Shepherd v. Crawford et al

Filing 104

ORDER denying 96 Motion for Attorney Fees, signed by Judge Oliver W. Wanger on 1/6/2010. (Coffman, Lisa)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. OFFICER GARRETT CRAW F O R D , et al., Defen d a n t . UNITED STATES DISTRI C T CO U R T FOR THE EASTERN DISTRICT OF C A L I F O R N I A

MARGARET A. SHEPHERD Plain t i f f ,

1:08-CV- 0 0 1 2 8 OWW DLB MEMORANDOM DEC I S I O N AND ORDER RE DEFEN D A N T S ' REQUEST FOR ATTORNEYS FEES ( D O C . 96)

I. INTRODUCTION Prevaili n g Defendant s , individual Police Officers with the City of Mod e s t o Police Department, seek to recover attorney's f e e s incurred defending themse l v e s against a civil comp l a i n t brought by Plaintiff Margare t A. Sheph e r d . Defend a n t s assert they are entitled to

attorney ' s fees purs u a n t to Federal Rule of Civil Procedur e 37(c)(2), because Plaintiff denied cert a i n requests for admissi o n regarding her allegations of liabilit y . Doc. 96 at 10-11. Alternativel y , sev e r a l of

the Offi c e r Defendan t s move to recover their defe n s e costs as sanctions u n d e r Federal Rule of Civil Pr o c e d u r e 11, on t h e ground th a t Plaintiff continued to pro s e c u t e 1

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her case against the m despite clear evidence conf i r m i n g they wer e "uni n v o l v e d " in her arrest. Id. at 11- 1 3 .

Finally, Defendants rely on California Code of Ci v i l Procedur e § 1038, wh i c h authorizes a court to ord e r reimburs e m e n t of att o r n e y ' s fees incurred defendi n g against any claim br o u g h t under the California To r t Claims A c t ("CTCA") upon a finding that the claim s were not brou g h t in good faith and with reasonable cau s e . Defendan t s assert th a t Plaintiff brought her acti o n against the five "un i n v o l v e d " officers without re a s o n a b l e cause, a n d maintaine d claims against them d e s p i t e the fact tha t discovery "confirmed that only two of t h e seven officers ever touche d her or were in any way invo l v e d in her arre s t . " Doc. 9 6 at 14. Defendants seek a f e e award

of $77,3 7 1 . 2 5 , repre s e n t i n g half (50%) of the fee s incurred by De f e n d a n t s in defending against Plain t i f f ' s claims. Id. a t 2. 1

Plaintif f alleged th a t Defendant Officers used excessiv e force inci d e n t to her January 14, 2007 arrest outside a nightclub in Modesto, California, causi n g her injuries . She origi n a l l y asserted four cla i m s ba s e d u p o n

De s p i t e oc c a s i o n a l l y me n t i o n i n g " c o s t " re c o v e r y , th i s m o t i o n doe s no t re q u e s t an y cos t aw a r d , n o r a r e a t t o r n e y s f e e s sou g h t un d e r 42 U. S . C . s e c t i o n 1 9 8 8 . D e f e n d a n t s po i n t ou t th a t t h e y sep a r a t e l y fil e d a b i l l of c o s t s on J u l y 2, 2 0 0 9 , i n th e am o u n t o f $8, 1 7 1 . 3 3 , to wh i c h Pl a i n t i f f ha s f i l e d n o ob j e c t i o n s . R e c o v e r a b l e co s t s un d e r 28 U. S . C . s e c t i o n s 19 2 0 an d 19 2 1 a r e n o t h e r e in i s s u e .

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allegati o n s of exces s i v e force and wrongful arres t : (1) Viol a t i o n of Tit l e 42, United States Code, Section 1983 a g a i n s t indi v i d u a l defendants City of Modest o Poli c e Se r g e a n t Garret Crawford, and City o f Mod e s t o Police Officers Douglas Griepp, David Angaro l e , Todd Musto, Jo s e p h P i m e n t a l , Tony Scopesi, and Yair Oaxac a as d e f e n d a n t s ; (2) Assa u l t and batt e r y against all individual defendants; (3) Fals e arrest aga i n s t all individual defendants; an d (4) Viol a t i o n of Sec t i o n 1983 against the C i t y of Modesto rel a t e d t o all e g e d training and/or supervi s i o n d e f i c i e n c i e s . Doc. 1, filed Jan. 2 5 , 3008. Plaintiff voluntari l y

dismisse d the false arrest claim as to all defend a n t s , Doc. 37, filed Mar. 30, 2009, as well as all clai m s against Officers Ang a r o l e and Musto, Doc. 40, filed Mar. 24, 2009 . Defendan t s ' motion f o r summary judgment was grant e d in part. Doc. 45, A p r . 7, 2009. Summary judgmen t was

granted as to all re m a i n i n g claims against Office r s Pimental , Scopesi, a n d Oaxaca. Id. Although Defendan t s '

motion f o r summary j u d g m e n t as to Plaintiff's Mon e l l claim fo r municipal liability against the City of Modesto was deni e d , the part i e s stipulated to dismissal o f that claim on May 14, 200 9 . Doc. 56. Plaintiff's § 1 9 8 3

excessiv e force and state law assault and battery claims against Sergeant Cra w f o r d and Officer Griepp proc e e d e d to 3

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trial.

See Do c . 50 (Pretrial Order) at 4.

A four-d a y jury tria l commenced June 9, 2009, Doc . 84, and the jury ret u r n e d verdicts in favor of bo t h Defendan t s on June 1 7 , 2009, Doc 88. II. BACKGROUND Defendan t s assert th a t , once depositions were complete d , Plaintiff should have known certain of her claims w e r e without foundation. The March 30, 20 0 9

