Duenez et al v. City of Manteca et al

Filing 122

ORDER signed by Judge Lawrence K. Karlton on 12/20/13 ORDERING that the defendants are entitled to the following partial adjudication, based upon plaintiffs' concessions, specifically, that no claim in this action arises from defendants' pointing a gun at decedent's widow, pulling decedent away from the pickup truck, handcuffing decedent, searching the house on Flores Court or detaining or arresting any non-parties to this action. Accordingly, the portions of any claim that are predicated upon that conduct are hereby DISMISSED WITH PREJUDICE; Defendants are entitled to qualified immunity for the search that was performed on decedent after the shooting. Accordingly, the portions of any claims that is predicated upon that conduct are hereby DISMISSED WITH PREJUDICE; Defendants' motion for summary judgment on Claim 1, to the degree it asserts any state claim, is hereby DISMISSED WITH PREJUDICE; Defendants' motion for summary judgment against Whitney Duenez on Claim 1 is GRANTED; Defendants' motion for summary judgment against D.D. (as successor in interest to decedent's estate) on Claim 1, is DENIED to the degree it is predicated upon the Fourth Amendment, and GRANTED to the degree it is predicated upon the alleged denial of medical care; Defendants' motion for summary judgment on Claim 2, relating to the claim for deprivation of familial relationships is DENIED; Defendants' motion for summary judgment on Claim 3, for Monell liability against the City and Bricker, is hereby DENIED, and that claim may proceed to the degree it is predicated upon inadequate training only; Defendants' motion for summary judgment on Claim 4 is DENIED, however, the court sua sponte dismisses Claim 4 to the degree it is predicated upon the deprivation of familial association, brought by Whitney Duenez in her capacity as successor in interest to the decedent's estate; Defendants' motion for summary judgment on Claim 6, a claim under Cal. Civ. Code 52.1, is hereby DENIED; Defendants' motion for summary judgment on Claim 8, by Whitney Duenez for intentional infliction of emotional distress, is GRANTED; Defendants' motion for summary judgment on all claims for injunctive relief is DENIED; Defendants' motion for summary judgment on the request for punitive damages is DENIED; Plaintiffs' motion for summary judgment is DENIED in its entirety; Plaintiffs' motion to seal documents is DENIED; Plaintiffs' motion to re-open discovery, so that they can depose defendants' attorney, is DENIED.(Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WHITNEY DUENEZ, individually
and as successor-in-interest
for Decedent ERNESTO DUENEZ,
JR.; D.D., a minor, by and
through his guardian ad
litem, WHITNEY DUENEZ;
ROSEMARY DUENEZ,
individually; and ERNESTO
DUENEZ, SR., individually,

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No.

CIV. S-11-1820 LKK/KJN

ORDER

Plaintiffs,
v.
CITY OF MANTECA, a municipal
corporation; DAVID BRICKER,
in his capacity as Chief of
Police for the CITY OF
MANTECA; (FNU) AGUILAR,
individually and in his
official capacity as a police
officer for the CITY OF
MANTECA; and DOES 1-100,
inclusive,

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Defendants.
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I.

BACKGROUND

On June 8, 2011, defendant John Moody, a Manteca police

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officer, shot and killed Ernesto Duenez, Jr.

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Answer at 3 lines 4-5 and 20-22.

Complaint ¶¶ 1 & 9;

The events leading to the
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shooting, the shooting itself, and subsequent events, were

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captured on a “dash-cam” video taken from Officer Moody’s car.

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Complaint ¶ 1.1

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This lawsuit is brought by decedent’s widow, Whitney Duenez,

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his son, D.D. (Whitney Duenez is D.D.’s guardian ad litem), and

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his parents, Ernesto and Rosemary Duenez, against Moody, the City

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of Manteca and David Bricker, the Chief of Police.

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The Complaint contains eight (8) federal and state claims.
The federal claims allege violations of decedent’s and

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plaintiffs’ constitutional rights under the Fourth and Fourteenth

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Amendments to be free from governmental use of excessive force

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resulting in death, denial of medical attention and denial of

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rights to familial relationships.

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negligent and intentional infliction of emotional distress,

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wrongful death and violation of Cal. Civ. Code § 52.1.

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The state claims allege

Both sides move for summary judgment, each asserting that

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the video conclusively shows that Moody was, or was not,

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justified in shooting and killing the decedent.

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plaintiffs move to seal certain documents, and to re-open

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discovery so that they can depose defendants’ counsel.

In addition,

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For the reasons set forth below, defendants’ motion for

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summary judgment and for partial summary judgment will be granted

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Defendants object to plaintiffs’ submission of the dash-cam
videos from Moody’s car, asserting that it is “not
authenticated,” and is “hearsay.” Defendants’ Objection to
Evidence in Opposition to Plaintiffs’ Motion for Summary Judgment
(“Defendants’ Objections”) (ECF No. 89-3 at p.2 lines 3-6. It is
not necessary to resolve this puzzling objection, since the
defendants have also submitted the video, and it is not objected
to by plaintiffs.

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in part and denied in part.

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judgment, to seal documents and to re-open discovery will be

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denied in their entireties.

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II.

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1.

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Plaintiffs’ motions for summary

UNDISPUTED FACTS

Initial report on decedent.

On June 8, 2011, Officer Armen Avakian (not a defendant),

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responded to a report of suspicious activity on Ribier Court,

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where decedent’s wife, Whitney Duenez, lived, according to the

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landlady.

Plaintiffs’ Statement of Undisputed Facts (“PSUF”)

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(ECF No. 75-1) ¶ 1.2

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the apartment, and he and Whitney were not getting along at that

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time.

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According to the landlady, decedent was in

Id.
Avakian ran a warrant check on decedent, which indicated

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that he was “armed and dangerous,” and that he was wanted on a

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“parole hold” meaning, apparently, that his parole had been

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revoked.

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parole officer and learned that the “parole hold” resulted from

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decedent having “‘peed dirty,’” and his not being in contact with

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his parole officer.

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“armed and dangerous” label came (at least in part), from the

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parole officer’s having received information that decedent

PSUF ¶ 3; DSUF ¶¶ 25-26.

PSUF ¶ 4.

Avakian spoke to decedent’s

Avakian also learned that the

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Unless otherwise noted, the facts cited in the PSUF are
“Undisputed for purposes of this motion” by defendants. See
Defendants’ Opposition to Plaintiffs’ Statement of Undisputed
Facts (“Def. Opp. To PSUF”)(ECF No. 89-2). It appears that
defendants are permitted to limit their concessions in this way.
See Fed. R. Civ. P. 56(e)(2) (“If a party … fails to properly
address another party’s assertion of fact as required by
Rule 56(c), the court may … consider the fact undisputed for
purposes of the motion”).

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carried a small firearm in his butt-cheeks.

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learned from Officer Ranch Johnson (not a defendant) that

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decedent had reportedly been involved in a recent shooting.

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¶ 6.

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found at a residence on Flores Court.

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this information on to Moody and others on the incoming work

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shift.

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PSUF ¶ 5.

Avakian

PSUF

Finally, Avakian learned that Duenez could sometimes be
PSUF ¶ 7.

Avakian passed

PSUF ¶ 8.

At some point, Officer Mark Rangel (not a defendant)
responded to a call from a civilian named Michael Henry that

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decedent and Whitney had recently left a residence on Pillsbury

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Road where they had been engaged in a shouting match.

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Henry later advised the police that decedent had left the

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Pillsbury Road residence, in the back of a blue pickup truck, and

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that decedent had a “throwing knife” with him.

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Henry advised the police that decedent was in the truck with a

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man (his uncle) and a woman, and that they had left in the truck

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with decedent willingly.

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2.

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PSUF ¶ 9.

PSUF ¶ 10-11.3

PSUF ¶ 12.

Officer Moody.

Defendant Moody has been a “sworn police officer” with the

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Manteca Police Department since 2000.

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Statement of Undisputed Facts (“DSUF”) (ECF No. 80-2) ¶ 2.4

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Defendants’ Separate
Up

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Plaintiff asserts that decedent was “sitting in the back” of
the truck. Defendants point out that the testimony plaintiff
cites to for this assertion states that decedent “was hiding in
the back” of the truck. See May 13, 2013 Deposition of Officer
Mark Rangel (“Rangel Depo.”) (ECF No. 76-3) at 10 (Exhibit A to
August 12, 2013 Nisenbaum Declaration, ECF No. 76).
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Unless otherwise noted, the facts cited in the DSUF are
“Undisputed” by plaintiffs. See Plaintiffs’ Objections to
Defendants’ Separate Statement of Undisputed Facts (“Objections”)
(ECF No. 92).
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until the shooting at issue here, the police department had

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received no complaints about Moody, concerning use of force,

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provision of medical assistance, truthfulness or concealment of

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misbehavior.

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based upon any claim of excessive force, providing medical care,

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truthfulness or “concealment” of misbehavior.

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the entire time Moody was employed by MPD, he was involved in

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only one other incident involving his shooting a firearm in the

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line of duty.

DSUF ¶¶ 3-4.

DSUF ¶ 6.

Moody has never been disciplined

DSUF ¶ 5.5

During

The MPD examined that incident and

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Plaintiffs failed to comply with the Local Rules of this court in
responding to the DSUF. See E.D. Cal. R. 260(b). The Objections
failed to “reproduce the itemized facts” in the DSUF (this is
normally done in chart form), to which plaintiffs were
responding. In addition, the Objections failed, in two instances
(Nos. 32 & 33), to provide a “citation to the particular
portions” of the pleadings or evidence upon which the denial was
based. Plaintiffs and their counsel are cautioned that the court
expects compliance with its local rules, and that failure to
comply could result in the imposition of sanctions.
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Defendants support this fact with testimony from defendant
Bricker: “Office MOODY … received no discipline concerning his
use of force while at the Department. Nor did he receive …
discipline for any allegations that he was untruthful, or that he
‘covered up’ his use of force or for providing medical care other
than in the present action.” Declaration of David Bricker
(“Bricker Decl.”) (ECF No. 82-35) at 2. Plaintiffs “dispute”
this fact, but offer no evidence to put it genuinely in dispute.
Instead, citing a “confidential” portion of Bricker’s deposition
testimony, they argue that a witness to an earlier shooting (in
which Moody shot out the tire of a car), “criticized” Moody for
shooting at the car, and refer to two persons interviewed about
the shooting as “complaining” witnesses. Objections ¶ 5. Even
if there were a proper evidentiary basis for these arguments (and
there is not, as plaintiffs’ assertions are based upon, at best,
hearsay within hearsay within hearsay: deposing counsel’s
questions about a newspaper account of what these purported
witnesses had said to a reporter), they do not even attempt to
dispute that Moody was not “disciplined.”

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determined that Moody’s actions were justified and proper.

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3.

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Id.

Moody stakes out 245 Flores Court.

Defendant Moody waited near 245 Flores Court for decedent to

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arrive.

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“radioed dispatch,” and immediately pursued the truck.

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¶ 15.

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car up behind it, blocking the truck.

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Duenez was in the back seat of the pickup truck.

PSUF ¶ 14.

When the pickup truck arrived, Moody
PSUF

When the truck pulled into the driveway, Moody pulled his

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4.

PSUF ¶ 17; Moody saw that
Id.

The confrontation begins.

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Moody exited his car and began issuing commands to decedent.

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PSUF ¶ 18; Bricker Decl. Exh. A (“Exh. A”) (ECF No. 80-35) (video

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of the incident).

Upon exiting his car, Moody ordered decedent

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not to move.

He ordered decedent to show his hands or put

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his hands up.

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drew his weapon, then holstered it, then drew it again.

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¶ 18; Exh. A.

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or attempting to exit it, on the passenger side.

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Exh. A.

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briefly had an object in his right hand.

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Id.

