Buonarigo v. BJ's Tavern LLC

Anthony Buonarigo, Plaintiff, v. BJ's Tavern LLC, Defendant.

No. CV-19-08037-PCT-JAT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

June 14, 2021

ORDER

Before the Court is Defendant's Motion for Summary Judgment (Doc. 47). Plaintiff responded, (Doc. 50), and Defendant replied (Doc. 58). The Court now rules.

I. BACKGROUND

The following facts are either undisputed or recounted in the light most favorable to Plaintiff, the non-movant. Ellison v. Robertson, 357 F.3d 1072, 1075-76 (9th Cir. 2004).

On the evening of November 10, 2017, Plaintiff and his friend, J.L., visited Lake Havasu with their respective girlfriends to celebrate Veteran's Day weekend. (Doc. 47 at 3). They went to dinner at a local restaurant where Plaintiff had two drinks with his meal. (Docs. 47 at 3; 50 at 13). After dinner, Plaintiff's party went to Defendant's bar, BJ's Tavern ("BJ's"). (Doc. 47 at 3).

Just before 1:00 a.m. on November 11, 2017, a fight broke out inside the bar involving J.L. (Id.). BJ's staff detained J.L. and called Lake Havasu City Police. (Id.). While waiting for the police, BJ's staff handcuffed J.L. and held him on the sidewalk in front of the bar. (Id. at 4). Plaintiff, who was not involved in the fight went looking for J.L. and found him detained in front of BJ's. (Id.). Plaintiff began speaking with the BJ's employee who was detaining J.L. requesting that J.L. be released so Plaintiff could take him home. (Id.). While he was speaking with the BJ's employee about J.L., three men—B.T., B.J., and E.B.—tackled Plaintiff to the ground, struck him, and held him there until the police arrived. (Docs. 47 at 4-6; 50 at 4).

When the police arrived, they handcuffed Plaintiff and began investigating what happened. (Doc. 47 at 6). While Plaintiff was handcuffed, Plaintiff alleges that a BJ's employee told him: "If you don't sue [BJ's], I won't press charges on you." (Doc. 50 at 9 (citing Doc. 54-3 at 15)). Plaintiff responded by saying "go ahead and press your charges, because I'm definitely going to sue [BJ's]." (Id.). Ultimately, Plaintiff was released after being cited with criminal misdemeanors for disorderly conduct and assault. (Doc. 47 at 6).

Plaintiff later pled not guilty to the charges against him. (Id. at 7). Because of his veteran status, Plaintiff qualified for and participated in a special diversion program available to veterans. (Id.). As part of this diversion program, Plaintiff performed community service, submitted to drug and alcohol screens, and attended an alcohol counseling program. (Id.). In exchange for completing the diversionary program, the charges against Plaintiff were dismissed with prejudice. (Id.).

Plaintiff then filed a complaint with this Court on February 6, 2019. (Doc. 1). Plaintiff amended the initial complaint, (Doc. 13), and ultimately filed the Second Amended Complaint (Doc. 25) on July 15, 2010. Defendant answered, (Doc. 26), and filed the instant Motion for Summary Judgment (Doc. 47). Plaintiff responded, (Doc. 50), and Defendant replied, (Doc. 58).

II. LEGAL STANDARD

Summary judgment in favor of a party is appropriate when that party "shows that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Stated conversely, a party "can defeat summary judgment by demonstrating the evidence, taken as a whole, could lead a rational trier of fact to find in its favor." S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003) (percuriam).

The movant must first establish that there is no genuine dispute of material fact and that, based on the undisputed material facts, the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmovant to demonstrate the existence of any dispute of material fact. Id. at 323-24. The nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts" by "com[ing] forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e) (1963)). There is a genuine issue of material fact if the disputed issue of fact "could reasonably be resolved in favor of either party." Ellison, 357 F.3d at 1075. Material facts are those "facts that might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must "construe all facts in the light most favorable to the non-moving party." Ellison, 357 F.3d at 1075-76 (citation omitted). However, the nonmovant's bare assertions, standing alone, are insufficient to create a material issue of fact that would defeat the motion for summary judgment. Anderson, 477 U.S. at 247-48.

