Gutierrez et al v. City of Woodland et al

Filing 76

ORDER signed by Judge Lawrence K. Karlton on 5/8/12 ORDERING that Plaintiffs' 56 motion for leave to file the declaration of Jose Gutierrez and Irma Gutierrez (Dkt. No. 55) is GRANTED. Plaintiffs' 41 motion for summary adjudication is DENIED. Defendants' 47 motion for partial summary judgment is DENIED. (Kastilahn, A)

1
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UNITED STATES DISTRICT COURT
8
FOR THE EASTERN DISTRICT OF CALIFORNIA
9
10 JOSE GUTIERREZ and IRMA
GUTIERREZ,
11
Plaintiffs,
12
v.
13
CITY OF WOODLAND, COUNTY OF
14 YOLO, SERGEANT DALE JOHNSON,
DEPUTY HERMAN OVIEDO, DEPUTY
15 HECTOR BAUTISTA, individually,
and in their official capacities,
16
Defendants.
/
17
18

NO. CIV. S-10-1142 LKK/EFB

O R D E R

This is a civil rights case brought by the parents of the

19 decedent, Luis Gutierrez Navarro (“Gutierrez”).

Gutierrez fled

20 after undercover officers of the Yolo County Sheriff’s Department
21 approached him on the street with the stated intention of speaking
22 with him.

After the officers caught up to Gutierrez, there ensued

23 an altercation, which ended when the officers shot and killed
24 Gutierrez.

The First Amended Complaint alleges: a Section 1983

25 claim against the police and the municipality, for the police’s
26 unreasonable use of force in violation of the Fourth and Fourteenth
1

1 Amendments;
2 negligent

and

state

claims

hiring

and

training,

3 emotional distress.1

for

wrongful

and

death,

intentional

negligence,

infliction

of

Plaintiff seeks a summary adjudication of

4 issues, and defendant cross-moves for partial summary judgment, as
5 more specifically described below.
6 I.

INTRODUCTION

7

A.

8
9

Facts

Relevant

to

Plaintiffs’

Motion

for

Summary

Adjudication.
On April 30, 2009, three officers of the Yolo County Sheriff’s

10 Office were working together as part of their duties with the Yolo
11 County Gang Task Force.2

The officers were: (1) Sergeant Dale

12 Johnson,3 the person in charge of the Yolo County Gang Task Force;
13 (2) Detective Hernan Oviedo, who was assigned to the Gang Task
14 Force; and (3) Deputy Hector Bautista, who was also assigned to the
15 Gang Task Force.4

The three, working undercover, rode in an

16 unmarked car in the “Gum Avenue overpass” area in Woodland,
17 California.5

Bautista drove.6

All three were wearing street

18
19
1

20
21
22

Defendant City of Woodland was dismissed from the case by
stipulation on January 13, 2012. Dkt. No. 39.
2

Because defendants are the non-moving party, the facts are
described in the light most favorable to them, where there is
evidence to support the description.

23

3

Currently a Lieutenant.

24

4

Johnson Decl. (Dkt. No. 44)

25

5

Johnson Decl. at p.2.

26

6

See Johnson Decl. ¶ 15.

Johnson Decl. ¶ 3.

2

¶¶ 6-8.

1 clothes.7
2

As

All three carried guns.8
the

three

officers

rode

in

the

car,

they

observed

3 Gutierrez, whom they observed to be “a Hispanic male,” walking down
4 the street.9

The officers do not claim that they observed any

5 suspicious or illegal activity by Gutierrez.

None of the officers

6 knew Gutierrez, had encountered him before, or knew anything about
7 him.

However, the officers did notice Gutierrez’s appearance.

8 Gutierrez wore a “long baggy shirt, baggy ‘Dickies’ style pants,”
9 and he had a “shaved head.”10

From their training on the Gang Task

10 Force, the officers associated such clothing with gang activity.
11 Johnson Decl. ¶ 14. Also, the area where Gutierrez was walking was
12 an area known to them to be a location of gang activity – shootings
13 and gang-related grafitti.

Bautista Decl. (Dkt. No. 45) ¶ 6;

14 Johnson Decl. ¶ 11.
The officers decided that they would “attempt to talk with

15

16 this man.”11

Johnson left the car and approached Gutierrez.

17 Johnson tucked in his shirt so as to display his belt, which
18 contained his police badge and his gun.12

Gutierrez looked down at

19 ////
20
7

Johnson Decl. ¶ 9; Oviedo Dep. (Dkt. No. 41-1) at pp. 47 &

22

8

Johnson Decl. ¶ 16; Oviedo Dep. p. 114

23

9

Johnson Decl. ¶ 12.

24

10

Johnson Decl. ¶ 14.

25

11

Johnson Decl. ¶ 13.

26

12

Johnson Dec. ¶ 16.

21

57.

3

1 the belt and then back up at Johnson.13

Johnson then said to

2 Gutierrez: “Sheriff’s Department, may I speak with you?”14
3

Gutierrez then put his hand in his pocket, turned, and fled on

4 foot directly into traffic.15

Johnson drew his weapon and, with

5 Oviedo following behind, gave chase on foot.16

As Johnson closed

6 the distance between himself and Gutierrez, he holstered his gun.17
7 As Johnson caught up to Gutierrez, he made fleeting contact with
8 Gutierrez’s upper torso, in an attempt to stop him.18

Gutierrez

9 ducked out of the contact however, and Johnson passed by him.19
10

Gutierrez came to a stop at this point, with Johnson in front

11 of him, and Oviedo behind.20

Immediately, Gutierrez pulled out a

12 knife, leaned toward Johnson and made a “slashing motion” at him,
13 causing Johnson to jump back.21

At that point, Johnson and Oviedo

14 drew their weapons, and shot and killed Gutierrez.22
15 ////
16
17

13

Johnson Decl. ¶ 17.

18

14

Johnson Decl. ¶ 15.

19

15

Johnson Decl. ¶¶ 17 & 18.

20

16

Johnson Decl. ¶¶ 22 & 23.

21

17

Johnson Decl. ¶ 24.

22

18

Johnson Decl. ¶ 25.

23

19

Johnson Decl. ¶¶ 25 & 26.

24

20

Johnson Decl. ¶ 27.

25

21

Johnson Decl. ¶¶ 28-30.

26

22

Johnson Decl. ¶ 30.
4

1

B.

Facts Relevant to Defendants’ Cross-Motions

2

The Yolo County Sheriff’s Department has a written “Use of

3 Force” policy.23
4 investigation,

After the shooting, the Department conducted an
and

concluded

that

no

laws

or

policies

were

5 violated.24
6 II.

