On September 28, 2011, the court heard argument on the parties' cross-motions for summary judgment/adjudication. Stewart Katz appeared for the plaintiffs, and Jerri L. Pappone and Amanda Butts appeared for the defendants.
Sacramento County, former Sheriff McGinness and Deputy Sheriff LeCouve have filed a motion for summary judgment on plaintiffs' first, second, third, fourth and sixth claims, as well as plaintiffs' claims for punitive damages. ECF No. 25. Plaintiffs concede there is no basis for the sixth claim, negligence, against defendant McGinness. ECF No. 31. The first, second, third and fourth claims, respectively, are for unreasonable seizure and excessive force against LeCouve; unconstitutional policies regarding the use of a police canine against McGinness and the County of Sacramento; unconstitutional practices regarding the use of a police canine against McGinness and the County; and inadequate supervision and training against the County and McGinness. See ECF No. 2.
Plaintiffs Deanna Gangstee and Jordan Chambers move for summary adjudication on their eighth cause of action, based on California Code of Civil Procedure § 3342, which imposes strict liability on dog owners for bites inflicted by their dogs. ECF No. 26.*fn2
Defendants filed a statement of non-opposition, but also "maintain all rights and defenses, and assert that causation, including proximate cause, the nature, extent, and amount of damages, comparative fault, and assumption of the risk, remain contested." ECF No. 30.
For the reasons discussed below the court grants defendants' motion, declines to exercise jurisdiction over the remainder of plaintiffs' claims, and denies plaintiffs' motion.
I. Standards for a Motion for Summary Judgment
A court will grant summary judgment "if . . . 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(a). The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).*fn3
The moving party bears the initial burden of showing the district court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which "must establish that there is a genuine issue of material fact . . . ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must "cit[e] to particular parts of materials in the record . . .; or show  that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 ("[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts"). Moreover, "the requirement is that there be no genuine issue of material fact . . . . 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, 477 U.S. at 247--48 (emphasis in original).
In deciding a motion for summary judgment, the court draws all inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587--88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
On May 18, 2008, Sacramento County Sheriff's Deputies Vitaly
Pokopchuk, Erik Bonney and defendant Stephen LeCouve chased a car
driven by Elton Ward into the 6000 block of Northcrest Circle in
Carmichael. They stopped Ward's car using a Pursuit Intervention
Technique. ECF No. 32 ¶ 1--3; ECF No. 41-1 at 3:7--11 (Depo. of Vitaly
Prokopchuk). Prokopchuk, Bonney and LeCouve all got out of their cars
with their guns drawn and ordered Ward to show his hands.*fn5
Ward complied by placing both hands outside of the car
window. ECF No. 41-1 at 3:17--20.
LeCouve, a K-9 officer, brought his dog, Dantes, out of the car. ECF No. 32 ¶ 6. LeCouve asserts he did this based on Sheriff's Department protocols to be ready in case a car extraction is required or a suspect flees. ECF No. 25-5 ¶ 7 (Decl. of Stephen LeCouve). Plaintiffs allege that the department's policy does not require the officer to bring the dog outside of the car and that such a protocol is not common practice. ECF No. 35 ¶¶ 10--11 (Decl. of Vanness H. Bogardus III).*fn6 While it is undisputed that Dantes was not on a leash, the parties dispute whether LeCouve was holding on to the dog: LeCouve avers he held Dantes with his left hand, while plaintiffs' witnesses assert LeCouve did not have his hand on Dantes' collar or otherwise have Dantes restrained on a leash. Compare ECF No. 38 ¶ 4 (Decl. of Phyllis Middletown) with ECF No. 25-5 ¶ 7 (LeCouve Decl.). LeCouve told Dantes to "watch," which focuses the dog's attention. ECF No. 41--1 at 60:15--18 (Depo. of Stephen LeCouve). LeCouve says that had he wanted Dantes to apprehend Ward, he would have given the command, "take him." ECF No. 41-1 at 59:18--21.
Plaintiff Deanna Gangstee and her son, plaintiff Jordan Chambers, lived at 6043 Northcrest Circle, #3. Gangstee and her fiancee Paul Sunburn were cleaning their house while her son played outside. ECF No. 39 ¶ 3 (Decl. of Paul Sunburn); ECF No. 37 ¶¶ 4--5. They heard sirens, and when Gangstee went outside to check on Jordan, she heard officers yelling something about blowing somebody's head off. ECF No. 37 ¶¶ 5--6; ECF No. 39 ¶ 4. Gangstee saw Jordan across the street, signaled him to move to a safer location, and began to run toward him, away from the police. ECF No. 37 ¶¶ 7--8; ECF No. 39 ¶ 5; ECF No. 25-5 ¶ 9; ECF No. 25-4 at 5:20--21 (Depo. of Deanna Gangstee). At that point, Dantes got away from LeCouve and began to chase Gangstee. ECF No. 39 ¶ 8. According to LeCouve, Dantes twisted out of his grip, injuring his finger; he did not report or document the injury, which was minor. ECF No. 25-5 ¶ 9; ECF No. 41-1 at 57:18--23. (LeCouve Depo.). LeCouve ran after Dantes. The parties dispute whether he yelled any commands to the dog before Dantes bit Gangstee. Compare ECF No. 25-5 ¶ 10 (stating LeCouve yelled at Dantes to stop) with ECF No. 41-1 at 5:2--3 (stating LeCouve yelled "something negative like 'stop' or 'no'"), and ECF No. 36 ¶ 8 (Decl. of William Gaines, stating he did not hear LeCouve give any commands until after Dantes had bitten Gangstee).*fn7
Gangstee's neighbor, seeing the dog run after her, yelled at Gangstee to stop running. ECF No. 38 ¶ 5. LeCouve, who was running after Dantes, yelled "don't move" to Gangstee. ECF No. 25-4 at 7:5--15 (Gangstee Depo.). The parties dispute what happened next:
Gangstee says she turned, put her arm up to protect herself, and that the dog bit her arm and then her hip, but that she did not hit the dog. ECF No. 37 ¶ 9; ECF No. 41--1 at 46:20--21; ECF No. 39 ¶ 9. LeCouve says that Dantes bit Gangstee's hip, she hit Dantes, and ...