Thompson et al v. United States of America, No. 3:2012cv00301 - Document 52 (N.D. Cal. 2013)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT by Judge Jon S. Tigar, granting in part and denying in part 37 Motion for Summary Judgment. (wsn, COURT STAFF) (Filed on 9/5/2013)
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Thompson et al v. United States of America Doc. 52 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JERRY THOMPSON, et al., Case No. 12-cv-00301-JST Plaintiffs, 8 v. 9 10 UNITED STATES OF AMERICA, Defendant. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Re: ECF No. 37 United States District Court Northern District of California 11 12 13 Defendant the United States of America (“Defendant”) has moved for summary judgment 14 in this action in which Plaintiffs Jerry Thompson and Aileen Krewson (“Plaintiffs”) bring a single 15 cause of action for intentional infliction of emotional distress (“IIED”) stemming from a search of 16 Plaintiffs’ home by United States Postal Service agents. ECF No. 37. Pursuant to Federal Rule of 17 Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds the matter suitable for 18 disposition without oral argument, and hereby VACATES the hearing currently scheduled for 19 September 5, 2013. 20 I. BACKGROUND 21 A. 22 On June 5, 2009, agents of the U.S. Postal Service searched the home shared by both Factual Background 23 Plaintiffs as part of an investigation into Plaintiff Krewson allegedly having committed workers’ 24 compensation fraud. Krewson Deposition (“Krewson Depo.”), Exh. A to Declaration of Gregory 25 S. Walston, ECF No. 47-1, at 50:16-24; Declaration of Sara Harlan, ECF No. 42, at ¶¶ 63-64. 26 Most of the remaining material facts are in dispute and are discussed infra at Part II. 27 B. 28 Plaintiffs brought this action in January 19, 2012. She makes a claim under 42 U.S.C. Procedural History Dockets.Justia.com 1 section 1982 for unlawful search and seizure; a claim of intentional infliction of emotional 2 distress; and a claim for injunctive relief against Defendants the United States of America, Special 3 Agent Patricia Ford-Smith, and Special Agent Sara Harlan. The Court dismissed all claims 4 against all defendants, with the exception of the intentional infliction of emotional distress claim 5 brought against Defendant the United States of America, which the Court construed to arise under 6 the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. ECF No. 20. Plaintiffs then 7 filed an amended complaint bringing only that claim. ECF No. 25. 8 C. 9 Since Plaintiffs’ claim arises under the FTCA, this Court has subject-matter jurisdiction 10 Jurisdiction pursuant to 28 U.S.C. 1331. United States District Court Northern District of California 11 D. 12 Summary judgment is appropriate “if the pleadings, depositions, answers to Legal Standard 13 interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 14 genuine issue as to any material fact and that the moving party is entitled to judgment as a matter 15 of law.” Fed. R. Civ. Pro. 56(c). Summary judgment must be supported by “facts as would be 16 admissible in evidence.” Fed. R. Civ. Pro. 56(e). In order to prevail, a party moving for summary 17 judgment must show the absence of a genuine issue of material fact with respect to an essential 18 element of the non-moving party’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 19 Once the movant has made this showing, the burden then shifts to the party opposing summary 20 judgment to designate “specific facts showing there is a genuine issue for trial.” Id., 477 U.S. at 21 323. The court draws all reasonable factual inferences in favor of the non-movant. Anderson v. 22 Liberty Lobby Inc., 477 U.S. 242, 255 (1986). “[A]t the summary judgment stage,” courts are 23 “not permitted to weigh evidence.” Zobmondo Entm’t, LLC v. Falls Media, LLC, 602 F.3d 1108, 24 1121 (9th Cir. 2010) 25 Where the moving party would not bear the burden of proof at trial, that party bears the 26 initial burden of either producing evidence that negates an essential element of the non-moving 27 party's claims, or showing that the non-moving party does not have enough evidence of an 28 2 1 essential element to carry its ultimate burden of persuasion at trial. See Nissan Fire & Marine Ins. 2 Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party satisfies its initial 3 burden of production, then the non-moving party must produce admissible evidence to show there 4 exists a genuine issue of material fact. Id., at 1102–03. 5 II. Under the FTCA, liability is assessed “in accordance with the law of the place where the 6 7 act . . . occurred.” 28 U.S.C. § 1346(b)(1). Under California law: 8 A cause of action for intentional infliction of emotional distress exists when there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. A defendant's conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. And the defendant’s conduct must be intended to inflict injury or engaged in with the realization that injury will result. 9 10 United States District Court Northern District of California 11 12 13 14 ANALYSIS Hughes v. Pair, 46 Cal. 4th 1035, 1050-51 (2009) (internal citations omitted). Defendant argues that Plaintiffs have not produced sufficient evidence to show that there is 15 16 a genuine issue of material fact. In her deposition, Plaintiff Krewson testified that Postal Service 17 agents, executing an invalid warrant, arrived at her home with rifles, grabbed her arms, pulled her 18 from her home, pointed a rifle at her small dog, followed her into the restroom and watched her 19 while she used the restroom, interrogated her in a vicious manner, pounded on her table, verbally 20 berated her, and yanked and pulled her around. Krewson Depo., at 45:5-7, 51:15-53:3, 56:6-8, 21 71:3-72:20, 78:11-80:2, 82:23-25, 83:7-8, 84:2, 129:23-24, 142:17-143:19. If every reasonable 22 inference were resolved in Plaintiff’s favor, this testimony could support a finder of fact’s 23 conclusion that the conduct was extreme and outrageous. Defendant has submitted significant evidence to negate Krewson’s testimony.1 For 24 25 26 27 28 Plaintiffs have filed evidentiary objections to much of Defendant’s evidence. ECF No. 48. The Court OVERRULES these objections for purposes of resolving this motion, because even assuming the evidence were to be considered, it would not entitle Defendant to summary judgment. 