JON S. TIGAR, District Judge.
Six motions for summary judgment are pending in this action for claims arising of an alleged sexual assault.
Harper brings this action against George Gascon, Anna Brown, Carl Tennenbaum (a.k.a Carl Tee or Carl T), the San Francisco Police Department ("SFPD"), and the City and County of San Francisco ("the City") (collectively "City Defendants"); as well as Ryan Lugbauer, W.B. Coyle, David Kennedy, Larry Page, and Marcia Clay.
The action was removed from the San Francisco Superior Court on March 18, 2011. ECF No. 1. According to the Notice of Removal, Harper filed this action in San Francisco Superior Court on February 14, 2011.
Harper asserts the following claims in the operative complaint: (1) claims under California Civil Code section 52.4 against Coyle, Kennedy, Page, Lugbauer, Tennenbaum, Ertola, and Clay; (2) claims under California Civil Code section 51.7 against all Defendants; (3) a claim under 42 U.S.C. § 1983 against the City, Gascon, and Brown; (4) a claim under California Civil Code section 51 against the City; (5) claims for defamation against Lugbauer, Coyle, Kennedy, Page, Ertola, Clay, and Tennenbaum; and (6) claims for conspiracy to commit battery against Lugbauer, Coyle, Kennedy, Page, and Ertola.
On February 9, 2012, the Court granted Coyle and Page's motions to dismiss Harper's claims under section 52.4, section 51.7, and conspiracy to commit battery, to the extent that Harper asserted these claims against them.
Then, on March 15, 2012, the Court granted City Defendants' Anti-SLAPP motion and struck Harper's section 52.4 claim as to Tennenbaum, her section 51.7 claim as to City Defendants (except Ertola), and her section 51 claim against the City. ECF No. 120.
Accordingly, the only claims currently at issue are the following: (1) claims under section 52.4 against Kennedy, Lugbauer, Ertola, and Clay; (2) claims under section 51.7 against Lugbauer, Kennedy, Clay, and Ertola; (3) a claim under 42 U.S.C. § 1983 against the City, Gascon, and Brown; (4) claims for defamation against Lugbauer, Coyle, Kennedy, Page, Ertola, Clay, and Tennenbaum; and (5) claims for conspiracy to commit battery against Lugbauer, Kennedy, and Ertola.
Plaintiff Gail Harper and Defendant Marcia Clay have lived in the same apartment complex in San Francisco since 1983. Clay Decl. ¶ 2. Defendant Ryan Lugbauer moved into a condominium on that same block sometime before the spring of 2005.
In December 2005, Lugbauer penetrated Harper's vagina with his finger. Harper Dep. at 48, 295-96. Harper and Lugbauer dispute whether this act was consensual. Harper did not report the incident to the SFPD until eight months later, in August 2006.
In 2006 or 2007, Harper developed an acquaintance with Defendant Carl Tennenbaum, a San Francisco police officer who worked in her neighborhood.
In July 2007, Harper went to the police station to lodge a complaint against Lugbauer after the two had a verbal altercation in a cafe.
Harper interacted with Tennenbaum again a few days later when she went to the police station to request a copy of a police report.
At some point between early 2008 and October 30, 2008, Harper told Clay that Lugbauer had assaulted and raped her. Clay Decl. ¶ 6. Clay told Harper that Lugbauer could be flirtatious and that once, when she was out with a group of friends drinking, Lugbauer had patted her on the buttocks, but that she did not find Lugbauer's conduct offensive.
After that conversation, Harper approached Clay outside of their apartment building on two other occasions and asked that Clay write a letter stating that Lugbauer had sexually battered her, but Clay again declined, stating that Lugbauer had not committed sexual battery against her.
In November 2008, Harper's car was vandalized and she suspected that Lugbauer was the culprit. She contacted the SFPD to make a report, but the police refused to name Lugbauer as a suspect because Harper did not see Lugbauer vandalize the car. Harper Dep. at 88-89.
On or about November 11, 2008, Harper came to Clay's front door and suggested that Clay move her car because "rapist" Lugbauer might key it. Clay Decl. ¶ 10. Clay became upset over what she believed were Harper's attempts to get Clay involved in Harper's disputes with Lugbauer, and she told Harper that she was crazy.
In March 2009, Harper's car was vandalized again, and the police again did not name Lugbauer as a suspect despite her belief that he was the culprit because Harper did not see Lugbauer commit the vandalism. Harper Dep. at 94.
On August 7, 2009, Harper called 911 to report Clay's son, Nick, for yelling at her.
Clay was not at home at the time the police arrived for Nick. She learned of the incident from doctors at San Francisco General Hospital, where Nick was taken. Clay subsequently went to the police station to learn more about the incident. There, she talked with Tennenbaum to find out more details about the incident involving her son, and Tennenbaum told her that Harper had called the police concerning Nick and that Harper previously filed a criminal charge against Lugbauer but that there had been no subsequent prosecution. Clay Decl. ¶¶ 12, 13.