THE CROSS MOTIONS

7

A.

8

Plaintiffs move for summary adjudication of two issues.25

9

First, plaintiffs seek a summary adjudication that Gutierrez

Plaintiffs’ Motion for Summary Adjudication of Issues.

10 was “seized” within the meaning of the Fourth Amendment, “prior to
11 shooting him because they intentionally applied physical force to
12 his person that made him stop and stand his ground.”
13

Second,

14 seizure

was

plaintiffs

seek

unreasonable,

a

summary

within

the

adjudication
meaning

of

that

the

the

Fourth

15 Amendment, because the police “initiated the seizure without any
16 articulable, reasonable suspicion of criminal activity.”
17
18

23

Lopez Decl. (Dkt. No. 50) ¶ 3.

19

24

Lopez Decl. (Dkt. No. 5) ¶¶ 6-8.

20

25

21
22
23
24
25
26

The Federal Rules of Civil Procedure provide for requests
for summary adjudication of issues. Rule 56(a) reads: “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.” Fed. R. Civ. P. 56(a) (emphasis added). According to
Moore’s Federal Practice 3d, “This language was added to the rule
in 2010 to make clear that summary judgment may be requested not
only as to an entire case, or as to a complete claim or defense,
but also as to parts of claims or defenses.” Section 56.122[2]
at 56-309 (noting that “This was probably always the rule,” and
that “the freedom to use summary judgment procedure to address
particular issues or elements of a claim is an important feature
of Rule 56, making it a much more useful case management device”).
5

1

B.

Defendants’ Motion for Partial Summary Judgment.

2

Defendants request summary judgment on Claims 3 and 5.

Claim

3 3 is for municipal liability under Monell v. Department of Social
4 Servs., 436 U.S. 658 (1978), for the use of excessive force. Claim
5 5 is a state claim for negligent hiring, retention, training and
6 supervision.

They argue that plaintiffs have not shown that a

7 municipal policy or practice caused any unconstitutional conduct
8 here.
9 III. ARGUMENTS
10

A.

11
12

Plaintiffs’ Motion for Summary Adjudication.
1.

Fourth Amendment “Seizure.”

Plaintiffs argue that Gutierrez was “seized” when Sergeant

13 Johnson, while attempting to stop Gutierrez, came into physical
14 contact with Gutierrez’s upper torso (grabbed Gutierrez by the
15 shoulders, in plaintiff’s view), and the chase ended,26 citing
16 Brendlin v. California, 551 U.S. 249, 254 (2007).

Once the chase

17 ended, Sergeant Johnson was in front of Gutierrez and Sergeant
18 Olviedo
19 movement.

was

behind,

restraining

and

curtailing

Gutierrez’s

Plaintiffs assert that at this point, the police had

20 effected a “seizure” of Gutierrez.

That is because the police had

21 “grabbed” him, he was no longer running, and no reasonable person
22
26

23
24
25
26

Plaintiffs do not assert that Gutierrez was seized when
Johnson first asked to speak with him.
That appears to be
foreclosed by Ninth Circuit law, in any event. See U.S. v. Smith,
633 F.3d 889, 892-93 (9th Cir.), cert. denied, 564 U.S.
, 131
S. Ct. 3005 (2011). Plaintiffs also do not assert that Gutierrez
was “seized” when the police chased him down, guns blazing,
shouting whatever they said. That appears to be foreclosed by
California v. Hodari D., 499 U.S. 621, 629 (1991).
6

1 in his situation would have thought that he was “free to leave.”
2 See I.N.S. v. Delgado, 466 U.S. 210, 215 (1984).27
3

Defendants argue that Gutierrez was not seized until he was

4 shot.

They concede that he “came to a stop facing Sergeant

5 Johnson.”

Dkt. No. 48 at 2 (Defendants’ Cross-Motion for Summary

6 Judgment on Monell issues).

Their view is that even though

7 Gutierrez briefly stopped, he only did so in order to withdraw his
8 knife and try to fight his way out of the confrontation.
9 those

circumstances,

they

argue,

there

was

no

Under

yielding

or

10 submission in any realistic sense, and he was still trying to evade
11 the police.

See U.S. v. Smith, 633 F.3d 889, 893 (9th Cir.) (no

12 seizure where defendant “did not submit in any realistic sense”),
13 cert. denied, 564 U.S.

, 131 S. Ct. 3005 (2011).

The police do

14 not dispute that shooting Gutierrez dead was a seizure under
15 Tennessee v. Garner, 471 U.S. 1, 7 (1985) (“there can be no
16 question that apprehension by the use of deadly force is a seizure
17 subject

to

the

reasonableness

requirement

of

the

Fourth

18 Amendment”).
2.

19

“Reasonableness” of the (Attempted) Seizure

Plaintiffs argue that the police lacked reasonable suspicion

20
21 that

Gutierrez

was

engaged

in

criminal

activity,

and

that

22 therefore, they seized Gutierrez – by grabbing him around the
23 shoulders during his flight – in violation of his Fourth Amendment
24 rights.
25
27

26

Adopting the “free to leave” standard enunciated in U.S. v.
Mendenhall, 446 U.S. 544, 554 (1980) (Opinion of Justice Stewart).
7

1

Defendants argue that Gutierrez’s presence in a high crime

2 area, his gang-associated clothing, his “headlong flight,” and his
3 reaching into his pocket while he fled provided them with the
4 reasonable suspicion they needed to seize him, citing Illinois v.
5 Wardlow, 528 U.S. 119 (2000).

Accordingly, both sides focus their

6 arguments on whether the police had reasonable suspicion that
7 criminal activity was afoot at the time of the attempted seizure.28
8

Plaintiffs urge the court to find that defendants’ reasons for

9 the seizure were insufficient as a matter of law. Defendants argue
10 that they had sufficient cause to attempt to seize Gutierrez:
11 (1) he was in an area associated with criminal street gangs; (2) he
12 wore a “long baggy shirt, baggy ‘Dickies’ style pants and a shaved
13 head,” which was consistent with gang wear; (3) he engaged in
14 “headlong flight” into two lanes of traffic to evade the police;
15 and (4) he put his hand in his pocket when he turned to run,
16 possibly reaching for a weapon or contraband.
17
18
19
20
21
22
23
24
25
26

28

The Fourth Amendment “applies to all seizures
of the person, including seizures that involve
only a brief detention short of traditional
arrest.” United States v. Brignoni–Ponce, 422
U.S. 873, 878 (1975). Accordingly, the Fourth
Amendment requires that such seizures be, at
a minimum, “reasonable.”
Id.
In order to
satisfy the Fourth Amendment's strictures, an
investigatory stop by the police may be made
only if the officer in question has “a
reasonable suspicion supported by articulable
facts that criminal activity may be afoot....”
U.S. v. Sokolow, 490 U.S. 1, 7 (1989)
(internal quotation omitted) (citing Terry v.
Ohio, 392 U.S. 1, 30 (1968)).

