Porter v. Munoz et al

Filing 54

ORDER signed by District Judge Leslie E. Kobayashi on 2/1/19 GRANTING 34 Motion for Summary Judgment. Final judgment is to be entered in favor of defendants. CASE CLOSED (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
)
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Plaintiff,
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vs.
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SERGEANT MUNOZ in his
individual capacity, DOES 1- )
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10 in their individual
capacities, CITY OF DAVIS
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POLICE DEPARTMENT, CITY OF
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DAVIS,
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)
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Defendants.
_____________________________ )
LASONJA PORTER,

2:16-CV-01702 LEK

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

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On August 1, 2018, Defendants Michael Munoz (“Munoz”)

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and the City of Davis1 (“the City,” collectively “Defendants”)

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filed their Motion for Summary Judgment (“Motion”).

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no. 34.]

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memorandum in opposition on September 5, 2018, and Defendants

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filed their reply on September 11, 2018.

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Plaintiff filed a supplemental memorandum in opposition on

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October 4, 2018, and Defendants filed a supplemental reply on

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October 11, 2018.

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matter suitable for disposition without a hearing pursuant to

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L.R. 230(g) of the Local Rules of the United States District

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[Dkt.

Plaintiff Lasonja Porter (“Plaintiff”) filed her

[Dkt. nos. 45, 49.]

[Dkt. nos. 36, 45.]

The Court finds this

Munoz is named in his individual capacity, and the City is
also named as the City of Davis Police Department (“Davis PD”).
[Pltf.’s First Amended Complaint for Damages (“Amended
Complaint”), filed 2/6/17 (dkt. no. 14), at 1.]

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Court for the Eastern District of California (“Local Rules”).

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October 18, 2018, this Court issued an entering order ruling on

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the Motion.

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entering order.

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reasons set forth below.

[Dkt. no. 51.]

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On

The instant Order supersedes that

Defendants’ Motion is hereby granted for the

BACKGROUND

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The instant case arises out of the February 26, 2016

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search of the residence that Plaintiff shares with her son,

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non-party Cairo Jones (“Jones”), and one of her other children.

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The parties agree that, at the time of the search, Munoz was a

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Lieutenant with the Davis PD.

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working on the investigation of a residential burglary and

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battery.

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in Supp. of Summary Judgment (“Defs.’ SOF”), filed 9/5/18 (dkt.

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no. 37), at ¶¶ 1-2; Mem. in Opp., Pltf.’s Response to Def.’s

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[sic] Separate Statement of Undisputed Facts (“Pltf.’s SOF”) at

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¶¶ 1-2 (admitting Defs.’ ¶¶ 1-2).]

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a possible suspect in the investigation because the victim made a

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positive identification of Julio Meneses (“Meneses”), a known

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associate of Jones’s, and Jones matched another description given

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by the victim.

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Summary Judgment (“Motion Evidence”), Exh. 1 (Decl. of Michael

On February 25, 2016, Munoz began

[Defs.’ Separate Statement of Undisputed Material Facts

According to Munoz, Jones was

[Motion, Evidence in Supp. of Defs.’ Motion for

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Munoz in Supp. of Defs.’ Motion for Summary Judgment (“Munoz

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Decl.”)) at ¶ 3.2]

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At the time of the incident, Jones was on probation for

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a 2014 conviction for larceny, conspiracy, and battery.

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confirmed that Jones’s probation made him subject to search.

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[Defs.’ SOF at ¶ 4; Pltf.’s SOF at ¶ 4.]

Specifically,

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[Defs.’ SOF at ¶ 5; Pltf.’s SOF at ¶ 5.]

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Davis address where Jones resided with Plaintiff.

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Munoz

Munoz confirmed that the terms and conditions of
Cairo Jones’ court-imposed probation included,
inter alia, that he: (1) “not violate any city or
county ordinance or state or federal law or court
order”; (2) “submit person, property or place of
residence to search by the Probation Officer or
any peace officer at any time of the day or night
without a search warrant”; and (3) “not associate
with Julio M.”

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He also confirmed the
[Defs.’ SOF at

Plaintiff objects to this statement, arguing “[n]o
admissible evidence has been cited to support this factual
assertion.” [Pltf.’s SOF at ¶ 3.] However, Munoz’s declaration,
signed “under penalty of perjury,” [Munoz Decl. at pg. 4,] is
admissible evidence of Munoz’s reasons for the actions he took on
the day in question. See Fed. R. Civ. P. 56(c)(4) (“An affidavit
or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to
testify on the matters stated.”). Further, Plaintiff has not
identified any evidence showing there is a genuine dispute of
fact as to whether Jones matched the victim’s description or as
to whether Munoz had other reasons for his actions. See
Rule 56(c)(1)(A) (“A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by: (A) citing to
particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made
for purposes of the motion only), admissions, interrogatory
answers, or other materials”). Thus, Plaintiff’s objection is
overruled, and this Court will consider Munoz’s statement.
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¶¶ 6, 15; Pltf.’s SOF at ¶¶ 6, 15.]

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Jones’s probation, Munoz did not obtain a search warrant.

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[Defs.’ SOF at ¶ 8; Pltf.’s SOF at ¶ 8.]

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that, at the time of the relevant events in this case, she was

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aware of Jones’s probation status and that their residence was

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subject to a warrantless probation search.

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Pltf.’s SOF at ¶ 27.]

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In light of the terms of

Plaintiff acknowledges

[Defs.’ SOF at ¶ 27;

On February 26, 2016, Munoz and Davis PD Detectives
Bellamy, Helton, and Infante went to Jones’s and Plaintiff’s

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residence to conduct a search to determine whether Jones violated

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the terms of his probation by associating with Meneses.

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SOF at ¶ 7; Pltf.’s SOF at ¶ 7.]

Detective Helton wore a body-

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camera that recorded the search.

[Defs.’ SOF at ¶ 10; Pltf.’s

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SOF at ¶ 10.]

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deposition, and she confirmed that it shows the February 26, 2016

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search of her residence.

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¶ 13.]

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recording, which is split into two digital files,3 with the

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Motion.

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Motion (dkt. no. 34-3); Notice of Lodging Document in Paper,

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filed 10/18/18 (dkt. no. 53) (replacement DVD).]