While this was happening, Moody initially
PSUF

Meanwhile, decedent was exiting the pickup truck,
Id. ¶¶ 18 & 19;

As he was exiting the truck, decedent appears to have

5.

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Id.

PSUF ¶ 20; Exh. A.6

Moody shoots decedent to death.

Moody ordered decedent to “drop the knife.”

PSUF ¶ 21.

Immediately upon issuing this order, Moody started shooting

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Plaintiffs assert that tweezers later found on the scene are
consistent with the object seen in the video. PSUF ¶ 20.
Defendants say that decedent had a knife in his hand, citing
Moody’s deposition testimony that decedent had “a large knife,
chrome or silver blade” in his right hand. See Moody Depo.
at 26.

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decedent.7

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decedent, killing him.

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20-22.8

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the ground.

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Moody radioed in that shots had been fired, causing the police

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dispatcher to immediately summon emergency medical help to the

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scene.

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No. 80-36) at 5.

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decedent as he lay dying, nor did he do anything after the

PSUF ¶ 21; Exh A.

Moody fired thirteen (13) shots at

PSUF ¶ 23; Exh. A; Answer at p.2, lines

The final shots were fired after decedent had fallen to
PSUF ¶ 22; Exh. A.9

After he stopped shooting,

DSUF ¶ 15; Declaration of John Moody (“Moody Decl.”) (ECF
Moody did not render any medical assistance to

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shooting to medically injure the decedent.10

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Decl. at 5.

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6.

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DSUF ¶ 22-23; Moody

Whitney Duenez arrives.

Upon the firing of the final shots, Whitney Duenez arrived
on the scene.

PSUF ¶ 25.11

The police on the scene ordered

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Plaintiffs say Moody began shooting “almost simultaneously”
with this command. PSUF ¶ 21. Defendants say Moody began
shooting after this command, citing the video. Defendants’
Opposition to PSUF ¶ 21.
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Plaintiffs say Moody shot decedent thirteen times. PSUF ¶ 23.
However, the evidence plaintiffs cite only indicates that Moody
shot at decedent thirteen times, but does not indicate that
decedent was hit thirteen times. See Moody Depo. at 37.

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Plaintiffs say decedent was “already shot and on the ground.”
PSUF ¶ 22. Defendants say decedent was “curling up off the
ground towards the open doorway of the pickup truck,” citing the
video. Defendants’ Opposition to PSUF ¶ 22.

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Plaintiffs say Moody had a legal obligation to render aid.
Defendants say he had no such legal obligation, and in any event,
there was nothing Moody could have done.
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Plaintiffs say Whitney ran screaming to the scene
“[s]imultaneous with the last shots.” PSUF ¶ 25. Defendants say
the video indicates she arrived “several seconds after the last
shot was fired,” and was not screaming. Def. Opp. to PSUF ¶ 25.
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Whitney to “move back.”

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defendant) pulled Whitney away from the scene, handcuffed her,

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and placed her in a patrol car.

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7.

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PSUF ¶ 27.

Officer Rangel (not a

PSUF ¶ 29.12

Moody handcuffs and searches decedent.

After the shooting, Moody tried to pull the decedent away

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from the truck, but was unable to do so because, as he

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discovered, decedent’s foot was entangled in the seat belt.

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¶ 30.

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seatbelt to release decedent’s foot, and Moody “reasonably and

PSUF

An officer (either Moody or another officer), then cut the

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properly” pulled decedent away from the truck “for proper safety

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reasons.”

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decedent over and “properly handcuffed” the decedent “for proper

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safety reasons.”

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alive when he was pulled away from the truck, flipped over and

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handcuffed.

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weapons, including a search of decedent’s buttocks area.

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¶ 34.15

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DSUF ¶ 16;13 PSUF ¶¶ 31 & 32.

DSUF ¶ 17;14 PSUF ¶ 33.

PSUF ¶ 33.

Moody then “flipped” the

Decedent was still

Moody then searched the decedent for
PSUF

The search of decedent’s body and clothing did not

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Both sides agree that Rangel wanted to avoid contaminating the
scene. Defendants assert that he also pulled her away because
she was disobeying his orders.

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Plaintiff says “undisputed” to defendants’ “reasonably and
properly” characterizations and “safety reasons” explanation.
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Plaintiff again says “undisputed” to defendants’ “reasonably
and properly” characterizations and “safety reasons” explanation.

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Plaintiffs characterize this as a strip search because, they
assert, Moody pulled decedent’s pants or underwear down.
Defendants say it was not a strip search because Moody only
lifted decedent’s underwear briefly and glanced at the buttocks
area. The court notes the following language from the Supreme
Court, referring to the search of a person who, unlike the
mortally wounded decedent, is still conscious and able to follow
directions:
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produce a knife or a gun, or any other weapon.

PSUF ¶ 35.

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From the time of the search until medical help arrived, the

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scene was sufficiently secure that medical assistance could have

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been given to the decedent.

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neither Moody nor any other police officer at the scene provided

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any medical assistance to the decedent as he lay dying.

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¶ 38.

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retrieve a trauma kit from his patrol car, and he cut off

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decedent’s shirt.

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PSUF ¶ 38.

During that time,

PSUF

However, Moody did eventually request that someone

PSUF ¶ 37.

However, paramedics arrived and

Moody did not take any further action regarding the decedent.

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[S]ome cases of this Court refer to a “strip
search.”
The term is imprecise.
It may
refer simply to the instruction to remove
clothing while an officer observes from a
distance of, say, five feet or more; it may
mean a visual inspection from a closer, more
uncomfortable
distance;
it
may
include
directing detainees to shake their heads or
to run their hands through their hair to
dislodge what might be hidden there; or it
may involve instructions to raise arms, to
display foot insteps, to expose the back of
the ears, to move or spread the buttocks or
genital areas, or to cough in a squatting
position.
Florence v. Board of Chosen Freeholders of County of Burlington,
566 U.S. ___, 132 S. Ct. 1510, 1515 (2012). The court also notes
this definition of “strip search” contained in the California
Penal Code:
As used in this section, “strip search” means
a search which requires a person to remove or
arrange some or all of his or her clothing so
as to permit a visual inspection of the
underclothing,
breasts,
buttocks,
or
genitalia of such person.

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Cal. Penal Code § 4030(c).
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PSUF ¶ 37; Exh. A.
8.
The on-scene investigation.

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Officer Ranch Johnson (not a defendant), looked for evidence
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at the scene of the shooting.

PSUF ¶ 39.

He found a “black

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clip-on knife” holder attached to decedent’s belt and a knife in
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the bed of the truck on the “driver’s side tailgate.”

Id.

He

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also found black tweezers on the ground near the passenger’s side
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of the truck.

Id.

The tweezers did not belong to any of the

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officers at the scene.

PSUF ¶ 41.

In addition, Johnson found a

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glass drug pipe on the lawn and shell casings scattered about.
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Id.
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9.

Defendant David Bricker, Chief of Police.

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Defendant Bricker was the Chief of Police at the time of the
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shooting; he is now retired.

PSUF ¶ 42; DSUF ¶ 1.

Bricker went

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to the scene and transported Moody back to the police station.
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PSUF ¶ 43.

Bricker watched the dash cam video of the shooting

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the next morning.

PSUF ¶ 45.

Before the DA’s investigation was

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completed, but after getting a preliminary view from the DA
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investigator, Bricker formed a “preliminary opinion” that the
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shooting was justified, and was within police department policy.
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He emailed his view to all police department staff.

PSUF ¶ 44.

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Bricker also publicly announced to the press, before the DA’s
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investigation was completed, that the shooting was justified, and
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that the police department stood behind Moody.

PSUF ¶¶ 47-48;

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DSUF ¶ 12-13.
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10.

The DA’s investigation.

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The San Joaquin County District Attorney’s Office

(not a

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defendant) conducted an investigation into the shooting.
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Accord,

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PSUF ¶ 48.

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protocol that ensured that Chief Bricker would not be involved.

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DSUF ¶ 9 & 10.

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was justified, and the City was so notified.

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police department then conducted a “shooting review panel,” and

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determined that Moody “acted properly during this incident.”

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DSUF ¶ 30.

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The investigation was properly conducted under a

This investigation concluded that the shooting
DSUF ¶ 28.

The

Nick Obligacion (not a defendant) became Chief of Police
while the investigation was still on-going.

He also concluded

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that the shooting was justified and within police department

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policies.

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PSUF ¶¶ 50 & 51.
11.

Officer Moody – training and qualifications.

The State of California operates the Commission on Peace

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Officer Standards and Training (“POST”), which specifies the

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training requirement for peace officers, including Moody,

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throughout the state.

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officer to go on duty as a peace officer, that officer must meet

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POST required firearm qualifications or requalifications for his

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service weapons.

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officer is required to achieve a passing score on one of up to

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three “attempts” in order to pass the requalification.

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Receiving a non-passing score on at “attempt” is not a failure of

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the requalification attempt, however flunking all three attempts

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“constitutes a failure of the requalification exam.”

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Bricker Decl. at 2.

Id., at 3.

In order for an

Under the City’s testing methods, n

Id.

Id.

According to an apparently official document discussed

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during Bricker’s “confidential” deposition, Moody failed a

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firearm requalification on or about May 12, 2008.

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Portion of Bricker Depo. at 66.

Confidential

The deposition discussion is not
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entirely clear about what happened, but from the language of the

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document – “Test 1, fail.

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that Moody flunked all three attempts, and later passed in a

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remedial exam.

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firearms exam by flunking all three attempts.

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Portion of Bricker Depo. at 73.

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eventually passed the requalification.

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2011 Moody again failed the firearm requalification exam by

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flunking all three attempts, “during a nighttime shooting

Remedial, pass.” – the court infers

On December 7, 2010, Moody again failed the
Confidential

It appears that once again Moody

Bricker Decl. at 3-4.16

See id.

On February 9,

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scenario.”

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pass the exam on his next attempt the next day, after an apparent

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defect in the weapon was corrected.

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12.

However, Moody was able to

Id.

Policy.

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Police department policy is that a police officer must

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qualify and then periodically re-qualify on his firearm in order

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to carry that firearm on duty.

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at 78.

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flunked all three attempts), and then flunked the remedial exam

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(that is, again flunked all three attempts), police department

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policy would be to notify Bricker, who would then take action to

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take the officer’s gun away from him.

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Depo. at 64-65.

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See Confidential Bricker Depo.

If an officer failed a requalification exam (that is,

See Confidential Bricker

Short of being unable to pass on the remedial exam, if an

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officer has “a continuing pattern of failing the first time and

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Bricker declares that Moody “only failed one firearms skills
test,” which occurred on February 9, 2011. Bricker Decl. at 3.
However, he offers no explanation for his prior testimony
discussing Moody’s apparent failures on or about May 12, 2008,
and on December 7, 2010.

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passing on the remedials,” then policy is to “reassign them to

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additional firearms training.”

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Confidential Bricker Depo at 68.

III. STANDARDS

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A.

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Summary judgment is appropriate “if the movant shows that

Summary Judgment.

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there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.”

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P. 56(a); Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (it is the

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movant’s burden “to demonstrate that there is ‘no genuine issue

Fed. R. Civ.

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as to any material fact’ and that the movant is ‘entitled to

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judgment as a matter of law’”); Walls v. Central Contra Costa

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Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011) (per curiam)

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(same).

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

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court “determines that a ‘genuine dispute as to [a] material

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fact’ precludes immediate entry of judgment as a matter of law.”

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Ortiz v. Jordan, 562 U.S. ___, 131 S. Ct. 884, 891 (2011),

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quoting Fed. R. Civ. P. 56(a); Comite de Jornaleros de Redondo

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Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011)

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(en banc) (same), cert. denied, 132 S. Ct. 1566 (2012).

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Under summary judgment practice, the moving party bears the

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initial responsibility of informing the district court of the

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basis for its motion, and “citing to particular parts of the

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materials in the record,” Fed. R. Civ. P. 56(c)(1)(A), that show

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“that a fact cannot be ... disputed.”

