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

Filing 144

ORDER by Judge Kandis A. Westmore granting 100 Defendants' Motion for Summary Judgment. (kawlc2, COURT STAFF) (Filed on 6/28/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JESSIE LEE JETMORE STODDARDNUNEZ,

Case No. 13-cv-04490-KAW

Plaintiff,

ORDER GRANTING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT

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v.
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Re: Dkt. No. 100
CITY OF HAYWARD, et al.,

United States District Court
Northern District of California

Defendants.
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On September 27, 2013, Plaintiff Jessie Lee Jetmore Stoddard-Nunez filed the instant suit

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against Defendants City of Hayward and Manuel Troche. (Compl., Dkt. No. 1.) Plaintiff brings

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claims under 42 U.S.C. § 1983 and other state law actions, based on the March 3, 2013 shooting

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death of Plaintiff's brother, Shawn Joseph Jetmore Stoddard-Nunez ("Decedent") by Defendant

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Troche. (Third Amended Compl. ("TAC") ¶ 1, Dkt. No. 134.)

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On July 11, 2017, Defendants filed the instant motion for summary judgment. (Defs.'

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Mot., Dkt. No. 100.) Upon consideration of the parties' filings and the arguments made at the

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September 7, 2017 and April 19, 2018 hearings, and for the reasons set forth below, Defendants'

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motion for summary judgment is GRANTED.

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I.

BACKGROUND

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A.

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On March 3, 2013, Plaintiff and Decedent had a social gathering at their apartment. (Brick

Factual Background

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Decl., Exh. 4 ("Plf.'s Dep.") at 56:22-23, Dkt. No. 102.) Decedent's friend, Arthur Pakman,

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attended the gathering. (Plf.'s Dep. at 57:7-8.) Decedent and Pakman were drinking alcohol, and

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Pakman became more violent and disruptive as the night went on. (Plf.'s Dep. at 62:6-8; 66:14-

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16.) Pakman picked a fight with Plaintiff, causing Decedent to intervene. (Plf.'s Dep. at 67:10-12;

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68:10-12.) When Pakman failed to stop, Plaintiff and Pakman got into an argument, and Plaintiff

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asked Pakman to leave. (Plf.'s Dep. at 69:23-70:5.) Pakman and Decedent then left. (Plf.'s Dep.

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at 71:7-10.)

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That same night, Defendant Manuel Troche was on patrol in full uniform, using a fully
marked patrol vehicle. (Pointer Decl., Exh. A ("Troche Prelim. Hearing Test.") at 43:11-14, Dkt.

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No. 112; Pointer Decl., Exh. A ("McLeod Prelim. Hearing Test.") at 15:3-6.) Defendant Troche

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had a ride-along passenger, Russell McLeod. (Troche Prelim. Hearing Test. at 44:5-8.) The

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Hayward Police Department Ride-Along Policy requires that a ride-along passenger complete an

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application form and execute a waiver of liability; Defendant Troche could not recall whether Mr.

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McLeod completed his paperwork. (Pointer Decl., Exh. D ("Ride-Along Policy"); Exh. B ("Plf.'s

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Northern District of California

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Troche Dep.") at 32:2.)

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Around 3:20 a.m., Defendant Troche and Mr. McLeod were on patrol when they noticed a

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red Honda Civic swerving over the lane lines. (Brick Decl., Exh. 5 ("Defs.' Troche Dep.") at

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36:25-37:12; Troche Prelim. Hearing Test. at 46:3-4.) The vehicle was driven by Pakman, with

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Decedent in the passenger seat. At the time, the streets were fairly empty. (Troche Prelim.

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Hearing Test. at 46:1-2.) Defendant Troche and Mr. McLeod saw the Honda Civic run a red light,

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and Defendant Troche followed, trying to catch up because he believed the vehicle could be a

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danger to people around it or that the driver was drunk, and decided to investigate. (Defs.' Troche

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Dep. at 38:5-14.) As Defendant Troche sped up, he did not turn on his traffic enforcement lights,

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nor did he radio dispatch to inform them of what he was doing. (Defs.' Troche Dep. at 38:19-25.)