On August 7, 2009, Clay received an email from Harper in which Harper admitted calling the police concerning Nick. Clay sent a follow-up email to Tennenbaum on August 7, 2009, stating that she had learned from her building manager that Harper had been sending threatening letters to her landlord seeking her and her son's eviction from the building. In the email, she asked Tennenbaum to "kindly contact Ms. Harper and request that she cease all her letter-writing, her meddling, and harassment of [her] and of Nicholas."
Clay wrote a letter to her landlord on August 8, 2009, to defend herself against a possible eviction resulting from Harper's threats to the landlord. In it, she urged her landlord not to evict her and referenced her meeting with Tennenbaum on August 7. Clay Decl. ¶¶ 19-13.
On August 9, 2009, Lugbauer wrote Tennenbaum an email stating that Harper was "making up stories" about Nick, accusing Lugbauer of being a rapist, bullying neighbors, and was, among other things, a "very unhappy" and "disturbed" person. Harper Dep. at 99. Tennenbaum responded by stating that he "agreed" and that Harper "seems to be having trouble coping with many of the issues in her life, to put it mildly," and that it pained him, as someone who had "been friends with" Harper, to see her "losing her grip."
On October 31, 2009, Lugbauer filed a police report against Harper stating that Harper was stalking, harassing, and video-taping him in public.
On November 19, 2009, Lugbauer filed a petition for a civil restraining order against Harper. RJN, Ex. A at 3. A hearing was held on November 20, 2009, regarding the temporary restraining order that Harper had obtained against Lugbauer, but it was continued until December 18, 2009, to allow the court to address Lugbauer's petition for a restraining order against Harper at the same time.
On April 3, 2010, Clay received two emails from Harper in which Harper stated that Clay defamed her to her landlord via her August 2009 letter and demanded that Clay write a letter of retraction to her landlord. Clay notified Lugbauer of these emails to inform him of Harper's threats and asked for his advice as to how to respond to Harper's threats of a lawsuit. Clay Decl. ¶ 25.
Harper's interactions with Anna Brown consist of an unanswered letter that Harper wrote to Brown to complain about the conduct of the police officers involved in her restraining order proceedings against Lugbauer. Harper Dep. at 137-38. Harper copied George Gascon on communications to Anna Brown and other law enforcement personnel.
Harper has not personally interacted with San Francisco fire fighter Chad Ertola since before the incident with Lugbauer in 2005. Harper Dep. at 35. In approximately 2010, Harper spoke with a man she knows only as "Phil," who she believes is Ertola's neighbor.
Summary judgment is proper when a "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). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by" citing to depositions, documents, affidavits, or other materials. Fed. R. Civ. P. 56(c)(1)(A). A party also may show that such materials "do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(B). An issue is "genuine" only if there is sufficient evidence for a reasonable fact-finder to find for the non-moving party.
Where the party moving for summary judgment would bear the burden of proof at trial, that party bears the initial burden of producing evidence that would entitle it to a directed verdict if uncontroverted at trial.
The non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment."
Before turning to the merits of the motions for summary judgment at issue, the Court notes that some of Harper's oppositions failed to comply the local rules, as they are written in font smaller than the requisite 12-point font.
The Court notes also notes that Harper filed a series of "corrected" oppositions, supplemental declarations, and exhibits after the deadline for responding to the pending motions to summary judgment, which was November 8, 2013. ECF Nos. 242-245, 249, 250, 251, 253, 256, 257. The Court will not consider these untimely submissions for any purpose. After granting Harper several extensions of the relevant deadlines, the Court made clear that it would not entertain further requests for extensions or tolerate untimely submissions. ECF No. 224. The Court also will not consider objections to evidence that were filed by any party separately from that party's brief or memorandum.
Harper alleges that the City, the SFPD, George Gascon, and Anna Brown promulgated and enforced policies that violated Harper's "constitutional rights and protections" because they resulted in the failure of City employees to properly investigate and handle allegations of sexual crimes and misconduct by police officers. TAC ¶¶ 84-91. Harper also alleges that City Defendants failed to train and to supervise SFPD employees on sex crimes and gender violence.
"Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States."
Municipalities are liable under section 1983 when "action pursuant to official policy of some nature cause[s] a constitutional tort."
To establish liability under
A failure to train or supervise can amount to a "policy or custom" sufficient to impose liability on a municipality.
City Defendants move for summary judgment on this claim on the grounds that Harper's claims are barred by the statute of limitations; that Harper has no evidence to show that her constitutional rights were violated; and that Harper has no evidence to show that Gascon or Brown were personally involved in the events giving rise to her claims. The Court addresses each of these arguments in turn.
