Jeremy Leon Bordegaray v. County of Santa Barbara et al

Filing 109

MINUTES (IN CHAMBERS) - Defendants' Motion to Modify Scheduling Order and Amend Answer 44 ; Defendants' Motion for Summary Judgment 45 by Judge Christina A. Snyder: The Court: (1) GRANTS defendants' motion to modify the scheduling o rder and amend their answer; the Court GRANTS plaintiff ten days to file a supplemental opposition to defendants' motion for summary judgment, based only on the new affirmative defense. (2) DENIES defendants' motion for summary judgment on plaintiff's excessive force claim. (3) GRANTS defendants' motion for summary judgment on plaintiff's claim for failure to provide medical care in the field. (4) GRANTS defendants' motion for summary judgment with respect to plaint iff's Monell liability claim against Sheriff Brown in his official capacity. (5) DENIES defendants' motion for summary judgment on plaintiff's Monell claim to the extent plaintiff bases his Monell claim on an underlying violation of pl aintiff's rights. (6) DENIES defendants' motion for summary judgment on plaintiff's Monell claim to the extent that plaintiff bases his Monell claim on failure to train. (7) GRANTS defendants' motion for summary judgment on plaint iff's Monell claim to the extent that plaintiff bases his Monell claim on ratification. (8) GRANTS defendants' motion for summary judgment on plaintiff's Monell claim to the extent that plaintiff bases his Monell claim on and customs o f excessive force, failure to provide medical care in the field, and covering up misconduct. (9) DENIES defendants' motion for summary judgment on plaintiff's Monell claim to the extent that plaintiff bases his Monell claim on inadequate su pervision, enabling constitutional violations, failure to discipline, deficient hiring, facilitating a code of silence, encouraging officers to believe they can violate persons' rights, and failure to ensure that officers made truthful reports. (10) GRANTS defendants' motion for summary judgment on plaintiff's supervisory liability claim against Calderon. (11) DENIES defendants' motion for summary judgment on plaintiff's supervisory liability claim against Brown. (12) DENIES defendants' motion for summary judgment on plaintiff's battery claim. Court Reporter: Not Present. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

Present: The Honorable 
Catherine Jeang 
Deputy Clerk 

CHRISTINA A. SNYDER 

N/A 

Tape No.

Attorneys Present for Defendants: 

Not Present 
Court Reporter / Recorder

Attorneys Present for Plaintiffs: 
Not Present 
(IN CHAMBERS) Proceedings:  

Not Present 

DEFENDANTS’ MOTION TO MODIFY SCHEDULING
ORDER AND AMEND ANSWER (Dkt. 44, filed September 9,
2016)
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(Dkt. 45, filed September 9, 2016)

I.

INTRODUCTION

On November 11, 2014, plaintiff Jeremy Leon Bordegaray filed a complaint in this
Court against defendants County of Santa Barbara (“County”), City of Carpinteria, the
Santa Barbara County Sheriff’s Office (“SBSO”), Sheriff Bill Brown in his individual
and official capacities, Sergeant Daniel Calderon individually and his capacity as a peace
officer, Deputy Wesley Johnson individually and his capacity as a peace officer, Deputy
Sean Hampton individually and in his capacity as a peace officer, and Does 1–20. Dkt. 1
(“Compl.”). In his complaint, plaintiff alleges: (1) the use of excessive force in violation
of his civil rights pursuant to 42 U.S.C. § 1983; (2) a violation of the California
Constitution, Article 1 § 13; (3) battery; (4) violation of the Bane Act, Cal. Civ. Code §
52.1; (5) false arrest and imprisonment; (6) intentional infliction of emotional distress
(“IIED”); (7) failure to provide medical care by officers in the field in violation of §
1983; (8) conspiracy to interfere with civil rights in violation of 42 U.S.C. § 1985; (9)
policy, custom, and practice in violation of § 1983 (“Monell liability”); (10) supervisory
liability for violations of § 1983; (11) retaliation in violation of § 1983; and (12)
negligence. Id.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

On July 24, 2015, plaintiff filed the operative first amended complaint, dismissing
defendant City of Carpinteria and dismissing the second, fifth, eighth, and eleventh
claims. Dkt. 19 (“FAC”). On August 14, 2015, defendants filed their answer. Dkt. 21.
On September 9, 2016, defendants filed the instant motion to modify the scheduling order
and amend their answer to add an affirmative defense. Dkt. 44 (“MTA”). On September
12, 2016, plaintiff filed his opposition to the motion to amend. Dkt. 49 (“MTA Opp’n”).
On September 30, 2016, defendants filed their reply. Dkt. 58 (“MTA Reply”).
Also on September 9, 2016, defendants filed the instant motion for summary
judgment, or in the alternative, partial summary judgment. Dkts. 45, 48 (“MSJ”), 46. On
September 21, 2016, plaintiff filed his opposition to the motion for summary judgment,
plaintiff’s separate statement of uncontroverted facts, and evidentiary objections. Dkts.
53 (“MSJ Opp’n”), 54, 56. On October 3, 2016, defendants filed their reply to plaintiff’s
opposition, defendants’ evidentiary objections, a response to plaintiff’s evidentiary
objections, and a reply to plaintiff’s separate statement of uncontroverted fact. Dkts. 59
(“MSJ Reply”), 59-21, 59-22, 59-30 (“Reply SUF”).1
II.

BACKGROUND
Except where otherwise noted, the following facts are undisputed.
A.

Plaintiff’s Injuries

On October 6, 2013, at approximately 7:50 pm, SBSO officers were dispatched to
3240 Beach Club Road (“the residence”) on a report of a possible trespasser. Reply SUF
at No. 1. The residence is located at the end of a long driveway. Id. at No. 3. Sergeant
Daniel Calderon, Deputy Wes Johnson, and Deputy Trainee Sean Hampton (collectively,
“the officers”) responded in two marked patrol cars, one of which was Unit 5154 (“Unit
5154”). See id. at Nos. 4–5. Unit 5154 was equipped with a so-called “COBAN in-car
video system,” which was mounted to the right of the Unit’s rearview mirror. Id. at No.
6. Hampton was wearing a COBAN microphone. Id.

1

Error! Main Document Only.Except where otherwise noted in this Order, the
Court does not resolve the parties’ evidentiary objections in making its ruling on the
instant motions.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

Plaintiff’s white truck was parked in the driveway. Id. at No. 12. At about 8:46
pm, the officers encountered plaintiff at the residence and arrested him for criminal
trespass. Id. at Nos. 11, 13. Upon arrest, plaintiff was searched, handcuffed behind his
back, and placed in the back seat of Unit 5154, which was parked in the residence’s
driveway. Id. at Nos. 14, 15. The doors of Unit 5154 were locked, however the key
remained in the ignition with the engine running so that the COBAN system remained
operational. Id. at No. 16. At the time of the arrest, the COBAN audio recorder was
muted. Id. at No. 17. Tow truck driver Roger Wood arrived to tow away plaintiff’s
truck. Id. at No. 18. The officers discovered approximately $1,500 in cash in plaintiff’s
truck. Id. at No. 19. In the residence, the officers found a loaded gun with the serial
number scratched off, numerous cell phones, and indicia of drug sales.2 Id. at No. 20.
At approximately 9:35 pm, Calderon went inside the residence to check on
Hampton and Johnson’s progress in conducting the investigation. See id. at No. 22.
While standing outside the residence, Wood saw that plaintiff had moved his handcuffs––
which were still intact––to the front of his body and was climbing into the front seat of
the Unit. Id. at Nos. 23, 24. Plaintiff drove Unit 5154 in reverse down the driveway. Id.
at No. 28. The officers ran from the residence in pursuit of plaintiff, shouting “Stop!” Id.
at No. 29. While running, Johnson radioed for backup and drew his firearm. Id. at No.
30. The plaintiff drove in reverse, and, at the end of the driveway, turned Unit 5154 onto
the paved roadway of Beach Club Road. Id. at No. 32. Calderon ran 61 feet from the
residence to the end of the driveway, and reached Unit 5154. Id. at No. 54. Calderon’s
movements were not captured on video due to the positioning of the camera. See id. at

2

Error! Main Document Only.Plaintiff objects to this evidence as irrelevant,
hearsay, and lacking foundation. Dkt. 56 at 3; Fed. R. Evid. 401, 801, 802. The Court
disagrees and finds this evidence admissible. This evidence is relevant because it bears
on the severity of the crime at issue, which is a factor the jury must evaluate when
determining plaintiff’s excessive force claim. See infra Part IV.1.a.ii. The evidence is
neither hearsay nor lacking foundation, because it is the officers’ testimony as to what
they personally and directly observed during their investigation of the house. See Dkt.
45-3 (“Calderon Decl.”) ¶¶ 9–10; Dkt. 45-5 (“Hampton Decl.”) ¶ 13; Dkt. 45-6 (“Johnson
Decl.”) ¶ 11.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