summary judgment dec i s i o n summarizes the incident based on those depos i t i o n s : It is un d i s p u t e d tha t the events giving rise to Plaintif f ' s arrest t o o k place at approximately 1:00 a.m . on January 14, 2007. Compl. at ¶ 6. At that tim e , Plaintiff was at a club called the Copper R h i n o Sun in the downtown entertainment district of Modesto, California, with approxim a t e l y ten ot h e r individuals celebrating the twen t y - f i r s t bir t h d a y of Plaintiff's so n . Id. It is also undisputed that Plaintiff consumed three drink s that evening, a small glass of champagne a n d two white Russians. Margaret Shepherd De p o . at 32, 43-44, 47-48 . In almost a l l other res p e c t s , the parties' versions of the e v e n t s of tha t evening are in conflict. Accordin g to the own e r of the Copper Rhino, Mr. Leslie K n o l l , Plaint i f f ' s group was loud and obnoxiou s , and at le a s t o n e m e m b e r of the g r o u p was insu l t i n g other customers. Knoll Depo. at 13. Afte r unsuccessf u l l y requesting Plaintiff's group to quiet down, Mr. Knoll contacted one of his priv a t e security guards (Defendant Griffin Dye) and told him to remove Plaintiff ' s gro u p from the bar. Id. at 13-14. D y e then inform e d one of t h e members o f the group, Larry McKenzie, that he was being "a problem" and would have to be walke d outside. D y e Depo. at 21. Accordin g to Plainti f f , Larry ended up on the ground w i t h Dye standing over him. M. Sheph e r d Depo. at 77. One of Plaintiff's sons, Lucas 4

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Shepherd , hollered a t Dye "What are you doing? He's jus t wanting to get his hat." Id. Then, accordin g to Plainti f f , there was a lot of pushing and shoving, with people trying to get out of t h e club. Id. at 7 8 ; see also Amy Shepherd Depo. at 20 . Plaintiff recalls that Dye then gra b b e d her son Lucas around the neck in a choke ho l d . Id. Othe r wit n e s s e s , including Lucas, r e c a l l that L u c a s ended up being thrown to the g r o u n d by one of the bouncers, possibly Dye. Whe e l e r Depo. a t 20- 2 2 ; L. Shepherd Depo. at 26, 2 9 - 3 0 . In contr a s t , Dye rec a l l s that Larry began to leave th e premises p e a c e f u l l y and that some other me m b e r s of the group began to gather up their th i n g s to leav e with him. Dye Depo. a t 23. However, as Dye and Larry were leaving the club's p a t i o , where Larry and the others had been soc i a l i z i n g , Dy e heard someone yelling from behind h i m . Id. at 2 3 - 2 4 . Dye turned around and observed Lucas, who had just entered the patio area fro m the bar, running after him. Id. a t 24. The next thing Dye s a w was "the ground." He cannot r e c a l l whethe r Lucas knocked him to the ground, or whether h e was knocked to the ground by the r u s h of other s leaving the club. Id. at 25. Accordin g to Knoll, the club's owner, the situatio n escalated, resulting in individuals within P l a i n t i f f ' s g r o u p hitting the security guards. Knoll Depo. at 19. At some point, eithe r while the party was moving outside or shortly a f t e r , officers from the Modesto Police Depar t m e n t began arriving on the scene. O n e of the fi r s t officers to arrive was Sergeant Crawford, w h o observed what he characte r i z e d as "a large melee." Crawford Depo. at 41. C r a w f o r d noti c e d eight or nine individu a l s actively engaged in fighting with security guards on the sidewalk. In r e s p o n s e , the secu r i t y guards were attempting to place handcuff s on certain individuals and trying to arrest t h e assailant s . Id. at 32. A number of police o f f i c e r s eventually responded to the s c e n e , includ i n g at least two on horsebac k . These off i c e r s bec a m e occupied w i t h the appr e h e n s i o n of various individuals and/or restorin g order to t h e scene. Accordin g to Sergean t Crawford, as he approached the crow d , his atten t i o n was drawn to a white, 5

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female a d u l t (later identified as Plaintiff), because she was on t h e back of a security officer (Dye). She a p p e a r e d to have her right arm arou n d the secur i t y officer's throat, holding him in a hea d lock. Crawford recalls that Pla i n t i f f ' s fee t were off the ground, as though s h e was "ridi n g " on the security officer' s back. Id. at 33, 46. Crawfo r d obs e r v e d that the same securi t y officer was attempting to place ha n d c u f f s on a male subject. Id. at 46-47. In respo n s e , Sergean t Crawford claims he approach e d Plaintiff , grasped her free (left) arm with his left hand, and identifie d hims e l f loudly a s a Modesto Police Officer. Id. at 33. She did not respond. Id. Plai n t i f f remained on the guar d ' s back, sc r e a m i n g : "Let go of my son." Id. at 47. Crawford believed th a t the guard was in "obvious distress " during thi s alterca t i o n , because he was in a headlock wh i l e trying to handcuff someone. Id. at 47. Crawford again yelled in Plaintif f ' s presence that he was a police officer, while still holding on to her left arm with his left hand. Id. at 49-50. Cra w f o r d then took Pla i n t i f f ' s lef t arm and pulled it up behind h e r back. Id. at 5 0 . He ordered her for a third ti m e to releas e the guard and again told her he w a s a police officer. Id. at 5 2 . Cra w f o r d then put his right h a n d on her right shoulder and pull e d it straig h t back, away fro m the security officer. Id. Her arm came ou t from around t h e guard's n e c k , and she fell backward. Id. at 53. According to Crawford, Plaintiff landed o n her feet a t first, but then stumbled and bump e d into some o n e else, knocking that person t o the ground and falling on top of that person. Id. Th a t cau s e d C r a w f o r d to lose hi s grip on her. Id. At this point, accor d i n g to Crawford, Plaintiff became h y s t e r i c a l , s c r e a m i n g about why her son was bein g arrested, flailing her arms and feet "in all directions, striking out, hit t i n g a n d kicking anybody in t h e area." Id. at 56. Crawford asserts tha t "[t]rying to gain control of [Plai n t i f f ' s ] han d s and feet was quite dangerou s at that po i n t . " Id. at 57. Crawford was stan d i n g on his feet, bending over at his waist, t r y i n g to gra b her hands and p l a c e her in handcuff s . Id. Although he was able to get one of her h a n d s , he cou l d not grab the other one. Id. That is when Officer Griepp approached. Id. Crawford waived him over to assist. Griepp was able to grab the oth e r arm. Id. She was sti l l 6

