MT v. United States

• Court: District Court, S.D. California
• Decided: April 10, 2025
• Docket: 3:22-cv-00171
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 M.T., a minor by and through his Case No.: 22-CV-171 TWR (KSC) Guardian Ad Litem VIKTORIIA 12 ZUBKOVA; A.T., a minor by and through STATEMENT OF FINDINGS OF 13 her Guardian Ad Litem VIKTORIIA FACT AND CONCLUSIONS OF ZUBKOVA; and LEYLA BOROVIK, LAW FOLLOWING BENCH TRIAL 14

Plaintiffs, 15 v. 16 UNITED STATES OF AMERICA, 17 Defendant. 18

20 Plaintiffs Leyla Borovik, M.T. (by and through his Guardian Ad Litem Viktoriia 21 Zubkova), and A.T. (by and through her Guardian Ad Litem Viktoriia Zubkova) initiated 22 this action against Defendants United States of America, Federal Bureau of Investigation 23 (“FBI”) Special Agent Trent Pedersen, and Does 1–30. (See ECF No. 1 (“Compl.”).) The 24 operative Complaint alleged the following four causes of action on behalf of all Plaintiffs: 25 (1) Federal Tort Claims Act (“FTCA”) claims against all Defendants for assault and 26 battery, (2) FTCA claims against all Defendants for false imprisonment, (3) FTCA claims 27 against all Defendants for intentional infliction of emotional distress, and (4) Bivens claims 28 against all Defendants for violation of Plaintiffs’ Fourth Amendment rights. (See ECF No. 1 4.) The Honorable Roger T. Benitez dismissed Plaintiffs’ Bivens claims, as well as all 2 claims against Special Agent Pedersen and the Doe Defendants. (See ECF No. 14 at 26.) 3 After Judge Benitez denied Defendant United States of America’s Motion for 4 Summary Judgment, (see ECF No. 45), the undersigned presided over a two-day bench 5 trial that began on February 24, 2025, (see ECF Nos. 59, 61). During the trial, the Court 6 heard testimony from Plaintiff M.T., Yevgeny Tuchinsky, FBI Special Agent Rebekah 7 Frank, Dr. Cynthia Norall, FBI Special Agent Steven Hoogland, Plaintiff Leyla Borovik, 8 Plaintiff A.T., FBI Special Agent Nicole Martin, FBI Interpreter “Lana,” Edgar Fritz, FBI 9 Special Agent Laura Wetterer, FBI Special Agent Steven Hymas, and Retired FBI Special 10 Agent James Malpede. (See ECF No. 62.) Subsequently, the Parties filed their closing 11 briefs. (See ECF No. 71 (“Def.’s Br.”); ECF No. 72 (“Pl.’s Br.”).) 12 Having carefully considered the record, the Parties’ arguments, and the relevant law, 13 the Court issues the following findings of fact and conclusions of law pursuant to Federal 14 Rule of Civil Procedure 52(a)(1). See Fed. R. Civ. P. 52(a)(1) (“In an action tried on the 15 facts without a jury or with an advisory jury, the court must find the facts specially and 16 state its conclusions of law separately.”) 17 FINDINGS OF FACT1 18 I. The Warrants 19 1. On October 24, 2019, Yevgeny Tuchinsky was indicted in the District of Utah, 20 and a warrant issued that day authorized the arrest of Mr. Tuchinsky for crimes related to 21 wire fraud and money laundering. (ECF No. 58 at 11–12 (“Stip. Facts”) ¶¶ 1–2; see also 22 Ex. 501.)2 The same day, the Honorable Karen S. Crawford of the Southern District of 23 24 25 1 To the extent that the record contains testimony contrary to the factual findings set forth below, 26 the Court has determined that any such contradictory testimony is not credible. See 9th Cir. Crim. Jury Instr. 6.9 (2024). 27 2 All citations to numbered exhibits refer to exhibits that the Court received into evidence at trial. 28 1 California issued a warrant that authorized the search of Mr. Tuchinsky’s San Diego 2 residence and the seizure of certain items. (Stip. Facts ¶ 2; see also Ex. 502.) 3 2. The Operations Order, which the FBI agents “were following on [the day that 4 they executed the warrants],” (ECF Nos. 64–66 (“Trial Tr.”) at 198:11–16),3 cautioned that 5 “weapons w[ould] likely be found at the residence.” (Ex. 503 at 1.)4 Specifically, the 6 search and seizure warrant identified a “DPMS LRT-SASS .308 cal[iber] rifle” to be seized 7 at Mr. Tuchinsky’s San Diego residence. (Ex. 502 at 4.) 