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Estate of Kosakoff v. City of San Diego

April 29, 2010


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court


In this Section 1983 action, Plaintiffs Harold and Arlene Kosakoff, individually and on behalf of their son's estate, seek to recover for the deadly shooting of Alan Kosakoff by the City of San Diego police officers. Currently before the Court is Defendants' Motion for Summary Judgment. Having considered the parties' arguments, and for the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART the motion.


I. Factual Background

At the time of his death, decedent Alan Kosakoff was a thirty-five year old son of Arlene and Harold Kosakoff. While at college, Alan was diagnosed with paranoid schizophrenia. The condition remained with him throughout his life, although it was treatable with medication and varied in effect. However, starting approximately one year prior to the incident resulting in his death, Alan began to refuse to take the medication for his condition.

On August 25, 2007, shortly after midnight, Alan was driving in a Toyota Corolla that was registered to his mother, Plaintiff Arlene Kosakoff. According to Officer Gottfried, Alan ran a red light across six lanes of traffic on El Camino Real at approximately 60 mph, almost colliding with Gottfried. Gottfried began to pursue the vehicle and caught up to it as it sped through a flashing red light at Del Mar Heights Road. At this time Gottfried activated his overhead lights and siren, and began to initiate a traffic stop. Instead of stopping, Alan allegedly sped away, running through a third red light. The chase continued through a residential area at speeds exceeding 50 mph, with Alan allegedly taking corners in such a manner that caused the tires to screech. At one point, Alan also slammed on his brakes, almost causing Gottfried to collide with his vehicle. Gottfried, however, was not sure whether this maneuver was done intentionally or for any specific purpose. The chase continued to I-5 and then I-805 at speeds up to 120 mph. At this time, a helicopter and a second police unit with Officers Lenahan and Douglas joined in the pursuit. Also at this time Officer Gottfried received information that the vehicle was owned by a middle-aged female and that the owner resided at 14122 Half Moon Bay Drive.

At some point during the chase orders were issued to discontinue the pursuit. Units slowed their speed and turned off their lights and sirens. Alan also reduced his speed and pulled off the freeway. From then on, Alan proceeded to his mother's residence at 14122 Half Moon Bay Drive, driving below the posted speed limit, using his turn signals, and coming to a complete stop at a red light. Even though the pursuit has been called off, Officer Gottfried followed Alan through the residential area to his mother's residence.

When Alan arrived at his mother's residence, he opened the garage using his remote control and drove into it. Although the garage had another car (Toyota Camry) parked on the left side and a lot of items on the side and throughout the garage, Alan was able to park the Corolla straight. Officer Gottfried testified at his deposition that the distance left between the Corolla and the Camry was wider than the width of Gottfried's body by a couple of inches.

It appears the two police units arrived at the residence immediately after Alan started pulling into the garage. The officers parked their cars on the street, without blocking the driveway, and ran towards the garage. Officer Lenahan was able to grab the closing garage door and force it back up. He then positioned himself to the rear driver's side of the Corolla. Officer Douglas positioned himself at the front passenger side corner of the vehicle. Officer Gottfried went to the driver's side of the car and smacked the window with an open hand, yelling at Alan to turn the engine off and to get out of the car. As one of the eyewitnesses testified, however, with all of the commotion going on and the officers yelling over each other, it was hard to make out exactly what they were saying.

Officer Gottfried then proceeded to open the driver's side door and tried to physically pull Alan from the vehicle. However, because Alan "kind of turned to the right a little bit" and because he was still wearing his seatbelt, Gottfried was not able to pull him out. At this time Alan put the car in reverse and started to back out of the garage very slowly. The speed of the car in reverse was approximately 8.8 feet/second, or about 6 mph. Officer Gottfried alleges that at this point he found himself trapped in the "V" of the open door and the body of the Camry parked to their left and felt that he might be run over. Officers Lenahan and Douglas also believed that Gottfried was in danger of being run over. However, once the Corolla cleared the rear bumper of the Camry, it is undisputed that Gottfried was able to extricate himself from that position. The helicopter video established that from the time the officers entered the garage until the Corolla exited, approximately four seconds had expired. It took the car another three seconds to travel the length of the driveway.

