MICHAEL M. ANELLO, District Judge.
This case arises out of the alleged predatory sexual behavior of former San Diego Police Officer Anthony Arevalos. Plaintiff Jane Doe ("Plaintiff" or "Doe") was one of
On March 8, 2011, Plaintiff Jane Doe attended a Mardi Gras event in the downtown area of San Diego. At approximately 10:45 p.m., Doe left the event in anticipation of her night shift at a youth center. While proceeding out of downtown, Doe was pulled over by on-duty San Diego Police Department Officer Anthony Arevalos for failing to use a turn signal. Officer Arevalos used his lights and loudspeaker to effectuate his stop of Plaintiff. Arevalos asked Doe if she had been drinking alcohol; Doe acknowledged doing so earlier in the evening. Arevalos then asked if Doe was willing to perform a field sobriety test or a preliminary alcohol screen ("PAS") test, administered using a handheld device denoting alcohol level. Doe agreed to perform the PAS test. The test indicated that her blood alcohol content ("BAC") was .09. Doe then agreed to perform another breath test using the intoxilyzer machine located in the trunk of Arevalos' police car. The second and third tests recorded that Doe's BAC registered at .08 and .09.
After representing that Doe had failed the alcohol breathalyzer tests, Arevalos told Doe they might be able to "work something out" in order for her to avoid being arrested for driving under the influence. Arevalos asked Doe what her "ideal situation would be," and she responded to have someone pick her up. Arevalos ignored her request. Because they had been at the roadside location for "too long," Arevalos instructed Plaintiff to drive to a nearby 7-Eleven. Arevalos followed her in his patrol car. She parked in front of the 7-Eleven and Arevalos parked his patrol car next to her car, effectively blocking her in.
Arevalos came up to Doe's car window and asked Doe what she would be willing to do to get out of a DUI arrest. Doe did not suggest anything because she did not want to put any ideas in his head. Arevalos suggested that she give him her bra and panties. Doe was hesitant to give her bra, but would "if that's what he wanted." Arevalos said her panties would suffice. He gave Doe the option to take her panties off either in the car or inside the 7-Eleven bathroom. Not wanting to undress in front of Arevalos, Doe chose the bathroom.
Doe and Arevalos entered the 7-Eleven together. After retrieving the bathroom key, Arevalos opened the bathroom door, and Doe entered. To Doe's astonishment, Arevalos followed Doe into the single stall bathroom; shut the door; and positioned himself between Doe and the door. Doe then took off her pants and panties and handed the panties to Arevalos. Arevalos told Doe he wanted to see her breasts, and she pulled up her shirt and bra and exposed her breasts.
After Doe and Arevalos left the bathroom, Doe took another breathalyzer test that allegedly registered .07. Arevalos told Plaintiff he would contact her to let her know when all the paperwork was gone and she was "safe." Arevalos then released Plaintiff and allowed her to drive to her job at the youth center. After Plaintiff arrived at work, Arevalos sent her a text message stating that he would contact her at the end of the month.
While at work, Plaintiff called San Diego Police Department Officer Kelly Besker regarding the sexual misconduct;
The conversation in the first pretext call included the following exchanges between Arevalos and Doe:
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[Doc. No. 202-19.]
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[Doc. No. 202-21.]
On March 11, 2011, within 48 hours of Doe's complaint, Arevalos was arrested and taken into custody. Officer Arevalos was criminally charged and convicted on November 17, 2011, of multiple sex crimes involving multiple victims. As to Plaintiff Jane Doe, the jury found Arevalos guilty of: sexual battery by restraint, asking for a bribe, assault and battery by a peace officer, and misdemeanor false imprisonment. On February 12, 2012, Arevalos was sentenced to eight years and eight months in prison.
On February 14, 2012, Arevalos filed a direct appeal of his conviction. The state court of appeal affirmed his conviction on all counts. On February 11, 2014, the California Supreme Court denied Arevalos' petition for review, and the judgment became
On July 19, 2013, however, Arevalos filed a Writ of Habeas Corpus challenging his criminal convictions on the ground that the prosecution violated its duties under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to produce handwritten notes Doe prepared shortly after the alleged incident.
The Federal Rules of Civil Procedure provide for summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325, 106 S.Ct. 2548.