8 3. The Operations Order also notified the agents of the “[p]otential presence of 9 two children around ages 6 and 8.” (Ex. 502 at 3.) Indeed, on the day the agents executed 10 the warrants, M.T. and A.T. were six years old and eight years old, respectively. (Trial Tr. 11 at 16:7–8, 214:10–11.) 12 II. Execution of the Warrants 13 A. Initial Contact and Clearing the Residence 14 4. Around 6:00 a.m. on October 25, 2019, FBI agents executed the search and 15 arrest warrants at Mr. Tuchinsky’s San Diego residence. (Stip. Facts ¶ 3; Ex. 503 at 1.) 16 5. As directed by the Operations Order, nine agents formed a single-file “stack” 17 outside the front door to the residence. (Trial Tr. at 173:12–25, 176:6–17; see also Ex. 503 18 at 5.) FBI Special Agent Steven Hoogland was at the front of the stack, and he was armed 19 with a “Remington 870, a 12-gauge shotgun.” (Trial Tr. at 174:1–5; see also Ex. 503 at 20 11.) A flashlight “was mounted on the front of the shotgun.” (Trial Tr. at 180:2–3.) The 21 other agents in the stack were armed with agency-approved nine-millimeter Glock 19M 22

23 move any exhibits into evidence at trial, Plaintiffs’ exhibits are not part of the record before the Court. 24 (See ECF No. 72.) 25 3 All page-specific citations to the trial transcript refer to the page numbers that are located in the 26 top-right of each page and run sequentially throughout the entire transcript document, from ECF No. 64 to ECF No. 66. 27 4 All page-specific citations to Defendant’s exhibits refer to the six digit numeral in the bottom- 28 1 handguns. (Trial Tr. at 86:4–14, 175:23–176:3; see also Ex. 503 at 11.) Special Agent 2 Hoogland was the only agent armed with a long gun or shotgun. (Trial Tr. at 197:13–17; 3 see also Ex. 503 at 11.) 4 6. Consistent with their training, the armed FBI agents held their weapons at the 5 “gun at the ready” or “gun ready” position, meaning that they pointed their weapons “at a 6 forty-five degree angle” towards the ground, “in a safe direction,” “not directly [] at any 7 person.” (Trial Tr. at 86:15–87:3, 176:18–177:5.) 8 7. Special Agent Hoogland knocked on the front door of the residence and 9 called, “FBI, search warrant, open the door.” (Trial Tr. at 177:21–23.) He was wearing a 10 blue polo shirt, khaki pants, and a green ballistic vest emblazoned with “FBI” in yellow 11 letters on the front and back. (Trial Tr. at 200:6–10.) Other agents also wore apparel that 12 identified their status as FBI agents. (Trial Tr. at 108:22–24.) 13 8. Mr. Tuchinsky answered the door. (Trial Tr. at 43:6–12, 177:23–25.) The 14 agents told Mr. Tuchinsky that he was under arrest, and they handcuffed him. (Trial Tr. at 15 43:13–21, 179:6–10.) Special Agent Hoogland never pointed the shotgun at Mr. 16 Tuchinsky. (Trial Tr. at 200:17–19.) 17 9. Shortly after the agents handcuffed Mr. Tuchinsky, M.T.—whose bedroom 18 was immediately adjacent to the main entrance of the home, (Trial Tr. at 17:19–23)—ran 19 past his father and out of the residence. (Trial Tr. at 93:15–24.) Special Agent Rebekah 20 Frank, who was “towards the front” of the stack but “not [one of] the first three 21 individuals[,]” (Trial Tr. at 85:11–13), noticed that there was “a little boy in the yard.” 22 (Trial Tr. at 93:15–19.) She holstered her weapon and grabbed the child, “[f]or his 23 safety[, ] for agent safety, [and] to maintain control of the situation.” (Trial Tr. at 93:17–20, 24 97:18–20.) Additionally, to protect M.T. from witnessing his father’s arrest, Special Agent 25 Frank “turned the little boy so he was facing away.” (Trial Tr. at 109:17–23.) 