Cota v. Arizona, State of, et al.

Filing 72

ORDER granting 65 Defendant's Motion for Summary Judgment. The Clerk of Court shll terminate this action. Signed by Judge G Murray Snow on 4/5/12.(DMT)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Cota,
Plaintiff,

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vs.

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Toni Brown, et al.,
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Defendants.
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No. CV-10-1024-PHX-GMS
ORDER

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Pending before the Court is Defendant Toni Brown’s Motion for Summary Judgment.
(Doc. 65). For the reasons discussed below, the motion is granted.
BACKGROUND

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On September 20, 2006, Plaintiff Jose Cota entered a Wells Fargo Bank branch

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located at 850 E. Greenway Road in Phoenix with along with Glenna Standley, then 82 years

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old and confined to a wheelchair. (Doc. 5 ¶¶ 3–4). Mr. Cota had been living with Ms.

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Standley, for whom he served as a caregiver, for approximately 10 years. Earlier that week,

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$55,000 had been wired into Ms. Standley’s account at Wells Fargo by her neighbor in

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exchange for a parcel of land. (Doc. 66, Ex. F). Mr. Cota told a teller at the bank that he and

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Ms. Standley wanted to invest the proceeds of the sale, and the teller recommended that they

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invest in a $50,000 Certificate of Deposit (“CD”). (Doc. 68 at 9). Part of the reason the teller

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recommended a CD, which would prevent anyone from withdrawing the funds immediately

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without a penalty, was that he was suspicious of Mr. Cota, because he “did all the talking for

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her” and that Ms. Standley “didn’t look like she was there, competent-wise.” (Id.).

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Furthermore, Ms. Standley’s account only had her son listed as a co-signer, and because Mr.

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Cota was Hispanic while Ms. Standley was white, the teller concluded that he was not related

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to her. (Id.). Mr. Cota further stated that he wanted to withdraw $10,000 in cash, which

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concerned the teller. The teller consulted with his manager, and responded to Mr. Cota that

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he could provide $5,000 immediately, and that Mr. Cota could withdraw $5,000 more at a

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later date. (Id. at 10). The teller asked Mr. Cota for two forms of ID, but Mr. Cota only had

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one, so he returned home to obtain another ID. Ms. Standley waited at the bank. While Ms.

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Standley was waiting, the teller spoke to her, and felt that she “was just all confusion.” (Id.

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at 11). Because of Ms. Standley’s inability to answer simple questions, the teller contacted

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his supervisor, who in turn contacted a Wells Fargo Vice President in the Corporate Security

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Department. (Doc. 65 ¶¶1–6). Mr. Cota returned to the bank, obtained the $5,000, and asked

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the teller how to get access to the $50,000 in the CD. (Doc. 68 at 12). The teller “just stalled

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him” by telling him to wait twenty-four hours and return. (Id.). Mr. Cota and Ms. Standley

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left with the $5,000.

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The next morning, Wells Fargo contacted Detective Toni Brown of the Phoenix

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Police Department. (Doc. 65 ¶ 1). Detective Brown, along with Detective Robert Furneaux,

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who also worked for the Phoenix Police Department, went to Ms. Standley’s home. Mr. Cota

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and Ms. Standley were present, although Ms. Standley was asleep. The officers entered, and

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found a significant amount of musical equipment, including many hand-crafted guitars made

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by Mr. Cota. (Doc. 68 at 2). Mr. Cota informed the officers that he and Ms. Standley were

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in business together to produce and sell the guitars. (Doc. 65 ¶ 35). When asked about the

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visit to Wells Fargo the day before, he stated that he and Ms. Standley had taken out the

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money in connection with the guitar business. Detectives searched the house and found a

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total of $4,942. (Doc. 65 ¶ 51). Detective Brown arrested Cota for financially exploiting a

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vulnerable adult. (Doc. 65 ¶ 58). After Detective Brown arrested Cota and took him away,

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Detective Fruneaux interviewed Standley, who was unable to remember her children’s

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names, the city in which she lived, or whether she had been to the bank the day before. (Doc.
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65 ¶ 72). She stated that she had not sold any property recently, was not in business with

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Cota, and that the only money she had ever given him for his guitar business was $1,000

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many years before. (Id.).

