Mendoza et al v. City of Vancouver et al, No. 3:2016cv05677 - Document 31 (W.D. Wash. 2017)

Court Description: ORDER denying 19 Motion for Summary Judgment. Signed by Judge Robert J. Bryan. (JL)
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Mendoza et al v. City of Vancouver et al Doc. 31 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 11 CARLOS MENDOZA, individual, and as guardian of L.M., his minor child, 12 13 14 15 16 17 18 19 20 Plaintiffs, v. CITY OF VANCOUVER, a Municipality; VANCOUVER POLICE DEPARTMENT, an agent of the City of Vancouver; MONICA HERNANDEZ and “JOHN DOE” HERNANDEZ, husband and wife, individually and the marital community thereof; BARBARA KIPP and “JOHN DOE” KIPP, husband and wife and the martial community thereof, CASE NO. 16-5677 RJB ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DISMISSAL OF PLAINTIFF CARLOS MENDOZA’S CLAIMS Defendants. This matter comes before the Court on the Defendants’ Motion for Summary Judgment 21 Dismissal of Plaintiff Carlos Mendoza’s claims. Dkt. 19. The Court has considered the 22 pleadings filed in support of and in opposition to the motion and the file herein. 23 24 ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DISMISSAL OF PLAINTIFF CARLOS MENDOZA’S CLAIMS - 1 Dockets.Justia.com 1 Plaintiffs filed this case asserting that their constitutional rights were violated when 2 Plaintiff Mendoza was arrested and Plaintiff L.M. was taken into protective custody. Dkt. 4-4. 3 Plaintiffs seek damages as well as attorneys’ fees and costs. Id. Defendants seek summary 4 dismissal of Plaintiff Mendoza’s claims under the doctrine of judicial estoppel for failing to 5 disclose the claims as an asset in his bankruptcy. Dkt. 19. For the reasons provided, the motion 6 should be denied. 7 8 9 I. RELEVANT FACTS For the sake of this motion alone, some of the following facts are taken from Plaintiffs’ Complaint (Dkt. 2-1, at 8-19), some from Plaintiff Mendoza’s bankruptcy proceeding, In re 10 Mendoza, U.S. Bankruptcy Court for the Western District of Washington case number 14-45154 11 PBS, and others from the record in this case. 12 According to the Complaint, on April 23, 2014, the Washington State Department of 13 Social and Health Services (“DSHS”) filed a dependency petition in Clark County, Washington 14 Juvenile Court alleging that Plaintiff Mendoza’s son, L.M., was dependent because of abuse 15 allegations against the child’s mother, Tara Mendoza. Dkt. 2-1, at 9. Ms. Mendoza was arrested 16 around a week later on charges of first degree assault of a child. Id. 17 The Complaint asserts that Plaintiff Mendoza, an E2 in the United States Marines, was 18 stationed at Meridian Naval Air Station in Meridian, Mississippi at the time. Dkt. 2-1, at 9-10. 19 On May 1, 2014, Plaintiff arrived in Washington on two days emergency leave. Id., at 10. He 20 was ordered to check in with check in with Swann Island Oregon Reserves Station in Portland, 21 Oregon (“Swann Island”), which was to process Plaintiff’s request for a humanitarian transfer, 22 but Plaintiff failed to arrive with the proper paperwork. Id. An official at Swann Island 23 informed Plaintiff Mendoza that he would attempt to verify Plaintiff’s paperwork by telephone, 24 ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DISMISSAL OF PLAINTIFF CARLOS MENDOZA’S CLAIMS - 2 1 but was unsure he could do so. Id. Plaintiff was concerned that he would have to leave 2 Washington, if the transfer was not approved. Id. 3 The Complaint alleges that on May 2, 2014, Plaintiff Mendoza went to the City of 4 Vancouver jail, where Ms. Mendoza was being held, and inquired after her. Dkt. 2-1, at 10. He 5 informed the front desk attendant that he may have to return to his duty station soon, and so, after 6 conferring with the supervisor on duty, the attendant told him to return at 5:00 p.m., even though 7 that was outside jail visiting hours. Id. Plaintiff did so. Id., at 11. Swann Island was able to 8 confirm Plaintiff’s need for a humanitarian transfer via telephone, and on May 3, 2014, he was 9 formally, temporary attached to Swann Island. Dkt. 2-1, at 10-11. 