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[Defs.’

The recording was shown to Plaintiff during her

[Defs.’ SOF at ¶ 13; Pltf.’s SOF at

Defendants submitted a DVD containing a copy of the

[Motion, Notice of Lodging Video Recordings in Supp. of

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The larger file, which is approximately twenty minutes of
video footage, will be referred to as “File 1,” and the smaller
file, which is approximately six minutes of video footage that
follows the footage in File 1, will be referred to as “File 2.”
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Munoz asserts that, at the time of the search, he “had

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information that a 2005 investigation led to the discovery of an

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illegal ‘sawed-off’ shotgun at this residence and a 2014

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investigation led to the discovery of an illegal MAC-10

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‘sub-machine gun’ assault weapon in one of the bedrooms”; and

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this meant that the residence posed an “increased safety risk.”

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[Munoz Decl. at ¶¶ 9, 16.4]

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Once at Jones’s residence, Munoz knocked on the front
door and waited approximately twenty seconds, but there was no

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response.

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called out through an open window next to the front door: “Hey

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Lasonja, this is Davis P.D.”

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quotation marks omitted); Pltf.’s SOF at ¶ 16.]

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approximately twenty more seconds, Plaintiff responded from

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inside: “Yeah, what do you want?”

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quotation marks omitted); Pltf.’s SOF at ¶ 17.]

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were there for a compliance check and asked if Jones was home.

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Plaintiff said that Jones was not, and she said she was not

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dressed.

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However, Munoz did not know whether Plaintiff was in fact the

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[Defs.’ SOF at ¶ 14; Pltf.’s SOF at ¶ 14.]

He then

[Defs.’ SOF at ¶ 16 (internal
After

[Defs.’ SOF at ¶ 17 (internal
Munoz said they

[Defs.’ SOF at ¶¶ 18-19; Pltf.’s SOF at ¶¶ 18-19.]

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Plaintiff objects to these statements, again asserting the
lack of admissible evidence supporting the Munoz Declaration.
[Pltf.’s SOF at ¶¶ 9, 44.] For the same reasons as stated supra
note 3, Plaintiff’s objections are overruled, and this Court will
consider Munoz’s testimony.
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only person in the residence.

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at ¶ 40.]

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[Defs.’ SOF at ¶ 40; Pltf.’s SOF

Still talking through the window, Munoz asked Plaintiff

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if she would be willing to get dressed.

[Defs.’ SOF at ¶ 0;

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Pltf.’s SOF at ¶ 20.]

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I’m sick, what’s going on?”

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quotation marks omitted); Pltf.’s SOF at ¶ 21.]

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that they were there for a compliance check.

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Plaintiff if she had seen Meneses, but Plaintiff said she had

Plaintiff responded, “not really, because
[Defs.’ SOF at ¶ 21 (internal
Munoz repeated

Munoz also asked

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not.

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could conduct the compliance check.

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because she had to get dressed and she only had the use of one

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arm.5

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said “ok” and continued to wait outside until Plaintiff opened

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the door approximately five minutes later.

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Pltf.’s SOF at ¶ 26.]

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and Munoz repeated that they were checking to see if Jones was in

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compliance with the terms of his probation.

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Davis PD detectives entered the residence.

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Munoz again asked Plaintiff to get dressed so that they
Plaintiff told him to wait

[Defs.’ SOF at ¶¶ 22-25; Pltf.’s SOF at ¶¶ 22-25.]

Munoz

[Defs.’ SOF at ¶ 26;

She again asked what they were there for,

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Munoz and other
[Defs.’ SOF at ¶¶ 28-

Plaintiff states her left arm was injured at the time of
the incident. [Mem. in Opp., Pltf.’s Decl. in Supp. of Pltf.’s
Opp. (“Pltf. Decl.”) at ¶¶ 10, 14.] She originally injured her
shoulder at work and alleges the injury was aggravated during
this incident. [Motion Evidence, Exh. 2 (Decl. of Derick E. Konz
in Supp. of Defs.’ Motion for Summary Judgment (“Konz Decl.”)),
Exh. C (excerpt of 1/8/18 trans. of Plaintiff (“Pltf. Depo.”)) at
164.]
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30; Pltf.’s SOF at ¶¶ 28-30.]

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times, and instructed her to “step aside.”

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8:02.]

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I told you about that last time.

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at 8:03-8:06.]

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visible on the video footage because they were inside the

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doorway, while Detective Helton and the body camera were still

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outside.

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Munoz told Plaintiff, “no” several
[DVD, File 1 at 8:00-

Immediately thereafter, Plaintiff says: “Don’t touch me.
Don’t freakin’ touch me.”

[Id.

During this exchange, Plaintiff and Munoz are not

Defendants contend that Plaintiff was trying to block

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the officers’ path by walking in front of them and refusing to

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get out of the way.

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Plaintiff to “stop” multiple times, but she continued to walk in

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front of them, through the living room and towards the hallway

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leading to the bedrooms.

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according to Plaintiff, there was limited available space because

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of the layout of the furniture, and she had to walk further into

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the residence in order to get to an area where she could step to

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the side and allow the officers to pass.

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20.]

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[Defs.’ SOF at ¶¶ 31-32.]

Munoz told

[DVD, File 1 at 8:07-8:10.]

However,

[Pltf. Decl. at ¶¶ 18-

As Plaintiff walked towards the hallway, Munoz told her

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“stop” a number of times, but she did not comply.

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that time, Plaintiff told the officers that she was going to her

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room, but Munoz told her: “No, you’re not.”

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can be seen reaching his left hand towards Plaintiff’s left arm

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Also during

After that, Munoz

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and then swinging his arm back toward the living room.

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Munoz says: “C’mon over here.”

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my sore arm. . . .

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freakin’ arm again, so help me.

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freakin’ room.

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interaction occurred, Munoz and Plaintiff were at the front of

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the hallway that led to the bedrooms.

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Hold on.

Okay?”

Plaintiff responds:

Check this out.

Pointing,

“Don’t touch

If you touch my

You understand?

I’m goin’ to my

[DVD, File 1 at 8:06-8:21.]

When this

Defendants argue Munoz touched Plaintiff’s arm for less
than a second when he was ordering her to return to the living

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room (“Hallway Contact”).