In a summary judgment motion, the moving party always bears the initial responsibility of informing the court of the basis for the motion and identifying the portions in the record "which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). The opposing party must support its assertion by:
Fed.R.Civ.P. 56(c)(1). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir.1992). The opposing party must also demonstrate that the dispute about a material fact "is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In other words, before the evidence is left to the jury, the judge needs to answer the preliminary question of "not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Id. at 251, 106 S.Ct. 2505 (quoting Schuylkill and Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)) (emphasis in original). As the Supreme Court explained, "[w]hen the moving party has carried its burden under Rule [56(a)],
In resolving a summary judgment motion, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The Court may not make credibility determinations or weigh conflicting evidence. See id. The ultimate question on a summary judgment motion is whether the evidence "presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505.
The evidence this Court may consider in resolving the parties' competing claims must be admissible: "It is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment." Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.1988); Fed.R.Civ.P. 56(c)(2). Here, the City officially objects to four exhibits offered in support of Plaintiff's summary judgment motion. However, the Court need not rule on the City's objections because the Court did not rely on the challenged evidence in deciding Plaintiff's summary judgment motion.
In its Statement of Genuine Issues in Opposition to Plaintiff's motion, the City lodges an additional objection to the contents of the pretext calls between Arevalos and Doe. The City claims that "[a]ny representations made by Officer Arevalos during the pretext calls are irrelevant and do not bear on Plaintiff's state of mind at the time of the alleged incident." [See Statement of Genuine Issues in Opposition at Nos. 8, 15, 17, Doc. No. 226-2.] Additionally, the City claims that the "contents of the pretext calls are irrelevant to the issues raised in Plaintiff's Motion for Partial Summary Judgment because they were made after the subject incident, in a controlled environment, per Plaintiff's consent." [See id. at Nos. 24-48.] The Court overrules the City's objection, as Arevalos' statements during the pretext calls are directly relevant to the issues considered throughout this motion, and the pretext nature of the call does not render the resulting conversation inadmissible.
Plaintiff first seeks to hold the City of San Diego vicariously liable for Officer Arevalos' tortious conduct. "The doctrine of respondeat superior is usually the basis of an employer's liability for injuries to third persons caused by employees' acts." 30 C.J.S. Employer — Employee § 206.
Under California's doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment. See Perez v. Van Groningen & Sons, Inc., 41 Cal.3d 962, 967, 227 Cal.Rptr. 106, 719 P.2d 676 (1986). The doctrine of respondeat superior only applies, however, if the plaintiff is able to prove that the employee's tortious conduct was committed within the scope of employment. Id. at 968, 227 Cal.Rptr. 106, 719 P.2d 676. The general rule is that where an employee commits acts of sexual misconduct during the course of his work, such acts are outside the scope of his
In Mary M., around 2:30 a.m., an on-duty uniformed police officer, Sergeant Leigh Schroyer, activated the red lights on his patrol car and stopped the plaintiff, Mary M., for erratic driving. He asked Mary M. to perform a field sobriety test; she did not perform well and began to cry. After she pleaded with the officer not to take her to jail, the officer ordered plaintiff to get in his patrol car. The officer drove plaintiff to her home and entered her house. The officer said he expected "payment" for driving her home instead of taking her to jail. She tried to get away, but the officer grabbed her hair and threw her on the couch. When she screamed, the officer covered her mouth and threatened to take her to jail. Plaintiff stopped struggling; the officer raped her and left. Mary M., 54 Cal.3d at 207, 285 Cal.Rptr. 99, 814 P.2d 1341.
Mary M. sued both the officer and the City of Los Angeles. At trial, the City offered a jury instruction regarding vicarious liability. Based on the City's instruction, the jury found the City was vicariously liable for the officer's rape and awarded a $150,000 verdict against the City. On appeal, the appellate court reversed, holding the officer's felonious act was so unusual, startling, and uncharacteristic of the duties of a law enforcement agency that it was not "foreseeable" in the respondeat superior context. The court held as a matter of law that the City could not be vicariously liable for the officer's crime. Id. at 208, 285 Cal.Rptr. 99, 814 P.2d 1341.
Mary M. then appealed to the California Supreme Court. The ultimate issue was whether the City of Los Angeles could be held vicariously liable for the officer's actions. In deciding whether the police officer was acting within the scope of his employment, the Court stated that the "test" for determining whether an employee is acting outside the scope of employment is whether "in the context of the particular enterprise, an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business." Id. at 214, 285 Cal.Rptr. 99, 814 P.2d 1341.