"Section 1983 does not contain its own statute of limitations. Without a federal limitations period, the federal courts borrow the statute of limitations for § 1983 claims applicable to personal injury claims in the forum state."
Though federal courts borrow the forum state's statute of limitations for § 1983 claims, "federal, not state, law determines when a civil rights claim accrues."
City Defendants argue that, because Harper allegedly filed her original complaint against them on November 18, 2010, her § 1983 claims are barred to the extent they are based on defamatory actions that took place before November 18, 2009, or on non-defamatory actions that took place before November 18, 2008. City Defendants also contend that the applicable statutes of limitations are not subject to tolling because Harper "obviously knew about her interactions with police officers the moment they transpired." ECF No. 182 at 13.
Harper responds that her § 1983 claim is subject to tolling based on the discovery rule and the continuing course of conduct rule. ECF No. 238 at 7-9.
Before turning to the question of whether Harper's § 1983 claims are subject to tolling, the Court notes that City Defendants' assertion that Harper originally filed this action on November 18, 2010, is not supported by the record. City Defendants cite to the Notice of Removal to establish this date, but the Notice of Removal does not contain the date on which Harper originally sued Defendants. Instead, the Notice of Removal, citing to the First Amended Complaint that Harper filed in Superior Court, states that Harper filed this action on February 14, 2011.
As will be discussed below, Harper fails to properly invoke any tolling doctrine in connection with her § 1983 claims, and therefore, these claims are barred to the extent they are based on defamatory actions that took place before February 14, 2010, and non-defamatory actions that took place before February 14, 2009.
California has the "discovery rule" of tolling, "which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action."
Harper argues that her § 1983 claims are based "in part" on Tennenbaum's "years-long, secret campaign to frustrate [her] First Amendment rights, in part on Carl T's (and likely other officers') retaliation for the OCC complaints [she] filed, and in part on the SFPD's failure to train or supervise Carl T, permitting him to abuse [her]." ECF No. 238 at 7. She contends that she did not begin to discover these acts until November 19, 2009, when Lugbauer attached certain documents to his request for a restraining order against Harper, namely the emails between Lugbauer and Tennenbaum, and Clay's letter to her landlord.
City Defendants respond that the discovery rule does not apply because Harper has been aware of the police conduct giving rise to her § 1983 claims since August 2008, when Harper sent a letter to Gavin Newsom, the San Francisco Commission on the Status of Women, and San Francisco Women Against Rape about "the failure of the SFPD and the District Attorney to investigate rapes and prosecute rapists." Pederson Decl., Ex. A at 11, ECF No. 259.
The Court concludes that the discovery rule does not apply here. Harper's § 1983 claim is based on City Defendants' failure to properly investigate and handle allegations of sexual crimes and related misconduct by police officers. TAC ¶¶ 84-91. The letters Harper sent to Gavin Newsom and others touch directly on these issues, thus establishing that Harper was aware of the purported wrongdoing that forms the basis of her § 1983 claims since at least August 2008. The facts she learned in November 2009 when Lugbauer filed an application for a restraining order may have given her the benefit of additional information to support her claims, but they do not change the fact that Harper had reason to suspect since at least 2008 that she had been wronged by City Defendants. Accordingly, Harper's § 1983 claims are not tolled based on the discovery rule.
Under California's continuing violation doctrine, a plaintiff may recover "for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct within the limitations period[.]"
Harper argues that the statute of limitations on her § 1983 should be tolled because she "was raped, then stalked, harassed and defamed over a period of years" as a result of "a conspiracy with Lugbauer to commit domestic violence or stalking," and "[i]t did not become clear there was no hope of relief until after [she] was denied a permanent restraining order in December of 2009." ECF No. 238 at 9-10. She further argues that "domestic violence is a continuing tort."
City Defendants respond that there is no logical framework for a continuing conduct theory of tolling and that Harper has not alleged any facts to establish that she was a victim of domestic violence within the meaning of California Family Code section 6211(c), as she has never alleged that she had "frequent, intimate associations" with Lugbauer. ECF No. 259 at 4-5.
The Court concludes that Harper has failed to establish that tolling under the continuing course of conduct doctrine is appropriate. To the extent that Harper's § 1983 claim is based on a pattern of conduct by City Defendants, Harper was aware of such conduct since at least August 2008, when she wrote extensively about such conduct to City officials, as described in the previous section. Moreover, any allegations of domestic violence are wholly unsupported by the record. As such, the § 1983 statute of limitations cannot be tolled under this doctrine.
City Defendants move for summary judgment on Harper's § 1983 claims on the ground that she has no evidence to show that any of them violated her constitutional rights based on conduct that occurred within the applicable statutes of limitations.