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screamin g hysterical l y and resisting arrest. She managing to pull awa y several times as they placed h e r in handcu f f s . Id. at 64-64. Crawford maintains t h a t neither officer placed his knee s on her bac k . Id. at 64. Crawford asserts that h e purp o s e f u l l y avoided doing so, because lowering him s e l f to the ground would have all o w e d her fla i l i n g arms and feet to hit his body . Id. Crawfo r d wa s al s o concerned a b o u t a nearby horse, belo n g i n g to a mounted policema n . Crawford did not want to go any lower on the g r o u n d , to av o i d potential contact with the hors e . Id. Once Pla i n t i f f was u l t i m a t e l y restrained, Officers Crawford an d Griepp escorted Plaintiff to a pat r o l car and placed her in the back seat of that car, where s h e stayed until being transpor t e d to another police vehicle for transpor t to jail. Id. at 68: 8 - 1 9 . Crawford ' s version o f events is corroborated by Knoll, w h o testified that he personally observed "the pol i c e dragging a lady off who was trying to choke [Dye]." Kno l l Depo. at 20-21. Knol l stated: "It looked l i k e she was on the pile and was tryi n g to either hit or choke him. I just caught a glimpse of it, so I don't know exactly. " Id. at 21. For his part, Dye do e s not recall anyone trying to choke him that ev e n i n g , nor does he have any recollec t i o n of Plai n t i f f . Dye Depo. at 33. Plaintif f ' s recollec t i o n of the arrest is dramatic a l l y differe n t [from] Crawford's. She asserts that she was propelled outside the club onto the sidewalk wi t h the rush of bodies leaving the club. M. Shepherd Depo. at 83. Observin g one of the security guards with his arm arou n d her son L u c a s ' neck, she yelled: "What ar e you doing to my son?" Id. The gua r d did not acknowledge her. Id. She then reached up to touch the bouncer ' s arm in order to get his attentio n because she wanted to know what he was doing to her son. Id. at 82. Then, wi t h no warning or provocati o n , someone pulled her right arm back and she fel t a pain in her shoulder. Id. at 8 8 . Then, her feet left the ground and she was slammed face first into the ground, onto her ches t . Id. at 89. Plaintiff then recalls feeling a great deal of pressure and pain in her back. Id . at 91. She felt a weight on her back and her arms were pu l l e d behind her. Id. at 92. 7

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She reca l l s that she "couldn't breathe," and her arms fel t like they were going to be pulled off. Id. at 92-93. She wa s trying to gasp for ai r and then "st a r t e d seeing stars." Id. at 9 3 . Nex t , she felt pain on her wrists. She assumes this was caus e d by the of f i c e r s putting handcuffs on her. Id. at 94. She was " y a n k e d up to [her] feet," a t which time she realized police officers were presen t . Id. at 95-96. She wa s then gui d e d to a pol i c e car. Id. at 9 6 - 9 7 . One witn e s s recalls that Crawford "jumped down onto [Pl a i n t i f f ' s ] b a c k , and [ ] had his knees in her b a c k . " Wheele r Depo. at 25. Others corrobor a t e that at least one of the officers had his knees in her back. A. Shepherd Depo. at 29; D. S h e p h e r d Depo . at 45. It is un d i s p u t e d tha t at the time of the incident , Plaintiff was over 50 yeas of age, was 5 feet, 4 inches tal l , and weighed 150 poun d s . Id. at 80. Crawford was 5 feet, 10 inches tall, and weig h e d 230 poun d s . Ultimate l y , Plaintif f was cited for a violation of Calif o r n i a Penal Code section 148 for delaying and obstruc t i n g a police officer. The police r e p o r t states : On 1-14-07 at approximately 0 0 5 1 hours I responde d to a repor t of a fight at the Copper R h i n o on 10th St. On arrival I saw a security guard attem p t i n g to handcuff a suspect on the sidew a l k (D) grabbed the security guard aroun d the neck from behind and atte m p t e d to pul l him from her son, Andrew S h e p h e r d . I o r d e r e d (D) to release the guar d and she re f u s e d . I pulled (D) by her arms away from t h e guard and she fell to the grou n d on top of a bystander. (D) began to punch and kick at anyone she could while on the g r o u n d . I tol d (D) she was under arrest a n d to stop f i g h t i n g . (D) refused and continue d to fight. (D) was handcuffed by Officer Griepp and m y s e l f . (D) booked to Stanisla u s County ja i l . Arrest R e p o r t prepar e d by Sergeant Crawford, Ex. P to Gil b e r t Decl. , Doc. 30-4 through 30-10. Doc. 43 at 2-8 , 2009 WL 839943, *1-*4 (E.D. Cal M a r . 3 0 , 2009). 8

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The Marc h 30, 2009 S u m m a r y Judgment decision also reviewed deposition evidence regarding the claims against Officers Pimental, S c o p e s i , and Oaxaca. Plaintiff cou l d

not spec i f i c a l l y rec a l l "which officers did what" : I don't know which o f f i c e r s did what. I just know one or two of t h e m threw me to the ground and wren c h e d my arms back so hard I thought they were goi n g to be rip p e d from the sockets at my shoulders and then excruciating pain in my back making m y body bow u p backwards and being unable to breat h . Then bein g yanked up by the handcuffs on my wr i s t s , shoved to a police care (sic) and thrown i n t o the back of it. When I tried to convey m a n y times th e pain I was in a n d tha t I couldn't breath, at one point I was told, "If I could op e n my big mo u t h , I could breath." and while be i n g transpor t e d in the police car, I stated t h e bouncer s h o u l d not have touched my son; the officer rep l i e d "Maybe you should have stayed o u t of our to w n . " 2009 WL 839943 at *5 (record citations omitted). No

person t e s t i f i e d tha t any other officer interacte d with Plaintif f , except Cr a w f o r d and Griepp. The Marc h 30, 2009 D e c i s i o n rejected Plaintiff's argument that Piment a l , Scopesi, and Oaxaca could be h e l d liable f o r failing t o intercede on her behalf, re a s o n i n g that the undisputed facts did not support imposit i o n of liabilit y on this th e o r y : Plaintif f has not id e n t i f i e d any facts suggesti n g any of th e three officers were in any way invo l v e d in her physical restraint and/or arrest. Instead, she argues that Officers Pimental , Scopesi, a n d Oaxaca must have been aware th a t she was b e i n g subjected to "constit u t i o n a l l y un r e a s o n a b l e force during her arrest," but "did no t h i n g to prevent the ab u s e " and ther e f o r e should be "subject to personal liabilit y for their failure to act." Doc. 342 at 8. In su p p o r t of her theory of liability, 9

