The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR PARTIAL ADJUDICATION
This case arises out of an encounter on February 15, 2007 between Plaintiff Guadalupe Gonzalez and Merced County Sheriff Deputies at Castle Airport in Atwater, California. Plaintiff alleges that two Merced County Sheriff Deputies unlawfully arrested and tasered him following a dispute over how to intercede on behalf of an airplane with malfunctioning landing gear.
Plaintiff's complaint asserts five claims based upon the allegations of excessive force and wrongful arrest: (1) violation of Title 42, United States Code, Section 1983 against all defendants; (2) violation of Article I, § 13 of the California Constitution against all defendants; (3) assault and battery against all defendants; (4) false arrest and imprisonment against all defendants; and (5) negligence against all defendants.
Before the court for decision is a motion for summary judgment, or in the alternative, summary adjudication filed by Defendants County of Merced, Merced County Sheriff's Department, and Merced County Sheriff's Deputies John McKnight and Jason Cope. (Doc. 52.)
Plaintiff is an individual and resident of the City of Atwater. (Compl. ¶ 5.) At all relevant times herein, Plaintiff was working as director of maintenance for the American School of Aviation ("ASA"), a flight school operating out of Castle Airport in Atwater. (Id. ¶ 11.)
Defendant County of Merced is a municipal entity organized under California law. (Compl. ¶ 6.) Merced County Sheriff's Department is a political subdivision of the County of Merced, with the responsibility to maintain and administer law enforcement in Merced County.*fn1 (Id.) Defendant John McKnight is a deputy with the Merced County Sheriff's Department, primarily working out of the Castle airport managing Merced County's aircraft. (Id.; Defendant's Statement of Undisputed Material Facts ("DSUMF") # 106.) Jason Cope is a deputy with the Merced County Sheriff's Department. (Compl. ¶ 6.)
B. Events Leading up to The February 2007 Incident
At approximately 2:45 p.m. on February 15, 2007, an ASA-owned plane reported that its right landing gear wheel would not release, leaving only the left and nose wheels in landing position. (Compl. 11.) An ASA flight instructor and his student were controlling the plane when the malfunction occurred. (Dep. of J. McKnight pg. 63.) ASA employees, including Plaintiff, discussed various options to release the airplane's right wheel. (Compl. ¶ 11) One potential solution was to drive a Hummer owned by Manpreet Singh ("Singh"), the owner of ASA flight school, underneath the airborne plane and have Plaintiff reach through the sunroof with a metal hook and manually release the plane's landing gear. (DSUMF # 1.) Plaintiff had never seen or personally performed this maneuver prior to February 15, 2007. (DSUMF # 7.)
Around this time, Scott Malta, the manager of Castle Airport, heard a radio transmission concerning the plane's malfunctioning landing gear. (DSUMF # 79; Dec. of S. Malta pg 25.) He called the tower to inquire. (Id.) Shortly thereafter he was contacted by Singh, owner of ASA, and Singh told Malta that they intended to drive his Hummer under the plane and have the passenger step into the sunroof and manually release the landing gear with a metal hook. (DSUMF # 79; Dec. of S. Malta pg. 67) Malta, who had ultimate authority over the airfield, told them not to proceed and he would be there shortly. (Id.; DSUMF ## 6, 124.) ASA employees knew Scott Malta was in charge of the airport. (Id.)
Malta then contacted Deputy McKnight and informed him of the intentions of the flight school employees. (DSUMF ## 10-11.) Malta said he did not want them to proceed with this plan and asked for McKnight's assistance. (Id.)
At approximately 4:45, Malta and Deputy McKnight - wearing his flight suit and sidearm - arrived at the airport and proceeded to the ASA maintenance facility at the northern end of the airport. (DSUMF ## 9, 12.) Present at the ASA maintenance facility were several ASA employees, including Plaintiff, Singh, Montoya, Contreras, Canlas, and Robles. (DSUMF # 14.) The group had access to two vehicles, Singh's Hummer and a small pickup truck belonging to ASA employee Nick Robles. (Dec. of G. Gonzalez ¶ 17.) The vehicles were located about fifty feet from the ASA employees.*fn3 (DSUMF # 51.)
C. Discussions at the ASA Maintenance Field between ASA Employees and Airport Manager Malta & the Deputies
At all relevant times, the parties were huddled in two separate groups, located approximately 10-15 feet apart. (DSUMF # 29-32.) One of the groups was comprised of ASA employees, including Plaintiff and Singh. (Id.) The other group comprised of Deputy McKnight, Malta, and Cope.*fn4 (DSUMF # 29-32, 51.) There was an adversarial posture to the discussions as the ASA employees -led by Plaintiff - were attempting to convince Malta and McKnight to allow them to manually open the landing gear. (Id.)
