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Quyen Kim Dang, Individually and As A Guardian Ad Litem For Kenny Minh v. City of Garden Grove

August 2, 2011


The opinion of the court was delivered by: David O. Carter United States District Judge


Before the Court is a Motion for Summary Judgment filed by Defendants the City of Garden Grove et. al. in the above-captioned case ("Motion for Summary Judgment") (Docket 19). After considering the moving, opposing and replying papers, as well as oral argument, the Court GRANTS in part and DENIES in part the Motion for Summary Judgment.


At approximately 11:30 a.m. on September 3, 2008, defendant police officers Daniel Karschamroon ("Karschamroon") and Richard Gendreau ("Gendreau"), were dispatched, separately, to 13253 Barnett Way in Garden Grove, California, as a result of several 911 calls placed by Mr. Nam Tran ("Nam"), the father of the now-deceased Andy Tran ("Andy" or "Decedent"). In his 911 calls, Nam frantically requested assistance with his son, Andy, who was acting "crazy" and who needed to be taken to the hospital. Transcript of 911 Call, Exh. 2 to Decl. of S. Sherman ("911 Call") at 1, 5. Although a language barrier prevented the clear communication of further details, see e.g. 911 Call at 4 (caller stating, "I don't understand English well . . ."), Nam intimated that Andy had hit his mother and may have indicated that Andy possessed a weapon. 911 Call at 1. The dispatch report lists the call as a "5150," which is police jargon for a report made under California Welfare and Institutions Code §5150 regarding a disabled individual who may be posing a danger to himself or others. Dispatch Log, Exh. 1 to Decl. of R. Gendreau ("Dispatch Log"). The dispatch notes also mention a "243," which is police code for an assault and battery. Id. Both Karschamroon and Gendreau testified at their depositions that they knew that they were responding to a 5150 call. Deposition of D. Karschamroon ("Karshamroon Decl.") at 225; Deposition of R. Gendreau ("Gendreau Decl.") at 112.

One of Andy's neighbors, Mark Zimmerman ("Zimmerman") observed at least part of the events surrounding Nam's 911 call. Specifically, as Zimmerman drove up to his house at approximately 11:30 a.m. on September 3, 2008, Zimmerman saw Andy sitting on the front curb outside of his house. Deposition of M. Zimmerman ("Zimmerman Depo.") at 29. Zimmerman proceeded to watch Andy rise from the curb, move to a grassy section of his lawn and collapse onto his knees emitting a moan or cry. Id. at 29-32. Zimmerman further saw Andy get up, walk to his front door and remove the screen on the window near the door. Id. at38. At this point, Zimmerman states that he crossed the street towards Andy, shouting at Andy to stop his behavior. Id. at 39. According to Zimmerman, Andy was wearing a tight fitting t-shirt and work-out shorts; it was clear to Zimmerman from the way Andy was dressed that Andy did not have any weapons on him. Id. at 40-42. Zimmerman further testified at his deposition that, in his many years as Andy's neighbor, he had suspected that Andy suffered from mental illness but had never felt threatened by Andy or seen him act violently. Id. at 33-36.

As Zimmerman began to cross the street towards Andy's house, Officer Karschamroon arrived and proceeded to yell commands at Andy. Id. at 51-52. Zimmerman testified that as soon as Andy noticed the officer, Andy "came to himself," id. at 51, immediately stopped acting aggressively and began to "pay[] attention to what was going on around him." Id. at 52. Karschamroon stated at his deposition that, upon arriving at the scene, he could see that Andy did not have any weapons in his hands. Karschamroon Depo. at 244. Karschamroon testified that he ordered Andy to walk towards him and that Andy complied. Id. at 247. When Andy reached a point approximately ten to fifteen feet away from the officer, Karschamroon told Andy to stop walking, which Andy did. Id. at 244. Karschamroon then ordered Andy to turn around, to place his hands on his head and to interlock his fingers. Id. Andy once again complied with all of Karschamroon's commands. Id. Karschamroontestified that, throughout this interaction, Andy appeared "confused," id. at 256, and in need of medical help. Id. at 279.

Once Andy had his fingers interlocked on top of his head, Karschamroon approached Andy from behind and began to handcuff him. Id. at 266. Karschamroon testified that, at the moment he approached Andy, he knew that backup officers were on their way to the scene, but that he did not feel the need to wait for the other officers because Andy had complied with all of his directives. Id. at 271. Karschamroon also had not seen Andy make any motions suggesting that he would attack the officer. Id. at 261. As he approached Andy, Karschamroon grabbed both of Andy's wrists and placed a cuff around Andy's right hand. Decl. of D. Karschamroon ("Karschamroon Decl."), ¶¶ 14-15. Karschamroon states that, at this moment, he felt Andy's hands become tense.*fn1 Karschamroon Depo. at 266. As a result of the rigidity in Andy's hands, Karschamroon reports that he had trouble fitting the other handcuff around Andy's left wrist. Karschamroon Decl. at 15. Karschamroon reports asking Andy to relax but acknowledges that he never specifically instructed Andy to separate his fingers in order to facilitate the placement of handcuffs. Karschamroon Depo. at 284.