U.S. v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000).
8

1

Plaintiffs

argue

that

Johnson

lacked

a

basis

to

seize

2 Gutierrez: (1) he relied on generalized “war stories,” not specific
3 data,

to

conclude

that

they

were

in

a

“high

crime

area;”

4 (2) Gutierrez’s clothing did not indicate gang membership, and in
5 any event, gang membership alone is no reason to seize, and not a
6 proxy

for

criminal

activity;

(3)

Gutierrez’s

flight

was

not

7 “unprovoked” and thus provides no reasonable suspicion to seize;
8 and (4) Gutierrez’s hand on or in his pocket does not create
9 reasonable suspicion, since possibly he was trying to keep things
10 from

falling

out.

In

any

event,

the

“totality

of

the

11 circumstances” does not support the seizure.
12

3.

Capacity To Sue

13

Defendants argue that plaintiffs do not have the capacity to

14 sue

under

State

law,

citing

Cal.

Civ.

Code

§

377.32,

and

15 plaintiffs’ failure to file the affidavit required by state law.
16

B.

17
18

Defendants'

Motion

For

Partial

Summary

Judgment

-

Municipal Liability.
The First Amended Complaint alleges that defendant Yolo County

19 Sheriff’s Department has an unconstitutional policy, practice and
20 custom that lead to Gutierrez’s death.

Defendants argue that

21 plaintiffs cannot show, as pertinent here, that the Sheriff’s
22 Department ratified the conduct of the police officers.29
23

Plaintiffs argue that ratification can be established – even

24
29

25
26

Defendant also argues that there is a complete failure of
proof because plaintiffs have cited only this one isolated
incident, and that there is no evidence of failure to train.
Plaintiffs’ opposition addresses only the “ratification” issue.
9

1 in a single-incident case – by showing that the municipal decision2 maker reviewed and approved an inadequate investigation of the
3 incident that exonerated the alleged wrong-doer, citing Fuller v.
4 City of Oakland, 47 F.3d 1522 (9th Cir. 1995), and that they have
5 sufficient evidence of this to create a genuine issue of fact.
6 IV.

SUMMARY JUDGMENT STANDARDS

7

Summary judgment is appropriate “if the movant shows that

8 there is no genuine dispute as to any material fact and the movant
9 is entitled to judgment as a matter of law.”
10 56(a); Ricci v. DeStefano, 557 U.S. 557,

Fed. R. Civ. P.

, 129 S. Ct. 2658,

11 2677 (2009) (it is the movant’s burden “to demonstrate that there
12 is ‘no genuine issue as to any material fact’ and that they are
13 ‘entitled to judgment as a matter of law’”); Walls v. Central
14 Contra

Costa

Transit

Authority,

653

F.3d

963,

966

(9th

15 Cir. 2011)(per curiam) (same).
16

Consequently, “[s]ummary judgment must be denied” if the court

17 “determines that a ‘genuine dispute as to [a] material fact’
18 precludes immediate entry of judgment as a matter of law.”

Ortiz

19 v. Jordan, 562 U.S. ___, 131 S. Ct. 884, 891 (2011), quoting Fed.
20 R. Civ. P. 56(a); Comite de Jornaleros de Redondo Beach v. City of
21 Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (en banc) (same),
22 cert. denied, 565 U.S.
23

, 132 S. Ct. 1566 (2012).

Under summary judgment practice, the moving party bears the

24 initial responsibility of informing the district court of the basis
25 for its motion, and “citing to particular parts of the materials in
26 the record,” Fed. R. Civ. P. 56(c)(1)(A), that show “that a fact
10

1 cannot be ... disputed.”

Fed. R. Civ. P. 56(c)(1); In re Oracle

2 Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010)
3 (“The moving party initially bears the burden of proving the
4 absence of a genuine issue of material fact”), citing Celotex v.
5 Catrett, 477 U.S. 317, 323 (1986).
6

If the moving party meets its initial responsibility, the

7 burden then shifts to the non-moving party to establish the
8 existence of a genuine issue of material fact.

Matsushita Elec.

9 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986);
10 Oracle Corp., 627 F.3d at 387 (where the moving party meets its
11 burden,

“the

burden

then

shifts

to

the

non-moving

party

to

12 designate specific facts demonstrating the existence of genuine
13 issues for trial”). In doing so, the non-moving party may not rely
14 upon the denials of its pleadings, but must tender evidence of
15 specific facts in the form of affidavits and/or other admissible
16 materials in support of its contention that the dispute exists.
17 Fed. R. Civ. P. 56(c)(1)(A).
18

“In evaluating the evidence to determine whether there is a

19 genuine issue of fact,” the court draws “all reasonable inferences
20 supported by the evidence in favor of the non-moving party.”
21 Walls,

653

F.3d

at

966.

Because

the

court

only

considers

22 inferences “supported by the evidence,” it is the non-moving
23 party’s obligation to produce a factual predicate as a basis for
24 such inferences.

See Richards v. Nielsen Freight Lines, 810 F.2d

25 898, 902 (9th Cir. 1987).

The opposing party “must do more than

26 simply show that there is some metaphysical doubt as to the
11

1 material facts ....

Where the record taken as a whole could not

2 lead a rational trier of fact to find for the nonmoving party,
3 there is no ‘genuine issue for trial.’”

Matsushita, 475 U.S. at

4 586-87 (citations omitted).
5 V.

ANALYSIS - PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION

6

A.

7

Plaintiffs’ First Cause of Action, under 42 U.S.C. § 1983,

Plaintiffs’ Capacity To Sue.30

8 alleges that defendants violated the decedent Gutierrez’s own
9 constitutional rights.

Accordingly, this claim is a survivor

10 action, an exception to the “general rule” that permits only the
11 person whose rights were allegedly violated to sue:
12
13
14

In § 1983 actions, however, the survivors of an
individual killed as a result of an officer's excessive
use of force may assert a Fourth Amendment claim on that
individual's behalf if the relevant state's law
authorizes a survival action.