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During the pursuit, Defendant Troche observed the car swerving in and out of the lanes, looking

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like he was trying to find somewhere to pull in. (Plf.'s Troche Dep. at 44:21-45:2.) He also saw

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Pakman go through a stop sign. (Plf.'s Troche Dep. at 46:11-16.) Defendant Troche still did not

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call the car in or communicate with dispatch regarding an intent to stop the car, as he did not have

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license plate information to provide at that juncture. (Plf.'s Troche Dep. at 46:23-47:3.)

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Defendant Troche never activated his sirens. (Plf.'s Troche Dep. at 48:4-10.)

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Defendant Troche caught up to Pakman's vehicle as it pulled around a cul-de-sac on

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Fletcher Avenue. (Defs.' Troche Dep. at 47:16-18.) As Defendant Troche drove down the cul-de2

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sac, Pakman reached the end of the cul-de-sac and was looping back, resulting in Defendant

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Troche and Pakman passing each other. (Defs.' Troche Dep. at 47:14-22.) As they passed, Mr.

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McLeod was able to make eye contact with the driver and passenger, who were looking at him and

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Defendant Troche. (McLeod Prelim. Hearing Test. at 8:14-18, 8:27-9:1.) Defendant Troche also

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looked into the car and saw two men, although neither appeared to make eye contact with him and

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Defendant Troche did not say anything. (Troche Prelim. Hearing Test. at 50:21-51:25.)

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Defendant Troche exited the cul-de-sac, and saw Pakman pull into an empty parking lot of

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a closed business adjacent to the cul-de-sac, and park in a spot facing the business. (Troche

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Prelim. Hearing Test. at 51:27-52:2, 52:7-10; Defs.' Troche Dep. at 50:1-8, 54:24-55:3.) Thus,
Pakman's vehicle was facing the left-hand side of the parking lot. (McLeod Prelim. Hearing Test.

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at 9:22-23.) Looking into the parking lot from Fletcher Lane, there was an apartment complex to

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the right of the parking lot, and a one-level brick building to the left. (Defs.' Troche Dep. at 55:5-

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15.) There were also two reddish-colored poles at the end of the driveway. (Defs.' Troche Dep. at

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55:19-21.) Defendant Troche pulled into the parking lot to the left side of the entrance, near the

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pole, with part of his vehicle in the roadway, blocking the sidewalk. (Defs.' Troche Dep. at 56:16-

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57:3; Troche Prelim. Hearing Test. at 52:28-53:1.) Based on this positioning, Defendant Troche's

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vehicle would have been perpendicular with Pakman's vehicle. Defendant Troche thought that

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from the way Pakman pulled into a secured lot, it appeared to be a possible ambush situation.

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(Defs.' Troche Dep. at 61:7-16; Troche Prelim. Hearing Test. at 53:2-7.)

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Defendant Troche radioed dispatch a code 1154 (suspicious vehicle). (Defs.' Troche Dep.

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at 60:10-16; see also Brick Decl., Exh. 9 at 2:2-3.) Defendant Troche and Mr. McLeod both

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exited the marked police vehicle. (McLeod Prelim. Hearing Test. at 10:1-5; Troche Prelim.

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Hearing Test. at 54:17; Defs.' Troche Dep. at 63:5-7.) Mr. McLeod testified that he got out to get

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clear of the car, but that before he could go off to the side, Defendant Troche told him not to.

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(McLeod Prelim. Hearing Test. at 10:19-24.) Mr. McLeod remained next to the patrol car behind

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the vehicle door. (Defs.' Troche Dep. at 73:10-13.) Defendant Troche testified that he did not

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remember what, if any, directions he gave to Mr. McLeod as they were exiting or after exiting the

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vehicle. (Defs.' Troche Dep. at 67:19-22.) Defendant Troche turned on the driver's side overhead
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spotlight and set it on the Honda. (McLeod Prelim. Hearing Test. at 14:11-16; Troche Prelim.

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Hearing Test. at 54:21-28; Defs.' Troche Dep. at 58:1-59:2.)

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Defendant Troche testified that when he exited the vehicle, he immediately drew his gun as

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he announced himself as "Police," and told the driver, "Shut off the car. Let me see your hands."