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description of the Hallway Contact, Plaintiff states Munoz

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“grabbed” her, and that “[h]is touching of [her] again cause[d

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her] great pain.”

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Hallway Contact “caus[ed] her to spin around.”

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¶ 35.]

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support for Plaintiff’s claim that Munoz used excessive force,

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[Defs.’ SOF at ¶ 37,] but Plaintiff argues Munoz grabbed her

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twice, [Pltf.’s SOF at ¶ 37].

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[Defs.’ SOF at ¶ 35.]

[Pltf. Decl. at ¶ 24.]

However, in her

Plaintiff argues the
[Pltf.’s SOF at

Defendants contend the Hallway Contact is the only

After the Hallway Contact, Munoz moved past Plaintiff

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in the hall in such a way that he did not touch her.

Munoz and

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Detective Bellamy ordered Plaintiff to go back to the living

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room, but she refused to do so.

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SOF at ¶¶ 38-39.]

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what to do!”

[Defs.’ SOF at ¶¶ 38-39; Pltf.’s

Plaintiff yelled at Munoz, “you don’t tell me

[Defs.’ SOF at ¶ 39 (internal quotation marks

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omitted); Pltf.’s SOF at ¶ 39.]

Because Jones lived there, and

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his whereabouts were unknown, Munoz suspected that Jones may have

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been in one of the bedrooms.

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been found, and he was a known associate of Jones, Munoz

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suspected that Meneses may also have been in one of the bedrooms.

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These suspicions were also based on the fact that Plaintiff

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appeared to be trying to stall the search and/or obstruct him

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from conducting the search.

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officers asked Plaintiff numerous times which room was Jones’s.

Further, because Meneses had not

[Munoz Decl. at ¶¶ 13-15.]

The

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Plaintiff accused Munoz of being “dirty,” and she yelled, “get

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out of my way . . . don’t go in my son’s room . . . don’t go in

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my baby’s room . . . don’t go in my room.”

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9:25.]

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referring to because she points in multiple directions.

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However, Plaintiff states that, as Munoz started to search her

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bedroom, she stated that he was entering her room.

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pointed out which room was Jones’s and which belonged to her

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other son, who also lived with her.

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The parties agree that, at some point, while she was screaming,

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Plaintiff indicated which was Jones’s room.

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Pltf.’s SOF at ¶ 47.]

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bedrooms to try and locate” Jones and Meneses and to determine

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what rooms Jones may have had shared control over.

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at ¶ 17.]

[DVD, File 1 at 8:55-

It was not clear during that time which rooms she was
[Id.]

She also

[Pltf. Decl. at ¶¶ 27-28.]

[Defs.’ SOF at ¶ 47;

Munoz states he “briefly looked in the

[Munoz Decl.

According to Munoz, the “brief look lasted no more

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than a few seconds.”

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which room Jones had control over and he determined there were no

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other persons in the residence, he performed the probation

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compliance check on Jones’s bedroom only.

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contrast, Plaintiff claims that, after she had been in the living

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room for five minutes, she noticed Munoz in her room.

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Decl. at ¶ 34.]

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[Id. at ¶ 18.]

After Munoz determined

[Id. at ¶¶ 19-21.]

In

[Pltf.

According to Plaintiff, she started to have a panic
attack after seeing Munoz go into her room and her other son’s

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room.

[Pltf. Decl. at ¶ 30.]

In the living room, Plaintiff said

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she needed her medicine from her room and that she wanted to get

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it.

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down the hallway, but they would get the medicine for her.

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[Defs.’ SOF at ¶¶ 57-58; Pltf.’s SOF at ¶¶ 57-58.]

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Bellamy retrieved Plaintiff’s purse, which contained her

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medicine, and gave it to her.

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if she wanted them to call an ambulance for her, but she refused.

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[Defs.’ SOF at ¶¶ 60-61; Pltf.’s SOF at ¶¶ 60-61.]

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Helton also asked Plaintiff if she needed anything for the pain

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in her arm, but she did not respond.

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Pltf.’s SOF at ¶ 68.]

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the injury she alleges she suffered as a result of the incident;

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she merely took more Xanax, which she had already been taking

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before the incident.

Detective Bellamy told her he did not want her going back

Detective

Detective Helton asked Plaintiff

Detective

[Defs.’ SOF at ¶ 68;

Plaintiff did not seek any treatment for

She has no documentation of any medical

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bills related to the incident, and does not remember if she went

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to physical therapy as a result of the incident.

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¶¶ 71-72; Pltf.’s SOF at ¶¶ 71-72.]

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[Defs.’ SOF at

Plaintiff originally filed this action on July 22,

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2016.

[Complaint for Damages (dkt. no. 1).]

The operative

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pleading is Plaintiff’s First Amended Complaint for Damages

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(“Amended Complaint”), [filed 2/6/17 (dkt. no. 14),] which

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alleges the following claims: a 42 U.S.C. § 1983 claim against

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Munoz alleging that his unreasonable use of force violated

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Plaintiff’s Fourteenth Amendment right to substantive due process

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(“Count I”); a § 1983 claim against Munoz alleging that his

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unreasonable search violated Plaintiff’s Fourth Amendment rights

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(“Count II”); a claim under the Tom Bane Civil Rights Act (“Bane

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Act”), California Civil Code § 52.1, against Defendants (“Count

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III”); a negligence claim against Defendants based on the

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allegedly illegal search, pursuant to California Government Code

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§ 815.2 (“Count IV”); an intentional infliction of emotional

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distress (“IIED”) claim against Munoz (“Count V”); and a battery

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claim against Defendants (“Count VI”).

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Defendants’ February 23, 2017 motion to dismiss the

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Amended Complaint was granted in part and denied in part in an

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order filed on August 22, 2017 (“8/22/17 Order”).

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[Dkt. nos. 14,

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20.6]

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in Count I to the Fourteenth Amendment were stricken.

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Count I is construed as alleging a § 1983 claim based upon an

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alleged use of excessive force, in violation of Plaintiff’s

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Fourth Amendment rights.

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In the instant Motion, Defendants seek summary judgment as to all

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of the remaining claims against them.

Count IV was dismissed with prejudice, and all references

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Thus,

8/22/17 Order, 2017 WL 3601492, at *4.

