The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER ON MOTION FOR SUMMARY JUDGMENT (Doc. 82)
Before the Court is a motion by Defendants Frank Harper and Robert Carey for summary adjudication of the operative claims in Plaintiff Donnie Srabian's complaint for violations of 42 U.S.C. § 1983 and common law assault and battery, intentional infliction of emotional distress and negligent infliction of emotional distress. Defendants also challenge Srabian's ability to seek punitive damages. For the reasons discussed below, this Court GRANTS in part and DENIES in part Defendants' motion for summary adjudication.
On Friday, February 16, 2007, at approximately 8:30 p.m., Defendant Harper was on uniformed patrol when he was dispatched to respond to 7297 E. Walter Avenue (near the City of Fowler) in regards to a Priority 1 "911 hang-up call." Harper was told that when the dispatcher called the 911 phone number back, the phone rang once and disconnected, and that there was possibly a phone malfunction. Harper was driving a marked Sheriff's Department patrol car with overhead emergency lights and a spotlight located at the front doors where they meet the windshield.
Harper arrived in the area of 7297 E. Walter at approximately 8:35 p.m. but was unable to find a mailbox, or numbers on a house or business identified as 7297 E. Walter. At a location that seemed to correspond with the 7297 E. Walter address, Harper located what appeared to be an unoccupied commercial farming operation. Across the street from the farming operation, Harper saw a driveway leading to what appeared to be a house set back approximately 300 feet from Walter Avenue. Harper could see lights on in the house. This location was ultimately determined to be 7274 E. Walter, a residence owned by Donnie Srabian, his brother, Martin Srabian, and his sister, Beverly Srabian ("Srabian residence"). Harper drove down the driveway from Walter Avenue towards the house and used his driver's side spotlight to illuminate the east side of the house to locate street numbers. Harper stopped his car approximately 50 feet from the house and began to turn his computer off.
At that time, and for approximately one hour prior to defendant Harper's arrival, Donnie Srabian and Martin Srabian were meeting in the kitchen of the home at 7274 E. Walter. They first became aware of defendant Harper's approach when they heard a noise outside the door of the kitchen. Since there had been a number of burglaries and a home invasion robbery in the neighborhood, Donnie Srabian and Martin Srabian rushed out the door of the kitchen to confront whoever was on their property.
Shortly after Harper stopped his car, Plaintiff Donnie Srabian exited the house from a door on the east side of the house. There were lit floodlights on northeast corner of the house. After Srabian opened the door, he walked outside and moved down a walkway eastbound from the house. Srabian had a small handgun in his right hand. Before Srabian exited the house, a ski mask and beanie were in the pocket of his coat.
While still seated in his car with the door closed, Harper began drawing his gun from his holster which is on the right side of his gunbelt. Srabian moved down the walkway and stopped. While still inside his patrol car, Harper fired three times towards Srabian through the open driver's side window. One of shots struck Srabian. The bullet entered his right chest area, lacerated his liver and his right kidney, and exited his back. The other two bullets lodged in the outer wall of the kitchen.
After Harper fired, Srabian fell onto the grass and generally assumed a fetal position. Srabian's gun, ski mask and a knit beanie style cap were recovered on the grass.
After shooting Srabian, Harper stepped out of his car keeping the open door between himself and the Srabian residence. Harper kept his gun drawn and pointed towards Srabian and the house while he continued to monitor both. After he shot Plaintiff Srabian., Harper put out a "shots fired" broadcast on his patrol car radio and requested that emergency medical services be dispatched to address Srabian's medical needs.
Martin Srabian exited the house after Donnie Srabian. After Defendant Harper shot Donnie, Martin was visibly upset and asked Harper why he had shot his brother. Harper told Martin to back up and stay away. Harper reported on his radio that that a subject had pointed a gun at him and that there was another subject who was being uncooperative.
Around this time or shortly afterward, Defendant Carey, who was also working uniformed patrol in a marked patrol car, had heard Harper dispatched to the 911 call and notified dispatch that he was going to respond and assist. When Carey arrived, Donnie Srabian was lying on the ground. Harper still had his gun drawn. Martin Srabian was still visibly upset. Harper told Carey, with respect to Martin Srabian, "Get him out of here," or "Take care of him." Carey handcuffed Martin Srabian on the ground and turned him over to another police officer who had arrived on the scene.
Defendants Harper and Carey then handcuffed Plaintiff Donnie Srabian, who was still lying on the ground. Sometime after, Harper and Deputy Mike Quintanilla dragged Srabian behind Harper's patrol car where they met with emergency medical personnel. Srabrian had abrasions on his face and head. He was then turned over to emergency medical personnel for evaluation and treatment. Shortly thereafter Srabian was transported to University Medical Center by ambulance. He was hospitalized from February 16 to February 21, 2007.