26 10. After placing Mr. Tuchinsky in custody, some FBI agents, including Special 27 Agent Hoogland, entered the residence with their weapons in “gun ready” position. (Trial 28 Tr. at 179:11–24, 181:15–20.) Special Agent Hoogland, with Special Agent Kari Harrison 1 right behind him, proceeded down a dark hallway until he encountered a room with a closed 2 door. (Trial Tr. at 182:2–18, 183:4–18.) 3 11. Special Agent Hoogland opened the door with his left hand and held the 4 shotgun, pointed at the ground, with his right hand. (Trial Tr. at 184:10–13.) After he 5 opened the door, Special Agent Hoogland brought the shotgun back to “gun ready” position 6 and scanned the room. (Trial Tr. at 184:23–25, 185:17–19.) The flashlight affixed to the 7 weapon, despite being pointed at a forty-five degree downward angle, sufficiently 8 illuminated the room so that Special Agent Hoogland “was able to see movement in the 9 room.” (Trial Tr. at 186:7–12.) 10 12. Without pointing his shotgun at the occupant of the room, Special Agent 11 Hoogland observed a “little girl in bed,” later identified as A.T. (Trial Tr. at 187:16–24.) 12 Special Agent Harrison “came around [Special Agent Hoogland’s] right side,” approached 13 A.T., and asked A.T. to “come with [her].” (Trial Tr. at 187:25–188:3.) Special Agent 14 Harrison then “took [A.T.] by the hand and removed her from the room.” (Trial Tr. at 15 188:3–4.) 16 13. Leyla Borovik, wife of Mr. Tuchinsky and mother to M.T. and A.T., occupied 17 a bedroom towards the rear of the residence, separate from that of her husband. (Trial Tr. 18 at 212:16–25.) At some point during the initial entry, Ms. Borovik awoke to a “very loud 19 noise.” (Trial Tr. at 213:1–8.) She approached her bedroom door and encountered an FBI 20 agent, who instructed her to exit the room and to follow him. (Trial Tr. at 219:5–19.) The 21 agent led Ms. Borovik to the front-entrance area of the home, where she saw her husband 22 and M.T. (Trial Tr. at 220:12–23, 222:6–8.) Ms. Borovik observed A.T. exit her bedroom 23 and “mov[e] towards” the family members in the front-entrance area, and Ms. Borovik 24 grabbed her. (Trial Tr. at 224:10–20.) 25 14. After Special Agent Harrison escorted A.T. from her bedroom, and with the 26 family secured in the front of the house, Special Agent Hoogland and other FBI agents 27 continued to clear the rest of the house for the following four to six minutes. (Trial Tr. at 28 / / / 1 188:15–20.) In total, agents moved around the house with unholstered weapons for about 2 ten minutes. (Trial Tr. at 56:11–13, 201:3–15, 243:5–11.) 3 15. Special Agent Hoogland never pointed the shotgun directly at M.T. or A.T. 4 (Trial Tr. at 200:20–201:2.) FBI agents never handcuffed Ms. Borovik or the two children. 5 (Trial Tr. at 245:11–15.) FBI agents never told Ms. Borovik or the two children to lay on 6 the ground. (Trial Tr. at 245:16–22.) FBI agents never removed M.T. or A.T. from Ms. 7 Borovik’s arms. (Trial Tr. at 246:14–16.) 8 B. Interviews of Mr. Tuchinsky and Ms. Borovik 9 16. Once the FBI agents cleared the residence, two agents took Mr. Tuchinsky 10 into his bedroom for an interview. (Trial Tr. at 225:2–8, 242:19–21, 328:7–21, 345:14–21.) 11 Around the same time, other agents moved Ms. Borovik, M.T., and A.T. into M.T.’s 12 bedroom, which was directly across from Mr. Tuchinsky’s bedroom. (Trial Tr. at 13 225:13–21.) 14 1. Interview of Mr. Tuchinsky 15 17. Special Agent Steven Hymas and Special Agent James Malpede accompanied 16 Mr. Tuchinsky into his bedroom and closed the bedroom door. (Trial Tr. at 328:11–24, 17 345:14–21.) Before beginning the interview, the two agents asked Mr. Tuchinsky “if he 18 wanted to put some clothes on.” (Trial Tr. at 345:22–24.) Mr. Tuchinsky declined, stating 19 that “he was fine the way he was.” (Trial Tr. at 345:25–346:3.) 20 18. At or around 6:10 a.m., FBI agents advised Mr. Tuchinsky of his rights and 21 provided to him an FBI “Advice of Rights” form. (Stip. Facts ¶ 4; Ex. 506; Trial Tr. at 22 329:9–18.) Mr. Tuchinsky signed the “Advice of Rights” form and consented to an 23 interview with the agents. (Stip. Facts ¶ 4; Ex. 506; Trial Tr. at 329:13–330:16.) 