don't . . . I just wanna make sure the deal's still on even though you gave them back.
Arevalos: Still on. Okay?
Doe: Thank you so much. Thank you.
[. . .]
Doe: Oh, no, I just . . . I just . . . I don't know, I'm still kind of . . . I'm just trying to calm down and I just . . .
Arevalos: Okay, I . . . I'm gonna . . . I'm gonna tell you some things later on tonight that's gonna make you very very calm. Just relax, okay? Please relax, okay? If I would have been some asshole cop, some rookie cop, you would have already been arrested and this law would have been going a whole different way, you would have been screwed.
[Doc. No. 202-19.]
The Second Pretext Call
Doe: I would just . . . feel better if I knew that . . . I guess, I don't know, I just . . . Um . . . just kind of talk . . . me down I guess. . . . I mean 'cause you gave the panties back, and then like you had said you wanted to touch me and then you stopped, and so I don't know if you were upset or you didn't seem pleased 'cause you just step . . . I don't know. I just want to
make sure . . . that what I did was enough.
Arevalos: . . . Let me ask you this. Do you . . . I mean, what if I say no? . . . That's what I want to know.
Doe: . . . What more would you want, I guess?
Arevalos: Well, what is your . . . thinking? You told me that you know, 'Yeah, I wanted to touch you, but then I stopped.' I mean how . . . I mean what do you think . . . would have been adequate?
Doe: I don't know. I mean I . . . that's what I'm . . . that's way I'm [laughing] asking you, I don't know what it takes to . . .
Arevalos: Right. Right.
Doe: . . . get out of the DUI. I mean you're the . . . the cop, I don't know.
Arevalos: Okay. Listen to me . . . listen to me right now, okay? [. . .] All I want to do is make you feel good that I have made the decision in my heart and I [have] made the decision on paper that you were not worth going to jail for, period. . . . I honestly truly believe that you thought you were way under the legal limit. Okay, because when you first blew into the PAS device, you were shocked about the reading, okay? [. . .]
I thought you were a very honest person. . . . [S]o right away in my head I'm thinking okay, I don't' want to screw this girl over. If I arrest her, she . . . I mean she's gonna lose a lot of what she's been training for. She's gonna lose a lot of what she's going to school for. She'll lose more than what she's gonna gain, period! Okay? So I figured I want her to feel satisfied that she gave me something to make me feel good, so I can just make this . . . this paperwork and stuff go away. Yeah, would . . . I have liked to have been there longer with you, of course I would have liked to been there longer with you, but you know I'm in uniform. You know I mean I'm on the job, it's like it's hard for me to . . . to be comfortable around you.
[. . .]
Doe: Okay. It just seemed like that you got mad or upset when you stopped touching me.
Arevalos: No . . . no . . . no . . . no, not at all, don't . . . don't . . . I don't want you to think that. There's no ill will in my mind whatsoever right now. . . . I'm just trying to put you at ease that when I do see you again in person, I want you to know that it's gonna be a good meeting. . . . And it's gonna be a meeting where I'm gonna say, guess what, everything is totally erased, totally done. There's no . . . there's no existence of paperwork. There's no existence of anything that said I even ever stopped you, okay?
[. . .]
Doe: Okay, . . . I just want to make sure that . . . it's just hard to trust people you know, ah . . .
Arevalos: . . . I totally hear you because if . . . I know because . . . if I was to submit paperwork, you'd be screwed because . . . not in life in general, but I mean your job, your career, your schooling. [. . .] So I want you to be comfortable. I want you to relax. I'm not gonna stab you in the back. I say you know what, fuck this girl, I'm gonna put the paperwork through. You have to trust me. Please trust. If nobody else, just trust me, please.
[. . .]
Doe: I was just surprised that you stopped before I orgasmed, I just figured that's what you wanted.
Arevalos: . . . I definitely wanted you to feel good, I definitely wanted that. I just didn't think you had enough time because you were in a rush, you were on the way out. . . . Yeah, that would have been ideal. You know it would have been perfect, would have been cool. But just because that did not happen . . . just because it was just timing. I mean I was trying to get you to work as soon as possible as well.
Doe: Yeah. . . . I mean yeah, did it . . . did you like it though, I mean I don't . . . I just feel like you didn't like what you were doing to me.
Arevalos: You know what, how come . . . I did. I . . . I . . . I absolutely did. Well like I said, would I have liked it longer, of course! Of course 'cause I wanted you to . . . to be relaxed during it, and I . . . I didn't feel you at all relaxed during it, so I . . . I was like, okay, you know what, let me just stop right now, in my mind, let me just stop right now and then we'll just go forward from here. So I mean I made that decision ...