Donnie Srabian and Martin Srabian filed this action on March 10, 2008 against Fresno County, Fresno County Sheriff Margaret Mims, Deputies Harper and Carey, and Does 1 through 50. (Doc. 1). Martin Srabian passed away on July 24, 2008, and his estate, by its executor Donnie Srabian, was substituted as a plaintiff. The action was stayed on January 6, 2010 pending the outcome of the related criminal case The People of the State of California v. Donnie Charles Srabian, Fresno County Superior Court Case No. F0790158. (Doc. 53). Plaintiff Donnie Srabian was tried before a jury in the related criminal case. On June 17, 2010, Srabian was found guilty of the misdemeanor of brandishing or exhibiting a firearm in violation of Penal Code § 417(a)(2) and was acquitted of the felonies of brandishing a firearm in the presence of a peace officer in violation of Penal Code § 417(c), assault on a peace officer with a semi-automatic firearm in violation of Penal Code § 245(d)(2), and possession of an assault weapon in violation of Penal Code § 12280(b). On July 17, 2012, this Court ordered bifurcation of the issues of liability and damages in this action. (Doc. 74). On October 16, 2012, this Court dismissed with prejudice the entire action by the estate of Martin Srabian as to all defendants, the entire action by Plaintiff Donnie Srabian as to Sheriff Margaret Mims and the County of Fresno, Plaintiff Donnie Srabian's claims for unjustifiable denial of liberty (false arrest) and malicious prosecution in his first cause of action, and Plaintiff Donnie Srabian's seventh cause of action for false arrest and false imprisonment. (Doc. 81). Defendants Harper and Carey filed the instant motion for summary judgment on October 19, 2012. (Doc. 82). On October 28, 2011, the Court of Appeals, Fifth District affirmed Srabian's misdemeanor conviction. Plaintiff Donnie Srabian filed an opposition to the motion for summary judgment on November 5, 2012, and Defendants filed a response on November 9, 2012.
Motion for Summary Judgment
A.Standard under Fed. R. Civ. P. 56
Defendants seek summary adjudication to determine liability for Plaintiff Srabian's operative claims under 42 U.S.C. § 1983 and for common law assault and battery, intentional infliction of emotional distress, and negligent infliction of emotional distress.
Fed .R. Civ. P. 56(b) permits a "party against whom relief is sought" to seek "summary judgment on all or part of the claim." "A district court may dispose of a particular claim or defense by summary judgment when one of the parties is entitled to judgment as a matter of law on that claim or defense." Beal Bank, SSB v. Pittorino, 177 F.3d 65, 68 (1st Cir.1999).
Summary judgment is appropriate when there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2); Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assn., 809 F.2d 626, 630 (9th Cir.1987). The purpose of summary judgment is to "pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec., 475 U.S. at 586, n. 11, 106 S.Ct. 1348, 89 L.Ed.2d 538; International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.1985).
The evidence of the party opposing summary judgment is to be believed and all reasonable inferences that may be drawn from the facts before the court must be drawn in favor of the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita, 475 U.S. at 587. The inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-- 252.
To carry its burden of production on summary judgment, a moving party "must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir.2000); see High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir.1990). "[T]o carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact." Nissan Fire, 210 F.3d at 1102; see High Tech Gays, 895 F.2d at 574. "As to materiality, the substantive law will identify which facts are material. 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 248.
"If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire, 210 F.3d at 1102--1103; see Adickes, 398 U.S. at 160. "If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense." Nissan Fire, 210 F.3d at 1103; see High Tech Gays, 895 F.2d at 574.
"If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment." Nissan Fire, 210 F.3d at 1103; see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) ("Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make the showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.")
"But if the nonmoving party produces enough evidence to create a genuine issue of material fact, the nonmoving party defeats the motion." Nissan Fire, 210 F.3d at 1103; see Celotex, 477 U.S. at 322. "The amount of evidence necessary to raise a genuine issue of material fact is enough 'to require a jury or judge to resolve the parties' differing versions of the truth at trial.'" Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 288--289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Anderson, 477 U.S. at 252.
Under Fed. R. Civ. P. 56(d)(2), a summary judgment/adjudication motion, interlocutory in character, may be rendered on the issue of liability alone. "In cases that involve ... multiple causes of action, summary judgment may be proper as to some causes of action but not as to others, or as to some issues but not as to others, or as to some parties, but not as to others." Barker v. Norman, 651 F.2d 1107, 1123 (5th Cir.1981); see also Robi v. Five Platters, Inc., 918 F.2d 1439 (9th Cir.1990); Cheng v. Commissioner Internal Revenue Service, 878 F.2d 306, 309 (9th Cir.1989). A court "may grant summary adjudication as to specific issues if it will narrow the issues for trial." First Nat'l Ins. Co. v. F.D.I.C., 977 F.Supp. 1051, 1055 (S.D.Cal.1977).
As discussed below, defendants have negated essential elements of some of plaintiffs' claims or have shown that plaintiffs lack sufficient evidence to support ...