DISCUSSION
I.

Count I - Excessive Force

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Count I alleges that Munoz used excessive force against

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Plaintiff in performing the search of her residence.

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“Allegations of excessive force are analyzed under the Fourth

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Amendment’s prohibition against unreasonable seizures.

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the force used by an officer is unconstitutionally excessive is

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determined by whether the officer’s actions are objectively

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reasonable in light of the facts and circumstances confronting

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the officer.”

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(9th Cir. 2018) (citing Graham v. Connor, 490 U.S. 386, 397, 109

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S. Ct. 1865, 104 L. Ed. 2d 443 (1989)).

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the use of force was objectively reasonable, the court balances

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the ‘nature and quality of the intrusion on the individual’s

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Fourth Amendment interests against the countervailing

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governmental interests at stake.’”

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Whether

Kinerson v. Spokane Cty., 714 F. App’x 764, 764-65

“To determine whether

Vos v. City of Newport Beach,

The 8/22/17 Order is also available at 2017 WL 3601492.
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892 F.3d 1024, 1030-31 (9th Cir. 2018) (quoting Graham v. Connor,

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490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)),

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cert. pet. docketed, No. 18-672 (Nov. 23, 2018).

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A.

Nature and Quality of the Intrusion

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“To evaluate the nature and quality of the intrusions

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on plaintiffs’ Fourth Amendment interests, we consider the type

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and amount of force inflicted against them.”

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Birgeneau, 891 F.3d 809, 817 (9th Cir. 2018) (citation and

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internal quotation marks omitted).

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Felarca v.

In response to Defendants’ assertion that her excessive

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force claim is based only on the Hallway Contact, Plaintiff

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asserts Munoz grabbed her arm twice.7

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Pltf.’s SOF at ¶ 37 (denying Defs.’ ¶ 37).]

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Munoz and Plaintiff can be seen in the moments after Munoz

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entered Plaintiff’s residence because Detective Helton was still

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[Defs.’ SOF at ¶ 37;
No contact between

Defendants filed excerpts of the transcript of Plaintiff’s
deposition in support of the Motion. [Konz Decl., Exh. C.] They
also submitted a complete copy of the transcript pursuant to
Local Rule 133 (“Plaintiff Rule 133(j) Deposition”). The Court
notes that, during her deposition, Plaintiff was asked how many
times Munoz grabbed her arm, and she responded: “Just once. He
just grabbed me. And I got away from him.” [Pltf. Rule 133(j)
Depo. at 219.] This Court has not considered any inconsistencies
between Plaintiff’s deposition testimony and the other documents
Plaintiff submitted in opposition to the Motion because this
Court cannot rule upon credibility issues on summary judgment.
See Eat Right Foods Ltd. v. Whole Foods Mkt., Inc., 880 F.3d
1109, 1118 (9th Cir. 2018) (“On summary judgment, ‘the judge’s
function is not himself to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine
issue for trial.’” (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249, 106 S. Ct. 2505 (1986))).
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outside.

However, Plaintiff can be heard telling Munoz: “Don’t

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touch me.

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me.”

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“[a]fter [she] turned into [her] home,” Munoz “unexpectedly

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grabbed” her injured left arm.

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the record in the light most favorable to Plaintiff as the non-

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moving party,8 this Court finds, for purposes of the instant

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Motion, that Munoz made contact with Plaintiff’s arm shortly

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after walking through the doorway (“Doorway Contact”).

I told you about that last time.

[DVD, File 1 at 8:03-8:06.]

Don’t freakin’ touch

Plaintiff also states that,

[Pltf. Decl. at ¶ 13.]

Viewing

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Although neither the Doorway Contact nor the Hallway

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Contact can be seen in the video footage, it is clear from the

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timing of the interactions and the concurrent conversation that

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the contacts were brief.

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Contact and the Hallway Contact caused her “great pain.”

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Decl. at ¶¶ 15, 24.]

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after each contact, while showing indignation that he touched her

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and that she had previously been experiencing pain in her arm,

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did not indicate that Munoz’s contacts with her arm inflicted

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great pain upon her.

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Plaintiff concedes that she did not seek medical treatment for

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any injury from the incident; she merely took an anxiety

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Plaintiff asserts both the Doorway
[Pltf.

However, Plaintiff’s comments to Munoz

See DVD, File 1 at 8:03-8:20.

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Further,

In ruling on a motion for summary judgment, “the judge
must view the evidence in the light most favorable to the
nonmoving party and make all reasonable inferences in favor of
that party.” Eat Right, 880 F.3d at 1118 (citing Tolan v.
Cotton, 134 S. Ct. 1861, 1866–68 (2014) (per curiam)).
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medication that she had already been taking prior to the

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incident.

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[Defs.’ SOF at ¶ 71; Pltf.’s SOF at ¶ 71.]
In considering the Motion, this Court cannot make

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credibility determinations or weigh evidence.

See Eat Right, 880

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F.3d at 1118.

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summary judgment tells a version of the events that is “blatantly

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contradicted by the record,” that is not enough to create a

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genuine issue of material fact and to preclude summary judgment.

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See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing

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parties tell two different stories, one of which is blatantly

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contradicted by the record, so that no reasonable jury could

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believe it, a court should not adopt that version of the facts

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for purposes of ruling on a motion for summary judgment.”).

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Viewing the record in the light most favorable to Plaintiff, the

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parties essentially present two conflicting versions of the

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approximately thirty seconds during which both the Doorway

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Contact and the Hallway Contact occurred.

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Plaintiff’s story that Munoz grabbed her arm so forcefully as to

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cause her great pain both times, and causing her to spin around

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after the Hallway Contact, is blatantly contradicted by the video

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recording – the authenticity of which Plaintiff does not dispute,

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and this Court finds that no reasonable jury would believe

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Plaintiff’s story.

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description of the Doorway Contact and the Hallway Contact and

However, when the party opposing the motion for

This Court finds that

This Court therefore rejects Plaintiff’s

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concludes that both contacts were minimal intrusions on

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Plaintiff’s Fourth Amendment rights.

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B.

Governmental Interests
The minimal intrusion on Plaintiff’s rights must still

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be weighed against the strength of the governmental interests

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purportedly giving rise to the intrusion.