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(Defs.' Troche Dep. at 63:16-18; 82:8-11; Troche Prelim. Hearing Test. at 55:11-14, 55:24-26,

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56:13-22.) Pakman's window was down, but Pakman did not look at him or respond, and instead

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continued to look forward. (Defs.' Troche Dep. at 64:1-10, 66:11-17; Troche Prelim. Hearing

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Test. at 56:5-7, 57:25-28.) Defendant Troche saw Decedent leaning over as if reaching for

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something under the seat or dash, making Defendant Troche believe that he was arming himself or
hiding contraband. (Defs.' Troche Dep. at 69:20-70:1; Troche Prelim. Hearing Test. at 58:1-6.)

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Defendant Troche continued to give orders to Pakman, telling him to turn the car off and show his

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hands. (Defs.' Troche Dep. at 73:19-74:6.) Pakman and Decedent did not comply with the

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commands; Defendant Troche then went around the back of his patrol vehicle, walking west to try

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to get to the back of Pakman's vehicle to get a plate to dispatch. (Defs.' Troche Dep. at 77:13-19;

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Troche Prelim. Hearing Test. at 58:22-26.) At some point, although it was not clear if it was

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before or while Defendant Troche was moving, Pakman placed a cigarette in his mouth and lit it

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while continuing to look forward. (Defs.' Troche Dep. at 74:20, 83:17-21; Troche Prelim. Hearing

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Test. at 58:17-21.) When he could not get a good angle for the plate, Defendant Troche returned

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to the patrol car, positioning himself on the passenger side with Mr. McLeod. (Defs.' Troche Dep.

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at 77:20-22; Troche Prelim. hearing Test. at 60:24-27.) Defendant Troche saw Pakman look at

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him for the first time with an angry grimace. (Defs.' Troche Dep. at 86:11-18; Troche Prelim.

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Hearing Test. at 60:19-21.)

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Mr. McLeod testified that he heard Defendant Troche yelling at Pakman and Decedent to

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"Turn the fucking car off. Turn the fucking car off now. Turn the car off," and to "Get out of the

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car." (McLeod Prelim. Hearing Test. at 10:24-11:6.) Mr. McLeod described Defendant Troche's

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tone as "[a]uthoritative and yelling." (McLeod Prelim. Hearing Test. at 11:7-9.) He did not,

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however, recall whether Defendant Troche identified who he was. (McLeod Prelim. Hearing Test.

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at 11:10-11.) Mr. McLeod could only see the driver, who never acknowledged Defendant Troche
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or Mr. McLeod, but continuously looked straight ahead, even though the driver's window

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appeared to be halfway down. (McLeod Prelim. Hearing Test. at 12:1-15.)

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Pakman light a cigarette, although Defendant Troche was still yelling commands. (McLeod

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Prelim. Hearing Test. at 12:21-26.)

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Mr. McLeod saw

Pakman then put the Honda into reverse, backing up. (Defs.' Troche Dep. at 85:15-17;

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McLeod Prelim. Hearing Test. at 13:23-26.) Both Mr. McLeod and Defendant Troche testified

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that they could hear the sound of the car going in reverse. (Defs.' Troche Dep. at 85:20-23;

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McLeod Prelim. Hearing Test. at 13:27-14:3.) Pakman essentially did a three-point turn in

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reverse, such that the back-end of his vehicle was against the fence and the headlights were facing
Defendant Troche and Mr. McLeod. (Defs.' Troche Dep. at 86:2-10; McLeod Prelim. Hearing

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Test. at 14:4-7.) During this time, Defendant Troche does not recall giving any instructions to Mr.

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McLeod. (Plf.'s Troche Dep. at 90:12-17.) The Honda's headlights were on, making it difficult

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for Defendant Troche to see what was happening inside of the car. (Plf.'s Troche Dep. at 88:20-

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86:4.) Defendant Troche radioed that the Honda was coming at them based on Pakman's vehicle

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facing them. (Plf.'s Troche Dep. at 89:23-90:6.) Mr. McLeod recalled Defendant Troche yelling

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at Pakman, "Don't do it. Don't do it. Turn the car off. Don't do it." (McLeod Prelim. Hearing Test.