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Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re

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Oracle Corp. Securities Litigation), 627 F.3d 376, 387 (9th Cir.

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2010) (“The moving party initially bears the burden of proving
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Fed. R. Civ. P. 56(c)(1);

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the absence of a genuine issue of material fact”) (citing Celotex

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v. Catrett, 477 U.S. 317, 323 (1986)).

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A wrinkle arises when the non-moving party will bear the

4

burden of proof at trial. In that case, “the moving party need

5

only prove that there is an absence of evidence to support the

6

non-moving party’s case.” Oracle Corp., 627 F.3d at 387.

7

If the moving party meets its initial responsibility, the

8

burden then shifts to the non-moving party to establish the

9

existence of a genuine issue of material fact.

Matsushita Elec.

10

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986);

11

Oracle Corp., 627 F.3d at 387 (where the moving party meets its

12

burden, “the burden then shifts to the non-moving party to

13

designate specific facts demonstrating the existence of genuine

14

issues for trial”).

15

rely upon the denials of its pleadings, but must tender evidence

16

of specific facts in the form of affidavits and/or other

17

admissible materials in support of its contention that the

18

dispute exists.

19

In doing so, the non-moving party may not

Fed. R. Civ. P. 56(c)(1)(A).

“In evaluating the evidence to determine whether there is a

20

genuine issue of fact,” the court draws “all reasonable

21

inferences supported by the evidence in favor of the non-moving

22

party.”

23

considers inferences “supported by the evidence,” it is the non-

24

moving party’s obligation to produce a factual predicate as a

25

basis for such inferences.

26

Lines, 810 F.2d 898, 902 (9th Cir. 1987).

27

“must do more than simply show that there is some metaphysical

28

doubt as to the material facts ....

Walls, 653 F.3d at 966.

Because the court only

See Richards v. Nielsen Freight

14

The opposing party

Where the record taken as a

1

whole could not lead a rational trier of fact to find for the

2

nonmoving party, there is no ‘genuine issue for trial.’”

3

Matsushita, 475 U.S. at 586-87 (citations omitted).

4

B.

5

At the summary judgment stage, facts must be
viewed in the light most favorable to the
nonmoving party only if there is a “genuine”
dispute as to those facts. Fed. Rule Civ.
Proc. 56(c). …
When opposing parties tell
two different stories, one of which is
blatantly contradicted by the record, so that
no reasonable jury could believe it, a court
should not adopt that version of the facts
for purposes of ruling on a motion for
summary judgment.

6
7
8
9
10
11
12
13
14
15

Summary Judgment in the Video Age.

That was the case here with regard to the
factual issue whether respondent was driving
in such fashion as to endanger human life.
Respondent's version of events is so utterly
discredited by the record that no reasonable
jury could have believed him.
The Court of
Appeals should not have relied on such
visible fiction; it should have viewed the
facts in the light depicted by the videotape.

16

Scott v. Harris, 550 U.S. 372, 380-381 (2007) (granting

17

defendant’s motion for summary judgment, and holding that

18

defendant’s action in forcing the plaintiff – a fleeing suspect –

19

off the road, rendering him a quadriplegic, was reasonable in

20

light of the videotape showing the danger the suspect posed to

21

the public, because no reasonable jury could have found that

22

defendant’s actions were unreasonable).

23
24

IV.

ANALYSIS – STANDING

All defendants move for summary judgment against all

25

plaintiffs on all claims.

26

summary judgment.

27

In the alternative, they seek partial

In the First Cause of Action (“Claim 1”), Whitney Duenez and

28
15

1

D.D. assert a claim for “Wrongful Death 42 U.S.C. Section 1983.”17

2

Plaintiffs have never been clear about whether their first claim

3

is a state claim for “wrongful death,” or a federal claim under

4

42 U.S.C. § 1983.

5

it to be a federal claim under Section 1983, in which plaintiffs

6

allege that decedent’s death was wrongful because it violated

7

decedent’s rights under the Fourth and Fourteenth Amendments to

8

the U.S. Constitution.

9

having amended their original complaint, plaintiffs now

However, the court has previously interpreted

See ECF No. 35 at 22-23.

Moreover,

10

specifically assert a state claim for wrongful death in their

11

Seventh Cause of Action (“Claim 7”) (“Negligence – Wrongful

12

Death”).

13

federal claims under 42 U.S.C. § 1983 only, and that it does not

14

assert any state claims.

15

1 as asserting survival claims, as they involve rights that are

16

personal to the decedent.

17
18
19
20
21
22
23
24
25
26
27

Accordingly, the court reconfirms that Claim 1 contains

In addition, the court construes Claim

18

Defendants move to dismiss Claim 1 because (1) D.D., who is
17

Defendants previously moved to dismiss this claim, asserting
that there is no federal claim for “wrongful death.” ECF No. 27
at 10. The motion was denied because the claim was a federal
claim alleging excessive force and denial of the right to medical
care under the Fourth and Fourteenth Amendments and Section 1983.
ECF No. 35.
18

The original complaint asserted that all plaintiffs and
decedent were deprived of their constitutional rights to be free
from unreasonable searches and seizures by the shooting and
killing of decedent. See ECF No. 1 ¶ 32. The court granted
defendants’ motion to dismiss this claim in part, but permitted
the claim to proceed as brought by decedent’s widow, as she was
the only person alleged to be his successor-in-interest. ECF
No. 21 at 14-15 (“only Whitney Duenez may assert a claim for
violation of the decedent’s Fourth Amendment rights”). The court
dismissed the claim as to all other plaintiffs. Id.

28
16

1

not alleged to be decedent’s personal representative or successor

2

in interest has no standing to bring a survivor claim, and

3

(2) the claim duplicates the survival claim brought by Whitney

4

Duenez in the fourth claim.

5

A.

6

Claim 1 is a federal Section 1983 claim arising from two

7
8
9
10
11
12
13
14

D.D.

alleged constitutional violations.
“In § 1983 actions, ... 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. 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.” Moreland v. Las
Vegas Metro. Police Dep't, 159 F.3d 365, 369
(9th Cir. 1998) (internal citation omitted).

15

Hayes v. County of San Diego, ___ F.3d ___, 2013 WL 6224281 at

16

*2, 2013 U.S. App. LEXIS 23939 (9th Cir. 2013).

17

In California, with exceptions not asserted to apply here,

18

“a cause of action for or against a person is not lost by reason

19

of the person's death, but survives subject to the applicable

20

limitations period.”

21

cause of action that survives the death of the person entitled to

22

commence an action or proceeding passes to the decedent's

23

successor in interest … and an action may be commenced by the

24

decedent's personal representative or, if none, by the decedent's

25

successor in interest.”

26

brought by the successor in interest to a decedent pursuant to

27

Section 377.30 is a “survival” claim.

28

196 Cal. App. 4th 71, 78-79 (2nd Dist. 2011) (“[s]urvival causes

Cal. Code Civ. P. § 377.20.

Further, “[a]

Cal. Code Civ. P. § 377.30.

17

The action

Adams v. Superior Court,

1

of action are governed by section 377.30).

2

death claim, “’the survival statutes do not create a cause of

3

action but merely prevent the abatement of the decedent's cause

4

of action and provide for its enforcement by the decedent's

5

personal representative or successor in interest.’”

6

San Diego Gas & Electric Co. v. Superior Court, 146 Cal. App. 4th

7

1545, 1553 (4th Dist. 2007)).

Unlike a wrongful

Id. (quoting

8

Therefore, D.D. has standing to assert this claim as a

9

survival claim if he is a successor in interest to the decedent.

10

The court dismissed D.D.’s claim in the original complaint, with

11

leave to amend, because there was no allegation that he was a

12

successor in interest, and because none of the statutory

13

requirements for making D.D. a successor in interest were

14

apparent.

15

Plaintiffs have now submitted a declaration from Whitney Duenez

16

establishing that she and D.D. have fulfilled the legal

17

requirements for making them both the successors in interest to

18

the decedent.

19

Complaint still does not allege that D.D. is a successor in

20

interest.

21

willing to amend the complaint to allege that D.D. is suing as a

22

co-successor in interest.

23

plaintiffs’ strange way of addressing this issue, the court will

24

construe Claim 1 by D.D. to be a survival action.

25

standing to bring this survival action, as it is undisputed at

26

this point that he is a successor in interest to his father’s

ECF No. 21 at 14 & n.3; see Cal. Civ. Proc. § 377.32.

ECF No. 66.19

Inexplicably, however, the amended

Plaintiffs have nevertheless asserted that they are

Accordingly, notwithstanding the

27
19

Defendants have not challenged that declaration.

28
18

D.D. has

1

estate.

2

B.

3

Defendants seek summary judgment against Whitney Duenez on

Whitney Duenez.

4

Claim 1, arguing that the claim duplicates the Fourth Cause of

5

Action (“Claim 4”), which is expressly labeled as a Section 1983

6

survival claim.

7

“distinct,” but their argument is unintelligible on this point.

8

Among other problems, plaintiffs use the language of “wrongful

9

death” and “survival” claims interchangeably.

Plaintiffs argue that the two claims are

See ECF No. 97 at

10

15 (referring to the first claim as a “Wrongful Death” claim for

11

damages decedent could have sued for “had he survived” the

12

incident).

13

claims.

14

is “based on personal injuries resulting from the death of

15

another,” whereas “survival actions … are based on injuries

16

incurred by the decedent”).

17

However, these terms refer to entirely different

See Hayes, 2013 WL 6224281 at *3 (wrongful death claim

Indeed, instead of distinguishing the two claims,

18

plaintiffs’ arguments simply confirm that the two claims are both

19

survival claims, even though the first claim does not contain the

20

language of a survival claim.

21

claim is for “Fourth and Fourteenth Amendment violations the

22

Decedent Duenez suffered and damages for which he would have been

23

entitled to recover had he survived.”

24

a “survival claim” under California law.

25

“Fourth and Fourteenth Amendment violations that Decedent Duenez

26

suffered for damages that he is entitled to which survive his

27

death.”

28

Both survival claims are brought under 42 U.S.C. § 1983 against

According to plaintiffs, the first

ECF No. 97 at 15.

That is

The fourth claim is for

That is also a “survival claim” under California law.

19

1

Moody, for violations of the Fourth and Fourteenth Amendments to

2

the U.S. Constitution.

3

interest to the decedent.

4

Both are brought by the successors in

What is distinct about the claims is that Whitney Duenez’s

5

Claim 4 contains a survival Due Process claim for deprivation of

6

familial relationships, which is missing from Claim 1.20

7

Duenez’s survival Fourth Amendment claim of Claim 1 does

8

duplicate her survival Fourth Amendment claim of Claim 4,

9

however, and so that claim will be dismissed from Claim 1.

10

V.

Whitney

QUALIFIED IMMUNITY

11
A. Claims 1 and 4 – Fourth Amendment Claims Based Upon
Moody’s Shooting of Decedent.

12
13
14

The Complaint’s first and fourth claims assert Fourth

15

Amendment survival claims against Moody arising from Moody’s

16

actions in shooting and killing the decedent.

Moody argues that

17
18
19
20
21
22
23
24
25
26
27

20

However, as this court has previously held,
[a]llowing a decedent, through his estate, to
sue for his own lost relationships with
family members based on his death, and not
the death of another family member during his
life, violates common sense. Cf. Crumpton v.
Gates, 947 F.2d 1418, 1422 (9th Cir. 1991)
(“Assume parent and child were run over and
killed by a driver who was at fault. While
both estates could sue for wrongful death,
neither could make out a claim for loss of
familial companionship, for neither would
appreciate the loss of the other.”) (dicta).

ECF No. 35 at 23-24. Accordingly, the court will sua sponte
dismiss the portion of the Fourth Cause of Action which asserts a
survival Section 1983 claim for decedent’s loss of familial
relationships.

