Case 3:15-cv-01528-JAH-BGS Document 76 Filed 07/18/16 Page 1 of 13

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Joseph G. Dicks (SBN 127362)
Linda G. Workman (SBN 128621)
DICKS & WORKMAN ATTORNEYS AT LAW, APC
750 B Street, Suite 2720
San Diego, California 92101
Telephone: (619) 685-6800
Facsimile: (619) 557-2735
Email: jdicks@dicks-workmanlaw.com
lworkman@dicks-workmanlaw.com

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Attorneys for ALI ALEJANDRO MENDOZA, Plaintiff

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALI ALEJANDRO MENDOZA,
an individual,

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Plaintiff,

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v.

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UNITED STATES OF AMERICA,
et al.

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Defendants.

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Case No. 15-cv-1528-JAH (BGS)
PLAINTIFF’S MEMORANDUM OF
POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANT
UNITED STATES OF AMERICA’S
MOTION FOR PARTIAL
SUMMARY JUDGMENT AND
MOTION FOR JUDGMENT ON
THE PLEADINGS OR, IN THE
ALTERNATIVE, SUMMARY
ADJUDICATION
Date:
Time:
Courtroom:
Judge:

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August 1, 2016
2:30 p.m.
13B
Hon. John A. Houston

Magistrate Judge Bernard G. Skomal
Complaint Filed: July 10, 2015

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MEMO. OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT

Mendoza v. United States, et al.
Case No. 15-cv-1528-JAH (BGS)

 Case 3:15-cv-01528-JAH-BGS Document 76 Filed 07/18/16 Page 2 of 13

TABLE OF CONTENTS

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I.

INTRODUCTION……………………………………………………...….1

II.

STATEMENT OF THE FACTS…………………………………………..2

III. LEGAL STANDARD…………………………………………………..…4
IV. ARGUMENT……………….……………………………………………..4
A. The United States Admits It Is Vicariously Liable for Malandris’
Negligent Acts and Fails to Ask This Court for Any
Relief……………………………………………………………..……4
B. A Jury Could Properly Determine That Malandris’ Conduct Was
Outrageous and Caused Plaintiff Severe Emotional
Distress…………………………………………………………………6
V. CONCLUSION…………………………………………………………..10

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MEMO. OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT

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Mendoza v. United States, et al.
Case No. 15-cv-1528-JAH (BGS)

 Case 3:15-cv-01528-JAH-BGS Document 76 Filed 07/18/16 Page 3 of 13

TABLE OF AUTHORITIES

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Cases
Adickes v. S.H. Kress & Co. 398 U.S. 144 (1970).................................................. 4
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ........................................... 4
Carlsen v. Koivumaki, 227 Cal. App. 4th 879 (Cal. Ct. App. 2014) .................. 7, 9
Chehade Refai v. Lazaro, 614 F.Supp.2d 1103 (D. Nev. 2009) ............................. 7
Hopkins v. Andaya, 958 F.2d 881 (9th Cir. 1992) .................................................. 4

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Lake Nacimiento Ranch Co. v. San Luis Obispo County,
841 F.2d 872 (9th Cir. 1987) ............................................................................... 4

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ............. 4

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Maduike v. Agency Rent–A–Car, 953 P.2d 24 (Nev. 1998) ................................... 7

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Tarr v. Narconon Fresh Start, 72 F. Supp. 3d 1138 (D. Nev. 2014) ..................... 7

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Rules
Federal Rule of Civil Procedure 56(a) .................................................................... 5

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MEMO. OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT

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Mendoza v. United States, et al.
Case No. 15-cv-1528-JAH (BGS)

 Case 3:15-cv-01528-JAH-BGS Document 76 Filed 07/18/16 Page 4 of 13

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Plaintiff, ALI ALEJANDRO MENDOZA (“Plaintiff” or “MENDOZA”),

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hereby submits the following Memorandum of Points and Authorities in

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opposition to Defendant UNITED STATES OF AMERICA’s Motion for Partial

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Summary Judgment and Motion for Judgment on the Pleadings or, in the

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alternative, Summary Adjudication.

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I. INTRODUCTION

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In its motion for partial summary judgment and motion for judgment on

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the pleadings, Defendant United States of America (“United States”) does not

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challenge most of the causes of action asserted against it. The United States does

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not dispute that it employed Officer Thomas Malandris at the time of the accident

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and thus is vicariously liability for his alleged negligence in striking Plaintiff

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with his car. The United States further does not dispute that it is likewise

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vicariously liable for his negligence in moving Plaintiff’s body after the accident,

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otherwise tampering with the scene of the accident and providing false and

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misleading information to the National City officers investigating the accident.

