The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 MT, a minor by and through his Guardian ) Case No.: 3:22-cv-00171-BEN-KSC
Ad Litem VIKTORIIA ZUBKOVA; AT a )
12 minor by and through his Guardian Ad ) ORDER: (1) DENYING
13 Litem VIKTORIIA ZUBKOVA; and ) DEFENDANT UNITED STATES OF
LEYLA BOROVIK, ) AMERICA’S MOTION FOR
14 ) SUMMARY JUDGMENT; and (2)
Plaintiffs,
15 ) GRANTING THE PARTIES’ JOINT
v. ) MOTION TO PRECLUDE
16 ) TESTIMONY
UNITED STATES OF AMERICA,
17 )
Defendant. ) [ECF Nos. 30 and 38]
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21 I. INTRODUCTION
22 Plaintiffs Leyla Borovik, and both MT and AT, minors by and through their
23 Guardian Ad Litem Viktoriia Zubkova, bring this action against Defendant the United
24 States of America (the “United States”). ECF No. 38. Before the Court is the United
25 States’ Motion for Summary Judgment. ECF No. 10. The Motion was submitted on the
26 papers without oral argument pursuant to Civil Local Rule 7.1(d)(1) and Rule 78(b) of the
27 Federal Rules of Civil Procedure. See ECF No. 41. After considering the papers submitted,
28 supporting documentation, and applicable law, the Court DENIES the Motion for
1 Summary Judgment. The parties also submit a Joint Motion to Preclude the Testimony of
2 Yevgeny Tuchinsky, which this Court GRANTS.
3 II. BACKGROUND
4 This case arises from alleged events that occurred during a raid by the Federal
5 Bureau of Investigation (“FBI”) of Plaintiffs’ home.
6 A. Statement of Facts
7 The facts set forth in the United States’ Motion for Summary Judgment paint a
8 starkly different picture than those alleged by Plaintiffs. See ECF No. 38 at 3–7. The
9 factual theories asserted by both parties are summarized below per the evidence submitted.
10 On October 24, 2019, Yevgeny Tuchinsky was indicted on various counts of
11 conspiracy, wire fraud, and money laundering related to the alleged bribery of a Federal
12 Express employee. Apparently, payments were received for Federal Express runs that
13 never occurred, and through falsifying mileage reports. See ECF No. 38, Ex. A. On
14 October 25, 2019, at 6:00 a.m. (or before it was light out), the FBI executed warrants to
15 arrest Tuchinsky and search his property.1 See Deposition of Agent Steven Hoogland,
16 ECF No. 38-5 (“Hoogland Depo. I”) at 6–7; Deposition of Leyla Borovik, ECF No. 39-4
17 (“Borovik Depo. I”) at 2. At the time of the search, Tuchinsky was home with his wife,
18 Leyla Borovik, and his two young children, AT and MT. At the time of the search, AT
19 was eight years old at the time and MT was six years old.
20 The circumstances of how exactly the warrants were executed remain in dispute,
21 including the number of agents both inside and outside the home,2 the number and type of
22 firearms utilized by the agents, the manner in which the agents conducted themselves, and
23 whether a police canine was present. However, the parties appear to agree that Tuchinsky
24 peacefully answered the door, that he was cooperative with agents, and that his arrest
25
1 The items to be seized on the warrant included three vehicles, various pieces of
26 jewelry, and one rifle. ECF No. 38, Ex. C at 4.
27 2 The Operations Report lists twenty-four total FBI agents as participants in the
operation, but the parties did not clarify whether all of those agents entered the home and
28
1 occurred without any attempt to evade or harm the agents. See Hoogland Depo. I at 7.
2 The record also shows no argument or allegation that any of the Plaintiffs were
3 uncooperative during the execution of the warrants. The parties next agree that after
4 Tuchinsky peacefully opened the door, MT came out of his room and was the first Plaintiff
5 to make contact with the agents. Borovik was the second Plaintiff to emerge from her
6 room, followed by AT. However, the parties dispute the exact circumstances of each
7 Plaintiffs’ initial and continued contact with the agents throughout the duration of the
8 search.
9 Agent Steven Hoogland stated that MT came out of his room almost immediately
10 with his father, appearing before Hoogland even entered the home. Hoogland Depo. I at
11 8, 9. Agent Rebekah Frank claimed that she witnessed agents with Tuchinsky in the
12 doorway and MT ran outside to the yard in his pajamas. See Deposition of Rebekah Frank,
13 ECF No. 38-7 at 5. Agent Frank claimed she holstered her weapon and grabbed MT for
14 his safety before turning him away from seeing his father being arrested. Id. at 6. Agent
15 Frank also stated that she stayed outside with MT until the first part of the house was
16 cleared before bringing him back inside. Id. at 7–8. Agent Frank did not recall many of
17 the details, including whether she explained what was happening to MT, whether another
18 agent was with her and MT, or the timing of events. See id. at 6–8.
19 MT, however, claimed that he came out of his room to people yelling and pointing
20 “big guns” at him. See Deposition of MT, ECF No. 39-3 (“MT Depo.”) at 3. MT stated
21 that the agents grabbed him “really hard on his shoulder” and pulled him “towards the
22 wall, closet.” Id. MT explained that people were standing next to him and the person on
23 his rights side was aiming a “really large gun at” him. Id. MT claimed he saw his father
24 up against the door being handcuffed, and then his mother came out and the agents
25 “immediately pointed guns at her.” Id. MT claimed he “started crying because they were
26 pointing guns at [him] and were about to kill [him].” Id. MT claimed his older sister, AT,
27 came out next, accompanied by two people. Id. at 2. MT said that when she came out
28 “three to four people started pointing large guns at her, as well.” Id. at 4. Based on the
1 above deposition excerpts, there are factual disputes as to whether MT was inside or
2 outside during his father’s arrest, to what extent he witnessed the arrest, whether there
3 were one or two agents with him, and whether one agent pointed a large gun at him during
4 the arrest. There is also a dispute regarding Agent Frank’s intent in grabbing MT, the
5 extent to which she “grabbed” him, and whether MT was crying, which Agent Frank does
6 not recall.