No. 37. Calderon was so close to the car that he could have reached out and touched it.
Id. at No. 92. Johnson stopped in the driveway, behind Calderon. Id. at No. 38.
Calderon drew his gun. Id. at No. 40.
The parties dispute the sequence of the events that followed, but at some point
plaintiff stopped the car for less than two seconds to shift from reverse into forward gear
and Calderon fired five shots in the direction of Unit 5154. Id. at Nos. 33, 44, 46. In
essence, the parties dispute whether plaintiff was driving toward Calderon, placing
Calderon and others at imminent risk. Defendants aver that Calderon reached Unit 5154
just as plaintiff stopped to shift gears from reverse into forward drive. Id. at No. 35.
Defendants further aver that Calderon was in front of Unit 5154. See id. at No. 36.
Defendants allege that when Calderon drew his gun, plaintiff looked right at Calderon, hit
the gas, revved the engine, and that Unit 5154 “lurched forward.” Id. at Nos. 40, 41.
Defendants further allege that when Unit 5154 “lurched forward,” the Unit’s front tires
were still turned toward the driveway, where Calderon was standing. Id. at No. 42.
Defendants contend that Unit 5154 was “moving forward and to the left” when Calderon
fired his gun. Id. at No. 44. Plaintiff, on the other hand, alleges that Calderon was
standing to the side, not in front, of Unit 5154. MSJ Opp’n at 5. Plaintiff avers that he
remembers being shot in the left arm as he was moving his hands to shift the gear into
drive, but is unsure whether he was able to get the Unit into drive. See Reply SUF at
Nos. 34, 35. Plaintiff disputes that Unit 5154 “lurched forward” and contends that
plaintiff was, instead, “taking off”––that is, leaving–– when Calderon fired the shots. See
id. at No. 41.
Plaintiff was struck by two of the five bullets: one in the arm and one in the
abdominal area. Id. at No. 49. After plaintiff was struck, the Unit moved forward
approximately 28 feet in 2.5 seconds and collided with Wood’s tow truck, parked on
Beach Club Road. See id. at No. 51. Senior Criminologist David Barber was able to
document the trajectories of four of the five bullets.3 Id. at No. 47. His report indicates

3

Plaintiff filed evidentiary objections, arguing, inter alia, that Barber’s report is
hearsay pursuant to Federal Rules of Evidence 801–803, because it lacks an
accompanying declaration by Barber, authenticating the report. Dkts. 56 at 4. The Court
finds that the report is admissible under an exception to the rule against hearsay because

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

that of these, one bullet traveled through the front driver door window, “straight across
the vehicle from left to right.” See id. The other three bullets entered into the driver’s
side rear door and were fired from the left side of the vehicle toward the front left
(driver’s) area. Id.
B.

Plaintiff’s Medical Care

After Unit 5154 crashed into the tow truck, Calderon radioed for medics to respond
“Code 3,” i.e., with lights and sirens. Id. at No. 55. The officers then removed plaintiff
from Unit 5154 and placed him supine on the ground. Id. at No. 57. It was determined
that plaintiff had a pulse and was breathing. Id. Calderon retrieved the automatic
external defibrillator (“AED”) from the Unit’s trunk and turned it on. Id. at No. 58.
Deputies Watkins, Baisa, and Springer arrived at the scene. Id. at No. 59. Watkins’s
patrol car was also equipped with a COBAN camera and recorded the officers’
interactions with plaintiff. Id. at No. 60. The AED detected no shockable hearth rhythm
and then prompted “It is now safe to touch the patient. Start CPR.” Id. at No. 61. It was
decided that CPR was not appropriate, because plaintiff was still breathing and had a
pulse. Id. at No. 62. Medics arrived on the scene within eight minutes of Calderon’s
radio call. Id. at No. 67. The medics determined that plaintiff’s breathing was
inadequate and administered CPR. Id. at No. 68.
Plaintiff avers that as direct and proximate result of the gunshot wounds caused or
facilitated by the officers, plaintiff lost 80 percent of his intestines, as well as 40
centimeters of his colon. FAC ¶ 43. Since the shooting, plaintiff has had to use a
colostomy bag. Id. Plaintiff’s physical injuries have also led to infections, which
resulted in multiple surgeries. Id. Plaintiff avers that the surgeries left scarring on
plaintiff’s abdominal region. Id. Moreover, plaintiff alleges that he lost over 70 pounds
of his body weight and suffered extreme emotional distress, fear, trauma, and
humiliation. Id.

it is a public record of the State of California, Department of Justice setting out factual
findings from a legally authorized investigation and Plaintiff makes no showing that the
source of information or other circumstances indicate a lack of trustworthiness. Fed. R.
Evid. 803(8). 

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

C.

Court Proceedings and Internal Investigation

On May 21, 2014, plaintiff pleaded no contest to resisting, delaying, or obstructing
a peace officer in violation of California Penal Code § 148(a)(1), a misdemeanor; and
pleaded guilty to: unlawful driving or taking of a vehicle in violation of California
Vehicle Code § 10851(a), a felony; possession of a controlled substance with firearm in
violation of California Health & Safety Code § 11370.1, a felony; unauthorized entry of a
dwelling house in violation of California Penal Code § 602.5(a), a misdemeanor. See
Reply SUF at No. 73.4 Pursuant to SBSO Policy, the SBSO conducted an internal
investigation to determine Calderon’s conformance with SBSO policy. Id. at No. 86.
The Use of Deadly Force Review Board (“Review Board”) found, based on the results of
the internal investigation, that Calderon did not violate SBSO policy and procedure. Id.
at Nos. 89, 90. Sheriff Brown attended the presentation of the internal investigation’s
findings regarding Calderon’s use of deadly force, but did not attend the Review Board’s
deliberations. Dkt. 45-2 (“Brown Decl.”) ¶ 22. He subsequently received a one-page

4

Plaintiff asserts two objections to the admissibility of his guilty pleas. First,
plaintiff contends that these pleas are irrelevant or unfairly prejudicial, citing Federal
Rules of Evidence 401–403. Dkt. 56 at 5. Second, plaintiff argues that plaintiff’s pleas
to the misdemeanors are inadmissible pursuant to Federal Rule of Evidence 609. Dkt. 56
at 5.
The Court concludes that plaintiff’s misdemeanor and felony pleas are irrelevant to
the determination of whether Calderon used reasonable force because Calderon could not
have known of these pleas at the time of the incident. The guilty pleas are therefore
inadmissible for the purpose of determining whether Calderon’s force was reasonable.
The Court finds that plaintiff’s misdemeanor pleas are also inadmissible for impeachment
purposes because plaintiff’s misdemeanors do not involve dishonesty or false statements.
See Medrano v. City of Los Angeles, 973 F.2d 1499, 1507 (9th Cir. 1992); Fed. R. Evid.
609(a)(2).
However, plaintiff’s felony pleas are admissible to support defendants affirmative
defense under California Civil Code § 3333.3. See infra Part III.B., Part IV.B.5.d. n.13.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

memorandum of the Review Board’s findings, reviewed them, and took no further action.
Id. at ¶ 23.
III.

DEFENDANTS’ REQUEST TO AMEND PLEADINGS
A.

Legal Standard for Amending Pleadings

The decision whether to grant leave to amend pursuant to Rule 15(a) “is entrusted
to the sound discretion of the trial court.” Jordan v. Cnty. of Los Angeles, 669 F.2d
1311, 1324 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982). “Five factors
are taken into account to assess the propriety of a motion for leave to amend: bad faith,
undue delay, prejudice to the opposing party, futility of amendment, and whether the
plaintiff has previously amended the complaint.” Johnson v. Buckley, 356 F.3d 1067,
1077 (9th Cir. 2004). Of these factors, prejudice to the opposing party is the most critical
in determining whether to grant leave to amend. Eminence Capital, LLC v. Aspeon, Inc.,
316 F.3d 1048, 1052 (9th Cir. 2003).
Here, the Court had set a deadline of February 5, 2016, for amending pleadings.
Dkt. 25. Therefore, in addition to satisfying Rule 15(a), defendants must also
demonstrate “good cause” for amendment under Rule 16. Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). “Rule 16(b)’s ‘good cause’
standard primarily considers the diligence of the party seeking the amendment.” Id.
Nonetheless, the district court has “broad discretion in supervising the pretrial phase of
litigation.” Id. at 607 (citation omitted).
B.

