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Manuela Cancino Contreras Morales and R.A.M., A Minor v. City of Delano; Mark P.

February 14, 2012



This is an action for damages arising out of the death of Ruben Mesa Morales ("Decedent") as a result of a gunshot wound inflicted by Jose Mejia ("Mejia"), a reserve officer of the City of Delano Police Department, acting in the course and scope of his employment. The action is brought by Manuela Cancino Contreras Morales individually and as successor in interest of Decedent and by R.A.M., a minor child of Decedent by and through his Guardian ad Litem, Manuela Morales (collectively, "Plaintiffs"). In the currently-operative Second Amended Complaint ("SAC"), Plaintiffs allege a total of seven claims for relief against defendants City of Delano, Mark P. Derosia ("Derosa"), Delano Chief of Police, Mejia and Shaun Manuele ("Manuele"), a City of Delano police officer. Defendants Derosa, Meja and Manuele (the "individual Defendants") are each sued in both their individual and official capacities. Currently before the court is Plaintiffs' motion for partial summary judgment on a portion of their first claim for relief. Document # 46. Also currently before the court is Defendants' motion for summary judgment as all claims against all Defendants. Document # 42. Federal question jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.


Although most of the facts alleged in the parties' cross-motions for summary judgment are sharply disputed, a short list of stipulated facts has been submitted from which a general picture of the events giving rise to this action can be drawn. Decedent married Plaintiff Morales in Zacatecas, Mexico in 2000. They had one child together, R.A.M., who was born in the United States in Georgia. Decedent is a veteran of the United States military and lived in a converted garage apartment (hereinafter, the "apartment") that was attached to a house owned by Maria and Gabriel Nunez in Delano, California. Except for the birth of R.A.M. in Georgia, Plaintiffs have continuously resided in Zacates, Mexico. Decedent was paying a monthly rent of $500.00 per month to Maria and Gabriel Nunez at the time of his death.

Shortly after midnight on July 7, 2009, Mrs. Nunez returned home with her three children and noted that the front door was open and lights were flickering inside her home. After calling her husband at work, she called 9-1-1. Police officers arrived shortly thereafter. Mrs. Nunez was approached by Officer Felix, a non-party to this action, as Mrs. Nunez stood on the sidewalk in front of the residence. Mrs. Nunez, who spoke only Spanish, told Officer Felix that she rented a portion of her home to a person. Officer Felix was not certified as Spanish speaking by the Delano Police Department. Although there is some dispute over the details, it is generally not disputed that officers Mejia and Manuele were deployed to the back yard of the residence after which other officers entered the house by the front entrance. While the parties do not disputed that one of the responding non-party officers, Officer Felix, was told there was a renter who lived on the property in the apartment, it is sharply disputed whether Mejia or Manuele knew, or should have known, of the presence of Decedent in the apartment.

Although it is not entirely clear to the court whether the apartment can be accessed from the front of the house, there is no dispute that the apartment cannot be accessed from the inside of the main part of the house. It is not disputed that Mejia and Manuele entered through an unlocked doorway in the backyard leading into Decedent's apartment. It is not disputed that Mejia fired a single shot from his service pistol that struck Decedent and that the gunshot would ultimately resulted in Decedent's death. It is not disputed that Decedent was unarmed at the time of his shooting.


The original complaint in this action was filed on June 30, 2010. The currently operative SAC was filed on August 6, 2010. Plaintiffs' SAC alleges a total of seven claims for relief; four claims are alleged pursuant to 42 U.S.C. § 1983 and the remaining three are alleged pursuant to California common law for wrongful death, battery and negligence, respectively. Although Plaintiffs' first claim for relief is set forth as a single claim against officers Mejia and Manuele, it actually alleges violation of Decedent's rights under the Fourth and Fourteenth Amendments on four separate legal theories; unlawful warantless search, unlawful use of force, unlawful denial of Decedent to access to medical care necessitated by Defendants' actions, and falsification of evidence in furtherance of a conspiracy to deprive Decedent to access to courts. Plaintiffs' second claim for relief alleges the violation of Plaintiffs' Fourteenth Amendment right to the companionship and support of Decedent. Plaintiffs' first and second claims for relief are alleged against Mejia and Manuele.