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use of force during an arrest, the Ninth Circuit has stated:

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9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

The strength of the government’s interest is
measured by examining three primary factors:
(1) “the severity of the crime at issue,”
(2) “whether the suspect poses an immediate threat
to the safety of the officers or others,” and
(3) “whether [the suspect] is actively resisting
arrest or attempting to evade arrest by flight.”
[A.K.H. ex rel. Landeros v. City of Tustin, 837
F.3d 1005, 1011 (9th Cir. 2016).] “The
‘reasonableness’ of a particular use of force must
be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20
vision of hindsight.” Graham, 490 U.S. at 396,
109 S. Ct. 1865. As explained below, on these
facts, a reasonable jury could conclude that the
government’s interests were insufficient to
justify the use of deadly force under these
circumstances.

28

In the context of the

Vos, 892 F.3d at 1031 (some alterations in Vos).
First, at the time of the search, Munoz was

29

investigating a residential burglary and battery.

[Defs.’ SOF at

30

¶ 2; Pltf.’s SOF at ¶ 2.]

31

because Meneses, a known associate of Jones’s, was identified by

32

the victim, and the victim described another person matching

33

Jones’s description.

34

of Jones’s probation allowed for a warrantless compliance search,

Munoz believed Jones to be a suspect

[Munoz Decl. at ¶ 3.]

16

Further, the terms

1

and it would have been a violation of the terms of Jones’s

2

probation for him to have been associating with Meneses.

3

Decl., Exh. B (Superior Court of Cal., Cty. of Yolo - Order

4

Admitting Def. to Formal Probation, People v. Cairo Jones, Case

5

# 14-2059, dated 8/26/14) at ¶ 19 (requiring the probationer to

6

“[s]ubmit person, property or place of residence to search by the

7

Probation Officer or any peace office at any time of the day or

8

night without a search warrant” (emphasis omitted)), ¶ 30

9

(stating the probationer must “[n]ot associate with . . .

10

Julio M.”).]

11

favor of a finding that the force used was reasonable to

12

[Munoz

Thus, this Court finds the first factor weighs in

accomplish the search.

13

As to the second factor, there was no indication that

14

Plaintiff presented an immediate threat to the officers’ safety

15

or to the safety of others.

16

believed it was possible that Jones and Meneses were in the

17

residence, Plaintiff was the only person present when Munoz used

18

force against her.

19

residence at the time of the search, they were not a threat to

20

anyone’s safety at the time of the use of force.

21

second factor weighs against a finding that the force used was

22

reasonable.

23
24

Although the officers may have

Even if Jones and Meneses had been in the

Thus, the

Third, from the perspective of a reasonable officer in
Munoz’s position, Plaintiff was actively trying to delay or

17

1

resist the search.

After Munoz concludes his explanation to

2

Plaintiff about the reason for their presence and Plaintiff

3

responds that they need to wait while she gets dressed, more than

4

three minutes pass before Plaintiff again calls something out

5

from inside and Munoz responds, “okay.”

6

5:48.]

7

opens the door.

8

her door, she appears to try to prevent, verbally and physically,

9

the officers’ entrance through the doorway, as well as their

[DVD, File 1 at 2:21-

Approximately two more minutes pass before Plaintiff
[Id. at 5:48-7:52.]

Even after Plaintiff opens

10

passage down the hallway to the bedrooms.

11

Thus, this Court finds the third factor weighs in favor of a

12

finding that the force used was reasonable to accomplish the

13

search.

14

[Id. at 7:59-8:20.]

Considering these three factors as a whole, this Court

15

finds that the governmental interests in conducting the search

16

outweigh the minimal intrusion upon Plaintiff’s rights.

17

Addressing a similar excessive force claim, this district court

18

stated:

19
20
21
22
23
24
25
26
27
28
29
30

“Not every push or shove, even if it may
later seem unnecessary in the peace of a judge’s
chambers, violates the Fourth Amendment.” Graham,
490 U.S. at 396 (internal quotations and citation
omitted). Where the amount of force used was de
minimis in light of the asserted government
interest, an excessive force claim may be invalid
as a matter of law. Nakamura v. City of Hermosa
Beach, 2009 WL 1445400, *11 (C.D. Cal. 2009)
(force used was de minimis where, during the
course of arrest, officer told plaintiff to sit
down and simultaneously put his right hand on
18

1
2
3
4
5
6
7
8
9
10
11
12
13
14

Plaintiff’s shoulder, shoving him to the ground;
and “Plaintiff’s buttocks made contact with the
ground but [he] sustained no bruises or cuts”).
Here, Plaintiff’s only allegation is that an
unnamed officer grabbed her elbow to prevent her
from blocking the door to the house. She
sustained no injury. This use of force, if it
occurred, was both de minimis and reasonable under
the circumstances. The officer justifiably
entered the home without a warrant and was
entitled to ensure that his entry was not
blocked. . . .
Anderson v. Smith, No. 1:06-CV-1795 OWW SMS, 2009 WL 2139311, at

15

*17 (E.D. Cal. July 10, 2009) (alteration in Anderson).

16

reasons set forth above, this Court finds that both of Munoz’s

17

contacts with Plaintiff were de minimis and reasonable under the

18

circumstances.

19

therefore fails as a matter of law, and this Court concludes that

20

Munoz’s contacts with Plaintiff did not violate her Fourth

21

Amendment rights.

22

judgment is granted in favor of Munoz as to Count I.

23

II.

For the

Plaintiff’s excessive force claim against Munoz

The Motion is granted insofar as summary

Count II - Unreasonable Search

24

Count II alleges that Munoz’s search of Plaintiff’s

25

residence was unreasonable and a violation of her Fourth

26

Amendment rights.

27

probation required him to submit to warrantless searches of his

28

residence.

29

Circuit has stated:

30
31
32

As previously noted, the terms of Jones’s

[Munoz Decl., Exh. B at ¶ 19.]

