Fonua et al v. The City of San Mateo et al
Filing
57
ORDER GRANTING DEFENDANTS 48 MOTION FOR SUMMARY JUDGMENT. Signed by Judge Claudia Wilken on 6/13/2011. (ndr, COURT STAFF) (Filed on 6/13/2011)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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KALAKE FONUA and KENNETH ASHTON
FONUA,
No. 09-05983 CW
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Plaintiffs,
ORDER GRANTING
DEFENDANTS’
MOTION FOR
SUMMARY JUDGMENT
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United States District Court
For the Northern District of California
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v.
THE CITY OF SAN MATEO; THE SAN MATEO
POLICE DEPARTMENT; CHIEF OF POLICE
SUSAN E. MANHEIMER; SAN MATEO POLICE
OFFICERS LEISHMAN, BOLOGNA and
BENNET; and SERGEANT MEFFORD,
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Defendants.
/
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Defendants City of San Mateo, San Mateo Police Department, San
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Mateo Chief of Police Susan Manheimer, San Mateo Police Officers
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Leishman, Bologna, and Bennet and San Mateo Police Sergeant Mefford
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move for summary judgment on all the claims in Plaintiffs’
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complaint.
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father and son.
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opposition to the motion.
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and decided on the papers.
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by the parties, the Court grants Defendants’ motion for summary
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judgment.
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Plaintiffs Kalake Fonua and Kenneth Ashton Fonua are
Plaintiff Kenneth Ashton Fonua has filed an
The matter was taken under submission
Having considered all the papers filed
BACKGROUND
At about 12:16 a.m. on May 24, 2009, a group of people waved
down Officer Tanya Neu in the parking lot of the King Center at 725
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Monte Diablo in San Mateo, California.
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men on the west side of the parking lot near the curb.
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men, Juan Pantoja had his shirt torn off.
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was bleeding profusely from his right ear, which had been bitten
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off.
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Polynesian brothers, Sisivaivai and Sione Fonua, stood on the east
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side of the parking lot, each holding the lid to a metal garbage
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can.
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wallet and the Fonua brothers told Officer Neu that they had been
United States District Court
For the Northern District of California
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She observed three Hispanic
One of the
Francisco Barajas Avina
Another man, Marco Cruz, was a witness to the events.
Two
Avina told Officer Neu that the Fonua brothers had stolen his
“jumped.”
Medics from the Fire Department arrived, treated Avina’s
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injuries and transported him to Stanford Hospital.
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Miller, Bologna and Leishman arrived a few minutes later.
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Neu spoke with Pantoja and Cruz, with Officer Bennett, a certified
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Spanish translator, interpreting.
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were walking northbound on North El Dorado when Avina told Pantoja
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that he saw some “black males” walking southbound on North El
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Dorado.
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shoved him in the shrubs.
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a full beer can, which burst open.
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into Pantoja’s left pants pocket and tried to get his wallet.
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Later, Pantoja identified Sisivaivai Fonua as the man who had
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grabbed him by the neck and thrown him in the shrubs.
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Neu examined the shrubs, she found damage consistent with Pantoja’s
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account.
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street where she smelled freshly spilled beer.
Officers
Officer
Pantoja and Cruz said that they
One of these “black” men grabbed Pantoja by the neck and
Another man hit Pantoja in the head with
One of the men began reaching
When Officer
Pantoja also directed Officer Neu to a wet area in the
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Pantoja and Cruz stated that a third “black” man attacked
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Avina and described him as the largest of the three attackers, with
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long curly hair.
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the ground and demanded his money.
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attacker, and the other two men assaulting Pantoja let him go and
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joined in the assault of Avina.
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inch piece of Avina’s upper right ear.
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in the face and, as a result, his face was bloodied, lacerated and
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swollen.
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This man grabbed Avina by the neck, pushed him to
Avina struggled against his
One of the attackers bit off a one
Avina was struck many times
Pantoja and Cruz stated that the “black” assailants got up and
United States District Court
For the Northern District of California
10
ran away back toward the King Center and that Pantoja, Avina and
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Cruz chased them to recover Avina’s wallet.
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King Center, two of the assailants grabbed garbage can lids and
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turned toward Pantoja, Avina and Cruz to strike them.
