ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND ORDER
REMANDING CASE TO STATE COURT
This case stems from the death of Angel Antonio Mendoza Saravia ("Angel") during an encounter with deputies from the Fresno County Sheriff's Office. Plaintiffs are Angel's family members. Plaintiffs originally filed suit in the Fresno County Superior Court, but the Defendants removed the matter to this Court. Plaintiffs allege claims under 42 U.S.C. § 1983, as well as state law claims for negligence, assault and battery, intentional infliction of emotional distress, and wrongful death against the City of Mendota ("Mendota") and the County of Fresno ("the County"). *fn1 Mendota and the County now move for summary judgment on all claims alleged against them. For the reasons that follow, the motion for summary judgment will be granted in part, and this case will be remanded to the Fresno County Superior Court.
During the evening of November 6, 2008, County Sheriff Deputies Kenneth Kalar ("Kalar"), Josh Hamilton ("Hamilton"), and Jeff Shipman ("Shipman") were dispatched to 610 Gaxiola in the city of Mendota, California in response to a call reporting two men fighting. DUMF 1; PUMF 10. When the deputies arrived at 610 Gaxiola, a neighbor, Ruth Ann Alvarez ("Alvarez"), translated information between Spanish speaking individuals at the scene and the deputies. DUMF 2. The deputies spoke to witnesses and were told that Angel had been involved in a fight with another male and had just left on foot. DUMF 3. *fn3 Deputies were also told that Angel had beaten a pregnant female, which caused two of the deputies to leave 610 Gaxiola in order to canvass the area for Angel. See id.
The deputies were unsuccessful in locating Angel, so they returned to 610 Gaxiola. The deputies were informed that a phone call was received indicating that Angel was at his home at 325 Blanco Street and was beating his pregnant wife. See DUMF 4. Alvarez told the deputies what was said during that phone call. See id.
Hamilton and Shipman drove their patrol cars to 325 Blanco. DUMF 6. Kalar stayed behind for a moment and attempted to get more information from the witnesses, but then followed the other deputies to that location. See id.
The deputies arrived at 325 Blanco within seconds, and Hamilton and Shipman noticed broken glass in the driveway and that the rear windows of a van in the driveway were broken out. DUMF 7. Shipman also saw a trail of blood leading up to the front door and that there was blood smeared on the stucco exterior of a pillar outside the front door. DUMF 8.
The deputies approached the front door, which was open, rang the door bell, and entered the premises. See Diaz Depo. 22:12-18; DUMF 9. The officers then encountered a female, who was later identified as Maria Leticia Ramos Diaz ("Diaz"). See DUMF 9. Diaz told the deputies
that Angel was drunk inside. See id. Upon entering the living room, Hamilton noticed a television pushed through an entertainment center and it appeared to him that some sort of disturbance had occurred there. DUMF 10. Diaz told Hamilton that Angel had caused the mess. See id. *fn4 Diaz told the deputies that Angel was in the back of the house and then took them down the hallway and pointed to the room that he was in. DUMF 12; Hamilton Dec. ¶ 11.
Shipman and Hamilton approached the door that Diaz directed them to. DUMF 13. The deputies noticed some blood smeared on the hallway wall. See Shipman Dec. ¶ 10; Hamilton Dec. ¶ 12. Hamilton asked Diaz to leave the hallway, and then noticed a small puddle of blood in an open laundry room next to the bedroom. See Hamilton Dec. ¶ 13; DUMF 14. Shipman checked the door and it was locked, and both deputies could hear the sound of yelling and objects hitting the walls inside the room. DUMF 13. *fn5
Hamilton considered what force options were available to them and determined that OC spray would not be an option due to the size of the hallway and the number of persons present who may be contaminated by the OC spray. DUMF 15. Hamilton also determined that the due to the size of the hallway that a baton would not be an option. Id. The last two options available would be going hands on with a violent subject or using a less lethal shotgun. Id. Hamilton determined that the safest option would be the less lethal shotgun. Id. County Sheriff's deputies were not equipped with tasers on November 26, 2008. DUMF 17. Hamilton asked Shipman if Shipman had a less lethal shotgun. DUMF 18. Shipman replied that he had a less lethal shotgun in his car and went to retrieve it. See id.