III. ANALYSIS

Plaintiff asserts the following claims for relief against BJ's: (1) assault and battery via respondeat superior, (2) negligence via respondeat superior, (3) negligent hiring, training, and supervision; and (4) malicious prosecution. (Doc. 25 at 4-7). Defendant asserts that it is entitled to summary judgment on the first three claims because "the men who allegedly assaulted Plaintiff (or who, alternatively, are alleged to have acted in a negligent manner in detaining him) were not employed by BJ's Tavern." (Doc. 47 at 1-2 (footnote omitted)). Defendant further asserts that it is entitled to summary judgment on the fourth claim because "BJ's employees did not initiate or take an active part in the prosecution of the criminal proceeding against Plaintiff," and "the criminal proceeding was not terminated in Plaintiff's favor." (Id. at 2 (internal marks omitted)). The Court will address these arguments in turn.

a. Employment Related Claims

"Under the doctrine of respondeat superior, an employer is vicariously liable for 'the negligent work-related actions of its employees.'" Kopp v. Physician Grp. of Arizona, Inc., 421 P.3d 149, 151 (Ariz. 2018) (quoting Engler v. Gulf Interstate Eng'g, Inc., 280 P.3d 599, 601 (Ariz. 2012)). "Vicarious liability results solely from the principal-agent relationship: 'those whose liability is only vicarious are fault free—someone else's fault is imputed to them by operation of law.'" Id. (quoting Wiggs v. City of Phoenix, 10 P.3d 625, 629 (Ariz. 2000)). Thus, under a theory of respondeat superior, one can only be held vicariously liable for a party that is acting as their agent or employee. See Wiggs, 10 P.3d at 629; Jeter v. DISH Network Serv. LLC, No. CV-19-05111-PHX-GMS, 2020 WL 3472549, at *2 (D. Ariz. June 25, 2020).

Similarly, "'[f]or an employer to be held liable for ... negligent hiring, retention, or supervision,' one of its employees must commit a tort." Ford v. Barnas, No. CV17-2688-PHX DGC, 2018 WL 5312912, at *2 (D. Ariz. Oct. 26, 2018) (quoting Kuehn v. Stanley, 91 P.3d 346, 352 (Ariz. Ct. App. 2004)); see Petty v. Arizona, No. CV-15-01338-PHX-DLR, 2016 WL 4095835, at *1 (D. Ariz. Aug. 2, 2016) ("To state a claim for negligent supervision, the plaintiff must allege that an employee committed a tort, that the defendant employer had a reason and opportunity to act, and that the defendant failed to perform its duty to supervise."). Thus, a business can only be held liable for negligent hiring, training, and supervision if it employed the party that committed the tort at issue. See Ford, 2018 WL 5312912, at *3 (granting summary judgment on claims of negligent hiring, training, and supervision because plaintiff failed to present evidence that defendant employed the tortfeasor).

Defendant argues that it is entitled to summary judgment on Plaintiff's first three claims because the men who tackled Plaintiff and held him until the police arrived were not employees of BJ's. (Id. at 8-9). To support this argument, Defendant presents the deposition testimony of three separate witnesses. First, A.C., the general manager of BJ's, testified that the three men who tackled and held Plaintiff on the night at issue were notBJ's employees. (Doc. 47-1 at 27-28, 34, 38). Next, C.M.C., the manager of BJ's, similarly said that the three men were not BJ's employees. (Id. at 48-50). Finally, one of the three men who tackled and held Plaintiff, B.T., testified that he was not employed by BJ's on the night at issue nor had he ever been employed by BJ's. (Id. at 54, 56).

Plaintiff responds that the three men were employed by BJ's on a contract basis on the evening at issue. (Doc. 50 at 13-14). Plaintiff relies on statements made by B.T. and A.C. that were captured by body-worn police cameras, and statements by B.T. made three years after the night at issue that were recorded by a private investigator. (See Doc. 50 at 13-14). Defendant argues that this evidence is inadmissible and, thus, does not create a genuine dispute of fact to defeat summary judgment. (Doc. 58 at 2-3). Defendant further argues that, even if the evidence was admissible, Plaintiff has not created a genuine issue of fact regarding the employment status of the three men because Plaintiff "does not even analyze what facts must be presented in order to establish an employer-employee relationship." (Id. at 3).

1. Admissibility of Plaintiff's Evidence

When arguing that the men who tackled and held him were BJ's employees, Plaintiff cites statements made by B.T. and A.C. on the night at issue that were captured by body-worn police cameras, and statements by B.T. made three years later that were recorded by a private investigator. (See Doc. 50 at 13-14). Defendant argues that these statements cannot be considered by the Court because they are inadmissible hearsay, and that the body-worn police camera footage has not been properly authenticated. (Doc. 58 at 2-3).

"A trial court can only consider admissible evidence in ruling on a motion for summary judgment." Holt v. Noble House Hotels & Resort, Ltd, 370 F. Supp. 3d 1158, 1164 (S.D. Cal. 2019) (citing Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. ...