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later confirmed that the two men holding the garbage can lids, who
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were later detained in the parking lot, Sione and Sisivaivai Fonua,
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were the men who attacked him and Avina.
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continued to run eastbound.
As they approached the
Pantoja
The third male suspect
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Pantoja told Officer Neu that all of the assailants were
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“black” men and described the third person who fled as six foot one
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with a stocky build.
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identify the third suspect if he saw him again.
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men holding the garbage can lids were Polynesian, not African-
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American, Officer Neu asked Pantoja to clarify the race of the
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suspects.
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color as the two Polynesian men detained in the parking lot.
Pantoja stated that he would be able to
Because the two
Pantoja said all three assailants had the same skin
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Pantoja took Officer Neu to the area where Avina had been
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assaulted and, on the street, they found a wallet containing photos
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of Avina’s family and a one dollar bill.
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a fresh pool of blood.
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Officer Neu also observed
Avina’s cell phone was recovered nearby.
Meanwhile, Officer Leishman interviewed Sione and Sisivaivai
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Fonua.
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were walking through the park area of the Martin Luther King
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Center, when a Hispanic male punched Sisivaivai in the face.
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came to his brother’s aid.
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the face and kicked him in the neck.
Sione Fonua said that Sisivaivai had been drinking.
They
Sione
Sione admitted that he punched Avina in
After they conducted the interviews, Officer Bennett informed
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United States District Court
For the Northern District of California
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Officer Leishman that a third man had participated in the assault.
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Officer Leishman asked Sisivaivai if there was a third individual
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associated with him and Sione, and Sisivaivai replied, “I don’t
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know, he might have been.”
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Based on the evidence at the scene corroborating the
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statements of the Hispanic victims, as well as the severity of
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Avina’s injuries, Officer Leishman placed Sione and Sisivaivai
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Fonua under arrest, charging them both with robbery and conspiracy
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and charging Sione with assault with a deadly weapon and mayhem
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based on his kicking Avina in the neck and biting a chunk of flesh
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from his ear.
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Officer Leishman believed that the third man involved in the
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assault was Kenneth Fonua.
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factors: (1) Kenneth Fonua was a close relative of Sione and
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Sisivaivai Fonua; (2) Kenneth Fonua had a criminal history and was
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known to be a member of the West Side Tonga gang, as were
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Sisivaivai and Sione; (3) Kenneth Fonua had been observed by other
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officers in the presence of Sisivaivai and Sione on separate
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This belief was based on the following
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occasions several days prior to the assault; (4) Kenneth Fonua fit
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Pantoja’s physical description of the third assailant.
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that the victims had identified the three assailants as “black
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males” did not dissuade Officer Leishman from his belief that
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Kenneth Fonua was the third assailant because the victims had
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subsequently said that all three assailants generally had the same
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skin tone and the two suspects arrested at the scene, Sione and
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Sisivaivai Fonua, were Polynesian, not “black.”
The fact
To test his suspicion that Kenneth Fonua was the third
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United States District Court
For the Northern District of California
9
assailant, Officer Leishman created a “6 Pack Photo Line Up” by
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entering Kenneth Fonua’s race, age, weight, hair and eye color,
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visible tattoos and other physical characteristics into a database
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of booking photos, which generated a pool of images.
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Leishman picked the five individuals who were the closest facial
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matches to Kenneth Fonua.
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Officer
On May 24, 2009, Officers Bennett and Leishman went to
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Pantoja’s residence to conduct the “6 Pack Photo Line Up.”
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Fonua’s photograph was in the third position.
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the San Mateo Police Department Line Up Admonition to Pantoja.
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Officer Leishman signed the Photo Line Up Admonition and then
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stepped back while Officer Bennett showed Pantoja the photo line
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up.
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Fonua’s picture in the third position.
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to Officer Bennett, “That’s the guy’s face for sure, but his hair
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was lower.”
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“the hair was combed back and looked like it had gel in it.”
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Kenneth Fonua has admitted that his hair, at that time, was longer
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Kenneth
Officer Bennett read
Without prompting, Pantoja immediately identified Kenneth
Pantoja stated in Spanish
When asked what he meant by “lower,” Pantoja replied,
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than his hair appears in the photograph and he generally wore it
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tied back in a ponytail.
