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Defendant's Attorney: Elisa Tanya Tolentino

Description: San Jose, California civil rights lawyer represented Plaintiff, who sued Defendants claiming injury as a result of the use of excessive force by Office Jenni Byrd.


On July 10, 2019, Ms. Whiting attended a Paul McCartney concert at the SAP Center in San Jose, where defendant Officer Byrd was working security. Dkt. No. 41-1 ¶¶ 2-3, Exs. A (Byrd Depo. at 61:10-14) & B (Whiting Depo. at 13:18-24). As soon as the concert started, Ms. Whiting found the volume of the concert to be too loud and asked an SAP staff member for a
refund of her concert ticket. Id. ¶ 3, Ex. B (Whiting Depo. at 22:9-15, 29:2-10). The SAP staff member directed Ms. Whiting into a stairwell where they could converse, and they were followed into the stairwell by Officer Byrd. See id. (Whiting Depo. at 29:2-10); see also Dkt. No. 1 ¶ 16. The SAP staff member left the stairwell to find a supervisor to address Ms. Whiting's refund request, and Ms. Whiting and Officer Byrd remained in the stairwell alone. Dkt. No. 41-1 ¶ 3, Ex. B (Whiting Depo. at 33:7-22); see also Dkt. No. 1 ¶ 17.

The parties dispute what happened next. Ms. Whiting claims that Officer Byrd physically assaulted her and threw her down onto the stairs, causing injuries. Dkt. No. 41-1 ¶ 3, Ex. B (Whiting Depo. at 38:21-39:5, 49:8-50:1, 54:20-22, 58:6-59:15). Defendants dispute that Officer Byrd grabbed Ms. Whiting or threw her against the stairs. In deposition, Officer Byrd testified that she placed her hand “on the back of [Ms. Whiting's] triceps and helped her up the stairs,” when Ms. Whiting pulled away and fell. Id. ¶ 2, Ex. A (Byrd Depo. at 103:17-106:19).

That same day, July 10, 2019, Ms. Whiting complained to the San Jose Police Department (“SJPD”) about the alleged assault by Officer Byrd. See id. ¶ 5. She says that she also lodged a complaint with the Independent Police Auditor (“IPA”) on August 12, 2019. See id.

Ms. Whiting says that in March and April 2020, she requested records from the City relating to the July 10, 2019 incident, but the City did not produce all records. See id. ¶¶ 6, 7; see also Dkt. No. 1 ¶ 31.

Ms. Whiting subsequently received a letter from the SJPD, dated October 14, 2020, stating that “a disposition of Not Sustained has been reached on your allegations of Force.” Dkt. No. 41-1 ¶ 8, Ex. C.

Ms. Whiting filed the present action on July 7, 2021, asserting two claims for relief against both defendants. Her first claim is based on 42 U.S.C. § 1983 and alleges excessive force in violation of the Fourth Amendment to the U.S. Constitution. Her second claim for relief concerns her request for records and is styled as “Action to Compel Compliance with [California] Penal Code § 832.7(c)-[California] Code Civ. Proc. §§ 526, 1060.” Dkt. No. 1.

The City now moves for summary judgment on Ms. Whiting's § 1983 claim, arguing that, even assuming the events unfolded as Ms. Whiting claims, she does not have evidence to support municipal liability. The City and Officer Byrd move for summary judgment on Ms. Whiting's second claim for relief, contending that the claim is moot because the City has already fully complied with her request for records.



On July 10, 2019, Ms. Whiting attended a Paul McCartney concert at the SAP Center in San Jose, where defendant Officer Byrd was working security. Dkt. No. 41-1 ¶¶ 2-3, Exs. A (Byrd Depo. at 61:10-14) & B (Whiting Depo. at 13:18-24). As soon as the concert started, Ms. Whiting found the volume of the concert to be too loud and asked an SAP staff member for a

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refund of her concert ticket. Id. ¶ 3, Ex. B (Whiting Depo. at 22:9-15, 29:2-10). The SAP staff member directed Ms. Whiting into a stairwell where they could converse, and they were followed into the stairwell by Officer Byrd. See id. (Whiting Depo. at 29:2-10); see also Dkt. No. 1 ¶ 16. The SAP staff member left the stairwell to find a supervisor to address Ms. Whiting's refund request, and Ms. Whiting and Officer Byrd remained in the stairwell alone. Dkt. No. 41-1 ¶ 3, Ex. B (Whiting Depo. at 33:7-22); see also Dkt. No. 1 ¶ 17.

The parties dispute what happened next. Ms. Whiting claims that Officer Byrd physically assaulted her and threw her down onto the stairs, causing injuries. Dkt. No. 41-1 ¶ 3, Ex. B (Whiting Depo. at 38:21-39:5, 49:8-50:1, 54:20-22, 58:6-59:15). Defendants dispute that Officer Byrd grabbed Ms. Whiting or threw her against the stairs. In deposition, Officer Byrd testified that she placed her hand “on the back of [Ms. Whiting's] triceps and helped her up the stairs,” when Ms. Whiting pulled away and fell. Id. ¶ 2, Ex. A (Byrd Depo. at 103:17-106:19).

That same day, July 10, 2019, Ms. Whiting complained to the San Jose Police Department (“SJPD”) about the alleged assault by Officer Byrd. See id. ¶ 5. She says that she also lodged a complaint with the Independent Police Auditor (“IPA”) on August 12, 2019. See id.

Ms. Whiting says that in March and April 2020, she requested records from the City relating to the July 10, 2019 incident, but the City did not produce all records. See id. ¶¶ 6, 7; see also Dkt. No. 1 ¶ 31.

Ms. Whiting subsequently received a letter from the SJPD, dated October 14, 2020, stating that “a disposition of Not Sustained has been reached on your allegations of Force.” Dkt. No. 41-1 ¶ 8, Ex. C.

Ms. Whiting filed the present action on July 7, 2021, asserting two claims for relief against both defendants. Her first claim is based on 42 U.S.C. § 1983 and alleges excessive force in violation of the Fourth Amendment to the U.S. Constitution. Her second claim for relief concerns her request for records and is styled as “Action to Compel Compliance with [California] Penal Code § 832.7(c)-[California] Code Civ. Proc. §§ 526, 1060.” Dkt. No. 1.

The City now moves for summary judgment on Ms. Whiting's § 1983 claim, arguing that, even assuming the events unfolded as Ms. Whiting claims, she does not have evidence to support municipal liability. The City and Officer Byrd move for summary judgment on Ms. Whiting's second claim for relief, contending that the claim is moot because the City has already fully complied with her request for records.

Outcome: ". The City's motion for summary judgment is granted as to Claim 1 (42 U.S.C. § 1983).

2. Defendants' motion for summary judgment is granted as to Claim 2 (Cal. Penal Code § 832.7(c))." Whiting v. City of San Jose (N.D. Cal. 2022)

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Defendant's Experts:

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