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July 14, 1994

JEANETTE REYNOLDS, as Administrator of the Estate of Paul Reynolds, Deceased, and JEANETTE REYNOLDS, Individually, Plaintiffs,

The opinion of the court was delivered by: JOHN S. RHOADES, SR.

 This is a motion for summary judgment by defendant Jeffrey Jackson, a Sheriff's deputy, in a wrongful death action arising from the shooting death of Paul Reynolds. On February, 4, 1994, the County of San Diego joined the motion. (County's Notice of Joinder). Two suits were filed: one by the decedent's wife, Jeanette Reynolds, and one by the decedent's mother, Denise Reynolds. The actions have been consolidated. The complaints asked for damages under 42 U.S.C. § 1983, as well as under state civil rights law and tort.

 I. Statement of Facts

 At 1:00 a.m. on Feb. 18, 1992, Joseph Kircheval, a gas station attendant, noticed Reynolds acting strangely near the gas pumps. Reynolds approached the window, but did not respond when the attendant asked if he could help him with something. Reynolds placed his face up against the glass, and then responded when the attendant repeated the question by saying "yes I think you can." Then, Reynolds walked away from the window back toward the pumps and picked up a squeegee. After asking Reynolds to replace the squeegee, the attendant called the Sheriff's department to explain the situation.

 Kircheval next noticed that Reynolds had drawn a knife, *fn2" which he was "sniffing or licking." Kircheval called the Sheriff's department again and informed them that Reynolds was now armed.

 Jackson drove toward the gas station, and discovered Reynolds's car blocking traffic in the road, with the driver's door open. As Jackson approached the car on foot, Mr. Wapnowski, a truck driver who was delivering gasoline to the station, yelled at Jackson to "stop" Reynolds. Mr. Wapnowski indicated that Reynolds had a knife or a weapon. Jackson then saw Reynolds being chased away from the gas truck by the driver, who was yelling. According to Mr. Wapnowski, Reynolds moved with quick, sudden, jerking motions. Jackson drew his gun and told Reynolds to stop. Jackson saw Reynolds's knife and told Reynolds to put his hands in the air. Reynolds complied. At that point, Michael Tucker, a passing motorist stopped to observe the altercation.

 Jackson told Reynolds to lie down on the ground and keep his hands where Jackson could see them. Reynolds lay down on the ground with the knife in his right hand. As Jackson moved closer to Reynolds, Jackson ordered Reynolds's to drop the knife from his hand. Reynolds put the knife on the ground next to his body. According to Mr. Wapnowski, as Deputy Jackson approached Reynolds, Jackson was slowly and constantly telling Reynolds not to move. Then, as Jackson approached, Reynolds suddenly sat up and grabbed the knife.

 Jackson alleges that, as he approached Reynolds, he attempted to kick Reynolds in order to disarm him. But Reynolds was able to avoid the kick, although he was still in a sitting position. Jackson approached Reynolds from behind, put his knee in Reynolds's back, and told him to drop the weapon. Reynolds did not drop the weapon. Instead, he made a motion which Jackson believed was an attempt to open the marlin spike (which apparently opens like a switch blade). Jackson pressed his gun into Reynolds's neck and told him to drop the knife. Reynolds suddenly jerked to the side and made an upward motion with his arm, swinging the knife toward Jackson. Jackson pulled the trigger on the gun, but the gun did not fire because it was pressed against Reynolds's neck. Jackson immediately pulled back and squeezed the trigger again. Reynolds died of a single gunshot wound to the neck.

 Jeanette Reynolds, the decedent's wife and the administrator of decedent's estate, filed suit against Deputy Jeffrey Jackson, Sheriff Jim Roache, the County of San Diego, and Does I-XX inclusive. She has brought the following seven causes of action: (1) violation of decedent's rights secured by 42 U.S.C. Sections 1893, 1986, and 1988, and California Civil Code section 52.1; (2) wrongful death; (3) assault and battery; (4) negligence; (5) negligent hiring; (6) loss of consortium; and (7) violation of the California Public Records Act. In her complaint, Reynolds alleges that the actions of Deputy Jackson are properly imputed to Defendant County of San Diego.

 Denise Reynolds, decedent's mother, also brings suit against Jeffrey Jackson, Sheriff Jim Roache, and the County San Diego alleging (1) violation of the decedent's civil rights under 42 U.S.C section 1983 and California Civil Code section 52.1; (2) wrongful death *fn3" (3) assault and battery; (4) negligence; and (5) negligent hiring. Denise Reynolds similarly imputes Jackson's actions to the County.