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that he was identifying the individual in position number 3.
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Pantoja circled the number 3, indicating
The officers thought that Pantoja’s clarification of how
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Kenneth Fonua’s hair differed reinforced his identification.
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During the time Pantoja was viewing the photographs, neither of the
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officers made any verbal or nonverbal indication of which picture
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represented the person that they suspected was the third assailant.
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After Pantoja’s identification, Officer Leishman requested
United States District Court
For the Northern District of California
10
that a warrant be issued for Kenneth Fonua’s arrest for robbery,
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battery, conspiracy and mayhem.
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Fonua approached another officer who arrested him because the
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officer was aware of Officer Leishman’s findings of probable cause.
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Before the warrant issued, Kenneth
Fifty days later, Kenneth Fonua’s attorney requested a live
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lineup, at which Pantoja was unable to identify Kenneth Fonua.
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Kenneth Fonua was then released from custody.1
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LEGAL STANDARD
Summary judgment is properly granted when no genuine and
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disputed issues of material fact remain, and when, viewing the
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evidence most favorably to the non-moving party, the movant is
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clearly entitled to prevail as a matter of law.
22
56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
23
Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.
Fed. R. Civ. P.
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1
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Neither party provides evidence of when Kenneth Fonua was
released from custody. In their motion, Defendants indicate that
he was released before the preliminary hearing. In his opposition,
Kenneth Fonua states that he was released from custody after fifty
days and after he “went to trial.” However, there is no evidence
that he was brought to trial.
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1
2
1987).
The moving party bears the burden of showing that there is no
3
material factual dispute.
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the opposing party’s evidence, if it is supported by affidavits or
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other evidentiary material.
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815 F.2d at 1289.
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favor of the party against whom summary judgment is sought.
8
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
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587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d
United States District Court
For the Northern District of California
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Therefore, the court must regard as true
Celotex, 477 U.S. at 324; Eisenberg,
The court must draw all reasonable inferences in
1551, 1558 (9th Cir. 1991).
Material facts which would preclude entry of summary judgment
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are those which, under applicable substantive law, may affect the
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outcome of the case.
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are material.
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(1986).
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The substantive law will identify which facts
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
PRELIMINARY ISSUES
I. Evidentiary Objections
Defendants object to the statements Kenneth Fonua makes in his
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opposition about attorney David King, who is representing
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Defendants in this action.
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evidentiary objections and has not relied on any inadmissible
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evidence.
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To the extent that the Court has relied on evidence to which
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Defendants object, such evidence has been found admissible and the
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objections are overruled.
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II. Standing
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The Court has reviewed these
The Court will not discuss each objection individually.
Defendants argue that Kalake Fonua, Kenneth Fonua’s father,
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lacks standing to sue because there is no cognizable theory under
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which he might recover in that he did not suffer any injury.
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Kenneth Fonua does not address this argument in his opposition and,
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thus, concedes it.
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Defendants on the claims of Kalake Fonua.
Therefore, summary judgment is granted to
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DISCUSSION
In his complaint, Kenneth Fonua asserts the following causes
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of action: (1) arrest without probable cause; (2) kidnaping;
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(3) false imprisonment; (4) intentional infliction of emotional
United States District Court
For the Northern District of California
10
distress; (5) violation of federal due process rights;
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(6) defamation; and (7) vicarious liability against Police Chief
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Manheimer and the City of San Mateo.
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I. Claims Based on Probable Cause
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Kenneth Fonua’s federal due process claim and state claims for
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false arrest and false imprisonment are all based on his arrest,
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allegedly without probable cause.
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They are addressed together.
A. Legal Standard
1. Federal Due Process Claim
Under federal law, a claim of unlawful arrest is cognizable
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under 42 U.S.C. § 1983 for violation of the Fourth Amendment's
21
prohibition against unreasonable search and seizure if the
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allegation is that the arrest was without probable cause or other
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justification.
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Larson v. Neimi, 9 F.3d 1397, 1400 (9th Cir. 1993).