7 As for AT, Agent Hoogland testified at deposition that he opened her door and saw
8 movement in the bed, immediately recognizing that it was a child’s room. Hoogland Depo.
9 I at 13. Hoogland claimed that his gun was “at a 45-degree angle towards the floor, so it
10 was never pointed at anyone.” Id. Agent Hoogland claimed that Agent Kari Harrison
11 came around his right side, went into the room, took MT by the hand, “and gently pulled
12 her” into the hall. Id. Agent Hoogland claims another agent cleared AT’s room and they
13 went onto the next. Id. Conversely, AT testified at deposition that she woke up and saw
14 three men telling her to come with them, and that one grabbed her and made her walk.
15 Deposition of AT, ECF No. 39-5 (“AT Depo.”) at 3. AT claimed that in the hallway, she
16 saw people with uniforms, masks, and big guns. Id. AT explained that “they were holding
17 big guns on me and yelling at me,” and “then the person who was grabbing me, he pushed
18 me to my mom.” Id. AT further claimed that she saw her father pushed against the door
19 with a person holding a gun to his back and saw a person grabbing her brother. Id. When
20 asked if and how the agents were mean to her, she said yes and that “[t]hey were grabbing
21 [her] really tightly, and they were pushing [her] aggressively . . . .” Id. at 7. AT’s
22 recollection of events also differs from Agent Hoogland’s, in that she said three men woke
23 her up and one grabbed her. There is no deposition testimony in the record from Agent
24 Harrison—the person who Agent Hoogland claimed took AT out of bed and into the hall.
25 Borovik testified at deposition that she was also woken up by loud noises and that
26 she saw light through the door. Deposition of Leyla Borovik, ECF No. 39-4 (“Borovik
27 Depo. I”) at 2. Borovik opened the door to an armed person dressed in black, with a mask,
28 who was putting a light in her face. Id. at 2–3. Borovik described how she followed agents
1 into the hallway—observing them as people in dark clothing—and that they were yelling
2 and screaming at her to raise her arms. Id. at 3. Agents took Borovik to the living room,
3 where she saw many of “the same type of people dressed the same way with weapons,”
4 who started yelling at her and lifting those weapons. Id. Borovik stated: “There was a
5 click of the weapon. They lifted the weapon and they -- and they directed it towards me.”
6 Id. Borovik claimed that at the same time, she saw MT standing next to her husband, who
7 was in handcuffs, and that “[h]e was pushed towards the open door and the weapons were
8 directed at him.” Id. at 3. Borovik claimed her son was being held by another person
9 standing there, and that all of them had weapons. Id. at 4. In front of her son, Borovik
10 claimed “there was an agent standing who was directing the weapon towards all of us” and
11 “was moving it all around.” Id. Borovik claimed there was a light on the weapon, “[a]nd
12 in the back, there were [more] people who were directing their weapons.” Id.
13 Borovik continued that she again heard loud screams, the agents “again lifted up the
14 weapons,” and she again heard the same clicks. See id. Borovik then saw her daughter
15 being directed by agents in black, and described how they lifted their weapons towards AT
16 “and started yelling to raise hands.” Id. At this point, Borovik ran to her daughter and
17 yelled “Don’t shoot,” taking AT into her arms. Id. at 4–5. Borovik observed “maybe
18 three” agents taking her husband into a room with weapons directed at his back. Id. at 5.
19 After this, the timeline of events is not entirely clear. Agent Frank claimed that once
20 the agents swept the house, the children and mother were allowed to freely interact. Frank
21 Depo. at 8. Conversely, MT and AT stated how they and Borovik were pushed into MT’s
22 room and closed in. AT Depo. at 3. MT described the agents as aggressively pushing and
23 kicking Plaintiffs into the room. MT Depo. at 4. Borovik also stated that the agents “kind
24 of started pushing” them, so they would go into the room. Borovik Depo. I at 5. MT stated
25 that in the room, they all had really large guns and that he was scared, screaming, and
26 crying. MT Depo. at 4. MT claimed that when he ran up to his mother, “a guy got me and
27 pushed me back onto the bed.” Id. AT was asked if she was able to talk to her brother
28 while in the room and she stated, “No. I don’t think so.” AT Depo. at 5. MT estimated
1 that they were in the room for around two hours, because it was light outside when they
2 came out. MT Depo. at 5. However, at one point, Borovik was taken out of the room by
3 agents. Id.
4 Borovik stated that when in the bedroom, the agents did not allow them to leave.
5 Borovik Depo. I at 5. Later, agents asked Borovik to leave the room and MT started crying
6 and asking her not to leave. Id. An agent instructed Borovik to come with him to the
7 second floor, where there was also an interpreter. Id. Borovik said that two agents sat
8 very close to her on both sides and one agent sat across from her with a pistol. Id. at 6.
9 Borovik said she could see the door to the room her children were in but that the door
10 remained closed. Id. Although Borovik did not recall whether she specifically said she
11 wanted the interview to end, she did recall asking about going back to see her children,
12 and that the agents did not really listen to her. See Deposition of Leyla Borovik, ECF No.
13 38-8 (“Borovik Depo. II”) at 16.