First, Harper contends that City Defendants violated her First Amendment right to exercise free speech and to access police services and the courts because (1) Tennenbaum interfered with her attempt to "report Lugbauer's crimes and Nicholas' misconduct"; (2) Tennenbaum coached "Lugbauer on what to say in the restraining order proceedings to avoid issuance of a permanent restraining order"; and (3) Tennenbaum "sabotage[d]" the "5150 detention and evaluation of Nicholas Besher." ECF No. 238 at 15.
The Court concludes that City Defendants are entitled to summary judgment on this claim. Even assuming that the conduct at issue could give rise to a violation of her First Amendment rights and that the claim is based on conduct that is not barred by the statute of limitations, Harper offers no evidence to support her contentions. Her only citations are to case law.
Second, Harper contends that City Defendants violated her First Amendment right to be free of police retaliation, but she does not provide any detail as to the theory supporting this claim. Harper states only that Lugbauer will testify that "he advised Clay that [she] had `alienated the police department' by `going after Carl T,'" and that her own "testimony will supply sufficient facts from which a jury could draw the inference SFPD officers engaged in illegal acts to retaliate against her for reporting their friend Lugbauer's crimes and reporting Central Station officers to the OCC." ECF No. 238 at 16 (citing Exhibit A¶ 85; Exhibit FF; and Exhibit A, ¶¶29, 35, 40, 45, 53, 60, 62, 63, 64, 72, 73, 76).
The Court concludes that City Defendants are entitled to summary judgment on this claim. Even assuming that the conduct at issue could give rise to a violation of Harper's First Amendment rights and that the claim is based on conduct that is not barred by the statute of limitations, the evidence Harper cites in support of her claim is insufficient to create a genuine issue of material fact. Harper cites to an email from Lugbauer to Clay that is not authenticated and is therefore inadmissible, in which Lugbauer states that Harper "recently alienated the police dept by going after Carl T and the guys at station 28 have had some recent issues with her." ECF No. 15, Ex. 31 ("Exhibit FF"). Harper also cites to statements in her own declaration, which are speculative, uncorroborated, or lack foundation, and thus are insufficient to raise a genuine issue of material fact as to whether her constitutional rights were violated by City Defendants.
Third, Harper contends that City Defendants violated her First and Fourteenth Amendment rights by harassing her based on her sex. She argues that "Carl T psychologically abused Plaintiff and encouraged others, including Lugbauer, to do the same," and that the City "has permitted Carl T to engage in and encourage extreme abuse of Plaintiff, despite CITY's well-documented awareness for decades domestic violence can have deadly consequences, and the SFPD response to domestic violence and rape has been inadequate." ECF No. 238 at 16 (citing Exhibit A, ¶¶35-40, 53-55 57, 61; Exhibits W, LL, MM, and NN.)
The Court concludes that City Defendants are entitled to summary judgment on this claim. Even assuming that the conduct at issue could give rise to a violation of her First and Fourteenth Amendment rights and that the claim is based on conduct that is not barred by the statute of limitations, the evidence Harper cites in support of her claim is insufficient to create a genuine issue of material fact as to whether her constitutional rights were violated by City Defendants. She cites to Exhibits W, LL, MM, and NN, which are not authenticated and therefore are inadmissible.
Fourth, Harper contends that City Defendants violated her Fourteenth Amendment rights by subjecting her to "state-created" danger. Harper claims that the City "made explicit assurances to Lugbauer he could attack [her] with impunity, and by implicitly but affirmatively encouraging Lugbauer's violence against her," and that Tennenbaum "created and enhanced Nicholas Besher's dangerousness to [her] by sabotaging the 5150 process." ECF No. 238 at 17 (citing Exhibit A, ¶¶ 39-40, 54-55, 57, 61-62, 72, 77-78, 82-85).
The Court concludes that City Defendants are entitled to summary judgment on this claim. Even assuming that the conduct at issue could give rise to a violation of her Fourteenth Amendment rights and that the claim is based on conduct that is not barred by the statute of limitations, the evidence Harper cites in support of her claim is insufficient to create a genuine issue of material fact as to whether City Defendants violated her constitutional rights because it is limited to statements in her own declaration that are uncorroborated, speculative, or lack foundation.
Fifth, Harper contends that City Defendants violated her Fourteenth Amendment rights by treating her rape differently than rapes committed by strangers. Harper argues that the City "has a long-standing policy of not investigating or prosecuting non-stranger rapists," that "Gascon will have to admit non-stranger rapists are seldom prosecuted," and that the City has departed from its "normal" procedures. ECF No. 238 at 18 (citing Exhibit E ¶¶17, 19, Exhibit II; Exhibit JJ, and Exhibit KK).
The Court concludes that City Defendants are entitled to summary judgment on this claim. Even assuming that the conduct at issue could give rise to a violation of her Fourteenth Amendment rights and that the claim is based on conduct that is not barred by the statute of limitations, the evidence Harper cites in support of her claim is unauthenticated and inadmissible, or otherwise speculative and uncorroborated, and therefore it is insufficient to create a genuine issue of material fact as to whether City Defendants violated her constitutional rights.
