Buonarigo v. BJ's Tavern LLC

• Court: District Court, D. Arizona
• Decided: June 14, 2021
• Docket: 3:19-cv-08037
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Anthony Buonarigo, No. CV-19-08037-PCT-JAT

10 Plaintiff, ORDER

11 v.

12 BJ’s Tavern LLC,

13 Defendant. 14 15 Before the Court is Defendant’s Motion for Summary Judgment (Doc. 47). Plaintiff 16 responded, (Doc. 50), and Defendant replied (Doc. 58). The Court now rules. 17 I. BACKGROUND 18 The following facts are either undisputed or recounted in the light most favorable to 19 Plaintiff, the non-movant. Ellison v. Robertson, 357 F.3d 1072, 1075–76 (9th Cir. 2004). 20 On the evening of November 10, 2017, Plaintiff and his friend, J.L., visited Lake 21 Havasu with their respective girlfriends to celebrate Veteran’s Day weekend. (Doc. 47 at 22 3). They went to dinner at a local restaurant where Plaintiff had two drinks with his meal. 23 (Docs. 47 at 3; 50 at 13). After dinner, Plaintiff’s party went to Defendant’s bar, BJ’s 24 Tavern (“BJ’s”). (Doc. 47 at 3). 25 Just before 1:00 a.m. on November 11, 2017, a fight broke out inside the bar 26 involving J.L. (Id.). BJ’s staff detained J.L. and called Lake Havasu City Police. (Id.). 27 While waiting for the police, BJ’s staff handcuffed J.L. and held him on the sidewalk in 28 front of the bar. (Id. at 4). Plaintiff, who was not involved in the fight went looking for J.L. 1 and found him detained in front of BJ’s. (Id.). Plaintiff began speaking with the BJ’s 2 employee who was detaining J.L. requesting that J.L. be released so Plaintiff could take 3 him home. (Id.). While he was speaking with the BJ’s employee about J.L., three men— 4 B.T., B.J., and E.B.—tackled Plaintiff to the ground, struck him, and held him there until 5 the police arrived. (Docs. 47 at 4–6; 50 at 4). 6 When the police arrived, they handcuffed Plaintiff and began investigating what 7 happened. (Doc. 47 at 6). While Plaintiff was handcuffed, Plaintiff alleges that a BJ’s 8 employee told him: “If you don’t sue [BJ’s], I won’t press charges on you.” (Doc. 50 at 9 9 (citing Doc. 54-3 at 15)). Plaintiff responded by saying “go ahead and press your charges, 10 because I’m definitely going to sue [BJ’s].” (Id.). Ultimately, Plaintiff was released after 11 being cited with criminal misdemeanors for disorderly conduct and assault. (Doc. 47 at 6). 12 Plaintiff later pled not guilty to the charges against him. (Id. at 7). Because of his 13 veteran status, Plaintiff qualified for and participated in a special diversion program 14 available to veterans. (Id.). As part of this diversion program, Plaintiff performed 15 community service, submitted to drug and alcohol screens, and attended an alcohol 16 counseling program. (Id.). In exchange for completing the diversionary program, the 17 charges against Plaintiff were dismissed with prejudice. (Id.). 18 Plaintiff then filed a complaint with this Court on February 6, 2019. (Doc. 1). 19 Plaintiff amended the initial complaint, (Doc. 13), and ultimately filed the Second 20 Amended Complaint (Doc. 25) on July 15, 2010. Defendant answered, (Doc. 26), and filed 21 the instant Motion for Summary Judgment (Doc. 47). Plaintiff responded, (Doc. 50), and 22 Defendant replied, (Doc. 58). 23 II. LEGAL STANDARD 24 Summary judgment in favor of a party is appropriate when that party “shows that 25 there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter 26 of law.” Fed. R. Civ. P. 56(a). Stated conversely, a party “can defeat summary judgment 27 by demonstrating the evidence, taken as a whole, could lead a rational trier of fact to find 28 in its favor.” S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003) (per 1 curiam). 