1 3 1 example, Defendant argues that the evidence indicates that the agents acted on a reasonable belief 2 that the warrant was valid, that video and witness evidence contradicts Plaintiffs’ account of the 3 search, and that many of the agents’ actions were reasonable precautions taken to protect officers 4 from a threat of harm. The Court does not weigh evidence or make credibility determinations, 5 however, on a summary judgment motion. 6 Defendant argues that Plaintiff’s testimony is not genuine evidence that can create a 7 material issue of disputed fact, relying primarily upon the Ninth Circuit’s statement that it “has 8 refused to find a ‘genuine issue’ where the only evidence presented is ‘uncorroborated and self- 9 serving’ testimony.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) 10 United States District Court Northern District of California 11 (quoting Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir.1996)). Almost all party testimony is self-serving, but that does not make it less genuine. The 12 evidence the Villiarimo court disregarded as “uncorroborated and self-serving” was a plaintiff’s 13 assertion about the actions of third parties, for which the plaintiff had no foundation of knowledge. 14 281 F.3d at 1059, n. 5. In Kennedy, the plaintiff’s testimony directly contradicted her prior sworn 15 statements and medical evidence. 90 F.3d at 1481. Neither of these cases require a court to 16 disregard the testimony of a tort plaintiff describing her direct experiences; in fact, at summary 17 judgment, such evidence is often to be expected. Neither Villiarimo nor Kennedy counsel against 18 allowing a plaintiff to use such evidence to defeat summary judgment. 19 The same is true of the other elements of Plaintiff Krewson’s IIED claim. If every 20 reasonable inference were resolved in Plaintiffs’ favor, and none of Defendant’s evidence were 21 weighed against Krewson’s testimony, a reasonable fact finder could conclude from Krewson’s 22 testimony that the agents acted with “intention of causing, or reckless disregard of the probability 23 of causing” Krewson severe emotional distress. Hughes, 46 Cal. 4th at 1050 (quoting Potter v. 24 Firestone Tire & Rubber Company, 6 Cal. 4th 965, 1001 (1993)). Krewson has also declared that, 25 after the search of her home, she suffers from a deteriorated mental state, fear of strangers, 26 trembling at the sight of law enforcement, constant paranoia, and extreme sleep deprivation. 27 Declaration of Aileen Krewson, ECF No. 49, at ¶ 14. A fact-finder could also reasonably infer 28 4 1 from this that she suffered from severe emotion distress that was caused by the agents’ actions. 2 Accordingly, Defendant’s motion as to Plaintiff Krewson will be denied. Defendant is entitled to judgment as a matter of law, however, on Plaintiff Thompson’s 3 4 IIED claim. An action giving rise to a valid IIED claim “must be conduct directed at the plaintiff, 5 or occur in the presence of a plaintiff of whom the defendant is aware.” Christensen v. Superior 6 Court, 54 Cal.3d 868, 903 (1991). According to Plaintiff Thompson’s own testimony, most of the 7 events in question did not occur in his presence. He was not home when the agents arrived, and he 8 came to the residence three hours later. Deposition of Jerry Thompson, Exh. C to Declaration of 9 Jonathan U. Lee, ECF No. 38-3, at 35:4. When he arrived, agents told him to walk around to the back yard, told him he could not enter his home during the search because there were weapons 11 United States District Court Northern District of California 10 inside, and used language that he found disrespectful and accusatory. Id., at 57:8-70:6. Even with 12 all reasonable inferences resolved in Plaintiffs’ favor, these interactions cannot as a matter of law 13 constitute actions “so extreme as to exceed all bounds of that usually tolerated in a civilized 14 community.” Hughes, 46 Cal. 4th at 1050-51 (quoting Potter, 6 Cal. 4th at 1001). In their 15 opposition brief, Plaintiffs have produced no evidence demonstrating a material issue of disputed 16 fact on this element. 2 The only authority Plaintiffs cite to dispute this legal requirement is Marlene F. v. 17 18 Affiliated Psychiatric Medical Clinic, 48 Cal.3d 583, 587 (1989), but that case discusses the 19 requirements for negligent infliction of emotional distress rather than IIED. After resolving all reasonable inferences in Plaintiffs’ favor, the Court concludes that no 20 21 reasonable finder of fact could conclude on the basis of applicable law that Plaintiff Thompson is 22 In its Reply Brief, Defendant argues additionally that “Plaintiffs have failed to present any evidence establishing that Defendant had any intent to injure Plaintiff Thompson or that Plaintiff Thompson suffered severe emotional distress.” Reply Brief, ECF No. 15, at 9:18-20. Defendant did not point to this lack of evidence in its motion, and therefore Plaintiffs have not had an opportunity to present whatever evidence they might have to demonstrate a triable issue on those two elements. “It is inappropriate to consider arguments raised for the first time in a reply brief.” Ass'n of Irritated Residents v. C & R Vanderham Dairy, 435 F. Supp. 2d 1078, 1089 (E.D. Cal. 2006). 2 23 24 25 26 27 28 5 1 entitled to recover on his IIED claim. Defendant is therefore entitled to judgment on that claim as 2 a matter of law. 3 III. 4 CONCLUSION Defendant’s motion for summary judgment is GRANTED IN PART and DENIED IN 5 PART. Summary judgment is granted to Defendant on Plaintiff Thompson’s claim of intentional 6 infliction of emotion distress. Summary judgment is denied as Plaintiff Krewson’s claim of 7 intentional infliction of emotion distress. 8 9 10 United States District Court Northern District of California 11 IT IS SO ORDERED. Dated: September 5, 2013 ______________________________________ JON S. TIGAR United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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