MEMORANDUM OPINION AND ORDER FOLLOWING
ADDITIONAL BRIEFING ON
PLAINTIFFS' MOTION FOR
SUMMARY ADJUDICATION ON THE ISSUE OF FOURTH AMENDMENT VIOLATION ARISING FROM UNLAWFUL ENTRY
Doc. # 46
In this civil rights action for damages, the court previously issued a memorandum opinion and order on February 14, 2012, on the Parties' cross-motions for summary judgment and summary adjudication (hereinafter, the "February 14 Order"). Doc. # 94. In the February 14 Order the court concluded that it's determination of Plaintiffs' motion for summary judgment on the issue of whether the Fourth Amendment rights of decedent Ruben Morales ("Decedent") against unreasonable search required further briefing by the parties on both the law and facts pertaining to the unwarranted entry of Decedent's rented living space (the "Apartment") by defendants Manuele and Mejia. In particular, the court requested further briefing of facts and law regarding the issue of whether the 9-1-1 call by Decedent's landlord, Nunez, to the Delano Police Department granted actual or implied consent for the subsequent search. In a subsequent scheduling order following status conference, the court ordered the parties to submit simultaneous briefs on or before March 2, 2012, and simultaneous responsive briefs by March 9, 2012. After further consideration of the parties' additional briefing and all associated additional facts and argument, the court will deny Plaintiffs' motion for summary adjudication without prejudice.
ADDITIONAL OR SUPPLEMENTARY UNDISPUTED MATERIAL FACTS
The court's February 14 Order summarized the undisputed material facts pertaining to the entry of Manuele and Mejia into the Apartment. Defendants' supplemental brief draws the attention of the court to three pieces of information that were omitted from, or misstated in, the court's prior description of events. First, Defendants point out that the English translation of the transcript of the 9-1-1 call shows that the light that was described as "on" in Nunez's residence was "flickering" or perhaps going on and off. Second, Defendants point out that the Declaration of Manuele, set forth in Exhibit "B of Doc. # 53, states that officer Mejia announced "Delano Police, or words to that effect" upon entry into the Apartment area. Third, the Manuele Declaration, as well as other evidence submitted shows that Manuele and Mejia knew prior to their entry into Decedent's Apartment that the other officers had commenced a search of the interior of Nunez's residence but did not know that the search had been concluded with negative results. To this, the court would add parenthetically that neither Manuele or Mejia knew when they entered the Apartment that the space occupied by the Apartment was physically cut off from the main part of Nunez's residence.
While Defendants' proffer of additional undisputed material facts leaves an ambiguity as to whether Meja announced "Delano Police" before or after the actual entry into the Apartment, the court is required to construe all ambiguities in the light most favorable to the non-moving party -- Defendants, in this case. Thus, the court considers Plaintiffs' motion for summary adjudication on the issue of unlawful entry presuming, for the sake of this decision, that Mejia announced the presence of the officers through the opened or partially opened door to the Apartment. Likewise, the court presumes for purposes of this discussion that Nunez reported in her 9-1-1 call that she saw a light "flickering" inside her residence. The court has reviewed the factual context it presented in the February 14 Order, Exhibit "R" accompanying the Declaration of Kimberly Wah. Doc. # 100, and the Deposition of Manuele. Exh. "B" to Doc. # 52. With these factual representations in mind, the court here restates the factual background pertaining to Plaintiffs' motion for summary adjudication. The parts of the factual context that have been changed or modified based on Defendants' representations are [bracketed].
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 [flickering] 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. [While Manuele and Mejia knew the other Officers had commenced a] search of the Nunez residence, they did not know] [. . .] the other officers had concluded their search finding nothing amiss.] [. . . .] Mejia and Manuele entered the space rented by Decedent through an unlocked door without knocking [but upon announcing "Delano Police" or words to that effect] before or as they entered the unlocked door to the Apartment.
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 [. . .] and without any knowledge where the door would lead [and without communicating their intentions to anyone else].
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 officers [completed their] 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 but with 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.
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. ...