At some point during those seven seconds the officers opened fire. Officer Douglas fired five times, hitting Alan once in the thigh, while Officer Lenahan fired two shots, including the shot to the rear part of Alan's head that proved to be fatal. Although there is some dispute as to the order of the shots, it appears Douglas fired two shots from a close range of approximately two feet, arguably when the car was still stationary, then Lenahan fired his two shots, and then Douglas fired his remaining three shots. According to Plaintiffs' expert, the fatal shot from Lenahan came through the driver's side door window, shattering the glass. This places Lenahan in front, or west, of the Corolla. All of the broken glass fell onto the driveway, which is consistent with the fatal shot occurring after the Corolla passed Lenahan's position at the rear corner of the Camry, such that Lenahan had to swing to his right to track the moving car. According to Plaintiffs' expert, with 0.5 seconds that it takes for the glass to fall from a height of four feet, this places the Corolla approximately three and a half feet outside of the garage, and moving away from the officers, when the fatal shot shattered the car door window. Likewise, the shallow angles of the last three shots fired by Douglas suggest that they were also made when the car was already outside of the garage and moving away from the officers. The first of these shots was low, into the license plate holder, and was fired when the Corolla was approximately seven feet from the opening of the garage. The second shot was fired when the car was approximately fourteen feet away and, according to San Diego Police Department criminalist, caused the transmission fluid leak. The evidence shows the transmission fuel leakage began in the center of the driveway.

After the shots were fired, the Corolla proceeded to roll backwards and then turned sharply to the south, hitting a parked car and coming to a stop. The officers immediately removed Alan from the vehicle in order to administer first aid. Alan was transported to Scripps La Jolla Hospital Trauma Department, and died thirty-nine days later from his wounds.

II. Procedural Background

Harold Kosakoff, on behalf of Alan Kosakoff's estate, and Arlene and Harold Kosakoff in their individual capacities filed the present lawsuit on October 6, 2008. The suit names as Defendants officers Gottfried, Douglas, and Lenahan, as well as the City of San Diego, San Diego Police Department, and Chief of Police William Landsdowne. The suit alleges four causes of action pursuant to 42 U.S.C. § 1983: (1) right of association; (2) wrongful death; (3) excessive force; and (4) failure to properly screen, hire, train, supervise, and discipline. It also alleges four state-law claims: (5) wrongful death; (6) battery; (7) intentional infliction of emotional distress; and (8) negligence. Defendants answered on December 3, 2008, and subsequently filed a counterclaim against Arlene Kosakoff on April 2, 2009. In their counterclaim, Defendants allege three causes of action: (1) indemnity; (2) negligence; and (3) negligent entrustment. Arlene Kosakoff filed a Motion to Dismiss with respect to the counterclaim, which the Court denied. Plaintiffs then answered the counterclaim.

Currently before the Court is Defendants' Motion for Summary Judgment on the following issues: (1) Officers Gottfried, Lenahan, and Douglas are entitled to qualified immunity with respect to Plaintiffs' excessive force and familial association claims; (2) the fourth cause of action for failure to properly screen, hire, train, supervise, and discipline is without basis; (3) the San Diego Police Department is not a proper defendant; (4) the individual officers are entitled to immunity against the state law wrongful death cause of action; and (5) Plaintiffs cannot prove the necessary elements to sustain a cause of action for negligence. Plaintiffs filed an opposition and evidentiary objections, and Defendants filed a reply and evidentiary objections. The Court heard oral argument on April 26, 2010.


Summary judgment is proper where the pleadings and materials demonstrate "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material issue of fact is a question a trier of fact must answer to determine the rights of the parties under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. at 255.

The moving party bears "the initial responsibility of informing the district court of the basis for its motion." Celotex, 477 U.S. at 323. To satisfy this burden, the movant must demonstrate that no genuine issue of material fact exists for trial. Id. at 322. Where the moving party does not have the ultimate burden of persuasion at trial, it may carry its initial burden of production in one of two ways: "The moving party may produce evidence negating an essential element of the nonmoving party's case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). To withstand a motion for summary judgment, the non-movant must then show that there are genuine factual issues which can only be resolved by the trier of fact. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000). The non-moving party may not rely on the pleadings alone, but must present specific facts creating a genuine issue of material fact through affidavits, depositions, or answers to interrogatories. FED. R. CIV. P. 56(e); Celotex, 477 U.S. at 324.

The court must review the record as a whole and draw all reasonable inferences in favor of the non-moving party. Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). To avoid summary judgment, the non-moving party need not produce evidence in a form that would necessarily be admissible at trial. Celotex, 477 U.S. at 324. However, unsupported conjecture or conclusory statements are insufficient to defeat summary ...

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