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The United States further does not contest the multiple Constitutional violations

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that followed, which were orchestrated by Malandris and other officers of the

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National City Police Department in an attempt to protect Malandris.

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What the United Stated does contest are the allegations of dual agency

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between it and National City concerning its employee Malandris. But it is

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unclear how partial summary judgment could be granted in favor of United States

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on these allegations since United States’ liability is not foreclosed or even alerted

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by a finding of dual agency. In any event, and as briefed by Plaintiff in his

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opposition to National City’s motion for summary judgment, the issue of dual

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agency, which is uniquely factual, cannot be resolved as a matter of law in this

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case. In light of the many triable issues of fact, a jury must determine whether a

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dual agency relationship existed.

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Likewise inappropriate for resolution in a motion for judgment on the
MEMO. OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT

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Mendoza v. United States, et al.
Case No. 15-cv-1528-JAH (BGS)

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pleadings or summary judgment is Plaintiff’s claim for intentional infliction of

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emotional distress. While the United States devotes most of its brief disputing

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that any alleged conspiracy to protect Malandris could have caused Plaintiff

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distress, the United States only glosses over the outrageous conduct of Malandris

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at the scene of the accident. Devoting less than a page of its nine page discussion

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to the conduct of Malandris at the scene (Doc. No. 62-1, 21-22), the United

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States argues “Plaintiff cannot show that the fact that Malandris helped Plaintiff

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to move to the side of the road, … constituted outrageous conduct as a matter of

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law.” Doc. No. 62-1, 22. Such an argument is disingenuous, at best. As detailed

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below, Malandris violated police protocol, and exposed Plaintiff to further injury

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when he moved Plaintiff’s body as he was lying, grievously injured on the road.

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Among other instances of extreme misconduct by the officers involved, a

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reasonable trier of fact could conclude that Malandris’ conduct alone is

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sufficiently outrageous to support a claim for intentional infliction of emotional

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distress against the United States.
The United States’ motions for partial summary judgment and judgment on

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the pleadings should be denied.

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II. STATEMENT OF THE FACTS1

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On July 12, 2014, 19 year-old Ali Alejandro Mendoza was walking his

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friend home, and as they were crossing a street at a marked crosswalk, a car

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driven by Malandris, a former police officer and at the time an officer with

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Immigration and Customs Enforcement (“ICE”), came speeding towards them.

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While Mendoza was able to safely push his friend, who was autistic, out of the

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way, Mendoza was struck by Malandris’ car. At impact, the car’s bumper struck

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Mendoza’s right leg, and threw him up onto the hood of the car. Mendoza

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slammed into the windshield, crushing the glass with his head. (Exhibit O,

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Further facts detailing the triable issues defeating summary judgment are
included throughout the argument section of this opposition.
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MEMO. OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT

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Mendoza v. United States, et al.
Case No. 15-cv-1528-JAH (BGS)

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Vehicle Photos.) He was then thrown onto the asphalt, again striking his head,

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coming to rest face down about 15 feet from the car.

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At the time, Malandris was responding to a NCPD emergency call of a

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man with a knife. NCPD Sergeant Dennis Leach, the supervisor on scene for the

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accident, said he had just been on another NCPD call with Malandris when the

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man with a knife call was dispatched. Sergeant Leach was only a few seconds

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behind Malandris as they were heading to the location of that call.

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Immediately after striking Mendoza, and before any other police officers
or first responders arrived, Malandris began to manipulate the scene in clear

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violation of law enforcement policy. Picking Mendoza up by his armpits,

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Malandris dragged the seriously injured Mendoza to the east curb (the curb

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farthest away from where Plaintiff had been hit), and then, rather than render aid

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to Mendoza, Malandris moved his car to further conceal his misconduct. Thus,

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although Sergeant Leach was only “a few seconds” away from the accident,

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Malandris immediately began tampering with the scene in violation of proper

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protocol.