25
supported by probable cause if, under the totality of the
26
circumstances known to the arresting officer, a prudent person
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would have concluded that there was a fair probability that the
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Pierson v. Ray, 386 U.S. 547, 555-558 (1967);
8
An arrest is
1
defendant had committed a crime.
2
975, 980 (9th Cir. 2010); Beier v. City of Lewiston, 354 F.3d 1058,
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1065 (9th Cir. 2004).
4
Luchtel v. Hagemann, 623 F.3d
The inquiry is not whether the suspect actually committed the
5
offense, but whether a reasonable officer would have had probable
6
cause to think that the suspect committed the offense.
Blankenhorn
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v. City of Orange, 485 F.3d 463, 475 (9th Cir. 2007).
"'[P]robable
8
cause may be founded upon hearsay and upon information received
9
from informants, as well as upon information within the affiant's
United States District Court
For the Northern District of California
10
own knowledge that sometimes must be garnered hastily.'"
11
Parks, 450 F.3d 1059, 1066 (9th Cir. 2006) (quoting Franks v.
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Delaware, 438 U.S. 154, 165 (1978)).
13
detention or false imprisonment, absent a cognizable claim for
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wrongful arrest, will not ordinarily state an independent claim
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under § 1983.
16
Hart v.
A claim for wrongful
Baker v. McCollan, 443 U.S. 137, 142-145 (1979).
Liability may be imposed on an individual defendant under
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§ 1983 if the plaintiff can show that the defendant proximately
18
caused deprivations of his federally protected rights.
19
Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of
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Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981).
21
causation must be individualized and focus on the duties and
22
responsibilities of each individual defendant whose acts or
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omissions are alleged to have caused a constitutional deprivation.
24
Leer, 844 F.2d at 633.
25
Leer v.
The inquiry into
Respondeat superior is not a sufficient basis for imposing
26
liability under § 1983.
27
Services, 436 U.S. 658, 663-64 n.7 (1978) (no liability for local
28
Monell v. New York City Dep't of Social
9
1
governments under theory of respondeat superior); Ybarra v. Reno
2
Thunderbird Mobile Home Village, 723 F.2d 675, 680 (9th Cir. 1984).
3
In order to establish liability of a supervisor, a plaintiff must
4
submit evidence showing that the supervisor proximately caused
5
deprivation of his rights, Harris, 664 F.2d at 1125, or that the
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supervisor failed properly to train or supervise personnel, which
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resulted in the alleged deprivation, that the alleged deprivation
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resulted from official policy or custom for which the defendant was
9
responsible, or that the defendant knew of the alleged misconduct
United States District Court
For the Northern District of California
10
and failed to act to prevent future misconduct.
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at 680-81; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
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2. State Torts of False Arrest and False Imprisonment
13
Ybarra, 723 F.2d
False imprisonment under California law is the "'unlawful
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violation of the personal liberty of another.'"
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of Los Angeles, 141 F.3d 1373, 1379 (9th Cir. 1998).
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is not a different tort; it is merely one way of committing a false
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imprisonment.
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false arrest or false imprisonment are: (1) the non-consensual,
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intentional confinement of a person, (2) without lawful privilege,
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and (3) for an appreciable period of time, however brief.”
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v. United States, 511 F.3d 839, 851 (9th Cir. 2007).
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not liable for false imprisonment or false arrest if they “had
23
reasonable cause to believe the arrest was lawful.”
24
Sup. Ct., 140 Cal. App. 4th 488, 510 (2006).
25
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Id.
False arrest
In California, “the elements of a claim of
Tekle
Officers are
O’Toole v.
Reasonable cause to arrest exists when the facts known to
the arresting officer would lead a reasonable person to
have a strong suspicion of the arrestee’s guilt. This is
an objective standard.
27
28
Martinez v. City
10
1
2
Id. at 511 (citations omitted).
Under California Penal Code § 847, “no cause of action shall
3
arise against any peace officer . . . , acting within the scope of
4
his or her authority, for false arrest or false imprisonment
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arising out of any arrest when . . . [t]he arrest was lawful . . .”
6
See e.g., Blankenhorn, 485 F.3d at 486-87 (arresting officers
7
entitled to immunity pursuant to § 847(b) on false imprisonment
8
claim where they had probable cause to arrest plaintiff for
9
trespassing and acted within scope of their authority).