2 The movant must first establish that there is no genuine dispute of material fact and 3 that, based on the undisputed material facts, the movant is entitled to judgment as a matter 4 of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the 5 nonmovant to demonstrate the existence of any dispute of material fact. Id. at 323–24. The 6 nonmovant “must do more than simply show that there is some metaphysical doubt as to 7 the material facts” by “com[ing] forward with ‘specific facts showing that there is a genuine 8 issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 9 (1986) (quoting Fed. R. Civ. P. 56(e) (1963)). There is a genuine issue of material fact if 10 the disputed issue of fact “could reasonably be resolved in favor of either party.” Ellison, 11 357 F.3d at 1075. Material facts are those “facts that might affect the outcome of the suit.” 12 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must “construe all 13 facts in the light most favorable to the non-moving party.” Ellison, 357 F.3d at 1075–76 14 (citation omitted). However, the nonmovant’s bare assertions, standing alone, are 15 insufficient to create a material issue of fact that would defeat the motion for summary 16 judgment. Anderson, 477 U.S. at 247–48. 17 III. ANALYSIS 18 Plaintiff asserts the following claims for relief against BJ’s: (1) assault and battery 19 via respondeat superior; (2) negligence via respondeat superior; (3) negligent hiring, 20 training, and supervision; and (4) malicious prosecution. (Doc. 25 at 4–7). Defendant 21 asserts that it is entitled to summary judgment on the first three claims because “the men 22 who allegedly assaulted Plaintiff (or who, alternatively, are alleged to have acted in a 23 negligent manner in detaining him) were not employed by BJ’s Tavern.” (Doc. 47 at 1–2 24 (footnote omitted)). Defendant further asserts that it is entitled to summary judgment on 25 the fourth claim because “BJ’s employees did not initiate or take an active part in the 26 prosecution of the criminal proceeding against Plaintiff,” and “the criminal proceeding was 27 not terminated in Plaintiff’s favor.” (Id. at 2 (internal marks omitted)). The Court will 28 address these arguments in turn. 1 a. Employment Related Claims 2 “Under the doctrine of respondeat superior, an employer is vicariously liable for 3 ‘the negligent work-related actions of its employees.’” Kopp v. Physician Grp. of Arizona, 4 Inc., 421 P.3d 149, 151 (Ariz. 2018) (quoting Engler v. Gulf Interstate Eng’g, Inc., 280 5 P.3d 599, 601 (Ariz. 2012)). “Vicarious liability results solely from the principal-agent 6 relationship: ‘those whose liability is only vicarious are fault free—someone else’s fault is 7 imputed to them by operation of law.’” Id. (quoting Wiggs v. City of Phoenix, 10 P.3d 625, 8 629 (Ariz. 2000)). Thus, under a theory of respondeat superior, one can only be held 9 vicariously liable for a party that is acting as their agent or employee. See Wiggs, 10 P.3d 10 at 629; Jeter v. DISH Network Serv. LLC, No. CV-19-05111-PHX-GMS, 2020 WL 11 3472549, at *2 (D. Ariz. June 25, 2020). 12 Similarly, “‘[f]or an employer to be held liable for ... negligent hiring, retention, or 13 supervision,’ one of its employees must commit a tort.” Ford v. Barnas, No. CV17-2688- 14 PHX DGC, 2018 WL 5312912, at *2 (D. Ariz. Oct. 26, 2018) (quoting Kuehn v. Stanley, 15 91 P.3d 346, 352 (Ariz. Ct. App. 2004)); see Petty v. Arizona, No. CV-15-01338-PHX- 16 DLR, 2016 WL 4095835, at *1 (D. Ariz. Aug. 2, 2016) (“To state a claim for negligent 17 supervision, the plaintiff must allege that an employee committed a tort, that the defendant 18 employer had a reason and opportunity to act, and that the defendant failed to perform its 19 duty to supervise.”). Thus, a business can only be held liable for negligent hiring, training, 20 and supervision if it employed the party that committed the tort at issue. See Ford, 2018 21 WL 5312912, at *3 (granting summary judgment on claims of negligent hiring, training, 22 and supervision because plaintiff failed to present evidence that defendant employed the 23 tortfeasor). 24 Defendant argues that it is entitled to summary judgment on Plaintiff’s first three 25 claims because the men who tackled Plaintiff and held him until the police arrived were 26 not employees of BJ’s. (Id. at 8–9). To support this argument, Defendant presents the 27 deposition testimony of three separate witnesses. First, A.C., the general manager of BJ’s, 28 testified that the three men who tackled and held Plaintiff on the night at issue were not 1 BJ’s employees. (Doc. 47-1 at 27–28, 34, 38). Next, C.M.C., the manager of BJ’s, similarly 2 said that the three men were not BJ’s employees. (Id. at 48–50). Finally, one of the three 3 men who tackled and held Plaintiff, B.T., testified that he was not employed by BJ’s on the 4 night at issue nor had he ever been employed by BJ’s. (Id. at 54, 56). 