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When paramedics arrived, they began a morphine drip to treat Mendoza’s

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pain and transported him to the hospital. Before he could even be taken in for

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surgery, and despite his being on morphine, his head injury and leg fractures, and

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despite the fact that medical personnel were preparing him for surgery, Officer

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Peck arrived at Mendoza’s bedside. Despite the fact that there was no criminal

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investigation with respect to Mendoza’s conduct, Peck questioned Mendoza

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about the incident and about his drug use. At some point, Peck allegedly asked

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Mendoza if he would provide a blood sample, intending to see if he had drugs in

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his system, based upon Malandris’ assessment at the accident scene that

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Mendoza was a “stoner.” Exhibit A, Malandris Depo., 258:20 – 259:9. As he was

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under the influence of morphine, Mendoza only remembers an officer at his

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bedside and having his blood drawn.
MEMO. OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT

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Mendoza v. United States, et al.
Case No. 15-cv-1528-JAH (BGS)

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Malandris testified that he was told by NCPD that he would not be held

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responsible for the collision and that Mendoza would be placed at fault.

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According to Malandris, however, the collision report was later changed and

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identified his actions as the primary collision factor.

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III.

LEGAL STANDARD

On summary judgment, the moving party bears the initial burden of

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demonstrating the absence of a genuine issue of material fact. See Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). If the moving party meets its

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initial responsibility, the burden then shifts to the opposing party to establish that

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a genuine issue as to any material fact actually does exist. Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The Court must

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view the evidence presented in the motion in the light most favorable to

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plaintiffs. Even where the basic facts are undisputed, summary judgment should

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be denied if reasonable minds could differ on the inferences to be drawn from

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those facts. Adickes v. S.H. Kress & Co. 398 U.S. 144, 158–59 (1970); Lake

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Nacimiento Ranch Co. v. San Luis Obispo County, 841 F.2d 872, 875 (9th Cir.

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1987). Despite an officer’s first-hand testimony to the contrary, entirely

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circumstantial evidence may be sufficient to create a triable issue of fact.

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Hopkins v. Andaya, 958 F.2d 881, 888 (9th Cir. 1992).

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IV.

ARGUMENT

A. The United States Admits It Is Vicariously Liable For Malandris’

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Negligent Acts And Fails To Ask This Court For Any Relief.

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The United States puzzlingly acknowledges that Malandris was acting

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within the scope of his federal employment when he negligently struck Plaintiff

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with his car, but argues at length as to why National City was not Malandris’

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special employer; and then, in a non sequitur, concludes that it is entitled to

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judgment “on Plaintiff’s first cause of action for negligence for the basis that the

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United States had a duty to ‘thoroughly complete and properly and thoroughly
MEMO. OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT

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Mendoza v. United States, et al.
Case No. 15-cv-1528-JAH (BGS)

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document a traffic accident investigation once that investigation is undertaken.’”

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Doc. No. 62-1, 11-19 (emphasis added). Whether or not National City was also

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the employer of Malandris (or acting within the course and scope of a partnership

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entered into between ICE and NCPD) and thus similarly vicariously liable for

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Malandris’ negligence has no effect on the United States; therefore, there is

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nothing for this Court to summarily adjudicate in favor of the United States with

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respect to this issue. With respect to its conclusion about liability for any

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negligent investigation, the United States makes no argument about the negligent

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investigation at all, as it spends the entire argument discussing the dual

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employment/agency issue on behalf of National City.
As stated in Federal Rules of Civil Procedure 56(a), a court shall grant

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summary judgment if it concludes that “the movant is entitled to judgment as a

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matter of law.” Here, the United States cannot be entitled to judgment as a

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matter of law in respect to Malandris’ negligence because it “certified that

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Malandris was acting within the scope of his federal employment with regard to

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the events described in the Amended Complaint.” Doc. No. 62-1, 15-16. If this

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Court concludes that Malandris was not acting as a dual agent/employee of

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National City or acting within the course and scope of a partnership entered into

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between ICE and NCPD when he struck Plaintiff with his car, which, as

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discussed in Plaintiff’s opposition to National City Defendants’ motion for

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summary judgment, it should not, then National City would be entitled to

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summary adjudication with respect to its liability for Malandris’ negligence.

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Such a ruling would have no effect on the United States’ liability.

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The United States seemingly recognizes this as they do not ask this Court

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for judgment in regard to dual employment/agency, which is peculiar after

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devoting its entire argument to the dual employment/agency issue. See Doc. No.

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62-1, 19. To the extent the United States is permitted to seek partial summary

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judgment on the issue of whether Malandris was a dual employee/agent of
MEMO. OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT

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Mendoza v. United States, et al.
Case No. 15-cv-1528-JAH (BGS)

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National City or acting within the course and scope of a partnership entered into

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between ICE and NCPD, Plaintiff incorporates by reference, his arguments and

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evidence presented in opposition to National City Defendants’ motion for

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summary judgment on this issue.

