Jetmore Stoddard-Nunez et al v. City Of Hayward et al

Filing 136

ORDER Setting Hearing on 100 Defendants' MOTION for Summary Judgment. Motion Hearing set for 4/5/2018 01:30 PM before Magistrate Judge Kandis A. Westmore. Signed by Judge Kandis A. Westmore on 3/21/2018. (kawlc2, COURT STAFF) (Filed on 3/21/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JESSIE LEE JETMORE STODDARDNUNEZ,
Plaintiff,

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v.
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CITY OF HAYWARD, et al.,

Case No. 13-cv-04490-KAW
ORDER SETTING HEARING ON
DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT
Re: Dkt. No. 100

United States District Court
Northern District of California

Defendants.
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Defendants have filed a motion for summary judgment. (Dkt. No. 100.) The Court SETS

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a hearing on Defendants' motion for summary judgment on April 5, 2018 at 1:30 p.m. The

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parties should be prepared to address the following issues:

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1. The Court requires clarification on whether Defendant Troche asserts that he had 1.5 to

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2 seconds to react to Mr. Pakman driving towards him, or if the complete act of

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shooting took place in 1.5 to 2 seconds. Additionally, does Plaintiff dispute this

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contention?

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2. Plaintiff's primary argument appears to be that Defendant Troche acted unreasonably

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because several of the shots were fired from the rear of the subject vehicle. (See Plf.'s

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Opp'n at 28, Dkt. No. 114.) What evidence does Plaintiff rely on for this argument?

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Does Plaintiff rely solely on Mr. Roder's expert opinion? If relying on other evidence,

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Plaintiff must provide specific citations in the record.

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3. With respect to Mr. Roder's expert opinion, there does not appear to be adequate

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information to determine if the opinion complies with the requirements of Daubert and

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Federal Rule of Evidence 702. Specifically, there is no information on whether "the

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testimony is the product of reliable principles and methods," and whether Mr. Roder

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"has reliably applied the relevant principles and methods to the facts of the case."

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Pyramid Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807, 813 (9th Cir. 2014).

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Additionally, the provided graphics do not appear to consider Mr. McLeod's presence

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and the patrol vehicle doors being open, amongst other things. (See Defs.' Reply at 7,

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Dkt. No. 123.) Does Plaintiff dispute these facts, and if not, why do they not affect the

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validity of Dr. Roder's opinion?

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4. Plaintiff argues that Defendant Troche should have provided a warning prior to

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shooting. (Plf.'s Opp'n at 28-29.) Can Plaintiff identify any cases with facts similar to

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the instant case? Is Deorle v. Rutherford comparable to the facts of the instant case, as
it concerned an unarmed individual holding a can or bottle, who was not warned to

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United States District Court
Northern District of California

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drop the can or bottle or that he would be shot if he did not halt? See 272 F.3d at 1284.

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5. Plaintiff appears to argue that Defendant Troche has "exclusive knowledge" of what

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occurred. (Plf.'s Opp'n at 27.) Why is Mr. McLeod's testimony not also relevant to

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what occurred?

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6. Assuming that Defendant Troche did not identify himself as an officer and that his car

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and uniform were not visible because of the lighting, how does this affect what amount

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of force can be used by a reasonable officer if Mr. Pakman was driving at him? Are

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there any comparable cases?

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7. With respect to the physical evidence, Plaintiff raises issues of the lack of paint chips

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from the Honda being found on the patrol vehicle, and the failure to analyze whether

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asphalt found near gouge marks in fact came from the gouge marks. (See Plf.'s Opp'n

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at 15-16.) Why is this evidence relevant, and is it, alone, enough to defeat summary

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judgment?

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IT IS SO ORDERED.
Dated: March 21, 2018
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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