28
20

1

he is entitled to qualified immunity on those claims because the

2

video shows beyond reasonable dispute that “a reasonable officer

3

in his position, facing a knife-wielding suspect, could have

4

believed that the use of deadly force was reasonably necessary.”

5

ECF No. 80-1 at 35-36.

6

that they are entitled to summary judgment on these claims

7

because the video of the encounter shows beyond reasonable

8

dispute that Moody used excessive deadly force against the un-

9

armed, non-dangerous decedent, an assertion addressed below.

10
11
12
13
14

Plaintiffs are correct that a reasonable jury could view the
video as they describe it.

19
20
21
22
23

Accordingly,

summary judgment must be denied to both, and the matter must be
submitted to the jury.
1.

16

18

Moody is correct that a reasonable

jury could view the video as he describes it.

15

17

The court notes that plaintiffs assert

Fourth Amendment – excessive force.

The Fourth Amendment forbids a police officer from seizing
“an unarmed, nondangerous suspect by shooting him dead.”
Tennessee v. Garner, 471 U.S. 1, 11 (1985).21

Viewing the

evidence, especially the video, in the light most favorable to
plaintiffs, a reasonable jury could conclude that Moody seized
the decedent, a visibly unarmed, non-dangerous civilian, by
shooting him dead.

See Exh. A.

At a minimum, a reasonable jury

could find that Moody’s continued shooting of decedent, even

24
21

25
26
27

“Whenever an officer restrains the freedom of a person to walk
away, he has seized that person. While it is not always clear
just when minimal police interference becomes a seizure, there
can be no question that apprehension by the use of deadly force
is a seizure subject to the reasonableness requirement of the
Fourth Amendment.”
Garner, 471 U.S. at 7 (citations omitted).

28
21

1

after he had crumpled to the ground, was an excessive use of

2

force.

3

2.

4

“The doctrine of 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.’”
Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)).
Qualified
immunity
“gives
government officials breathing room to make
reasonable
but
mistaken
judgments,”
and
“protects ‘all but the plainly incompetent or
those who knowingly violate the law.’”
Ashcroft v. al-Kidd, 563 U.S. ––––, ––––, 131
S. Ct. 2074, 2085 (2011) (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)). “[W]hether
an official protected by qualified immunity
may
be
held
personally
liable
for
an
allegedly unlawful official action generally
turns on the ‘objective legal reasonableness'
of the action, assessed in light of the legal
rules that were ‘clearly established’ at the
time it was taken.”
Anderson v. Creighton,
483 U.S. 635, 639 (1987) (citation omitted).

5
6
7
8
9
10
11
12
13
14
15

Qualified immunity.

16
17

Messerschmidt v. Millender, 565 U.S. ___, 132 S. Ct. 1235, 1244-

18

45 (2012).

19

Because Moody is sued for conduct he undertook while in the

20

line of duty, this court’s inquiry into his claim of qualified

21

immunity must balance two competing interests, namely, “‘the need

22

to shield officials from harassment, distraction, and liability

23

when they perform their duties reasonably,’” but also, “‘the need

24

to hold public officials accountable when they exercise power

25

irresponsibly.’” Johnson v. Bay Area Rapid Transit Dist., 724

26

F.3d 1159, 1168 (9th Cir. 2013) (quoting Pearson, 555 U.S. at

27

231).

28
22

1

This court applies a two-part test to determine whether this

2

case is about the former, a reasonable exercise of power, or the

3

latter, an irresponsible exercise of power.

4

this is a summary judgment motion, the court must decide in the

5

first step whether, viewing the facts in the light most favorable

6

to plaintiffs, those facts demonstrate that Moody’s conduct

7

“violated one or more of the plaintiffs’ constitutional rights.”

8

Johnson, 724 F.3d at 1168 (citing Pearson, 555 U.S. at 236).22

9

the second step, the court must decide “whether the right at

Keeping in mind that

10

issue was ‘clearly established’ at the time of defendant's

11

alleged misconduct.”

12

this court, understanding that a “reasonable officer avoids

13

committing acts that have been clearly established as

14

unconstitutional,” asks whether “the reasonable officer also

15

would have committed the act that the plaintiffs contend is

16

unconstitutional.”

17

to qualified immunity unless his conduct “violated a clearly

18

established constitutional right.”

In

19

Pearson, 555 U.S. at 232.

Johnson, 724 F.3d at 1168.

Put another way,

Moody is entitled

Pearson, 555 U.S. at 232.

Accordingly, even though a reasonable jury could find that

20

Moody violated decedent’s Fourth Amendment right to be free from

21

the official use of deadly force, as discussed above, Moody can

22

still claim qualified immunity if the right was not “clearly

23

established” at the time of the shooting.

24
22

25
26
27
28

Although the Supreme Court previously mandated that this be the
“first” step, Saucier v. Katz, 533 U.S. 194 (2001), it has since
retreated from that view, leaving it up to the district court to
decide which step to consider first. Pearson, 555 U.S. at 236
(“we now hold that the Saucier protocol should not be regarded as
mandatory in all cases,” although “we continue to recognize that
it is often beneficial”); Johnson, 724 F.3d at 1168.
23

1

The court finds that it was clearly established at the time

2

of the shooting that it was a Fourth Amendment violation to seize

3

an unarmed, non-dangerous civilian by shooting him dead.

4

Garner, 471 U.S. at 11; Torres v. City of Madera, 648 F.3d 1119,

5

1128 (9th Cir. 2011) (“few things in our case law are as clearly

6

established as the principle that an officer may not “seize an

7

unarmed, nondangerous suspect by shooting him dead” in the

8

absence of “probable cause to believe that the [fleeing] suspect

9

poses a threat of serious physical harm, either to the officer or

See

10

to others”), cert. denied, 565 U.S. ___, 132 S. Ct. 1032 (2012).

11

Moody’s 15-line qualified immunity argument fairly begs not

12

to be taken seriously.

13

exonerate Moody, without reference to any actual evidence adduced

14

in the case.

15

officer would have shot decedent because decedent was a “knife-

16

wielding” suspect, who was “waving a knife er[r]atically.”

17

No. 35-36.

18

Statement of Undisputed Facts (ECF No. 80-2) that even asserts

19

that the decedent was in possession of a knife when he exited the

20

truck, or was “wielding” a knife at that time, much less that

21

decedent was waving it “erratically,” when Moody shot him.

22

the contrary, the video of the shooting shows that there may be

23

something briefly in decedent’s hand, but it is not clear beyond

24

reasonable dispute that it is a knife, or a weapon of any kind.

25

See Exh. A.

26

waving a knife erratically.

27

conclusively that the decedent did not wave any knife (or

28

whatever it was that briefly appeared in his hand), erratically

It simply asserts facts that might

Moody argues, specifically, that any reasonable

ECF

Moody does not identify any place in his Separate

To

The video certainly does not show the decedent
To the contrary, the video shows

24

1

or in a threatening manner.23

2

could find that Moody violated the decedent’s clearly established

3

Fourth Amendment rights by seizing an unarmed, non-dangerous

4

civilian by shooting him dead.

5

Accordingly, a reasonable jury

The court accordingly will deny Moody’s motion for summary

6

judgment on the survival claims of Claims 1 and 4, asserting

7

Fourth Amendment violations arising from shooting the decedent.

8

B.

Claim 1 – Qualified Immunity for Not Personally
Providing Medical Care.

9
10

The Complaint alleges that after the shooting, and after the

11

scene had been secured, neither Moody nor any other police

12

officer present personally gave the decedent any medical care.

13

Plaintiffs assert that this violated decedent’s Fourth Amendment

14

and Due Process rights to medical care.

15

However, it is undisputed that after the shooting,

16

“emergency medical care was immediately summoned.”

17

DSUF ¶ 19.24

23

23

In any event, the mere possession of a knife by the decedent,
without more, is not enough to conclusively render the use of
deadly force “reasonable.” Rather, the “most important” factor
in determining the reasonableness of the use of deadly force is
whether the decedent posed an “immediate threat” to Moody’s
safety, or the safety of others. Glenn v. Washington County, 673
F.3d 864, 872 (9th Cir. 2011) (in concluding that the decedent
(Lukus) was a danger, “the district court relied primarily on
Lukus' possession of a knife.” This was error, because “although
there is no question this is an important consideration, it too
is not dispositive”).

24

24

18
19
20
21
22

25
26
27
28

Plaintiffs say this is “Disputed,” citing the deposition
testimony of John J. Ryan. Plaintiff’s Objections to DSUF (ECF
No. 92) ¶ 19. However, Ryan’s testimony confirms that medical
aid was summoned immediately. Ryan Depo. (ECF No. 98-4) at 22.
Ryan takes issue with the police failure to personally render aid
to the decedent. Accordingly, what is disputed in the full
statement (DSUF ¶ 19), is whether the officers on the scene
“properly” did nothing other than wait for medical assistance to
25

1

Defendants argue that immediately calling for medical assistance

2

is all the constitution requires after they have shot someone.

3

Plaintiffs argue that Moody had a constitutional duty to

4

personally render assistance to decedent after shooting him.

5

Moody is entitled to qualified immunity on this claim.

6

Maddox v. City of Los Angeles, 792 F.2d 1408, 1415 (9th

7

Cir. 1986), the police officers mortally wounded a suspect by

8

applying a “choke hold” in the process of arresting him.

9

In

subduing the suspect, the police drove him to the hospital.

After

10

After arriving at the hospital, the officers “had difficulty

11

finding a pulse.”

12

they did not use it to save the suspect.

13

to the jail ward on the thirteenth floor of the hospital.

14

Despite the medical staff’s subsequent use of CPR, the suspect

15

was pronounced dead later that morning.

16

clear that taking the mortally wounded suspect to the hospital

17

and up to the jail ward was all the constitution required:

18

Although the officers were trained in CPR,
Instead, they took him

The Ninth Circuit was

The due process clause requires responsible
governments and their agents to secure
medical care for persons who have been
injured while in police custody.
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.
Due
process requires that police officers seek
the
necessary
medical
attention
for
a
detainee when he or she has been injured
while being apprehended by either promptly
summoning the necessary medical help or by
taking the injured detainee to a hospital.

19
20
21
22
23
24
25

Maddox, 792 F.2d at 1415 (emphasis added); accord, City of Revere
26
27
arrive.
28
26

1

v. Massachusetts General Hosp., 463 U.S. 239, 244-245 (1983)

2

(although “[t]he Due Process Clause … does require the

3

responsible government or governmental agency to provide medical

4

care to persons … who have been injured while being apprehended

5

by the police,” the government “fulfilled its constitutional

6

obligation by seeing that [the suspect] was taken promptly to a

7

hospital that provided the treatment necessary for his injury”);

8

accord Tatum v. City and County of San Francisco, 441 F.3d 1090,

9

1099 (9th Cir. 2006) (in a case where the police did not cause

10

the injury, the Ninth Circuit held “that a police officer who

11

promptly summons the necessary medical assistance has acted

12

reasonably for purposes of the Fourth Amendment, even if the

13

officer did not administer CPR”).

14

Plaintiffs argue that the constitution requires the officers

15

to personally administer medical care to a person whom they

16

injure.

17

the above cases, nor do they identify even a single case that

18

holds that personal medical attention is required by the

19

constitution.

20

However, plaintiffs offer no contrary interpretation of

Because the undisputed facts show that Moody did not violate

21

the decedent’s right to medical care, the court will grant

22

Moody’s motion for summary judgment, on qualified immunity

23

grounds, on Claim 1’s assertion of a Due Process violation

24

arising from the alleged failure to provide medical assistance.

25

C.

26

Moody seeks qualified immunity for the search of decedent’s

Qualified Immunity for Search of Decedent.

27

body after the shooting.

28

alleges no claim predicated upon that search.