McKnight first spoke with Plaintiff, who repeated the group's plan to manually open the landing gear while driving below the airplane. Plaintiff then presented the metal tool and stated that Singh was going to drive his Hummer and he was going to manually pull the latch down from the passenger seat. Plaintiff was told that Malta disapproved of the plan and did not want them to proceed. McKnight then left to speak with Malta, who was near his vehicle approximately 15 feet from the area where McKnight and Plaintiff had their discussion. (DSUMF # 18.)
Malta was on the phone with the Federal Aviation Administration ("FAA") when McKnight walked over to him. (DSUMF # 16.) Malta handed McKnight the phone and the FAA told McKnight that while they had no enforcement power over the airport, they couldn't support the plan because it was a risky procedure. (DSUMF # 16; McKnight Dep. pg. 75.) McKnight then returned the phone to Malta and called dispatch to request another unit. (DSUMF # 17.) McKnight states that he requested an additional unit because Plaintiff appeared agitated during their initial conversation and he expected Plaintiff's agitation to continue. (Id.)
Over the next 25 minutes, the two groups remained separate, but had intermittent discussions where Plaintiff tried to convince Malta and McKnight to allow the ASA employees to proceed with their plan. (DSUMF # 29-35.) Malta continually expressed his unwillingness to consent to the plan. (Id.)
McKnight suspected that Plaintiff and one or more of his co-workers would attempt the maneuver without obtaining Malta's consent. (DSUMF # 25.) McKnight continually told Plaintiff that Malta did not want them to proceed. (DSUMF ## 10-11,18-28.) Plaintiff did not ignore his instructions and continued in his attempts to convince Malta to allow him on the airfield. (DSUMF ## 20, 39.) Plaintiff's perception was that every time he asked McKnight if he was working on a plan, McKnight told him he would be arrested if he went on the runway. (DSUMF # 28.)
At approximately 5:08, Deputy Cope arrived, in uniform and a marked squad car. (DSUMF # 81.) He then joined a conversation between McKnight and Plaintiff. (DSUMF # 24.)
D. Use of Force and Arrest
a. Defendants' Account of Use of Force and Arrest
According to Defendants, when told he was not going to be allowed to perform the procedure, Plaintiff stated that he was "going out there and it didn't matter what [Deputy McKnight] had to say about it." (DSUMF # 19.) Plaintiff then told the deputies that they would have to arrest him or shoot him to stop him and that time was running out. (DSUMF # 21.)
According to Defendants, Plaintiff then turned and began to walk towards the general direction of the hanger and Hummer. (DSUMF # 41.) McKnight then followed Plaintiff and announced more than once that he should "stop." (DSUMF # 54). McKnight then yelled to Cope to arrest Plaintiff. (DSUMF # 55). Cope then proceeded in Plaintiff's direction. (DSUMF # 53). It took Cope three to five seconds to catch up to Plaintiff, at which point he attempted to grab his left arm from behind, but Plaintiff pulled it back and told the Deputy not to touch him. (DSUMF ## 57, 58.)
Cope then attempted to restrain Plaintiff by placing his arm behind his back. (DSUMF # 59.) Plaintiff then tensed up and brought his wrist up to the general area of his chest. (DSUMF # 60.) Cope continued his attempts to get Plaintiff's hand behind his back as McKnight assisted and attempted to get Plaintiff's other hand behind his back. (DSUMF # 64.) During this time, McKnight could hear yelling from Plaintiff's co-workers telling him to leave Plaintiff alone, but did not hear Plaintiff mention anything about his back. (DSUMF ## 62, 66.)
After struggling to gain control over Plaintiff, McKnight told Cope to tase Plaintiff. (DSUMF # 64.) Cope then tasered Plaintiff. (DSUMF # 64.) The tasing lasted five seconds. ((DSUMF # 70.) McKnight was holding onto Plaintiff during the tasing and lowered him to the ground. (DSUMF # 69.) Once on the ground, Plaintiff had his arms under him and was told to put his arms behind his back. (DSUMF # 71.) When Plaintiff did not put his arms behind his back as instructed, Cope tased him a second time. (DSUMF # 71.) The second tasing lasted two seconds. (DSUMF # 71.) Plaintiff then put his arms behind his back and was handcuffed. (DSUMF # 72.) After Plaintiff was handcuffed, he was taken from the area, cited, and released. (DSUMF # 76.)
