United States District Court, S.D. California
ORDER (1) GRANTING DEFENDANT USA'S MOTIONS FOR
SUMMARY JUDGMENT [DOC. NOS. 43, 62]; AND (2) GRANTING IN PART
AND DENYING IN PART DEFENDANT NATIONAL CITY'S MOTIONS FOR
SUMMARY JUDGMENT [DOC. NOS. 48, 65]
A. Houston United States District Judge
before the Court are four motions for summary adjudication
filed by the Defendants. See Doc. Nos. 43, 48, 62,
65. Upon review of each motion, the Court notes that
arguments made in Defendant USA's (“USA”) and
Defendant City of National City's (“National
City”) earlier filed motions, [doc. nos. 43, 48], are
both responsive to Plaintiff Ali Alejandro Mendoza's
(“Plaintiff” or “Mendoza”) First
Amended Complaint (“FAC”), are duplicated and
made part of their, respective, later filed motions,
responsive to Plaintiff's Second Amended Complaint
(“SAC”). See Doc. Nos. 43, 48;
cf Doc. Nos. 62, 65. Accordingly, this order
consolidates duplicative arguments and notes where the
Court's findings apply to more than one motion. The
record indicates that Plaintiff, USA, and National City,
fully briefed the later filed motions, [doc. nos. 62, 65].
See Doc. Nos. 74, 76, 78, 79. After careful
consideration of the record, including the pleadings and
exhibits submitted by the parties, after entertaining oral
argument from counsel, and for the reasons set forth below,
Defendant USA's motions, [doc. nos. 43, 62], are GRANTED
in their entirety; and Defendant National City's motions,
[doc. nos. 48, 65], are GRANTED IN PART AND DENIED IN PART,
as set forth herein.
12, 2014, Officer Thomas Malandris (“Malandris”)
was traveling on a residential street, driving approximately
20-25 miles per hour. Malandris Depo., at 93:7-14. At about
9:00 p.m., Plaintiff Ali Alejandro Mendoza
(“Plaintiff” or “Mendoza”), a
19-year-old male, and his friend Alberto Morales attempted to
cross the two lane intersection within a marked crosswalk.
Plaintiff saw Malandris' car approaching from about a
block away, but believed they would be able to cross the
intersection before the car reached them. Mendoza Depo., at
83:9-19, 88:13-23. As they crossed the street, Plaintiff
looked over and saw that the vehicle was going to collide
with them. Id.at 90:11-22. Plaintiff pushed his
friend out of the way, was struck by the vehicle, and rolled
into the windshield. Id. Plaintiff testified that he
began to get up after the collision, raising himself up to
his hands and knees. Mendoza Depo. at 111:21-25; 112:8-10
(“After I landed . . . I try to maneuver my hands to
try to lift myself up from how I was laying. And I pretty
much lift myself just pretty much to where I'm on my
hands and knees . . . I tried to - I attempted to get up, but
I can't. My body was incredibly weak, so I just stay on
my hands and knees”); see also Morales Depo.
at 54:14-23 (testifying that Plaintiff was “trying to
find a way to get up.”).
moved Plaintiff to a safe position on the curb and then
Malandris moved his vehicle out of the middle of the street.
Malandris Depo. at 168:3-169:4.
thereafter, Sergeant Leach with the National City Police
arrived at the scene, called for an ambulance and initiated a
traffic collision investigation. Id. at 181:4-12.
National City Police Officer Michael Nuttall was placed in
charge of the collision investigation and he completed a
traffic collision report. Nuttall Decl., at ¶ 4.
National City Police Officer Benjamin Peck completed the
portion of the traffic collision report relating to
Plaintiff. Id. at ¶ 6.
Peck went to the hospital after the collision to interview
Plaintiff. Hospital staff alerted Peck to a marijuana pipe
that was found in Plaintiff's possession. In responding
to a question from Peck, Plaintiff admitted to smoking
marijuana earlier that day. Peck Depo., at 63:4-14;
66:16-19.) Peck claims that he obtained knowing and voluntary
consent from Plaintiff for a blood draw, but the blood was
never tested for marijuana. Id. at 12:11-18; 13:3-7;
13:20-14:12; 48:9-15; 52:2-3. However, a separate urine test
performed by the hospital returned a positive result for
Tetrahydrocannabinol (THC). Ex. G, USA 408; USA 503.)
Plaintiff also admitted during his deposition to inhaling
five puffs from a water pipe (bong) earlier that day. Mendoza
Depo., at 50:19-51:20.
suffered a single fracture of his right tibia. He underwent
surgery to place a rod (nail) and screws in his leg. He later
underwent a second surgery to remove the screws. Plaintiff
reported relatively low pain throughout his treatment and was
released from care approximately one year after the
collision, on July 17, 2015, with no restrictions on his
complaint was originally filed in state court. On June 5,
2015, the case was removed to this Court. See Case
No. 15cv1260-JAH (BGS). On July 7, 2015, the parties jointly
moved to dismiss the entire action without prejudice. The
motion was granted on July 9, 2015.