14 Agent Frank testified that Borovik was questioned about her Russian ties, including
15 her background, living experience, and whether she was a mail-order Russian bride. Frank
16 Depo. at 9, 12. Agent Frank was not the interviewing agent but testified that she was not
17 aware of any connection to Borovik’s Russian ties and Tuchinsky’s alleged crimes. Frank
18 Depo. at 13. Agent Hoogland also stated his assumption that Borovik was not involved in
19 Tuchinsky’s alleged crimes. Deposition of Agent Hoogland, ECF No. 39-7 (“Hoogland
20 Depo. II”) at 3. After Borovik was questioned, she claims an agent instructed her to “go
21 and prepare breakfast for the children,” so they went downstairs and Borovik began
22 making breakfast. Borovik Depo. I at 6. It was around this time that agents came out with
23 the children. Id.
24 There is also testimony stating that the children were taken to their playroom, but
25 the timing and circumstances surrounding the playroom are in dispute. Agent Frank
26 recalled the children laughing and playing in the playroom at one point. Frank Depo. at
27 18. Agent Wetterer stated that she was in the playroom with the children, and that they
28 were coloring, playing with stuffed animals, and maybe throwing a ball in the hallway.
1 Deposition of Agent Laura Wetterer, ECF No. 38-9 (“Wetterer Depo.”) at 7. Agent
2 Wetterer could not provide specifics as to how the children got to the playroom but said
3 that it was her assignment to sit with the children while Borovik was being interviewed.
4 Id. at 7–8. MT, however, testified that he and AT did not play in the playroom, and that
5 the agents were not nice to them. MT Depo. at 7.
6 As a whole, there are several inconsistencies between Plaintiffs’ testimony and the
7 agents. Plaintiffs clearly stated how the agents yelled at them, grabbed them, pushed them,
8 locked them in a room, and aimed large guns at them. Yet the agents testified that once
9 the house was cleared, Plaintiffs were allowed to freely move and interact within the home.
10 It is also not clear how long guns were held on each Plaintiff and when exactly the house
11 was cleared—whether it was before or after Plaintiffs were taken to the bedroom. MT
12 repeatedly testified that agents aimed large guns at Plaintiffs. He also stated that some
13 agents “had tiny guns, and some of them had large guns.” MT Depo. at 6. AT’s testimony
14 also referenced multiple large guns. See AT Depo. at 3. However, Agent Hoogland
15 testified that to his belief, he was the only agent with a long (i.e., large) gun, and that after
16 the initial safety sweep, he put the gun in the trunk of his car, where it remained for the
17 rest of the day. Hoogland Depo. I at 13, 15.
18 Also disputed is Plaintiffs testimony that they MT and AT were screaming and/or
19 crying at different points in time. Agents Hoogland and Frank denied witnessing either of
20 the children crying, and Agents Frank and Wetterer testified that the children were playing.
21 AT and Borovik also testified to seeing a German Shepherd canine in a police vest with a
22 person (who they perceived as an agent) outside the home. Borovik Depo. I at 8; AT Depo.
23 at 8–9. Agent Hoogland, however, testified that no canines were used, and that the FBI
24 has no canines. Hoogland Depo. I at 14, 15. Agent Frank also testified that there were no
25 canines present. Frank Depo. at 16–17. The parties even dispute the children’s
26 breakfast—Agent Frank claimed the children were fed caviar, see Frank Depo. at 11, while
27 MT and Borovik claimed they ate porridge. See MT Depo. at 5; Borovik Depo. II at 19.
28
1 B. Procedural History
2 On February 7, 2022, Plaintiffs filed their original Complaint and on February 16,
3 2022, Plaintiffs filed their First Amended Complaint. ECF No. 4 (“FAC”). The FAC
4 alleged claims pursuant to the Federal Tort Claims Act for assault, battery, false
5 imprisonment, and intentional infliction of emotional distress (“IIED”), as well as a Bivens
6 civil rights violation. ECF No. 4. On May 25, 2022, Defendants filed a Motion to Dismiss,
7 see ECF No. 10, which this Court granted-in-part. ECF No. 14. The Court dismissed
8 Plaintiffs’ Bivens claim entirely and dismissed Plaintiffs’ FTCA tort claims made against
9 an individual agent and Doe Defendants. However, the FTCA tort claims against the
10 United States proceeded to litigation. Discovery commenced.
11 On December 15, 2023, the United States filed a Motion for Summary Judgment.
12 ECF No. 38. Plaintiffs filed an Opposition, see ECF No. 39, and the United States filed a
13 Reply, see ECF No. 40. The parties also filed a Joint Motion seeking to preclude the
14 testimony of Yevengy Tuchinsky. ECF No. 38.
15 III. MOTION FOR SUMMARY JUDGMENT
16 The United States seeks an order granting summary judgment on the remaining tort
17 claims brought pursuant to the FTCA. Plaintiffs’ opposition disputes the facts set forth by
18 the United State and seeks an order denying summary judgment.
19 A. Legal Standard
20 “A party is entitled to summary judgment if the ‘movant shows that there is no
21 genuine dispute as to any material fact and the movant is entitled to judgment as a matter
22 of law.’” City of Pomona v. SQM North America Corp., 750 F.3d 1036, 1049 (9th Cir.
23 2014) (quoting Fed. R. Civ. P. 56(a)). A fact is material if it could affect the outcome of
24 the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
25 A dispute of material fact is genuine if the evidence, viewed in light most favorable to the
26 non-moving party, “is such that a reasonable jury could return a verdict for the non-moving
27 party.” Id. “The moving party initially bears the burden of proving the absence of a
28 genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir.
1 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party
2 meets its burden, the non-moving party must go beyond the pleadings to establish a genuine
3 issue of material fact, using affidavits, depositions, answers to interrogatories, admissions,
4 and specific facts. Ford Motor Credit Co. v. Daugherty, 270 F. App’x 500, 501 (9th Cir.
5 2008) (citing Celotex, 477 U.S. at 324); see also Fed. R. Civ. P. 56(c)(1)(A) (purported
6 factual disputes must be accompanied by “materials in the record, including depositions,
7 documents, electronically stored information, affidavits or declarations, stipulations . . . ,
8 admissions, interrogatory answers, or other materials”).
