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Lam v. City of Los Banos

United States District Court, E.D. California

March 30, 2017

TAN LAM, as successor-in-interest to Decedent SONNY LAM “aka” Son Tung Lam and individually, Plaintiff,
CITY OF LOS BANOS, a municipal corporation; JAIRO ACOSTA, individually and in his official capacity as a Police Officer for the CITY OF LOS BANOS; and DOES 2-50, Defendants.



         Through this action Plaintiff Tan Lam (“Plaintiff”), as a successor-in-interest, seeks redress from the City of Los Banos (“City”) and Officer Jairo Acosta (“Officer Acosta”) (collectively “Defendants”) for the shooting death of his son, Sonny Lam (“Decedent”). Presently before the Court is Defendants' opposed Motion for Summary Judgment (“Defendants' Motion”). Defs.' Mot., ECF No. 72, at 1-2; Pl.'s Opp., ECF No. 83; Defs.' Reply, ECF No. 88. For the reasons set forth below, Defendants' Motion is GRANTED in part and DENIED in part.[1]


         Decedent suffered from schizophrenia for over ten years, but stopped taking medications for his ailment in the months preceding his death. First Amended Complaint (“FAC”), ECF No. 14, at 4:10-15; Lam Depo., ECF No. 85-1, at 103:5-10.[2] As a result, Decedent experienced a decline in his physical and mental health, which concerned his family members, including Plaintiff. FAC 4:13-15.

         On September 2, 2013, Decedent and Plaintiff had an argument in their residence, and Decedent slapped and threatened to kill Plaintiff. FAC at 4:16-19; Defs.' Reply Statement of Undisputed Material Facts (“SUMF”), ECF No. 92, at 19:13-24. Due to Decedent's weakened physical state, Plaintiff was not physically harmed by these slaps, nor was he fearful of Decedent. Defs.' Reply SUMF 19:13-24. However, since Plaintiff was concerned about his son's declining mental health, he decided to contact police to seek medical attention for his son. Id. Plaintiff spoke limited English, so he enlisted the help of a nearby neighbor in contacting the police. Id. at 2:7-9.

         At approximately 2:34 p.m., Plaintiff's neighbor called 9-1-1 and relayed Plaintiff's request for assistance. Defs.' SUMF, ECF No. 74, at 2:9-11. The dispatcher directed Plaintiff to wait at his residence for an officer to arrive, and Plaintiff complied. Pl.'s Resp. Defs.' SUMF, ECF No. 83-1, at 3:1-7; Lam Depo., ECF No. 77, at 43:1-10. The same dispatcher then radioed Officer Acosta and assigned him to investigate the assault. Defs.' Reply SUMF 3:17-19. Officer Acosta was provided a general description of the altercation, but was not told that Decedent suffered from mental illness. Id. at 3:3-12.

         At 3:08 p.m., Officer Acosta arrived at Plaintiff's residence and made contact with Plaintiff outside his home. Pl.'s Resp. Defs.' SUMF 4:3-12; Defs.' Reply SUMF 4:7-9. Plaintiff claims that he informed Officer Acosta about Decedent's mental illness, but Defendants dispute whether Officer Acosta had been so advised before entering the residence. Lam Depo., ECF No. 85-1, at 45:20-25, 47:12-48:3; Defs.' Reply SUMF 3:21-4:6. Officer Acosta claims that he had difficulty understanding Plaintiff because of the language barrier, (Acosta Depo., ECF No. 85-3, at 63:17-20), but Plaintiff asserts that he spoke in English when he told Officer Acosta that his son suffered from mental illness. Defs.' Reply SUMF 3:21-4:6, 9-21. Officer Acosta further claims that he noticed blood on Plaintiff's lip before entering the home, which Plaintiff in turn denies. Acosta Depo. 62:17-63:8; Defs.' Reply SUMF 4:9-21. After speaking with Officer Acosta outside, Plaintiff led the way to Decedent's bedroom and opened the door. Lam Depo., ECF No. 85-1, at 48:4-20. The subsequent facts are also disputed.