5 Plaintiff responds that the three men were employed by BJ’s on a contract basis on 6 the evening at issue. (Doc. 50 at 13–14). Plaintiff relies on statements made by B.T. and 7 A.C. that were captured by body-worn police cameras, and statements by B.T. made three 8 years after the night at issue that were recorded by a private investigator. (See Doc. 50 at 9 13–14). Defendant argues that this evidence is inadmissible and, thus, does not create a 10 genuine dispute of fact to defeat summary judgment. (Doc. 58 at 2–3). Defendant further 11 argues that, even if the evidence was admissible, Plaintiff has not created a genuine issue 12 of fact regarding the employment status of the three men because Plaintiff “does not even 13 analyze what facts must be presented in order to establish an employer-employee 14 relationship.” (Id. at 3). 15 1. Admissibility of Plaintiff’s Evidence 16 When arguing that the men who tackled and held him were BJ’s employees, Plaintiff 17 cites statements made by B.T. and A.C. on the night at issue that were captured by body- 18 worn police cameras, and statements by B.T. made three years later that were recorded by 19 a private investigator. (See Doc. 50 at 13–14). Defendant argues that these statements 20 cannot be considered by the Court because they are inadmissible hearsay, and that the 21 body-worn police camera footage has not been properly authenticated. (Doc. 58 at 2–3). 22 “A trial court can only consider admissible evidence in ruling on a motion for 23 summary judgment.” Holt v. Noble House Hotels & Resort, Ltd, 370 F. Supp. 3d 1158, 24 1164 (S.D. Cal. 2019) (citing Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 25 2002)). “But ‘[a]t the summary judgment stage, we do not focus on the admissibility of the 26 evidence’s form. We instead focus on the admissibility of its contents.’” Sandoval v. Cty. 27 of San Diego, 985 F.3d 657, 666 (9th Cir. 2021) (quoting Fraser v. Goodale, 342 F.3d 28 1032, 1036 (9th Cir. 2003)); see Fed. R. Civ. P. 56(c)(2). “If the contents of a document 1 can be presented in a form that would be admissible at trial—for example, through live 2 testimony by the author of the document—the mere fact that the document itself might be 3 excludable hearsay provides no basis for refusing to consider it on summary judgment.” 4 Id. Similarly, a court may rely on unauthenticated video evidence in support of an argument 5 against summary judgment if that evidence could be presented in an admissible form at 6 trial. See Ericson v. City of Phoenix, No. CV-14-01942-PHX-JAT, 2016 WL 6522805, at 7 *8 (D. Ariz. Nov. 3, 2016); Figueroa v. Delta Galil USA, Inc., No. 18-CV-07796-RS, 2021 8 WL 1055197, at *5 n.4 (N.D. Cal. Feb. 16, 2021) (considering unauthenticated evidence 9 at the summary judgment stage, in part, because it could be presented in an admissible form 10 at trial). 11 Considering B.T.’s statements to the private investigator first, the statements may 12 be hearsay because they are out-of-court statements offered to prove the truth of the matter 13 asserted. Fed. R. Evid. 801(c). The contents of the statements, however, could be presented 14 in an admissible form at trial. When speaking with the private investigator, B.T. said that 15 both he and E.B. worked as security staff at BJ’s during the period at issue. (Doc. 54-2 at 16 6–8, 12). While the statements to the private investigator may not be admissible, B.T. can 17 be called to testify at trial and he could testify consistent with these out-of-court statements. 