Vargas v. City of Honolulu
| Decision Date | 30 June 2020 |
| Docket Number | CIV. NO. 19-00116 LEK-WRP |
| Parties | SARAH VARGAS, Plaintiff, v. CITY AND COUNTY OF HONOLULU, DAVID OH, AND THAYNE COSTA, Defendants. |
| Court | U.S. District Court — District of Hawaii |
On January 29, 2020, Defendant Thayne Costa ("Costa") filed his Motion for Summary Judgment ("Costa Motion"), and Defendant City and County of Honolulu ("the City") filed its Motion for Summary Judgment ("City Motion"). [Dkt. nos. 100, 103.] Plaintiff Sarah Vargas ("Plaintiff") filed her memorandum in opposition to the City Motion ("City Opposition") and her memorandum in opposition to the Costa Motion ("Costa Opposition") on February 28, 2020. [Dkt. nos. 119, 121.] Costa and the City filed their respective reply memoranda on March 6, 2020. [Dkt. nos. 125, 128.] The Court finds these matters suitable for disposition without a hearing pursuant to Rule LR7.1(c) of the Local Rules of Practice for the United States District Court for the District of Hawaii. For the reasons set forth below, the Costa Motion is hereby denied, and the City Motion is hereby granted in part and denied in part. Specifically, the City Motion is granted as to Plaintiff's negligent hiring and retention claims and Plaintiff's claims against the City asserting vicarious liability for Oh's intentional acts. The City Motion is denied in all other respects.
Plaintiff filed this action on March 6, 2019. [Complaint (dkt. no. 1).] The operative pleading is Plaintiff's First Amended Complaint ("Amended Complaint"), filed on July 15, 2019. [Dkt. no. 38.] The claims in this case arise out of an incident in March 2017 in which Plaintiff alleges Defendant David Oh, a Honolulu Police Department ("HPD") officer ("Oh"),1 sexually assaulted her during HPD's investigation into a reported disturbance at Plaintiff's home. See id. at ¶ 1. The Amended Complaint alleges the following claims: a 42 U.S.C. § 1983 claim against Oh and the City for violation of Plaintiff's Fourteenth Amendment right to bodily integrity ("Count I"); a § 1983 claim against Oh and the City forviolation of Plaintiff's Fourth Amendment right to be free from unreasonable searches and seizures ("Count II"); a 42 U.S.C. § 1985 conspiracy claim against all defendants ("Count III"); a sexual assault claim against Oh and the City ("Count IV"); a negligence claim against Costa and the City ("Count V"); a negligent retention, hiring, training, and/or supervision claim against the City ("Count VI"); a negligent infliction of emotional distress ("NIED") claim against all defendants ("Count VII"); an intentional infliction of emotional distress claim ("IIED") claim against Oh and the City ("Count VIII"); and a claim against all defendants for violations of the Hawai`i State Constitution ("Count IX").
Count IX has been dismissed with prejudice. [Minute Order, filed 12/2/19 (dkt. no. 81) ("12/2/19 Order"), at 3.] The 12/2/19 Order also denied Costa's motion for judgment on the pleadings as to his assertions of qualified immunity from the § 1985 claim and conditional privilege as to the state law negligence claims against him.2 [Id. at 2.] Costa and the City have appealed the 12/2/19 Order, [Joint Notice of Appeal of December 2, 2019 Minute Order, filed 12/4/19 (dkt. no. 83),] and their appeal remains pending before the Ninth Circuit. Theproceedings as to Count III have been stayed pending the outcome of the appeal, but the stay does not apply to the other claims in this case. [Minute Order, filed 1/14/20 (dkt. no. 98).]
Many of the events on the days in question are not in dispute. On March 14, 2017, Plaintiff's friend, Jessica Reyes ("Reyes"), intended to stay overnight at Plaintiff's home. Plaintiff bought a large bottle of vodka for them to share, and Reyes made mixed drinks for them. [Concise statement of facts in supp. of Costa Motion ("Costa CSOF"), filed 1/29/20 (dkt. no. 101), at ¶¶ 1-4; Pltf.'s concise statement of facts in opp. to Costa Motion ("Pltf.'s Costa CSOF"), filed 2/28/20 (dkt. no. 122), at ¶¶ 1-4 ( Costa's ¶¶ 1-4 are undisputed).] Plaintiff drank mixed drinks and vodka shots and became very intoxicated. Plaintiff and Reyes argued, and Plaintiff no longer wanted Reyes to stay at her home. [Costa CSOF at ¶¶ 5-8; Pltf.'s Costa CSOF at ¶¶ 5-8.]
Costa is an HPD corporal. [Costa CSOF, Decl. of Thayne Costa ("Costa Decl.") at ¶ 2.] On the night in question, Costa was working as a patrol officer, which included responding to 911 calls. [Id. at ¶ 9.] He was dispatched to the street where Plaintiff's home is located to respond to 911 calls indicating an argument between two women. [Costa Decl. at ¶ 9; Pltf.'s Costa CSOF, Decl. of K. Brian Mackintosh ("MackintoshCosta Decl.") at ¶ 6 & Exh. 3 ().] During one of the calls, the female caller stated, "I flew in today and I was supposed to be staying somewhere and now she drank too much and has been punching me and her daughter in the face." [Mackintosh Decl., Exh. 3 at 5.] According to Costa, he was not acting as the supervisor of any officer on that night. [Costa Decl. at ¶ 9.] Plaintiff, however, argues Costa was the officer in charge during HPD's response at Plaintiff's home. See Pltf.'s Costa CSOF at ¶ 11.