The California Supreme Court concluded that a city may be held vicariously for the sexual misconduct of a police officer. The court noted first that the proper inquiry was whether the risk of the employee's misconduct "was one that may fairly be regarded as typical of or broadly incidental to the enterprise undertaken by the employer." Id. at 217, 285 Cal.Rptr. 99, 814 P.2d 1341. And it further observed: "in view of the considerable power and authority that police officers possess, it is neither startling nor unexpected that on occasion an officer will misuse that authority by engaging in assaultive conduct.... Sexual assaults by police officers are fortunately uncommon; nevertheless, the risk of such tortious conduct is broadly incidental to the enterprise of law enforcement, and thus liability for such acts may appropriately be imposed on the employing public entity." Id. at 217-18, 285 Cal.Rptr. 99, 814 P.2d 1341.
Id. at 221, 285 Cal.Rptr. 99, 814 P.2d 1341.
Subsequent to Mary M., the Judicial Council of California approved CACI 3271, dealing with the scope of employment issue in cases of police misconduct. In pertinent part, the instruction provides:
CACI 3271.
Plaintiff argues that Arevalos was in the scope of his employment because he was on duty, in uniform, and continually threatened arrest throughout the encounter, thereby taking advantage of his authority as a law enforcement officer to sexually abuse Plaintiff. [See Mot. at 12-20.] The City contends that vicarious liability is a question of fact that must be determined by the jury. [See Opp. at 2-15.] Moreover, the City argues that disputed facts preclude summary judgment on this issue. Specifically, the City contends that what happened between Plaintiff and Arevalos in the 7-Eleven bathroom is far from established. Further, the City contends that Plaintiff was a willing participant in the deal and was not forced or threatened to participate. According to the City, Plaintiff made a conscious decision to negotiate with Arevalos to avoid the consequences of her decision to drink and drive.
As a preliminary matter, contrary to the City's assertion, vicarious liability need not be determined by a jury. "Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when `the facts are undisputed and no conflicting inferences are possible.'" Mary M., 54 Cal.3d at 213, 285 Cal.Rptr. 99, 814 P.2d 1341 (quoting Perez, 41 Cal.3d at 1452, 227 Cal.Rptr. 106, 719 P.2d 676). The Court thus turns its attention to whether triable issues of fact remain with respect to whether Arevalos was acting within the scope of his employment with the SDPD at the time of his encounter with Plaintiff.
In this case, the City concedes that the following facts are undisputed:
The City's contentions to the contrary are not persuasive. Primarily, the City argues that the inconsistencies in Plaintiff's story make it impossible to know what precisely happened between Plaintiff and Arevalos. For instance, the City points out that: (1) Doe testified at the criminal trial that she and Arevalos first started talking about "making a deal" at the scene of the initial traffic stop; but that (2) in her deposition she claimed that the eventual terms of the deal were negotiated outside the 7-Eleven.
Next, the City devotes two-and-a-half pages to arguing that "The Evidence Establishes that Jane Doe was not Digitally Penetrated or Raped by Anthony Arevalos." [See Opp. at 9-11.] However, Jane Doe is not claiming that she was "raped,"
Finally, the City contends that "Plaintiff was a willing participant in this deal and was not forced or threatened to participate. She negotiated freely with the officer in deciding the terms of the deal. She admitted that she knew part of the `deal' was that she was not going to get a DUI. This was what plaintiff wanted-to not get arrested for DUI." [Opp. at 13 (emphasis in original).] Again, this argument is largely inapposite to the question of whether Arevalos abused his authority as a police officer. But by stating that Plaintiff "got what she wanted" (i.e., to not get arrested), the City implicitly acknowledges that Arevalos took advantage of his ability to arrest her to elicit sexual favors from Plaintiff.
An Eastern District of California case, Barsamian v. City of Kingsburg, 597 F.Supp.2d 1054
After the kiss, it is undisputed that the officer and the plaintiff ended up in the plaintiff's bedroom. The parties dispute, however, how that occurred. According to the plaintiff, she expected the officer to leave the house after the kiss, and she immediately went to her bedroom. He followed her there. According to the officer, after the kiss, the plaintiff said she wanted to talk some more. They continued to talk in the living room where she asked him questions about his marriage and his family. He indicated he would rather not answer, told her he was leaving, and walked towards the door. At that moment, "she told me she needed to show me something and grabbed me and led me through the hallway." He went with her because he wanted to see what the plaintiff was going to show him, and the plaintiff led him into her bedroom. While both parties offered different accounts of what transpired in the bedroom, they both agree that the plaintiff performed oral sex on the officer. Id. at 1060-61.
