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Lopez v. City of Imperial

United States District Court, S.D. California

July 2, 2015

JESUS LOPEZ, Plaintiff,


CYNTHIA BASHANT, District Judge.

Plaintiff Jesus Lopez ("Lopez") commenced this action against Defendants Albert Valenzuela, Edman Escallada, the City of Imperial, and Chief Miguel Colon (collectively "Defendants") on or about December 21, 2012 in San Diego Superior Court.[1] Lopez alleges Defendants violated his federal civil rights and various state laws during a traffic stop. ( See ECF No. 1-1 ("Compl.").) Defendants removed the action to federal court on March 14, 2013 based on federal question jurisdiction. Defendants now move for summary judgment on Lopez's claims. (ECF No. 25 ("Mot.").) Lopez opposes. (ECF No. 31 ("Opp").)

The Court heard oral argument on the motion from all parties on June 25, 2015. For the reasons set forth below, the Court DENIES IN PART and GRANTS IN PART Defendants' motion for summary judgment.


A. Dispatch Call and Traffic Stop

On the night of May 11, 2012, Lopez, a former deputy with the Imperial County Sheriff's Department and current part-time District Enforcement Officer with the United States Marshal's Office, noticed a truck following his car. (ECF No. 31-2 at Ex. 1 ("Lopez Dep.") at 37:14-15, 47:12, 49:16-50:21, 66:3-9.) Unbeknownst to Lopez, the truck belonged to an off-duty border patrol agent, Jose Fonseca ("Fonseca"). (ECF No. 25-4 at Ex. 3 ("Escallada Dep.") at 10:14-15, 12:5-7; ECF No. 25-5 at Ex. 5 ("Fonseca Decl.") at ¶ 2.) After observing Lopez's vehicle allegedly swerving on the road, Fonseca radioed for police to investigate the car in front of him as a potential drunk driver. (Fonseca Decl. at ¶¶ 2, 5; Escallada Dep. at 9:21-10:20.)

Defendant Officer Edman Escallada ("Escallada") responded to the call, proceeding to the area and following Lopez's vehicle.[3] (Escallada Dep. at 10:9-20; 15:4-6.) After following directly behind the vehicle for approximately four seconds, Escallada signaled Lopez to pull over. (Dashcam at 55:07-11.) Lopez noted the lights behind him, alerting him to pull over immediately, but continued to drive toward his residence for 10 seconds before pulling into the driveway of his residence, which was also a business. ( Id. at 55:11-55:21; Lopez Dep. at 74:21-77:1; 84:25-86:12.)

Once Escallada had pulled Lopez over, he retrieved Lopez's license and spoke to Fonseca, who said Lopez had been swerving "all over the road." (Dashcam at 56:11-57:28; Escallada Dep. at 34:1, 14-16, 36:17-25.) Escallada told Fonseca that Lopez was being "a little uncooperative." (Dashcam at 57:42.) Escallada - now accompanied by his supervisor, defendant Officer Albert Valenzuela ("Valenzuela") - returned to Lopez, requesting that Lopez exit his car. ( Id. at 58:47; ECF No. 25-5 at Ex. 4 ("Valenzuela Dep.") at 37:14-15.) Lopez complied, demanding to know the identity of the agent who had reported his vehicle, asserting that he was a former deputy sheriff, and, when asked if he'd been drinking, repeatedly stating "I'm diabetic. I don't drink." ( Id. at 58:50-59:56; Escallada Dep. at 37:9-10, 38:24-39:1, 49:24-25, 52:6-9.)

The parties dispute Fonseca's characterization that Lopez's vehicle was "swerving, " precipitating Escallada's involvement. ( See ECF No. 32-1 ("SS.") at Nos. 7-8.) Lopez states that after noticing Fonseca's vehicle behind him, he became concerned about being followed and was bothered by the vehicle's high beams shining in his mirrors.[4] ( See Lopez Dep. at 67:5-7, 70:11-71:6; SS. at No. 27.) Lopez claims he attempted "five to six" times to encourage the vehicle following him to pass, by pulling into the slow lane of the road. (Lopez Dep. at 71:2-72:14.) Fonseca, on the other hand, contends he witnessed Lopez's car "swerv[e] all over the two lanes of northbound traffic[, ]" "straddl[e] the center line[, ]" and at one point "actually go onto the right dirt shoulder." (Fonseca Decl. at ¶¶ 2-5.)

