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October 3, 2005.

CITY OF LA MESA, et al., Defendants.

The opinion of the court was delivered by: DANA SABRAW, District Judge

This matter comes before the Court on Defendants' motion for summary judgment or, in the alternative, summary adjudication. Plaintiff has filed an opposition to the motion and Defendants have filed a reply. Plaintiff has also filed a supplemental opposition.*fn1 The matter came on for hearing on September 30, 2005. Jim Miller, Jr., Esq. appeared on behalf of Plaintiff, and Mitchell Dean, Esq. and Shiva Elihu, Esq. appeared on behalf of Defendants. For the reasons set out below, the Court grants in part and denies in part Defendants' motion.



  Plaintiff filed her original complaint in this case on September 22, 2004, in San Diego County Superior Court. Defendant City of La Mesa removed the case to this Court on October 7, 2004. Upon the City's request to file a motion to dismiss, the Court held a telephonic status conference on November 2, 2004. At the conference the parties agreed to the filing of a First Amended Complaint, in which Plaintiff would identify two of the Doe Defendants referenced in the Complaint.

  Plaintiff filed her First Amended Complaint on November 12, 2004, and identified Officers Brown and Becker as Defendants. She alleges Defendants Brown and Becker violated her constitutional rights to be free from unreasonable seizure, unreasonable search and excessive force. In addition, she alleges Defendant City of La Mesa is liable pursuant to Monell v. New York City Dep't of Social Services, 436 U.S. 658, 691-693 (1978). She also asserts state law claims for negligence, battery, false arrest and for violation of California Civil Code Section 52.1 against the Individual Defendants and the City.



  The incident giving rise to this case occurred at Plaintiff's residence at 4261 Lowell Avenue, #7, in La Mesa, California, on April 24, 2004. At that time, Plaintiff lived in the residence with her two adult children, Shire and Selina Cain. (Defs.' Separate Statement of Undisputed Facts in Supp. of Mot. for Summ. J., Fact No. 3.) At approximately midnight on that date, Plaintiff called the police complaining that her daughter had shut off her electricity. (Id. at No. 7.) Selina explained the electricity was shut off to quiet Plaintiff because she was being loud and preventing others from sleeping. (Id. at No. 12.) Defendant Becker and Officer Lawton of the La Mesa Police Department responded to the call. (Id. at No. 8.) Becker reported Plaintiff was intoxicated. (Id.) He could smell alcohol on Plaintiff's breath, observed that her gait was unsteady, her eyes were red and she was uncooperative. (Id. at Nos. 9-10.) Plaintiff admitted she had been drinking prior to the incident. (Id. at No. 11.) Defendant Becker and Officer Lawton eventually left the scene without making an arrest because they believed the situation was resolved. (Id. at No. 13.) After the Officers left the scene, Plaintiff called the police again, this time to report a petty theft of her television by her daughter. (Id. at No. 15.) Defendant Becker and Officer Lawton returned to Plaintiff's residence. (Id. at No. 14.) After speaking to the parties involved, and believing the situation was settled, they again left the scene. (Id. at No. 16.) At approximately 3:30 a.m., Plaintiff's son, Shire Cain, called the police due to Plaintiff's loud and disruptive behavior. (Id. at No. 18.) Defendant Brown was the first to arrive at the scene, followed by Defendant Becker and other officers. (Id. at Nos. 20-21.) Defendant Brown was aware that La Mesa Police had been summoned to Plaintiff's residence approximately 11 times since August 2002, and at least five times since March 2004. (Decl. of Vince Brown in Supp. of Mot. for Summ. J. ("Brown Decl.") at ¶ 4.) Upon arrival, Defendant Brown spoke with Shire Cain outside of the residence, and Mr. Cain informed Defendant Brown his mother had been drinking all day. (Id. at No. 21-22.) Plaintiff then exited the residence waiving what she believed were eviction papers at the Officers. (Id. at No. 23.) Plaintiff's speech was slurred, her eyes were red, her gait was unsteady, and she appeared drunk. (Id. at No. 24.)

  As Defendant Brown began to walk toward Plaintiff, she turned away from him and started heading back toward her residence. (Id. at No. 25.) After Plaintiff had reentered her residence, Defendant Brown grabbed Plaintiff's right arm and pulled her out of the house. (Id. at No. 26.) At the same time, Defendant Brown slammed Plaintiff into a wall and applied a Wrist Flex Hold (or wrist compliance hold),*fn2 fracturing Plaintiff's right humerus. (Id. at Nos. 27, 31; Pl.'s Separate Statement of Facts Disputing Defs.' Separate Statement of Undisputed Facts at p. 2.) Defendant Becker assisted Defendant Brown by grabbing Plaintiff's left arm. (Defs.' Supp. Separate Statement of Undisputed Facts in Supp. of Mot. for Summ. J., Fact Nos. 52, 55.)

  Plaintiff was eventually arrested for violation of California Penal Code Section 647(f).*fn3 (Id. at No. 35.) After Plaintiff was transported from the scene, Shire Cain gave the officers consent to enter the residence, which they did. (Id. at Nos. 36-37.) III.


  Defendants move for summary judgment on each of Plaintiff's claims. They argue the Individual Defendants are entitled to qualified immunity from Plaintiff's Section 1983 claims, Plaintiff has failed to identify a policy, custom or practice to support her Monell claim, and all Defendants are entitled to judgment on Plaintiffs' state law claims. Plaintiff disputes all of these arguments.

  A. Standard of Review

  Summary judgment is appropriate if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The moving party must identify the pleadings, depositions, affidavits, or other evidence that it "believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).

  The burden then shifts to the opposing party to show that summary judgment is not appropriate. Celotex, 477 U.S. at 324. The opposing party's evidence is to be believed, and all justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, to avoid summary judgment, the opposing party cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Instead, it must designate specific facts showing there is a genuine issue for trial. Id. See also Butler v. San Diego District Attorney's Office, 370 F.3d 956, 958 (9th Cir. 2004) (stating if defendant produces enough evidence to require plaintiff to go beyond pleadings, plaintiff must counter by producing evidence of his own). More than a "metaphysical doubt" is required to establish a genuine issue of material fact." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)

  B. Qualified Immunity

  The Individual Defendants argue they are entitled to qualified immunity from Plaintiff's Section 1983 claim. Qualified immunity shields government officials performing discretionary functions from liability for civil damages unless their conduct violates clearly established statutory or constitutional rights of which a ...

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