Plaintiffs' third claim for relief is alleged against City of Delano pursuant to Monell v. Dep't of Soc. Services, 436 U.S. 658, 694 (1978). Plaintiffs' fourth claim for relief is alleged against Police Chief DeRosa in his individual capacity and the City of Delano for supervisory liability pursuant to 42 U.S.C. § 1983. Plaintiffs' fifth claim for relief for wrongful death under California common law is alleged against all defendants; the sixth claim for relief alleges common law battery against Mejia only, and the seventh claim for relief alleges negligence against Mejia and Manuele.

The parties' cross-motions for summary judgment or summary adjudication were filed on September 23, 2011. Each party filed an opposition to the motion of the other party on October 24, 2011. The parties filed their respective replies on October 31, 2011. The hearing on the cross motions was vacated and the matter was taken under submission as of November 7, 2011.


Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Poller v. Columbia Broadcast System, 368 U.S. 464, 467 (1962); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir. 1985); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir. 1984).

Under summary judgment practice, the moving party always bears the initial responsibility of informing 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). Although the party moving for summary judgment always has the initial responsibility of informing the court, the nature of the responsibility varies "depending on whether the legal issues are ones on which the movant or the non-movant would bear the burden of proof at trial." Cecala v. Newman, 532 F.Supp.2d 1118, 1132-1133 (D. Ariz. 2007). When the moving party has the burden of proof at trial, that party must carry its initial burden at summary judgment by presenting evidence affirmatively showing, for all essential elements of its case, that no reasonable jury could find for the non-moving party. United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991) (en banc); Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986); see also E.E.O.C. v. Union Independiente De La Autoridad De Acueductos Y Alcantarillados De Puerto Rico, 279 F.3d 49, 55 (1st Cir. 2002) (stating that if "party moving for summary judgment bears the burden of proof on an issue, he cannot prevail unless the evidence that he provides on that issue is conclusive.")

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the mere allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n.11; First Nat'l Bank, 391 U.S. at 289; Strong v. France, 474 F.2d 747, 749 (9th Cir. 1973). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. 248-49; Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 290; T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments); International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); Poller, 368 U.S. at 468; SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam); Abramson v. University of Hawaii, 594 F.2d 202, 208 (9th Cir. 1979). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).


Plaintiffs seek summary adjudication only as to the portion of their first claim for relief that alleges the warrantless, no-knock entry into Decedent's apartment was in violation of his rights under the Fourth Amendment.

A. Factual Issues

In making the determination of Plaintiffs' entitlement to summary judgment on this issue, the first issue presented by Defendants' opposition is how the court is to address the factual context of Plaintiffs' claim. Defendants' primary contention is that the actions of Mejia and Manuele were objectively reasonable in light of the facts known to them. Prominent among Defendants' objections to Plaintiffs' proffer of undisputed material facts is their objection under Graham v. Connor, 490 U.S. 386 (1989) to any fact that was not known to either Mejia or Manuele at the time of the entry into Decedent's apartment.

The Supreme Court's decision in Graham establishes three general rules of Fourth Amendment jurisprudence. First, Graham establishes that Fourth Amendment claims, whether based on unlawful search or unlawfull application of force, are determined under the standard of objective reasonableness, not under the Fourteenth Amendment substantive due process standard. Id. at 394-395. Second, Graham establishes that the determination of reasonableness is to be "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Id. at 396. Third, Graham, establishes that the reasonableness inquiry is objective, that is, without reference to the officer's underlying intent and motivations. Id. at 397.

Plaintiffs' undisputed material facts are contested in almost every particular. In a disputed summary judgment motion under Fed.R.Civ.P. 56, the trial court is obligated to draw all reasonable inferences in favor of the non-moving party and resolve all factual conflicts in favor of the non-moving party. Murphy v. Schneider National, Inc., 362 F.3d 1133, 1138 (9th Cir. 2004).