The parties also dispute whether Escallada independently perceived Lopez swerving and whether Lopez immediately pulled over for the traffic stop. Escallada claims he saw Lopez's vehicle's left tire briefly straddle the center median before signaling Lopez to pull over. (Escallada Dep. at 15:21; 20:6-24.) This allegation is unsupported by the Dashcam video and denied by Lopez. (Dashcam at 55:02-55:10; SS. at No. 10.) Lopez and Escallada also differ in their opinions of whether Lopez's seven-second delay meant he did not "immediately" pull over. ( See SS. at No. 12.) Escallada further testified that he did not smell any alcohol on Lopez at the time of the stop. (Escallada Dep. at 37:16-17.) However, Escallada claims Lopez's repeated explanations for swerving, "excuses" of being a retired deputy sheriff, and failure to immediately yield all seemed like evidence of intoxication at the time. ( Id. at 38:1-39:4, 51:21-24.) Escallada also claims Lopez's eyes were red at the time, which Lopez denies. ( Id. at 60:23; SS. at No. 23.)

B. Attempt to Conduct Field Sobriety Test and Arrest

Based on his suspicion that Lopez was intoxicated, Escallada instructed Lopez to take off his hat and asked him to voluntarily take a field sobriety test ("FST"). (Dashcam at 59:47-1:00:30; Escallada Dep. at 78:17-18.) The Dashcam shows Lopez refusing to take a FST, repeating that "this is bullshit." (Dashcam at 1:00:28; see also Escallada Dep. at 78:17-18.) At that point, Escallada threatened to arrest Lopez, while Valenzuela approached, identifying himself as the supervisor and admonishing Lopez to "be professional" and cooperate. ( Id. at 1:00:56, 1:01:05-01:13.) When Lopez maintained he would not take the FST, Escallada ordered Lopez to turn around, which Lopez refused to do. ( Id. at 1:01:36.) Escallada attempted to grab Lopez's arms, and Lopez raised his arms above his head and backed into his car's open door. ( Id. at 1:01:35-1:01:37.)

The parties dispute Lopez's demeanor at this point. Escallada testified Lopez was "belligerent, uncooperative, [and] argumentative, " signs of intoxication to Escallada. (Escallada Dep. at 60:16-25, 96:12-17.) Similarly, Valenzuela testified that Lopez's demeanor was argumentative, questioning, and defensive. (Valenzuela Dep. at 26:4-15.) Valenzuela testified that he considered Lopez's backing away with his arms raised and cornering himself in the car door to be "preaggressive behavior, " in response to which Valenzuela pulled out his baton. ( Id. at 39:13-40:16.)[5] Lopez disputes the officers' characterization of his demeanor, asserting he was "talking [to them] calmly and casually... in a moderate, non-threatening tone of voice." (SS. at No. 24.) Lopez contends he did not take an aggressive stance, but rather that he felt "cornered" against his car door by the officers. ( Id. at No. 64.)

C. Use of Force Against Lopez

Valenzuela struck Lopez with his baton once, while Escallada ordered Lopez to turn around. (Dashcam at 1:01:42.) Valenzuela testified that, at the time, he felt Lopez's size and demeanor constituted a threat to his personal safety. (Valenzuela Dep. at 40:20-25.) While Lopez-now offering to do the FST-continued to face the officers, Valenzuela struck Lopez several more times, and Escallada sprayed Lopez's eyes with pepper spray. (Dashcam at 1:01:49-1:01:54; 1:13:44.) Shielding his eyes, Lopez moved away from the officers and into his vehicle. ( Id. at 1:01:54.)

Both Valenzuela and Escallada reached into the car, attempting to pry Lopez out. ( Id. at 1:02:04.) During the struggle, Lopez's car began to roll forward, moving a short distance before it stopped. ( Id. at 1:02:13-02:15; Escallada Dep. at 103:11-21.) As the car was moving, Escallada and Valenzuela continued their use of force, with Valenzuela repeatedly striking Lopez with his baton and Escallada kicking Lopez's leg as the officers ordered Lopez out of his car. (Dashcam at 1:02:18-03:00; Escallada Dep. at 103:11-104:2.) After the car stopped, two other officers arrived, assisting Escallada and Valenzuela in pushing and pulling Lopez out of his car and onto the ground. (Dashcam at 1:02:52.) While three officers, including Valenzuela and Escallada, held Lopez down to handcuff him, the fourth officer stopped Lopez's car, which had again begun to roll away. ( Id. at 1:03:09.) As all four officers then attempted to cuff Lopez, who was lying on the ground, both Valenzuela and an unidentified officer used their batons on Lopez, repeatedly striking his lower body until Lopez was in handcuffs. ( Id. at 1:03:24-1:03:47.)