Finally, Harper contends that City Defendants violated her Fourteenth Amendment rights by failing to treat the 2005 incident with Lugbauer as domestic violence. She bases this claim on a statement by "[a] lieutenant in the DV Unit" to her that, "unless [she] claimed she had a dating relationship with Lugbauer, [she] could not benefit from the domestic violence laws." ECF No. 238 (citing Exhibit A ¶¶ 88, 89).
The Court concludes that City Defendants are entitled to summary judgment on this claim. Even assuming that the conduct at issue could give rise to a violation of Harper's Fourteenth Amendment rights and that the claim is based on conduct that is not barred by the statute of limitations, the evidence Harper cites in support of her claim is insufficient to create a genuine issue of material fact, because it is inadmissible hearsay.
Accordingly, City Defendants' motion for summary judgment on Harper's § 1983 claims is GRANTED.
Harper alleges that Lugbauer Coyle, Kennedy, Page, Ertola, Clay, and Tennenbaum defamed her. TAC ¶ 99.
Under California law, defamation "involves the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage."
In determining the viability of a defamation claim, "the threshold question . . . is whether a reasonable factfinder could conclude that the contested statement implies an assertion of objective fact," and "[i]f the answer is no, the claim is foreclosed by the First Amendment."
The statute of limitations on a defamation claim is one year from the date on which the plaintiff discovered that the defamatory statement was published. Cal. Code Civ. P. § 340.
Harper alleges that Coyle, "as part of his quest to find sexually available women while working at the Caffe Roma" in 2005, "engaged in gossip about women in general — and defamatory talk about [her] in particular — with other Defendants in this case, which led to the conspiracy to commit rape on [her] ultimately carried out by" Lugbauer, "who also frequented Caffe Roma during that time." TAC ¶ 16. Harper also alleges that Coyle defamed her in 2010 when he approached her in a park and told her that "he did not believe she was raped, that `everyone' was talking about [her] and `nobody' believed she was raped."
Coyle moves for summary judgment on this claim on the ground that Harper has no evidence to establish that he has made any defamatory statements about her.
In her opposition, Harper offers no evidence or argument to show that a genuine issue of material fact exists with respect to Coyle's purported 2005 statement. She argues, however, that Coyle's statements to her in 2010 constitute defamation because, in making the statements, Coyle admitted that he had been speaking with others about her and that he told them that he did not believe she was raped. ECF No. 202 at 17.
The Court concludes that Coyle is entitled to summary judgment on this claim. There is no evidence on the record showing that Coyle made any statement, defamatory or not, about Harper in 2005. With respect to Coyle's 2010 statement that "nobody" believed that Harper had been raped, Harper admitted during her deposition that Coyle made it to her at Washington Square Park and that nobody else was present during this conversation. Harper Dep. at 182, ECF No. 186, Ex. C. This statement is not actionable defamation for two reasons. First, while it is a plausible inference from Coyle's alleged statement that he heard others say they did not believe Harper had been raped, there is nothing in his statement to support the conclusion that he shared his belief that she had not been raped with others, even if he told Harper that in the 2010 conversation. Second, even if Coyle did make the statement to others, his profession of a lack of belief in Harper's claims was a statement of opinion that is protected by the First Amendment; the statement expressed Coyle's viewpoint as to whether he found Harper's rape allegations to be believable.
Accordingly, Coyle's motion for summary judgment on this claim is GRANTED.
Harper alleges that Kennedy defamed her by "falsely telling numerous people that he `has reason to believe' that [she] `makes up stories' about men, in particular, Phillip Hacket and Ryan Lugbauer, and possibly others." TAC ¶ 21.
Kennedy moves for summary judgment on this claim on the ground that Harper has no evidence to show that he made any defamatory statement about her.
Harper opposes the motion, citing to evidence she claims precludes summary judgment. Harper cites generally to the attachment to Lugbauer's police report; to "Table One," which is an attachment to her opposition; and to Kennedy's declaration to show that Kennedy made defamatory statements about her and that Lugbauer republished such statements.
Because no genuine issue of material fact exists with respect to whether Kennedy defamed Harper, Kennedy's motion for summary judgment on this claim is GRANTED.
Harper alleges that Page defamed her by engaging in "gossip that [she] was unchaste in that she was sexually `easy,' sexually available, sexually promiscuous, sexually provocative and sexually aggressive." TAC ¶ 25.
Page joined the summary judgment motions of each of the other Defendants, thereby re-asserting such motions on his own behalf.
Harper has not addressed the allegations or the evidence supporting her claims against Page in any of the oppositions she filed. Accordingly, no genuine issue of material fact exists with respect to whether Page defamed Harper. Page's motion for summary judgment on this claim is therefore GRANTED.