24 19. Before asking Mr. Tuchinsky any substantive questions, Special Agent 25 Hymas and Special Agent Malpede told Mr. Tuchinsky that his family “would be taken 26 care of” and that any “needs that they had, whether it be food or bathroom or if they needed 27 to go to school . . . would be taken care of.” (Trial Tr. at 347:17–24; see also Ex. 508 at 28 00:01:05.) 1 20. During the interview, Mr. Tuchinsky informed the agents that the rifle 2 identified in the search and seizure warrant was located at his residence in Utah. (Stip. 3 Facts ¶ 5.) Later that day, FBI agents in Utah obtained access to Mr. Tuchinsky’s Utah 4 residence, where they located and seized the weapon. (Stip. Facts ¶ 6; see also Ex. 507.) 5 21. Special Agent Hymas and Special Agent Malpede concluded their interview 6 of Mr. Tuchinsky at approximately 8:48 a.m., and at approximately 8:53 a.m., agents 7 transported Mr. Tuchinsky to the FBI office in San Diego for booking. (Stip. Facts ¶ 7.) 8 2. Interview of Ms. Borovik 9 22. While Special Agent Hymas and Special Agent Malpede interviewed Mr. 10 Tuchinsky, “Lana,” an FBI Russian Language Specialist, joined Ms. Borovik, M.T., and 11 A.T. in M.T.’s bedroom. (Trial Tr. at 284:6–10, 284:19:23, 285:7–14.) A female agent 12 was also in the room. (Trial Tr. at 285:11.) The female agent had her weapon holstered, 13 and Lana was unarmed. (Trial Tr. at 284:15–18, 285:7–14.) 14 23. The female agent left the room. (Trial Tr. at 285:18–21.) Approximately two 15 to five minutes later, Special Agent John Cunning entered the room and asked Ms. Borovik 16 if she was willing to talk to the agents. (Trial Tr. at 227:4–7, 285:22–25.) At some point, 17 Special Agent Frank joined the conversation. (Trial Tr. at 103:7–16.) 18 24. Ms. Borovik said that she was willing to speak with the FBI agents. (Trial Tr. 19 at 286:1–2.) She expressed concern about leaving her children, but the agents told her that 20 someone would watch the children while the agents interviewed her. (Trial Tr. at 286:2–4.) 21 The agents asked Ms. Borovik which room was the best room in which to interview her, 22 and she indicated that the loft on the second floor was best. (Trial Tr. at 104:12–15, 23 286:4–7.) 24 25. Special Agent Frank, Lana, and another FBI agent interviewed Ms. Borovik 25 in the loft. (Trial Tr. at 104:12–15, 287:12–14.) Ms. Borovik and the agents discussed Ms. 26 Borovik’s relationship with her husband and her knowledge of her husband’s business. 27 (Trial Tr. at 106:7–14, 288:1–15.) 28 / / / 1 26. Ms. Borovik’s interview lasted approximately forty minutes to one hour, and 2 Ms. Borovik never expressed a desire to end the conversation out of concern for her 3 children. (Trial Tr. at 107:19–20, 110:24–111:4, 288:16–25.) 4 27. After her interview, Ms. Borovik asked to change her clothes, and the agents 5 permitted her to do so. (Trial Tr. at 289:14–17.) Lana accompanied Ms. Borovik to her 6 bedroom and waited in the room while Ms. Borovik changed in the bathroom. (Trial Tr. 7 at 289:17–24.) Ms. Borovik had her cell phone with her, and she used the cell phone to 8 make and receive calls. (Trial Tr. at 289:25–290:12.) 9 28. Ms. Borovik, in the company of Lana and Special Agent Frank, went to the 10 kitchen area. (Trial Tr. at 111:17–24, 289:19–20.) Ms. Borovik “asked if she could cook 11 breakfast for the children.” (Trial Tr. at 291:2–4.) The agents gave Ms. Borovik 12 permission to do so, and Ms. Borovik prepared a meal for M.T. and A.T. (Trial Tr. at 13 291:3–20.) 14 3. Treatment of M.T. and A.T. 15 29. While other FBI agents interviewed Mr. Tuchinsky and Ms. Borovik, Special 16 Agent Nicole Martin and Special Agent Laura Wetterer, both of whom were assigned to 17 the search team, stayed with M.T. and A.T. and supervised them. (Trial Tr. at 302:9–13, 18 318:2–12.) 