18 Thus, the contents of B.T.’s statements can be considered on summary judgment because 19 they could be presented in a form that would be admissible at trial. See Fraser, 342 F.3d at 20 1037 (holding that hearsay statements could be considered on summary judgment because 21 the declarant could be called to testify to the contents of the statements at trial); Lober v. 22 Dejoy, No. 20-15888, 2021 WL 1627026, at *1 (9th Cir. Apr. 27, 2021) (holding that a 23 district court did not abuse its discretion by considering possible hearsay evidence on 24 summary judgment, in part, because it was capable of being provided in an admissible form 25 at trial); Sandoval, 985 F.3d at 667 (holding that a district court abused its discretion by 26 not considering inadmissible hearsay evidence at the summary judgment stage because that 27 evidence was capable of being provided in an admissible form at trial). 28 Defendant may argue that B.T. cannot testify consistent with his out-of-court 1 statements to the private investigator because B.T. stated under oath that he was never 2 employed in a security capacity by BJ’s. (See Doc. 47-1 at 54). Yet, while arguing that the 3 evidence in its current form is inadmissible, Defendant has not shown that the instant 4 evidence cannot be presented at trial in an admissible form. Because B.T. himself has given 5 two different accounts of his relationship to BJ’s, the Court cannot predict on summary 6 judgment which version will be his testimony at trial. So, the Court may consider Plaintiff’s 7 evidence when deciding the Motion for Summary Judgment. See In re SDG&E Consol. 8 Cases., No. 17-CV-02433-BAS-JLB, 2021 WL 662259, at *5 (S.D. Cal. Feb. 19, 2021) 9 (considering hearsay evidence at summary judgment stage because defendant had not 10 shown that evidence could not be presented at trial in an admissible form). 11 Further, when B.T. was asked at his deposition about his statements to the private 12 investigator, B.T. invoked his Fifth Amendment right not to testify. (See Doc. 54-1 at 4– 13 6). Assuming he invokes his Fifth Amendment right if asked similar questions at trial, 14 Plaintiff could seek an adverse inference instruction. See Doe ex rel. Rudy-Glanzer v. 15 Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000) (holding that “in civil proceedings adverse 16 inferences can be drawn from a party’s invocation of this Fifth Amendment right”). A jury 17 could credit such an adverse inference to find that B.T. was an employee of BJ’s on the 18 night at issue. 19 Similarly, B.T.’s and A.C.’s statements on the body-worn police camera footage 20 may be hearsay, but because B.T. and A.C. could be called at trial, the Court is not barred 21 from considering the contents of these statements when deciding the Motion for Summary 22 Judgment. Further, Defendant argues that the body-worn police camera footage cannot be 23 considered because it has not been authenticated. (Doc. 58 at 3); see Fed. R. Evid. 901. 24 However, “[t]he fact that [Plaintiff’s] exhibits are unauthenticated does not bar their 25 consideration for the limited purpose of opposing [Defendant’s] Motion[] for Summary 26 Judgment.” Ericson, 2016 WL 6522805, at *8. Because the contents of the body-warn 27 police camera footage could be presented in an admissible form at trial, the Court may 28 consider the footage at the summary judgment stage. Id.; Sandoval, 985 F.3d at 666. 1 Thus, while the evidence at issue may not currently be in an admissible format, the 2 Court may consider its contents in opposition to a motion for summary judgment because 3 it could be presented in an admissible form at trial. 4 2. Factors to Establish an Employer-Employee Relationship 5 Defendant further argues that Plaintiff has not created a genuine issue of fact 6 regarding the employment status of the men who tackled Plaintiff because Plaintiff “does 7 not even analyze what facts must be presented in order to establish an employer-employee 8 relationship.” (Doc. 58 at 3). Defendant goes on to argue that Plaintiff has the burden to 9 prove his claim and, because he has not presented evidence to do so at this stage, Defendant 10 is entitled to summary judgment. (Id. at 4). 11 The Arizona Supreme Court has established criteria that must be evaluated in 12 determining whether an employer-employee relationship exists: 13 1. The extent of control exercised by the master over details of the work and 14 the degree of supervision; 2. The distinct nature of the worker’s business; 3. Specialization or skilled occupation; 4. Materials and place of work; 5. 