ECF No. 80-1 at 15-19.

27

The Complaint

However, both

1

parties treat the search as if it is alleged to be the predicate

2

for a Fourth Amendment claim, so the court will consider the

3

parties’ arguments.

4

Plaintiffs assert that Moody conducted a “public strip

5

search” of the decedent after the shooting, while decedent lay

6

dying.

7

assert qualified immunity for the search that did occur.

8

Defendants are entitled to qualified immunity unless their

9

conduct violated plaintiffs’ clearly established constitutional

10

rights.

11

Defendants, disputing that any “strip search” occurred,

See Johnson, 724 F.3d at 1168.

The constitutional right at issue here is decedent’s right

12

to be free from unreasonable searches.

13

assert that it is clearly established the police may not conduct

14

a “public strip search” of an unconscious (or semi-conscious),

15

mortally wounded arrestee on a parole violation, when the officer

16

had been informed that the decedent kept a gun in his butt-

17

cheeks.

18

Plaintiffs apparently

However, even assuming that such a search violated

19

decedent’s Fourth Amendment rights, that is only the first half

20

of the qualified immunity inquiry.

21

burden of establishing that the unconstitutional nature of the

22

search was “clearly established.”

23

makes no mention of this, and no attempt to show how such a

24

violation was clearly established.25

25

25

26
27
28

Plaintiffs still bear the

Plaintiffs’ opposition brief

However, in their own motion

Its cases do not show it, either. See Way v. County of
Ventura, 445 F.3d 1157, 1163 (9th Cir. 2006) (although the strip
search was unconstitutional, defendants were entitled to
qualified immunity because “a reasonable official in the position
of Brooks and Hanson would not have understood that following the
jail's policy violated Way's rights because the
28

1

for summary judgment on this claim, plaintiffs assert that “it

2

was long established that public strip searches of even parolees

3

pursuant to an arrest warrant are unconstitutional absent exigent

4

circumstances and probable cause,” citing Foster v. City of

5

Oakland, 621 F. Supp. 2d 779, 791 (N.D. Cal. 2008).

6

The court interprets plaintiffs’ argument to be that the

7

Fourth Amendment right alleged to be violated here is clearly

8

established, apparently by Foster.

9

clearly established ‘[i]f the only reasonable conclusion from

However, “[a] right is

10

binding authority were that the disputed right existed.’”

11

Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1389 (9th Cir. 1997)

12

(emphasis added) (quoting Blueford v. Prunty, 108 F.3d 251, 255

13

(9th Cir. 1997)).

14

authority from which this court could conclude that the search at

15

issue here is a violation of decedent’s Fourth Amendment rights.

16

Even if Foster were binding authority, and it is not, it does not

17

establish that the search at issue here was unconstitutional, nor

18

is such a conclusion the only reasonable one to be drawn from

19

Foster.

20

Plaintiffs have not identified the binding

In Foster, the plaintiffs were subjected to far more

21

intrusive searches than was involved here.

22

one plaintiff, purportedly for loitering with intent to sell

The police stopped

23
24
25
26
27

unconstitutionality of the search they conducted was not clearly
established at the time”), cert. denied, 549 U.S. 1052 (2006);
Smith v. City of Oakland, 2011 WL 3360451 at *3 (N.D. Cal. 2011)
(strip search – which involved pulling the suspects “underwear
halfway down” – was not justified during a “parole search” where
the suspects had not engaged in any unlawful behavior, and were
not in violation of parole, but were just driving their gold
Cadillac around town).

28
29

1

narcotics,26 handcuffed him, searched his testicles by hand,

2

forced him over the hood of a patrol car, pulled his pants and

3

underwear down to his knees, spread his buttocks apart and

4

visually searched his anus, in public.

5

The police stopped the second plaintiff, purportedly to search

6

for contraband,27 handcuffed him, brought him to the front of a

7

house, pulled his pants down, ordered him to bend over, spread

8

his buttocks and conducted a visual search of his anus, in public

9

and in front of a crowd of people, including some of the

621 F. Supp. 2d at 783.

10

plaintiff’s acquaintances.

11

third plaintiff out of his car, purportedly to search for

12

contraband,28 handcuffed him, and after putting him in a patrol

13

car, pulled down his pants and underwear revealing his genitalia,

14

and visually searched him for about a minute.

15

each case, there is no question that a “strip search” was

16

involved, as the police pulled the person’s pants and underwear

17

down to their knees, exposing their buttocks and genitalia to

18

whoever was present.

19
20

Id., at 784.

The police pulled the

Id., at 784.

In

Foster found that the following criteria governed such
searches:

21

1) there must be exigent circumstances;

22

2) the search may only be performed on persons who have been

23
24
25
26
27

26

It turned out that this plaintiff was on the tail end of a five
year probation, and had no violations the entire time. All the
charges were later dropped. 621 F. Supp. 2d at 783.
27

No charges were ever brought against this plaintiff.
784.

Id., at

28

Id., at

No charges were ever brought against this plaintiff.
784.

28
30

1

lawfully arrested on probable cause and may not be performed on

2

anyone for whom there is no probable cause to arrest;

3
4

3) the search requires probable cause that is independent of
the probable cause found for the arrest; [and]

5

4) the search may only be performed when there is probable

6

cause to believe that the arrestee is in possession of weapons,

7

drugs or dangerous contraband.29

8
9

Even assuming these criteria are binding, or are derived
from binding authority, each of them is satisfied here according

10

to the undisputed evidence.

11

circumstances for conducting the search where it was done,

12

namely, the decedent was mortally wounded, and dragging or

13

carrying his body to a more private location would have been an

14

outrage in itself.

15

lawfully arrested; he was in violation of his parole, and had

16

“peed dirty.”

17

cause – independent of the probable cause to arrest – to search

18

decedent’s buttocks for a gun that other officers had advised him

19

might be hidden there.

20

There were plainly exigent

Plaintiffs do not contest that decedent was

Plaintiffs do not contest that there was probable

Equally important, the search of decedent plainly did not

21

involve exposing his body, or any part of it, to public view, his

22

pants and underwear were not pulled down, and there is no

23

evidence or assertion that anyone other than Moody and the police

24

could witness the search.

25

The court finds that it was not clearly established that the

26
27

29

A fifth factor involved invasive body cavity searches, which is
not alleged to have occurred here.

28
31

1

search that occurred here violated decedent’s Fourth Amendment

2

rights.

3

of Claims 1 and 4 will be granted.

4

VI.

5

A.

Defendants’ motion for summary judgment on this portion

SUMMARY JUDGMENT ON THE MERITS

Claim Two – Due Process – Deprivation of Familial
Relations.

6
7

All plaintiffs – decedent’s parents, his widow and his son –

8

sue Moody for deprivation of their constitutional rights to

9

familial relationships with decedent.

10

judgment on this claim.

11

1.

Moody seeks summary

12

Constitutional right - familial relationship.

All four plaintiffs – decedent’s widow, his parents and his

13

child – have a cognizable liberty interest in their familial

14

relationship with decedent that is protected by the Due Process

15

Clause of the Fourteenth Amendment.

16

1168-69;30 Curnow ex rel. Curnow v. Ridgecrest Police, 952 F.2d

17

321, 325 (9th Cir. 1991), cert. denied, 506 U.S. 972 (1992);31

18

Ching v. Mayorkas, 725 F.3d 1149, 1157 (9th Cir. 2013).32

19

Plaintiffs assert that Moody deprived them of this right when he

20

30

21
22

Johnson, 724 F.3d at

“The Ninth Circuit recognizes that a parent has a
constitutionally protected liberty interest under the Fourteenth
Amendment in the companionship and society of his or her child.”
Curnow ex rel. Curnow v. Ridgecrest Police, 952 F.2d 321, 325
(9th Cir. 1991).

23
31

24
25
26
27

“This Circuit has recognized that a child has a
constitutionally protected liberty interest under the Fourteenth
Amendment in the ‘companionship and society’ of her father.”
Hayes, 2013 WL 6224281 at *4 (quoting Curnow, 952 F.2d at 325).
32

“The right to marry and to enjoy marriage are unquestionably
liberty interests protected by the Due Process Clause.” Ching,
725 F.3d at 1157.

28
32

1

killed the decedent.

2

light most favorable to plaintiffs, deprived decedent’s family

3

members of their familial interests in a manner that “shocks the

4

conscience,” then his conduct “‘is cognizable as a violation of

5

due process.’”

6

v. Torres, 610 F.3d 546, 554 (9th Cir. 2010)33).

7

2.

8
9

If Moody’s conduct, when viewed in the

Hayes, 2013 WL 6224281 at *4 (quoting Wilkinson

Whether the shooting “shocks the conscience.”

In determining whether Moody’s conduct “shocks the
conscience,” the court must first decide which “standard of

10

culpability” applies.

11

Ninth Circuit jurisprudence are whether Moody acted with

12

(1) “deliberate indifference” to the harm he caused decedent, or

13

(2) a “purpose to harm” decedent.

14

1131, 1136 (9th Cir. 2008), quoting County of Sacramento v.

15

Lewis, 523 U.S. 833, 846 (1998).34

16

The two standards that are available from

Porter v. Osborn, 546 F.3d

The appropriate standard of culpability, in turn, depends

17

upon the type of situation that defendant finds himself in at the

18

time of the challenged action.

19

situation where “actual deliberation is practical,” then his

20

“deliberate indifference” to the harm he caused may be sufficient

21

to shock the conscience.

22

702, 707-08 (9th Cir. 2013) (quoting Wilkinson, 610 F.3d at 554).

23

On the other hand, if Moody made a “snap judgment” because he

24

found himself in an “escalating” and/or “fast paced” situation

25
26
27

33

If Moody found himself in a

Gantt v. City of Los Angeles, 717 F.3d

Cert. denied, 562 U.S. ___, 131 S. Ct. 1492 (2011).

34

Defendants unhelpfully ignore this dichotomy, arguing only that
Moody’s conduct did not meet the “purpose to harm” test. ECF
No. 80-1 at 35.

28
33

1

“presenting competing public safety obligations,” then his

2

conduct will not shock the conscience unless he acted “with a

3

purpose to harm” decedent that was “unrelated to legitimate law

4

enforcement objectives.”

5

Lewis, 523 U.S. 833).

6

Id.; Porter, 546 F.3d at 1139 (citing

By its nature, the determination of which situation Moody

7

actually found himself in is a question of fact for the jury, so

8

long as there is sufficient evidence to support both standards.

9

Cf., Gantt, 717 F.3d at 708 (trial court could properly have

10

omitted the “purpose to harm” jury instruction where “[n]one of

11

the evidentiary bases for this claim involved ‘a snap judgment

12

because of an escalating situation’”) (quoting Wilkinson, 610

13

F.3d at 554).

14

summary judgment, so long as the undisputed facts point to one

15

standard or the other.

16

appear to be certain circumstances that require the application

17

of one standard or the other.

18

The determination is also a proper matter for

Indeed, in the Ninth Circuit, there

For example, the fabrication of evidence for use at trial by

19

its nature involves deliberation, and therefore the fact-finder

20

can only apply the “deliberate indifference” standard.

21

Similarly, “the decision whether to disclose or withhold

22

exculpatory evidence is a situation in which ‘actual deliberation

23

is practical,’” thus requiring the application of the “deliberate

24

indifference” standard.

25

Francisco, 570 F.3d 1078, 1089 (9th Cir. 2009).

26

Id.

See Tennison v. City and County of San

On the other hand, the “purpose to harm” standard is

27

appropriate for situations involving high-speed car chases,

28

shoot-outs, and armed suspects (with weapons like knives or
34

1

automobiles) advancing threateningly on the police, as these

2

situations are rapidly “escalating,” requiring the police to make

3

“snap judgments.”

4

No. 7-cv-1738-DMS (JMA) (S.D. Cal. March 30, 2009) (Sabraw, D.J.)