Unfortunately it is frequently the case, and is so here, that where parties seek to "cover all the bases" factually, the facts the court finds critical to its decision suffer from underdevelopment. With regard to Plaintiff's proffer of undisputed material facts, the court agrees with Defendants that the majority of these are irrelevant. With regard to Defendants, so much effort has gone into establishing what officers Mejia and Manuele did not know that the court is left with the conclusion that these officers were dispatched to "cover the back" in a state of near-perfect ignorance. The court notes that certain aspects of Defendants' version of the facts are sharply disputed; principal among these is Defendants' allegation that Mejia and Manuele had neither actual or constructive knowledge of Decedent's presence in the apartment or of his status as a renter. Were the court considering here Defendants' motion for summary adjudication of this issue, that factual dispute alone would be sufficient to defeat Defendants' motion. However, Plaintiffs' motion is currently under consideration and the court must accept Defendants' version of the facts to the extent the facts are disputed.

Accepting Defendants' representation of the facts as true, officers Mejia and Manuele arrived at the scene at about the same time as the other officers and were told to "cover the back" knowing only that there had been a call reporting that the front door was found to be ajar/open when it should not have been, and that there was a light on inside when there should not have been. Nothing else. Officers Mejia and Manuele had no knowledge of whether anyone had tried to make contact with anyone inside the apartment or Mrs. Nunez's (hereinafter, the "residence") and did not attempt to do so themselves. See Plaintiff's UMF # 46 (none of the responding officers knocked on the apartment front door or windows). As noted above, Mejia and Manuele had no knowledge of any conversation between Mrs. Nunez and the other officers or of the search of the Nunez residence or of the status of the other officers following their search. By combining together Plaintiff's UMF's numbered 46 (no attempt to call out to anyone on the inside or announce police presence) and 51 (no knock upon entry by Mejia and Manuel) the court concludes that Mejia and Manuele entered the space rented by Decedent through an unlocked door without knocking or announcing.

The court notes that Defendants invite the court to speculate that Mejia and Manuele were caught up in rapidly evolving facts requiring split-second decision making. There are absolutely no facts to indicate this was the case. At most, the facts permit the conclusion that Mejia and Manuele were deployed to "cover the back," which they did, and where nothing much appears to have happened. There were no fleeing suspects, no shots fired, no voices indicating urgency, and no radio transmissions indicating an escalating situation. Neither party has developed the facts surrounding the entry with a great deal of precision so the court is left with the understanding that Mejia and Manuele "covered the back" for some period of time not knowing what the other officers were doing. At some point, and for no stated reason, Mejia and Manuele decided to enter an open door without knocking or announcing and without any knowledge where the door would lead.

Defendants allege, and the court accepts as true for purposes of this discussion, that Mejia and Manuele did not know if, or when, the other officer commenced a search of the residence from the front; did not know that the search of the residence concluded without finding anything amiss; and did not know that Mrs. Nunez had communicated to officers Felix and Ward that the area comprising the garage had been converted into an apartment and was occupied by Decedent. The court also accepts as true that sometime after the radio broadcast of the "code 4" message, Mejia and Manuele entered without knocking or announcing through a partially-opened door in the back yard that they did not know entered into the space that was being rented by Decedent. There is, of course, no dispute that Mejia and Manuele entered without a warrant.

The question posed by Plaintiffs' motion for summary adjudication is whether the warrantless, no-knock entry by Mejia and Manuele was lawful.

B. Fourth Amendment Violation "It is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v.

New York, 445 U.S. 573, 586 (1980) (footnote omitted). The presumption of unconstitutionality that accompanies "the [warrantless] entry into a home to conduct a search or make an arrest" may be overcome only by showing "consent or exigent circumstances." Steagald v. United States, 451 U.S. 204, 211 (1981).

Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1016 (9th Cir. 2008). To these two fundamental exceptions to the general warrant requirement, Defendants add the "emergency exception." Defendants claim all three apply with respect to the entry by Mejia and Manuele.