Defendants’ Request to Amend their Answer

Defendants seek to modify the scheduling order in order to amend their answer to
add an affirmative defense pursuant to California Civil Code § 3333.3. Section 3333.3
states: “In any action for damages based on negligence, a person may not recover any
damages if the plaintiff’s injuries were in any way proximately caused by the plaintiff’s
commission of any felony, or immediate flight therefrom, and the plaintiff has been duly
convicted of that felony.” Cal. Civ. Code § 3333.3. Defendants aver that they were

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

unaware of this statute when they filed their answer and as a result did not assert this
affirmative defense in response to plaintiff’s claim of negligence. MTA at 1.
Defendants bring the instant motion more than a year after filing their answer.
However, the Court has “broad discretion” to allow the amendment. See Johnson, 975
F.2d at 607. The Court notes that “the underlying purpose” of a motion to amend is “to
facilitate decision on the merits, rather than on the pleadings or technicalities.” United
States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981) (citing Conley v. Gibson, 355 U.S. 41,
47–48,(1957)). “When refusal to allow modification might result in injustice, while
allowing the modification would cause no substantial injury to the opponent and no more
than slight inconvenience to the court, modification should be allowed.” Lavin v. United
Tech. Corp., 2014 WL 4402244, at *3 (C.D. Cal. Sept 5, 2014) (citing United States v.
First Nat. Bank of Circle, 652 F.2d 882, 887 (9th Cir. 1981)).
Plaintiff argues that the amendment is untimely and prejudicial because “discovery
has already been cut off and the ability of plaintiff to frame questions both through
written discovery and at deposition as to this proposed affirmative defense does not exist
any longer.” MTA Opp’n at 2. The Court finds this argument unpersuasive. Though
defendants’ motion “has come relatively late in the game, delay alone is normally an
insufficient reason to deny leave to amend.” Lennar Mare Island, LLC v. Steadfast Ins.
Co., 2015 WL 4910468, at *10 (E.D. Cal. Aug. 17, 2015); see also United States v. Pend
Oreille Pub. Util. Dist. No. 1, 926 F.2d 1502, 1511 (9th Cir. 1991). A defense based on
§ 3333.3 requires defendants to prove that plaintiff was convicted of the felony he was
committing or fleeing from when he was injured. Since plaintiff has pleaded guilty to the
felony that he committed when he was injured, plaintiff is not confronted with new facts
in the wake of defendants’ amendment. See Citizens Ins. Co. of the Midwest v. LG
Elec., USA, Inc., 2013 WL 2160757, at *1 (S.D. Ind. May 17, 2013) (granting motion to
modify scheduling order an add affirmative defenses because the “defenses do not appear
on their face to require additional discovery, and [the opposing party] does not detail
what additional discovery it would need.”); Developers Sur. and Indem. Co. v. Network
Elec., Inc., 2013 WL 2948948, at *3 (D. Utah June 14, 2013) (“[T]he Court finds that
because Defendants’ motion only seeks to add affirmative defenses, as opposed to more
discovery-intensive claims that raise significant, new factual issues, prejudice to
Plaintiffs, if any, does not prohibit amendment.”). While the amendment comes after the

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

discovery cutoff, plaintiff was aware of defendants’ affirmative defenses of contributory
negligence and assumption of risk, both of which are conceptually similar to § 3333.3,
from defendants’ initial answer. Nonetheless, the Court GRANTS plaintiff ten (10) days
to file a supplemental opposition to defendants’ motion for summary judgment, based
only on the new affirmative defense. See infra Part IV.B.5.d. Therefore, the Court
concludes that defendants’ amendment will not prejudice or delay the proceedings.5
For the foregoing reasons, the court GRANTS defendants’ motion to amend.
IV.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
A.

Legal Standard for Summary Judgment

Summary judgment is appropriate where “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). The moving party bears the initial burden of identifying relevant portions of the
record that demonstrate the absence of a fact or facts necessary for one or more essential
elements of each claim upon which the moving party seeks judgment. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its initial burden, the
opposing party must then set out specific facts showing a genuine issue for trial in order
to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see
also Fed. R. Civ. P. 56(c), (e). The nonmoving party must not simply rely on the
pleadings and must do more than make “conclusory allegations [in] an affidavit.” Lujan
v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990). When deciding a motion for summary
judgment, “the inferences to be drawn from the underlying facts . . . must be viewed in
the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted); Valley Nat’l Bank of
Ariz. v. A.E. Rouse & Co., 121 F.3d 1332, 1335 (9th Cir. 1997). However, if the
nonmoving party “fails to make a 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

5

Plaintiff does not allege that defendants make the instant motion to amend in bad
faith or that the amendment would be futile. In addition, defendants have not previously
moved to amend their answer.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

proof at trial” summary judgment must be granted. Celotex, 477 U.S. at 322. The
moving party prevails when a rational trier of fact would not be able to find for the
nonmoving party on the claims at issue. See Matsushita, 475 U.S. at 587.
B.

Defendants’ Motion for Summary Judgment

Defendants move for summary judgment on plaintiff’s claims for (1) excessive
force; (2) failure to provide medical care by officers in the field; (3) Monell liability
claim; (4) supervisory liability; (5) battery; (6) Bane Act violations; (7) IIED; and (8)
negligence.
1.

Section 1983 Excessive Force Claim against Calderon

Section 1983 provides for a cause of action against a person who, acting under
color of state law, deprives another of rights guaranteed under the U.S. Constitution. “To
prove a case under section 1983, the plaintiff must demonstrate that (1) the action
occurred ‘under color of state law’ and (2) the action resulted in the deprivation of a
constitutional right or federal statutory right.” Jones v. Williams, 297 F.3d 930, 934 (9th
Cir. 2002). Defendants make two arguments: first, defendants contend that Calderon’s
use of deadly force was objectively reasonable; second, defendants contend that even if
Calderon’s use of force was excessive, he is entitled to qualified immunity. The Court
addresses these arguments in turn.
a.

Objectively Reasonable Use of Force

Defendants first argue that plaintiff’s excessive force claim against Calderon
cannot not withstand summary judgment because Calderon’s use of deadly force was
objectively reasonable under the Fourth Amendment. MSJ at 7–10.
An excessive force claim is analyzed under the Fourth Amendment. Graham v.
Connor, 490 U.S. 386, 395 (1989). Reasonableness of force is assessed from the
perspective of a reasonable officer at the scene. Id. The relevant inquiry is whether
officers’ actions are “objectively reasonable in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” Id. at 397

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

(quotation marks and citation omitted). “The calculus of reasonableness must embody
allowance for the fact that police officers are often forced to make split-second
judgments––in circumstances that are tense, uncertain, and rapidly evolving––about the
amount of force that is necessary in a particular situation.” Id. at 396–97. However, “it
is equally true that even where some force is justified, the amount actually used may be
excessive.” Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002).
Courts apply a balancing test to determine whether force used is reasonable.
Graham, 490 U.S. at 396. First, courts must assess the severity of the intrusion on the
individual’s Fourth Amendment rights “by evaluating the type and amount of force
inflicted.” Miller v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003). Here, defendants do
not dispute plaintiff’s assertion that Calderon’s use of deadly force was a severe
intrusion. Furthermore, the Ninth Circuit has held that, in some circumstances, merely
pointing a gun at someone may constitute excessive force. See Tekle v. United States,
511 F.3d 839, 845 (9th Cir. 2006). Thus, a reasonable jury could find that firing a gun
five times at close range is a severe intrusion.
Second, courts must evaluate the countervailing governmental interests by looking
at (a) whether the suspect was actively resisting or attempting to evade arrest by flight;
(b) the severity of the crime at issue; and (c) whether the suspect posed an immediate
threat to the safety of the officers or others. Lal, 746 F.3d at 1117. This list is not
exhaustive and courts also consider whether the officer warned the suspect prior to use of
force, Bryan v. MacPherson, 630 F.3d 805, 831 (9th Cir. 2010); the parties’ relative
culpability, Espinosa v. City & Cnty. of San Francisco, 598 F.3d 528, 537 (9th Cir.
2010); and “whether there were less intrusive means of force that might have been used.”
Glenn v. Washington Cnty., 673 F.3d 864, 876 (9th Cir. 2011). Nonetheless, the “most
important” factor is whether the suspect posed an “immediate threat to the safety of the
officers or others.” Bryan, 630 F.3d at 826. “Where the suspect poses no immediate
threat to the officer and no threat to others, the harm resulting from failing to apprehend
him does not justify the use of deadly force to do so.” Tennessee v. Garner, 471 U.S. 1,
11 (1985).
Here, it is undisputed that plaintiff resisted arrest by flight. Thus, the first factor in
evaluating countervailing governmental interests weighs in favor of the defendants. With