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Plaintif f cites Byrd v. Clark, 783 F.2d 1002, 1007 (11 t h Cir. 1986 ) , abrogation on other grounds recognized by Nol e n v . Isbell, 207 F.3d 1253, 12 5 5 - 5 6 (11th Cir. 2000 ) , which held that when "a police offic e r , whether supervisory or not, fai l s or refuse s to intervene when a constitu t i o n a l viola t i o n such as an unprovoked beating takes place in his presence, the officer is direc t l y liable u n d e r Section 1983." Defendan t s rejoin by citing a line of California cases wh i c h stand fo r the proposition that police o f f i c e r s do n o t generally owe a duty of care to protect memb e r s of the public, unless a special relationship is established. For example, Davidson v. City of Westminster, 32 Cal. 3d 197 (1982), held that officers conducti n g surveilla n c e of a business were under no duty to warn an i n n o c e n t third party known to be alone on the prem i s e s of the arrival of a suspecte d assailant. Neither the decision to conduct the surveill a n c e , the observation of the potentia l assailant in the victim's presence, nor the recognition of the assailant as the likely p e r p e t r a t o r o f a previous assault created a "speci a l relations h i p " between the victim and the poli c e that gave rise to a duty to act or warn. Id . at 206-207 ; see als o Williams v. State, 3 4 Cal. 3d 18 (1983) (California sta t e highway patrol offic e r has the right, but not the duty to investig a t e accidents, or come to the aid of stranded motor i s t s , and that sto p p i n g to aid a n injured or stranded motorist does not, in itsel f , create a special relationship which gives ri s e to an aff i r m a t i v e duty to secure informat i o n or prese r v e evidence for civil litigati o n between t h e motorist and third parties) . But, the Ninth Circu i t recognizes that "police officers have a duty to intercede when their fellow o f f i c e r s viol a t e the constitutional rights o f a suspect or other citizen." Cunningh a m v. Gates, 229 F.3d 1271, 1 2 8 9 (9 t h Cir. 200 0 ) . . . . "[O]fficer s can be held liab l e for fail i n g to inter c e d e only if they had an opportun i t y to inter c e d e . " Cunningham, 229 F.3d 1289. If an officer was not present, or had "no realisti c opportunit y to intercede," no liabilit y will attac h . Id. There is scant autho r i t y applying "fa i l u r e to interced e " liability in the context of the use of exces s i v e force. In the corrections context, a prison guard has a n affirmative duty to 10

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interven e on behalf of a prisoner if other officers are violati n g the prisoner's constitu t i o n a l right s in his presence, or i f he knows th a t the priso n e r ' s rights are being violated . Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir . 1995). How e v e r , there must be a causal connecti o n between t h e defendant and the deprivat i o n of a con s t i t u t i o n a l right. Johnson v. Duffy , 588 F.2d 7 4 0 , 743 (9th Cir. 1978). In the poli c i n g context , where defendant officers failed t o act in the presence of an alleged use of exces s i v e force b y other officers, "factors such as whether the defendant had reasonable time to intervene, and whether the defendant had tacitly collaborated with the officers using force sh o u l d be cons i d e r e d . " Garcia v. Grimm, 2007 WL 2778360, *6 (S.D. Cal.2007) (citing O'Neill v. Krzeminsk i , 839 F.2d 9, 11 (2d C i r . 1988). T h e reasoning of the Second Circuit in O'Neill is instructi v e : In this case, the cl a i m that [Officer] Conners became liabl e for use of excessive force by failing to intercede must be assessed separately with respect to the acts of [Offi c e r s ] Fioril l o and Krzeminski in striking O'Neill and the act of Krzeminski in dragg i n g O'Neill across the floor by his throat. Even when th e evidence is viewed in the ligh t most favor a b l e to the plaintiff, there is insufficien t evidence to permit a jury rea s o n a b l y to c o n c l u d e that Conners' failure to intercede was a pr o x i m a t e cause of the b e a t i n g . The three blows were struck in such rapid succes s i o n that Conners had no realisti c opportunit y to attempt to prevent them. Th i s was not a n episode of sufficient duration to support a conclusion that an officer who stood by without trying to assist t h e victim be c a m e a tacit collabor a t o r . With r e s p e c t to the subsequent dragging of O'Neill across the floor, however, the case ag a i n s t Conners is adequate to create a n issue of fact for the jury. Ha v i n g seen th e victim beaten, he was alerted to the need to protect O'Neill from further abuse. Thoug h not a guarantor of O'Neill' s safety in the face of brutality administ e r e d by othe r officers, Conners can be found liable for deliberately choosing not to m a k e a reason a b l e attempt to stop Krzemins k i . Id. at 11-12. Critic a l l y , the evidence in O'Neill subjected th e officer to liability for 11

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"deliber a t e l y choosi n g not to make a reasonable attempt" to stop ano t h e r officer's allegedly unconsti t u t i o n a l con d u c t because he actually observed that conduct. Here, in contrast, t h e relevant testimony of Oaxaca, Pimental, an d Scopesi, which is undisput e d , indicate s that none of the three officers observed Cr a w f o r d and/or Griepp placing Plaintif f under arre s t . Officer Oaxaca, who was Griepp's part n e r at the time of the incident , arrived on the scene with Griepp i n their poli c e cruiser. As soon as they got out of the car, Griepp went to assist Crawford , and Oaxaca turned in the other directio n to "protec t them from the surrounding crowd." Oaxaca Depo. at 2 0 . O a x a c a did not see Griepp a n d Crawford arrest Plaintiff because he had his back to them the entire time. Id. Plaintif f emphasizes that, according to Crawford ' s version o f the event, Plaintiff was screamin g hysterical l y as she was being handcuff e d . Plaintiff argues that even if Oaxaca had his back to Plai n t i f f during the arrest, Oaxaca m u s t have hea r d her screaming, as it is undisput e d that he w a s positioned only a short distance from the si t e of Plaintiff's arrest. However, Oaxaca was not asked during his depositi o n whether h e heard Plaintiff screaming over the noise of th e melee. Plaintiff's claim is based on no more than speculation. Plaintiff has no f a c t s to supp o r t her assertion that Oaxaca a c t u a l l y obse r v e d (either visually or auditori l y ) the alle g e d l y unconstitutional conduct. Accordingly , no reasonable finder of fact cou l d conclude that Oaxaca had a duty to interven e on Plainti f f ' s behalf. Oaxaca is entitled to summary judgment on the First Cause of Actio n . Officer Pimental, wh o responded to th e Copper Rhino on horseback, testified at his deposition that he observed Pla i n t i f f on top of a "dog pile" of people. Pim e n t a l Depo. 19-20. He observed Sergeant Cr a w f o r d arrive on the scene, but did not have an opportunity to observe any of Crawf o r d ' s conduc t toward Plaintiff because his atte n t i o n was di v e r t e d toward other people coming o u t of the Co p p e r Rhino. Among other things, Pimental was distracted by another member o f Plaintiff' s group, Melody Wheeler, who was tryi n g to move a r o u n d his horse toward the pile of people. Id. at 22. Pimental i n s t r u c t e d 12