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With respect to the United States’ arbitrary conclusion that it is entitled to

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judgment “on Plaintiff’s first cause of action for negligence for the basis that the

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United States had a duty to ‘thoroughly complete and properly and thoroughly

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document a traffic accident investigation once that investigation is undertaken,’”

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the United States makes no argument at all about this issue; it simply asserts this

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naked conclusion. Doc. No. 66-1, 2-13. Regardless, Plaintiff’s primary assertion

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is that the United States is liable for Malandris negligently striking Plaintiff with

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his car and for Malandris’ subsequent negligent acts of moving Plaintiff’s body

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and his car in an attempt to reconfigure the scene to appear that he was not at

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fault. The United States offers no argument why it should not be vicariously

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liable for such negligence. Even more, as discussed above, the United States

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admitted that it would be vicariously liable for Malandris’ negligent acts alleged

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in the complaint; therefore, not only is the United States’ conclusion completely

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without support, but it is contradicted by its prior admission.

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B. A Jury Could Properly Determine That Malandris’ Conduct Was

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Outrageous and Caused Plaintiff Severe Emotional Distress.

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The United States asserts two arguments which it contends relieves it of

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any liability for intentional infliction of emotional distress. First, the United

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States asserts that because Plaintiff has a less than perfect recollection of being

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struck by a car, then moved and ignored by Officer Malandris as he went about

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doctoring the scene to insulate himself from fault, and then interrogated about

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criminal conduct and induced to provide a blood sample by Officer Peck while he

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was awaiting surgery for the injuries he sustained from this collision, Plaintiff

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failed to causally link Officer Malandris’ misconduct with his harm. Second, the
MEMO. OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT

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Mendoza v. United States, et al.
Case No. 15-cv-1528-JAH (BGS)

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United States attempts to recast the allegations in the FAC in order to portray

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Officer Malandris’ outrageous misconduct, along with the preparation of a police

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report which officially ratified Officer Malandris’ and others’ misconduct, as not

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only innocuous, but in Plaintiff’s interest. As now explained, the United States’

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arguments fail.

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A claim for intentional infliction of emotional distress has three elements:

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“(1) extreme and outrageous conduct by the defendant with the intention of

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causing, or reckless disregard of the probability of causing, emotional distress;

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(2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual

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and proximate causation of the emotional distress by the defendant's outrageous

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conduct.” Carlsen v. Koivumaki, 227 Cal. App. 4th 879, 896 (Cal. Ct. App.

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2014).

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“[E]xtreme and outrageous conduct is that which is outside all possible

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bounds of decency and is regarded as utterly intolerable in a civilized

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community.” Maduike v. Agency Rent–A–Car, 953 P.2d 24, 26 (Nev. 1998)

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(internal quotations omitted). “Extreme and outrageous conduct also may arise

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from an abuse by the actor of a position, or a relation with the other, which gives

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him actual or apparent authority over the other, or power to affect his interests.”

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Chehade Refai v. Lazaro, 614 F.Supp.2d 1103, 1122 (D. Nev. 2009) (internal

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quotations omitted). “When considering whether a plaintiff has sufficiently

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stated a claim upon which relief can be granted, ‘The court determines whether

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the defendant's conduct may be regarded as extreme and outrageous so as to

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permit recovery, but, where reasonable people may differ, the jury [must

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determine] whether the conduct was extreme and outrageous enough to result in

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liability.’ Id. at 1121.” Tarr v. Narconon Fresh Start, 72 F. Supp. 3d 1138, 1142-

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43 (D. Nev. 2014).

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Concerning Malandris conduct, which as noted above the United States
barely addresses, a reasonable trier of fact could conclude that he acted with
MEMO. OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT

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Mendoza v. United States, et al.
Case No. 15-cv-1528-JAH (BGS)

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reckless disregard for the probability of causing Plaintiff emotional distress

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when, after striking him with his car, he callously picked Plaintiff up by his arm

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pits and moved him to the curb. (Exhibit G, Mendoza Depo., 112:11-19).

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Malandris’ act of moving Plaintiff was contrary to how police officers are

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trained. (Exhibit I, Report of Jeffrey J. Noble, at 32; Exhibit H, Nuttall Depo.,

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23:10-24.) Law enforcement officers are trained not to move injured individuals

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because any movement may aggravate the person’s injuries. (Exhibit I, Noble

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Report, at 32.) Further, Malandris did not even move Plaintiff to the nearest

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curb. (Exhibit I, Noble Report, at 32.) Rather, in an apparent attempt to

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manipulate the scene so as to avoid a finding that he caused the accident,

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Malandris moved Plaintiff’s body to the farther curb. (Id.)