15 Moreland v. Las Vegas Metropolitan Police Dept., 159 F.3d 365, 369
16 (9th Cir. 1998).

California law does authorize survivor actions

17 under its survival statute, Cal. Civ. Proc. § 377.30. That statute
18 provides that “[a] cause of action that survives the death of the
19 person entitled to commence an action or proceeding passes to the
20 decedent's successor in interest ... and an action may be commenced
21 by the decedent's personal representative or, if none, by the
22 decedent's successor in interest.”

Id.; Grant v. McAuliffe, 41

23 Cal.2d 859 (1953); Duenez v. City of Manteca, 2011 WL 5118912 at *6
24
30

25
26

Defendants included their “capacity” argument in their
opposition to plaintiffs’ motion for partial summary adjudication
(rather than in their own separate motion for summary judgment),
and so the court addresses it here.
12

1 (E.D. Cal. 2011) (Karlton, J.).
2

There are restrictions on the survivor’s ability to sue:

3

The party seeking to bring a survival action bears the
burden of demonstrating that a particular state's law
authorizes a survival action and that the plaintiff meets
that state's requirements for bringing a survival action.

4
5

Moreland, 159 F.3d at 369.

California’s survival action requires

that

affidavit

6
plaintiffs

file

an

setting

forth

the

facts

7
enumerated at Cal. Civ. P. § 377.32.

It appears to be undisputed

8
that plaintiffs have not filed such an affidavit, although they
9
have since moved separately for leave to file it.
10
Defendants assert that Section 377.32 “may be considered a
11
statute of repose,” citing Myers v. Philip Morris, Inc., 2003 WL
12
21756086, 2003 U.S. Dist. LEXIS 13031 (E.D. Cal. 2003) (Coyle, J.),
13
and that its requirements therefore cannot be waived. They further
14
argue that the statute of limitations for filing a survivor action
15
expired two years after April 30, 2009, and therefore the claim is
16
now “extinguished.”
17
Defendants’ “statute of repose” assertion does not lie.
18
Section 377.32 is not a statute of repose, bears no resemblance to
19
a statute of repose, and the district court case defendants cite
20
makes no reference to a statute of repose.31

A statute of repose

21
cuts off a claim at a given date, regardless of when the claim
22
accrues or is discovered.

See, e.g., McDonald v. Sun Oil Co., 548

23
F.3d 774, 779-80 (9th Cir. 2008) (“A statute of repose, however,
24
25
31

26

To the contrary, Myers held that the
affidavit was not even required in that case.
13

Section

377.32

1 has a more substantive effect because it can bar a suit even before
2 the cause of action could have accrued, or, for that matter,
3 retroactively after the cause of action has accrued. In proper
4 circumstances, it can be said to destroy the right itself. It is
5 not concerned with the plaintiff's diligence; it is concerned with
6 the defendant's peace”), cert. denied, 557 U.S. ___, 129 S. Ct.
7 2825 (2009).
8

Section

377.32

makes

no

reference

to

cutting

off

or

9 extinguishing the claim, contains no cutoff date, no start or end
10 date, and in fact no date of any kind that could identify it as a
11 statute of repose.

Indeed, Section 377.32 does not indicate that

12 it is a condition precedent to filing the lawsuit, see Parsons v.
13 Tickner, 31 Cal. App.4th 1513, 1523-24 (2d Dist. 1995), only that
14 the affidavit must be filed at some point.
15

In any event, the affirmative defense of lack of capacity to

16 sue – which is not jurisdictional, and as shown, is not a statute
17 of repose – may be waived:
18
19
20
21
22

Even if defendants are correct that ECG lacked
authorization to sue, this court does not lack subject
matter jurisdiction in the sense that it would if
plaintiffs lacked standing to sue under the "case or
controversy" requirement of Article III of the
Constitution. "The question of a litigant's capacity or
right to sue or to be sued generally does not affect the
subject matter jurisdiction of the district court."
Summers v. Interstate Tractor & Equip. Co., 466 F.2d 42,
50 (9th Cir. 1972).

23
24 De Saracho v. Custom Food Machinery, Inc., 206 F.3d 874, 878 (9th
25 Cir. 2000), cert. denied, 531 U.S. 876 (2000).

Plaintiffs filed

26 their lawsuit on May 7, 2010, and their First Amended Complaint on
14

1 May 27, 2010.

Assuming defendant is correct that a two-year

2 statute of limitations applied to this case, plaintiffs filed their
3 lawsuit well within the limitations period.
4

Defendants filed their answer to the First Amended Complaint

5 on July 22, 2010. It contained no “specific denial” of plaintiffs’
6 capacity to sue, as required by Fed. R. Civ. P. 9(a). Cooper v.
7 Allustiarte (In Re Allustiarte), 786 F.2d 910, 914 (9th Cir.), 479
8 U.S. 847 (1986).

On August 24, 2010, defendants, with plaintiffs,

9 filed a joint Status Report.

Defendants discussed their “factual

10 Contentions and Legal Theories,” but again said nothing about
11 plaintiffs’ alleged lack of capacity to sue.

Instead, defendants

12 waited until they apparently believed the limitations period had
13 expired, in April 2011. Then, in January 2012, for the first time,
14 they raised the issue of capacity to sue in response to plaintiffs’
15 motion for summary adjudication.

They further assert that it is

16 too late for plaintiffs to remedy the alleged defect because the
17 limitations period has passed.
18

This is a clear case for waiver, even assuming the Section

19 377.32 affidavit was not timely filed. Defendants were required to
20 assert lack of capacity when they filed their answer, or in some
21 responsive pleading or motion:
22
23
24
25
26

Even if we were to review the denial of the motion in
limine directly, we would agree with the district court
that defendants waived any objection to plaintiffs
authorization to sue.
A defendant must challenge a
plaintiff's authority to sue by making a “specific
negative averment.” See Fed. R. Civ. P. 9(a). Case law
in this circuit states that the “specific negative
averment” must be made “in the responsive pleading or by
motion before pleading.” Summers v. Interstate Tractor
15

1

& Equip. Co., 466 F.2d 42, 49-50 (9th Cir. 1972).

2 De Saracho, 206 F.3d at 878.

Although there is language in the

3 Ninth Circuit that could possibly be read to allow this challenge
4 to be raised on summary judgment,32 if so, the summary judgment
5 motion must be filed as the responsive pleading (“by motion before
6 pleading”), not 19 months after the responsive pleading (the
7 Answer) was filed.
8

Defendants also try to pile a limitations argument onto their

9 capacity claim, saying that plaintiffs are now barred by the
10 limitations period from filing the required documents.
11 is

unavailing.

