The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REGARDING CITY OF MERCED AND MERCED POLICE OFFICER JEFFREY HORN'S MOTION FOR SUMMARY JUDGMENT (Document 40)
I. DEFENDANTS CITY OF MERCED AND MERCED POLICE OFFICER JEFFREY HORN'S MOTION FOR SUMMARY JUDGMENT
A. Relevant Procedural Background
On April 6, 2007, Plaintiff Joseph Campos filed a Complaint in the Merced County Superior Court, alleging the following causes of action: (1) a violation of Title 42 of the United States Code section 1983; (2) false arrest and imprisonment; (3) interference with California civil rights; (4) intentional infliction of emotional distress; (5) negligence per se; (6) negligent infliction of emotional distress; (7) assault and battery; and (8) negligence. (See Doc. 1, Ex. A, Parts I & II.)
On December 27, 2007, Defendant City of Merced filed an Answer to the complaint. (See Doc. 1, Ex. C, Part I at 5-12.) Shortly thereafter, Defendant Merced Police Officer Jeffrey Horn filed an Answer to the Complaint. (See Doc. 1, Ex. C, Part II.)
On or about December 28, 2007, Defendants City of Merced and Officer Horn filed a Notice of Removal pursuant to Title 28 of the United States Code section 1441(b). (See Docs. 1-2.)
Following consent to magistrate jurisdiction by all parties, this matter was referred to the Honorable Gary S. Austin, Magistrate Judge, on April 14, 2008, for all further proceedings. (Doc. 14.)
Defendants filed the instant motion for summary judgment on January 29, 2010. (Docs. 40-43.) Plaintiff filed his opposition on February 12, 2010. (Docs. 45-48.) On February 19, 2010, Defendants filed a reply to Plaintiff's opposition. (Doc. 49.)
On February 22, 2010, this Court took the February 26, 2010, hearing off calendar and took the matter under submission pursuant to Local Rule 230(g). (Doc. 50.)*fn1
B. Summary of Undisputed Facts
In moving for summary judgment, Defendants set forth the following facts as undisputed. Plaintiff accepts these facts except where noted and discussed.
1. On the evening of July 16 through July 17, 2005, Merced Police Officer Horn was on duty assigned to bar patrol with Officer Frank Bazzar in downtown Merced.
2. The officers had been assigned bar patrol as the result of a large number of fights that had been occurring at downtown bars, including Maloney's.
3. Plaintiff and his wife Diane Maravilla Campos arrived at Maloney's at about 12:30 a.m.
4. About a half hour later, Plaintiff was approached on the dance floor by his sister-in-law Linda Prieto.*fn2
5. Ms. Prieto advised Plaintiff that his stepdaughter Sharee Sok was outside crying.
6. Plaintiff has raised Ms. Sok from the age of five. She was married to Gary Sok.
7. Plaintiff and his wife exited Maloney's in order to check on Ms. Sok.
8. Plaintiff found Ms. Sok outside. She had a bump on her head.
9. After checking on Ms. Sok, Plaintiff began to follow his wife up the street.
10. Officers Horn and Bazzar were approaching Maloney's. They observed a woman lying on the ground and Mr. Sok, who was yelling and throwing his arms in the air, walking northbound towards 18th Street.
11. Mr. Sok had removed his "top" shirt as he walked, leaving on a "muscle" shirt; his tattoos were visible.
12. Both officers sought to contact Mr. Sok, assuming he had been involved in a fight.
13. Officer Bazzar caught up to Mr. Sok, and Officer Horn turned back to check on Plaintiff's stepdaughter, Ms. Sok, to find out what had occurred.
14. As Officer Horn was returning to the area of Maloney's, he encountered Plaintiff walking in his direction.
15. At the time of the incident, Plaintiff was five feet, ten inches tall and weighed approximately 220 pounds. Officer Horn is five feet, six inches tall and weighed approximately 185 pounds.
16. When Plaintiff was about twenty feet from his wife, Officer Horn placed his hand on Plaintiff's chest.
17. Officer Horn asked Plaintiff was he was doing; Plaintiff responded that his daughter had fallen down or had been assaulted.
18. Plaintiff told Officer Horn that his wife had caught up with Mr. Sok at the corner.
19. Officer Horn was not disrespectful to Plaintiff and did not use profanity.
20. Plaintiff turned and began walking toward his wife, Mr. Sok and Officer Bazzar.
21. See footnote 6, infra.
22. According to Plaintiff, Officer Horn did not say anything to him after he began walking away.
23. There was a crowd of at least seven people on the sidewalk behind Plaintiff at the time of the incident.
24. After Plaintiff took five to ten steps toward his wife, Mr. Sok and Officer Bazzar, Officer Horn tased Plaintiff from behind.
25. After Officer Horn deployed his taser against Plaintiff, the officer retreated to the street and radioed for back-up units.*fn3
26. Officer Horn did not use any racial slurs or otherwise indicate that Plaintiff's race played a role in the incident.
27. Plaintiff was charged with resisting arrest and assault on a police officer,*fn4 and voluntarily pleaded no contest to disturbing the peace arising out of the incident.*fn5
28. See footnote 7, infra.
Plaintiff disputed two of Defendants' statement of undisputed facts that the Court has determined to be disputed and material. More particularly, this Court finds that, as originally numbered, fact numbers 21*fn6 and 28*fn7 are disputed.