9 “The court must view the evidence in the light most favorable to the nonmovant and
10 draw all reasonable inferences in the nonmovant’s favor.” City of Pomona, 750 F.3d at
11 1049. “Where the record taken as a whole could not lead a rational trier of fact to find for
12 the nonmoving party, there is no genuine issue for trial.” Id. (quoting Matsushita Elec.
13 Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). However, the non-
14 moving party’s mere allegation that factual disputes exist between the parties will not
15 defeat an otherwise properly supported motion for summary judgment. See Fed. R. Civ.
16 P. 56(c); see also Phytelligence, Inc. v. Washington State Univ., 973 F.3d 1354, 1364 (Fed.
17 Cir. 2020) (“Mere allegation and speculation do not create a factual dispute for purposes
18 of summary judgment.”) (quoting Nelson v. Pima Cmty. College, 83 F.3d 1075, 1081–82
19 (9th Cir. 1996)). “The court need consider only the cited materials, but it may consider
20 other materials in the record.” Fed. R. Civ. P. 56(c)(3).
21 B. Discussion
22 Plaintiffs allege assault, battery, false imprisonment, and IIED. The United States
23 argues that based on the record, Plaintiffs cannot succeed on their claims because the record
24 fails to prove the officers use of force was unreasonable. The Court disagrees.
25 i. Federal Tort Claims Act
26 Plaintiffs’ four tort claims are made against the United States pursuant to the FTCA.
27 Because the alleged conduct giving rise to the claims occurred in San Diego County and
28 fall under the FTCA, the Court must apply California tort law. See Avina v. United States,
1 681 F.3d 1127, 1130 (9th Cir. 2012) (citing Richards v. United States, 369 U.S. 1, 7 (1962))
2 (“Because the [Plaintiffs’] tort claims are brought under the FTCA, and the events at issue
3 occurred in California, we apply California tort law.”). In addition, given that this case
4 involves the conduct of FBI agents, acting in their official capacities, Plaintiffs must further
5 “establish, for each cause of action, that the officers used ‘unreasonable force.’” Avina,
6 681 F.3d at 1131 (citing Munoz v. City of Union City, 120 Cal. App. 4th 1077 (2004)). “In
7 California, ‘[c]laims that police officers used excessive force in the course of an arrest,
8 investigatory stop or other seizure of a free citizen are analyzed under the reasonableness
9 standard of the Fourth Amendment to the United States Constitution.’” Id.
10 To determine whether the force used is “objectively reasonable,” the Court balances
11 “the nature and quality of the intrusion on the individual’s Fourth Amendment interests
12 against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S.
13 386, 395 (1989). Although the right to use some degree of physical coercion to make an
14 arrest is well established, “[t]he test of reasonableness under the Fourth Amendment is not
15 capable of precise definition or mechanical application.” Id. (quoting Bell v. Wolfish, 441
16 U.S. 520, 559 (1979)). As such, “proper application requires careful attention to the facts
17 and circumstances of each particular case, including the severity of the crime at issue,
18 whether the suspect poses an immediate threat to the safety of the officers or others, and
19 whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490
20 U.S. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)). “The most important
21 factor under Graham is whether the suspect posed an immediate threat to the safety of the
22 officers or others.” Est. of Stanley v. City of San Jose, No. 22-cv-03000-VKD, 2022 WL
23 16837050, at *4 (N.D. Cal. Nov. 9, 2022) (quoting Est. of Lopez by & through Lopez v.
24 Gelhaus, 871 F.3d 998, 1005 (9th Cir. 2017)). Here, the parties essentially dispute whether
25 the force employed during the search of Plaintiffs’ home was objectively reasonable.
26 a. Assault and Battery
27 In California, the elements of assault require that: “(1) defendant acted with intent
28 to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or
1 offensive manner; (2) plaintiff reasonably believed she was about to be touched in a
2 harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about
3 to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was
4 harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.”
5 So v. Shin, 212 Cal. App. 4th 652, 668–69 (2013), as modified on denial of reh’g (Jan. 28,
6 2013) (citations omitted). To state a claim for battery in California, a plaintiff must allege
7 that: “(1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to
8 harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was
9 harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s
10 position would have been offended by the touching.” Shin, 212 Cal. App. 4th at 669.
11 Although assault and battery are two separate claims, the sticking point here is
12 whether Plaintiffs reasonably believed they were about to be touched, and/or were actually
13 touched in a harmful or offensive manner, and in a way that constitutes excessive force
14 under the Fourth Amendment. The United States points to testimony in the record that
15 indicates the agents conducted an objectively reasonable search. Although certain touching
16 occurred, the testimony of Agent Hoogland, Agent Frank, and Agent Wetterer all indicate
17 that any grabbing of the children was done in a calm manner and for the purpose of keeping
18 everyone safe. However, Plaintiffs point to other evidence indicating that offensive
19 touching did occur, because guns were held on them despite their cooperation. Plaintiffs’
20 evidence also describes how they were aggressively pushed, grabbed, and as MT testified,
21 even kicked. Plaintiffs do not simply claim there are disputes of fact and instead, submit
22 deposition testimony supporting many of their arguments, including the testimony of MT,
23 AT, and Borovik. Because Plaintiffs are non-moving parties, the Court must view the
24 evidence in the light most favorable to them, drawing all reasonable inferences in their
25 favor. City of Pomona, 750 F.3d at 1049.
26 Even so, despite evidence of harmful or offensive touching, the search of the home
27 could still be considered objectively reasonable, depending on the circumstances. Plaintiffs
28 rely on two cases to support the denial of summary judgment based on their version of the
1 facts. First, Avina v. United States, where the Ninth Circuit found issues of material fact
2 as to whether agents used excessive force against two minor children and an adult male
3 during the search of a home. Avina, 681 F.3d at1132–33. The agents had obtained a search
4 warrant for a mobile home, believing the vehicle belonged to a suspected drug trafficker.