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her not to move arou n d his horse and to back away, bu t she did no t comply. Id. at 23. Pimental grabbed Whe e l e r and escorted her away, at which time he han d e d her off to a ground officer to place her in the car for h i m . He then placed W h e e l e r under arrest. Id. Agai n , the r e is no evide n c e which wo u l d permit a reasonable finder o f fact to co n c l u d e that Pimental had a duty to intervene on Plaintiff's behalf. Officer Scopesi, who was also on horseback, trying t o control th e crowd, observed Plaintiff "on the back of a se c u r i t y officer" with her "arm aro u n d [his] ne c k from behind." Scopesi Depo. at 22. However , that was all he observed in conne c t i o n with P l a i n t i f f . He did not see officer Crawford app r o a c h or take any actio n s in connecti o n with the arrest, because he was dealing with the cro w d . Id. at 25. No reasonable finder o f fact could conclude that Scopesi had a duty to intervene on Plaintiff's behalf. Plaintif f has no evi d e n c e suggesting that Officers Oaxaca, Pim e n t a l , or Scopesi observed Crawford and Griepp' s conduct in connection with her arre s t . Defendan t s Oaxaca, Pimental, and Scopesi are entitled to summary judgment on the [Section 1983] Cause of Action. 2009 WL 839943 at *6 - * 8 . The March 30, 2009 Deci s i o n

also con c l u d e d that neither Oaxaca, Pimental, nor Scopesi could "p o s s i b l y be l i a b l e for assault and battery upon Plaintif f , as it is undisputed that none of them touched her." I d . at *8 n.3 .

Defendan t s Crawford and Griepp's motion for summary judgment on the § 19 8 3 excessive force claim on q u a l i f i e d immunity grounds was denied because material fact s were in dispu t e : Here, a melee, a pot e n t i a l riot, is a dangerous disturba n c e . However , there are considerable factual disputes abo u t the nature of Plaintiff's actions prompting th e use of force and whether she resi s t e d arrest. The reasonableness of the 13

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officers ' belief tha t their conduct was lawful cannot b e determined on summary judgment. Viewing the facts in a light most favorable to plaintif f , if she wa s onl y tr y i n g to get th e security guard's att e n t i o n to make a request and did not resist arres t , a reasonable finder of fact cou l d conclude that the force applied in this cas e was object i v e l y unreasonable under the circumst a n c e s . This is exactly the ty p e of factual dispute that is not amenable to summary adjudica t i o n . Id. at * 1 4 . Although the state l a w assault and battery claims against Crawford and Griepp were not directly add r e s s e d in the M a r c h 30, 200 9 Decision, a similar conclus i o n can be impli e d , as these state law claims would have turne d on the s a m e , dispute d material facts. III. DISCUSSI O N As a gen e r a l rule, a prevailing defen d a n t i s entitled to an at t o r n e y ' s fee award under a civil rights f e e shifting statute onl y if the plaintiff's claims w e r e "frivolo u s , unreason a b l e , or without foundation, even though n o t brought i n subjective bad faith." Christia n s b u r g Garme n t Co. v. EEOC, 4 3 4 U.S. 412, 421 (1978). Because Con g r e s s intended to promote vig o r o u s

enforcem e n t of civil rights laws, "a distri c t cou r t mu s t exercise caution in awarding fees to a prevailing defendan t in order t o avoid discouraging legitima t e suits that may not be `air t i g h t . ' " See EEO C v. Bruno's The

Restaura n t , 13 F.3d 285, 287 (9th Cir. 1993 ) . 14

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Supreme Court warned in Chris t i a n s b u r g agai n s t the "temptat i o n to engag e in post hoc reasoning by co n c l u d i n g that, be c a u s e a plai n t i f f did not ultimately prev a i l , his action m u s t have bee n unreasonable or without foundati o n . " 434 U. S . at 421-22.

Perhaps for this rea s o n , Defendants do not rely directly on a federa l fee shifting statute, and i n s t e a d base the i r fee petit i o n on Federal Rules of Civil Procedur e 37 and 11, as well as California Code o f Civil Procedur e § 1038. T h e s e provisions must be appli e d in

the usua l manner, no t w i t h s t a n d i n g the general disincli n a t i o n for a w a r d i n g fees to prevailing ci v i l rights d e f e n d a n t s . Roadw a y Exp., Inc. v. P i p e r , 447 U . S .

752, 763 (1980) (rej e c t i n g argument that civil ri g h t s fee shifting statutes su p p l a n t other mechanisms of ci v i l procedur e designed to sanction counsel for "dilat o r y conduct" ) . A. Rule 37( c ) ( 2 ) Sancti o n s . Defendan t s assert th e y are entitled to an attorne y fees awa r d pursuant to Federal Rule of Civil Proc e d u r e 37(c)(2) , because Pl a i n t i f f denied certain reques t s for admissio n regarding her allegations o f liab i l i t y . 96 at 10 - 1 1 . Througho u t her disco v e r y responses, Plaintiff mad e it 15 Doc .