Rule 56(b) of the Federal Rules of Civil Procedure permits a "party against whom relief is sought" to seek "summary judgment on all or part of the claim." Summary judgment is appropriate when there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. F.R.Civ.P. 56(c); Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The purpose of summary judgment is to "pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec., 475 U.S. at 586, n. 11, 106 S.Ct. 1348; International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).
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).
To carry its burden of production on summary judgment, a 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." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000); see High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990). "[T]o carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact." Nissan Fire, 210 F.3d at 1102; see High Tech Gays, 895 F.2d at 574. "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986).
"If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire, 210 F.3d at 1102-1103; see Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598 (1970). "If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense." Nissan Fire, 210 F.3d at 1103; see High Tech Gays, 895 F.2d at 574. "If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment." Nissan Fire, 210 F.3d at 1103; see Celotex Corp. v. Catrett, 477 at 322 ("Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make the showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.")
"But if the nonmoving party produces enough evidence to create a genuine issue of material fact, the nonmoving party defeats the motion." Nissan Fire, 210 F.3d at 1103; see Celotex, 477 U.S. at 322, 106 S.Ct. 2548. "The amount of evidence necessary to raise a genuine issue of material fact is enough 'to require a jury or judge to resolve the parties' differing versions of the truth at trial.'" Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 288-289, 88 S.Ct. 1575, 1592 (1968)). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
On summary judgment, a court must decide whether there is a "genuine issue as to any material fact," not weigh the evidence or determine the truth of contested matters. F.R.Civ.P. 56(c); Covey Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir. 1997); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598 (1970); Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486 (1962); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir. 1984). The evidence of the party opposing summary judgment is to be believed and all reasonable inferences that may be drawn from the facts before the court must be drawn in favor of the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505; Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. The inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. 2505.
Under Federal Rules of Civil Procedure, rule 56(d)(1), a summary judgment/adjudication motion, interlocutory in character, may be rendered on the issue of liability alone. "In cases that involve . . . multiple causes of action, summary judgment may be proper as to some causes of action but not as to others, or as to some issues but not as to others, or as to some parties, but not as to others." Barker v. Norman, 651 F.2d 1107, 1123 (5th Cir. 1981); see also Robi v. Five Platters, Inc., 918 F.2d 1439 (9th Cir. 1990); Cheng v. Commissioner Internal Revenue Service, 878 F.2d 306, 309 (9th Cir. 1989). A court "may grant summary adjudication as to specific issues if it will narrow the issues for trial." First Nat'l Ins. Co. v. F.D.I.C., 977 F.Supp. 1051, 1055 (S.D. Cal. 1977).
A. Plaintiff's Claim Pursuant to Title 42 of the United States Code section 1983
Defendants argue that Officer Horn's conduct did not result in a deprivation of Plaintiff's constitutional rights, thus, Horn is entitled to judgment as a matter of law. Defendants rely upon recent Ninth Circuit authority regarding the use of tasers. (Doc. 41 at 5-10.) Plaintiff argues generally that the declaration and deposition testimony he has submitted "are sufficient in and of themselves to defeat the motion" on the issues of excessive force and probable cause to arrest because triable issues of material fact exist. (Doc. 48 at 7-13.)
Plaintiff argues that Officer Horn did not have probable cause to arrest him for violations of California Penal Code sections 148(a)*fn8 and 243(b). More particularly, Plaintiff contends a triable issue of material fact exists as to whether he "was obstructing a police officer in the performance of his duties and whether battery was committed upon Officer Horn . . .." (Doc. 48 at 6-7.) Defendants reply that even assuming Plaintiff's version of events, Officer Horn had probable cause to arrest Plaintiff. (Doc. 49 at 6.)
Initially, it is noted that "establishing a lack of probable cause . . . does not establish an excessive force claim." Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004). An arrestee's resistance may support the use of force regardless of whether probable cause existed. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001); see also Blanford v. Sacramento County, 406 F.3d 1110, 1115-1118 (9th Cir. 2005). "Probable cause exists when the facts and circumstances within the officer's knowledge are sufficient to cause a reasonably prudent person to believe that a crime has been committed." Lassiter v. City of Bremerton, 556 F.3d 1049, 1053 (9th Cir. 2009). The existence of probable cause may be considered as a part of the totality of circumstances affecting the excessive force analysis. See Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005).
Here, it is undisputed that Officers Horn and Bazzar were approaching Maloney's when they observed a woman lying on the ground. Mr. Sok was nearby, yelling and throwing his arms in the air. Mr. Sok was walking northbound towards 18th Street and had removed his shirt. The officers assumed he had been in a fight. Officer Bazzar sought to catch up to Mr. Sok, and Officer Horn turned back to check on the woman. (Doc. 43, ¶¶ 10-13.) Officer Horn was returning to the area of Maloney's when he encountered Plaintiff walking in his direction, toward Officer Bazzar and Mr. Sok. Officer Horn placed his hand on Plaintiff's chest and asked Plaintiff was he was doing. Plaintiff told the officer that his daughter had fallen down or had been assaulted, and that his wife had caught up with Mr. Sok. Plaintiff then turned and began walking toward his wife, Mr. Sok and Officer Bazzar. (Doc. 43, ¶¶ 14-20.) Officer Horn did not say anything to Plaintiff after he began walking away. A ...