15 Duration of employment; 6. Method of payment; 7. Relationship of work done to the regular business of the employer; 8. Belief of the parties. 16 17 Santorii v. MartinezRusso, LLC, 381 P.3d 248, 252 (Ariz. Ct. App. 2016) (quoting Santiago 18 v. Phx. Newspapers, Inc., 794 P.2d 138, 142 (Ariz. 1990)). “The fundamental criterion is 19 the extent of control the principal exercises or may exercise over the agent.” Santiago, 794 20 P.2d at 141. 21 Defendant is correct that Plaintiff did not conduct an analysis of the above criteria 22 in his response. (See Doc. 50). As the non-movant, however, Plaintiff is not required to 23 prove his claims at this stage to defeat summary judgment. Instead, a non-movant “can 24 defeat summary judgment by demonstrating the evidence, taken as a whole, could lead a 25 rational trier of fact to find in its favor.” S. Cal. Gas Co., 336 F.3d at 888. In moving for 26 summary judgment, it is Defendant’s burden as the movant to establish that there is no 27 genuine dispute of material fact and that it is entitled to judgment as a matter of law. 28 Celotex, 477 U.S. at 323. Thus, Plaintiff’s failure to analyze the above factors does not 1 necessarily mean that summary judgment should be granted in Defendant’s favor. 2 3. Conclusion Regarding Employment Claims 3 Because the contents of Plaintiff’s evidence could be presented in an admissible 4 form at trial, the Court will consider the statements made to the private investigator and the 5 statements made in the body-worn police camera footage. In these statements, at least one 6 of the men who injured Plaintiff, B.T., admits that he was a BJ’s employee on the night at 7 issue. Assuming this evidence is converted to an admissible format at trial, that admission 8 creates a genuine dispute of fact with Defendant’s evidence in which B.T. and others allege 9 that none of the men who injured Plaintiff were employees on the night in question. 10 Additionally, B.T.’s invocation of his Fifth Amendment right when asked about his 11 employment status with BJ’s could lead Plaintiff to seek an adverse inference instruction. 12 See Doe, 232 F.3d at 1264. The possibility of such an adverse inference instruction further 13 creates a dispute to be resolved at trial. 14 Further adding to the dispute over the employment status of the men who injured 15 Plaintiff is the “sequence of events” on the night at issue. (Doc. 50 at 14). The parties do 16 not dispute that B.T. intervened in a fight inside of the bar, tackled Plaintiff when Plaintiff 17 was attempting to secure his friend’s release from the custody of BJ’s staff, and detained 18 Plaintiff until the police arrived. (Docs. 47 at 4–5; 47-1 at 55–56; 50 at 14). The Court 19 agrees with Plaintiff’s argument that these actions add to the existing factual dispute 20 regarding the employment of at least one of the men who injured Plaintiff. 21 Because Plaintiff has shown that “the evidence, taken as a whole, could lead a 22 rational trier of fact to find in [his] favor,” the Court will deny Defendant’s motion for 23 summary judgment on the employment related claims. S. Cal. Gas Co., 336 F.3d at 888. 24 b. Malicious Prosecution Claim 25 Defendant asserts that it is entitled to summary judgment on Plaintiff’s claim for 26 malicious prosecution because “BJ’s employees did not initiate or take an active part in the 27 prosecution of the criminal proceeding against Plaintiff,” and “the criminal proceeding was 28 not terminated in Plaintiff’s favor.” (Id. at 2 (internal marks omitted)). Plaintiff responds 1 that there are questions of fact as to BJ’s employees’ roles in the initiation of criminal 2 charges against Plaintiff, and that the case against Plaintiff ended in the most favorable 3 way possible, dismissal with prejudice. (Doc. 50 at 15). 4 To successfully assert a claim for malicious prosecution, “[t]he plaintiff must prove 5 [1] damage by a criminal prosecution, [2] which terminated in his favor, [3] with defendant 6 as prosecutor or complaining witness [4] acting without probable cause and [5] with 7 malice.” Bearup v. Bearup, 596 P.2d 35, 36 (Ariz. Ct. App. 1979) (citing Slade v. City of 8 Phoenix, 541 P.2d 550 (Ariz. 1975); Overson v. Lynch, 317 P.2d 948 (Ariz. 1957)). 