Harper alleges that Ertola defamed her "to other men at least up to December of 2010, by — among other statements — falsely telling numerous people that Plaintiff is sexually `easy' or promiscuous." TAC ¶ 23.
Ertola moves for summary judgment on this claim on the ground that Harper has no admissible evidence to establish that he made a defamatory statement about Harper. Ertola notes that Harper's only evidence with respect to this claim is a statement in her own declaration stating that Phil, Ertola's neighbor, told her that Ertola told others that she was "easy."
Harper opposes the motion, arguing that the statement in her declaration with respect to the statements that Ertola purportedly made to Phil is not inadmissible hearsay, because she is not offering the statement for the truth of the matter asserted, but rather, she offers it as "an operative fact." ECF No. 238 at 10.
The Court concludes that Ertola is entitled to summary judgment on this claim. The only evidence that Harper has presented in opposition to City Defendants' motion is the statement in her declaration providing that Ertola told Phil that Harper is "easy." This statement is hearsay and therefore is inadmissible and insufficient to defeat summary judgment.
Accordingly, Ertola's motion is GRANTED with respect to this claim.
Harper alleges that Clay defamed her by writing a letter to her landlord saying that Harper is "quite ill in the mind," that she has a history of summoning the police on many occasions for what turn out to be invalid reasons, and that she accused a neighbor of rape. TAC ¶ 51.
Clay moves for summary judgment on this claim on the ground that any statements she made about Harper are protected by the litigation privilege or the First Amendment.
In her opposition, Harper argues that Clay has not submitted enough evidence to establish that her letter to her landlord is protected by the litigation privilege, as Clay did not write the letter in response to a threatened eviction. Harper also contends that the litigation privilege cannot apply to the letter because, even if eviction proceedings were likely, Harper would not have been a party to such proceedings.
A communication made in "any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law" is privileged. Cal. Civ. Code § 47. The litigation privilege affords "all participants in litigation, including litigants, prospective witnesses and counsel, the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions by extending a broad privilege for publications made in the course of litigation."
The statements in Clay's letter to her landlord are protected by the litigation privilege. Clay has submitted evidence showing that Harper told her that she could be evicted because of her "psychotic son," and that Harper sent her an email demanding that she "get Nick out of [the building]" and threatening to "take legal action very soon." Clay Decl. ¶¶ 12, 18 & Ex. 4, 7. This evidence shows that Harper threatened to initiate a legal proceeding to end Clay's tenancy in the building. As such, the letter that Clay wrote to her landlord in response to such threats is privileged because it was written by a possible party to the proceeding at issue.
Accordingly, Clay's motion for summary judgment on this claim is GRANTED.
Harper alleges that Tennenbaum defamed her by telling Clay "and others" that she is "mentally ill," that she made false allegations of rape, and that she otherwise made false statements. TAC ¶ 51. She also alleges that Tennenbaum defamed her by responding to an email that Lugbauer sent him in which Lugbauer characterized her as, among other things, "paranoid" and "disturbed."
Tennenbaum moves for summary judgment on this claim on the ground that any statements he made to Lugbauer are opinion statements protected by the First Amendment; that Harper lacks any non-hearsay evidence to establish that Tennenbaum made defamatory statements about her; and that the statements that Tennenbaum made to Clay and Lugbauer are privileged communications under California Civil Code section 47 and California Government Code section 821.6 because they arose from his investigation of Harper's 911 call on August 9, 2009.
Harper opposes the motion, arguing that her claims are not grounded on inadmissible hearsay and that Tennenbaum's statements are not entitled to immunity because he not investigate any of the crimes [she] reported[.]" ECF No. 238 at 20.
The Court concludes no genuine issue of material fact exists as to whether Tennenbaum defamed Harper.
First, much of the evidence that Harper cites is uncorroborated, lacks foundation, or is inadmissible hearsay; as such, this evidence is insufficient to raise a genuine issue of material fact as to whether Tennenbaum defamed her.
Second, the remaining pieces of evidence that Harper cites, even assuming that they are admissible, show that any statements made by Tennenbaum were opinion statements protected by the First Amendment. Harper cites to the letter that Clay sent to her landlord. Though Harper herself did not authenticate this letter, the letter was authenticated by Clay.
Harper also cites to an email chain between Tennenbaum and Lugbauer, in which Tennenbaum expressed his opinion that Harper was "losing her grip" and was "having trouble coping." ECF No. 215, Ex. 25 ("Exhibit Z"). This email is inadmissible, because Harper has not authenticated it. Even if it were admissible, however, the email does not raise a genuine issue of material fact, because Tennenbaum's statements in the email are statements of opinion protected by the First Amendment.