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Detective Brown testified about her investigation before a Grand Jury on October 2,

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2006. (Doc. 66, Ex. H). She stated that during Cota and Standley’s visit to the bank, Cota

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had attempted to withdraw the entire $55,000. She does not mention the CD. (Id.). On

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January 21, 2009, Cota was found not guilty after a jury trial, and filed this lawsuit on

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January 20, 2010. (Doc. 65 ¶ 158–59). Some claims against the State of Arizona, Maricopa

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County, the City of Phoenix, Detective Furneaux, and the prosecutor at Cota’s criminal trial

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were dismissed on November 10, 2010. (Doc. 25). Further claims were dismissed pursuant

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to stipulation on February 24, 2011. (Doc. 38).

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The only remaining claims are that Detective Brown violated Cota’s Fourth and

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Fourteenth Amendment rights when she entered the home without a search warrant and

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arrested him, that her Grand Jury testimony constituted an abuse of process, and that she is

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liable in negligence or gross negligence for conducting an unreasonable investigation. (Doc.

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1-1). Detective Brown moved for summary judgment on October 28, 2011.

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DISCUSSION
I.

Legal Standard

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Summary judgment is appropriate if the evidence, viewed in the light most favorable

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to the nonmoving party, demonstrates “that there is no genuine dispute as to any material fact

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and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). Substantive

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law determines which facts are material and “[o]nly disputes over facts that might affect the

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outcome of the suit under the governing law will properly preclude the entry of summary

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judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[A] party seeking

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summary judgment always bears the initial responsibility of informing the district court of

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the basis for its motion,” including identifying portions of the record that demonstrate the

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absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

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(1986).
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Once the moving party has detailed the basis for its motion, the party opposing

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summary judgment “may not rest upon the mere allegations or denials of [the party’s]

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pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial.”

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Fed. R. Civ. P. 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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586-87 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995);

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “A fact issue is genuine ‘if the evidence

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is such that a reasonable jury could return a verdict for the nonmoving party.’” Villiarimo v.

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Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at

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248). Thus, the nonmoving party must show that the genuine factual issues “‘can be resolved

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only by a finder of fact because they may reasonably be resolved in favor of either party.’”

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Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th

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Cir. 1987) (quoting Anderson, 477 U.S. at 250; emphasis in original). “[A]t the summary

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judgment stage the judge’s function is not himself to weigh the evidence and determine the

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truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477

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U.S. at 249. The Ninth Circuit “has refused to find a genuine issue where the only evidence

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presented is uncorroborated and self-serving testimony.” Villiarimo v. Aloha Island Air, Inc.,

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281 F.3d 1054, 1061 (9th Cir. 2002) (internal quotations omitted).

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II.

Analysis

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Defendant has submitted a statement of 117 undisputed facts, supported by 13

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exhibits. (Docs. 65–66). Plaintiff has not submitted a statement contesting these facts, and

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has not submitted his own statement of facts. Instead, he has included a six-page statement

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detailing the allegations in the complaint and including some new allegations. (Doc. 68).

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Attached are a number of documents, including some police department documents, some

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trial documents, and extensive documentation and photography of Plaintiff’s custom-made

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guitars, including his numerous patents. (Doc. 68). Indeed, from Plaintiff’s submission it

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appears that he is principally concerned with the loss of his guitars and his tools for

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manufacturing those guitars. In his response to the motion, Plaintiff states (for the first time)

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that Detective Brown objected to having the guitars released to a friend of Plaintiff’s while
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Plaintiff was incarcerated, and that she manipulated photographs of the guitars, providing

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him with only blurry copies of them. (Doc. 68 at 4–5).

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In his complaint, however, Plaintiff attributed the loss of his property only to the

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Phoenix Police Department generally, writing that the “PPD negligently sold Jose’s property

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at auction or otherwise negligently disposed of it or negligently permitted it to be disposed

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of.” (Doc. 1-1 ¶ 32). He made no allegation that Detective Brown played any part in selling

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or disposing of the equipment, and points now to no evidence in the record that she did so.

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In fact, Plaintiff makes a number of claims in his response that are not grounded by citations

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to any evidence in the record, such as a claim that Detective Brown kept documents vital to

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his prosecution in the trunk of her car while she “went on tour all over the nation teaching

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seminars to other police departments.” (Doc. 68 at 4). The Court cannot find a genuine issue

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of fact and denies summary judgment “where the only evidence presented is uncorroborated

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and self-serving testimony.” Villiarimo, 281 F.3d at 1061. Allegations in Plaintiff’s response

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that are not supported in the record cannot serve as the basis for a denial of summary

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judgment. With this fact in mind, Defendant’s claims will be addressed in turn.