5 Id. at 1128–29. The agents later discovered they wrote down the wrong license plate
6 number. Id. at 1129. In analyzing the plaintiffs’ FTCA claims for assault and battery, the
7 Court found that the force used against the adult male resident (i.e., forcefully pushing him
8 to the ground) was reasonable, because: (1) it was done during the initial minutes of the
9 search; (2) the man was not following the agents’ instructions; and (3) the agents had no
10 way of knowing that the man was not the suspected drug trafficker or an associate. Id. at
11 1132. As to the minor children, however, the Court stated:
12
[A] jury could find that the agents pointed their guns at the head
13
of an eleven-year-old girl, “like they were going to shoot [her],”
14 while she lay on the floor in handcuffs, and that it was excessive
for them to do so. Similarly, a jury could find that the agents’
15
decision to force the two girls to lie face down on the floor with
16 their hands cuffed behind their backs was unreasonable.
17
Id. at 1132–33.
18
Second, Plaintiffs rely on Motley v. Parks, where the Ninth Circuit examined
19
whether a law enforcement officer was justified in pointing a gun at an infant during the
20
search of a home, stating:
21
22
While it may have been reasonable for Kading to have drawn his
23 firearm during the initial sweep of a known gang member’s
house, his keeping the weapon trained on the infant, as he was
24
alleged to have done, falls outside the Fourth Amendment’s
25 objective reasonableness standard. Motley has stated a
26 constitutional violation.
27
432 F.3d 1072, 1089 (9th Cir. 2005), overruled on other grounds by United States v. King,
28
1 687 F.3d 1189 (9th Cir. 2012). The time period at issue in Motley was around 20 minutes.
2 Id. at 1076. Motely’s holding therefore hinted at the potential timeframe during which an
3 officer may point a gun at a young occupant of a residence being searched. In its analysis,
4 Motley also discussed McDonald v. Haskins, 966 F.2d 292 (7th Cir. 1992), where the
5 Seventh Circuit held that holding a gun to the head of a nine-year-old and threatening to
6 pull the trigger was objectively unreasonable, given that the child was not a suspect and
7 did not attempt to evade officers. Motley, 432 F.3d at 1089 (citing McDonald, 966 F.2d at
8 295). Both cases are somewhat are applicable here, given the age of AT and MT, and the
9 alleged aiming of the firearms at these minor children.
10 Turning to the evidence, there is deposition testimony from Borovik and her children
11 that guns were pointed at them despite them being cooperative and subdued by agents. MT
12 testified that while watching his father arrest, the agents grabbed him really hard on his
13 shoulder, pulled him towards the wall, and that the agent on his right was pointing a really
14 large gun at him. Id. at 4. A six-year-old child crying and in pajamas could hardly be read
15 as a threat, but MT stated that a gun was pointed at him even after he had been subdued by
16 the agents. The agents appeared to recognize MT as a young child based on their deposition
17 testimony. Whether the agents intended to protect MT or scare him through the use of
18 firearms and threatened force creates a dispute of material fact as to the assault claim. In
19 addition, Borovik testified that she heard the guns click while pointed at both her and her
20 daughter, AT.3 When the gun pointed at AT clicked, Borovik explained that she yelled
21 “Don’t shoot” and ran to her daughter. Borovik’s testimony indicates a reasonable fear
22 that she and her daughter were going to be shot by agents.4 This seemingly occurred after
23 Tuchinsky was cooperatively placed in handcuffs, and after the agents recognized that AT
24 was a child, given that AT had already been woken up and subdued by agents. Agent
25 Hoogland specifically stated how he immediately recognized AT’s room as that of a child
26 before AT was pulled out of bed.
27
3 MT also testified to seeing three to four people pointing guns at AT.
28
1 A jury may find it objectively unreasonable to hold a subdued and crying six-year-
2 old child at gunpoint. The same is true for eight-year-old AT and the number of agents
3 pointing firearms at her, despite her young age and non-threatening disposition. Even
4 Borovik was apparently cooperative but testified that one agent was holding a gun on all
5 of them moving it around, inferring again that Borovik had a reasonable fear she would be
6 shot by the agents. The United States argues that agents were within their rights to aim
7 firearms at the Plaintiffs during the initial sweep of the home. The United States relies on
8 Borovik’s deposition testimony to argue that “no agent grabbed either of the children out
9 Borovik’s arms, ‘tagged’ anyone with a laser from an ‘assault weapon,’ or otherwise
10 touched them with any intent to harm.” ECF No. 38 at 9. Instead, the United States argues
11 that “Plaintiffs were free to move about the home, play and eat breakfast.” Id. But
12 Borovik’s statement is just one of many in her deposition testimony. Other statements
13 from Borovik’s deposition indicate that she thought agents were going to shoot her and her
14 children—hearing the firearms click and yelling, “Don’t shoot. The United States’ also
15 glosses over many of the details Plaintiffs testified to at deposition, not addressing the
16 testimony of AT and MT, which undoubtedly infers Plaintiffs were not free to move within
17 their home during the search.5
18 The United States has not overcome Plaintiffs’ genuine disputes of material fact.
19 This is especially true given the young age of AT and MT, and because all Plaintiffs were
20 cooperative, unarmed, subdued by agents, and posed no immediate threat. See Graham,
21 490 U.S. at 396. A jury could also consider that Tuchinsky cooperated and was detained
22 almost immediately upon the agents entering the home—and that the underlying crimes
23 giving rise to the warrants were financial and not violent in nature. The agents were aware
24 that Tuchinsky had a rifle and expected to find it in the home (though he informed agents
25 the rifle was in Utah). However, whether this fact alone is sufficient to warrant the conduct
26
27 5 Borovik was also taken from her children and interviewed about Russian
connections that, based on the current record, were not related to the underlying crimes or
28
1 Plaintiffs testified to is a question of fact for the jury. It is also unclear when exactly the
2 initial safety sweep of the home concluded and how long guns were pointed at each
3 individual Plaintiff. As such, there are genuine disputes of fact material preventing the