However, the Ninth

[A] probationer’s acceptance of a search term in a
probation agreement does not by itself render
lawful an otherwise unconstitutional search of a
19

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

probationer’s person or property. In United
States v. Consuelo-Gonzalez, 521 F.2d 259, 261
(9th Cir. 1975) (en banc), we held that
probationers do not entirely waive their Fourth
Amendment rights by agreeing, as a condition of
their probation, to “submit [their] person and
property to search at any time upon request by a
law enforcement officer.” We explained that there
is a limit on the price the government may exact
in return for granting probation. Id. at 265.
Specifically, “any search made pursuant to the
condition included in the terms of probation must
necessarily meet the Fourth Amendment’s standard
of reasonableness.” Id. at 262; see United States
v. Scott, 450 F.3d 863, 868 (9th Cir. 2006)
(confirming this reading of Consuelo-Gonzalez’s
holding).
United States v. Lara, 815 F.3d 605, 609 (9th Cir. 2016) (some

20

alterations in Lara).

21

When determining whether a warrantless probation search

22

that affected the rights of a third-party was reasonable, a court

23

within the Ninth Circuit must consider “the totality of the

24

circumstances.”

25

(9th Cir. 2017) (citing United States v. Knights, 534 U.S. 112,

26

118-19, 122 S. Ct. 587 (2001)), cert. denied, 138 S. Ct. 1563

27

(2018).

28

totality of the circumstances, a court must

29
30
31
32
33
34
35

Smith v. City of Santa Clara, 876 F.3d 987, 994

To determine whether a search was reasonable under the

balance the degree to which the search intrudes
upon the third party’s privacy against the degree
to which the search is needed for the promotion of
legitimate governmental interests. [Knights, 534
U.S.] at 119, 122 S. Ct. 587. A non-probationer,
of course, has a higher expectation of privacy
than someone who is on probation, and therefore

20

1
2
3
4
5

the privacy interest in this case is greater than
it would be if the search affected only the
probationer. . . .
Id.

6

As previously noted, Munoz states that: he looked in

7

the bedrooms for no more than a few seconds to determine if

8

Jones, Meneses, or anyone else was in the residence and to

9

determine which rooms Jones had control over; and his subsequent

10

probation search only involved Jones’s room, not the other

11

bedrooms.

12

contrary evidence.

13

living room, she saw Munoz go into her room and her other son’s

14

room.

15

approximately five minutes after she went into the living room,

16

she “noticed that Seargent [sic] Munoz was in [her] room.”

17

at ¶ 34.]

18

her residence, the lock for her file cabinet was “completely

19

removed from the filing cabinet.”

20

deposition, Plaintiff testified that she believes the file

21

cabinet lock is broken, but, although the file cabinet is still

22

part of her furniture and she “love[s] it,” she never tried to

23

have the lock reinstalled.

[Munoz Decl. at ¶¶ 17-21.]

She states that, before she went into the

[Pltf. Decl. at ¶¶ 30-31.]

24

Plaintiff has submitted

Plaintiff also states that,

[Id.

According to Plaintiff, during the officer’s search of

[Id. at ¶¶ 39-40.]

During her

[Pltf. Depo. at 190-91.]

It is not clear from the video footage how many times

25

and how long Munoz looked into or entered the bedrooms other than

26

Jones’s.

Munoz, Bellamy, and Plaintiff can be seen in the

21

1

hallway, while Helton remains at the front of the hallway.

2

Because Plaintiff and Bellamy are in front of Helton, the view of

3

the bedroom doors is obscured during much of the footage.

4

times, Munoz can be seen looking into, walking into, and walking

5

out of, some of the rooms.

6

that, Plaintiff goes into the living room with one of the

7

officers.

8

in the living room, with the camera turned towards the living

9

room.

[DVD, File 1 at 8:30-11:42.]

At

After

Helton remains either at the front of the hallway or

[Id. at 11:43 to 19:54 (end).]

After Jones and

10

Plaintiff’s mother arrived at the residence, Helton’s position in

11

the living room temporarily allows the hallway and bedroom

12

doorways to be seen, but Munoz is not visible during that time.

13

[DVD, File 2 at 0:00-1:33.]

14

visible until one of the officers asks Helton to do a video sweep

15

to document the condition of Jones’s room.

16

then all of the officers leave the residence.

17

6:00.]

18

After that, the doorways are not

Helton does so, and
[Id. at 4:30-

Viewing the evidence in the light most favorable to

19

Plaintiff, and being mindful of the fact that this Court cannot

20

make credibility determinations on summary judgment, this Court

21

will assume that Munoz entered bedrooms other than Jones’s

22

multiple times during the incident and that he was in those rooms

23

for longer than a few seconds each.

24

evidence in the light most favorable to Plaintiff, the record

22

However, even viewing the

1

does not support Plaintiff’s position that Munoz broke her file

2

cabinet at some point during the incident.

3

during her deposition that she spoke to a friend on the day of

4

the incident, and she told her friend that Munoz broke her file

5

cabinet.

6

no evidence in the record that Munoz broke the file cabinet.

7

is not clear from either the official record or the Plaintiff

8

Rule 133(j) Deposition where the file cabinet was located in the

9

residence.

Plaintiff testified

[Pltf. Rule 133(j) Depo. at 119-20.]

However, there is
It

Based on Plaintiff’s statements that only she had

10

access to the file cabinet and that she and her sons each had

11

separate bedrooms, which they did not share, [Pltf. Decl. at

12

¶¶ 6, 42,] the file cabinet may have been in Plaintiff’s bedroom.

13

At least twice, Plaintiff gave one of the officers (other than

14

Munoz) permission to go into her room to retrieve items for her,

15

and they did so.9

16

if this Court found there was a genuine issue of fact as to who

17

broke the file cabinet, the issue would not preclude summary

18

judgment because the resolution of the issue would not affect the

19

outcome of Count II.

20

material fact is one ‘that might affect the outcome of the suit

21

under the governing law.’ (quoting Anderson v. Liberty Lobby, 477

22

U.S. at 248, 106 S. Ct. 2505)).

23
24

[DVD, File 1 at 12:35-13:40, 16:28-58.]

Even

See Eat Right, 880 F.3d at 1118 (“A

9

None of the three other officers present during the search
are named as a defendant in this case.
23

1

Even if Munoz broke the file cabinet lock during his

2

search of rooms other than Jones’s, this Court would conclude

3

that the manner in which Munoz conducted the search was

4

reasonable under the totality of the circumstances.