         When Plaintiff and Officer Acosta entered Decedent's room, Decedent was sitting in a chair wearing shorts, but no shirt. Defs.' Reply SUMF 4:21-28. Officer Acosta immediately took Decedent's hand and told him to come outside with him, to which Decedent responded “No, no, no, ” and “Go out. Go out, ” while “shooing” Officer Acosta out of his bedroom. Lam Depo., ECF No. 85-1, at 48:4-20, 51:24-9. Plaintiff alleges that Officer Acosta prodded Decedent to hit him, stating “Beat me. Beat me. Beat me, ” and “You hit me. You hit me. You hit me, go ahead.” Id. at 48:4-20, 51:24-9, 49:15-25. Officer Acosta, on the other hand, denies challenging Decedent to hit him. Acosta Depo. 127:12-23.

         Only a few minutes after arriving at the residence, at 3:13 p.m., Officer Acosta radioed for non-emergency police assistance to respond to the home. Pl.'s Resp. Defs.' SUMF 4:3-12. In addition, Officer Acosta alleges that while still in Decedent's room, he observed Decedent secure what appeared to be a blade from a desk.[3] Acosta Depo. 107:15-108. Plaintiff testified, however, that he never saw anything in his son's hands throughout the incident with Officer Acosta. Lam Depo., ECF No. 85-1, at 59:5-8; Defs.' Reply SUMF 11:11-28.

         As Plaintiff began to leave the room, a “physical altercation” between Officer Acosta and Decedent occurred as “they were moving out to the door.” Lam Depo., ECF No. 85-1, at 53:6-8. Once Plaintiff moved into the hallway, Officer Acosta told him to “get back.” Defs.' Reply SUMF 4:21-28. Plaintiff moved a few steps down the hallway, and when out of visual range of Officer Acosta and Decedent, heard the first gunshot. Lam Depo., ECF No. 85-1, at 53:13-18.[4] Plaintiff moved forward to see his son and Officer Acosta, but was again told to “get back.” Defs.' Reply SUMF 8:22-4:5. Plaintiff complied, and then heard a second gunshot. Id. at 8:22-4:5. Plaintiff returned to the hallway and saw Decedent covered in blood and laying on the ground. Lam Depo., ECF No. 85-1, at 53:20-54:3.

         In the hallway, Plaintiff asked Officer Acosta why he shot his son; Officer Acosta responded “[h]e has a knife, ” and showed Plaintiff a “scratch” on the arm sleeve of his police uniform. Id. at 112:23-113:19. Officer Acosta also claims that Decedent attempted to take his gun during the altercation, which Plaintiff denies. Acosta Depo. 107:15-108:2.

         Decedent received medical treatment at the scene from first responders, and was transported to the hospital. Defs.' Reply SUMF 18:9-19. He later succumbed to his wounds. Id.


         The Federal Rules of Civil Procedure provide for summary judgment when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325.

         Rule 56 also allows a court to grant summary judgment on part of a claim or defense, known as partial summary judgment. See Fed.R.Civ.P. 56(a) (“A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought.”); see also Allstate Ins. Co. v. Madan, 889 F.Supp. 374, 378-79 (C.D. Cal. 1995). The standard that applies to a motion for partial summary judgment is the same as that which applies to a motion for summary judgment. See Fed.R.Civ.P. 56(a); State of Cal. ex rel. Cal. Dep't of Toxic Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary judgment standard to motion for summary adjudication).

         In a summary judgment motion, the moving party always bears the initial responsibility of informing the court of the basis for the motion and identifying the portions in the record “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. 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, 586-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).

         In attempting to establish the existence or non-existence of a genuine factual dispute, the party must support its assertion by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits[, ] or declarations . . . or other materials; or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). 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, 251-52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). The opposing party must also demonstrate that the dispute about a material fact “is ‘genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In other words, the judge needs to answer the preliminary question before the evidence is left to the jury of “not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) (emphasis in original). As the Supreme Court explained, “[w]hen the moving party has carried its burden under Rule [56(a)], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Therefore, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Id. 87.

         In resolving a summary judgment motion, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. Nevertheless, 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. Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).