The

statute

of

limitations

was

That also

tolled

when

12 plaintiffs filed their lawsuit, even if it was defective because of
13 the missing California documents.

See Irwin v. Dept. of Veterans

14 Affairs, 498 U.S. 89, 96 (1990) (“We have allowed equitable tolling
15 in situations where the claimant has actively pursued his judicial
16 remedies by filing a defective pleading during the statutory
17 period”).33
18
19
20
21
22
23

32

In De Saracho, the court found waiver where “Defendants did
not raise the authority to sue issue until one week before the
trial was scheduled to begin. None of defendants made a “specific
negative averment” in their answers, moved to amend their answers,
or filed a motion for summary judgment on this issue. Nor was the
authority to sue issue among the disputed factual issues listed in
the Joint Pretrial Conference Statement filed with the court on
April 21, 1997.”
33

24
25
26

Applying tolling where “plaintiff timely filed complaint in
wrong court,” citing Burnett v. New York Central R. Co., 380 U.S.
424 (1965); and citing American Pipe & Construction Co. v. Utah,
414 U.S. 538 (1974) for the proposition that “plaintiff's timely
filing of a defective class action tolled the limitations period
as to the individual claims of purported class members.”
16

1

In any event, plaintiffs have now filed a motion permitting

2 them to file the required California document (Dkt. No. 56). Since
3 it

is

timely

for

them

to

do

so,

given

the

tolling

of

the

4 limitations period, that separate motion will be granted.
5

B.

6

Fourth Amendment “Seizure.”
1.

7

When Was Gutierrez Seized?

To be clear, plaintiffs do not seek summary adjudication

8 regarding the officers’ initial attempt to stop or speak with
9 Gutierrez.34

They also do not seek summary adjudication on the

10 reasonableness of the shooting itself.
11

In

order

to

obtain

summary

adjudication

on

the

Fourth

12 Amendment issue, plaintiffs must establish beyond genuine dispute
13 that: (1) Gutierrez was “seized” when Officer Johnson made contact
14 with his shoulders or upper body, and Gutierrez stopped running;
15 and (2) that there was no “reasonable suspicion” of criminal
16 activity to support the seizure.

Plaintiffs cannot succeed on

17 either score on summary adjudication.

Both issues are for the

18 jury.
19

To meet their burden, plaintiffs assert that Gutierrez was

20 seized when Johnson grabbed him by the shoulders, and that this
21 caused Gutierrez to stop.

Indeed, it is undisputed that at some

22 point during the chase, Johnson reached out for Gutierrez and
23 managed to come into contact with some part of Gutierrez’s upper
24
34

25
26

Defendants describe the initial encounter with Gutierrez as
“consensual” and therefore not implicating the Fourth Amendment in
any way. At best, however, it can only be described as an
attempted consensual event.
17

1 body.

It is also undisputed that immediately after that contact,

2 Gutierrez stopped running. At that point, Gutierrez was stationary
3 and surrounded by two police officers.
4

Plaintiffs say that these undisputed facts are sufficient to

5 establish that Gutierrez was “seized” at that point.

However,

6 defendants have provided evidence that although Gutierrez stopped
7 running, he immediately pulled out a knife, and starting slashing
8 at the officers.

Therefore, rather than being “seized,” Gutierrez

9 simply stopped briefly so that he could fight his way out.

In

10 other words, Gutierrez never stopped fleeing until he was shot.
11 Each side has submitted sufficient evidence to support their
12 version of the facts.
13

2.

14

Plaintiffs have not shown, beyond genuine dispute,
that Gutierrez “submitted.”

15

The question here, is whether Gutierrez “submitted” to the

16 show of authority at the point where he stopped running.

Since

17 this is plaintiff’s motion for summary adjudication, the court
18 draws

all

19 defendants.

reasonable

inferences

in

favor

of

the

non-moving

Defendants have submitted evidence – the depositions

20 of Johnson and Oviedo and their Declarations – from which the court
21 can reasonably infer that although Gutierrez stopped after Johnson
22 made “fleeting contact” with him, he did not stop to “submit” to
23 authority.

Rather, he stopped so that he could grab his knife and

24 try to slash his way out of the circumstances.35

Reading the

25
35

26

This is a separate issue from whether in plaintiffs'
version of the facts, it is reasonable that a person walking
18

1 evidence in that light, Gutierrez did not submit in any realistic
2 sense.
3

Neither party offers a case that is directly on point.

4 Plaintiffs’ view, apparently, is that any “stop” that followed
5 Johnson’s contact with Gutierrez is a “submission” sufficient to
6 create a seizure.

But logically that cannot be so, as that would

7 include a person who stops to hide after being touched, and a
8 fleeing shooter who briefly stops to re-load his gun after being
9 touched. This case is not materially different, when viewed in the
10 light most favorable to defendants.
11 with his hand in his pocket.
12 hand was on his knife.

Here, Gutierrez was fleeing

It is a reasonable inference that his

After the fleeting contact with Sergeant

13 Johnson, Gutierrez stopped, but only long enough to withdraw the
14 knife from his pocket and start fighting.

It is too much of a

15 stretch to say that a person who flees, then stops so that he can
16 slash

his

way

to

freedom

with

a

knife

has

“submitted”

to

17 authority.36
18

The court has not been directed to any case that says that

19 when a defendant “stops” – regardless of the circumstances of the
20
21
22
23

peaceably down the street, when confronted by two armed men in
street clothes (but claiming to be police), and chased by them with
their guns drawn, would reasonably feel that he needed to fight his
way out.
36

24
25
26

Also, this cannot be what the Supreme Court or Ninth
Circuit had in mind when they used the words “submit” and
“submission.” Their ordinary dictionary definitions refer to a
person yielding to the authority or control of another. There is
nothing in the act of trying to fight one’s way out of a situation
that looks like “submission.”
19

1 stop – he has necessarily submitted to authority.

The only cases

2 that seem to address the specific meaning of “submission” address
3 a stop that occurs before flight and prior to any touching, so they
4 are not directly on point.

Nevertheless, they hold that a person

5 who merely stops, in response to a police officer’s show of
6 authority, and then flees, has not submitted to authority:
7
8
9
10
11
12

We decline to adopt a rule whereby momentary hesitation
and direct eye contact prior to flight constitute
submission to a show of authority. Such a rule would
encourage suspects to flee after the slightest contact
with an officer in order to discard evidence, and yet
still maintain Fourth Amendment protections. A seizure
does not occur if an officer applies physical force in an
attempt to detain a suspect but such force is
ineffective. See Hodari, 499 U.S. at 625. [¶] We hold
that Hernandez was not seized because he never submitted
to authority, nor was he physically subdued.