5

previously noted: 1) at the time of the search, Munoz was

6

investigating a residential burglary and battery in which Jones

7

and Meneses were suspects; [Defs.’ SOF at ¶ 2; Pltf.’s SOF at

8

¶ 2; Munoz Decl. at ¶ 3;] 2) Munoz was aware that, in two prior

9

investigations, a gun was found at Plaintiff’s residence; [Munoz

As

10

Decl. at ¶ 9;] and 3) Plaintiff appeared to be trying to delay or

11

resist the search, [DVD, File 1 at 2:21-7:52, 7:59-8:20].

12

In addition, Plaintiff made statements suggesting that

13

Jones no longer lived with her.

[Id. at 9:37-9:38 (“Cairo ain’t

14

livin’ here no [expletive] more”); id. at 13:33-13:27 (Plaintiff

15

stating she is the only one who has been there because she is

16

redoing the residence).]

17

one of the officers told her that Jones had to inform the

18

probation office if he no longer lived there.

19

12:30.]

20

was no longer living in the residence, she claimed she did not

21

say that, and claimed that what she actually said was that Jones

22

was not going to be living there in the future because she did

23

not want people like the Davis PD in her home.

24

14:54.]

Further Plaintiff did not respond when

[Id. at 12:24-

Finally, when Plaintiff was asked to confirm that Jones

24

[Id. at 14:48-

1

Plaintiff also did not clearly identify which of the

2

rooms was Jones’s when Munoz and Bellamy asked her to identify

3

Jones’s room.

4

pointing to different rooms.

5

room, her “son’s room,” and her “baby’s room.”

6

9:30.]

7

point out which room was Jones’s and which was her youngest

8

son’s.

9

knew or should have known that Plaintiff’s references to her

She was continuously shouting at Munoz and
She told Munoz not to go into her
[Id. at 8:50-

Plaintiff herself acknowledges she was attempting to

[Pltf. Decl. at ¶ 28.]

There is no evidence that Munoz

10

“son” meant Jones and her references to her “baby” did not refer

11

to Jones.

12

rooms to determine whether anyone else was in the residence.

13

DVD, File 1 at 9:31-9:33.

14

residence “are small and do not have a walk-in closets [sic],”

15

[Pltf. Decl. at ¶ 4,] implying that it was unnecessary for Munoz

16

to enter the rooms to determine whether someone was inside.

17

However, Plaintiff’s statement alone is not evidence that: 1) it

18

would have been impossible for a person to hide in one of the

19

closets; and 2) Munoz knew or should have known it was impossible

20

for a person to be hiding in one of the closets.

21

Further, it was reasonable for Munoz to enter the
See

Plaintiff states the bedrooms in her

Having considered the totality of the circumstances,

22

this Court concludes that the intrusion upon Plaintiff’s privacy

23

was minimal and was outweighed by the legitimate governmental

24

interests behind Munoz’s search of Plaintiff’s residence.

25

Thus,

1

Munoz’s search was reasonable under the totality of the

2

circumstances.

3

unreasonable search claim fails as a matter of law and that the

4

search did not violate her Fourth Amendment rights.

5

is granted insofar as this Court grants summary judgment in favor

6

of Munoz as to Count II.

7

III. Count III - Bane Act Claim

8
9

This Court concludes that Plaintiff’s

The Motion

Plaintiff also asserts a Bane Act claim against Munoz
and against the City, based on the doctrine of respondeat

10

superior.

[Amended Complaint at pg. 8.]

“The Bane Act provides

11

a state law remedy for constitutional or statutory violations

12

accomplished through intimidation, coercion, or threats.”

13

8/22/17 Order, 2017 WL 3601492, at *2 (citations and internal

14

quotation marks omitted).

15

violation of the Bane Act] if he or she interfered with the

16

plaintiff’s constitutional rights by the requisite threats,

17

intimidation, or coercion.”

18

quotation marks omitted).

19

Munoz did not violate Plaintiff’s constitutional rights,

20

Plaintiff’s Bane Act claim against Munoz also fails as a matter

21

of law.

22

Court to address whether the City is liable for Munoz’s actions

23

based on respondeat superior.

“[A] defendant is liable [for a

Id. (citations and internal

Because this Court has concluded that

In light of this ruling, it is not necessary for this

The Motion is therefore granted

26

1

insofar as this Court grants summary judgment in favor of

2

Defendants as to Count III.

3

IV.

4

Count V - IIED Claim
Plaintiff also asserts an IIED claim against Munoz.

5
6
7
8
9
10
11
12
13
14
15
16
17
18

Ravel v. Hewlett-Packard Enter., Inc., 228 F. Supp. 3d 1086, 1099

19

(E.D. Cal. 2017) (alteration in Ravel).

20

there are genuine issues as to whether Plaintiff’s emotional

21

distress is severe or extreme or as to causation, the

22

outrageousness issue is dispositive here.

23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39

Under California law, “[a] cause of action for
intentional infliction of emotional distress
exists when there is (1) extreme and outrageous
conduct by the defendant with the intention of
causing, or reckless disregard of the probability
of causing, emotional distress; (2) the
plaintiff’s suffering severe or extreme emotional
distress; and (3) actual and proximate causation
of the emotional distress by the defendant’s
outrageous conduct.” Hughes v. Pair, 46 Cal. 4th
1035, 1050, 95 Cal. Rptr. 3d 636, 209 P.3d 963
(2009).

Regardless of whether

To be sufficiently extreme and outrageous conduct,
the actions alleged “must be so extreme as to
exceed all bounds of that usually tolerated in a
civilized community.” Cochran v. Cochran, 65 Cal.
App. 4th 488, 494 (1998) (quotations omitted); see
also Potter v. Firestone Tire & Rubber Co., 6 Cal.
4th 965, 1001 (1993); Rangel v. Bridgestone Retail
Operations, LLC, 200 F. Supp. 3d 1024, 1032 (C.D.
Cal. 2016). While the court may, in certain
instances, conclude the specific conduct alleged
is insufficiently outrageous to sustain such a
claim as a matter of law, see Davidson v. City of
Westminster, 32 Cal. 3d 197, 210 (1982), this
element of the claim is commonly seen as a factual
issue. See Yun Hee So v. Sook Ja Shin, 212 Cal.
App. 4th 652, 672 (2013) (“Thus, whether conduct
is ‘outrageous’ is usually a question of fact.”);
27

1
2
3
4
5
6
7
8
9
10
11

Morse v. Cty. of Merced, No. 1:16-cv-00142-DAD-SKO, 2017 WL

12

2958733, at *18 (E.D. Cal. July 11, 2017).