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clear th a t she "d[id ] not know which officers did what" to her p e r s o n . See, e.g., Re s p o n s e s to Interrogatorie s Plaintiff

No. 1, 7 , 8, 9 & 10, quoted in Doc. 96 at 6-7.

refused to admit to the following requests for ad m i s s i o n served b y Officer Oa x a c a , one of the "uninvolved" officers : REQUEST FOR ADMISSIO N NO. 1: Admit th a t Officer 0 a x a c a 3 did not contact Plaintif f at any tim e during the incident giving rise to this litigat i o n . RESPONSE TO REQUEST FOR ADMISSION NO. 1: Deny. REQUEST FOR ADMISSIO N NO. 3: Admit th a t Officer O a x a c a did not exercise any force ag a i n s t Plaint i f f at any time regarding the inci d e n t giving rise to this litigation. RESPONSE TO REQUEST FOR ADMISSION NO. 3: Deny. REQUEST FOR ADMISSIO N NO. 4: Admit th a t Officer O a x a c a is not liable to you for the incident giv i n g rise to this litigation. RESPONSE TO REQUEST FOR ADMISSION NO. 4: Deny. See Doc. 96 at 7. The other "uninvolved" officers ser v e d

similar requests for admission, which Plaintiff l i k e w i s e denied. Id.

A party who fails to admit a request for admissio n risks an award of ex p e n s e s , including attorneys' fees and costs, i n c u r r e d by t h e other side in proving the matter 16

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at trial . provides :

Fed . R. Civ. Proc. 37(c)(2).

Ru l e 37( c ) ( 2 )

Failure to Admit. If a party fails to admit what is reque s t e d under R u l e 36 and if the requesting party la t e r proves a document to be genuine or the matt e r true, the requesting party may move that the party who failed to admit pay the reasonab l e expenses, including attorney's fees, incurred in making t h a t proof. The court must so order un l e s s : (A) the request was held objectionable under Rule 36( a ) ; (B) the admission so u g h t was of no substantial importan c e ; (C) the party failin g to admit had a reasonable ground t o believe th a t it might prevail on the matter; or (D) ther e was other good reason for the failure to admit . "The Rul e mandates a n award of expens e s unl e s s an exceptio n applies." Marchand v. Mercy Medi c a l Ce n t e r , 22

F.3d 933 , 936 (9th C i r . 1994). Enforcem e n t encourag e s attorneys and parties to identify undisputed issues early to avoid unnecess a r y costs. F a i l u r e to identify those issues w a s t e s the re s o u r c e s of parties and courts. The Fede r a l Rules are intended "to secure the just, sp e e d y , and in e x p e n s i v e determination of every ac t i o n . " Fed. R. Civ. P. 1. Parties may not view requests fo r admission as a mere procedur a l exercise requiring minimally acceptab l e conduct. They should focus on th e goal of the Rules, f u l l and efficient discovery, not evas i o n and word play. Id. (in t e r n a l citations and footnote omitted). 17

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Defendan t s maintain that the matters denied by Plaintif f were direc t l y determined by the March 3 0 , 2009 summary judgment ruling that the five uninv o l v e d offic e r s were not involved in Plaintiffs arrest, did not e x e r c i s e any forc e against Pl a i n t i f f , and were not liable to Plaintif f for the in c i d e n t giving rise to this litigati o n . Doc. 43 at 10-16.

In Marchand, r e l i e d upon by Defendant, plai n t i f f became a quadriplegi c after doctors failed to dia g n o s e a fracture in his spin e . A jury found several medi c a l

professi o n a l s neglig e n t in connection with their provisio n of care to plaintiff. One defendant, D r .

Farris, was asked to admit: "That the care and tr e a t m e n t provided ... by [Dr. ] Farris failed to comply wit h the applicab l e standard of care which existed ... on that date." Farris respo n d e d , "denied." 22 F.3d at 9 3 7 .

Farris a r g u e d that R u l e 37(c) sanctions should no t be imposed because he h a d "reasonable ground to beli e v e " that he might prevai l on the negligence issue. Civ. P. 37(c)(3). F e d . R.

A f t e r examining the evidence, the

Ninth Ci r c u i t conclu d e d that, even though one exp e r t testifie d "that Farr i s satisfied the standard of care in all resp e c t s , " Farri s , "knowing he removed the ce r v i c a l collar b e f o r e obtain i n g a full series of cervical spine 18

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x-rays, could not un d e r the circumstances have re a s o n a b l y denied h i s negligenc e . " Id.

Likewise , Farris was also asked to admit: "Marchand's quadripl e g i a was cau s e d by movement of his spine that could ha v e been avoi d e d if proper immobilization had been maintain e d after he was admitted." answered : Defendan t s object to this Request for Admission on the g r o u n d s that it is compound, a m b i g u o u s , and beca u s e the use of the phrase "avoidable movement " is vague a n d undefined. Without waiving such objecti o n s , the Request for Admissio n , couched i n its present form, must be denied. Id. The Ninth Circu i t concluded that Rule 37 sanctions Id. at 938. Farris

were app r o p r i a t e : [T]o aid the quest f o r relevant information parties should not s e e k to evade disclosure by quibblin g and object i o n . They should admit to the full e s t extent p o s s i b l e , and explain in detail w h y other por t i o n s of a request may not be admit t e d . Farris c o u l d have pr o v i d e d frank answers to these re q u e s t s , whic h were clearly designed to establis h causation. Or he could have "set forth in detai l the reason s why [he could not] truthful l y admit or deny the matter." Fed. R. Civ. P. 36(a). He di d nei t h e r , relying on unfounde d objections to the wording, instead of admittin g the uncont e s t a b l e question: were Marchand ' s injuries caused by movement of the spine th a t could hav e been avoided had proper immobili z a t i o n been maintained? Id. (int e r n a l citati o n omitted).

1.

Were Plaintiff's Denials Ju s t i f i e d ?

Here, Pl a i n t i f f deni e d the requests for admission 19

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concerni n g bodily co n t a c t by the "uninvolved offi c e r s , " after al l the officers involved had been de p o s e d . Compare Doc. 96 at 5 (indicating all office r depositions were com p l e t e d by Au g u s t 8, 2008) wit h Doc. 96-2, Ex. 5 (Plainti f f ' s October 17, 2008 responses to reques t s for admissio n ) . At that time, Plaintiff possessed no

evidence that any of the uninvolved officers touc h e d her person, or played a role in her physical ar r e s t , while all of t h e accused " u n i n v o l v e d " officers testifie d at their de p o s i t i o n s th a t they had no physical conta c t with Plaintif f during the arrest. In light of these f a c t s and

Plaintif f ' s clear an d repeated explanation in her interrog a t o r y respon s e s that she had no way of kn o w i n g whether any particul a r officer had touched her be c a u s e she coul d not see "w h i c h officers did what," Plai n t i f f ' s denial o f the reques t s for admission concerning b o d i l y contact by the "unin v o l v e d officers" was unjustified. The issu e of sanctio n s will be addressed after al l the challeng e d responses to requests for admission ar e examined . As for t h e requests that Plaintiff admit that the uninvolv e d officers were "not liable to [her] for the incident giving rise to this litigation," this seeks a conclusi o n of law an d Plaintiff responded. 20 Plain t i f f

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"had a r e a s o n a b l e gr o u n d to believe that [she] mi g h t prevail on the matte r . " Fed. R. Civ. P. 37(c)(2) ( C ) .