19 30. Special Agent Wetterer took M.T. and A.T. to their playroom, which was 20 down a hallway and near the kitchen. (Trial Tr. at 318:13–17.) Special Agent Martin 21 joined Special Agent Wetterer and the children in the playroom. (Trial Tr. at 307:4–7, 22 318:18–22.) 23 31. The agents entertained the children by playing games in the playroom with 24 them. (Trial Tr. at 303:1–2, 318:23–319:3.) M.T. and A.T. interacted with the agents and 25 spoke with them about their school, their friends, and their toys. (Trial Tr. at 303:4–22, 26 319:4–7.) The agents observed that the children “were very talkative and happy and 27 seemed to be having a good time.” (Trial Tr. at 304:19–24.) The children were never 28 separated from each other. (Trial Tr. at 276:7–9, 219:20–22.) 1 32. Once the other agents completed their interview of Ms. Borovik, Special 2 Agent Wetterer accompanied M.T. and A.T. to the kitchen, where the children ate the 3 breakfast that Ms. Borovik had prepared. (Trial Tr. at 319:23–320:4, 325:15–17.) 4 4. Completion of the Search 5 33. After the FBI agents completed their search of the residence, the agents seized 6 several items pursuant to the seizure warrant. (Stip. Facts ¶ 8.) 7 34. The FBI agents concluded their search at approximately 9:35 a.m., and the 8 search team left an FBI “Receipt for Property Seized” and a copy of the search and seizure 9 warrant with Ms. Borovik. (Stip. Facts ¶ 9.) 10 CONCLUSIONS OF LAW 11 1. Under the FTCA, a private party may seek money damages from the United 12 States “under circumstances where the United States, if a private person, would be liable 13 to the claimant in accordance with the law of the place where the act or omission occurred.” 14 28 U.S.C. § 1346(b)(1). 15 2. “In assessing the United States’ liability under the FTCA,” the Court is 16 “required to apply the law of the state in which the alleged tort occurred.” Conrad v. United 17 States, 447 F.3d 760, 767 (9th Cir. 2006) (citing Trenouth v. United States, 764 F.2d 1305, 18 1307 (9th Cir. 1985)). Accordingly, California law governs Plaintiffs’ FTCA claims. 19 I. Assault and Battery Claims 20 3. To prevail on a claim for assault under California law, a plaintiff must 21 establish by a preponderance of the evidence that 22 (1) the defendant threatened to touch the plaintiff in a harmful or offensive manner; (2) it reasonably appeared to the plaintiff that the defendant was about 23 to carry out the threat; (3) the plaintiff did not consent to the defendant’s 24 conduct; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. 25

26 Avina v. United States, 681 F.3d 1127, 1130 (9th Cir. 2012); see also Judicial Council of 27 Cal., Civil Jury Instructions No. 1301 (2025). 28 / / / 1 4. To prevail on a claim for battery under California law, a plaintiff must 2 establish by a preponderance of the evidence that 3 (1) the defendant physically touched the plaintiff with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the 4 plaintiff was harmed or offended by the defendant’s conduct; and (4) a 5 reasonable person in plaintiff’s situation would have been offended by the touching. 6

7 Avina, 681 F.3d at 1130–31; see also Judicial Council of Cal., Civil Jury Instructions No. 8 1300 (2025). 9 5. Additionally, for an assault or battery claim related to the conduct of a law 10 enforcement officer, California law requires the plaintiff to establish that the law 11 enforcement officer used unreasonable force. Avina, 681 F.3d at 1130; see also Edson v. 12 City of Anaheim, 63 Cal. App. 4th 1269, 1273–73 (1998). 