United States District Court
For the Northern District of California
10
B. Analysis
11
As Defendants point out, the arresting officer has not been
12
named as a defendant in this action.
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arresting officer had probable cause to arrest Kenneth Fonua based
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on the fact that Defendant officers had probable cause to believe
15
that Kenneth Fonua was the third assailant involved in the attack
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upon Avina and Pantoja.
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the evidence described above.
18
more than sufficient to establish probable cause to arrest Kenneth
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Fonua as the third assailant.
20
Defendants argue that the
Defendants base their argument on all of
These factors, taken together, were
Kenneth Fonua argues that the officers did not have probable
21
cause to arrest him for the following reasons: (1) the victims
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stated that the third assailant was “black,” and he is not black--
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he is Polynesian and his skin tone is light brown; (2) Pantoja’s
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identification of him in the photo lineup must have been
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manipulated by Officers Leishman and Bennett because, at the in-
26
person lineup, Pantoja could not identify him; and (3) there is no
27
other evidence that he was involved in the assault.
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11
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First, the fact that the victims described the third assailant
2
as a “black man” does not detract from the probable cause because
3
they described all of the assailants as “black.”
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confirmed that the third assailant had the same skin tone as
5
Sisivaivai and Sione Fonua, who were positively identified as two
6
of the three assailants.
7
Sione Fonua are of Polynesian descent and have the same skin tone
8
as Plaintiff.
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that all the assailants were “black.”
The victims
It is undisputed that Sisivaivai and
Therefore, it is apparent that the victims thought
The facts that Polynesians’
United States District Court
For the Northern District of California
10
skin tone is light brown, or that Kenneth Fonua takes offense at
11
being called “black,” are of little importance to the determination
12
of whether the victims’ identification of Plaintiff was accurate.
13
Second, Plaintiff presents no evidence that Pantoja’s
14
identification of his picture in the photo lineup was tainted.
15
Finally, as discussed above, the gravamen of Kenneth Fonua’s
16
claims is whether a reasonable officer would have had probable
17
cause to think that Kenneth Fonua participated in the assault.
18
Blankenhorn, 485 F.3d at 475.
19
actually took part in the assault is not determinative of his
20
claims.
21
See
Therefore, whether Kenneth Fonua
In evaluating the validity of an eyewitness identification for
22
purposes of probable cause, the court determines whether the
23
officers employed an identification procedure so impermissibly
24
suggestive as to give rise to a substantial likelihood of
25
misidentification and, if so, whether the witness exhibited
26
sufficient indicia of reliability to protect the integrity of the
27
identification.
28
Grant v. City of Long Beach, 315 F.3d 1081, 1086
12
1
(9th Cir. 2002).
2
suggestive when it emphasizes a single individual, thereby
3
increasing the likelihood of misidentification.
4
Bagley, 772 F.2d 482, 493 (9th Cir. 1985); see, e.g., United States
5
v. Burdeau, 168 F.3d 352, 357-58 (9th Cir. 1999) (finding that
6
photo placement, hue and facial expression were insubstantial
7
differences between defendant's photograph and the others in a
8
photographic array and did not create an impermissible suggestion
9
that defendant was the offender).
An identification procedure is impermissibly
United States v.
Indicia of reliability of an
United States District Court
For the Northern District of California
10
identification from a lineup include: (1) the opportunity to view
11
the perpetrator at the time of the crime; (2) the degree of
12
attention paid to the perpetrator; (3) the accuracy of the prior
13
description of the perpetrator; (4) the level of certainty
14
demonstrated at the time of the identification; and (5) the length
15
of time between the crime and the identification.
16
at 1087.
17
The photographic lineup was not suggestive.
Grant, 315 F.3d
The officers
18
conducting the photo lineup chose photographs of men whose facial
19
characteristics closely matched those of Kenneth Fonua.
20
Dec., Ex. 5, photo lineup.
21
look Polynesian.
22
hair; three have long hair and three have short hair.
23
Id.
Leishman
Five of the six men in the photo array
All the men in the photo array have dark
Even if the lineup had been suggestive, there were indicia of
24
reliability.
25
assailant at the time of the assault, when Sisivaivai let him go to
26
join the other two in assaulting Avina.