The district court denied the plaintiff's motion for summary judgment, finding triable issues of fact as to whether "Officer Solis was exercising (or misusing) his authority as a police officer at the time the sexual act occurred or that the sexual act was a result of his use (or misuse) of authority." Id. at 1071. The court explained that, unlike Mary M., the evidence did not demonstrate that Officer Solis physically transported the plaintiff to the bedroom, and there was no evidence that he controlled her at the time of the sexual act. Id. The court mentioned the fact that there was no evidence that the officer made any threats to arrest the plaintiff or take her to jail. Based on these facts, the court concluded:
Id. at 1071.
This case is quite different. The undisputed facts demonstrate that the sexual encounter occurred while — and because — Plaintiff was directly subject to Officer Arevalos' improper use of authority. He controlled her throughout the encounter, consistently reiterating his ability to arrest her for a DUI. Unlike the parties in Barsamian,
For these reasons, the Court finds that the undisputed facts demonstrate that Arevalos was acting within the scope of his employment throughout his encounter with Jane Doe, and thereby
Next, Plaintiff moves for summary adjudication of her claims for sexual battery and sexual assault. The Court finds that the evidence produced by Plaintiff is "so one-sided" that Plaintiff must prevail as a matter of law. See Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.
In California, a person commits a sexual battery if he does any of the following:
Cal. Civ.Code § 1708.5(a). The essential elements of a cause of action for assault are:
Plotnik v. Meihaus, 208 Cal.App.4th 1590, 1603-04, 146 Cal.Rptr.3d 585 (2012). As Plaintiff's claim is for sexual assault, she must demonstrate that she reasonably believed Defendant Arevalos was threatening to touch an intimate part of her body.
Plaintiff contends that the undisputed evidence demonstrates that Arevalos sexually assaulted and battered her. Plaintiff cites four primary evidences to satisfy her summary judgment burden. First, Plaintiff cites to the statements made by Arevalos to Plaintiff during the second pretext call. Second, Plaintiff contends that the Court may draw an adverse inference from Arevalos' invocation of his Fifth Amendment privilege during his deposition. Third, Plaintiff produces her own testimony regarding Arevalos' acts. Fourth — since rendered moot — Plaintiff introduces Arevalos' past criminal conviction of sexual battery and assault for his actions perpetrated against Plaintiff.
The most compelling piece of evidence produced by Plaintiff is the second pretext call between her and Arevalos.
[Id.] While Arevalos never explicitly states that he touched an intimate part of Doe's body, the Court finds that his statements in the pretext call allow for only one reasonable interpretation: Arevalos committed an unwanted touching of an intimate body part of Jane Doe. In the sequence quoted above, nothing but the definition of "it" is left to the reader's imagination. Yet, even the City shies away from attempting to ascribe a benign interpretation to Arevalos' statements. Indeed, apart from an evidentiary challenge,
The evidence says otherwise. While Arevalos did not explicitly state that he touched Doe's vagina, his comments are nonetheless unequivocal: "the instant moment that I touched you, the skin texture, the temperature, the way it felt, everything was like perfect"; "your vagina was very nice"; "I didn't feel you at all relaxed during it, so I ... was like, ... let me just stop right now."
At oral argument, Arevalos' counsel quoted at length the San Diego Superior Court's order granting Arevalos' habeas petition, wherein the court cited People v. Riel, 22 Cal.4th 1153, 96 Cal.Rptr.2d 1, 998 P.2d 969 (2000), for the proposition that whether conduct constitutes an adoptive admission is a question for the jury to decide. [Summary Judgment Hearing Transcript at 23.] We need not, however, consider whether Arevalos' conduct constitutes an adoptive admission; his affirmative
Moreover, Arevalos does not deny the touching occurred. When asked in his deposition whether he touched Plaintiff's vagina, Arevalos invoked his Fifth Amendment privilege. [See Arevalos Depo. Vol. I, at 220:17-222:10.] Plaintiff contends that the Court may draw an adverse inference from Arevalos' silence. Unlike criminal cases, adverse inferences may be drawn from a defendant's invocation of the privilege against self incrimination in a civil proceeding. See Nationwide Life Ins. Co. v. Richards, 541 F.3d 903, 911 (9th Cir.2008). The City contends, however, that this rule should not apply because the adverse inference would be drawn against the City, not Arevalos. The City is mistaken. The inference is not offered to establish that the City committed the alleged torts, but, rather, to support a finding that Arevalos committed the alleged torts. As previously set forth, liability against the City is premised upon vicarious liability. Thus, the Court finds that Arevalos' invocation of his Fifth Amendment privilege serves as additional evidence supporting Plaintiff's burden of demonstrating the absence of a genuine dispute.