10, 2015, Plaintiff filed a new suit for damages,
asserting a claim for Negligence against Defendants USA and
National City only. See Doc. No. 1. Proof of service
as to both Defendants was filed on July 23, 2015.
See Doc. Nos. 3, 4. Defendant National City answered
the Complaint on July 31, 2015, and Defendant USA answered on
September 8, 2015. See Doc. Nos. 7, 11.
February 24, 2016, Plaintiff moved this Court for leave to
file a First Amended Complaint (“FAC”).
See Doc. No. 22. The motion was granted on April 19,
2016, and Plaintiff timely filed his FAC on April 29, 2016.
See Doc. Nos. 37, 38. The FAC joined Defendants
Malandris, Peck, and Nuttal, and asserted seven causes of
action: (1) Negligence; (2) violations of Cal. Civ. Code
§§ 51, 52, 52.1, the Bane Act; (3) violations of 42
U.S.C. § 1983; (4) violations of 42 U.S.C. §§
1985(2)-(3); (5) violations of § 42 U.S.C. § 1986;
(6) Intentional Infliction of Emotional Distress (IIED); and
(7) violations of federal civil rights, under Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). See Doc. No. 38.
9, 2016, the USA filed a notice, substituting the USA in
place of Malandris, with respect to common law tort claims
alleged against Malandris, arising from Malandris' acts
or omissions occurring on or after July 12, 2014.
See Doc. No. 41 (citing 28 U.S.C. § 1346(b),
2671-2680, the Federal Tort Claims Act (“FTCA”),
as amended by the Federal Employees Liability Reform and Tort
Compensation Act of 1988 § 5, Pub. L. No. 100-694. 102
Stat. 4563 (1988)). On the same day, May 9, 2016, the USA
also filed a motion for partial summary judgment and judgment
on the pleadings, as to the FAC. See Doc. Nos. 43.
Similarly, on May 13, 2016, Defendant National City filed its
motion for summary judgment and partial summary judgment, as
to the FAC. See Doc. Nos. 48. Neither motion was
31, 2016, Plaintiff filed the instant Second Amended
Complaint (“SAC”), asserting seven causes of
action against Defendants USA, National City, Malandris,
Peck, and Nuttal, for (1) Negligence; (2) violations of Cal.
Civ. Code §§ 51, 52, 52.1, the Bane Act; (3)
violations of 42 U.S.C. § 1983; (4) violations of 42
U.S.C. §§ 1985(2)-(3); (5) violations of § 42
U.S.C. § 1986; (6) IIED; and (7) violations of federal
civil rights, under Bivens. See Doc. No.
13, 2016, the USA filed a motion for partial summary
judgment, judgment on the pleadings, or, in the alternative,
for summary adjudication. See Doc. No. 62. On June
13, 2016, Defendants National City, Peck, and Nuttall (the
“National City Defendants”) joined in the motion.
See Doc. No. 64. On December 15, 2016, Malandris
also joined. See Doc. No. 110. Thus, all Defendants
seek a partial summary judgment or summary judgment order,
contending that (1) there was no joint agency or dual
employment of Malandris; (2) National City cannot be liable
through respondeat superior for Malandris'
actions; and (3) Mendoza cannot show outrageous conduct or
causation, requisite elements for his IIED claim.
See Doc. No. 62 at 2. On July 18, 2016, Plaintiff
filed a response in opposition. See Doc. No. 76. The
USA replied on July 22, 2016. See Doc. No. 78.
June 13, 2016 the National City Defendants filed a motion for
summary judgment or partial summary judgment, as to the SAC.
See Doc. No. 65. On December 15, 2016, USA and
Malandris joined in the motion. See Doc. Nos. 108,
111. Thus, all Defendants seek a summary judgment or partial
summary judgment order, contending that (1) there was no
joint agency or dual employment of Malandris; (2) Nuttall and
Peck cannot be liable for negligently and recklessly failing
to properly investigate and document the subject collision;
(3) there were no constitutional violations to support
Mendoza's third, fourth, or fifth causes of action; (4)
there is no constitutional right to a correct traffic
collision report; (5) Peck did not violate any of
Mendoza's constitutional rights when he interviewed
Mendoza in the hospital, photographed his clothing and
marijuana pipe, or obtained consent for a blood draw; and (6)
no force or coercion was used against Mendoza during
Peck's hospital interview. See Doc. No. 65-16.
On July 18, 2016, Plaintiff filed a response in opposition.