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

respect to the severity of the crime, at the time Calderon shot plaintiff, he had reason to
charge plaintiff with unlawfully taking a vehicle, trespassing, resisting and delaying a
peace officer (i.e., by fleeing), and possession of a controlled substance with firearm. See
Reply SUF at No. 73. However, the Ninth Circuit has indicated that a crime’s “severity”
in the excessive force context turns on whether it involves violence or an armed suspect.
See Chew v. Gates, 27 F.3d 1432, 1442 & n.9 (9th Cir. 1994); see also Davis v. City of
Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007) (noting that trespassing and obstructing a
police officer were not severe crimes); Smith v. City of Hemet, 394 F.3d 689, 702 (9th
Cir. 2005) (concluding that a suspect was not “particularly dangerous” and his offense
was not “especially egregious” where his wife had “called 911 to report that her husband
‘was hitting her and/or was physical with her,’ [and] that he had grabbed her breast very
hard”). The crimes at issue did not involve the use of violence. At the time plaintiff was
shot, he was handcuffed, was not physically resisting the arresting officers, and was
unarmed. Therefore, the severity factor weighs in favor of plaintiff.
Most importantly, a reasonable jury could find that plaintiff did not pose an
immediate threat to Calderon or others. Courts have denied motions for summary
judgment on Fourth Amendment claims where (1) there were disputed facts regarding
whether the shooting officer was in the path or in close proximity to the projected path of
the approaching vehicle when the officer opened fire; and (2) the evidence did not
suggest that fellow officers or other innocent bystanders were at immediate risk. Rico v.
Cnty. of San Diego, 2013 WL 3149480, at *8 (S.D. Cal. June 18, 2013) (citing cases).
For instance, in Rico, an officer shot a suspect driving a vehicle. Id. at *3–4. When the
suspect filed a § 1983 claim alleging excessive force, the shooting officer filed a motion
for summary judgment. Id. at *1. The Rico court found that the “key dispute” was where
the officer was located in relation to the defendant’s moving vehicle. Id. at *7. If the
officer was in the open as the defendant accelerated in his general direction, a jury could
find that the officer’s actions were reasonable. Id. However, plaintiff asserted that the
officer was not in imminent danger when he began firing, because he was not in the path
of the defendant’s car, which, by that point, was turning away from the officer. Id.
Viewing the evidence in the light most favorable to the nonmoving party, the Rico court
could not conclude that the officer’s use of deadly force was reasonable as a matter of
law. Id. at *10. Accordingly, the Rico court denied defendant’s motion for summary
judgment on plaintiff’s excessive force claim. Id. at *11. The Rico court also found that

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

the officer was not entitled to qualified immunity as a matter of law because, under the
plaintiffs’ version of events, no reasonable officer would have perceived an immediate
threat and therefore no reasonable officer would have believed his use of deadly force
was lawful. Id. at *12.
Here, the parties dispute the contextual details surrounding plaintiff’s use of Unit
5154. Defendants allege that plaintiff revved the engine while the wheels of the Unit
were still turned towards the driveway, where Calderon––and, allegedly, Johnson––
stood. MSJ at 3; MSJ Reply at 4; Johnson Decl. ¶ 19. Specifically, defendants aver that
Calderon was at the left front fender, at a 45 degree angle to plaintiff. Calderon Decl.
¶15; Johnson Decl. ¶ 17. Defendants further allege that plaintiff “looked right at Sgt.
Calderon and hit the gas” and that Calderon saw Unit 5154 “lurch forward” towards the
driveway. MSJ at 3; Calderon Decl. ¶¶15, 17–18; Hampton Decl. ¶¶ 18–19; Johnson
Decl. ¶ 19. Defendants contend that Calderon fired at plaintiff as plaintiff was
accelerating forward. Calderon Decl. ¶¶ 18–19; Hampton Decl. ¶¶ 18–19; Johnson Decl.
¶¶ 19, 21. Plaintiff, on the other hand, avers that Calderon was standing to the side of
Unit 5154 and not at the front, when he fired at plaintiff. MSJ Opp’n at 5. Plaintiff
further avers that plaintiff was not moving Unit 5154 forward when he was shot; rather
plaintiff contends he was shot as he was moving his hands to shift the gear into drive.
See MSJ Opp’n Ex. D (“Bordegaray Depo.”) at 143–145; 148:1–6, 19–22. The COBAN
footage from Unit 5154 shows the trajectory of the Unit but does not show the
positioning of Calderon (or Johnson) at the moment he used force and does not capture
plaintiff on video or audio. See MSJ Ex. 2. Whether plaintiff posed an imminent threat
effectively turns on whether plaintiff drove the car at Calderon. There is a genuine issue
of material fact as to whether plaintiff was an immediate threat. As such, the most
important factor in evaluating countervailing governmental interests, weighs in favor of
plaintiff. See Bryan, 630 F.3d at 826.
The third step in the balancing test that determines whether force used is
reasonable, is balancing the severity of the intrusion against the countervailing
governmental interests. Santos, 287 F.3d at 854. Here, the countervailing governmental
interests do not support the amount of force used. Although plaintiff resisted arrest, his
crimes were not violent and there is a factual dispute as to whether plaintiff posed an

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

immediate threat. Therefore, the Court cannot conclude that Calderon did not use
excessive force as a matter of law.
b.

Qualified Immunity

Defendants also argue that summary judgment is appropriate as to plaintiff’s §
1983 claim because even if Calderon’s use of force was excessive, he is entitled to
qualified immunity. MSJ at 10–11.
Qualified immunity protects government officials “from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). This privilege protects officers in the “hazy border between excessive
and acceptable force.” Saucier v. Katz, 533 F.3d 194, 206 (2001). Qualified immunity
balances “the need to hold public officials accountable when they exercise power
irresponsibly” against “the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Pearson v. Callahan, 129 S.Ct. 808,
815 (2009). In Saucier, the Supreme Court set out a two-prong inquiry for denying
qualified immunity, though either prong may be considered first. See id., at 818. First,
the plaintiff’s alleged facts must make out a violation of a constitutional right. Saucier,
533 F.3d at 201. Second, if a constitutional violation is present, the right at issue must
have been “clearly established” at the time of defendant’s alleged misconduct. Id. 8.
At the time of the incident, it was “clearly established” that “[w]here the suspect
poses no immediate threat to the officer and no threat to others, the harm resulting from
failing to apprehend him does not justify the use of deadly force to do so.” Garner, 471
U.S. at 11. As discussed above, viewing the facts in the light most favorable to plaintiff,
a jury could find that a reasonable officer in Calderon’s position would not have believed
that he or anyone else was in imminent danger and, thus, would have understood that his
use of deadly force violated plaintiff’s Fourth Amendment right. Therefore, Calderon is
not entitled to qualified immunity as a matter of law.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

c.

Summary

The Ninth Circuit has articulated that “in police misconduct cases, summary
judgment should only be granted ‘sparingly’ because such cases often turn on credibility
determinations by a jury.” Espinosa, 598 F.3d at 537. Here, the Court finds that there is
a genuine issue of material fact as to whether Calderon used excessive force and whether
Calderon is entitled to qualified immunity. Therefore, the Court DENIES defendants’
motion for summary judgement on plaintiff’s excessive force claim.
2.