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at 15:9-11; see also Troche Prelim. Hearing Test. at 61:10-17.)

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Pakman then stepped on the gas and accelerated towards Defendant Troche and Mr.

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McLeod. (McLeod Prelim. Hearing Test. at 15:10-11; Plf.'s Troche Dep. at 89:24-25; Troche

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Prelim. Hearing Test. at 61:4.) Defendant Troche could hear the tires screeching or squealing, and

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believed Pakman floored the gas based on the body shift and the lights going up. (Plf.'s Troche

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Dep. at 91:16-20.) Mr. McLeod testified that he knew that Pakman was coming his way because

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the bigger side to get out of the driveway was on his side, and that there was no room to get out

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from the patrol vehicle driver's side. (McLeod Prelim. Hearing Test. at 15:9-18.) As the Honda

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came towards the police vehicle, Defendant Troche was standing in the circle near the door, and

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brought his gun up and pointed at the driver. (Plf.'s Troche Dep. at 92:12-22.) Defendant Troche

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stated that the car was initially coming forward, but then veered towards the police vehicle's

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passenger side. (Plf.'s Troche Dep. at 93:7-10; Troche Prelim. Hearing Test. at 62:12-22, 63:65

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13.) Based on the video, Sergeant Eric Krimm, who supervised the investigation into the

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shooting, stated that he did not recall seeing a discernible swerve, although the quality of the video

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made it difficult to determine whether the vehicle swerved. (Pointer Decl., Exh. E ("Plf.'s Krimm

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Dep.") at 18:17-21; 21:11-16.) Crime scene tech Sergeant Jason Corsolini testified that Mr.

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Pakman's vehicle was on a direct course, i.e. going straight towards, with the passenger side of the

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police vehicle. (Pointer Decl., Exh. H ("Corsolini Dep.") at 87:5-14.)

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The vehicle was approximately ten feet from Defendant Troche when he started

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backpedaling as he opened fire, while also trying to shove Mr. McLeod out of the way of the

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Honda. (Plf.'s Troche Dep. at 94:15-22, 99:10-11; Troche Prelim. Hearing Test. at 61:19-23,
63:18-20, 63:24-27.) Defendant Troche thought that Mr. McLeod had gotten run over at some

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Northern District of California

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point. (Plf.'s Troche Dep. at 95:23-96:2; Troche Prelim. Hearing Test. at 64:17-20.) When Mr.

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McLeod saw the Honda coming towards him, he ducked down and heard the Honda make contact

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with the door of the patrol vehicle; the patrol vehicle door then pressed against Mr. McLeod until

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the car passed and the door opened back up. (McLeod Prelim. Hearing Test. at 16:4-7; see also

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Pointer Dec., Exh. C ("McLeod Interview") at 71:12-25.) Mr. McLeod could hear metal scraping

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against metal, and felt impact on his left and right side. (McLeod Prelim. Hearing Test. at 16:10-

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15.) Sergeant Corsolini later found an 18- to 20-inch horizontal line on the body line of the patrol

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vehicle, in addition to other scuff marks and dents that he believed were made by Mr. Pakman's

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car. (Brick Decl. ISO Reply, Exh. 21 ("Reply Corsolini Dep.") at 74:1-14.) Sergeant Corsolini

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did not match the scuff marks to the Honda, and no paint chips from the Honda were found on the

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patrol vehicle, although white colored paint was found on the Honda. (Plf.'s Corsolini Dep. at

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56:3-5; Reply Corsolini Dep. at 72:17-19, 74:15-75:2.)

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Defendant Troche was continuously pulling the trigger as quickly as he could. (Plf.'s

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Troche Dep. at 111:18-19; Troche Prelim. Hearing Test. at 64:14-16.) Defendant Troche

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ultimately fired nine shots out of thirteen rounds in his gun. (Defs.' Troche Dep. at 24:20-24;

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Brick Decl., Exh. 14 ("Defs.' Padavana Dep.") at 17:1-4.) Mr. McLeod recalled hearing shots

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being fired as he felt the patrol vehicle door being pressed up against him, presumably by the

