The opinion of the court was delivered by: David O. Carter United States District Judge
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Before the Court is a Motion for Summary Judgment ("Motion") filed by Defendants City of Long Beach, Long Beach Police Department*fn1 , and Jonathan A. Steinhauser ("Defendants") in the above-captioned case (dkt. 21). The Court has considered the moving, opposing, and replying papers, as well as oral arguments, and DENIES the Motion in full.
The majority of the material facts in this case are heavily disputed*fn2 and many are simply absent from the evidence presented to the Court by both parties. The deposition transcripts provided are incomplete, and the declarations narrow in scope. The Court summarizes the facts below but addresses specific facts as well as gaps in the facts when relevant throughout this Order.
On the evening of either May 27, 2009 or May 28, 2009*fn3 , Plaintiff Ernest Rodriguez ("Plaintiff" or "Rodriguez") went to BJ's Pizzeria in Huntington Beach with his former girlfriend, Bridgette Molina ("Molina"), to celebrate her college graduation and to watch a basketball game. Deposition of Plaintiff Ernest Rodriguez ("Rodriguez Dep."), 57-58. Over the approximately three hours they were there, Rodriguez consumed some appetizers and two beers. Molina and Rodriguez then traveled to two other bars, during which time Rodriguez consumed three more drinks and a mixed beverage. Id. at 65-70.
At the last bar, Molina began to tease Rodriguez about a woman who had talked to him briefly at the bar while she was in the restroom. Id. at 70-75. Rodriguez was "frustrated" with Molina's teasing because the couple's relationship had ended, and he "didn't want to make it seem as if [he] was interested in another female at that time." Id. at 75-77. On the way back to Molina's car, Rodriguez punched in a window at Sweet Jill's Bakery, shattering the glass. Id. at 79. After he crossed the street, four bouncers from Legend's bar approached him and told him they had called the police. Id. at 83-84. According to Rodriguez's testimony, he promptly informed the bouncers that he would take full responsibility for the window and would cooperate with them, but that they should not try to put their hands on him. Id. at 83. Rodriguez and the bouncers then walked for a few minutes to the corner of Covina*fn4 and 2nd Street and waited one to two minutes for the police to arrive. Id. at 94-96. During this time, Rodriguez insists that he remained calm, though his hand was bleeding and he felt shocked by the events that had occurred. Id. at 95. At oral arguments, Defendants suggested that evidence shows that Rodriguez was not calm and was shouting obscenities, but did not point the Court to the evidentiary basis for this assertion.*fn5
Defendant Officer Jonathan Steinhauser ("Steinhauser")arrived at the scene a few minutes later and parked his car approximately one-foot from the curb.Id. at 99. He intended to arrest Rodriguez once he determined if he was the one who had broken the window, but he was determined to handcuff Rodriguez prior to making that determination so that he could "take control of him." Deposition of Jonathan A. Steinhauser ("Steinhauser Dep."), 31-32. Steinhauser therefore asked Rodriguez to approach the police car, and Rodriguez complied without incident. Id. at 28. Steinhauser then ordered Rodriguez, who outsized him by about one-hundred pounds, to sit on the curb. Rodriguez Dep., 104; Declaration of Jonathan A. Steinhauser ("Steinhauser Decl."), ¶ 3. Rodriguez refused, believing the police car was parked too close to the curb to sit, though he admits that he probably could have sat down. Rodriguez Dep., 108. Steinhauser repeated his order several times--the number is disputed--and Rodriguez continued to refuse to sit. Id. at 112. At no time did Steinhauser believe that Rodriguez was intoxicated. Steinhauser Dep., 96-98.
After the third order, Steinhauser informed Rodriguez that he would strike him with his baton if he refused to sit and that it would hurt. Steinhauser Decl., ¶ 4; Rodriguez Dep., 112-113. The number of times he warned Rodriguez is disputed. See Plaintiff's Separate Statement of Genuine Disputes in Opposition to Defendants' Motion ("SGD"), ¶ 12. Steinhauser advised Rodriguez that he was under arrest, and that he must sit. During this time, Molina pleaded with Rodriguez to sit down and to cooperate. Rodriguez Dep., 113-114. Defendants have suggested through their deposition questions that other witnesses reported that Rodriguez used profanity towards both Steinhauser and Molina at this time, though Rodriguez testified that he does not recall doing so. Id. at 113-115.
When he refused to comply, Steinhauser put out a "Code-3" call for assistance and then moved toward Rodriguez and began striking him with his baton.Steinhauser Decl, ¶ 4; Rodriguez Dep., 116-17. Steinhauser struck Rodriguez on the side of his left leg, and continued to strike him repeatedly, making contact. Rodriguez Dep., 117-20. During this time, Rodriguez requested that Steinhauser "calm down." Id. at 121. Rodriguez testified that he blocked the fourth baton strike, and briefly grabbed the baton for approximately one second. Id.at 122-23. Steinhauser then pulled the baton back, and Rodriguez immediately let go of the baton without a struggle. Id. at 125.
As the parties discussed at oral arguments, there is conflicting evidence regarding whether Steinhauser regained control of the baton or whether Rodriguez tossed the baton away from him. Compare, id. at 122-23 and Deposition of David Irizarry ("D. Irizarry Dep."), 20-23. Thus, it is unclear whether Rodriguez ever held the baton in a threatening way against Steinhauser. Rodriguez claims that after he let go of the baton, Steinhauser stumbled backwards a few steps. Rodriguez Dep., 123-24. He then began to shoot Rodriguez several times and Rodriguez immediately fell down into a gutter. D. Irizarry Dep., 23.At no point did Steinhauser warn Rodriguez of his intent to shoot.
Though neither side submitted any evidence as to the extent of Rodriguez's injuries, at oral arguments, both parties represented that Rodriguez was shot three times, and that the bullets left nine separate bullet holes in his flesh.
Summary judgment is proper if "the movant shows that there is no genuine dispute as to any material fact and 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 (1992); 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, the moving party can meet its burden 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).
Once the moving party meets its burden, the opposing party must set out specific facts showing a genuine issue for trial; merely relying on allegations or denials in its own pleading is insufficient. See Anderson, 477 U.S. at 248-49. A party cannot create a genuine issue of material fact simply by making assertions in its legal papers. S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1982). Rather, there must be specific, admissible evidence identifying the basis for the dispute. Id. The Supreme Court has held that "[t]he mere existence of a scintilla ...