5

(“the undisputed evidence show[ed] that Mr. Hayes was holding a

6

knife in a raised position and advancing on Deputy King

7

immediately before the shots were fired”), aff’d, 2013 WL

8

6224281; Wilkinson, 610 F.3d at 554 (“[w]ithin a matter of

9

seconds, the situation evolved from a car chase to a situation

See, e.g., Hayes v. County of San Diego, Case

10

involving an accelerating vehicle in dangerously close proximity

11

to officers on foot”); Porter, 546 F.3d at 1133 (“an urgent

12

situation” was involved where the decedent revved his car engine

13

and moved his car toward the police officers or their patrol

14

car); Moreland v. Las Vegas Metropolitan Police Dept., 159 F.3d

15

365, 372 (9th Cir. 1998) (police arrived to find a “gunfight in

16

progress” which “threatened the lives of the 50 to 100 people who

17

were trapped in the parking lot,” requiring them to “act

18

decisively,” as they were “without the luxury of a second chance’

19

to address a life-threatening situation”).35

20

In this case, the court finds that the submitted evidence

21

creates a genuine dispute about which standard of culpability

22

35

23
24
25
26
27

The court notes that the Ninth Circuit recently used the
“purpose to harm” standard without any discussion of whether it,
or the “deliberate indifference” standard, applied to the facts.
“Parents have a Fourteenth Amendment right to the companionship
of a child, which a police officer violates by ‘act[ing] with a
purpose to harm’ the child ‘that [is] unrelated to legitimate law
enforcement objectives.’ Porter v. Osborn, 546 F.3d 1131, 1137
(9th Cir. 2008).” Johnson, 724 F.3d at 1168-69. This court does
not read Johnson as overruling any prior precedent, and
accordingly will analyze both standards of culpability.

28
35

1

should apply in this case.

2

indifference” standard applies, there is a genuine dispute about

3

whether Moody acted with deliberate indifference.

4

“purpose to harm” standard applies, there is a genuine dispute

5

about whether Moody acted with a purpose to harm decedent beyond

6

any legitimate law enforcement objective.

Moreover, if the “deliberate

If the

7

When the evidence in this case, including the video, is

8

viewed in the light most favorable to plaintiffs, there is a

9

genuine dispute about whether Moody had the “luxury” of

10

deliberation.

11

shouting and movement going on, at no time does the decedent

12

appear to be doing anything other than trying to comply with

13

Moody’s shouted orders.

14

(viewed in the light most favorable to plaintiffs) shows that he

15

was hit and immediately fell to the ground, writhing in pain.

16

Once the decedent fell to the ground, any reasonable jury could

17

find that Moody had the opportunity to deliberate before he

18

resumed shooting.

19

decedent was unarmed during the entire encounter.

20

found that decedent had a knife in his hand, that alone would not

21

necessarily bring the situation into a “purpose to harm”

22

situation, since a reasonable jury could find that decedent was

23

not advancing on Moody, nor threatening him with the knife.

24

Although the video shows that there was much

After Moody begins shooting, the video

Moreover, a reasonable jury could find that
Even if it

However, even if a jury were to find that the situation was

25

rapidly escalating, and that Moody had to make snap judgments, it

26

could still find that Moody acted with an intent to harm the

27

decedent and without any legitimate law enforcement purpose.

28

video shows the action from before decedent’s truck drives into
36

The

1

view, through the pre-shooting, through the shooting, and through

2

the post-shooting activities.

3

most favorable to plaintiffs, shows Moody shooting an unarmed man

4

struggling to free his leg from a seatbelt strap so that he can

5

get out of a pickup truck, continuing to shoot him as he falls to

6

the ground, and continuing to shoot him after he falls, mortally

7

wounded, to the ground.

8

after the decedent could possibly have been a threat to anyone.

9

A reasonable jury could infer from the video that since Moody was

10

shooting decedent as he lay mortally wounded on the ground, there

11

may have been some other, non-law enforcement motivation behind

12

the shooting, namely, a purpose to harm the decedent.

13

That video, viewed in the light

It shows that Moody kept shooting long

Thus, a reasonable jury could find Moody acted with

14

deliberate indifference in a non-emergency situation, or that he

15

acted with a purpose to harm decedent.

16

dismiss Claim 2 will therefore be denied.

Defendants’ motion to

17

B.

18

For their Third Claim, Whitney Duenez and D.D. assert a

Claim Three – Monell Claim Against Bricker and City.

19

survival claim against Bricker and the City under Monell v. New

20

York City Dept. of Social Services, 436 U.S. 658 (1978), for

21

deprivation of decedent’s Fourth Amendment right to be free from

22

unreasonable searches and seizures, and a direct claim for

23

violation of their own Fourteenth Amendment rights to a familial

24

relationship.36

25

36

26
27

As discussed above, although D.D. is not alleged to be a
successor in interest to the decedent, plaintiffs have now
submitted a declaration (not challenged by defendants), that D.D.
is a co-successor in interest with Whitney Duenez. See ECF
No. 66.

28
37

1

There are two basic routes to municipal Monell liability

2

under Section 1983: (1) the City itself violated plaintiffs’

3

rights, or directed its employees to do so, acting with the

4

required state of mind; or (2) the City is responsible for a

5

constitutional tort committed by its employee.

6

of Washoe, Nev., 290 F.3d 1175, 1185-87 (9th Cir. 2002)

7

(describing “two routes” to municipal liability under

8

Section 1983 for deliberate indifference to inmate’s medical

9

needs), cert. denied, 537 U.S. 1106 (2003).37

10

Gibson v. County

In this case, plaintiffs assert that the City is responsible

11

for the constitutional torts committed by Moody.

12

the City is responsible only for its own “illegal acts,” and

13

cannot be held vicariously liable for the actions of its

14

employees.

15

1359-60 (2011).38

16

the part of the City for Moody’s conduct if they can establish

17

that, as a matter of City policy, (1) the City’s supervision of

18

Moody was so deficient that it constituted “deliberate

19

indifference” to those people Moody would come into contact with,

20

(2) its training of Moody was similarly deficient, or (3) the

21

City ratified, approved and/or encouraged Moody’s

22

unconstitutional conduct.

23

Under § 1983,

Connick v. Thompson, 563 U.S. ___, 131 S. Ct. 1350,
However, plaintiffs can establish liability on

A government entity may not be held liable
under 42 U.S.C. § 1983, unless a policy,
practice, or custom of the entity can be
shown to be a moving force behind a violation

24
25
37

26

Citing Board of County Comm’rs v. Brown, 520 U.S. 397, 404,
406-07 (1994) and Canton v. Harris, 489 U.S. 378, 387 (1989)).

27
38

Citing Monell, 436 U.S. at 692.

28
38

1

of constitutional rights. Monell v. Dep't of
Soc. Servs. of the City of New York, 436 U.S.
658, 694 (1978).
In order to establish
liability for governmental entities under
Monell, a plaintiff must prove “(1) that [the
plaintiff] possessed a constitutional right
of which [s]he was deprived; (2) that the
municipality had a policy; (3) that this
policy amounts to deliberate indifference to
the plaintiff's constitutional right; and,
(4) that the policy is the moving force
behind
the
constitutional
violation.”
Plumeau v. Sch. Dist. No. 40, County of
Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)
(internal
quotation
marks
and
citation
omitted; alterations in original).

2
3
4
5
6
7
8
9

Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011),
10
cert. denied, 569 U.S. ___, 133 S. Ct. 1725 (2013).
11
Plaintiffs will have the burden of proof on this issue at
12
trial, so they must identify facts in the record that would allow
13
the court to conclude that the City had such a policy or
14
practice.

Board of County Com’rs of Bryan County, Okl. V. Brown,

15
520 U.S. 397, 404 (1997 (“in Monell and subsequent cases, we have
16
required a plaintiff seeking to impose liability on a
17
municipality under § 1983 to identify a municipal ‘policy’ or
18
‘custom’ that caused the plaintiff's injury”).

As for Bricker,

19
he can be held liable under Section 1983 “only for his … own
20
misconduct,” he cannot be made to answer for the torts of those
21
under his supervision.

Iqbal, 556 U.S. at 677.

22
23

1.

24

[A] constitutional violation may arise from
training or supervision where the training or
supervision is sufficiently inadequate as to
constitute “deliberate indifference” to the
righ[t]s of persons with whom the police come
into contact. City of Canton v. Harris, 489
U.S. 378 (1989).
Canton dealt specifically
with
inadequate
training.
We
see
no
principled reason to apply a different

25
26
27
28

Inadequate supervision – Prior shooting incident.

39

1

standard to inadequate supervision.

2

Davis v. City of Ellensburg, 869 F.2d 1230, 1235 (9th Cir. 1989).

3

Plaintiffs assert that Bricker and the City (collectively,

4

“Bricker”), knew of repeated acts of misconduct by Moody, but

5

that they were “deliberately indifferent” to the constitutional

6

harms that could result from allowing Moody to continue to do

7

police work armed with his gun.

According to plaintiffs, Bricker knew that Moody had been

8
9

See Complaint ¶¶ 47 & 51.

involved in a prior shooting in which he fired an “excessive”

10

number of bullets into a car tire, yet Bricker allowed a

11

“trigger-happy” Moody to go back to police work with his gun.

12

According to plaintiffs’ argument, Bricker “ignored a pattern of

13

Defendant Moody using poor tactical judgment and even poorer

14

trigger control in deliberate indifference to the citizenry they

15

are sworn to protect.”

16

that “[t]he evidence reveals” that Moody was involved in a

17

shooting in which he “shot an excessive amount of times” at a

18

tire “that he was near to,” and that “[e]yewitnesses” criticized

19

Moody, saying that the shooting was unnecessary and excessive.

20

ECF No. 97.

ECF No. 97 at p.16.

Plaintiffs assert

In moving for summary judgment, defendants presented

21
22

admissible evidence relating to that incident.

23

evidence, in May 2010, Moody and his partner attempted to arrest

24

a suspect who had driven a stolen car into the parking lot of a

25

motel.

26

the process, threatened to run over Moody’s partner.

27

response, Moody “shot the tire out of the vehicle to disable it.”

28

Id.

Bricker Decl. at 2.

According to that

The driver attempted to flee, and in
Id.

In

Bricker and the police department “evaluated” the incident,
40

1

and concluded that Moody’s “use of force in that instance was

2

justified.”

3

not show a lack of proper supervision by Bricker.

4

Id.; DSUF ¶ 6.

This evidence, if undisputed, does

Plaintiffs have offered no admissible evidence to dispute

5

the account presented by defendants.

6

newspaper accounts purporting to report on witness accounts of

7

the incident.

8

“double hearsay.”

9

Educational Equality League, 415 U.S. 605, 618 & n.19 (1974)

10

(“Whether the testimony reflected the newspaper account or a

11

television report, it was nonetheless hearsay,” indeed, it was

12

“double hearsay”).

13

the deposition questions that plaintiffs’ counsel posed to

14

Bricker about the newspaper accounts of witnesses’ purported

15

accounts.

16

be quoting from the newspaper article, but instead he is merely

17

summarizing what he interprets the article to be saying.

18

Clearly, this is not admissible.

19

Plaintiffs offer, at most,

At best, this is hearsay within hearsay, or
See Mayor of City of Philadelphia v.

What plaintiffs actually offer, however, is

Indeed, plaintiffs’ counsel does not even purport to

Even if the questions about the newspaper accounts of the

20

purported witnesses’ statements could somehow be converted into

21

admissible evidence,39 it does not support their assertion that

22

39

23
24
25
26
27
28

As inadmissible as this “evidence” is, it is not even
accurately recounted by plaintiffs in their opposition. Nothing
in the deposition indicates that any purported witness described
the shooting as “excessive.” To the contrary, one of the
supposed witnesses was the motel manager, whose only comment,
apparently, was that he was upset that there was a shooting at
his motel. The other witness apparently felt that no amount of
shooting was justified because, he felt, the suspect could not
have gotten away. However, there is no indication that this
purported witness knew that the suspect, rather than trying to
get away, was trying to run down Moody’s partner.
41

1

Bricker ignored a “pattern” of “using poor tactical judgment and

2

even poorer trigger control.”

