The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
MEMORANDUM ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This is an action for damages by plaintiff Alice Rosas Aguilar ("Plaintiff") in her individual capacity and as successor in interest to Sergio Rosas Aguilar ("Decedent") against Ernest Serrano ("Serrano"), a law enforcement officer of the County of Fresno, and against the County of Fresno (collectively, "Defendants"). This action arises from the shooting death of Decedent by Serrano, a shooting that was carried out in the normal course and scope of Serrano's employment. Plaintiff's complaint alleges claims for relief under 42 U.S.C. § 1983 and under California common law. In the instant motion, Defendants move for summary judgment as to all claims alleged by Plaintiff in the First Amended Complaint ("FAC"). Federal subject matter jurisdiction exists pursuant to 28 U.S.C., section 1331. Supplemental jurisdiction over California state law claims exists pursuant to 28 U.S.C., section 1367.
Venue is proper in this court.
The complaint in this action was originally filed on August 15, 2008. On October 23, 2008, the court granted in part and denied in part Defendants' motion to dismiss and granted leave to amend. Plaintiff's FAC was filed on October 24, 2008. Plaintiff's FAC alleges a total of five claims for relief. Plaintiff's first claim is alleged against individual defendant Serrano pursuant to 42 U.S.C. § 1983. The claim alleges that defendant Serrano entered the property without warrant or cause and unlawfully seized Plaintiff, both in violation of Plaintiff's rights under the Fourth Amendment. Plaintiff's second claim for relief is alleged against the County of Fresno for promulgating policies and practices that resulted in the violations of Plaintiff's Fourth Amendment rights. Plaintiff's second claim for relief is also alleged pursuant to 42 U.S.C. § 1983. Plaintiff's third, fourth and fifth claims for relief allege state common law claims for assault and battery, negligence and wrongful death, respectively, against both Defendants. The instant motion for summary judgment was filed on January 25, 2010. Plaintiff's opposition was filed on February 1, 2010, and Defendants' reply was filed in February 17, 2010. On February 18, 2010 the court vacated the date for hearing on Defendants' motion for summary judgment and took the matter under submission as of February 22, 2010.
GENERAL FACTUAL BACKGROUND/UNDISPUTED MATERIAL FACTS
The following facts are generally not disputed by the parties. Defendant Serrano was a Deputy Sheriff working for the Fresno County Sheriff's Department. At all times pertinent to the complaint, Serrano was acting in the course and scope of his duties as a Sheriff's Deputy. Decedent was a vineyard manager working in Fresno, California. On the night of May 17, 2008, Decedent was sitting in his pickup truck in a vineyard preparing to turn off the irrigation water to a portion of the vineyard he was tending. The property on which the vineyard was located was not fenced. At approximately 10:12 p.m. on May 17, 2008, Raymond Felix placed a 9-1-1 call to Fresno Sheriff's Department to report a suspicious vehicle entering the vineyard behind the caller's home. Serrano was dispatched to investigate the call. Mr. Felix met Serrano before Serrano got to the vineyard. Felix told Serrano where Felix had seen the vehicle enter the vineyard and told Serrano that other people had gone behind the property to party in the past. After speaking with Felix, Serrano proceeded down the dirt road Felix indicated the suspicious vehicle had taken. A short distance down the dirt road, Serrano came upon a dark truck. Serrano illuminated the truck with a spotlight and called the license plate number to dispatch. Serrano noticed the truck was occupied. He ordered the occupant, later identified as Decedent to remain in the vehicle, but Decedent opened he door and placed his hands outside the truck. See Doc. # 92-2 at ¶¶ 1-8.
The events that transpired after this point are sharply contested by the parties. Based on the Serrano Declaration, Exhibit "D" to Doc. # 82-3, Defendants allege that Decedent reached inside the truck and came back out with a beer in one hand and a knife in the other. Defendants allege Serrano ordered Decedent to drop the knife, but Decedent did not comply. Serrano pointed his service weapon at Decedent and broadcast over the radio that Serrano "had one at gunpoint." Serrano again ordered Decedent to drop the knife. Defendants allege Decedent again failed to comply and yelled out words to the effect of "You are going to have to fucking kill me!" and advanced toward Serrano raising the knife in his right hand. Serrano, fearing for his well being fired five shots in rapid succession when Decedent approached to approximately 10 feet away from him. It is not disputed that Serrano attempted CPR on Decedent and that Decedent expired at the scene as a result of the gunshot wounds.
Plaintiff's opposition to Defendants' motion for summary judgment is based primarily on physical evidence that Plaintiff contends calls into question Defendants' claim that Decedent advanced on Serrano in the manner Defendants allege or that Serrano reasonably feared for his life. Specifically, Plaintiff contends and Defendants do not appear to dispute that Decedent's body came to rest next to and partly under the pickup truck. While Defendants allege Decedent stepped backward and came to rest against the pickup after he was shot, Plaintiff contends the physical evidence is equally supportive of Plaintiff's contention that Decedent was not advancing toward Serrano and posed no threat to Serrano or anyone else.
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Poller v. Columbia Broadcast System, 368 U.S. 464, 467 (1962); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir. 1985); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir. 1984).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Although the party moving for summary judgment always has the initial responsibility of informing the court of the basis for its motion, the nature of the responsibility varies "depending on whether the legal issues are ones on which the movant or the non-movant would bear the burden of proof at trial." Cecala v. Newman, 532 F.Supp.2d 1118, 1132-1133 (D. Ariz. 2007). A party that does not have the ultimate burden of persuasion at trial -- usually but not always the defendant -- "has both the initial burden of production and the ultimate burden of persuasion on the motion for summary judgment." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). "In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Id.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the mere allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n.11; First Nat'l Bank, 391 U.S. at 289; Strong v. France, 474 F.2d 747, 749 (9th Cir. 1973). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. ...