4 Court from resolving the assault claim.
5 The same is true with respect to the children’s alleged battery claim. There are clear
6 disputes of fact as to whether MT and AT were aggressively grabbed, pushed, and/or
7 kicked, given their testimony and the testimony of the agents. The United States argues
8 that Plaintiffs’ evidence is unsupported by the record but focuses only on the agents’ and
9 Borovik’s testimony. The United States fails to address MT and AT’s testimony altogether
10 and simply points to contradictory evidence that agents were kind and gentle with the
11 children. A jury could find that aggressively pushing and/or kicking cooperative, unarmed,
12 and particularly young children constitutes an unreasonable use of force with respect to
13 their battery claim.
14 The Court does note, however, that the battery claim as to Borovik is more nuanced.
15 Although Borovik stated that no agent grabbed the children from her arms, the children
16 both testified that the agents aggressively grabbed and pushed all Plaintiffs into the
17 bedroom. Borovik also testified to that she remembers the sensation of being pushed into
18 the room, but that they were all in shock. Borovik Depo II. At 12. Drawing all reasonable
19 inferences in Plaintiffs favor, see City of Pomona, 750 F.3d at 1049, Borovik was pushed
20 and closed in the room, and later taken by agents for questioning. This was done despite
21 the agents’ assumption that Borovik was not involved in the underlying crimes. Again,
22 this all seemingly occurred despite Borovik posing no threat to agents, and after the initial
23 safety sweep. See Est. of Stanley v. City of San Jose, No. 22-cv-03000-VKD, 2022 WL
24 16837050, at *4 (N.D. Cal. Nov. 9, 2022) (quoting Est. of Lopez by & through Lopez v.
25 Gelhaus, 871 F.3d 998, 1005 (9th Cir. 2017)) (“The most important factor under Graham
26 is whether the suspect posed an immediate threat to the safety of the officers or others.”).
27 Although the record before the Court presents a bit of a close call here, as stated in
28 Avina:
1
Because the excessive force inquiry nearly always requires a jury
2
to sift through disputed factual contentions, and to draw
3 inferences therefrom, we have held on many occasions that
summary judgment or judgment as a matter of law in excessive
4
force cases should be granted sparingly.
5
6
Avina, 681 F.3d at 1130 (quoting Glenn v. Washington Cnty., 673 F.3d 864, 871 (9th Cir.
7
2011)). Here, the Court likewise finds too many conflicting factual contentions and gaps
8
in the record to warrant summary judgment, particularly because the evidence must be
9
viewed in the light most favorable to Plaintiffs. Given the heavily contested factual record
10
before the Court, a jury could find for Borovik, as well as AT and MT, on the battery claim.
11
The burden was on the United States to prove there was no genuine dispute of
12
material fact with respect to the assault and battery claims.6 It has failed to make that
13
showing in light of Plaintiff’s evidence, which indicates that the force employed may not
14
have been objectively reasonable. The Court cannot simply accept one party’s version of
15
the events or fill the in the gaps regarding the timeline sua sponte. Accordingly, the Court
16
DENIES the United States’ Motion for Summary Judgment as to Plaintiffs’ assault and
17
battery claims.
18
b. False Imprisonment
19
In California, a false imprisonment claim requires three elements: “(1) the non-
20
consensual, intentional confinement of a person, (2) without lawful privilege, and (3) for
21
an appreciable period of time, however brief.” Lyons v. Fire Ins. Exchange, 74 Cal. Rptr.
22
23
6 The United States does cite several cases as parentheticals but provides little analysis
24 and does not explain how certain distinguishable cases are applicable here. For example,
25 the United States appears relies on Los Angeles County v. Rettele, 550 U.S. 609 (2007),
arguing that Plaintiffs do not attempt to distinguish this case. However, in Rettele, the
26 minor was 17 years old, not an obvious child, and the deputies left the home after no more
27 than 15 minutes. Id. at 615. The primary similarity is that the crime was non-violent in
nature. Here, the children were much younger, and the agents remained at the house for
28
1 3d 649, 655 (Cal. Ct. App. 2008). The United States argues that here, it was acting under
2 the authority of indisputably valid warrants, giving the agents lawful privilege for the
3 alleged confinement. ECF No. 38 at 11. As such, the United States contends that Plaintiffs
4 cannot make a showing of false imprisonment. Plaintiffs counter that the validity of the
5 warrants does not immunize the agents from an otherwise unreasonable search. ECF No.
6 39 at 6. Plaintiffs contend they were “confined without their consent for an unreasonable
7 period of time.” Id. at 7. Plaintiffs further contend that while “federal agents may detain
8 persons occupying a home at the outset of a search, continued confinement may become
9 unreasonable at some point”—especially given the young ages of AT and MT. Id. at 7.
10 Plaintiffs contend that “the facts demonstrate the mother and children were accosted with
11 firearms numerous times, even after the father was peacefully detained within seconds of
12 the door knock.” Id.
13 Plaintiffs are correct that a warrant does not immunize the United States from
14 conducting an otherwise unreasonable search. See San Jose Charter of Hells Angels
15 Motorcycle Club v. City of San Jose, 402 F.3d 962, 971 (9th Cir. 2005) (quoting Lawmaster
16 v. Ward, 125 F.3d 1341, 1349 (10th Cir. 1997)) (“When officers obtain a warrant to search
17 an individual’s home, they also receive certain limited rights to occupy and control the
18 property; however, the Fourth Amendment binds the officers such that the right to search
19 a home concomitantly obliges the officers to do so in a reasonable manner.”). However,
20 residents are often detained during searches, depending on the circumstances, including the
21 nature of the underlying criminal conduct and the any threat of potential violence. See
22 Michigan v. Summers, 452 U.S. 692, 693–705 (1981) (holding that the Fourth Amendment
23 extends limited authority to detain occupants of a residence during a warrant-based search
24 founded on probable cause).
