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Lucille H. Telly v. City of Los Banos; Los Banos

October 1, 2012

LUCILLE H. TELLY,
PLAINTIFF,
v.
CITY OF LOS BANOS; LOS BANOS POLICE DEPARTMENT; DETECTIVE JUSTIN MELDIN; AND DOES 1 THROUGH 25, INCLUSIVE, DEFENDANTS.



MEMORANDUM OPINION ) AND ORDER ON ) DEFENDANTS' MOTION FOR ) SUMMARY JUDGMENT Doc. # 23

This a civil rights action for damages against defendants City of Los Banos, Los Banos Police Department, et al. (collectively, "Defendants") by plaintiff, Lucille H. Telly ("Plaintiff"). Currently before the court are Defendants' motion for summary judgment, Plaintiff's motion to strike a portion of Defendants' Statement of Undisputed Material Facts submitted in support of their motion for summary judgment, and Plaintiff's motion to amend the complaint to add and individual defendant, Preston Jelen. On August 23, 2012, the court vacated the dates for oral argument on the motions and ordered that Defendants' motion for summary judgment would be held in abeyance until a proposed amended complaint was filed. The court is now in receipt of Plaintiff's First Amended Complaint ("FAC") which, the court notes is identical to the original complaint except for the addition of Defendant's Jelen's name to the allegations set forth. The court also notes Defendants' statement of non-opposition to the amendment. Given the minor nature of Plaintiff's amendment and Defendant's non- opposition and the subsequent filing of Plaintiff's opposition and Defendant's reply to the motion for summary judgment, the court now considers the matter submitted upon the pleadings submitted and proceeds herewith to render its opinion.

PROCEDURAL HISTORY

This case was removed by Defendants from Merced Superior Court on June 7, 2011. The case had originally been filed in Superior Court in May 9, 2011. Removal jurisdiction is based on Plaintiff's first claim for relief which, although not very explicit as to the exact violation, is interpreted to allege that Plaintiff suffered a violation of her Fourth Amendment right against arrest without probable cause in violation of 42 U.S.C. § 1983. The instant motion for summary judgment was filed by Defendants on July 18, 2012. No prior dispositive motions were filed in this court. Plaintiff's motion amend/join additional defendants was filed on August 1, 2012, and Plaintiff's motion to strike portions of Defendants's statement of undisputed material facts was filed on August 14, 2012. Plaintiff's opposition to the motion for summary judgment was filed on August 13, 2012, and Defendants' reply was filed on August 20, 2012.

UNDISPUTED MATERIAL FACTS

Plaintiff moves to strike numbers one through twenty-eight of Defendants' proffered undisputed material facts on the ground of relevance. The court has examined the complained-of facts and agrees that they are, for the most part, irrelevant to the court's determination of Defendants' summary judgment motion. Plaintiff's motion to strike will therefore be granted except to the extent some minimal information must be included for the purpose of providing context for relevant facts. The following factual narrative is excerpted from Defendants' proffer of undisputed material facts. The facts set forth are uncontested by Plaintiff unless otherwise stated.

On August 10, 2010, Plaintiff and members of Plaintiff's family including her husband Ernesto Telly Sr. ("Ernesto") drove from San Jose to Los Banos, California, for the purpose of picking up their son, Anthony Telly ("Anthony"), who had been assaulted earlier in the day by persons unknown. As Plaintiff and other family members were departing Los Banos to return to San Jose, they spotted, and were spotted by, a truck carrying Anthony's assailants. Plaintiff, who was driving one of the vehicles, pulled to the side of the road as the truck carrying the assailants made a U-turn and parked. Ernesto exited the vehicle being driven by Plaintiff and approached the truck carrying the assailants. As Ernesto approached the truck, he was shot in the leg by one of the assailants and the truck drove away. Ernesto was assisted into the vehicle being driven by Plaintiff by another relative. Another vehicle, which was being driven by Ernesto's father, Albert, began to follow the route taken by the assailants. At Ernesto's request, Plaintiff drove her vehicle after Albert to stop him from giving chase and risking being shot himself.

During Albert's pursuit of the truck carrying the assailants, Anthony called 9-1-1 on a cell phone and told the operator that they were in pursuit of a truck carrying persons who had shot his father. After overtaking and stopping Albert, Plaintiff changed direction and proceeded in the direction of the Los Banos Community Hospital ("Hospital"). At this point the 9-1-1 operator called back and Anthony informed the operator that his parents were proceeding to the Hospital with his wounded father and that Anthony was in a truck following his parents.

The shooting happened to be witnessed by the wife of the Los Banos Police Department Commander Rey Reyna. She called Commander Reyna by cell phone and reported what she had witnessed and the direction of travel of the vehicles. Commander Reyna was near the area and noted a vehicle that fit the description of Plaintiff's vehicle traveling at a high rate of speed. Commander Reyna (who the court infers was driving an unmarked vehicle) continued to follow Plaintiff's vehicle until marked police cars arrived to pursue Plaintiff's vehicle. Thereafter, two marked police cars followed Plaintiff's vehicle with emergency lights and sirens activated. Plaintiff admits she observed at least one police car with emergency lights activated and that she heard a siren at one point. Plaintiff's hazard lights were activated.

Although Defendants' undisputed material facts lay out the events of Plaintiff's trip to the Hospital in some detail, there appears to be no dispute that, in sum, at least two marked police cars with lights and sirens activated witnessed Plaintiff drive at a speed at or exceeding 60 miles per hour through portions of downtown Los Banos, fail to stop at several stop signs and drive through at least one red light. Ultimately, Plaintiff arrived at the Hospital parking lot. Officer Jelen, the first officer to pull in behind Plaintiff's car "initiated a felony stop" with his gun drawn. Defendant's Undisputed Material Fact ("UMF") # 60. Another passenger in Plaintiff's car, Ernesto Jr., immediately jumped out of the car and stated that "someone had been shot." UMF # 61. Officer Juelen looked inside the car and observed that Ernesto Sr. was bleeding. Ernesto Jr. was handcuffed and placed in the back of a patrol vehicle. Plaintiff was directed out of the vehicle and told to lie on the pavement in the prone position. UMF # 64. "Officer Jelen summoned emergency room staff and advised them of the gunshot wound. Ernesto Sr. was conscious and [was] placed on a gurney and taken into the [H]ospital." UMF # 65.

Plaintiff was transported to the Los Banos Police Department for questioning regarding the shooting. The court notes that Defendants' UMF's do not specify whether Plaintiff had been handcuffed and told that she was under arrest in the Hospital parking lot. Detective Melden of the Los Banos Police Department ("LBPD") questioned Plaintiff concerning the identities of the assailants. Plaintiff informed Detective Melden that the reason Plaintiff did not stop for the officers following her was that she was "trying to get her husband to the hospital." UMF # 72. Although the parties disagree to some extent what information passed between Commander Renya and Officer Jelen and what sections of the Vehicle Code were cited, the parties do not disagree that Officer Jelen completed a probable cause statement charging Plaintiff with violation of two vehicle code sections. Plaintiff was booked at the LBPD. She was transported to the Merced County Correctional Facility on August 11, 2010 and was released on bail the same day. The court notes there are no allegations of excessive force by Los Banos Police. Plaintiff's car was released to Ernesto Jr. on August 11, 2010.

The Merced County District Attorney filed a Complaint charging Plaintiff with one count of violation of California Vehicle Code section 23103(a). The District Attorney dismissed the Complaint on November 11, 2010.

LEGAL STANDARD

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 ...


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