United States District Court, E.D. California
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.
MEMORANDUM AND ORDER
MORRISON C. ENGLAND UNITED STATES DISTRICT JUDGE
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.
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. As a result, Decedent experienced a
decline in his physical and mental health, which concerned
his family members, including Plaintiff. FAC 4:13-15.
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.
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
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.
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.
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. 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
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. 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.
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.
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.
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.
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
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).
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.
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).
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.
Federal Causes Of Action
Fourth Amendment Excessive Force (First Cause of
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).
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, “ 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; 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)).
issues preclude the entry of summary judgment on
Plaintiff's first cause of action. 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
Fourteenth Amendment Right to Familial Relationship ...