25 Here, the agents anticipated finding a rifle within the home, which could immunize
26 the agents’ conduct up to a certain point. However, the agents’ testimony provides the
27 Court with no additional safety concerns and instead, indicates that Plaintiffs posed no
28 threat. Furthermore, the United States disputes Plaintiffs’ version of the facts, arguing that
1 they were free to move around the home once the initial sweep was conducted. To support
2 this proposition, the United States cites the deposition testimony of Agent Wetterer, Agent
3 Frank, and Borovik. Agent Wetterer’s testimony explained how she was assigned to sit
4 with the children and recalls playing with AT and MT in the playroom. Agent Frank further
5 testified that she did not remember the children crying at any point and that she specifically
6 remembered the children laughing and playing with an agent in the playroom. The Court
7 also notes Agent Frank’s testimony that: (1) after the house was cleared, the agents
8 “absolutely let the mom and the kids interact as they wanted;” and (2) she told Borovik she
9 was free to leave the house if she wanted to.
10 Conversely Plaintiffs’ testimony indicates that they were locked in a bedroom for up
11 to two hours following the initial sweep. MT stated that he was scared, screaming, and
12 crying while in the room, and that he was pushed onto the bed by an agent when he ran to
13 his mother. AT testified that she was not allowed to talk to her brother while in the room,
14 and that she and her brother were crying when Borovik was taken by the agents. The record
15 also shows that Borovik was taken upstairs to be interviewed and questioned about her
16 Russian ties, which, as Agent Frank indicated, did not appear to be connected to
17 Tuchinsky’s underlying offenses. Drawing all reasonable inferences in favor of Plaintiffs,
18 it appears that they could move freely within their home or interact with one another
19 throughout the duration of the search.
20 The United States also cites Borovik’s own testimony that she fed her children
21 breakfast before the agents left the home. However, Borovik’s testimony is taken
22 somewhat out of context. In the same breath, Borovik further stated that when the agents
23 finished interviewing her, they instructed her to go prepare breakfast for the children,
24 indicating that she did not do so on her own free will. Borovik also observed that her
25 children were still in the bedroom with agents while Borovik was being questioned, and
26 that the door was always closed. This conflicts with Agent Wetterer’s testimony that she
27 was playing with the children in the playroom while Borovik was being questioned.
28 Borovik also explained that during the interview, the agents did not really listen to her, and
1 at some point, she did say something about wanting to go back and see her children. Based
2 on Plaintiffs’ testimony, it seems that armed agents were accompanying and directing
3 Plaintiffs while occupying the home.
4 Although the agents’ conduct could be deemed reasonable, the United States forgets
5 that the Court cannot weigh competing evidence at this stage in the proceedings. Plaintiffs’
6 testimony contradicts the United States’ argument that “after the initial safety sweep,
7 Plaintiffs were free to move about the home, play and eat breakfast.” See ECF No. 38 at
8 19. The United States has not established that the alleged detention of Plaintiffs was
9 reasonable under the circumstances as a matter of law. There are too many disputes of fact
10 to draw that conclusion. Even more, the timeline of the search and amount of time each
11 Plaintiff was in a particular portion of the home (and with whom) remains unclear. The
12 Court does not know exactly how long the children were locked in the bedroom, or how
13 long agents were even at the home based on conflicting testimony. It is also unclear if the
14 children were confined in the playroom after being taken from the bedroom, and when this
15 occurred.
16 Moreover, the cases cited by the United States do not make this fact-based inquiry
17 proper for dismissal on summary judgment. For example, in Muehler v. Mena, 544 U.S.
18 93, 99 (2005), the officers had reason to believe that an armed and dangerous gang member
19 also resided at the home of the person being detained, significantly increasing an officer’s
20 risk when searching the home. Here, the agents knew that Tuchinsky owned a gun, but
21 they allegedly locked Plaintiffs in a room after Tuchinsky was peacefully arrested.
22 Tuchinsky also told officers the location of the gun, and all Plaintiffs—two of them being
23 minor children—were cooperative and deemed to present no threat. The United States also
24 cites Dawson v. City of Seattle, 435 F.3d 1054 (9th Cir. 2006) to support its argument that
25 residents may be detained when the underlying crimes are non-violent in nature. There,
26 Department of Public Health (“DPH”) investigators executed search warrants for two
27 boardinghouses that contained extensive rodent and insect infestations. Id. at 1057. The
28 investigators were aware that an individual associated with the owner had a violent criminal
1 history and had previously threatened DPH personnel. The DPH investigators considered
2 the possibility that this individual might interfere with the evidence or assault an
3 investigator. See id. at 1058. Various tenants were detained during the search and four of
4 them brought suit. The Dawson Court interpreted the Supreme Court’s holding in Muehler
5 to mean “that the duration of a detention may be coextensive with the period of a search,
6 and require no further justification.” Id. (citing Muehler, 544 U.S. at 98). However,
7 Dawson also sharpened this holding by stating that police do not “have unfettered authority
8 to detain a building’s occupants in any way they see fit,” noting that the detention must be
9 carried out in a reasonable manner. Dawson, 435 F.3d at 1057. This case is distinguishable
10 from the instant matter, given the high risk for violence based on prior threats, and the fact
11 that Plaintiffs here consist of two minor children and their mother. In Dawson, there was
12 also a concern that evidence would be destroyed, but the United States does not allege this
13 argument as a basis for detaining Plaintiffs. In fact, the United States simply recites a one
14 sentence holding from the case, out of context and with no analysis to the facts at hand.