Finally, Harper points to one of Clay's journal entries, in which Clay writes that Tennenbaum had a conversation with her during which he "confided that he thinks [Harper has] gone off the deep end," and from which Clay concluded that Harper had not been raped. ECF No. 215, Ex. 24 ("Exhibit Y") (emphasis added). This journal entry also is inadmissible because Harper has not authenticated it. Even if it were admissible, however, the entry is insufficient to defeat summary judgment because the statements that are attributed to Tennenbaum are statements of opinion that are protected by the First Amendment.
Accordingly, Tennenbaum's motion for summary judgment is GRANTED.
Harper alleges that Lugbauer defamed her by "falsely claiming that he had not sexually assaulted [her] and that [she] had consented to engaging in sexual activity with him, and falsely claiming that Plaintiff was `crazy' or mentally and emotionally "unstable," and was stalking, harassing and bullying him and people associated with him." TAC ¶ 29.
Lugbauer moves for summary judgment on this claim on the ground that Harper presents no evidence that he made any defamatory statements and that any statements may have made about Harper are protected by the First Amendment or by the litigation privilege.
In her opposition, Harper contends that Lugbauer defamed her and that none of Lugbauer's defamatory statements are privileged or protected by the First Amendment. In support of this argument, Harper cites generally to her own declaration, "Exhibit A," and to an unauthenticated police report that Lugbauer allegedly filed against her, "Exhibit C."
Harper alleges that Kennedy, Lugbauer, Ertola, and Clay violated section 52.4 by "engaging in a conspiracy to commit a sexual assault on [her]." TAC ¶ 73. Harper alleges that Lugbauer "carried out the goal of that conspiracy" when he sexually assaulted her and "commit[ed] an object rape" on her in December 2005.
Under California Civil Code section 52.4, "[a]ny person who has been subjected to gender violence may bring a civil action for damages against any responsible party." Cal. Civ. Code § 52.4(a). Gender violence is "a form of sex discrimination" that takes either of the following forms:
Cal. Civ. Code § 52.4(c).
Generally, an action under section 52.4 must be commenced within three years of the act at issue. Cal. Civ. Code § 52.4(b).
Harper's allegations with respect to Kennedy, Ertola, and Clay are based on the purported existence of a conspiracy between them and Lugbauer, the goal of which was Lugbauer's sexual assault of Harper.
To be actionable under section 52.4, Harper's conspiracy claim must "constitute a criminal offense under state law." Cal. Civ. Code § 52.4(c). A person may be convicted of a criminal conspiracy on "proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act by one or more of the parties to such agreement in furtherance of the conspiracy."
Ertola moves for summary judgment on this claim on the ground that Harper has no evidence to establish that he committed any act of gender violence or that he knew Lugbauer.
Harper opposes the motion, arguing that she does not need to prove that Ertola knew Lugbauer to show that he participated in the alleged conspiracy with Lugbauer. She argues that she can prove the existence of a conspiracy with circumstantial evidence, namely evidence showing that Ertola and others spread "defamatory rumors" about her "being promiscuous (`easy')." ECF No. 238 at 25 (citing "Exhibit A ¶¶ 2-3;79, 90-99; Exhibit B at 1; Exhibits P, R; SS, TT; TAC ¶¶ 23, 26, 73, 102-103").
The Court concludes that Ertola is entitled to summary judgment on this claim. The claim is premised on the existence of a conspiracy between Ertola and Lugbauer, which requires evidence of an agreement to commit a crime. Harper points to no evidence showing that Ertola and Lugbauer had an agreement. She argues that the existence of the conspiracy is shown by the statements that Ertola made about her to other men in the neighborhood about her sexual promiscuity.
Accordingly, Ertola's motion for summary judgment on this claim is GRANTED.
Kennedy moves for summary judgment on this claim on the ground that Harper has no evidence to establish that he entered into an agreement with the other Defendants or that he knew about the alleged sexual assault. ECF No. 213 at 12-13.
In her opposition, Harper argues that Kennedy had an agreement with the other Defendants, but the evidence she cites in support of this argument fails to raise a genuine issue of material fact. First, none of the admissible evidence to which Harper specifically points establishes, or even suggests, the existence of an agreement.
Accordingly, Kennedy's motion for summary judgment on this claim is GRANTED.
Lugbauer moves for summary judgment on this claim on the ground that Harper has no evidence to establish that an agreement existed between himself and the other Defendants.
In her opposition, Harper argues that the "rape supplies the element of criminal physical force required for this cause of action." ECF No. 240 at 23. Harper, however, does not provide any argument or point to any evidence on the existence of an agreement between Defendants. Because there is no genuine issue of material fact as to whether Lugbauer was a member of the alleged conspiracy to violate Harper's rights under section 52.4, Lugbauer's motion is GRANTED.
Clay moves for summary judgment on this claim on the ground that Harper has no evidence to support her section 52.4 claim against her.