Section 1983 Claim of Failure to Provide Medical Care by
Officers in the Field against Calderon, Johnson, and Hamilton

Defendants argue that plaintiff’s claim for failure to provide medical care, also
pursuant to § 1983, cannot withstand summary judgment because Calderon’s “Code 3”
radio call to the medics met the Fourth Amendment requirements. MSJ at 11.
Peace officers must provide medical care to persons who have been injured while
being apprehended. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).
“The Ninth Circuit analyzes claims regarding deficient medical care during and
immediately following an arrest under the Fourth Amendment.” Mejia v. City of San
Bernardino, 2012 WL 1079341, at *5 (C.D. Cal. Mar. 30, 2012) (citing Tatum v. City &
Cnty. of San Francisco, 441 F.3d 1090, 1098–99 (9th Cir. 2006) (explaining that while
the Supreme Court has analyzed such claims under the Due Process Clause of the
Fourteenth Amendment in the past, it appears that the Fourth Amendment is the proper
authority following the decision in Graham v. Connor, 490 U.S. 386 (1989))).6 The
Fourth Amendment requires that law enforcement officers provide objectively reasonable
post-arrest care to an arrestee. Tatum, 441 F.3d at 1099. An officer fulfills this
obligation by promptly summoning the necessary medical help or taking the injured

6

In his opposition, plaintiff argues that the Eighth Amendment standard for denial
of medical care to a prisoner should apply to his claim of failure to provide medical care
to a suspect in custody. See MSJ Opp’n at 16–20. The Court finds plaintiff’s argument
unpersuasive, as it contradicts clear Ninth Circuit precedent that evaluates §1983 claims
of failure to provide medical care to a suspect in custody under the Fourth Amendment.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

detainee to a hospital. Id. A police officer who promptly summons the necessary
medical assistance has acted reasonably for purposes of the Fourth Amendment, even if
the officer did not administer CPR. Tatum, 441 F.3d at 1099 (“Here, the officers
promptly requested medical assistance, and the Constitution required them to do no more.
. . . We hold that it was objectively reasonable for Officers Smith and Chan to request an
ambulance for Fullard, rather than performing CPR themselves”); see also Maddox v.
City of Los Angeles, 792 F.2d 1408, 1415 (9th Cir. 1986) (“We have found no authority
suggesting that the due process clause establishes an affirmative duty on the part of police
officers to render CPR in any and all circumstances.”). “[T]he critical inquiry is not
whether the officers did all that they could have done, but whether they did all that the
Fourth Amendment requires.” Tatum, 441 F.3d at 1099.
In this case, Calderon promptly called for medical assistance. Reply SUF at No.
55. The officers checked plaintiff’s pulse and determined that he was breathing. Id. at
No. 57. Furthermore, the officers employed an AED machine while waiting for the
medics. Id. at No. 58. The officers chose not to follow the machine’s instructions to
administer CPR because it was determined that plaintiff was still breathing and had a
pulse. Id. at No. 62. However, Hamilton continued to monitor plaintiff’s condition until
the medics arrived. Id. That the officers did not administer CPR themselves does not
violate the Fourth Amendment because they already summoned the necessary medical
assistance. Therefore, plaintiff’s claim for failure to provide medical treatment fails as a
7

7

In his response to defendants’ statement of uncontroverted facts, plaintiff argues
that the lack of audio in the COBAN video makes it unclear whether Calderon’s call to
the medics was “immediate.” See Reply SUF at No. 55. Nonetheless, plaintiff’s FAC
and opposition to the summary judgment motion is based on the argument that the
officers should have administered CPR rather than wait for the medics; plaintiff does not
allege that the failure to provide medical care in the field stems from a delay in
summoning medical help. In addition, waiting even as long as ten to fifteen minutes
before summoning medical help may still be objectively reasonable care under the Fourth
Amendment. See Manni v. City of San Diego, 2013 WL 6159317, at *6 (S.D. Cal. Nov.
25, 2013).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

matter of law.8 For these reasons, the Court GRANTS defendants’ motion for summary
judgment on plaintiff’s § 1983 claim for failure to provide medical care in the field.
3.

Monell Liability Claim against the County, the SBSO, and Sheriff
Brown in his Official Capacity

Local government entities may be sued directly under § 1983 when their policies
or customs are the moving force behind a constitutional violation. Monell v. Dep’t of
Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978).
In his FAC, plaintiff alleges that the County, the SBSO, Sheriff Brown, and the
Doe defendants are liable under Monell. FAC ¶¶ 87–96. Plaintiff pleads the following
bases for Monell liability: (1) inadequate training; (2) ratification of a subordinate’s
unconstitutional conduct; (3) general policies of excessive force, failing to provide
medical care in the field, and covering up misconduct with lies; (4) inadequate
supervision; (5) enabling constitutional violations; (6) failure to discipline; (7) deficient
hiring; (8) facilitating a code of silence; (9) encouraging officers to believe they can
violate persons’ rights; (10) failure to ensure that officers made truthful reports.9 Id.

8

Defendants also argue that summary judgment is appropriate because the officers
are entitled to qualified immunity. Because the Court grants defendants’ motion based on
the argument that defendants’ call for medical assistance fulfilled their Fourth
Amendment obligation, the Court need not consider defendants’ qualified immunity
argument in its ruling.
9
In his opposition, plaintiff focuses only on the ratification theory of liability.
However, the Court address all of the theories plaintiff puts forth in his FAC. See MSJ
Opp’n at 20–26; see also Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993)
(“Under Federal Rule of Civil Procedure 56, a moving party is entitled to summary
judgment only upon a showing that there are no genuine issues of material fact requiring
a trial. The party opposing the motion is under no obligation to offer affidavits or any
other materials in support of its opposition. Summary judgment may be resisted and
must be denied on no other grounds than that the movant has failed to meet its burden of
demonstrating the absence of triable issues. A local rule that requires the entry of
summary judgment simply because no papers opposing the motion are filed or served,

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Page 17 of 31 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

In their motion for summary judgment, defendants first contend that Monell claims
against Sheriff Brown and the SBSO should be dismissed. MSJ at 14 n.1. Defendants
then argue that plaintiff’s Monell liability claim fails as a matter of law because: (1)
plaintiff cannot prove any of the underlying violations of plaintiff’s rights; (2) no
evidence supports a finding of failure to train; (3) Sheriff Brown did not ratify Calderon’s
alleged use of excessive force; and (4) there is no evidence of policies or customs of
excessive force, denial of medical care in the field, of covering up misconduct with lies.
Id. at 14–18. Defendants further argue that plaintiff’s remaining bases for Monell
liability also fail as a matter of law. See Reply SUF at Nos. 74–77, 79–80, 82. The Court
addresses defendants’ arguments in turn.
a.

Defendants in the Monell Claim

Defendants argue that Sheriff Brown in his official capacity, is a redundant
defendant because plaintiff has already named the County as a defendant. MSJ at 14 n.1.
An “official-capacity suit is, in all respects other than name, to be treated as a suit against
the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985); Larez v. City of Los
Angeles, 946 F.2d 630, 646 (9th Cir. 1991). Such a suit “is not a suit against the official
personally, for the real party in interest is the entity.” Graham, 473 U.S. at 166. Officialcapacity claims are “another way of pleading an action against an entity of which an
officer is an agent.” Hafter v. Melo, 502 U.S. 21, 25 (1991) (quoting Monell, 436 U.S. at
691). “If a government entity is named as a defendant, it is not only unnecessary and
redundant to name individual officers in their official capacity, but also improper.” Talib
v. Guerrero, 2015 WL 7428511, at *5 (C.D. Cal. Nov. 20, 2015) (citing Ctr. for Bio–
Ethical Reform, Inc. v. Los Angeles Cnty. Sheriff Dep’t, 533 F.3d 780, 799 (9th Cir.
2008)). Accordingly, the Court GRANTS defendants’ motion for summary judgment
with respect to plaintiff’s Monell liability claims against Sheriff Brown in his official
capacity.10

and without regard to whether genuine issues of material fact exist, would be inconsistent
with Rule 56 . . . .”).
10
However, the Court concludes that there is a genuine issue of material fact with
respect to Brown’s individual liability as a supervisor, infra Part IV.4.b.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

Defendants also request that the Court dismiss the SBSO from this suit because the
SBSO is not a “person” within the meaning of § 1983. Id. However, in the Ninth
Circuit, a sheriff’s department or a police department may be liable as a separate entity
under § 1983. Streit v. Cnty. of Los Angeles, 236 F.3d 552, 565 (9th Cir. 2001).
Accordingly, the Court concludes that the SBSO is a proper party to this case and
DECLINES TO DISMISS the SBSO from this lawsuit.
b.

Underlying Violations of Plaintiff’s Rights

Defendants argue that the County and the SBSO cannot be held liable under
Monell because plaintiff cannot prove any of the underlying violations of plaintiff’s
rights. However, the Court has already concluded that there is a dispute of fact as to
whether Calderon used excessive force, which is an underlying violation that may be the
basis for Monell liability. See supra Part IV.B.1.a. Therefore, the Court DENIES
defendants’ motion for summary judgment on plaintiff’s Monell claim to the extent
plaintiff bases his Monell claim on an underlying violation of plaintiff’s rights.
c.

Inadequate Training

Inadequacy of police training may serve as a basis for § 1983 municipal liability
only where failure to train amounts to deliberate indifference to rights of persons with
whom police come into contact.11 City of Canton v. Harris, 489 U.S. 378, 389 (1989).
To prevail, the plaintiff must establish all four of the following. First, the plaintiff must
show that the training is inadequate. See id. at 390. The adequacy of the training
program must be examined in relation to the tasks the particular officers must perform.
Id. “That a particular officer may be unsatisfactorily trained will not alone suffice to
fasten liability . . . for the officer’s shortcomings may have resulted from factors other
than a faulty training program.” Id. 390–91. Second, after the plaintiff establishes
inadequacy of training, he must still demonstrate that the failure to train is a “policy;”
merely alleging that the existing training program for a class of employees, such as police

11

Since this Court grants defendants’ motion for summary judgment on plaintiff’s
claim of failure to provide medical care in the field, the Court limits its analysis to failure
to train on the use of excessive force. See supra Part IV.B.2. 