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Defendant argues that Plaintiff’s claims are untimely, while Plaintiff argues that

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relevant statutes of limitations ought to be tolled. The Court need not consider whether the

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circumstances of this case merit tolling of the statutes of limitations, because the claims fail

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on the merits in any event.

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A.

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Plaintiff claims that Detective Brown entered his house without a warrant in violation

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of the Fourth Amendment on September 21, 2006. (Doc. 1-1, Ex. A at 5). In her initial police

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report, Detective Brown wrote that Cota “unlocked the gate and allowed us to come inside

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the residence to speak with himself and V1-Glenna.” (Doc. 66, Ex. B-1 at 5). At trial,

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Detective Brown stated that she asked Plaintiff permission to enter and that he granted her

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permission. (Doc. 66 Ex. D). Plaintiff does not point to any evidence in the record to dispute

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this fact. He does not appear to have filed any motion to have evidence obtained pursuant to

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the search excluded. In his response, he writes “Toni Brown told me to unlock the chain link

Fourth Amendment

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fence gate and let them in the house because they needed to talk to me. . . . Toni Brown

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insisted so I let them in.” (Doc. 68 at 2).Whether or not consent to a search is given

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voluntarily, and is therefore valid, depends on whether “a defendant’s will was overborne .

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. . assess[ing] the totality of all the surrounding circumstances.” Scneckloth v. Bustamonte,

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412 U.S. 218, 226 (1973). Plaintiff, even in his unsworn response, states only that Detective

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Brown “insisted” he let her in, which does not suggest his will was overborne.

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B.

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Detective Brown’s Grand Jury testimony admittedly varies from what the bank teller

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stated to police. Detective Brown states that Cota tried to withdraw the entire $55,000, while

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the teller recounted that Cota opened a CD for $50,000, tried to withdraw $10,000, and once

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he was told he could only withdraw $5,000, asked how he could get access to the money that

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was in the CD. (Doc. 68 at 12; Doc. 66, Ex. H). This discrepancy is not significant, since it

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is not disputed that the teller called the bank supervisors, who in turn notified police. Plaintiff

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has pointed to no evidence that creates a genuine issue of fact regarding Detective Brown’s

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motives, and without an improper motive Detective Brown cannot be liable for an abuse of

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process claim. See Nienstedt v. Wetzel, 133 Ariz. 348, 353, 651 P.2d 876, 881 (App. 1982)

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(an abuse of process claim requires “(1) a willful act in the use of judicial process; (2) for

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an ulterior purpose not proper in the regular conduct of the proceedings”). Moreover, the

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Supreme Court has recently held that “a grand jury witness has absolute immunity from any

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§ 1983 claim based on the witness’ testimony.” Rehberg v. Paulk, ___ S.Ct. ___ at 12 (April

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3, 2012) (No. 10-788). Likewise, Plaintiff has pointed to no evidence that creates a genuine

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issue of fact as to whether Detective Brown’s investigation was grossly negligent; on the

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contrary, as Defendant notes, the judge in Plaintiff’s criminal case denied a Rule 20 motion

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for dismissal, finding that the investigation had produced sufficient evidence for a reasonable

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jury to convict him. (Doc. 66, Ex. O). The fact that he was eventually found not guilty does

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not suggest that the investigation was conducted in a grossly negligent manner or that it

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constituted an abuse of process.

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Grand Jury Testimony and Investigation

Plaintiff has offered no evidence that creates a genuinely disputed fact as to his
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complaint’s underlying merits. See Matsushita, 475 U.S. at 586-87 (1986) (“When the

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moving party has carried its burden under Rule 56(c), its opponent must do more than simply

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show that there is some metaphysical doubt as to the material facts.”).

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CONCLUSION
Plaintiff has pointed to no evidence demonstrating that there is a genuine issue as to
the merits, and his complaint would therefore be dismissed on the merits in any event.

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IT IS THEREFORE ORDERED:

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Defendant’s Motion for Summary Judgment (Doc. 65) is granted.

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2.

The Clerk of Court shall terminate this action.

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DATED this 5th day of April, 2012.

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