         Plaintiff seeks relief by way of nine state and federal causes of action, all of which are directed at Officer Acosta unless otherwise stated: (1) 42 U.S.C. Section 1983 (“§ 1983”) wrongful death due to excessive force under the Fourth and Fourteenth Amendments; (2) § 1983 right to familial relationship under the Fourteenth Amendment; (3) § 1983 survival action for pain and suffering under the Fourth Amendment; (4) § 1983 municipal liability against the City for unconstitutional customs or policies (“Monell Liability”); (5) wrongful death due to negligence, pursuant to California Civil Procedure Code §§ 377.60 and 377.61; (6) violation of California Civil Code § 52.1 (“Bane Act”); (7) Intentional Infliction of Emotional Distress (“IIED”); (8) Battery; and (9) Negligent Infliction of Emotional Distress (“NIED”). FAC 7-13. Extensive factual questions preclude summary judgment on the majority of Plaintiff's claims.

         A. Federal Causes Of Action

         1. Fourth Amendment Excessive Force (First Cause of Action)

         Defendants move for summary judgment on Plaintiff's first cause of action on the basis that the force used by Officer Acosta against Decedent was reasonable as a matter of law. Defs.' Mem. Supp. Mot., ECF No. 73, at 7:1-10:6. Under the Fourth Amendment, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const. Amend. IV. Excessive force claims are analyzed under the Fourth Amendment's “objective reasonableness” standard. See Graham v. Connor, 490 U.S. 386, 395 (1989); Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003). The crucial inquiry in excessive force cases is whether the force was “objectively reasonable in light of the facts and circumstances confronting [the officers], without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397; Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007).

         Calculating the reasonableness of the force used “requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing government interests at stake.” Graham, 490 U.S. at 396; Blankenhorn, 485 F.3d at 477; Davis v. City of Las Vegas, 478 F.3d 1048, 1054 (9th Cir. 2007). The court “first assess[es] the quantum of force used . . .” then “measure[s] the governmental interests at stake by evaluating a range of factors.” Davis, 478 F.3d at 1054. These factors include, but are not limited to, “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396; Blankenhorn, 485 F.3d at 477; Davis, 478 F.3d at 1054. The overall reasonableness calculus is not limited to these factors, however. “Rather, we 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. 1974)). Reasonableness “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396; Drummond, 343 F.3d at 1058. Thus, “[a] reasonable use of deadly force encompasses a range of conduct, and the availability of less intrusive alternatives will not render conduct unreasonable.” Wilkinson v. Torres, 610 F.3d 546, 551 (9th Cir. 2010). That said, as the Ninth Circuit has observed, “[t]he principle that summary judgment should be granted sparingly in excessive force cases ‘applies with particular force where the only witness other than the officer was killed during the encounter.'” Collender v. City of Brea, 605 F. App'x 624, 627 (9th Cir. 2015) (citing Gonzalez v. City of Anaheim, 747 F.3d 789, 795 (9th Cir. 2014) (en banc)).

         Fact issues preclude the entry of summary judgment on Plaintiff's first cause of action.[5] These factual issues include, but are not limited to: (1) whether Officer Acosta was aware that Decedent suffered from mental illness prior to entering Plaintiff's residence; (2) whether Decedent was armed with scissors at any point; (3) whether Decedent stabbed Officer Acosta with scissors; (4) whether Decedent attempted to take Officer Acosta's gun; and (5) after being shot the first time, whether Decedent continued to pose a threat to Officer Acosta. Defs.' Reply SUMF 3:22-4:6, 9:26-10:6, 17:8-21, 12:4-13:7, 15:9-16:8. Given the numerous critical unresolved factual issues, this Court is unable to evaluate the severity of the crime at issue, whether Officer Acosta or anyone else was in immediate danger, or whether Decedent resisted or attempted to escape arrest. Nor can the Court balance the intrusion upon Decedent's Fourth Amendment rights with the government's interests against this backdrop. Defendants' Motion is thus DENIED as to Plaintiff's Fourth Amendment excessive force/wrongful death claim.[6]

         2. Fourteenth Amendment Right to Familial Relationship ...

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