Plaintiff and Defendants dispute the reason Lopez's car began rolling forward. Lopez contends that the struggle to extract him from his car could have accidentally "knocked the gear shift into drive." (SS. at No. 46.) Defendants, however, assert Lopez intentionally moved the car in an attempt to flee. (Escallada Dep. at 103:11-12.) Another point of dispute is whether Valenzuela used his knee to strike Lopez's face while attempting to extract Lopez from his vehicle, as Lopez contends. (See SS. at No. 75; Valenzuela Dep. at 55:2-56:24.) Defendants assert that the vehicle's "cockpit obstruct[ed] the strike." ( Id. )

After placing him in handcuffs, the officers brought a bruised and bleeding Lopez near Escallada's vehicle to await an ambulance. (Dashcam at 1:05:18-05:28; 1:11:29.) Lopez complained to the officers about the force used on him, particularly an alleged baton blow to the head, while the officers repeated that Lopez "should've known better." ( Id. at 1:10:08.) Escallada subsequently arrested Lopez for resisting arrest with violence, driving under the influence, and assaulting a peace officer with a deadly weapon. (Escallada Dep. at 101:17-103:8; SS. No. 55.) Lopez's blood test revealed he was not under the influence of alcohol or drugs at the time of his arrest. (ECF 31-2 at Ex. 2 (Alcohol Analysis & Toxicology Screening); SS No. 55.) Ultimately, the County pressed no charges against Lopez. (ECF No. 31-3 at ¶ 3.)

Lopez subsequently commenced this action in state court alleging (1) assault and battery, (2) negligence, (3) unreasonable seizure and excessive force under 42 U.S.C. § 1983, (4) violations of his Fourteenth Amendment rights to substantive due process under 42 U.S.C. § 1983, (5) unlawful custom and practice under 42 U.S.C. § 1983, and (6) violations of California Civil Code Sections 51, 51.7, 52, and 52.1. ( See Compl.)


Summary judgment is appropriate under Federal Rule of Civil Procedure 56 when the moving party demonstrates the absence of any genuine issue of material fact and entitlement to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also George v. Morris, 736 F.3d 829, 834 (9th Cir. 2013). A dispute about a material fact is "genuine" if "a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see also FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010). "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Anderson, 477 U.S. at 248).

A party seeking summary judgment without the ultimate burden of persuasion at trial bears the initial burden of production and the ultimate burden of establishing the absence of a genuine issue of material fact. See Celotex Corp., 477 U.S. at 322-23; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). The moving party can satisfy the burden of production in two ways: (1) by producing "evidence negating an essential element of the nonmoving party's claim or defense;" or (2) by demonstrating 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., 210 F.3d at 1102; see also Celotex Corp., 477 U.S. at 322-23; Fed.R.Civ.P. 56(c)(1).

At the summary judgment stage, the focus is not on the admissibility of the form of the evidence offered by a party to support or dispute a fact, but on the admissibility of its contents. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003) (citing Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001)). If the 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 & Marine Ins. Co., 210 F.3d at 1102-03. However, if the moving party meets its burden of production, the burden then shifts to the non-moving party to produce admissible evidence to support its claim or defense. Id. at 1103. "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." Id .; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.'").

In considering a motion for summary judgment, a court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., 475 U.S. at 587-88 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when the judge] is ruling on a motion for summary judgment." Anderson, 477 U.S. at 255.


Defendants move for summary judgment on all of Lopez's causes of action. Defendants claim they are entitled to summary judgment on Lopez's excessive force and substantive due process claims on the following grounds: (1) because the officers' use of force was reasonable and necessary; (2) their conduct did not violate Lopez's substantive procedural rights; and (3) qualified immunity shields the officers from liability. Defendants assert they are also entitled to summary judgment on Lopez's remaining claims, as those claims rely on a finding of either excessive force or a substantive due process violation. Defendants further argue that Lopez's negligence cause of action against defendant City of Imperial ("City") must fail as a matter of law. Finally, Defendants contend that Lopez's state law claims against Defendants for violation of his civil rights fail under California Civil Code Sections 51, 51.7, 52, and 52.1. The Court will address each of these claims in turn.