Harper's opposition incorporates by reference the arguments she made in her opposition to Lugbauer's motion for summary judgment as to Harper's section 52.4 claim against him.
Harper alleges that Lugbauer, Kennedy, Clay, and Ertola subjected her to violence and intimidation based on her sex in violation of California Civil Code section 51.7. TAC ¶¶ 81-82.
The characteristics that can give rise to a section 51.7 claim include "sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Cal. Civ. Code § 51(b). Sex includes, but is not limited to, a person's gender. Cal. Civ. Code § 51(e)(5).
Ertola moves for summary judgment on this claim on the ground that Harper has no evidence to show that he used or threatened violence against her or that he had an indirect role in any violence or a threat of violence against her. ECF No. 182 at 8.
Harper opposes the motion, offering the same arguments and evidence she offered in opposition to Ertola's motion for summary judgment on her section 52.4 claim, namely that Ertola made statements about her alleged promiscuity to other men in the neighborhood. Even assuming that Ertola made these statements, Harper's section 51.7 claim against Ertola would nevertheless fail because no genuine issue of material fact exists with respect to whether Ertola used or threatened violence against Harper, or entered into an agreement to inflict or threaten violence against Harper.
Accordingly, Ertola's motion for summary judgment is GRANTED.
Kennedy moves for summary judgment on this claim on the ground that Harper has no evidence to show that he used or threatened violence against Harper on account of her sex, or that he had an agreement with any of the other Defendants. ECF No. 213 at 13.
Harper opposes the motion, citing the same evidence she cited in opposition to Kennedy's motion for summary judgment with respect to her section 52.4 claim against Kennedy. See ECF No. 239 at 20-23. As discussed in the section III.C.2, supra, this evidence, to the extent it is admissible, does not show the existence of an agreement. This evidence also does not show that Kennedy threatened or used violence against Harper, either directly or indirectly. Accordingly, Kennedy's motion for summary judgment on this claim is GRANTED.
Lugbauer moves for summary judgment on this claim on the ground that Harper has no evidence showing that any of his actions toward Harper were motivated by her gender.
Harper opposes the motion, arguing that Lugbauer subjected her to violence or threats of violence on the basis of her gender. Harper cites generally to her declaration to support this contention but does not point to any specific facts that raise a genuine issue of material fact with respect to whether Lugbauer violated her rights under section 51.7 as required by Rule 56(c).
Clay moves for summary judgment on this claim on the ground that there is no evidence on the record showing that she committed or threatened any act of violence against Harper within the meaning of section 51.7.
Harper's opposition incorporates by reference the arguments she made in her opposition to Lugbauer's motion for summary judgment as to her section 51.7 claim against him.
Harper alleges that Lugbauer, Kennedy, and Ertola conspired to commit battery on her, and that this conspiracy resulted Lugbauer's sexual attack of Harper in December 2005. TAC ¶¶ 102-07.
To prove the existence of a civil conspiracy under California law, a plaintiff must show "(1) the formation and operation of the conspiracy, (2) the wrongful act or acts done pursuant thereto, and (3) the damage resulting from such act or acts."
Lugbauer moves for summary judgment on this claim on the ground that the claim is barred by the statute of limitations and there is no evidence to establish that Defendants had an agreement.
Harper argues in her opposition that the statute of limitations must be tolled under various theories. She also cites generally to several documents in support of the proposition that her alleged rape was caused by "comments from Kennedy and the unnamed firemen and others" about her "sexual skills." ECF No. 240 at 4 (citing to "Exhibit A," "Exhibit B," and "Table One"). She does not, however, point to any particular facts within these documents that would preclude summary judgment as required by Rule 56(c).
Kennedy moves for summary judgment on this claim on the ground that Harper has no evidence to show that he had an agreement with Defendants that resulted in sexual battery against her.
Harper opposes the motion, citing the same evidence she cited in opposition to Kennedy's motion for summary judgment with respect to her section 52.4 claim against him.
Ertola moves for summary judgment on this claim on the ground that Harper has no evidence to show that he entered into any agreement to commit an unlawful act.
Harper opposes the motion, arguing that she has sufficient circumstantial evidence to show that Ertola agreed to "the course of action resulting in [her] rape." ECF No. 238 at 25. Harper cites to the same evidence she cited in her opposition to Ertola's motion for summary judgment with respect to her section 52.4 claim against him, namely evidence showing that Ertola told Phil that Harper is "easy." As discussed in section III.C.1,
Accordingly, Ertola's motion is GRANTED.
Each of the motions for summary judgment brought by DEFENDANTS is GRANTED in its entirety. Because none of Harper's claims have survived these motions, the Clerk shall vacate all deadlines and terminate this action. The defendants shall jointly file a proposed judgment within 14 days of the date this order is filed.