Karschamroon had been attempting to place the left handcuff around Andy's wrist for between five to fifteen seconds when Officer Gendreau arrived. Id. at 266. Gendreau claims that, upon arriving at the scene, he approached Andy and grabbed his left wrist,*fn2 Gendreau Depo. at 121, giving the officers, in Gendreau's words, "some control" over Andy's hands. Id. at 177. Gendreau did not see Andy make any movements suggesting that he was about to attack either of the officers or that he was about to attempt to flee. Id. at 177, 182, 220. Karschamroon also had not given Gendreau any indication that anything like that had occurred prior to Gendreau's arrival. Id.

Despite Andy's lack of aggressive behavior, after struggling to fit Andy's wrists into handcuffs for, in Gendreau's estimation, approximately five to ten seconds, the officers made the decision to taser Andy. Id. at 210. The amount of conversation that took place between the officers before deploying the Taser is in dispute. Gendreau claims that he warned Andy before tasing him. Gendreau Decl., ¶ 22. Gendreau's account is contradicted by Zimmerman's, however, who testified that Gendreau took out his Taser immediately upon approaching Andy and that Andy did not see the Taser prior to the time that it was activated against his body. Zimmerman Depo. at 105-07. Gendreau applied the Taser to Andy's leg. Id. at 220. According to Andy's mother, Bua Phan Tran, who observed the events from her front door, upon application of the taser to Andy's leg, Andy instantaneously turned "purple" and fell to the floor, completely motionless. Deposition of Bua Phan Tran ("Bua Phan Depo.") at 85. Zimmerman concurs with Andy's mother's description, testifying at his deposition that Andy dropped swiftly to the floor as soon as the Taser was deployed. Zimmerman Depo. at 108. The officers called for paramedics, but Andy was beyond medical help by the time the paramedics arrived. Andy died shortly thereafter.

Autopsy reports from Plaintiff's experts showed that the cause of death was cardiac arrest caused by the application of the Taser. Before using the Taser on Andy, Gendreau testified that he believed Andy to be under the influence of a "controlled substance, particularly a stimulant." Gendreau Decl. at 327.Gendreau also testified that, as a result of his training, he understood that people under the influence of a nervous system stimulant face a higher risk of sudden death due to the excited delirium caused by the application of a Taser. Id. at 328. Benedict Lux, a former Taser instructor at the Garden Grove Police Department from 2002 to 2010, corroborated Gendreau's account of what Gendreau would have learned in training: Lux testified at his deposition that he warned all officers that Tasers should be used only with extreme caution against suspects who appear to be under the influence of a nervous system stimulant, because these suspects "have elevated pulses [and] elevated blood pressure," rendering them particularly vulnerable to heart attacks. Deposition of B. Lux ("Lux Depo.") at 252-55.

As a result of the above-described events, Plaintiffs -- a group consisting of Quyen Kim Dang, individually and as gaurdian ad litem for Kenny Minh Cao Tran, a minor, and personal representative of Andy Tran, deceased; Kenny Minh Cao Tran, a minor, by and through his guardian ad litem, Quyen Kim Dang; Nam Van Tran, biological father of Andy Tran, deceased; and Bua Thi Phan, biological mother of Andy Tran, deceased (collectively, "Plaintiffs") -- bring suit against Defendants the City of Garden Grove ("City"), Garden Grove Chief of Police Joseph M. Polisar ("Polisar"), Officer Gendreau, and Officer Karschamroon (collectively, "Defendants").*fn3 Plaintiffs assert three causes of action under 42 U.S.C. § 1983; a claim for violation of the Bane Act, Cal. Civ. Code § 52.1; a cause of action for assault and battery; a cause of action for negligence; and claims for negligent and intentional infliction of emotional distress.With the instant Motion, Defendants request that the Court enter summary judgment in their favor on each of Plaintiff's claims.


Summary judgment is proper if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court must view the facts and draw inferences in the manner most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1161 (9th Cir. 1992). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial, but it need not disprove the other party's case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). When the non-moving party bears the burden of proving the claim or defense at trial, the moving party can meet its burden for summary judgment by pointing out that the non-moving party has failed to present any genuine issue of material fact. Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990). A party cannot create a genuine issue of material fact simply by making assertions in its legal papers. There must be specific, admissible evidence identifying the basis for the dispute. S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1980).


Defendants move for summary judgment on each of Plaintiffs' claims.The Court analyzes each cause of action in turn.

a. Excessive Force -- 42 U.S.C. § 1983.

i. Constitutional Violation

1. Fourth Amendment

Plaintiffs' first two causes of action under Section 1983 invoke the Fourth Amendment's ban on the use of excessive force by a police officer. The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures." U.S. Const. amend. IV. When a plaintiff claims that she was not "secure in [her] person" because law enforcement officers used excessive and, therefore, "unreasonable" force in the course of an arrest, the body reviewing the case must determine whether the level of force employed was objectively unreasonable by balancing "'the nature and quality of the intrusion on the individual's Fourth Amendment interests' against 'the countervailing government interests at stake.'" Miller v. Clark County, 340 F.3d 959, 964 (9th Cir.2003) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). This inquiry typically proceeds in three steps. Mattos v. Agarano, 590 F.3d 1082, 1086 (9th Cir. 2010). "First, [the relevant body] assess[es] the gravity of the particular intrusion on Fourth Amendment interests by evaluating the type and amount of force inflicted." Miller, 340 F.3d at 965.Second, one must analyze "the importance of the government interests at stake by evaluating: (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect ...

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