See Doc. No. 74. The National City Defendants
replied on July 25, 2016. See Doc. No. 79.
December 20, 2016, the Court entertained oral argument from
counsel. See Doc. No. 113. The motions were taken
under submission at the hearing. Id.
Summary Judgment Standard
judgment is appropriate under Rule 56(c) of the Federal Rules
of Civil Procedure where the moving party demonstrates the
absence of a genuine issue of material fact and entitlement
to judgment as a matter of law. 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. See 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.
seeking summary judgment always bears the initial burden of
establishing the absence of a genuine issue of material fact.
See Celotex, 477 U.S. at 323. The moving party may
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. Where the party moving for summary judgment does not
bear the burden of proof at trial, it may show that no
genuine issue of material fact exists by demonstrating that
“there is an absence of evidence to support the
non-moving party's case.” Id. at 325. The
moving party is not required to produce evidence showing the
absence of a genuine issue of material fact, nor is it
required to offer evidence negating the moving party's
claim. Lujan v. National Wildlife Fed'n, 497
U.S. 871, 885 (1990); United Steelworkers v. Phelps Dodge
Corp., 865 F.2d 1539, 1542 (9th Cir. 1989).
“Rather, the motion may, and should, be granted so long
as whatever is before the District Court demonstrates that
the standard for the entry of judgment, as set forth in Rule
56(c), is satisfied.” Lujan, 497 U.S. at 885
(quoting Celotex, 477 U.S. at 323). “Disputes
over irrelevant or unnecessary facts will not preclude a
grant of summary judgment.” T.W. Elec. Serv., Inc.
v. Pacific Elec. Contractors Ass'n, 809 F.2d 626,
630 (9th Cir. 1987).
district court may limit its review to the documents
submitted for purpose of summary judgment and those parts of
the record specifically referenced therein.” Carmen
v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030
(9th Cir. 2001). Therefore, the court is not obligated
“to scour the record in search of a genuine issue of
triable fact.” Keenan v. Allen, 91 F.3d 1275,
1279 (9th Cir. 1996) (citing Richards v. Combined Ins.
Co., 55 F.3d 247, 251 (7th Cir. 1995)). If the moving
party fails to discharge this initial burden, summary
judgment must be denied and the court need not consider the
nonmoving party's evidence. See Adickes v. S.H. Kress
& Co., 398 U.S. 144, 159-60 (1970).
moving party meets the initial burden, the nonmoving party
cannot defeat summary judgment merely by demonstrating
“that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see
also Anderson, 477 U.S. at 252 (“The mere
existence of a scintilla of evidence in support of the
nonmoving party's position is not sufficient.”).
Rather, the nonmoving party must “go beyond the
pleadings and by her own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for
trial.” Celotex, 477 U.S. at 324 (quoting
Fed.R.Civ.P. 56(e)) (internal quotations omitted).
making this determination, the court must view all inferences
drawn from the underlying facts in the light most favorable
to the nonmoving party. See Matsushita, 475 U.S. at
587. “Credibility determinations, the weighing of
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge, [when] he [or
she] is ruling on a motion for summary judgment.”
Anderson, 477 U.S. at 255.
Ninth Circuit has previously acknowledged that declarations
are often self-serving, and this is properly so because the
party submitting it would use the declaration to support his
or her position. S.E.C. v. Phan, 500 F.3d 895, 909
(9th Cir. 2007) (holding that the district court erred in
disregarding declarations as “uncorroborated and
self-serving”). Although the source of the evidence may
have some bearing on its credibility and on the weight it may
be given by a trier of fact, the district court may not
disregard a piece of evidence at the summary judgment stage
solely based on its self-serving nature. See id.
However, a self-serving declaration that states only
conclusions and uncorroborated facts would not generally be
admissible evidence. See id.; see also
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,
1059 n. 5, 1061 (9th Cir. 2002) (holding that the district
court properly disregarded the declaration that included
facts beyond the declarant's personal knowledge and did
not indicate how she knew the facts to be true); F.T.C.
v. Publ'g Clearing House, Inc., 104 F.3d 1168, 1171
(9th Cir. 1997) (“A conclusory, self-serving affidavit,
lacking detailed facts and any supporting evidence, is
insufficient to create a genuine issue of material
Judgment on the Pleadings
Federal Rule of Civil Procedure 12(c), a party may move for
judgment on the pleadings “[a]fter the pleadings are
closed but within such time as not to delay the trial.”
Judgment on the pleadings is proper when there is no
unresolved issue of fact and no question remains that the
moving party is entitled to a judgment as a matter of law.
Honey v. Distlrath, 195 F.3d 531, 532-33 (9th Cir.
Motion for Partial Summary Judgment, Judgment on the
Pleadings, or, in theAlternative, Summary
Adjudication by Defendants USA, ...