27
immediately after the crime, Pantoja described the third assailant
28
Pantoja had
an opportunity to view the third
13
When questioned
1
as having physical characteristics consistent with those of Kenneth
2
Fonua.
3
Officer Neu that he could identify the third assailant if he saw
4
him again.
5
Pantoja was presented with the photo lineup just hours after the
6
assault.
7
Fonua from the photo array, Pantoja displayed a high level of
8
certainty, stating “that’s the guy’s face for sure.”
9
Leishman Dec. at ¶ 6.
Also, at the scene, Pantoja told
Carlson Dec., Ex. 1, Officer Neu’s Supplemental Report.
Leishman Dec. at ¶ 11.
Finally, in identifying Kenneth
Although Kenneth Fonua speculates that the officers conducting
United States District Court
For the Northern District of California
10
the photo lineup “cunningly coached” or “deliberately pressured”
11
Pantoja to choose Kenneth Fonua’s photograph, there is absolutely
12
no evidence of this.
13
inability to identify him at the subsequent in-person lineup
14
negates his identification in the photo lineup is without merit.
15
The in-person lineup is not relevant to whether Defendant officers
16
had probable cause to arrest Kenneth Fonua immediately after the
17
assault took place.
18
Kenneth Fonua’s argument that Pantoja’s
Kenneth Fonua has failed to raise a disputed issue of material
19
fact that the Defendant officers did not have probable cause to
20
arrest him.
21
imprisonment fail, his claim for kidnap also fails.
22
v. Cote, 199 Cal. App. 2d 762, 768 (1962) (because confinement was
23
incident to a lawful arrest, plaintiff could not recover for tort
24
of kidnaping).
25
Manheimer and the City of San Mateo are based upon a finding of
26
illegal conduct on the part of Defendant Officers, the claims
27
against these Defendants also fail.
28
14
Because the claims for false arrest and false
See Farnsworth
Furthermore, because the liability of Police Chief
For all of these reasons,
1
summary judgment is granted in favor of Defendants on the federal
2
claim of a due process violation and the state claims for false
3
arrest, false imprisonment and kidnaping.
4
II. Defamation and Intentional Infliction of Emotional Distress
5
Defamation is the publication of false and unprivileged
6
information which exposes the defamed person to hatred, contempt,
7
ridicule, or obloquy, or causes the person to be injured in his or
8
her occupation.
9
57 Cal. App. 4th 1134, 1140 (1996).
United States District Court
For the Northern District of California
10
See Cal. Civ. Code §§ 45, 46; Rothman v. Jackson,
The elements of a cause of action for intentional infliction
11
of emotional distress are (1) extreme and outrageous conduct
12
(2) intended to cause or done in reckless disregard for causing
13
(3) severe emotional distress and (4) actual and proximate
14
causation.
15
(1979).
16
that usually tolerated in a civilized community,” id., and the
17
distress so severe “that no reasonable [person] in a civilized
18
society should be expected to endure it.”
19
National Life Insurance Co., 10 Cal. App. 3d 376, 397 (1970).
20
Cervantez v. J.C. Penney Co., Inc., 24 Cal. 3d 579, 593
The conduct must be so extreme as to “exceed all bounds of
Fletcher v. Western
Defendants argue that they are immune from these torts
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pursuant to California Government Code § 821.3, which provides that
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a public employee is not liable for injury caused by the
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instituting or prosecuting of a judicial or administrative
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proceeding within the scope of employment, even if the employee
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acts maliciously and without probable cause.
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Defendants are correct that § 821.3 immunizes them from
liability on these claims.
Further, Kenneth Fonua presents no
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argument or facts supporting his claims for defamation or
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intentional infliction of emotional distress.
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judgment is granted in favor of Defendants on the claims for
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defamation and intentional infliction of emotional distress.
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Therefore, summary
CONCLUSION
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Based on the foregoing, Defendants’ motion for summary
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judgment is granted.
Judgment in favor of Defendants shall be
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entered separately.
The parties shall bear their own costs of
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suit.
United States District Court
For the Northern District of California
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IT IS SO ORDERED.
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Dated: 6/13/2011
CLAUDIA WILKEN
United States District Judge
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