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Page 19 of 31 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

officers, represents a policy for which the County is responsible is not enough to establish
Monell liability. Id. at 389. Third, the plaintiff must show a causal link between the
policy of failure to train and the violation of constitutional rights. Id. at 379, 391.
Fourth, the plaintiff must show that the municipal policy of inadequate training is adhered
to with deliberate indifference to constitutional rights. See id. at 379. A plaintiff can
show “deliberate indifference” if he can establish that “the facts available to [municipal]
policymakers put them on actual or constructive notice that the particular omission is
substantially certain to result in the violation of the constitutional rights of their citizens .
. . .” Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016) (quotation
marks and citation omitted).
In their motion for summary judgment, defendants argue that plaintiff does not
raise a dispute of fact regarding failure to train. In support of their motion, defendants
submit Sheriff Brown’s declaration, which states only that officers were “regularly
trained” in “the training requirements set by the California Commission on Peace Officer
Standards and Training” and trained “in a manner and method that prevents the
deprivation of citizens’ constitutional rights . . . .” See Brown Decl. ¶¶ 8–12. The Court
finds that this conclusory declaration does not satisfy defendants’ burden on summary
judgment. Plaintiff presents facts that support his allegation of excessive force, including
the fact that when Calderon shot plaintiff, Calderon was not in the path of the vehicle
plaintiff was driving. Therefore, a reasonable jury could find that the County failed to
train its officers on use of excessive force and hold it liable under Monell. Accordingly,
to the extent that plaintiff bases his Monell claim on the County and the SBSO’s failure
to train, the Court DENIES defendants’ motion for summary judgment.
d.

Ratification of a Subordinate’s Misconduct

Under the ratification theory of Monell liability, “[i]f the authorized policymakers
approve a subordinate’s decision and the basis for it, their ratification would be
chargeable to the municipality because their decision is final.” City of St. Louis v.
Praprotnik, 485 U.S. 112, 127 (1988). For an official’s acts to constitute municipal
policy, plaintiff must show that policymaking authority for a particular city function was
delegated to that official. Hammond v. Cnty. of Madera, 859 F.2d 797, 802 (9th Cir.
1988), abrogated on other grounds, L.W. v. Grubbs, 92 F.3d 894 (9th Cir. 1996).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

Whether a particular official has “final policymaking authority” is a question of state law.
Praprotnik, 485 U.S. at 123.
To prove ratification, the plaintiff must present “evidence of a conscious,
affirmative choice” by an authorized policy maker. Gillette v. Delmore, 979 F.2d 1342,
1347 (9th Cir. 1992). Thus, “the mere failure to investigate the basis of a subordinate’s
discretionary decisions” is not enough to create liability. Praprotnik, 485 U.S. at 130.
Likewise, mere failure to discipline the subordinate does not amount to ratification.
Sheehan v. City & Cnty. of San Francisco, 743 F.3d 1211, 1231 (9th Cir. 2014), reversed
in part on other grounds, 135 S.Ct. 1765 (2015). The Ninth Circuit appears to require
something more than a failure to reprimand to establish a municipal policy or ratification
of unconstitutional conduct. See, e.g., Watkins v. City of Oakland, 145 F.3d 1087, 1093
(9th Cir. 1998) (finding ratification where the police chief signed an internal affairs report
dismissing plaintiff’s complaint despite evidence of Officer Chew’s excessive force
contained in the report); Ashley v. Sutton, 492 F. Supp. 2d 1230, 1238 (D. Or. 2007)
(finding ratification where the police chief submitted a declaration stating that the
“amount of force used by Officer Sutton was at all times directed at overcoming
[plaintiff’s] resistance to her arrest.”); Larez, 946 F.2d at 646 (finding ratification where
police chief signed a letter denying Larez’s complaint even though expert testimony
showed that he should have disciplined the officers and established new police
procedures); see also Estate of Escobedo v. City of Redwood City, 2005 WL 226158, at
*11 (addressing Larez, McRorie v. Shimoda, 795 F.2d 780 (9th Cir. 1986), Henry v.
County of Shasta, 132 F.3d 512 (9th Cir. 1997), and Grandstaff v. City of Borger, 767
F.2d 161 (5th Cir. 1985), “[w]hile these cases . . . stand for the proposition that the failure
to reprimand may support a finding of a municipal policy of deliberate indifference to
constitutional violations, none stands for the proposition that ‘whenever [a
municipality’s] investigation fails to lead to a reprimand or discharge of an employee,’
the municipality is deemed to have a policy or custom giving rise to § 1983 liability.”).
In this case, plaintiff alleges that the County and the SBSO are liable because
Sheriff Brown, a policymaker, “approved” the Review Board’s finding that Calderon did
not use excessive force because Brown failed to question the Review Board’s findings,
even though the investigation was allegedly “obviously flawed.” See MSJ Opp’n at 22.
However, plaintiff has provided no evidence of affirmative conduct or ratification. MSJ

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Page 21 of 31 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

at 17–18. Brown attended the presentation to the Review Board on Calderon’s use of
deadly force, but did not attend the Board’s deliberations. Brown Decl. ¶ 22. He
subsequently received a one-page memorandum of the Review Board’s findings,
reviewed them, and took no further action. Id. at ¶ 23. Thus, in his FAC, plaintiff merely
highlights the policymaker’s failure to investigate a subordinate’s discretionary decisions
and failure to discipline the subordinate. See Praprotnik, 485 U.S. at 130; Sheehan, 743
F.3d at 1231. The Court therefore concludes that, as a matter of law, plaintiff cannot
prove ratification.
Accordingly, to the extent that plaintiff bases his Monell liability claim on
ratification, the Court GRANTS defendants’ motion for summary judgment.
e.

Customs of Excessive Force, Failure to Provide Medical
Care in the Field, and Covering Up Misconduct

A local government entity may be sued for constitutional deprivations caused by a
government “custom,” even when the custom has not been formally approved through
official decision-making channels. Monell, 436 U.S. at 690. However, such a practice
must be so permanent and well settled that it constitutes a “custom or usage” with the
force of law. Id. at 691. “Liability for improper custom may not be predicated on
isolated or sporadic incidents; it must be founded upon practices of sufficient duration,
frequency and consistency that the conduct has become a traditional method of carrying
out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996); see also Meehan v. Los
Angeles Cnty., 856 F.2d 102 (9th Cir. 1988) (two incidents not sufficient to establish
custom); Davis v. Ellensburg, 869 F.2d 1230 (9th Cir. 1989) (manner of one arrest
insufficient to establish policy).
In his FAC, plaintiff appears to allege general customs of excessive force, failing
to provide medical care in the field, and covering up misconduct with lies. FAC ¶¶ 87–
96. In their motion for summary judgment, defendants contend that plaintiff “cannot
establish that his rights were violated in this single incident pursuant to unconstitutional
County policy, custom or practice.” MSJ at 16. The Court agrees. Plaintiff fails to put
forth any evidence that would lead a reasonable jury to believe that the County has a

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

custom of violating constitutional rights; instead, plaintiff only presents evidence
regarding the single incident in which his constitutional rights were allegedly violated.
Accordingly, to the extent plaintiff bases his Monell claim on customs of excessive force,
failure to provide medical care in the field, and covering up misconduct, the Court
GRANTS defendants’ motion for summary judgment.
f.

Plaintiff’s Remaining Seven Bases of Monell Liability

In their statement of uncontroverted facts (filed in support of their motion for
summary judgment), defendants seek summary judgment on the remaining bases of
Monell liability that plaintiff alleges against the County and the SBSO: (1) inadequate
supervision; (2) enabling Constitutional violations; (3) failure to discipline; (4) deficient
hiring and retention; (5) facilitation a code of silence; (6) encouraging officers to believe
they can violate persons’ rights; and (7) failure to ensure that officers make truthful
reports. Reply SUF at Nos. 74–77, 79–80, 82. In support of their contention, defendants
cite to paragraphs 6 and 7 of Brown’s declaration. See id. Paragraph 6, restates verbatim
plaintiff’s ten bases for Monell liability. Brown Decl. ¶ 6. Paragraph 7 merely states:
“Plaintiff’s allegations, which are listed in Paragraph 6 above, are untrue. The SBSO
does not have any such policies, customs, or practices.” Id. at ¶ 7. These conclusory
statements are insufficient to establish that there is no dispute of fact as to whether
plaintiff’s remaining bases create Monell liability for the County and the SBSO.
Therefore, to the extent that defendants seek summary judgment for the remaining seven
bases for Monell liability, the Court DENIES defendants’ motion for summary judgment.
4.