13

Ragland v. U.S. Bank Nat’l Assoc., 209 Cal. App.
4th 182, 204 (2012) (“Whether conduct is
outrageous is usually a question of fact.”);
Spinks v. Equity Residential Briarwood Apts., 171
Cal. App. 4th 1004, 1045 (2009) (“In the usual
case, outrageousness is a question of fact.”);
Hawkins v. Bank of America N.A.,
No. 2:16-cv-00827-MCE-CKD, 2017 WL 590253, at *
[sic] (E.D. Cal. Feb. 14, 2017).

In light of the discussion supra of Munoz’s conduct

14

during the incident and this Court’s prior rulings, this Court

15

concludes that, as a matter of law, Munoz’s conduct was

16

“insufficiently outrageous to sustain” an IIED claim.

17

Davidson, 32 Cal. 3d at 210.

18

Plaintiff has failed to present any evidence that Munoz intended

19

to cause, or recklessly disregarded the possibility of causing,

20

Plaintiff emotional distress.

21

Munoz had a legitimate reason for the Doorway Contact and the

22

Hallway Contact – to get past Plaintiff to conduct the search.

23

Further, there is no evidence that Munoz knew or should have

24

known that his minimal contact with Plaintiff’s arm would cause

25

her great pain.

26

arm/shoulder injury, there were no visible signs that would have

27

put Munoz on notice that Plaintiff’s injury was so severe that

28

even minimal contact with her arm would cause Plaintiff great

29

pain, which would in turn cause her emotional distress.

See

Moreover, this Court finds that

See Hughes, 46 Cal. 4th at 1050.

Although Plaintiff had stated she had an

28

Even

1

Plaintiff’s mother did not realize this.

When Plaintiff’s mother

2

arrived at the residence and learned about the situation, she put

3

her hand on Plaintiff’s shoulder to try to calm Plaintiff down.

4

If Plaintiff’s mother did not realize minimal contact with

5

Plaintiff’s shoulder/arm would cause Plaintiff pain, neither

6

would Munoz have realized that fact.

7

mother touched her shoulder, Plaintiff immediately cried out:

8

“Ow, Mom, my shoulder!

9

2:48.]

In addition, after her

Mom, my shoulder!”

[DVD, File 2 at 2:44-

Plaintiff did not make such an outcry after either the

10

Doorway Contact or the Hallway Contact.

11

evidence suggesting that, when Munoz touched Plaintiff’s arm, he

12

intended to cause, or recklessly disregarded the possibility of

13

causing, Plaintiff physical pain, which he knew or should have

14

known would lead to emotional distress.

15

Thus, there is no

Plaintiff has failed to establish the severity

16

requirement and the intent requirement of the outrageousness

17

element of her IIED claim, and the claim therefore fails as a

18

matter of law.

19

grants summary judgment in favor of Munoz as to Count V.

20

V.

21

The Motion is granted insofar as this Court

Count VI - Battery Claim
Plaintiff’s final claim is a battery claim against

22

Munoz and against the City, based upon respondeat superior.

23

[Amended Complaint at pg. 11.]

24
25

A civil battery is “an offensive and
intentional touching without the victim’s
29

1
2
3
4
5
6
7
8
9
10
11
12
13
14

[Order Granting in Part and Denying in Part Defs.’ Motion to

15

Dismiss and to Strike, filed 1/23/17 (dkt. no. 13) (“1/23/17

16

Order”), at 7 (some citations omitted).10]

17

discussed as to the intent requirement for Plaintiff’s IIED

18

claim, this Court also concludes that Plaintiff has not

19

established that Munoz touched Plaintiff with the intent to harm

20

or offend her.

21

light of this Court’s ruling that Munoz’s contacts with Plaintiff

22

were de minimis and reasonable under the circumstances, this

23

Court also finds that a reasonable person in Plaintiff’s position

24

would not have been offended by the contact.

25

has failed to establish these required elements of her battery

26

claim against Munoz, the claim fails as a matter of law.

27

light of this ruling, it is not necessary for this Court to

28

address whether the City is liable for Munoz’s actions based on

29

respondeat superior.

30

consent.” Kaplan v. Mamelak, 162 Cal. App. 4th
637, 645, 75 Cal. Rptr. 3d 861 (2008). The
elements of a civil battery under California law
are: (1) defendant touched plaintiff, or caused
plaintiff to be touched, with the intent to harm
or offend plaintiff; (2) plaintiff did not consent
to the touching; (3) plaintiff was harmed or
offended by defendant’s conduct; and (4) a
reasonable person in plaintiff’s position would
have been offended by the touching. So v. Shin,
212 Cal. App. 4th 652, 669, 151 Cal. Rptr. 3d 257
(2013).

10

For the reasons

See So, 212 Cal. App. 4th at 669.

Further, in

Because Plaintiff

In

The Motion is therefore granted insofar as

The 1/23/17 Order is also available at 2017 WL 282591.
30

1

this Court grants summary judgment in favor of Defendants as to

2

Count VI.

3

VI.

Other Issues

4

This Court has granted summary judgment to Defendants

5

as to all of Plaintiff’s claims against them.

6

unnecessary for this Court to address the arguments in the Motion

7

regarding any defenses to liability, including Munoz’s immunity

8

defenses.

9

instant Order is rejected as unnecessary to the disposition of

10

Any other argument not expressly addressed in the

Plaintiff’s claims.

11
12

It is therefore

CONCLUSION
On the basis of the foregoing, Defendants’ Motion for

13

Summary Judgment, filed August 1, 2018, is HEREBY GRANTED.

There

14

being no remaining claims in this case, the Clerk’s Office is

15

DIRECTED to enter final judgment in favor of Defendants and to

16

close the case immediately.

17

IT IS SO ORDERED.

18
19
20
21
22
23
24
25
26
27
28
29

DATED AT HONOLULU, HAWAII, February 1, 2019.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

LASONJA PORTER VS. SERGEANT MUNOZ, ET AL.; 2:16-cv-01702 LEK;
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

31