She argu e d that the "uninvolved officers" could b e liable on a fai l u r e to inte r c e d e theory. Although her a r g u m e n t

was ulti m a t e l y rejec t e d , it was not entirely base l e s s . Her theo r y was that, accepting her facts, the oth e r officers on the scen e observing excessive force u s e d on her by C r a w f o r d and Griepp, should ha v e acted to prote c t her from injury by s t o p p i n g their actions that in j u r e d her. Sa n c t i o n s are not warranted in connection w i t h this

request for admissio n . A simila r result is justified for Plaintiff's den i a l of reque s t s for admi s s i o n as to the reasonableness of force us e d and Defen d a n t s Crawford and Griepp: REQUEST FOR ADMISSIO N S NO. 8: Admit th a t the force used by Defendant officers in arres t i n g you was reasonable. RESPONSE TO REQUEST FOR ADMISSIONS NO. 8: Deny. Doc 96-2 , Ex. 6 (Pla i n t i f f ' s Response to De f e n d a n t Cit y of Modes t o ' s Request for Admissions). She was al s o asked

to admit the conclus i o n of law that the two offic e r s were not liab l e : REQUEST FOR ADMISSIO N NO. 5: Admit th a t Officer C r a w f o r d is not liable to you for the incident giv i n g rise to this litigation.

21

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RESPONSE TO REQUEST FOR ADMISSIONS NO. 5: Deny. Doc 96-2 , Ex. 7 (Pla i n t i f f ' s Responses to Defenda n t s Crawford ' s and Griep p ' s Requests for Admissions). Plaintif f "had a rea s o n a b l e ground to believe tha t [she] mi g h t prevail on the matter." 37(c)(2) ( C ) . Fed. R. Civ. P.

She ga v e a different description of her

conduct and the exce s s i v e and violent nature of f o r c e used aga i n s t her. disputed . T h e s e facts were categorically

Liability issues turned on resolution of the The excessive

two conf l i c t i n g versions of the encounter.

force cl a i m survived summary judgment, because ot h e r witnesse s in part co r r o b o r a t e d her description as facts and infe r e n c e s had t o be interpreted in favor of Plaintif f . The jury did not accept Plaintiff's v e r s i o n

and ulti m a t e l y found for defendants. Plaintif f ' s only bas i s to deny the uninvolved officers ' requests t h a t she admit that they did n o t have any phys i c a l contact with her was based on her in a b i l i t y to ident i f y the numb e r and identity of officers w i t h whom she inte r a c t e d . discover y . How e v e r , this is the purpo s e of

All othe r challenged denials were jus t i f i e d .

2.

Rule 37 Sanctions Are Not A p p r o p r i a t e .

Defendan t s are entit l e d to an award of "reasonabl e expenses " incurred t o prove that Officer Pimental ' s , 22

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Oaxaca's , and Scopes i ' s physical contact with Pla i n t i f f was none x i s t e n t to m i n i m a l . Depositions had alre a d y been

taken pr i o r to Plain t i f f ' s response to the reques t s for admissio n . No depos i t i o n costs are recoverable.

In cases of this nat u r e , defense counsel was required to spend time review i n g the depositions of all wi t n e s s e s to deter m i n e the ext e n t of any physical contact b e t w e e n Plaintif f and Office r s Pimental, Oaxaca, or Scope s i . Here, ho w e v e r , no ev i d e n c e , e.g., relevant passag e s from the offi c e r ' s deposition testimony de m o n s t r a t i n g that they nev e r came into contact with Plaintiff, was presente d to the cou r t as part of a motion for su m m a r y judgment and associa t e d statements of fact. Plai n t i f f

had no e v i d e n c e of a n y kind as to these three off i c e r s , except t h a t they wer e on the scene. Defendan t s ' motion f o r summary judgment included two paragrap h s on the su b j e c t of the uninvolved offic e r s : Plaintif f bears the burden of stating sufficient facts to support a c l a i m against every named Defendan t . To the ex t e n t a Plaintiff fails to meet thi s burden, he r claims may be challenged by a Mot i o n for Summ a r y Judgment, which may be granted if the plead e r is unable to produce facts su p p o r t i n g the claims plead. (De La Cruz v. Torme y , 582 F.2d 45, 64 (9th Cir. 1978).) The basic pl e a d i n g stand a r d for civil rights complain t s calls for inclusion of clear, factual allegati o n s in suppo r t of each cause of action, and that such allega t i o n s are not vague or based on mere conclusions. (Ivey v. Board of Regents, 673 F.2d 266 (9th Cir. 19 8 2 ) ; Sherman v. Ya k a h i , 23

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549 F.2d 1287, 1290 (9th Cir. 1977).) Claims may be dismi s s e d because they fail to allege sufficie n t facts to support any cognizable legal claim. ( S m i l e c a r e De n t a l Group v. Delta Dental Plan of Cal., Inc., 88 F.3d 780, 783 (9th C i r . 1996).) The basic pl e a d i n g standard for civil rights c o m p l a i n t s ca l l s for inclusion of clear, factual allegations in support of each cause of action, and that suc h allegations are not vague or based on mere con c l u s i o n s . (Ivey, 673 F.2d at 266; She r m a n , 549 F. 2 d at 129 0 . ) Here, it is importan t to note what the factual allegati o n s in the C o m p l a i n t do not say. The allegati o n s do not d e s c r i b e with particularity the "wro n g d o i n g " by any of the five officers. The Comp l a i n t merely alleges that the five officers were present during the melee in w h i c h she was arrested. Fu r t h e r , [Plaintiff's] own allegati o n s confirm that only two officers (Officer s Crawford a n d Griepp) were involved in [Plainti f f ' s ] arrest . (Plaintiffs Complaint at 7 10.) Thi s is further confirmed by [Pl a i n t i f f ' s ] own test i m o n y and re s p o n s e s to written discovery wherein she confirms to have no facts or knowledg e pertaining to any improper allegations by any o f the five u n i n v o l v e d officers. [Plainti f f ' s ] failur e to allege any facts to support her claims as against the uninvolved five off i c e r s (Offic e r s Angarole, Musto, Pimental , Scopesi or Oaxaca) require Summary Judgment to be grant e d on each of their behalf. Doc. 30- 2 , at 9-10. The port i o n of Defen d a n t ' s separate statement dedicate d to this issue adds little:

24

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Doc 30-3 at 2. Def e n d a n t s ' Response dedicated a larg e

section to rebutting Plaintiff's failure to inter c e d e theory, but containe d no new argument or facts co n c e r n i n g the simp l e factual i s s u e of whether Officers Pime n t a l , Scopesi, and/o r Oaxaca ever touched Plaintiff. Doc. 34.

Instead, the court h a d to expend considerable judicial resources r e v i e w i n g the record for relev a n t evidence . The resul t of this effort, which is su m m a r i z e d

and anal y z e d in the March 30, 2009 De c i s i o n , demonstra t e d that the undisputed evidence supported the conclu s i o n that Off i c e r s Piment a l , Scopesi, and/or Oaxaca ne v e r came into phy s i c a l contac t with Plaintiff. Given that

Defendan t s provided essentially no record evidenc e relevant to this inq u i r y and gave the court no assista n c e in their papers, it is reasonable to conclude that they 25

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expended no resource s "proving" the lack of physi c a l contact between Plai n t i f f and Pimental, Scopesi, and/or Oaxaca; rather, the Court did this wo r k and analysis. Defendan t s ' request for R u l e 37(c) sanction s is DENIED. B. Rule 11 Sanctions. Alternat i v e l y , the u n i n v o l v e d officers move to recover their defens e costs as sanctions under Fe d e r a l Rule of Civil Proced u r e 11, on the ground that Pl a i n t i f f continue d to prosecu t e her case against the m desp i t e clear ev i d e n c e confi r m i n g the five officers were "uninvol v e d " in her arrest and inferentially pres e n t e d a "pleadin g , motion, o r other paper that was not su p p o r t e d by evide n c e . " Id. at 11- 1 3 . This motion fails f o r the

same rea s o n that Plaintif f was entitled to deny t h e uninvolv e d officers' requests for admission regar d i n g liabilit y . Plaintif f argued that the "uninvolved

officers " could be l i a b l e on a failure to interce d e theory. Although he r argument was ultimately rej e c t e d by Sanctions a r e not

the jury , it w a s not base l e s s .

warrante d in connect i o n with her continued prosec u t i o n of claims a g a i n s t these officers. C. Californ i a Code of C i v i l Procedure § 1038. Finally, Defendants rely on California Code of Ci v i l Procedur e ("CCCP") § 1038, which auth o r i z e s a court to 26

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order re i m b u r s e m e n t of attorney's fees incurred d e f e n d i n g against any claim br o u g h t under the California To r t Claims A c t ("CTCA") upon a finding that the claim s were not brou g h t in good faith and with reasonable cau s e . Defendan t s ass e r t that Plaintiff brought her acti o n against the five "un i n v o l v e d " officers without re a s o n a b l e cause, a n d maintaine d claims against them despite the fact tha t discovery "confirmed that only two of t h e seven officers ever touche d her or were in any way involved in her arre s t . " Doc. 9 6 at 14.

Any reco v e r y of fees under CCCP § 1038 is expressly limited to expenses incurred defending against th e state law clai m s brought u n d e r the CTCA. See CCCP § 1038

(allowin g award of a t t o r n e y ' s fees "[i]n an y civi l proceedi n g under the [CTCA]...."). Before denying a

motion f o r fees brou g h t under CCCP § 1038 a trial court must fin d that a "pl a i n t i f f brought the action wi t h a good fai t h belief in the action's justifiability and with objectiv e reasonable cause." Kobzoff v. Los Angeles

County H a r b o r / U C L A M e d i c a l Center, 19 Cal. 4th 851, 86 2 (1998). The good fa i t h and reasonable cause requ i r e m e n t s

pertain not only to the action's initiation but a l s o its continue d maintenanc e . Curti s v. County of Los Angele s ,

172 Cal. App. 3d 124 3 , 1252 (1985). 27

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Here, ju s t as it was reasonable for Plaintiff to maintain her § 1983 excessive force claims agains t Officers Crawford an d Griepp, so too it was objec t i v e l y reasonab l e for her t o maintain the assault and ba t t e r y claims a g a i n s t them. The relevant facts we r e disputed.

The requ i r e d bad fai t h cannot be established. Even if, arguendo, t h e assault and ba t t e r y claims against Pimental, Sc o p e s i , and/or Oax a c a are viewed differen t l y , o n c e all witnesses and parties had been deposed, Plain t i f f should have known that there was no evidence to support a finding that any of the thr e e officers touched her or threatened to touch her i n any way. Pl a i n t i f f did not argue that Pimental, Scop e s i ,

and/or O a x a c a could be liable for assault and/or batte r y on some alternative theory not requiring physical contact or threa t e n e d physic a l contact. Accordingly, Pla i n t i f f

cannot j u s t i f y maint e n a n c e of the assault and bat t e r y claims a g a i n s t Pimen t a l , Scopesi, and Oaxaca from the close of depositions in August 2008 to the issuan c e of the summ a r y judgment decision on March 30, 2009. However, Defendants spent almost no time on this aspect o f the Summar y Judgment motion and they ha v e not reasonab l y apportion e d the time spent. DENIED. 28 The motio n is

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There is also the ma t t e r of the false arres t claim against all defendan t s that was voluntarily dismi s s e d shortly before trial . If for c e used was excessiv e in

Plaintif f ' s version was believed -- there was no reaso n for arre s t . The mot i o n is DENIED. IV. CONCLUSION For the reason s set forth above, Defendants' motion for atto r n e y ' s fees and/or sanctions is DENIED in its entirety . SO ORDER E D Dated: J a n u a r y 6, 20 1 0

/s/ O l i v e r W. Wanger Oliver W. Wang e r United States Distri c t Judge

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