The deputies knocked on the door and demanded that Angel come out in both English and Spanish. See PUMF 17; Diaz Depo. 24:1-9. Angel opened the door and took three steps out of the door way. See Diaz Depo. 27:9-28:11. The deputies noticed blood coming from Angel's nose and mouth area, and believed that he appeared to be intoxicated and angry. DUMF 20. Hamilton ordered Angel to raise his hands. See Hamilton Dec. ¶¶ 22-23.
There is a significant dispute between the parties as to the next sequence of events. Cf. DUMF's 21-28 with PUMF's 22-29 & Plaintiffs' Responses to DUMF's 21-28. Defendants contend that the right side of Angel's body was obscured, they could not see his right hand, and they did not know if he had a weapon. Angel responded to the officers' orders by yelling "Fuck you, come and get me." Angel made a forward movement toward the deputies and Hamilton ordered Shipman to fire the bean bag shotgun. *fn6 Shipman aimed at Angel's hip area and fired the shot gun. In contrast, Plaintiffs contend that Angel's whole body was visible to the deputies. Angel did not say "Fuck you, come and get me," but instead asked "why" in Spanish. Angel started to raise his hands and thereafter Shipman fired the shotgun. *fn7
Shipman was 15 to 16 feet away when he fired the shotgun. See DUMF 28; *fn8 O'Callahan Ex. F ("Williams Report") at 11:9-10; Fox Dec. ¶ 5 & Ex. A. County deputies are trained that the optimal distance for the bean bag shotgun is between 5 and 20 yards, which is the factory recommended range. See DUMF 29; see also Williams Report 9:4-5 (acknowledging that 5 to 20 yards is the "optimum distance" for deployment). The bean bag round hit Angel in the chest. See Shipman Dec. ¶ 14. Angel fell face first into the hallway and made a noise. See PUMF 32; Diaz Depo. 49:12-17. The deputies radioed for a supervisor and for EMS, ran to Angel, handcuffed him, and determined that Angel had no weapons. See DUMF's 31, 32. Kalar noticed that Angel was having trouble breathing, so he monitored Angel's vitals and radioed for EMS to respond Code 3. See DUMF 33. EMS arrived approximately 5 minutes after the bean bag struck Angel. See DUMF 34. Angel was transported to the hospital, but ultimately died.
The Commission on Peace Officer Standards and Training ("POST") is the governing body that sets the standards for training peace officers in California. DUMF 35. The Fresno County Sheriff's Office provides deputies with training, including training in legal force and less lethal applications, comporting with POST requirements and industry standards. DUMF 36. All peace officers in California, including County deputies, must obtain a basic certificate from POST and complete yearly training as set forth by POST in order to continue to exercise peace officer authority. See DUMF 37. POST continually audits training records of the Fresno County Sheriff's Office to ensure that the training provided to the deputies complies with POST standards. See DUMF 38. *fn9 All deputies employed by the Fresno County Sheriff's Office are in compliance with POST requirements, and the same was true in November 26, 2008. DUMF 39. *fn10 The policies and procedures of the Fresno County Sheriff's Office with respect to supervision and discipline of deputies, obtaining medical assistance, and the use of force meet industry standards. See DUMF Nos. 40, 41, 42. *fn11
Plaintiffs have not disclosed or pursued any evidence relating to the customs, policies or practices of Mendota. See Velasco Dec. ¶ 5. Plaintiffs did not disclose to defense counsel any evidence of prior constitutional violations by the County with regard to uses of force or with regard to any inadequate training of County deputies. See id. at ¶ 4. Plaintiffs have propounded one set of interrogatories, one set of requests for production, have not taken depositions, and have not pursued any evidence relating to customs, policies or practices of the County. See Velasco Dec. ¶ 3.
SUMMARY JUDGMENT FRAMEWORK
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; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir. 2009). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Freecycle Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).
Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008); Soremekun, 509 F.3d at 984. If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000) If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008).
The opposing party's evidence is to be believed, and all justifiable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Narayan v. EGL, Inc., 616 F.3d 895, 899 (9th Cir. 2010). While a "justifiable inference" need not be the most likely or the most persuasive inference, a "justifiable inference" must be rational or reasonable. See Narayan, 616 F.3d at 899. 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. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. Nissan Fire, 210 F.3d at 1103.
Finally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to comb through the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th Cir. 2010); Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1058 (9th Cir. 2009).
I. First, Second, & Third Causes of Action -- 42 U.S.C. § 1983 ...