9 Defendant only challenges the second and third elements. The Court will examine whether 10 the prosecution was terminated in Plaintiff’s favor. 11 1. Terminated in Plaintiff’s Favor 12 “The ultimate legal decision with respect to what constitutes a favorable termination 13 rests with the judge.” Frey v. Stoneman, 722 P.2d 274, 279 (Ariz. 1986) (citing Restatement 14 (Second) of Torts §§ 673, 674). There is no per se rule as to what constitutes a favorable 15 termination when there has been no adjudication of the merits, but the ultimate question is 16 “whether, under the particular circumstances and merits of the underlying case, termination 17 was actually favorable.” Id. at 278. “A termination without a trial on the merits may be a 18 favorable termination of the litigation if [the circumstances] indicate the innocence or 19 freedom from liability of the defendant.” Id. at 279. “While a plaintiff’s dismissal of a civil 20 action may under some circumstances be considered a termination of the action in favor of 21 a defendant, not all voluntary dismissals constitute favorable termination.” Lane v. Terry 22 H. Pillinger, P.C., 939 P.2d 430, 432 (Ariz. Ct. App. 1997). When a dismissal “‘is merely 23 a procedural or technical dismissal it is not favorable.’” Id. (quoting Frey, 722 P.2d at 278). 24 Defendant argues that, because the charges against Plaintiff were dismissed due to 25 Plaintiff’s participation in and completion of a diversion program, the proceeding was not 26 terminated in Plaintiff’s favor. (Doc. 47 at 11–12). Plaintiff responds that the proceeding 27 was terminated in his favor because the charges against him were dismissed with prejudice, 28 because there are no facts supporting his guilt, and because Defendant has presented no 1 evidence that Plaintiff’s charges were dismissed for any reason other than innocence. (Doc. 2 50 at 16–19). 3 To begin, as noted in Plaintiff’s response, prosecutors in Arizona may stipulate to 4 the dismissal of a party’s charges with or without prejudice following pretrial diversion. 5 (See id. at 18 (citing Ariz. R. Crim. P. 38.1, 38.3)). Thus, the dismissal of Plaintiff’s charges 6 without prejudice does not support the argument that the charges were dismissed because 7 of Plaintiff’s innocence rather than because of the successful completion of a pretrial 8 diversion program. 9 Next, Plaintiff argues there is no factual support for his guilt of either disorderly 10 conduct or assault. (Id. at 17). It is not this Court’s role to determine the facts of the 11 underlying charges, however, but instead the Court examines the facts surrounding the 12 dismissal of the charges at issue. See Lane, 939 P.2d at 434–35 (examining the facts 13 surrounding the termination, not the underlying charge); Milke v. City of Phoenix, No. CV- 14 15-00462-PHX-ROS, 2016 WL 5339693, at *10 (D. Ariz. Jan. 8, 2016) (same); Donahoe 15 v. Arpaio, 986 F. Supp. 2d 1091, 1134 (D. Ariz. 2013) (same). Thus, the facts surrounding 16 Plaintiff’s underlying charges will not guide the Court’s analysis of the termination. 17 Plaintiff additionally asserts that Defendant has presented no evidence that 18 Plaintiff’s charges were dismissed for any reason other than innocence. (Doc. 50 at 17– 19 19). Defendant, however, presented Plaintiff’s own deposition testimony in which Plaintiff 20 agrees that “as a result of [the diversion program], the two charges, one for assault and one 21 for disorderly conduct, were then dismissed in exchange for [Plaintiff completing the 22 diversion program].” (Doc. 47-1 at 6). Thus, the evidence provided by Defendant amounts 23 to an admission that the charges against Plaintiff were dismissed without regard for his 24 guilt or innocence. 25 Further, Plaintiff cites Awabdy v. City of Adelanto, 368 F.3d 1062, 1068 (9th Cir. 26 2004), to argue that his malicious prosecution claim should survive summary judgment 27 because the underlying criminal charges against him were the result of fraudulent conduct 28 by Defendants. (See Doc. 50 at 17–18). Plaintiff uses the following language from Awabdy 1 to support his argument:

2 When such a dismissal is procured as the result of a motion by the prosecutor 3 and there are allegations that the prior proceedings were instituted as the result of fraudulent conduct, a malicious prosecution plaintiff is not 4 precluded from maintaining his action unless the defendants can establish 5 that the charges were withdrawn on the basis of a compromise among the parties or for a cause that was not inconsistent with his guilt. 6 7 Awabdy, 368 F.3d at 1068. The instant case, however, is easily distinguished from Awabdy. 8 The dismissal at the core of Awabdy was a “a dismissal in the interests of justice” which 9 the Awabdy court found “reflect[ed] the opinion of the prosecuting party or the court that 10 the action lacked merit or would result in a decision in favor of the defendant.” Id. Here, 11 the dismissal did not reflect the opinion that the action lacked merit. The dismissal, as 12 admitted to by Plaintiff, was a result of the successful completion of a diversion program.1 13 Thus, the quoted proposition in Awabdy cannot support the weight Plaintiff gives it. 14 Finally, at oral argument, Plaintiff’s counsel quoted Kopp v. Physician Grp. of 15 Arizona, Inc. which states “[n]early seventy-five years ago, [the Arizona Supreme Court] 16 held in DeGraff v. Smith that a dismissal with prejudice is a judgment on the merits that 17 carries preclusive effect.” Kopp v. Physician Grp. of Arizona, Inc., 421 P.3d 149, 150 (Ariz. 18 2018). Plaintiff’s counsel cited this quotation while arguing that the dismissal with 19 prejudice of Plaintiff’s charges necessarily means that the criminal action against Plaintiff 20 was terminated in his favor. In the very same paragraph, however, the Kopp court goes on 21 to say “we disavow our holding in DeGraff insofar as that case and its progeny conclude 22 that a stipulated dismissal with prejudice ‘operate[s] as an adjudication that [the dismissed 23 party] was not negligent in the treatment of [the] plaintiff.’” Id. (quoting Torres v. 24 Kennecott Copper Corp., 488 P.2d 477 (Ariz. Ct. App. 1971)). As it relates to this case, 25 the Court reads Kopp to stand for the idea that a dismissal with prejudice does not 26 necessarily operate as an adjudication that the dismissed party was innocent of the charged 27 conduct.

28 1 Plaintiff’s counsel underscored this point at oral argument when he stated that the dismissal here was “guilt and innocence neutral.” 1 In light of Plaintiff’s admission and the lack of any evidence to the contrary, the 2|| Court finds that the charges against Plaintiff were dismissed due to his completion of a || diversion program, rather than because of his innocence or freedom from liability, so the 4|| prosecution was not terminated in Plaintiff’s favor. See Frey, 722 P.2d at 279; see also 5|| Rodriguez v. Cty. of Los Angeles, No. 816CVO0674MCSSHK, 2021 WL 945250, at *2 6|| (C.D. Cal. Jan. 25, 2021) (holding that dismissal pursuant to completion of a diversion program is not a favorable termination); Taylor v. Gregg, 36 F.3d 453, 455-56 (Sth Cir. 8 || 1994) (same); Berman vy. City of Los Angeles, No. CV192942DMGJEMX, 2020 WL 8512314, at *10 (C.D. Cal. Nov. 25, 2020) (same). Because the prosecution was not || terminated in Plaintiff’s favor, the Court need not address the other elements of malicious 11 || prosecution, and Defendant is entitled to summary judgment on this claim. See Lane, 939 || P.2d at 435 (affirming grant of summary judgment to defendant on malicious prosecution 13 | claim because charges were not terminated in plaintiff’s favor); Milke, 2016 WL 5339693, 14]| at *11 (dismissing malicious prosecution claim because charges were not terminated in 15 || plaintiffs favor). 16] IV. CONCLUSION 17 Accordingly, 18 IT IS ORDERED that Plaintiff’s Motion for Summary Judgment (Doc. 47) is GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED as to 20 || Plaintiff’s fourth claim (malicious prosecution) and DENIED as to all other claims. 21 Dated this 14th day of June, 2021. 22 23 a 3 24 5 _ James A. Teil Org Senior United States District Judge 26 27 28

-13-