The parties agree Costa arrived at Plaintiff's home at approximately 11:00 p.m. Plaintiff does not remember seeing or speaking to Costa on the night of March 14, 2017, nor does she remember speaking to any officer outside of her home. At the time, she did not know why the police officers came to her home. [Costa CSOF at ¶¶ 12-15; Pltf.'s Costa CSOF at ¶¶ 12-15.] Costa observed Plaintiff, Reyes, and Plaintiff's neighbor, Stacy Wheeler ("Wheeler"), in front of Plaintiff's home. Plaintiff and Reyes were arguing, and Wheeler was trying to stop them. Costa convinced Reyes to walk away from Plaintiff, and he requested a courtesy HPD transport to take Reyes to a hotel. A female HPD officer, Charly Sampaga ("Sampaga"), arrived and transported Reyes. [Costa CSOF at ¶¶ 17-21; Pltf.'s Costa CSOF at ¶¶ 17-21.] At some time prior to that point, Oh arrived at the scene. [Costa Decl. at ¶ 14.]
While he was assisting Reyes, Costa noticed Oh enter Plaintiff's home. After Reyes was inside Sampaga's vehicle, Costa turned his attention to Plaintiff, who was yelling from inside her home. Costa entered Plaintiff's home, and Plaintiff continued to raise her voice. [Costa CSOF at ¶¶ 22-24; Pltf.'s Costa CSOF at ¶¶ 22-24.] Although Costa warned Plaintiff to calm down and stop yelling, Plaintiff continued to yell. Plaintiff appeared to be louder and more emotional when she spoke to Costa, and she appeared to be calmer when she spoke to Oh. [Costa CSOF at ¶¶ 26-27; Pltf.'s Costa CSOF at ¶¶ 26-27.] The parties agree Costa considered arresting Plaintiff, but Plaintiff emphasizes that Oh was also considering arresting her. [Costa CSOF at ¶ 28; Pltf.'s Costa CSOF at ¶ 28 ().] The parties agree Costa left Plaintiff's home, and Costa believed Oh succeeded in calming Plaintiff down because Costa did not hear further yelling or shouting from Plaintiff. Costa later asked Oh over the HPD radio if the situation was okay, and Oh said it was. Costa saw Oh exit Plaintiff's home after being inside for approximately five to ten minutes. [Costa CSOF at ¶¶ 34-36; Pltf.'s Costa CSOF at ¶¶ 34-36.] The parties disagree about what transpired in the interim.
According to Costa, after he entered Plaintiff's home, he, Oh, and Plaintiff came back outside and spoke on her porch.Oh said he could handle the situation, and he seemed to have a better rapport with Plaintiff than Costa did, so Costa left and went to his vehicle. [Costa Decl. at ¶ 17.] Costa "assum[ed] Oh would be able to convince [Plaintiff] to just calm down and sleep it off." [Id. at ¶¶ 17-18.] According to Costa, when he left Plaintiff's porch, Plaintiff "was fully covered with no private body parts . . . showing." [Id. at ¶ 18.] Plaintiff and Oh then went into Plaintiff's home. Costa denies knowing what happened between Oh and Plaintiff inside of Plaintiff's home, and he states he never talked with Oh about what happened inside of Plaintiff's home. [Id.]
At her deposition, Plaintiff testified that, on the evening in question, she was wearing a robe and was likely wearing nothing underneath it. [Mackintosh Costa Decl., Exh. 1 ( )) The Federal Bureau of Investigation ("FBI") report of the incident also states Plaintiff was only wearing a robe when the police arrived. [Id., Exh. 4 (FBI report dated 5/31/17 ("FBI Report")) at 6 of 7.] Plaintiff presents evidence that Oh escorted her to her bedroom upstairs because he was trying to separate Costa and Plaintiff, who were "bickering at each other" and "going at it." ( ), filed 3/11/20 (dkt.no. 139-1), at 19, 21-23; Mackintosh Costa Decl., Exh. 5 ( )) According to Oh, he believed Costa was still inside Plaintiff's home, at the base, or on the middle, of the stairs. [Police Commission Hrg. Trans. at 19, 25.] Plaintiff argues this is evidence that Costa was in her home when Oh took her to her bedroom. [Pltf.'s Costa CSOF at ¶ 33.]
At her deposition, Plaintiff testified she remembered Oh following her up the stairs and into her bedroom. Plaintiff heard Oh close the bedroom door. Plaintiff does not remember exactly what happened, except that Oh raped her. [Mackintosh Costa Decl., Exh. 1 ( ) at 95-97.] The defendants do not contest that Plaintiff and Oh had...
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