Section 1983 Individual Supervisory Liability Claim against
Calderon and Brown

Plaintiff alleges that Calderon and Brown are individually liable as supervisors
pursuant to § 1983. FAC ¶¶ 97–107. Section 1983 does not recognize respondeat
superior liability. See Pembaur, 475 U.S. at 479. Nonetheless, a supervisor may be
liable in his individual capacity if (1) he or she is personally involved in the constitutional
deprivation, or (2) there is a sufficient causal connection between the supervisor’s
wrongful conduct and the constitutional violation. Starr v. Baca, 652 F.3d 1202, 1205
(9th Cir. 2011) (quotation marks and citation omitted); see also Larez, 946 F.2d at 646

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

(supervisory liability is imposed for a supervisor’s “own culpable action or inaction in the
training, supervision, or control of his subordinates,” for his “acquiesce[nce] in the
constitutional deprivations of which [the] complaint is made, ” or for conduct that
showed a “reckless or callous indifference to the rights of others.” (citations omitted));
Johnson v. Duffy, 588 F.2d 740, 743–44 (9th Cir. 1978) (“The requisite causal
connection can be established . . . by setting in motion a series of acts by others which the
actor knows or reasonably should know would cause others to inflict the constitutional
injury.”).12
Plaintiff contends that Calderon is individually liable as a supervisor pursuant to §
1983. FAC ¶¶ 97–106. To the extent plaintiff is alleging that Calderon is liable for use
of excessive force when Calderon shot plaintiff, the Court finds that this claim fails as a
matter of law. Calderon was the only officer who allegedly used excessive force.
Therefore, in alleging supervisory liability, plaintiff effectively avers that Calderon was
both his own supervisor and his own subordinate during the incident. This assertion runs
counter to the purpose and function of individual supervisory liability, which aims to hold
a supervisor liable despite the fact that he is not the actor whose actions violated
plaintiff’s rights. See Larez, 946 F.2d at 645 (“A supervisor will rarely be directly and
personally involved in the same way as are the individual officers who are on the scene
inflicting constitutional injury. Yet, this does not prevent a supervisor from being held
liable in his individual capacity.”). Allowing plaintiff to claim supervisory liability in
addition to individual liability against Calderon would merely duplicate claims.
Accordingly, the Court GRANTS defendants’ motion for summary judgment on
plaintiff’s claim of supervisory liability against Calderon.
Plaintiff also alleges that Brown is individually liable as a supervisor because he
failed to train, supervise, or discipline officers who used excessive force, even though
Brown knew that SBSO officers were responsible for a high number of excessive force
shootings compared to other counties in the United States and that there were prior

12

To the extent plaintiff alleges supervisory liability because the officers allegedly
failed to provide medical care in the field, the Court has already determined that the
medical care claim fails as a matter of law. See supra Part IV.B.2. Thus, the Court will
only address supervisory liability for Calderon’s alleged use of excessive force.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

complaints of excessive force against Calderon, Johnson, and Hampton. FAC ¶¶ 99–102.
Defendants argue that the SBSO’s use of force policy is consistent with the Fourth
Amendment standard set out in Garner, that the SBSO’s policy provides that all officerinvolved shootings are investigated “in a fair and impartial manner,” and that plaintiff
shows no evidence that Brown failed to ensure that SBSO officers were properly trained.
MSJ at 19. Defendants contend that, therefore, there is no evidence that Brown
“breached any duty to Plaintiff that was a proximate cause of his injury.” Id. The Court
disagrees. The Court has already determined that there is a dispute of fact as to whether
the officers’ training was inadequate. See supra Part IV.B.3.b. Accordingly, the Court
DENIES defendants’ motion for summary judgment on plaintiff’s supervisory liability
claim against Brown.
5.

State Law Claims
a.

Battery

Plaintiff alleges that Calderon committed battery when he shot plaintiff. FAC
¶¶ 58–62. Under California law, a plaintiff seeking to establish a prima facie case of
battery by a police officer must show that unreasonable force was used. Edson v. City of
Anaheim, 63 Cal. App. 4th 1269, 1272–73 (1998); Susan v. City of Lake Forest, 94 Cal.
App. 4th 1401, 1412–13 (2002) (holding that California courts evaluate battery by police
officer using excessive force standard). Defendants argue that the battery claim fails as a
matter of law because Calderon’s use of force was reasonable. MSJ at 20. However, the
Court has already concluded that there is a dispute of fact regarding Calderon’s use of
deadly force and denied summary judgment on plaintiff’s excessive force claim. See
supra Part IV.B.1. Therefore, the Court also DENIES defendants’ motion for summary
judgment on plaintiff’s battery claim.
b.

Bane Act Violation

Plaintiff contends that by shooting plaintiff Calderon interfered with plaintiff’s
“right to be free from excessive force and to bodily integrity” in violation of California
Civil Code § 52.1 (“Bane Act”). See FAC ¶¶ 63–69. The Bane Act provides a right to
relief when someone interferes, or attempts to interfere, “by threat, intimidation, or

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

coercion, with the exercise or enjoyment by any individual or individuals of rights
secured by the Constitution or laws of the United States, or of the rights secured by the
Constitution or laws of [California]. . . .” Cal. Civ. Code § 52.1(a). Defendants argue
that plaintiff’s Bane Act claim fails as a matter of law because plaintiff “does not allege
any threats, intimidation or acts of coercion” by Calderon that are separate from the act of
shooting plaintiff. MSJ at 20–21. The Court agrees.
In Lyall v. City of Los Angeles, 807 F.3d 1178 (9th Cir. 2015), the Ninth Circuit
held that a Bane Act violation requires allegations of threats, coercion, or intimidation
beyond the coercion inherent in the detention or search on which plaintiff bases his
§ 1983 claim. See id. at 1196. However, California district courts have varied in their
interpretations of Lyall when addressing Bane Act violations based on excessive force.
Courts in the Eastern District of California have concluded that Lyall’s requirement of
additional coercion applies only to Bane Act violations based on unintentional conduct,
such as unlawfully detaining a plaintiff due to a clerical error. See D.G. v. Cnty. of Kern,
2016 WL 6072362, at *2 (E.D. Cal. Oct. 13, 2016); Morse v. Cnty. of Merced, 2016 WL
4000406, at *2 (E.D. Cal. July 25, 2016). Plaintiff need not show additional coercion
where the Bane Act claim is based on intentional conduct, such as using excessive force
by shooting a plaintiff. See D.G., 2016 WL 6072362, at *2; Morse, 2016 WL 4000406,
at *2. Courts in the Northern District of California have found that “allegations of
excessive force are sufficient by themselves to allege a violation of the Bane Act.”
Barragan v. City of Eureka, 2016 WL 4549130, at *8 (N.D. Cal. Sept. 1, 2016); see also
Jones v. Cnty. of Contra Costa, 2016 WL 1569974, at *6 (N.D. Cal. Apr. 19, 2016);
Stubblefield v. City of Novato, 2016 WL 192539, at *11 (N.D. Cal. Jan. 15, 2016). In
contrast, one court in the Central District of California has held that Lyall’s additional
coercion requirement does apply to Bane Act claims based on excessive force. Han v.
City of Los Angeles, 2016 WL 2758241, at *9 (C.D. Cal. May 12, 2016) (granting
summary judgment for defendants because there was “no showing of coercion or
intimidation against Plaintiff exercising a constitutional right that [wa]s independent from
the coercion inherent in the alleged . . . excessive force.”); see also Venice Justice Comm.
v. City of Los Angeles, 2016 WL 4724557, at *8 (C.D. Cal. Sept. 9, 2016) (dismissing
plaintiff’s contention that Lyall’s holding is limited to search and seizure cases).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

To date, neither the Ninth Circuit nor the California Supreme Court has resolved
the issue of whether a plaintiff asserting a Bane Act claim based on excessive force must
allege coercion or intimidation independent of the excessive force claim. This Court is
persuaded by the reasoning of other courts in the Central District of California. Nothing
in Lyall expressly suggests that its holding is limited to unlawful detention claims or
unintentional conduct. Here, plaintiff fails to provide evidence or allege facts showing
that he faced a threat, intimidation, or coercion independent from Calderon’s alleged use
of excessive force. Accordingly, the Court GRANTS defendants’ motion for summary
judgment on plaintiff’s Bane Act claim.
c.