15 The burden is on the United States to show no genuine dispute of material fact as to
16 the false imprisonment claim. It has not done so here. Viewing the evidence in the light
17 most favorable to Plaintiffs, a jury could find that the one-to-three-hour period of detention
18 and the manner in which it was conducted—detaining and pushing young, crying children
19 and their mother—was unreasonable. Other factors the jury could consider include the
20 non-violent nature of Tuchinsky’s underling crimes, that Plaintiffs did not appear to be
21 involved in the crime, the particularly young ages of the minor children, the fact that the
22 children were separated from their mother, and Borovik’s interrogation on unrelated
23 matters. Alternatively, the jury could weigh the evidence and find the agents’ testimony
24 credible. Regardless, several facts material to resolving the false imprisonment claim here
25 are genuinely disputed or unclear. Accordingly, the Court DENIES the United States’
26 Motion for Summary Judgment as to Plaintiffs’ false imprisonment claim.
27 c. Intentional Infliction of Emotional Distress
28 To plead intentional infliction of emotional distress (“IIED”) in California, a plaintiff
1 must plausibly allege: “(1) extreme and outrageous conduct by the defendant; (2) the
2 defendant’s intention of causing, or reckless disregard of the probability of causing,
3 emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and
4 (4) actual and proximate causation of the emotional distress by the defendant’s outrageous
5 conduct.” Robles v. Agreserves, Inc., 158 F. Supp. 3d 952, 977 (E.D. Cal. 2016) (citing
6 Hughes v. Pair, 46 Cal. 4th 1035, 1050–51 (Cal. 2009)).
7 The United States argues that “the evidence in this case reveals that the FBI agents
8 involved in Tuchinsky’s arrest were professional and accommodating under the
9 circumstances.” ECF No. 38 at 12. In addition, because the agents were acting under valid
10 warrants and employed no unreasonable force, the United States contends they did not
11 engage in extreme and outrageous conduct as a matter of law. Id. The United States argues
12 that “it is well-settled that law enforcement officers are entitled to do exactly what the FBI
13 agents did here – take reasonable precautions to ensure their safety and the safety of others
14 durn the execution of valid warrants.” Id. Plaintiffs only argue that based on the agents’
15 conduct, they have “suffered severe emotional distress . . . .” ECF No. 39 at 9. The United
16 States also argues that Plaintiffs waived their claim of IIED by failing to provide anything
17 other than a few conclusory statements regarding the agents’ conduct. See Reply at 7. The
18 Court disagrees.
19 The burden of proof is on the moving party, and in seeking summary judgment for
20 Plaintiffs’ IIED claim, the United States simply relies on its contention that it used
21 reasonable force in executing valid warrants. Although the validity of the warrants is not
22 in dispute, whether the agents employed reasonable force remains heavily contested. The
23 United States cites a string of cases but again fails to apply the law of those cases to the
24 facts at hand. The United States does not address the deposition testimony of MT and AT
25 and takes certain testimony from Borovik out of context.
26 A jury could find that aggressively pushing, grabbing, kicking, and pointing guns at
27 small children and their mother could constitute extreme and outrageous behavior under
28 the circumstances—inflicting distress on AT, MT, and Borovik. A jury could also agree
1 with the agents’ version of events, finding no ill intent and that they were gentle and
2 justified in both moving and detaining Plaintiffs. But again, the Court cannot weight the
3 evidence at the summary judgment stage. After review of the record, the Court finds the
4 United States did not meet its burden in proving there is no genuine dispute of material fact
5 regarding Plaintiffs’ IIED claim. Plaintiffs’ argument in opposition may be minimal with
6 respect to IIED, but as the non-moving parties, all reasonable inference must be drawn in
7 their favor. See City of Pomona, 750 F.3d at 1049. The factual record gives rise to
8 numerous disputes of material fact. Accordingly, the Court DENIES the United States’
9 Motion for Summary Judgment as to Plaintiffs’ IIED claim.
10 IV. JOINT MOTION TO PRECLUDE TESTIMONY
11 Finally, the parties jointly argue that Tuchinsky was subpoenaed for deposition as a
12 witness who is likely to have discoverable information in this case. ECF No. 30 at 2.
13 However, Tuchinsky intends to invoke his Fifth Amendment privilege and thereby refuses
14 to answer any questions under oath. Id. To avoid the need to proceed further with
15 Tuchinsky’s deposition, the parties have agreed to exclude Tuchinsky’s testimony at trial.
16 Id. To the extent Tuchinsky’s Fifth Amendment privileges are waived by way of plea or
17 voluntarily, the parties assert that Plaintiffs will not be precluded from filing a motion to
18 reopen discovery solely to permit the deposition of Tuchinsky prior to trial. Id. Finding
19 good cause, the Court GRANTS the parties’ Joint Motion and precludes the testimony of
20 Tuchinsky.
21 V. CONCLUSION
22 In short, this case is riddled with questions of fact: what did the officers do, or fail
23 to do, and why? This is a classic case for a trial on the merits. Defendants’ Motion for
24 Summary Judgment is denied. The motion to strike is granted without prejudice.
25 Specifically,
26 1. The Court DENIES the United States’ Motion for Summary Judgment with
27 respect to Plaintiffs’ assault and battery claims.
28 2. The Court DENIES the United States’ Motion for Summary Judgment with
1 ||respect to Plaintiffs’ false imprisonment claim.
2 3. The Court DENIES the United States Motion for Summary Judgment with
3 ||respect to Plaintiffs’ ITED claim.
4 4. The Court GRANTS the parties’ Joint Motion to Preclude the Testimony of
5 || Yevgeny Tuchinsky.
6 IT IS SO ORDERED. °
7 || DATED: — July 22, 2024
g ~ ROGER T. BENIT
9 United States District Judge
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