Deputy McKnight claims he used the taser because Plaintiff was not complying with his orders and for deputy safety as he was concerned Plaintiff would disobey orders and attempt the maneuver with his co-workers. (DSUMF # 25.) Deputy McKnight claims that the use of the taser was "the most reasonable" and "quickest" means to take Plaintiff into custody. (DSUMF # 43.) Deputies McKnight and Cope received training in how to properly use a taser. (DSUMF ## 103, 110.) The Merced County Sheriff's Department had written policies regarding the use of force and the use of a taser at the time of this incident. (DSUMF ## 112, 114.)
b. Plaintiff's Account of Use of Force and Arrest
According to Plaintiff, Plaintiff told McKnight that they had only one hour left of sunlight and they had better do something or let the ASA employees conduct their plan. (Dec. of G. Gonzalez ¶ 14). Plaintiff then turned around and walked towards his co-workers to await further instruction. (Id.) While walking to his co-workers, someone grabbed Plaintiff's arm from behind and spun him around. (Id.) This occurred within a few seconds of his comments to McKnight. (Id.) Plaintiff did not hear anyone, specifically McKnight or Cope, say that he was under arrest or that he should stop. (Id. at ¶ 15.)
Upon being grabbed from behind, Plaintiff says he instinctively raised his arms with his hands open. (Id. at ¶ 17) Plaintiff told the person who grabbed him that he had a back injury. (Id.) At that point Plaintiff heard McKnight order Cope to arrest him. (Id.) Plaintiff inquired as to the basis for his arrest, at which point Cope grabbed his left arm and McKnight grabbed his right arm. (Id.) Plaintiff maintains that he did not move or do anything at this time. (Id.) McKnight then ordered Cope to taser him. Cope released Plaintiff's arm, stepped back, and shot him with the taser. (Id.)
As a result of the taser, Plaintiff's whole body froze and he fell to the ground, with his right arm underneath his body and his left arm to his side. (Id.) At that point, someone grabbed Plaintiff's left arm and pulled it back to arrest him. (Id.) The same person ordered Plaintiff to release his right arm. (Id.) Plaintiff was unable to do so as he fell on his right arm and a deputy had his knee in Plaintiff's back, thus pinning his right arm beneath his body. (Id.) McKnight then ordered Cope to tase Plaintiff a second time, again claiming that he was resisting. (Id.) Cope then tasered Plaintiff for a second time. (Id.) Plaintiff's right arm released and McKnight pulled it behind his back and handcuffed Plaintiff. (Id.)
Plaintiff maintains that the deputies did not have probable cause to arrest him as he had every intention of following McKnight's and Malta's order regarding the handling of the airplane's malfunctioning landing gear. (Id. ¶¶ 14, 16.) Plaintiff further argues that he did not make any struggle, move, or resist arrest in any manner. (Id. ¶ 17.) Singh's testimony supports Plaintiff's latter claim. (See Dep. Singh. Pg. 127-128.)
On August 7, 2007, Plaintiff filed a complaint against the County of Merced, Merced County Sheriff's Department, and deputies John McKnight and Jason Cope under 42 U.S.C. 1983 for excessive force (Count I); under the California Constitution for unlawful search and seizure (Count II); and state law claims for assault and battery, false arrest and imprisonment, and negligence (Counts IIIV). The deputies are sued in their individual capacities and the County of Merced is sued as a municipal entity that acts by and through its individual deputies. (Doc. 1.)
Defendants County of Merced, Merced County Sheriff's Department, and Deputies John McKnight and Jason Cope filed their answer on August 29, 2007. (Doc. 15.) Defendants filed this motion for summary judgment, or in the alternative, summary adjudication on April 2, 2009. (Doc. 52.) Defendants seek judgment on the grounds that Plaintiff cannot 1) establish his federal constitutional claims, 2) overcome the qualified immunity of the individual defendants, or 3) establish Monell liability of the County of Merced. Defendant also argues the state law claims should be dismissed because the deputies 4) acted lawfully, 5) are entitled to immunity under California Government Code §§ 820.2, 820.4,and 835(a), and 6) Plaintiff lacks evidence to support some of his claims.
Plaintiff filed his opposition to summary judgment or, in the alternative, summary adjudication on April 20, 2009. (Doc. 60.) Plaintiff opposes summary judgment on grounds that triable issues of material fact exist as to his constitutional claims and various state law theories. Plaintiff argues Defendant's deputies unlawfully arrested him and used excessive force. Plaintiff further contends that neither the County of Merced nor the individual defendant deputies are entitled to qualified immunity or any protections under the California Government Code.
On April 20, 2009, Plaintiff filed a declaration in support of his opposition. While the declaration was timely, it did not include penalty of perjury language as required by Rule 56(e). On April 27, 2009, Defendants filed an objection to Plaintiff's declaration. (Doc. 67.) On April 28, 2009, Plaintiff filed an application for leave to file a corrected declaration. (Doc. 68.) Plaintiff stated that the "penalty of perjury" sentence was inadvertently omitted by counsel. Plaintiff's corrected declaration was attached thereto.
Good cause exists to grant leave. No prejudice resulted between April 27th and April 28th. Further, the substance of the declaration was known to Defendants. Plaintiff's application for ...