Intentional Infliction of Emotional Distress

The elements of a claim for IIED are: (1) extreme and outrageous conduct by the
defendant with the intent to cause, or reckless disregard for the probability of causing,
emotional distress; (2) extreme emotional distress by the plaintiff; and (3) the plaintiff’s
emotional distress is actually and proximately the result of defendant’s outrageous
conduct. Hughes v. Pair, 209 P.3d 963, 976 (2009). Extreme and outrageous conduct is
conduct that is “so extreme as to exceed all bounds of that usually tolerated in a civilized
community.” Id. The Court already determined that a reasonable jury could find that
Calderon used excessive force. See supra Part IV.B.1. A reasonable jury could also find
that the excessive use of force constitutes outrageous conduct. See Blankenhorn v. City
of Orange, 485 F.3d 463, 487 n.17 (9th Cir. 2007) (reversing grant of summary judgment
on IIED claim because excessive use of force could constitute outrageous conduct).
Accordingly, the Court DENIES defendants’ motion for summary judgment on
plaintiff’s IIED claim.
d.

Negligence

Plaintiff alleges that all defendants were negligent because they breached their duty
of reasonable care to comply with SBSO training by: (1) facilitating excessive force; (2)
covering up excessive force/maintaining a code of silence; (3) failure to provide medical
care; (4) retaining officers despite their propensities for abusing authority; (5) inadequate
supervision, training, and discipline; (6) maintaining inadequate procedures for reporting

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

and reviewing misconduct; and (7) ratifying intentional misconduct. See FAC ¶¶ 109–
10.
Defendants argue that plaintiff’s negligence claim fails as a matter of law for four
reasons. First, defendants contend that summary judgment is appropriate on plaintiff’s
negligence claim against Calderon, Johnston, and Hamilton because plaintiff cannot
prove gross negligence in failure to provide medical care. MSJ at 24. The Court has
already determined that plaintiff’s medical care claim fails as a matter of law. See supra
Part IV.B.2. Therefore, to the extent plaintiff bases his negligence claim on the officers’
failure to provide medical care in the field, the Court GRANTS defendants’ motion for
summary judgment.
Second, defendants argue that plaintiff’s negligence claim against the County and
the SBSO fails as a matter of law, because public entities are immune from liability
except as provided by statute. MSJ at 24. Under the Government Claims Act, there is no
common law tort liability for public entities in California; instead, such liability must be
based on statute. Cal. Gov’t Code § 815. While plaintiff does not specify this in his
FAC, there is a statute, California Government Code § 815.2, which provides that a
public entity may be liable for acts or omissions of employees committed within the
scope of their employment. Cal. Gov’t Code § 815.2. Thus, to the extent plaintiff’s
negligence claim against the County and the SBSO is based on respondeat superior
liability, the Court DENIES defendants’ motion for summary judgment. See Reinhardt
v. Santa Clara Cnty., 2006 WL 3147691, at *10, 13 (N.D. Cal. Nov. 1, 2006) (denying
public entities’ motion to dismiss negligence claim premised on respondeat superior
liability, pursuant to § 815.2). However, there is no statute imposing direct liability on
public entities for negligent training, hiring and supervision practices. See id.; Mood v.
City of Costa Mesa, 2015 WL 5898274, at *5 (C.D. Cal. Oct. 8, 2015); Johnson v.
Shasta Cnty., 83 F. Supp. 3d 918, 936–37 (E.D. Cal. 2015) (granting motion to dismiss
negligence claim against county defendant for alleged negligence in “hiring, training,
supervision, or retention of individual police officers”). Therefore, plaintiff’s claims of
direct liability on the part of the County and the SBSO fail as a matter of law.
Accordingly, to the extent that plaintiff alleges direct liability for negligence against the
County and the SBSO, the Court GRANTS defendants’ motion for summary judgment.
See Reinhardt, 2006 WL 3147691, at *10 (“All allegations of direct liability on the part

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

of the entity defendants, such the failure-to-train allegations, fail as a matter of law,
because plaintiff has cited no statute imposing such liability.”).
Third, defendants contend that plaintiff’s negligence claim against Brown fails as a
matter of law, because Brown was not present during the shooting. MSJ at 24–25.
However, the Court already concluded that there is a genuine issue of fact as to whether
Brown failed to adequately train, supervise, or discipline officers who used excessive
force. See supra Part VI.B.4.b. Therefore, the Court also concludes that there is a
genuine issue of fact as to whether Brown was negligent and DENIES defendants’
motion for summary judgment.
Fourth, defendants argue that California Civil Code § 3333.3 bars plaintiff’s
negligence claim. MSJ at 24. The Court has permitted defendants to add this affirmative
defense. See also supra Part III.B. The Court grants plaintiff ten days to brief the issue
of § 3333.3. Id. Therefore, the Court reserves ruling on the issue of whether § 3333.3
bars plaintiff’s claim of negligence against all defendants until after plaintiff responds to
the new affirmative defense.13
Accordingly, the Court concludes that defendants’ motion for summary judgment
on plaintiff’s negligence claim is GRANTED in part and DENIED in part.
V.

CONCLUSION

Accordingly, for the foregoing reasons, the Court:
(1) GRANTS defendants’ motion to modify the scheduling order and amend their
answer;
(2) DENIES defendants’ motion for summary judgment on plaintiff’s excessive
force claim;

13

The Court notes that at this junction, it appears that § 3333.3 bars plaintiff’s
negligence claim. Nonetheless, the Court welcomes plaintiff’s argument to the contrary.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

(3) GRANTS defendants’ motion for summary judgment on plaintiff’s claim for
failure to provide medical care in the field;
(4) GRANTS defendants’ motion for summary judgment with respect to plaintiff’s
Monell liability claim against Sheriff Brown in his official capacity;
(5) DENIES defendants’ motion for summary judgment on plaintiff’s Monell
claim to the extent plaintiff bases his Monell claim on an underlying violation of
plaintiff’s rights;
(6) DENIES defendants’ motion for summary judgment on plaintiff’s Monell
claim to the extent that plaintiff bases his Monell claim on failure to train;
(7) GRANTS defendants’ motion for summary judgment on plaintiff’s Monell
claim to the extent that plaintiff bases his Monell claim on ratification;
(8) GRANTS defendants’ motion for summary judgment on plaintiff’s Monell
claim to the extent that plaintiff bases his Monell claim on and customs of excessive
force, failure to provide medical care in the field, and covering up misconduct;
(9) DENIES defendants’ motion for summary judgment on plaintiff’s Monell
claim to the extent that plaintiff bases his Monell claim on inadequate supervision,
enabling constitutional violations, failure to discipline, deficient hiring, facilitating a code
of silence, encouraging officers to believe they can violate persons’ rights, and failure to
ensure that officers made truthful reports;
(10) GRANTS defendants’ motion for summary judgment on plaintiff’s
supervisory liability claim against Calderon;
(11) DENIES defendants’ motion for summary judgment on plaintiff’s supervisory
liability claim against Brown;
(12) DENIES defendants’ motion for summary judgment on plaintiff’s battery
claim;

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:14-cv-08610-CAS-JPR
Date December 12, 2016
JEREMY LEON BORDEGARAY v. COUNTY OF SANTA BARBARA
ET AL.

(13) GRANTS defendants’ motion for summary judgment on plaintiff’s Bane Act
claim;
(14) DENIES defendants’ motion for summary judgment on plaintiff’s IIED
claim;
(15) GRANTS defendants’ motion for summary judgment on plaintiff’s
negligence claim to the extent plaintiff alleges negligence based on the officers failure to
provide medical care in the field;
(16) DENIES defendants’ motion for summary judgment on plaintiff’s negligence
claim to the extent plaintiff alleges negligence based on respondeat superior liability
against the County and the SBSO;
(17) GRANTS defendants’ motion for summary judgment on plaintiff’s
negligence claim to the extent plaintiff alleges negligence based on direct liability against
the County and the SBSO;
(18) DENIES defendants’ motion for summary judgment on plaintiff’s negligence
claim to the extent plaintiff alleges negligence based on Sheriff Brown’s training,
supervisory, and disciplinary practices; and
(19) RESERVES RULING on the issue of whether § 3333.3 bars plaintiff’s claim
of negligence against all defendants, until after plaintiff briefs the issue of § 3333.3.
Plaintiff shall file his supplemental opposition within ten (10) days of the date of this
order. Defendants shall not file a reply to plaintiff’s supplemental opposition.
IT IS SO ORDERED.
Initials of Preparer

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: 
00 
                    CMJ 

00 

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