10 The Complaint asserts that on May 6, 2014, Plaintiff Mendoza attended a shelter care 11 hearing for his son in full dress uniform. Dkt. 2-1, at 11. Right after the hearing, Defendant 12 Vancouver Police Department Detective Monica Hernandez arrested Plaintiff at the courthouse, 13 “in front of his attorney, the court commissioner, and a courthouse full of people-for making a 14 false statement to a public servant when requesting to visit [Ms. Mendoza] on May 2.” Id. Det. 15 Hernandez accused Plaintiff of “using his military uniform for a special visit to see Tara in jail” 16 and then “marched” Plaintiff, “handcuffed in his full dress uniform from the courthouse 17 approximately three blocks away to the police station. He was detained until 11:00 p.m. at which 18 time he posted bail and was released.” Id. These charges were dismissed by the prosecutor. Id. 19 According to the Complaint, after a physical conflict between Plaintiff Mendoza and Ms. 20 Mendoza occurred, Ms. Mendoza was sentenced to jail time. Dkt. 2-1. Plaintiff Mendoza filed a 21 Petition for Declaration Concerning Validity of Marriage (asserting the Mendozas’ marriage was 22 invalid because the divorce from her first marriage was not final when they married) and 23 requested the court enter a parenting plan regarding L.M. on August 28, 2014. Dkt. 2-1, at 12. 24 ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DISMISSAL OF PLAINTIFF CARLOS MENDOZA’S CLAIMS - 3 1 A parenting plan was entered a few weeks later, prohibiting contact between Ms. Mendoza and 2 L.M. Id. 3 On September 23, 2014, Plaintiff Mendoza filed a petition for Chapter 7 bankruptcy. In 4 re Mendoza, U.S. Bankruptcy Court for the Western District of Washington case number 14- 5 45154 PBS, Dkt. 1; filed in this case at Dkt. 20, at 5-47. Plaintiff did not list any possible legal 6 claims on his schedule of assets. Dkt. 20, at 15. 7 The Complaint alleges that in late November 2014, Plaintiff Mendoza received transfer 8 orders to Camp Lejeune, in Jacksonville, North Carolina, to report by December 12, 2014. Dkt. 9 2-1, at 12. On December 4, 2014, the dependency case was dismissed. Id. Plaintiff intended to 10 move L.M. with him to North Carolina. Id. On December 8, 2014, Plaintiff moved the superior 11 court to have the no contact order between Ms. Mendoza and L.M. lifted before they left for 12 North Carolina. Dkt. 2-1, at 13. 13 The Complaint maintains that on December 10, 2014, a friend in Newburg, Oregon (just 14 over the Washington border) contacted Plaintiff and asked him to take her to the hospital. Dkt. 15 2-1, at 13. He put L.M. in the car seat, and drove over the Washington state border into Oregon. 16 Id. Defendant Vancouver Police Department Sergeant Barbara Kipp followed Plaintiff from his 17 home and over the Oregon border. Id. Officers of the Portland Police Department pulled 18 Plaintiff over and asked him if he was authorized to have L.M. Id. Sgt. Kipp arrived and 19 accused Plaintiff of attempting to take L.M. to see Ms. Mendoza. Id. The Portland officers asked 20 whether Sgt. Kipp had paperwork indicating that she was authorized to take L.M. into protective 21 custody, and she told them that she didn’t need it in cases of life and death. Id., at 13-14. L.M. 22 was taken. Id. 23 24 ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DISMISSAL OF PLAINTIFF CARLOS MENDOZA’S CLAIMS - 4 1 On December 31, 2014, Plaintiff Mendoza’s Chapter 7 case was discharged. In re 2 Mendoza, U.S. Bankruptcy Court for the Western District of Washington case number 14-45154 3 PBS, Dkt. 9; filed in this case at Dkt. 20, at 49-50. 4 According to Plaintiffs’ lawyer, sometime after April 2015, the second dependency of 5 L.M. was dismissed, and Plaintiff Mendoza and he discussed filing this lawsuit. Dkt. 26, at 1. 6 Plaintiff Mendoza states that he was not aware of the possibility of bringing a lawsuit against 7 Defendants until then. Dkt. 27, at 1. This case was filed on July 8, 2016 in Clark County, Washington Superior Court (Dkt. 2- 8 9 1, at 8) and removed to this Court on August 2, 2016 (Dkt. 1). Plaintiffs assert federal claims 10 against the Defendants for violations of both Plaintiffs’ fourteenth amendment right to familial 11 association, for violation of Mr. Mendoza’s fourth amendment right against being unlawfully 12 searched and seized, and assert “Monell-related claims.” Dkt. 2-1. They make state law claims 13 for outrage, negligent infliction of emotional distress, malicious criminal prosecution, wrongful 14 interference with family relations, false arrest, false imprisonment, and negligent investigation. 15 Id. 16 The United States Trustee that handled Plaintiff’s bankruptcy filed a declaration in this 17 case. Dkt. 22. He states that in February of this year, Plaintiff’s attorney contacted him and 18 informed him of this lawsuit. Id. On February 22, 2017, the United States Trustee filed and Ex 19 Parte Motion to Reopen Chapter 7 Case in Plaintiff Mendoza’s bankruptcy case. In re Mendoza, 20 U.S. Bankruptcy Court for the Western District of Washington case number 14-45154 PBS, Dkt. 21 12; filed in this case at Dkt. 20, at 52-53. In the motion before the bankruptcy court, the Trustee 22 stated that he “has received information concerning the existence of additional assets requiring 23 further administration” and that it was “necessary” to reopen the case “immediately so that the 24 ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DISMISSAL OF PLAINTIFF CARLOS MENDOZA’S CLAIMS - 5 1 assets may be administered.” Id. On February 23, 2017, the bankruptcy court granted the 2 Trustee’s motion and reopened the case. In re Mendoza, U.S. Bankruptcy Court for the Western 3 District of Washington case number 14-45154 PBS, Dkt. 14. As of March 31, 2017, Plaintiff 4 had not filed amended schedules. 