13 U.S. v. Hernandez, 27 F.3d 1403, 1407 (9th Cir. 1994), cert.
14 denied, 513 U.S. 1171 (1995).

Smith presented a similar situation

15 where the person momentarily engaged with the police, then fled.
16 The Ninth Circuit found that because he did not “yield,” there was
17 no seizure.37
18

In

this

case,

Gutierrez’s

stopping

just

long

enough

to

19 withdraw his knife so that he could fight his way out of this
20
37

21
22
23
24
25
26

Defendants have not moved for summary adjudication but
nevertheless urge the court to find, as a matter of law, that there
was no seizure until Gutierrez was shot. The court will not grant
summary adjudication for defendants in the absence of a motion for
such relief. However, such a motion would appear to be futile,
since viewing the evidence in the light most favorable to
Gutierrez, he did submit. The third-party witness, Ms. Navarro,
says that she saw the events and that Gutierrez never had a knife
in his hands. This evidence, combined with defendants’ admission
that Gutierrez did stop after the fleeting encounter, requires the
court to draw the reasonable inference that Gutierrez’s stop was
a submission to authority.
20

1 predicament – taking the view most favorable to the non-moving
2 defendants – does not satisfy the requirement that he “submit” or
3 “yield” to police authority.

Accordingly, plaintiffs cannot be

4 granted summary adjudication on their assertion that Gutierrez was
5 “seized” at that point.
Reasonableness of the Attempted Seizure.38

6

C.

7

Since neither side is entitled to summary adjudication on the

8 question of whether Gutierrez was seized before he was shot, there
9 remains the question of whether, if he was seized prior to the
10 shooting, the seizure was reasonable.

This matters because if it

11 was an unreasonable seizure, and if it provoked Gutierrez into
12 pulling his knife, then the officers may be less likely to prevail
13 on their theory that they had to shoot in self-defense.
14

The officers’ bases for the pre-shooting attempted seizure

15 are: (1) Gutierrez was walking in a high-crime area; (2) he wore
16 gang-associated clothing and had a shaved head, also associated
17 with gang membership; (3) he launched into “headlong flight,”
18 directly into traffic, and with his hand in his pocket, when the
19 officers tried to talk with him as a “consensual” encounter.
20
21

1.

High crime area.

Preliminarily, it is worth nothing that even if Gutierrez was

22
23
24
25
26

38

This decision refers to Officer Johnson’s contact with
Gutierrez’s upper body as the “attempted seizure.” This language
is for convenience only, and does not reflect any conclusion that
the attempt was successful or not. Both sides agree that a seizure
was attempted, so it makes sense to refer to it in that way, since
the parties are in dispute about whether the attempt lead to an
actual “seizure.”
21

1 in a high crime area, his presence there, standing alone, “is not
2 enough to support reasonable, particularized suspicion that the
3 individual in question has committed or is about to commit a
4 crime.”

U.S. v. Montero-Camargo, 208 F.3d 1122, 1138 (9th Cir.)

5 (en banc), cert. denied, 531 U.S. 889 (2000).39
6 the

officers

“‘are

7 characteristics
8 circumstances

of

are

9 investigation.’”

not
a

required

location

sufficiently

to

in

ignore

determining

suspicious

Montero-Camargo,

At the same time,

208

to

F.3d

the

whether

warrant
at

relevant

1138,

the

further
quoting

10 Illinois v. Wardlow, 528 U.S. at 124.
11

The court will also keep in mind the danger of citing “high

12 crime area” as another way of referring to places where there are
13 high concentrations of poor and minority persons:
14
15
16
17
18
19
20

The citing of an area as “high-crime” requires careful
examination by the court, because such a description,
unless properly limited and factually based, can easily
serve as a proxy for race or ethnicity. District courts
must carefully examine the testimony of police officers
in cases such as this, and make a fair and forthright
evaluation of the evidence they offer, regardless of the
consequences. We must be particularly careful to ensure
that a “high crime” area factor is not used with respect
to entire neighborhoods or communities in which members
of minority groups regularly go about their daily
business, but is limited to specific, circumscribed
locations where particular crimes occur with unusual
regularity.

21
Montero-Camargo, 208 F.3d at 1138; U.S. v. Manzo-Jurado, 457 F.3d
22
23
39

24
25
26

Citing Brown v. Texas, 443 U.S. 47, 52 (1979) (holding that
an investigatory stop was not justified when police officers
detained two men walking away from each other in an alley in an
area with a high rate of drug trafficking because “the appellant's
activity was no different from the activity of other pedestrians
in that neighborhood”).
22

1 928, 934-35 (9th Cir. 2006) ("to establish reasonable suspicion, an
2 officer cannot rely solely on generalizations that, if accepted,
3 would

cast

suspicion

on

large

segments

of

the

lawabiding

4 population").
5

In this case, the court cannot say that defendants’ evidence

6 of a “high crime area” fails “as a matter of law.”

Plaintiffs

7 assert that the officers recited only “war stories,” rather than
8 actual evidence that the area was a high crime area.
9 not correct.

But that is

Officer Johnson testified in his deposition to

10 specifics that lead him to conclude that the part of Gum Avenue
11 where Gutierrez was walking was a high crime area.

He testified

12 that the overpass that Gutierrez used as an escape route “is
13 vandalized repeatedly with Norteno and sureno vandalism.”

Johnson

14 Depo. (Dkt. No. 41-2) at p.43 (referring to the deposition page
15 number).40

He testified that “The streets that are located on both

16 sides of the freeway on Gum Avenue have been involved with numerous
17 shootings.”

Id.

He did not simply rely on a blanket statement

18 that Gutierrez was in a “high crime area” (although the officer did
19 repeat that phrase quite often).
20

In his declaration, Officer Johnson swore that the area “was

21 known to me for high occurrences of gang activity, including
22 numerous gang related shootings.”

Johnson Dec. (Dkt. No. 44) ¶ 11

23 (emphasis added). He further swore that “Gang related graffiti was
24 frequently visible from the overpass area.”

Id.

This testimony

25
40

26

According to Johnson, the "Nortenos" and "surenos" were

gangs.
23

1 lays a sufficient evidentiary foundation for a fact-finder to
2 conclude that Johnson had personal knowledge of the gang activity
3 and shootings that he swore to.