A. § 1983 Claim for Excessive Force (Third Cause of Action)

Defendants move for summary judgment on Lopez's excessive force claim arguing that Escallada's and Valenzuela's actions "did not amount to an excessive use of force[, ]" since they had "no reasonable option other than to use force in order to effectuate the arrest." (Mot. at p. 14.) Lopez opposes the motion arguing that triable issues of fact exist as to whether the officers' use of force was objectively reasonable. (Opp. at pp. 19-21.)

"Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham v. Connor, 490 U.S. 386, 396 (1989) (internal quotation marks and citation omitted). A court must first consider the nature and quality of the intrusion, evaluating the type and amount of force inflicted. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (citing Deorle v. Rutherford, 272 F.3d 1272, 1279-80 (9th Cir. 2001)); Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994). Next, the court must determine the government's interest at stake in the use of force, weighing factors "including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396; see also Mattos, 661 F.3d at 441 (citing Deorle, 272 F.3d at 1279-80). "These factors, however, are not exclusive. Rather, [courts should] examine the totality of the circumstances and consider whatever specific factors may be appropriate in a particular case, whether or not listed in Graham. '" Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (quoting Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994)).

The reasonableness of a particular use of force requires taking the "perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396. "The right to make an arrest carries with it the right to employ some level of force to effect it." Bryan, 630 F.3d at 818 (citing Graham, 490 U.S. at 396). Thus, a "court must consider that the officer may be reacting to a dynamic and evolving situation, requiring the officer to make split-second decisions." Id. (citing Graham, 490 U.S. at 396-97). "[A]n officer need not have perfect judgment, nor must he resort only to the least amount of force necessary to accomplish legitimate law enforcement objectives." Id.

Because the excessive force inquiry ordinarily "requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, " the Ninth Circuit has emphasized that "summary judgment... in excessive force cases should be granted sparingly." Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (citing Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)); see also Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011) ("Where the objective reasonableness of an officer's conduct turns on disputed issues of material fact, it is a question of fact best resolved by a jury."). However, at the summary judgment stage, once the court has "determined the relevant set of facts and drawn all inferences in favor of the nonmoving party to the extent supportable by the record, " the question of whether or not an officer's actions were objectively reasonable under the Fourth Amendment is a "pure question of law." Scott v. Harris, 550 U.S. 372, 381 n. 8 (2007); see also Torres, 648 F.3d at 1123.

1. Nature and Quality of the Intrusion

A court measures the gravity of the particular intrusion that a given use of force imposes upon an individual's liberty interest with reference to "the type and amount of force inflicted." Young v. Cnty. of L.A., 655 F.3d 1156, 1161 (9th Cir. 2011) (quoting Deorle, 272 F.3d at 1279). Neither party disputes that Valenzuela struck Lopez's body multiple times with his baton, [6] or that Escallada pepper-sprayed Lopez's eyes, kicked Lopez while trying to extract him from the vehicle, and placed his knee on Lopez's neck while trying to handcuff him.[7] ( See SS. at Nos. 42-45, 48, 53-54; Dashcam at 1:01:42-03:45.) Lopez additionally claims that Escallada kneed Lopez's face twice while attempting to remove Lopez from his vehicle and "rammed his knee on to the top of Lopez'[s] head, neck[, ] and shoulder... while simultaneously handcuffing Lopez'[s] left wrist." (Opp. at 8:14-17; SS. at Nos. 49, 75.) Defendants dispute whether Escallada's knee actually hit Lopez during the struggle in the vehicle and assert Escallada only "placed" his knee on Lopez while trying to handcuff him. ( See SS. at Nos. 49, 53.)

"Both pepper spray and baton blows are forms of force capable of inflicting significant pain and causing serious injury. As such, both are regarded as intermediate force' that, while less severe than deadly force, nonetheless present a significant intrusion upon an individual's liberty interests." Young, 655 F.3d at 1161-62; Bryan, 630 F.3d at 810 (an intermediate, significant level of force must be justified by the governmental interest involved). A baton blow is considered a significant use of force, capable of causing not only pain, but potentially severe bodily injury. See Young, 655 F.3d. at 1162. Similarly, pepper spray "is designed to cause intense pain, " and "inflicts a burning sensation that causes mucus to come out of the nose, an involuntary closing of the eyes, a gagging reflex, and temporary paralysis of the larynx, ' as well as disorientation, anxiety, and panic.'" Id. (quoting Headwaters Forest Def. v. Cnty. of Humboldt, 240 F.3d 1185, 1199-1200 (9th Cir. 2000) (" Headwaters I "), vacated and remanded on other ...

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