13 6. “The ‘reasonableness’ of a particular use of force must be judged from the 14 perspective of a reasonable officer on the scene, rather than with the 20/20 vision of 15 hindsight.” Saman v. Robbins, 173 F.3d 1150, 1156 (9th Cir. 1999) (citing Graham v. 16 Connor, 490 U.S. 386, 396 (1989)). “The relevant factors used in the reasonableness 17 inquiry include ‘the severity of the crime at issue, whether the suspect poses an immediate 18 threat to the safety of the officers or others, and whether he is actively resisting arrest or 19 attempting to evade arrest by flight.’” Id. (citing Graham, 490 U.S. at 386). 20 7. Accordingly, to succeed on their assault and battery claims, Plaintiffs must 21 prove (1) the elements of assault and battery and (2) that the FBI agents used unreasonable 22 force. 23 8. The Court finds that Plaintiffs’ assault and battery claims fail because the FBI 24 agents did not use unreasonable force against M.T., A.T., or Ms. Borovik when the agents 25 executed the search and arrest warrants at Mr. Tuchinsky’s San Diego residence on October 26 25, 2019. 27 9. First, the agents wielded their weapons professionally and reasonably, in a 28 manner that accomplished the agents’ law enforcement objectives without compromising 1 the safety of the individuals with which the agents interacted. See Los Angeles Cnty. v. 2 Rettele, 550 U.S. 609 (2007) (holding that it was reasonable for officers executing search 3 and arrest warrants related to fraud and identity-theft crimes to order naked residents out 4 of bed and hold them at gunpoint because the officers reasonably believed one suspect 5 owned and possessed a handgun). 6 10. Here, as in Rettele, the law enforcement officers executing the search warrant 7 reasonably believed that an induvial at the residence owned and possessed a firearm. See 8 id.; (Ex. 503 at 1; Ex. 502 at 4.) In contrast to the officers in Rettele, however, the agents 9 in this case kept their weapons in the “gun ready” position and never held any family 10 member at gunpoint. See 550 U.S. at 611; (Trial Tr. at 86:15–87:3, 176:18–177:5, 11 187:16–24, 200:20–201:2.) 12 11. Second, the agents used only the limited physical contact that was necessary 13 to safely and effectively execute the search and arrest warrants. Although Special Agent 14 Frank physically controlled M.T. when he ran out of the house during the agents’ initial 15 entry into the residence, (Trial Tr. at 93:17–20, 109:17–18), her actions were reasonable 16 considering the risks inherent to executing an arrest warrant, the agents’ knowledge that 17 Mr. Tuchinsky owned and possessed a firearm, and the need to protect the young child. 18 Additionally, any physical contact initiated by the agents while escorting Plaintiffs between 19 rooms, such as Special Agent Harrison taking A.T.’s hand in A.T.’s bedroom, (Trial Tr. at 20 188:3–4), was reasonably necessary to control the situation and to protect the safety of all 21 individuals present at the residence. 22 12. Third, the FBI agents’ actions in this case differ significantly from the actions 23 of the law enforcement officers in cases in which the Ninth Circuit has held that there is a 24 triable issue of fact as to the reasonableness of the law enforcement officers’ actions. See 25 Avina, 681 F.3d at 1132–33 (DEA agents pointed their guns at the head of an eleven-year- 26 old girl while she lay on the ground in handcuffs); Tekle v. United States, 511 F.3d 839, 27 843, 854–55 (9th Cir. 2007) (law enforcement officer held gun to eleven-year-old boy’s 28 head while the boy lay face down on the ground and was handcuffed). 1 13. The Court therefore concludes that Plaintiffs have failed to prove by a 2 preponderance of the evidence their FTCA claims for assault and battery. 3 II. False Imprisonment Claims 4 14. A claim for false imprisonment under California law requires a plaintiff to 5 prove by a preponderance of the evidence “(1) the nonconsensual, intentional confinement 6 of a person, (2) without lawful privilege, (3) for an appreciable period of time, however 7 brief.” Young v. Cnty. of Los Angeles, 655 F.3d 1156, 1169 (9th Cir. 2011); see also 8 Judicial Council of Cal., Civil Jury Instructions No. 1400 (2025). 