Nothing about these statements

4 indicates that they are just “war stories” as opposed to the
5 declarant’s personal observations.

In any event, the officer can

6 be questioned about it at trial, and the jury can decide for itself
7 whether to believe that he actually witnessed these things, or is
8 simply repeating “war stories.”
9

Officer Bautista gave even more detailed evidence in his

10 declaration that the area was involved in illegal gang activity.
11 His declaration identifies a photograph taken of the area where the
12 officers encountered Gutierrez.

Based upon his own personal

13 experience and training, he says, he identified gang grafitti in
14 the area.

He also swore that the area “was known to me for high

15 occurrences of street gang activity, including numerous street gang
16 related shootings.”

Bautista Dec. (Dkt. No. 45) ¶ 6 (emphasis

17 added).
18

The court cannot conclude that there is no genuine dispute

19 about whether Gutierrez was in a high crime area.
20
21

2.

Headlong flight.

Viewing the evidence in the light most favorable to non-moving

22 defendants, Officer Johnson approached Gutierrez, who was walking
23 in a high-crime area.

Johnson displayed his badge, and asked

24 Gutierrez if they could speak.
25 ran, his hand in his pocket.

In response, Gutierrez turned and

In this Circuit, these facts are now

26 sufficient to create “reasonable suspicion” that Gutierrez was
24

1 engaged in criminal activity.
2

Smith, 633 F.3d at 894.

In Smith, a person walking in a high crime area fled after the

3 police told him to stop and to stand by the police car.41

The

4 officer then reached for what Smith thought was a gun, at which
5 point Smith turned and ran.

There was no suggestion that Smith

6 seemed to be discarding contraband or reaching for a weapon.
7 just ran.

He

The police then caught Smith, seized him and searched

8 him. The Ninth Circuit found that Smith’s flight itself – combined
9 with the fact that this occurred in a “high crime” area – created
10 the reasonable suspicion that justified the search and seizure:
11

There may be circumstances where a person's flight has a
perfectly
innocent
and
reasonable
explanation.
Nevertheless, the circumstances here indicate that
Smith's flight was sufficient to engender reasonable
suspicion. It is undisputed that Smith was in a
high-crime neighborhood during the events in question,
that Officer Dominguez clearly identified himself as a
police officer, and that Smith burst into headlong flight
for no other reason than to evade Officer Dominguez. The
officer's determination that Smith's sudden flight was
suggestive of wrongdoing was reasonable under these
circumstances.

12
13
14
15
16
17

18 Smith, 633 F.3d at 894.
The court cannot conclude that there is no genuine dispute

19

20 about whether Gutierrez’s flight could give rise to reasonable
21 suspicion that he was involved in criminal activity.
22 ////
23
41

24
25
26

There was no suggestion in Smith that the police politely
asked to speak with Smith; they ran their police lights and
demanded that he stop. Smith initially engaged the police, asking
if they were talking to him. The police confirmed that they were
talking to Smith, and again commanded him to stand in front of the
police car.
25

1

3.

2

Clothing & Shaved Head.

The officers asserted that when they saw Gutierrez walking

3 down the street, he had a shaved head and was wearing clothing
4 associated with gang activity. See e.g., Johnson Depo. (Dkt. No.
5 41-2) at ¶ 135.

The officers do not indicate that the clothing

6 alone was sufficient to create reasonable suspicion that Gutierrez
7 was involved in criminal activity.

However, Johnson testified at

8 his deposition that this was one of the factors that caused him to
9 chase Gutierrez and to attempt to seize him, once Gutierrez ran
10 away. Johnson Depo. at ¶¶ 44-45. The officers presented testimony
11 showing

why

they

believed

the

clothing

was

12 Plaintiffs presented no evidence to contradict it.

gang-related.
At this point,

13 the court cannot say that the clothing was, as a matter of law,
14 irrelevant

to

the

officers’

belief

that

they

had

reasonable

15 suspicion that Gutierrez was involved in criminal activity.42
16 VI.

ANALYSIS - DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT.

17

For their Third Cause of Action, a Section 1983 claim against

18 the municipal defendants, pursuant to Monell, plaintiffs allege,
19 among other things, that the Yolo County Sheriff’s Department “has
20 a policy, practice and custom to tolerate and ratify the use of
21 unreasonable and excessive force and cruel and unusual punishment
22 by its police officers, Sheriffs deputies, employees and agents,”
23
42

24
25
26

As a logical matter, it is not impossible for a person’s
clothing to identify him as belonging to a specific group. Police
officers can often be identified by their attire, as can
professional baseball players, at least when they are at work.
Plaintiffs have not rebutted the evidence presented that gang
members can similarly be identified by their clothing.
26

1 and that it was the Department’s policy to inadequately hire, train
2 and supervise its employees.

In their cross-motion for summary

3 judgment, defendants seek dismissal of this cause of action.43

As

4 relevant to this case, plaintiffs can ultimately prevail – at trial
5 – in one of three ways.
6

Plaintiffs can prevail at trial if they can show that the

7 alleged constitutional violation was done “pursuant to a formal
8 governmental policy or a ‘longstanding practice or custom which
9 constitutes

the

“standard

10 governmental entity.’”

operating

procedure”

of

the

local

Gillette v. Delmore, 979 F.2d 1342, 1346

11 (9th Cir. 1992) (per curiam), cert. denied, 510 U.S. 932 (1993).44
12 Alternatively, plaintiffs can prevail at trial if they can prove
13 that “an official with final policy-making authority ratified a
14 subordinate's unconstitutional decision or action and the basis for
15 it.”

Gillette, 979 F.2d at 1346-47.45

Finally,

plaintiffs can

16 prevail if they can show that “the individual who committed the
17 constitutional tort was an official with ‘final policy-making
18 authority’

and that the challenged action itself thus constituted

19 an act of official governmental policy.” See Gillette, 979 F.2d at
20
43

21
22
23
24
25

Defendants also seek dismissal of the Fifth Cause of
Action, for Negligent Hiring, Retention, Training and Supervision.
However, their motion papers offer no explanation for why this
claim should be dismissed (nor any mention of it at all, other than
the bare request that it be dismissed). Accordingly, the motion
will be denied as to this claim.
44

Quoting Jett v. Dallas Independent School Dist., 491 U.S.
701, 737 (1989).
45

26

Citing City of St. Louis v. Praprotnik, 485 U.S. 112,
123-24 (1988) (plurality).
27

1 1346.46
2

Even though plaintiffs will bear the burden of proof at trial

3 on the above issues, on summary judgment, it is defendants as
4 moving parties, who bear the initial burden.