3

shooting does not a “pattern” make.

4

no evidence at all that the prior shooting involved an excessive

5

number of shots fired or was otherwise improper.

6

contrary, the only evidence here shows that Moody did not shoot

7

at the driver, he shot at the tire, a plainly restrained response

8

to a car that had already rammed a patrol car and was in the

9

process of trying to run over Moody’s partner.

See ECF No. 97 at p.16.

One prior

Moreover, plaintiffs offer

To the

Moreover, the

10

only review of this shooting was conducted by the police

11

department, including Bricker, which concluded that the shooting

12

was proper and justified.

13

This is the sole basis for plaintiffs’ assertion that the

14

City and Bricker are subject to supervisorial liability under

15

Section 1983.

16

at 1235 (reports showed officers were competent to remain on

17

duty, thus evidence fails to show supervisor acted with

18

deliberate indifference in not removing them from duty).

19
20
21
22

It is plainly insufficient.

See Davis, 869 F.2d

To the degree Claim 3 is predicated upon supervisory
liability, defendants are entitled to summary judgment.
2.

Inadequate training.

Plaintiffs base their “inadequate training” theory on

23

Moody’s performance in firearms tests.

24

discussed above, shows that on three separate occasions – May 12,

25

2008, December 7, 2010 and February 9, 2011 – Moody failed on the

26

requalification exam (that is, flunked all three attempts), and

27
28
42

The undisputed evidence,

1

then passed the remedial exam.40

2

repeated failures, followed by passes on remediation, Moody was

3

never required to undergo additional or remedial training on his

4

firearm.41

5

It appears that despite these

Viewing this evidence in the light most favorable to

6

plaintiffs, a reasonable jury could find that the City and

7

Bricker inadequately trained Moody by permitting him to

8

repeatedly keep re-taking his firearm exam until he passed,

9

rather than requiring additional training when he failed.

10
11

Defendants’ motion for summary judgment on Claim 3, to the
degree it is predicated upon inadequate training, will be denied.

12

3.

13

Ratification.

Plaintiffs’ ratification theory is predicated upon the

14

after-the-fact statements by Bricker that the shooting was

15

justified and was in accordance with police department policy.

16

This theory cannot prevail after Iqbal.

17

have caused the violation, not merely approved it after the fact.

18

There is no evidence of conduct on Bricker’s or the City’s part

19

that indicated that they approved of any conduct by Moody or

20

anyone else that could have lead to the excessive force allegedly

21

used here.

22

Bricker’s conduct must

Defendants are entitled to summary judgment on plaintiffs’

23
40

24

There is no evidence in the record that Moody ever failed to
qualify followed by a failure to pass the remedial exam.

25

41

26
27

Defendants do not address the proffered, and apparently
undisputed, evidence regarding Moody’s repeated failures, instead
referring only to the February 2011 failure as the only one. Nor
do defendants assert that the cited deposition testimony was
inaccurate or mistaken in any way.

28
43

1

ratification theory of liability.

2

C.

3

Section 52.1 of the California Civil Code provides a right

Claim Six – Cal. Civ. Code § 52.1.

4

of action to a person if his exercise or enjoyment of federal or

5

state rights is interfered with by anyone by “threats,

6

intimidation, or coercion.”42

7

this claim making exactly the same legal argument they made, and

8

that this court rejected, in their most recent motion to dismiss.

9

See Motion To Dismiss of December 21, 2011 (ECF No. 27) at p. 14

Defendants seek summary judgment on

10

(arguing that there is no claim where “‘the right [allegedly]

11

interfered with is the right to be free of the force … that was

12

applied’”); Order of February 23, 2012 (ECF No. 35) at pp. 30-32.

13

Defendants have presented no undisputed facts that would change

14

the outcome here, their argument is just a legal one that ignores

15

this court’s prior decision, which is the law of the case.

16

This court previously denied defendants’ motion to dismiss

17

the Section 52.1 claim, concluding that “[t]he elements of a

18

Section 52.1 excessive force claim are essentially identical to

19

those of a § 1983 excessive force claim.”

20

Without referencing that conclusion, defendants now argue that

21

“[t]he better reasoned cases hold that section 52.1 claims may

22

not ‘merely duplicate [plaintiffs'] section 1983 excessive force

23

claim.’”

24

this court should reconsider its earlier decision.

25

ECF No. 80-1 at p.33.

ECF No. 35 at p.31.

Nor have defendants argued that

Defendants’ motion for summary judgment on this claim will

26
27

42

Whitney Duenez as successor-in-interest to the decedent, is the
sole plaintiff for this claim.

28
44

1

be denied.

2

D.

3

Plaintiffs’ seventh claim alleges liability for negligence

Claim Seven – Negligence – Wrongful Death.

4

in connection with the shooting and the failure to provide

5

medical care to decedent.

6

judgment on the failure to provide medical care asserting only

7

“as discussed above, … there was no duty on the officers to

8

perform medical care, and the absence of personally providing

9

medical care after medical care had been summoned did not cause

10

Defendants seek partial summary

Decedent any damages.”

11

The elements of a negligence cause of action are the

12

existence of a legal duty of care, breach of that duty, and

13

proximate cause resulting in injury.

14

220 Cal. App. 4th 994, 998 (2nd Dist. 2013).

15

have the burden of proof on each element at trial.

16

plaintiffs have presented no evidence of any kind on proximate

17

cause, defendants are entitled to summary judgment on this claim,

18

without regard to the other elements.

19

Castellon v. U.S. Bancorp,
Plaintiffs will
Because

At trial, plaintiffs will have the burden of showing that

20

defendants’ failure to personally provide medical attention –

21

after summoning medical assistance – caused some injury to the

22

decedent.

23

burden by pointing out the complete lack of evidence that

24

decedent – who Moody had shot thirteen times at close range – was

25

further injured in any way by Moody’s subsequent failure to

26

render personal aid beyond immediately summoning medical help.43

Here, defendants have met their summary judgment

27
43

28

“[T]he moving party need only prove that there is an absence of
evidence to support the non-moving party’s case.” Oracle Corp.,
45

1

Plaintiffs have not provided evidence that Moody had the

2

capability of providing personal medical assistance, or that his

3

failure to do so caused any additional injury.

4

plaintiffs do not address the issue.

5

Moody had a duty, under California law, to render aid.

6

they are correct, with no evidence showing causation, that is not

7

enough to avoid summary judgment.

8
9

Indeed,

Plaintiffs argue only that
Even if

Defendants’ motion for summary judgment here will be
granted.

10

E.

Claim Eight – Intentional Infliction of Emotional
Distress.44

11
12

Decedent’s widow, Whitney Duenez, alleges that Moody

13

intentionally inflicted emotional distress on her, through all

14

the conduct recounted above.

15

The elements of a cause of action for
intentional infliction of emotional distress
are (1) the defendant engages in extreme and
outrageous conduct with the intent to cause,
or
with
reckless
disregard
for
the
probability of causing, emotional distress;
(2) the plaintiff suffers extreme or severe
emotional distress; and (3) the defendant's
extreme and outrageous conduct was the actual
and proximate cause of the plaintiff's
extreme
or
severe
emotional
distress.
“[O]utrageous conduct” is conduct that is
intentional or reckless and so extreme as to
exceed all bounds of decency in a civilized
community.
The defendant's conduct must be
directed to the plaintiff, but malicious or
evil purpose is not essential to liability.

16
17
18
19
20
21
22
23
24

Yun Hee So v. Sook Ja Shin, 212 Cal. App. 4th 652, 671 (2nd

25
26

627 F.3d at 387.

27

44

Defendants do not seek summary judgment on the Fifth Cause of
Action, for Negligent Infliction of Emotional Distress.

28
46

1

Dist. 2013) (citations and internal quotation marks omitted).

2

Moody seeks partial summary judgment on the claim to the

3

degree it is predicated upon his failure to personally render

4

medical assistance, pulling decedent’s body away from the truck,

5

handcuffing decedent, and searching decedent.45

6

Plaintiffs oppose the motion, arguing that shooting the

7

decedent, “dragging” his body, manipulating his body, handcuffing

8

him, searching him, and “standing by” without offering personal

9

medical assistance is outrageous conduct beyond the pale of a

10

civilized society.

11

ECF No. 97 at 30.

Plaintiffs however, have already conceded that moving

12

decedent’s body away from the truck, and handcuffing him were

13

entirely reasonable and proper.

14

¶¶ 16 & 17.

15

offer no evidence that Whitney Duenez saw, heard or was otherwise

16

aware of any of these activities.

17

show that any of these activities was directed toward her.

18

Christensen v. Superior Court, 54 Cal.3d 868, 905 (1991) (“[t]he

19

law limits claims of intentional infliction of emotional distress

20

to egregious conduct toward plaintiff proximately caused by

21

defendant”).

22

Plaintiffs’ Response to DSUF

As for the body manipulation and search, plaintiffs

Accordingly, she has failed to
See

As for the failure to personally render aid, plaintiff fails

23

to proffer any evidence at all that Moody had the ability to

24

render aid beyond what he did, namely, calling immediately for

25

medical assistance.

Nor does she proffer any evidence that his

26
27

45

Moody does not seek partial summary judgment to the degree this
claim is predicated upon the shooting of decedent.

28
47

1

failure to render aid was directed at her, as opposed to being

2

the natural consequence of his inability to render aid.

3

side argues the point, but it does not seem possible that a

4

person can intentionally inflict emotional distress by failing to

5

take action that he is not capable of taking.46

Neither

6

The defendants’ motion for partial summary judgment on

7

Claimn 8 will be granted as to all of Moody’s actions except for

8

the shooting itself.

9

F.

10

Relief – Injunctive Relief.

Defendants seeks partial summary judgment on the claim for

11

injunctive relief based solely upon their argument that they are

12

entitled to summary judgment on both the Monell claim and the

13

Section 52.1 state claim.

14

entitled to summary judgment on the Section 52.1 claim.

15
16

As discussed above, they are not

Accordingly, defendants’ motion for partial summary judgment
on this issue will be denied.

17

G.

18

Defendants Moody and Bricker seek summary judgment on the

Punitive Damages.

19

request for punitive damages, essentially because Moody’s conduct

20

was not “malicious, oppressive, or in reckless disregard of

21

Plaintiff’s rights.”

22

plaintiffs, Moody’s conduct meets the standard for punitive

23

damages.

24

Viewed in the light most favorable to

Defendants’ motion for summary judgment on the request for

25

punitive damages will be denied.

26

46

27

Nor does plaintiff proffer evidence that Moody had a duty to
equip himself with the ability to render aid under the
circumstances presented.

28
48

1

V.

2

Plaintiffs move for summary judgment.

3

ANALYSIS – PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
The motion is based

entirely on plaintiffs’ view of what the video shows.

4

As to whether the deputies violated the
Fourth Amendment, two Supreme Court decisions
chart the general terrain. Graham v. Connor,
490 U.S. 386 (1989), defines the excessive
force inquiry, while Tennessee v. Garner, 471
U.S. 1 (1985), offers some guidance tailored
to the application of deadly force.

