The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT
On August 1, 2005, Jesus Manzo ("Manzo") was shot and killed by sheriff's deputy Lewis Schott during a police chase. Plaintiffs, the estate of Manzo, Maria Maldinado, and Anahi Manzo, have brought suit against Defendants County of San Diego, Captain Robert Ahern, and Deputy Lewis Schott alleging claims for violation of constitutional rights, excessive force, wrongful death, municipal liability, supervisory liability, battery and negligence. The claims on behalf of the estate of Manzo are brought by Maria Nancy Manzo, the deceased's sister and alleged personal representative of the estate.
Defendants have moved for summary judgment on Plaintiffs' claims on several grounds. For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART Defendants' motion for summary judgment.
A. Standing To Bring Claims on Behalf of the Estate of Manzo
Survival actions pursuant to § 1983 are permitted if authorized by the applicable state law. Moreland v. Las Vegas Metropolitan Police Dept, 159 F.3d 365, 369-370 (9th Cir. 1998).
"A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent's successor in interest, subject to [provisions] of the Probate Code, and an action may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest." Code Cal. Civ. Proc.§ 377.30. Where there is no acting personal representative of a decedent because there has been no probate, or probate is no longer pending, the decedent's successor in interest is authorized to enforce a surviving cause of action. (4 Witkin, Cal. Procedure, supra, Pleadings, § 115, p. 175.) "Successor in interest" means the "beneficiary of the decedent's estate or other successor in interest who succeeds to a cause of action or a particular item of property that is the subject of a cause of action." Code Cal. Civ. Proc. § 377.11. Successors in interest are required to file an affidavit containing certain enumerated information set forth in § 377.32.
Here, Plaintiffs have introduced no evidence that Maria Nancy Manzo is either the personal representative of or successor in interest to Jesus Manzo under California law. Although Maria Nancy Manzo has filed the affidavit required under § 377.32, the affidavit itself does not qualify a person as a successor in interest. The parties are therefore ordered to show cause why the claims brought by the estate of Manzo, as represented by Maria Nancy Manzo, should not be dismissed for lack of standing.*fn1 Plaintiffs shall provide a written response to this order to show cause within two weeks of the date of this order. Defendants shall provide a reply to Plaintiffs' response within one week of the filing of Plaintiffs' response.
B. Wrongful Death Causes of Action
Plaintiffs Anahi Manzo and Maria Maldinado, in their second cause of action, allege a wrongful death claim against Deputy Schott pursuant to § 1983. Deputy Schott argues that he is entitled to summary judgment on the wrongful death claim on the grounds that his use of force against Jesus Manzo was reasonable and protected by qualified immunity.
Under the Fourth Amendment, police officers may use force to the extent that it is objectively reasonable under the circumstances. Graham v. Connor, 490 U.S. 386, 397 (1989). An officer's use of deadly force is reasonable only if "the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Tennessee v. Garner, 471 U.S. 1,3 (1985). A determination regarding whether unreasonable force was used "must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396-97. "If an officer reasonably, but mistakenly, believed that a suspect was likely to fight back, for instance, the officer would be justified in using more force than in fact was needed." Saucier v. Katz, 533 U.S. 194, 205 (2001).
Qualified immunity provides a "further dimension" of protection. Id. Government officials performing discretionary functions are shielded from liability for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. . . . If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Saucier v. Katz, 533 U.S. 194, 203 (2001) "[Q]ualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." See Valley v. Briggs, 475 U.S. 335, 341 (1986). The Court must determine, after resolving all factual disputes in favor of the plaintiff, whether the officer's use of deadly force was unreasonable and clearly unlawful under the circumstances.
Here, the Court has been presented with testimony setting forth two dramatically different versions of the critical events surrounding the death of Manzo. Deputy Schott testified that Manzo, while evading arrest by officers, jumped onto a fence between two homes located at 840 Newport Drive and 844 Newport Drive. (Schott Decl. ¶ 9) Deputy Schott ran up the driveway of 844 Newport Drive to head off Manzo on the east side of the fence while Deputy Dinger and his police dog approached Manzo from the west side of the fence. (Id.) Both officers then attempted to force Manzo off the fence. (Id.) Deputy Dinger's dog attempted to bite Manzo while Deputy Schott struck him on the legs with a Sap. (Schott Decl. ¶ 9, 10) While Manzo was on the fence, Deputy Schott saw what he believed to be a gun sticking out of Manzo's waistband. (Schott Decl. ¶ 10) Deputy Schott then cried out "Gun, Gun, Gun!" and started to move back and draw his own gun. (Id.) Manzo jumped down off the fence in the direction of Deputy Schott and refused to get down on the ground despite Deputy Schott's commands. (Id.) Manzo then reached into his waist in the location where Deputy Manzo had spotted what he believed to be a gun. (Id.) Believing that Manzo was reaching for his gun, Deputy Schott fired his handgun and shot Manzo. (Id.)
Felix Simental, the resident of 844 Newport Drive where the shooting took place, testified to a completely different version of events. Mr. Simental arrived at his house as the police chase was occurring. (Simental Depo.at 40-41) He parked his car at the bottom of the driveway, and witnessed the following events. (Id.) Manzo jumped over the three foot corral fence from 840 Newport Drive to 844 Newport Drive. (Simental Depo.at 46, 51) He ran toward Mr. Simental's front door and attempted to open the door. (Simental Depo.at 51-52) After he failed to open the door, he ran back toward the fence to the side of the house. (Simental Depo.at 54 ) Manzo then attempted to get into Mr. Simental's backyard through the garage.(Simental Depo.at 66-67) Because the garage was locked, Manzo turned around and proceed to run along the fence toward the street. (Id.) As Manzo was running toward the street he turned and looked at the officers to his left. (Simental Depo.at 66-70) He stopped, faced the officers and put out his hands as if to surrender. (Simental Depo.55-56,60-62, 66-71) One of the officers standing near Simental's door then shot Manzo.*fn2 (Id.) Simental later witnessed the officers "celebrating" by congratulating one another on the "nice shot" and making statements such as "Hey, man, you got him, you finally got him" and "Did you see that skinny little sucker run?" (Simental Depo.at 80, 90)
Upon resolving these disputed facts in favor of Plaintiff, the Court cannot conclude that Deputy Schott's actions were reasonable and justified under the circumstances. If Simental's version is accepted as true, then Deputy Schott shot Manzo while Manzo was stopped facing the officers with his hands up in the air. In this scenario, Deputy Schott could not reasonably have perceived that Manzo posed a significant threat of death or serious physical injury. Even accounting for the tense, uncertain situation of a police chase with a possibly armed suspect, the Court finds that Deputy Schott did not act reasonably if he shot Manzo while he was stopped and facing the ...