They must show “that

5 there is no genuine dispute as to any material fact” and that they
6 are “entitled to judgment as a matter of law.”

Fed. R. Civ. P.

7 56(a); In re Oracle, 627 F.3d at 387 (moving parties bears the
8 initial “burden of proving the absence of a genuine issue of
9 material fact”).

Moving defendants must support their assertion

10 that a fact cannot be genuinely disputed by citing to evidence in
11 the record, Rule 23(c)(1)(A), or by showing that plaintiffs “cannot
12 produce

admissible

13 23(c)(1)(B).

evidence

Defendants’

to

support

Statement

of

the

fact.”

Undisputed

Facts

Rule
must

14 enumerate “each of the specific material facts relied upon in
15 support” of their motion.

E.D. Cal. R. 260(a).

Defendants have not taken their burden very seriously, and

16

17 indeed, have utterly failed to meet their burden. Since defendants
18 seek

summary

judgment

on

the

lack

of

the

policy

alleged

by

19 plaintiffs, they were required to make an initial showing that
20 there was no such Yolo County Sheriff’s Department policy.

Yet

21 defendants’ Statement of Undisputed Facts makes no reference to the
22 existence or non-existence of the alleged policies.

Moreover, the

23 Lopez Declaration, the sole factual basis for defendants’ motion,
24
46

25
26

This third possibility would only appear to apply to the
failure to train and supervise part of the claim, as plaintiffs do
not seem to claim that Johnson or Oviedo had final policy-making
authority.
28

1 makes no reference to the existence or non-existence of the alleged
2 policies.
3

Instead,

defendants

direct

the

court

only

to

the

most

4 unremarkable of factual assertions, all undisputed by plaintiffs:
5 that

after

the

shooting

there

was

an

Internal

Affairs

6 investigation; that the investigation was done in conformity with
7 Yolo

County

Sheriff’s

Department

procedures;47

and

that

the

8 investigation found no problems with the shooting.48
9

Defendants’ only showing is that the Department does have a

10 written Use of Force Policy, a fact not disputed by plaintiffs.
11 See Lopez Dec. (Dkt. No. 50) Exh. A.

But plaintiffs’ claim is not

12 based upon any alleged absence of a written policy.

It is based

13 upon, among other things, the alleged “policy, practice and custom”
14 of the Department “to tolerate and ratify the use of unreasonable
15 and excessive force” by its officers.

The identification of a

16 piece of paper setting forth one policy does does not show that
17 plaintiffs will be unable to prove – at trial – the existence of a
18 policy quite different from the one the Department put in writing.
19

Apart from this one document, defendants’ motion is based

20 entirely on its unsupported assertion that plaintiffs “cannot offer
21 evidence of an unconstitutional custom or policy.” See Dkt. No. 48
22
23
24
25

47

Plaintiffs point out however, that in their view, the
investigation was defective even if it followed procedures, because
it failed to include key witnesses interviews, and testing of key
evidence.
48

26

Plaintiffs point out however, that in their view, the IA
conclusion is wrong.
29

1 at p.5.

They make no showing that plaintiffs will be unable to

2 meet their ultimate burden.49
3

Meanwhile, defendants make no showing of any kind regarding

4 the alleged policy of inadequate hiring and training of its
5 officers.

It is never mentioned in the Lopez Declaration, nor in

6 any evidence identified by defendants in their motion.
7

Defendants do address the existence or non-existence of the

8 alleged policies, but only in their briefs.
9
10

A.

Isolated Incident

Defendants claim that the crux of plaintiff’s Monell claim is

11 that “the single encounter with Luis Guitierrez on April 30, 2009
12 established a policy, practice or custom.”

Dkt. No. 48 at p.5.

13 That completely misstates plaintiff’s Monell case.

Plaintiffs do

14 not allege that this one incident established a policy or practice,
15 they allege that this incident occurred because the police acted
16 pursuant to the Department’s policy or practice.

Defendants’

17 straw-man argument will not prevail on this summary judgment
18 motion.
19

B.

Inadequate Training

20

Defendants simply assert in their briefs that plaintiffs

21 “cannot demonstrate” a policy to inadequate train the officers, and
22 that “there is no evidence” of it.

But it is defendant’s burden to

23 show (not simply assert) that there is no genuine issue here.
24
25
26

49

For example, defendants offer no evidence about the
existence or non-existence of excessive force complaints made
against the Yolo County Sheriff’s Department.
30

1 Defendants identify no declaration or other evidence of adequate
2 training, or anything else that would show the absence of a genuine
3 issue here.
4

C.

Ratification By Approval of Inadequate Investigation.

5

Defendants explicitly reverse the burden of proof in arguing

6 against the “ratification” prong of Monell liability.

Here,

7 defendants had a clear opportunity to identify testimony or file a
8 declaration

by

a

Department

official

establishing

9 Department did not ratify the conduct alleged.
10 assert

only

that

plaintiffs

can

point

to

no

that

the

Instead, they
evidence

“of

a

11 deliberate or conscious choice by anyone holding final policymaking
12 authority to adopt the deputies’ precise actions” as policy, even
13 though it is not plaintiffs’ burden to do so.

Defendants had a

14 clear opportunity to meet their burden here, because they submitted
15 the declaration of the apparent decision-maker, Lopez.

But Lopez

16 does not address the ratification issue.
17

D.

Plaintiffs’ Response to Defendants’ Summary Judgment
Motion.

18
19

Plaintiffs quite sensibly responded to defendants’ summary

20 judgment motion on the merits.

However, it was improper for

21 defendants to force plaintiffs to expend their time and resources
22 attempting to meet a burden that properly lay on defendants’
23 shoulders.

Defendants

have

24 plaintiffs’ path toward trial.

thrown

only

false

obstacles

in

Accordingly, the court will deny

25 defendants’ motion solely on the basis that they have failed to
26 meet their burden on summary judgment.
31

They are free to defend

1 against the claims at trial.
2 VII. CONCLUSION
3

For the foregoing reasons:

4

1.

Plaintiffs’ motion (Dkt. No. 56) for leave to file the

5

declaration of Jose Gutierrez and Irma Gutierrez (Dkt.

6

No. 55) is GRANTED;

7

2.

8
9
10

Plaintiffs’ motion for summary adjudication (Dkt. No.
41), is DENIED;

3.

Defendants’ motion for partial summary judgment (Dkt. No.
47), is DENIED.

11

IT IS SO ORDERED.

12

DATED:

May 8, 2012.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
32