The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING AND DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTIONS
On September 2, 2009, Plaintiff Macario Dagdagan filed a motion for partial summary judgment on certain of his Fourth Amendment claims alleged under 42 U.S.C. section 1983 and his state claims alleged under California Civil Code section 52.1. Specifically, Plaintiff seeks partial summary judgment on his claims that Vallejo Police Officers Wentz and Boyd (collectively, "Defendants") violated his Fourth Amendment rights by "entering [his] home without a warrant" and "arresting [him] without probable cause." (Not. of Mot. for Partial Summ. J. 1.) Plaintiff contends that liability under the Fourth Amendment gives rise to liability under California Civil Code section 52.1. (Id.) Plaintiff argues summary judgment is warranted because the undisputed facts demonstrate Defendants violated his Fourth Amendment rights when, without a warrant, they entered his apartment, questioned him, and then arrested him.*fn1 Defendants oppose Plaintiff's motion, and seek to continue or dismiss it under Federal Rule of Civil Procedure 56(f). Further, each Defendant filed a cross motion for summary judgment, arguing the defense of qualified immunity precludes liability for Plaintiff's claims under the Fourth Amendment. The motions were heard on October 13, 2009. For the reasons stated below, Plaintiff's motion for partial summary judgment is GRANTED and DENIED in part and Defendants' motions are DENIED.
Under Rule Federal Rule of Civil Procedure 56(c), the party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S., 317, 323 (1986). If the moving party satisfies this burden, "the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987)(quotations and citation omitted)(emphasis omitted). When deciding a summary judgment motion, all reasonable inferences that can be drawn from the evidence "must be drawn in favor of the non-moving party." Bryan v. McPherson, --- F.3d ----, 2009 WL 5064477, at *2 (9th Cir. 2009).
Further, the defense of qualified immunity requires a two-step analysis:
First, the court determines whether the facts show the officer's conduct violated a constitutional right. If the alleged conduct did not violate a constitutional right, then the defendants are entitled to immunity and the claim must be dismissed. However, if the alleged conduct did violate such a right, then the court must determine whether the right was clearly established at the time of the alleged unlawful action. A right is clearly established if a reasonable official would understand that what he is doing violates that right. If the right is not clearly established, then the officer is entitled to qualified immunity. While the order in which these questions are addressed is left to the court's sound discretion, it is often beneficial to perform the analysis in the sequence outlined above. Of course, where a claim of qualified immunity is to be denied, both questions must be answered.
Hopkins v. Bonvicino, 573 F.3d 752, 762 (9th Cir. 2009)(quotations and citation omitted).
II. DEFENDANTS' MOTION UNDER FEDERAL RULE OF CIVIL PROCEDURE 56(f)
Defendants seek a continuance or dismissal of Plaintiff's motion under Federal Rule of Civil Procedure 56(f)("Rule 56(f)") premised on their inability to depose two individuals, Gina Kearney and Paul Turner. (Opp'n. 7:4-17.) Defendants have not successfully served Kearney for a deposition; and they subpoenaed Turner but he failed to appear. (Lairamore Decl. ¶¶ 2-4; Whitefleet Decl. ¶¶ 8-9.) Defendants expect Kearney to testify about her 911 emergency telephone call in which she reported that Plaintiff assaulted her, the injuries she suffered as a result of this reported assault, and the nature of her relationship with Plaintiff. Defendants spoke with Kearney when they responded to her 911 call, after which Defendants attempted to speak with Plaintiff, and ultimately entered Plaintiff's apartment without a warrant. Defendants expect Turner to provide evidence of what Defendants observed before they entered Plaintiff's apartment. (Whitefleet Decl. ¶¶ 10, 11.) Plaintiff opposes the motion, arguing Defendants have not demonstrated the testimony of either Kearney or Turner is material to the issues in Plaintiff's motion. (Reply 19:10-15.)
To prevail on their Rule 56(f) motion, Defendants must show: "(1) that they have set forth in affidavit form the specific facts that they hope to elicit from further discovery, (2) that the facts sought exist, and (3) that these sought-after facts are 'essential' to resist the summary judgment motion." State of Cal. on Behalf of California Dept. Of Toxic Substances Control v. Campbell, 138 F.3d 772, 779 (9th Cir. 1986). Defendants, however, have not demonstrated that the additional discovery they seek is "essential to resist" Plaintiff's motion. See id. Plaintiff's motion addresses whether Defendants were authorized under law to enter his apartment without a warrant. The summary judgment evidentiary record indicates that the testimony Defendants seek is either cumulative of evidence already in the record or irrelevant to the motion. Therefore, Defendants' Rule 56(f) motion is denied.