9 15. As to the second element, a law enforcement officer’s “authority to detain 10 incident to a search is categorical . . . [and] the duration of a detention may be coextensive 11 with the period of a search and require no further justification.” Dawson v. City of Seattle, 12 435 F.3d 1054, 1066 (9th Cir. 2006) (emphasis in original) (quoting Muehler v. Mena, 544 13 U.S. 93, 125 (2005)). Thus, an officer has the “authority to detain a building’s occupants 14 during a search so long as the officer conducts the detention in a reasonable manner.” Id.; 15 see also Ganwich v. Knapp, 319 F.3d 1115, 1121–23 (9th Cir. 2003) (holding that it was 16 reasonable to detain business’ employees for up to four hours and forty-five minutes during 17 search of the business but that it was unreasonable to detain the plaintiffs incommunicado 18 and to condition their release on their willingness to submit to an interrogation). 19 16. The Court finds that Plaintiffs’ false imprisonment claims fail because the FBI 20 agents had lawful privilege to search the residence and the agents detained Ms. Borovik, 21 M.T., and A.T. in a reasonable manner for the duration of the search. 22 17. The FBI agents acted with lawful privilege because the agents were executing 23 valid search and arrest warrants when they entered and searched Mr. Tuchinsky’s San 24 Diego residence on October 25, 2019. (See Exs. 501, 502; Trial Tr. at 196:13–19, 197:1–4.) 25 18. Because the FBI agents searched the residence with lawful privilege, the 26 agents had the authority to detain Ms. Borovik, M.T., and A.T. in a reasonable manner for 27 the duration of the search. See Dawson, 435 F.3d at 1066. 28 / / / 1 19. The FBI agents detained Ms. Borovik, M.T., and A.T. in a reasonable manner. 2 Although the search and the corresponding detention lasted approximately three-and-a-half 3 hours, (see Stip. Facts ¶¶ 3, 9), the agents entertained the children in the playroom, (see 4 Trial Tr. at Trial Tr. at 303:1–22, 318:13–319:7), and permitted Ms. Borovik to move about 5 the house, (see Trial Tr. at 111:17–24, 289:16–24) make telephone calls, (see Trial Tr. at 6 289:25–290:11), change her clothes, (see Trial Tr. at 289:16–18), and prepare breakfast for 7 the children, (see Trial Tr. at 291:2–20). Furthermore, the agents in no way unduly 8 pressured Mr. Tuchinsky or Ms. Borovik to submit to FBI interviews; both voluntarily 9 agreed to be interviewed. (See Trial Tr. at 47:17–25, 71:19–72:1, 110:8–18, 285:15–286:7, 10 286:24–287:6, 346:10–11); cf. Ganwich, 319 F.3d at 1121–23. 11 20. Moreover, the agents’ detention of Ms. Borovik, M.T., and A.T. was 12 reasonable because important law enforcement interests outweighed Plaintiffs’ privacy 13 interests. See Dawson, 435 F.3d at 1066 (“To determine whether a detention incident to a 14 search is constitutionally reasonable, we balance the law enforcement interests served by 15 the detention against the public’s privacy interests.”). Moving Ms. Borovik, M.T., and 16 A.T. into M.T.’s bedroom during the agents’ initial entry into the residence helped the 17 agents control the situation and “minimized the risk of harm to officers” or the family. See 18 Ganwich, 319 F.3d at 1120. Accompanying Ms. Borovik, M.T., and A.T. throughout the 19 house allowed the agents to maintain control over the search and “ensured that [Plaintiffs] 20 were on the premises to assist officers in case they needed (for example) a door or cabinet 21 unlocked.” See id. Although the agents’ actions certainly invaded Plaintiffs’ privacy, the 22 law enforcement interests attendant to executing the search and arrest warrants outweighed 23 Plaintiffs’ privacy rights. See Dawson, 435 F.3d at 1066 ( “[I]t was reasonable [for city 24 police officers] to assemble tenants in a suitable place at the earliest practical opportunity 25 in order to facilitate the [health] inspection and its completion.”); Ganwich, 319 F.3d at 26 1120. 