1. Emergency Exception

As Defendants correctly point out, the emergency exception derives from the caretaking function and requires that there be reasonable grounds to believe there was an emergency that required immediate assistance to preserve life or property. See Defendants' Opposition, Doc. # 52 at 17:1-8 (citing Espinosa v. City & County of San Francisco, 598 F.3d 528, 534 (9th Cir. 2010); Hopkins v. Bonvicino, 573 F.#d 752, 763-764 (9th Cir. 2005)). The factual allegations presented in this case give no hint of the existence of a situation that would invoke the care-taking function of the police. The only information available to the officers was that there was a house with the front door open and a light on where there should have been no one home. No reasonable officer could make a determination that an emergency existed from those facts. The court finds Defendants' version of the facts does not support the proposition that the entry was justified on the basis of an emergency.

2. Exigent Circumstances

Next, Defendants contend that the entry by Mejia and Manuele into the space rented by Decedent was justified by exigent circumstances. "There are exigent circumstances to justify a warrantless entry by police officers into a home if the officers have a reasonable belief that their entry is 'necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.' [Citation.]" Huff v. City of Burbank, 632 F.3d 539, 544-545 (9th Cir. 2011) (quoting Fisher v. City of San Jose, 558 F.3d 1069, 1075 (9th Cir. 2009)). Reliance on the exigent circumstances exception requires that governmental defendants offer facts to prove: (1) that the officer had probable cause to search the house; and (2) that "exigent circumstances justified the warrantless intrusion." United States v. Johnson, 256 F.3d 895, 205 (9th Cir. 2009). The parties do not seem to dispute that Mrs. Nunez's 9-1-1 call was sufficient to establish probable cause for entry into the residence. There remains, then, the issue of whether there existed an exigent circumstance with regard to the entry of Mejia and Manuele into the apartment.

To make the case that exigent circumstances existed with regard to the warrantless, no-knock entry by Mejia and Manuele, Defendants rely principally on Murdock v. Stout, 54 F.3d 1437 (9th Cir. 1995). In Murdock, the initial evidence that police encountered that indicated exigent circumstances consisted of a neighbor's report of suspicious activity and the observation of an open door at the rear of the house. The Murdock court noted that, had the responding officers known only those facts, in the absence of any other physical evidence of burglary, there would have been little doubt that exigency would not have been demonstrated.

Id. at 1441-1442. However, the Murdock court noted that facts subsequently determined by the police officers, facts not in evidence here, tipped the scales in the officers' favor. Specifically, the Murdock court noted that the officers observed that lights and a television were on and then "prudently attempted to make contact with the resident," including shouting twice into the home and calling the telephone number for the house. Id. at 1442. Defendants' reliance on Murdock is unavailing specifically for the reason that there is no evidence that Mejia or Manuele had any additional information to tip the scales in favor of determining there was an exigent circumstance. So far as the court can determine from Defendants' version of the facts, Mejia and Manuele deployed to the back yard knowing only that the homeowner had observed a door ajar and lights on. The officers made no attempt to make contact with anyone on the inside and had no knowledge whether any other officers had done so.

In addition, and probably most critically, the Murdock court held that, where entry could be accomplished with no damage to property, "only mild exigency need be shown." Id. This proposition was rejected in LaLonde v. County of Riverside, 204 F.3d 947, 956 - 957 (9th Cir. 2000). Thus, to the extent there is any suggestion derived from Murdock that Mejia and Manuele could perform a warrantless, no-knock entry into the apartment on a theory of exigent circumstances because the door was not locked, that suggestion is rejected. What Murdock makes clear to this court is that what distinguishes an exigent circumstance from one that is not exigent is some fact or facts in addition to the observation that the door is open and the lights are on when they should not be. The absence of any other physical evidence of exigency, coupled with the lack of any effort by the officers, including Mejia and Manuele, to announce themselves or to make any effort to establish that no one was lawfully ...

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