5 According to the United States Trustee, the bankruptcy estate has signed a fee agreement 6 with Plaintiff’s lawyer, and any recovery on the claims arising from the May 2014 arrest will be 7 considered an asset of the bankruptcy estate. Dkt. 22, at 2. He asserts that the claims for the 8 December 10, 2014 events are not part of the estate because they occurred after the Chapter 7 9 bankruptcy petition was filed. Id. 10 11 12 II. DISCUSSION A. SUMMARY JUDGMENT STANDARD Summary judgment is proper only if the pleadings, the discovery and disclosure materials 13 on file, and any affidavits show that there is no genuine issue as to any material fact and that the 14 movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is 15 entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient 16 showing on an essential element of a claim in the case on which the nonmoving party has the 17 burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue 18 of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find 19 for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 20 (1986)(nonmoving party must present specific, significant probative evidence, not simply “some 21 metaphysical doubt.”). See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a 22 material fact exists if there is sufficient evidence supporting the claimed factual dispute, 23 requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty 24 ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DISMISSAL OF PLAINTIFF CARLOS MENDOZA’S CLAIMS - 6 1 Lobby, Inc., 477 .S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors 2 Association, 809 F.2d 626, 630 (9th Cir. 1987). 3 The determination of the existence of a material fact is often a close question. The court 4 must consider the substantive evidentiary burden that the nonmoving party must meet at trial – 5 e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect. 6 Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor 7 of the nonmoving party only when the facts specifically attested by that party contradict facts 8 specifically attested by the moving party. The nonmoving party may not merely state that it will 9 discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial 10 to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra). 11 Conclusory, non-specific statements in affidavits are not sufficient, and “missing facts” will not 12 be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990). 13 14 B. JUDICIAL ESTOPPEL “Judicial estoppel is an equitable doctrine that precludes a party from gaining an 15 advantage by asserting one position, and then later seeking an advantage by taking a clearly 16 inconsistent position.” Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 17 2001). Courts may consider several factors in determining whether to apply the doctrine in a 18 particular case, including whether: 1) a party's later position is “clearly inconsistent with its 19 earlier position,” 2) “the party has succeeded in persuading a court to accept that party's earlier 20 position, so that judicial acceptance of an inconsistent position in a later proceeding would create 21 the perception that either the first or the second court was misled,” and 3) “the party seeking to 22 assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on 23 the opposing party if not estopped.” Ah Quin v. Cty. of Kauai Dep't of Transp., 733 F.3d 267, 24 ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DISMISSAL OF PLAINTIFF CARLOS MENDOZA’S CLAIMS - 7 1 270 (9th Cir. 2013)(citing New Hampshire v. Maine, 532 U.S. 742, 749-50 (2001)). “Additional 2 considerations may inform the doctrine's application in specific factual contexts.” New 3 Hampshire, at 750-51. “In the bankruptcy context, the federal courts have developed a basic 4 default rule: if a plaintiff-debtor omits a pending (or soon-to-be-filed) lawsuit from the 5 bankruptcy schedules and obtains a discharge (or plan confirmation), judicial estoppel bars the 6 action.” Ah Quin, at 271. 