5
6
7
8

“Graham sets out a non-exhaustive list of
factors
for
evaluating
[on-the-scene]
reasonability: (1) the severity of the crime
at issue, (2) whether the suspect posed an
immediate threat to the safety of the
officers or others, and (3) whether the
suspect actively resisted arrest or attempted
to escape.”
In Garner, the Supreme Court
considered (1) the immediacy of the threat,
(2) whether force was necessary to safeguard
officers or the public, and (3) whether
officers administered a warning, assuming it
was practicable. See
Scott v. Harris, 550
U.S. 372, 381–82 (2007). Yet, “there are no
per
se
rules
in
the
Fourth
Amendment
excessive force context.” Mattos v. Agarano,
661 F.3d 433, 441 (9th Cir. 2011) (en banc)
[cert. denied, 566 U.S. ___, 132 S. Ct. 2681
(2012)].

9
10
11
12
13
14
15
16
17
18

George v. Morris, 736 F.3d 829,837-38 (9th Cir. 2013) (citation

19

omitted).

20

Plaintiffs are correct that the court is now required to

21

consider their motion (and defendants’) “in the light depicted by

22

the videotape.”

23

view the video in the light most favorable to the non-moving

24

party, if there is a genuine dispute about what is depicted.

25

Id., 550 U.S. at 380 (“[a]t the summary judgment stage, facts

26

must be viewed in the light most favorable to the nonmoving party

27

only if there is a “genuine” dispute as to those facts”).

28

Scott, 550 U.S. at 381.

However, the court must

Viewing the video in the light most favorable to Moody (and
49

1

in the light that will be presented by his attorney to the jury

2

at trial), Moody was shooting at a man who exited the truck with

3

something in his right hand.

4

knife and was reasonably believed by Moody to be a knife (and in

5

fact, an empty knife holder was found clipped to decedent’s belt,

6

and a knife was later found in the bed of the pickup truck,

7

possibly thrown by decedent during the chaos of the shooting).

8

Before the decedent exited the truck, Moody was shouting at him

9

not to move (which presumably meant, stay in the truck).

That “something” could have been a

The

10

decedent disobeyed the order (assuming he heard it), and attempts

11

to exit the truck.

12

Just before the shooting, and as decedent just starts to

13

exit the truck, Moody actually returns his gun to its holster.

14

However, upon trying to exit, the decedent makes a sudden jerking

15

move, which seems to prompt Moody to grab his gun again, demand

16

that decedent “drop the knife,” and start shooting.

17

motion was, no doubt, decedent first getting his leg caught in

18

the seat belt and losing his balance, but, viewed in the light

19

most favorable to Moody, he had no way of knowing this.

20

when Moody attempts to pull decedent’s body away from the car, he

21

is unable to, apparently because he was still unaware that

22

decedent’s leg was caught in the seatbelt.

23

The jerking

Indeed,

During the shooting, decedent’s body continually moved in an

24

erratic manner, occasionally turning away from Moody, such that

25

Moody could have believed that the decedent was reaching for the

26

knife or another weapon.47

The shooting continued until the

27
47

28

Indeed, Moody’s repeated failure on his firearms exams could
well have contributed to his apparent doubt that he had really
50

1

decedent was completely still, but Moody did not empty his gun

2

into decedent (Moody had two bullets left).

3

The court finds that there is a genuine dispute about

4

exactly what the video depicts.

5

decedent with a knife, plaintiffs say it depicts decedent with a

6

tweezers.

7

Defendants say decedent kept reaching as if for a weapon,

8

plaintiffs say decedent’s body was simply responding to being

9

shot.

Defendants say it depicts

The video is not fine enough to resolve that dispute.48

The video does not resolve that dispute.

Those are among

10

the main facts that must be resolved to determine whether the

11

shooting was a justified response to a dangerous parolee trying

12

to throw a knife at a police officer, or the unjustified police

13

killing of an unarmed man just trying to get out of a pickup

14

truck.

15

Plaintiffs’ motion for summary judgment on claims predicated

16

on the shooting will be denied in its entirety.

17

plaintiffs’ motion for summary judgment asks the court to view

18

the evidence in the light most favorable to them, the moving

19

parties.

20

of plaintiffs’ motion for summary judgment.

21

VI.

22

The remainder of

That being improper, the court will deny the remainder

ANALYSIS – PLAINTIFFS’ MOTION TO SEAL DOCUMENTS.

Plaintiffs ask the court to seal certain documents, ECF Nos.

23
24
25
26
27

shot and disabled decedent, leading him to believe that the
twitching body was still a threat, rather than an alreadydisabled person whose body was simply responding to each
additional bullet it was hit with.
48

Nor does the court have the ability to slow the motion down,
even assuming that such a viewing would be fair, considering that
Moody experienced the incident in real time, not slow motion.

28
51

1

82 and 99, pursuant to the stipulated Protective Order entered in

2

this case (ECF No. 45).

3

ones with an interest in keeping the documents confidential, have

4

neither requested that the documents be sealed nor opposed

5

plaintiffs’ request.49

6

Defendants, who would appear to be the

The public has a “general right to inspect
and copy public records and documents,
including judicial records and documents.”

7
8
9

Estate of Migliaccio v. Allianz Life Ins. Co., 686 F.3d 1115,

10

1119 (9th Cir. 2012), quoting Nixon v. Warner Commc'ns, Inc., 435

11

U.S. 589, 597 (1978).

“This right extends to pretrial documents

12

filed in civil cases.”

Id., citing San Jose Mercury News, Inc.

13

v. U.S. Dist. Court, 187 F.3d 1096, 1102 (9th Cir. 1999).

14

Although the right is not absolute, the court must “‘start with a

15

strong presumption in favor of access to court records.’”

16

quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122,

17

1129 (9th Cir. 2003).

Id.,

18

Plaintiffs, as the party requesting to seal court records,

19

bear the burden of “providing ‘sufficiently compelling reasons’

20

that override the public policies favoring disclosure.”

21

ruling on the motion, this court must “balance the competing

Id.

In

22
23
24
25
26
27

49

The Protective Order contemplates that defendants, not
plaintiffs, would move to seal these documents, as they are
marked confidential at the behest of defendants. ECF No. 45 ¶ 10
(“If plaintiffs wish to file with the Court any documents marked
Confidential Material, plaintiffs shall notify defendants a
reasonable period before hand to afford defendants an opportunity
to seek to have the document sealed under Local Rule 141”). The
parties have offered no explanation for why they have proceeded
by relying on plaintiffs to make this motion.

28
52

1

interests of the public and the party seeking to seal judicial

2

records.”

3

F.3d 1172, 1176 (9th Cir. 2006).

4

it must “articulate a factual basis for each compelling reason to

5

seal.”

6

Id., quoting Kamakana v. City & Cnty. of Honolulu, 447
If the court seals the records,

Id.

Plaintiffs do not even attempt to meet their burden here.

7

Nor do they assert that any exception to the presumption of

8

public access applies here.50

9

general way, why the information is confidential – other than to

They do not explain, even in a

10

say, it is stamped “confidential.”51

11

even infer a reason from the Protective Order, because that Order

12

does not explain what types of materials are subject to it;

13

materials are confidential simply because a party stamps them

14

with a “Confidential” stamp.

Moreover, the court cannot

15

The request to seal will be denied.

16

VII. ANALYSIS – PLAINTIFFS’ MOTION TO RE-OPEN DISCOVERY.

17

Plaintiffs ask to re-open discovery so that they can depose

18

opposing counsel.

19

changed between the time he was interviewed by the police

20

investigators soon after the shooting, and the time he testified

21

years later at deposition.

22

50

23
24
25
26
27

Plaintiffs assert that one witness’s testimony

They also assert that the witness –

For example, the presumption does not apply to “judicial
records ‘filed under seal when attached to a non-dispositive
motion,’” or put another way, the presumption is rebutted in that
circumstance. Midland, 686 F.3d at 1119, quoting Foltz, 331 F.3d
at 1136 and citing Phillips ex rel. Estates of Byrd v. Gen.
Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002).
51

For example, sealing documents might be appropriate if they
disclose the name of decedent’s son, certain employment
information, or private medical information.

28
53

1

Michael Henry – was provided a “manipulated” transcript of his

2

interview statement just before the deposition.

3

manipulated because it contained bolding and underlining that was

4

not included in the version of the interview transcript produced

5

to plaintiffs.

6

It was

Plaintiffs have not shown that the difference in testimony

7

is material in any way.

8

to depose opposing counsel – rather than Henry – to find out why

9

there was a change in his story.

10

Nor have they demonstrated why they need

In any event, the change in Henry’s story is not material,

11

and thus cannot support such an extraordinary remedy.

12

initial interview, Henry states that after decedent dropped his

13

knife, decedent himself picked it up and placed it in decedent’s

14

tool bag before decedent headed to Flores Court in the pickup

15

truck.

16

dropped his knife, Henry picked it up and handed it to decedent

17

before decedent headed to Flores Court in the pickup truck.

18

Plaintiffs do not explain why the difference in the story

19

matters.

20

is not who picked a knife up off the ground, but rather that

21

decedent had a knife, and that he took it with him to Flores

22

Court.

23

not explained and it is not obvious to the court.

At his

At his deposition, Henry states that after decedent

It appears that the material point of Henry’s testimony

The relevance of how it wound up in decedent’s hands is

24

Plaintiffs’ motion to re-open discovery will be denied.

25

VIII. SUMMARY

26

For the reasons stated above, the court orders as follows:

27

1.

28

Defendants are entitled to the following partial

adjudication, based upon plaintiffs’ concessions, specifically,
54

1

that no claim in this action arises from defendants’ pointing a

2

gun at decedent’s widow, pulling decedent away from the pickup

3

truck, handcuffing decedent, searching the house on Flores Court

4

or detaining or arresting any non-parties to this action.

5

Accordingly, the portions of any claim that are predicated upon

6

that conduct are hereby DISMISSED WITH PREJUDICE;

7

2.

Defendants are entitled to qualified immunity for the

8

search that was performed on decedent after the shooting.

9

Accordingly, the portions of any claims that is predicated upon

10
11

that conduct are hereby DISMISSED WITH PREJUDICE;
3.

Defendants’ motion for summary judgment on Claim 1, to

12

the degree it asserts any state claim, is hereby DISMISSED WITH

13

PREJUDICE;

14
15
16

4.

Defendants’ motion for summary judgment against Whitney

Duenez on Claim 1 is GRANTED;
5.

Defendants’ motion for summary judgment against D.D.

17

(as successor in interest to decedent’s estate) on Claim 1, is

18

DENIED to the degree it is predicated upon the Fourth Amendment,

19

and GRANTED to the degree it is predicated upon the alleged

20

denial of medical care;

21

6.

Defendants’ motion for summary judgment on Claim 2,

22

relating to the claim for deprivation of familial relationships

23

is DENIED;

24

7.

Defendants’ motion for summary judgment on Claim 3, for

25

Monell liability against the City and Bricker, is hereby DENIED,

26

and that claim may proceed to the degree it is predicated upon

27

inadequate training only;

28

8.

Defendants’ motion for summary judgment on Claim 4 is
55

1

DENIED, however, the court sua sponte dismisses Claim 4 to the

2

degree it is predicated upon the deprivation of familial

3

association, brought by Whitney Duenez in her capacity as

4

successor in interest to the decedent’s estate;

5
6
7

9.

Defendants’ motion for summary judgment on Claim 6, a

claim under Cal. Civ. Code § 52.1, is hereby DENIED;
10.

Defendants’ motion for summary judgment on Claim 8, by

8

Whitney Duenez for intentional infliction of emotional distress,

9

is GRANTED;

10
11
12
13

11.

Defendants’ motion for summary judgment on all claims

for injunctive relief is DENIED;
12.

Defendants’ motion for summary judgment on the request

for punitive damages is DENIED;

14

13.

15

its entirety;

16

14.

Plaintiffs’ motion to seal documents is DENIED;

17

15.

Plaintiffs’ motion to re-open discovery, so that they

18

Plaintiffs’ motion for summary judgment is DENIED in

can depose defendants’ attorney, is DENIED.

19

IT IS SO ORDERED.

20

DATED:

December 20, 2013.

21
22
23
24
25
26
27
28
56