Finally, Plaintiff produces her own deposition testimony wherein she states that Arevalos "took his hand and started touching [her] vagina and started-he pushed the lips of my vagina apart and starting rubbing my vagina." [Doe Depo. at 193:2-4, Doc. No. 202-18.]
In all, the Court finds that Plaintiff has met her burden on summary judgment demonstrating an absence of a genuine issue of material fact as to her claims for sexual assault and battery. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Thus, the City now shoulders the burden of establishing that a genuine issue of fact exists. See Matsushita, 475 U.S. at 586-87, 106 S.Ct. 1348. In attempting to establish the existence or non-existence of a genuine factual dispute, the City must support its assertion by
Fed.R.Civ.P. 56(c)(1).
The City contends that summary judgment is not warranted because Doe's allegations regarding the incident have been inconsistent. For instance, after Arevalos released her, Doe sent a message to her boyfriend, stating: "I can't believe how yucky I feel and I didn't even really have to do anything! It sucks to have someone hold that kinda power over you." [Doe Depo. at 204:8-24.] Doe's handwritten notes written shortly after the incident also do not mention that Arevalos touched her. The City contends that the inconsistencies in Doe's story create a credibility issue which must be decided by a jury.
Even if the evolution of Doe's story raises a credibility issue, the Court finds this "scintilla of evidence" insufficient to create a genuine issue of material fact. See Anderson, 477 U.S. at 252, 106 S.Ct. 2505. The result would be different if Doe had, at some time, denied a touching before alleging one. She never did.
By way of background, on the night of the incident, Doe spoke to San Diego Police Officer Kelly Besker regarding her encounter with Arevalos. Officer Besker instructed Doe to call the SDPD directly to report her allegations of Arevalos' misconduct. Officer Besker also instructed
The resulting notes provide a far from comprehensive account of the events of the evening. In all, the notes contain approximately twelve bullet point notations summarizing Doe's encounter with Arevalos. Doe describes the bathroom incident in a scant thirteen words: "watched me take them off & said he want to see my ... breasts." [Jane Doe Handwritten Notes, Doc. No. 226-16.] Importantly, the notes do not deny that a touching occurred. At oral argument, the City's counsel contended that Doe "mention[ed] everything else that happened in the bathroom." [Summary Judgment Hearing Transcript at 8:24-25.] Not so. For example, the notes do not mention that Doe lifted her shirt to expose her breasts. Nor did Doe write anything about being touched, even in a non-intimate manner.
As made clear at the summary judgment hearing, the significance attached by the City to Doe's handwritten notes is inextricably tied to Arevalos' habeas corpus proceeding. Indeed, the City places great weight on the vacatur of Arevalos' criminal conviction, and in the analysis conducted by the San Diego Superior Court in doing so. At the summary judgment hearing, the City contended that the reversal of Arevalos' criminal conviction "makes every bit of difference." [Summary Judgment Hearing Transcript at 6:21.] "With the vacation [sic] of these serious criminal convictions, there is now a serious question of fact as to what happened in that bathroom." [Id. at 7:20-22.] Despite the City's impassioned argument, the Court finds that the reversal of Arevalos' conviction does not create a genuine issue of material fact. The evidence before the Court — even absent proof of Arevalos' criminal conviction — undisputably demonstrates that Arevalos touched an intimate part of Doe's body. The reversal of Arevalos' criminal conviction has no bearing on the clear state of the evidence before the Court.
Moreover, Arevalos' conviction was reversed because of a Brady violation committed by the prosecution in failing to produce Doe's handwritten notes. The question of whether a Brady violation occurred during the criminal proceedings, and whether there are genuine issues of material fact remaining in this civil proceeding, are very different considerations. Significantly, the standards of proof in the two cases differ dramatically. The well-known requirement of "proof beyond a reasonable doubt" is constitutionally mandated for elements of a criminal offense.
The Court acknowledges the Superior Court's determination that "[t]he contents of the pretext call are not such as to foreclose any argument that the conversation could be interpreted in different ways."
In conclusion, the Court finds that no triable issues of fact remain regarding Plaintiff's claims for sexual assault and battery. Plaintiff's evidence — particularly Arevalos' statements in the second pretext call — affirmatively establishes her claims, while the City produces only a scintilla of evidence to rebut Plaintiff's demonstration of the absence of material facts. See Anderson, 477 U.S. at 252, 106 S.Ct. 2505 ("The mere existence of a scintilla of evidence... will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party.]") Accordingly, summary judgment must be entered in Plaintiff's favor.
For the reasons set forth above, the Court GRANTS Plaintiff's motion for partial summary judgment in its entirety.