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Malandris’ concern was not with Plaintiff’s wellbeing; his concern was

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with covering up his nearly fatal error. (Exhibit I, Noble Report, at 31.)

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Tellingly, while National Police officers were only “seconds” away, in order to

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doctor the scene, Malandris had to move quickly, immediately tampering with

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the scene and hurriedly moving Plaintiff’s body and his own car. (Exhibit I,

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Noble Report, at 31, 51-52.) Malandris did not even summon an ambulance until

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after he moved Plaintiff and moved his vehicle. (Exhibit A, Malandris Depo.,

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172: 9-11).

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This certainly constitutes conduct that a reasonable person could find to be

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outrageous. Plaintiff had just been struck by a car and suffered serious cuts on

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his face as well as a broken leg that was shattered and “obviously deform[ed].”

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(Exhibit K, Paramedics Records; Exhibit G, Mendoza Depo., 131.) When the

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paramedics arrived, they noted that Plaintiff was “in obvious distress.” (Exhibit

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K, Paramedics Records.) This is unsurprising as Plaintiff had suffered a nearly

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fatal injury and he expected the police officer to help him, not to be looking out

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for his own best interest.

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The United States argues Malandris’ actions could not be “outrageous”
MEMO. OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT

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Mendoza v. United States, et al.
Case No. 15-cv-1528-JAH (BGS)

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because he was “helping” Plaintiff when he moved him. Doc. No. 62-1, 27-28.

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But it is a question of fact for the jury whether Malandris was “helping” Plaintiff

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when he broke protocol by moving a broken and bloody teenager to the curb—a

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curb that was not even the most near—in order to make the scene look more

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favorable for himself.

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With respect to causation, the United States’ argument that Plaintiff cannot

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establish causation rests entirely on the case Carlsen v. Koivumaki, 227

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Cal.App.4th 879 (2014). As the United States notes, the holding in Carlsen rests

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on the fact that Carlsen had absolutely no memory of the accident. To this end,

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the United States argues that Plaintiff did not see the police arrive at the accident

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scene, and did not talk to Malandris after the collision. Doc. No. 62-1, at 19-20.

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This recitation of the facts, even if true, does not negate the fact that Plaintiff was

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conscious following the accident, and was conscious when Malandris refused to

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render aid, instead, moving Plaintiff’s body and then his car, in order to conceal

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his fault. Thereafter, as a manifestation of the conspiracy between NCPD officers

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and Malandris, Officer Peck took advantage of Plaintiff’s post-accident condition

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to unlawfully and intrusively interrogate Plaintiff about his prior drug use, and

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unlawfully and intrusively extract a blood sample. While Plaintiff’s memory of

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these events may be colored by the head injury and trauma caused by being run

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over by Malandris, nevertheless, Plaintiff has a memory of these events,

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rendering Carlsen inapplicable. At a minimum, there are triable questions of fact

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about how much of the extreme and outrageous conduct Plaintiff remembers.

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Lastly, Plaintiff notes that although the United States devotes portions of

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its discussion concerning the outrageous conduct of National City police officers,

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because the United States is not liable for such intentional infliction of emotional

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distress (although said conduct is relevant to show Malandris, Peck and Nuttall

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were acting in concert pursuant to a conspiracy to cover for Malandris’

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misconduct) – there can be no partial summary judgment or motion for judgment
MEMO. OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT

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Mendoza v. United States, et al.
Case No. 15-cv-1528-JAH (BGS)

 Case 3:15-cv-01528-JAH-BGS Document 76 Filed 07/18/16 Page 13 of 13

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on the pleadings as to those allegations against the United States. While the

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evidence demonstrates that the conduct of National City and its officers also

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supports a jury’s finding of intentional infliction of emotional distress against

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National City, such an issue is not before this Court in the instant motion as it

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does not concern the United States.

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V. CONCLUSION

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For the foregoing reasons, the United States’ motion for partial summary

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judgment and motion for judgment on the pleadings should be denied.
Dated: July 18, 2016

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DICKS & WORKMAN
ATTORNEYS AT LAW, APC

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By: /s/ Joseph G. Dicks
Joseph G. Dicks,
Attorneys for ALI ALEJANDRO
MENDOZA, Plaintiff

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MEMO. OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT

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Mendoza v. United States, et al.
Case No. 15-cv-1528-JAH (BGS)