27 21. The Court therefore concludes that Plaintiffs have failed to prove by a 28 preponderance of the evidence their FTCA claims for false imprisonment. 1 III. Intentional Infliction of Emotional Distress Claims 2 22. To prevail on a claim for intentional infliction of emotional distress under 3 California law, a plaintiff must establish by a preponderance of the evidence 4 (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; 5 (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) 6 actual and proximate causation of the emotional distress by [the] defendant’s outrageous conduct. 7

8 Sabow v. United States, 93 F.3d 1445, 1454 (9th Cir. 1996); see also Judicial Council of 9 Cal., Civil Jury Instructions No. 1600 (2025). 10 23. “Conduct is deemed outrageous if it is so extreme as to exceed all bounds of 11 that usually tolerated in a civilized community.” Simo v. Union of Needletrades, Indus. & 12 Textile Emps., Sw. Dist. Council, 322 F.3d 602, 622 (9th Cir. 2003) (internal quotation 13 marks omitted) (quoting Saridakis v. United Airlines, 166 F.3d 1272, 1278 (9th Cir. 1999)). 14 24. The Court finds that Plaintiffs’ intentional infliction of emotional distress 15 claims fail because the agents’ conduct was neither extreme nor outrageous—it was 16 reasonable. As the Court has already found, the agents used only reasonable force to enter 17 the home, arrest Mr. Tuchinsky, and remove Plaintiffs from their rooms. (See supra at 18 10:13–11:17) The Court has also found that the agents controlled Plaintiffs’ movement 19 and invaded Plaintiffs’ privacy in only a limited and reasonable manner. (See supra at 20 12:13–13:18.) The agents’ objectively reasonable conduct therefore falls far short of the 21 “extreme and outrageous” threshold. 22 25. Furthermore, Plaintiffs’ intentional infliction of emotional distress claims also 23 fail because Plaintiffs have not established that the FBI agents intended to cause emotional 24 distress or acted with reckless disregard for the probability of causing emotional distress. 25 All testifying FBI personnel who participated in the search on October 25, 2019, credibly 26 stated that their intent was to effectively execute the warrants with due regard for the 27 family’s safety. (See Trial Tr. at 114:6–8, 202:19–23, 292:16–21, 305:21–306:4, 28 315:18–21, 321:2–12.) 1 26. The Court therefore concludes that Plaintiffs have failed to prove by a 2 || preponderance of the evidence their FTCA claims for intentional infliction of emotional 3 || distress. 4 CONCLUSION AND RULINGS 5 27. clear that the predawn events of October 25, 2019, profoundly affected 6 ||Ms. Borovik and her young children. However, the FBI agents who executed the search 7 || and arrest warrants did so in an entirely appropriate and professional manner, and the Court 8 therefore concludes that the FBI agents are not legally responsible for any harm suffered 9 ||by M.T., A.T., and Ms. Borovik. Indeed, the responsibility for the traumatic nature of the 10 |;events of October 25, 2019, lies solely with Yevgeny Tuchinsky, whose ill-advised 11 decision to engage in felonious conduct necessitated the enforcement actions taken by the 12 || FBI agents on that day. 13 28. Having carefully considered the record, the relevant law, and the Parties’ 14 arguments, the Court FINDS that Plaintiffs have failed to prove by a preponderance of the 15 evidence that the United States is liable under the FTCA for assault and battery, false 16 ||imprisonment, or intentional infliction of emotional distress. Therefore, the Court FINDS 17 || IN FAVOR OF Defendant United States of America. The Clerk of Court SHALL 18 || CLOSE the file. 19 IT IS SO ORDERED. 20 ||Dated: April 10, 2025 —— a1 | OSD (2 D re 22 Honorable Todd W. Robinson 73 United States District Judge 24 25 26 27 28