 II. Summary Judgment Standard

 Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law." One of the principal purposes of the rule is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 In considering a motion for summary judgment, the Court must examine all the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962). A moving party who bears the burden of proof at trial is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed. R. Civ. P. 56(c), Celotex, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party does not bear the burden of proof at trial, he may discharge his burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the non-moving party's case." Id. at p. 325. The moving party is not required to produce evidence showing the absence of a genuine issue of material fact on such issues, nor must the moving party support its motion with evidence negating the nonmoving party's claim. Lujan v. National Wildlife Federation, 497 U.S. 871, 885, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990). Instead, "the motion may, and should, be granted so long as whatever is before the District Court demonstrates that the standard for the entry of judgment, as set forth in Rule 56(c), is satisfied." Lujan, 497 U.S. at 885 (quoting Celotex, 477 U.S. at 323).

 Once the moving party meets the requirement of rule 56 by either showing that no genuine issue of material fact remains or that there is an absence of evidence to support the non-moving party's case, the burden shifts to the party resisting the motion, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his pleadings." Id. Genuine factual issues must exist that "pan be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250.

 To make such a showing, the nonmoving party must go beyond the pleadings to designate specific facts showing that there is a genuine issue for trial. Celotex at 325. Such evidence need not be in a form admissible at trial to avoid summary judgment. Id. The moving party is entitled to judgment as a matter of law if the nonmovant fails to make a sufficient showing of an element of its case with respect to which it has the burden of proof. Id.

 III. Denise Reynolds's Standing to Bring Suit.

 Jackson and the County have moved for the dismissal of claims filed by Denise Reynolds, alleging that she does not have standing to bring suit. Denise claims that she has standing to pursue her claim for loss of companionship, society and comfort resulting from the death of her son pursuant to 42 U.S.C. section 1983. The state law and federal law claims are addressed separately below.

 A. State Law Claim

 1. Parent as Intestate Heir

 Under Section 377(a), Denise Reynolds cannot bring the wrongful death action as an heir because the decedent has a surviving spouse, Jeannette Reynolds, who has filed a claim for wrongful death. Since Denise Reynolds does not have standing as an intestate heir, she can only bring a state law cause of action if she was dependent on the decedent.

 2. Dependent Parents

 Denise Reynolds can maintain a wrongful death action only if she can prove that she was dependent upon her son. The term "dependent" refers to financial dependency, not emotional dependency. Perry v. Medina, 192 Cal. App. 3d 603, 608, 237 Cal. Rptr. 532 (1987).

 To demonstrate financial dependency, "the parents must show that they were actually dependent, to some extent, upon the decedent for the necessaries of life.'" Id. at 610 (quoting Hazelwood v. Hazelwood, 57 Cal. App. 3d 693, 698, 129 Cal. Rptr. 384 (1976)) (emphasis in original). Denise has not claimed to have been dependent on her son. As a matter of law, Denise Reynolds cannot maintain a state law cause of action under California Civil Procedure Code section 377(b)(2).

 B. Federal Law Claims

 Denise Reynolds also seeks relief under 42 U.S.C. § 1983 for alleged violations of her own civil rights due to her son's death. This amounts to a federal wrongful death action brought by the plaintiff on her own behalf. Denise argues that she has a fundamental right under the Fourteenth Amendment to the continued companionship and society of her son, and that the county's violation of this right is actionable under § 1983.

 The County argues that standing to bring federal wrongful death claims under section 1983 is governed by state law, and that Denise Reynolds does not have standing under the California Code to assert such a claim.

 The interface between state law and § 1983 is governed by 42 U.S.C. § 1988. Section 1988 requires a three-step analysis in considering whether to apply state law in a civil rights action. First, the court must first look for a federal rule. If no federal rule governs, the court must next look for a state law rule, and, (finally) apply it "only if it is not inconsistent with the Constitution and laws of the United States." Wilson v. Garcia, 471 U.S. 261, 267, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985).

 The federal rule does not answer the inquiry and therefore state wrongful death statutes have been borrowed to supplement § 1983 in the general area of wrongful death actions. See, e.g., Bell v. City of Milwaukee, 746 F.2d 1205, 1235-41 (7th Cir. ...

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