The parties dispute the facts concerning Defendants' entry into Plaintiff's apartment and what transpired therein. However, Plaintiff adopts Defendants' version of the facts for the purposes of his motion for partial summary judgment, only disputing Defendants' characterization of the weapon Plaintiff allegedly used in the reported assault as well as several inferences Defendants seek to have drawn from that evidence. Defendants move to have certain declarations and exhibits attached to Plaintiff's motion stricken from the record. However, this portion of Defendants' motion is denied as moot because Plaintiff agrees that Defendants' version of the facts in the summary judgment record are to be used when deciding Plaintiff's motion.
The summary judgment evidentiary record reveals that on June 2, 2007, at approximately 10:51 p.m., Gina Kearney placed a 911 emergency telephone call to the police, reporting that twenty-five minutes earlier, Plaintiff threatened to kill her with a knife at Plaintiff's apartment. (Pl.'s Opp'n. to Defs.' Statement of Additional Undisputed Material Facts ("SAUF") ¶ 3; Defs.' Opp'n. to Pl.'s Separate Statement of Undisputed Material Facts ("SUF") ¶ 1; Powell Decl. ¶ 4.) In response to Kearney's 911 call, Defendants were dispatched to Kearney's residence at 1020 Santa Clara Street in Vallejo, California at approximately 11:19 p.m. (Pl.'s Opp'n. to Defs.' SAUF ¶ 3; Powell Decl. ¶ 5.)
When Defendants arrived at Kearney's residence, Kearney told Defendant Boyd that Plaintiff assaulted her earlier in the day when she went to his apartment to retrieve a car she had loaned him. (Defs.' Opp'n. to Pl.'s SUF ¶¶ 2-4.) Kearney also stated Plaintiff had been drinking. (Pl.'s Opp'n. to Defs.' SAUF ¶ 4.) When reporting the assault to Defendants, Kearney appeared upset, tearful, her hands were shaking, and she complained that the back of her head hurt. (Id. ¶ 8; Defs.' Opp'n. to Pl.'s SUF ¶ 10.) Defendants, however, did not observe any signs of physical injury. (Defs.' Opp'n. to Pl.'s SUF ¶ 10.)
Kearney further reported that when she was at Plaintiff's apartment, she and Plaintiff had an argument, in the course of which, Plaintiff "grabbed the back of her head and threatened to kill her while he held a butcher knife."*fn2 (Defs.' Opp'n. to Pl.'s SUF ¶¶ 3-4.)
Kearney said she then kneed Plaintiff in the groin, got a hold of the knife and called the name of the manager of the apartment building, Beverly Good. (Defs.' Opp'n. to Pl.'s SUF ¶¶ 5-6.) Good intervened, and the knife was removed from Plaintiff's apartment. (Defs.' Opp'n. to Pl.'s SUF ¶ 9; Pl.'s Opp'n. to Defs.' SAUF ¶ 7; Boyd Depo. 37:9-14, 38:24-25.)
After speaking with Kearney, Defendants left her home and went to Plaintiff's residence at 421 Louisiana Street in Vallejo, California, to speak with Plaintiff and hear his version of what had transpired. (Defs.' Opp'n. to Pl.'s SUF ¶¶ 11-12.) When Defendants arrived at Plaintiff's apartment, they observed that the door to the apartment was open. (Id. ¶ 19.) Defendants also saw that a light was on in the apartment, and rice was scattered on the kitchen floor. (Id. ¶ 20.) Specifically, Boyd testified he could see from the doorway of Plaintiff's apartment "rice all over the linoleum [kitchen] floor." (Boyd Depo. 64:9-10.) Boyd also testified, that from the doorway, he could see only the corner of the stove but could hear "gas or some type of noise." (Boyd Depo. 63:7-64:4.) Defendants' counsel stated at the hearing on the motions, that from the landing outside of Plaintiff's apartment, the Defendants could not tell if there was anything cooking on top of the stove.
While outside Plaintiff's apartment, Defendants announced their presence by calling out "Vallejo Police." (Pl.'s Opp'n. to Defs.' SAUF ¶ 24.) There was no response. (Id. ¶ 25.) After a few seconds, Defendants entered Plaintiff's apartment. (Id.) The doorway to Plaintiff's apartment opens into a small kitchen. After their entry, Boyd turned the stove burner off. (Pl.'s Opp'n. to Defs.' SAUF ¶ 11; Boyd Depo. 70:12.) Defendants moved from the kitchen into a bedroom, where they found Plaintiff lying in bed under blankets, and apparently asleep. (Defs.' Opp'n. to Pl.'s SUF ¶¶ 43-44, 47.) Defendants saw empty beer bottles on the night stand next to Plaintiff's bed. (Id. ¶ 52.) Defendants again announced their presence but Plaintiff did not respond. ...