7 In his response to the motion, Plaintiff Mendoza asserts that because the bankruptcy estate 8 has been reopened to include the claims resulting from Plaintiff Mendoza’s May 6, 2014 arrest 9 and detention, judicial estoppel should not be applied to bar those claims. Dkt. 24. Additionally, 10 he maintains that the claims that arose from the December 10, 2014 events are not part of the 11 bankruptcy estate, and so judicial estoppel does not apply to those claims. Id. 12 1. Claims Arising Before the Bankruptcy Petition was Filed 13 The reason judicial estoppel is generally applied in the cases where the plaintiff did not 14 disclose possible claims in a bankruptcy petition is that after “represent[ing] in the bankruptcy 15 case that no claim existed, so he or she is estopped from representing in the lawsuit that a claim 16 does exist.” Ah Quin, at 271. It may, however, “be appropriate to resist application of judicial 17 estoppel when a party's prior position was based on inadvertence or mistake.” Id. (quoting New 18 Hampshire, at 753). When, as here, “the plaintiff-debtor has reopened the bankruptcy 19 proceedings and has corrected the initial filing error,” the “narrow interpretations of ‘mistake’ 20 and ‘inadvertence’ do not apply, and those terms are given their “commonly understood 21 meanings.” Id., at 276. “The relevant inquiry is, more broadly, the plaintiff's subjective intent 22 when filling out and signing the bankruptcy schedules.” Id., at 276–77. 23 24 ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DISMISSAL OF PLAINTIFF CARLOS MENDOZA’S CLAIMS - 8 1 Judicial estoppel should not be applied to bar claims arising from the May 2014 events. 2 Plaintiff Mendoza’s failure to list these potential claims in his bankruptcy petition were a result 3 of inadvertence and or mistake. In his Declaration filed in opposition to the motion, Plaintiff 4 Mendoza states that he “truly never thought about [this] lawsuit having an effect on his 5 bankruptcy” and that he “would never intentionally deceive any court whether it be bankruptcy 6 or otherwise.” Dkt. 27, at 2. Defendant points to no evidence to the contrary. The bankruptcy 7 case had now been reopened and so Plaintiff is not now taking an inconsistent position with the 8 bankruptcy court. Moreover, there is no showing that the bankruptcy court’s prior acceptance of 9 Plaintiff’s representations under bankruptcy law (that he had no cause of action against the 10 Defendants in September of 2014) would create a perception that this court would be misled if it 11 accepted Plaintiff’s current position that he had claims. Further, there is no showing Plaintiff 12 would gain an “unfair advantage or impose an unfair detriment” on the Defendants if not 13 estopped.” Ah Quin, at 270. Plaintiff’s claims based on the May 2014 events should not be 14 barred by judicial estoppel. To the extent that Defendants seek dismissal of claims based on 15 events that occurred before September 23, 2014 under the doctrine of judicial estoppel for failing 16 to disclose these claims in the bankruptcy, the motion (Dkt. 19) should be denied. 17 2. Claims Arising After the Bankruptcy Petition was Filed 18 Pursuant to 11 U.S.C. § 521(a)(1)(B)(i), a debtor is required to file “a schedule of assets 19 and liabilities.” Debtors, then, must list pending lawsuits in the bankruptcy schedules. Ah Quin, 20 at 269. Under a Chapter 7 plan, a debtor’s assets, with certain exceptions, are transferred to the 21 estate, liquidated, and the creditors are paid. Harris v. Viegelahn, 135 S.Ct. 1829, 1835 (2015). 22 Unlike a Chapter 13 bankruptcy estate, a Chapter 7 estate does not include future earnings or 23 assets acquired after the filing of the petition. Id. 24 ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DISMISSAL OF PLAINTIFF CARLOS MENDOZA’S CLAIMS - 9 1 The claims based on the December 10, 2014 events are not barred by the doctrine of 2 judicial estoppel. They were not part of bankruptcy estate, which was created on September 23, 3 2014 when the petition was filed. Harris, at 1835. Accordingly, Plaintiff Mendoza did not take 4 an inconsistent position with the bankruptcy court by failing to list them. New Hampshire, at 5 749. To the extent that Defendants seek dismissal of claims based on events that occurred after 6 September 23, 2014, under the doctrine of judicial estoppel for failing to disclose these claims in 7 the bankruptcy, the motion (Dkt. 19) should be denied. 8 9 10 11 12 13 14 15 16 17 III. ORDER Therefore, it is hereby ORDERED that: Defendants’ Motion for Summary Judgment Dismissal of Plaintiff Carlos Mendoza’s claims (Dkt. 19) IS DENIED. The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party’s last known address. Dated this 3rd day of April, 2017. A ROBERT J. BRYAN United States District Judge 18 19 20 21 22 23 24 ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DISMISSAL OF PLAINTIFF CARLOS MENDOZA’S CLAIMS - 10