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Honda as it drove by. (McLeod Prelim. Hearing Test. at 17:4-6; McLeod Interview at 33:22-24.)
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When Defendant Troche perceived that the Honda was past him, he stopped firing, by which point

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he had backed up to the rear of his police vehicle and was in the street. (Plf.'s Troche Dep. at

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100:3-13.) Mr. McLeod stated that he looked out of the back window, and saw Pakman's vehicle

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going down the street and Defendant Troche following, although Defendant Troche was not

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shooting at that point. (McLeod Interview at 33:17-22.) After the car had gone by, Mr. McLeod

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thought he heard Defendant Troche say, "I think I got him." (McLeod Prelim. Hearing Test. at

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17:21-22.) Defendant Troche then informed the dispatcher: "Shots fired. Shots fired. The vehicle

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took off." (Brick Decl., Exh. 9 at 2:19-20.) Approximately twelve seconds passed between

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Defendant Troche radioing dispatch about Pakman's car pointed at them and his informing

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Northern District of California

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dispatch that a shooting had occurred. (Brick Decl., Exh. 8 at 0:57-1:08.)
Crime scene tech Sergeant Corsolini found gouge marks near the shooting scene, and

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concluded that it was caused by Mr. Pakman's Honda exiting the apron. (Corsolini Dep. at 52:15-

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53:10.) Sergeant Corsolini's conclusion was based on asphalt north of the gouge marks that

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appeared to be fresh, although Sergeant Corsolini did not analyze whether the asphalt came from

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the gouge marks. (Corsolini Dep. at 53:14-54:1.) Pakman drove the vehicle until it was involved

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in a collision. (Brick Decl., Exh. 16 ("Defs.' Krimm Dep.") at 12:23-13:3.)

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Bullet holes were found in the Honda's front windshield and hood, front passenger door,

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and rear passenger door. (Pointer Dec., Exh. F ("Plf.'s Padavana Dep.") at 26:14-16, 29:1-13,

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31:7-11.) No bullet holes were found in the back of the vehicle. Bullet fragments were found in

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the front driver's floorboard, the front passenger floorboard, the rear passenger's door. (Pointer

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Dec., Exh. I ("Portillo Dep.") at 23:5-7, 26:17-18, 30:11-13.) Decedent suffered two bullet

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wounds: a gunshot wound to the right shoulder, with the bullet recovered on the left side of the

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neck, and a through-and-through gunshot wound to the right arm. (Pointer Dec., Exh. J ("Autopsy

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Report").) Decedent ultimately died from a "massive hemorrhage due to transection of the carotid

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artery due to gunshot wound to the right arm with neck involvement." (Id.)

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When Pakman was interviewed after the incident, he stated that he did not know it was the

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police and that he was just "trying to get the fuck out of there" because he was getting shot at.

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(Pointer Decl., Exh. K.) He also denied driving at anyone. (Id.) Pakman was later charged with
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Decedent's murder, two counts of felony assault, and two counts of driving under the influence.

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(Brick Decl., Exh. 17.) On January 26, 2016, Pakman pled no contest to involuntary manslaughter

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and felony driving under the influence. (Brick Decl., Exh. 12 at 1:10-14, 6:17-22.)

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B.

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On September 27, 2013, Plaintiff brought claims for § 1983 violations and various state

Procedural Background

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claims, based on Decedent's death. (Compl. at 6-11.) On July 11, 2017, Defendants filed a

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motion for summary judgment. Defendants argued that Plaintiff lacked standing to bring the

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instant case because Decedent's father, Jeffrey Stoddard, had superior rights to Plaintiff. (Defs.'

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Mot. at 6-8.) In the alternative, Defendants argued that Defendant Troche's use of force was
reasonable and that he was entitled to qualified immunity. (Id. at 9-21.) Defendants also argued

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Northern District of California

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that Plaintiff could not establish Monell liability as to the claims against the City. (Id. at 21-25.)

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On August 1, 2017, Plaintiff filed his opposition to Defendants' motion for summary

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judgment. (Plf.'s Opp'n, Dkt. No. 114.) The opposition included an expert report by Scott G.

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Roder, which opined that Defendant Troche fired his gun at Pakman's vehicle from behind, and

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that Decedent died from a gunshot fired from behind Pakman's vehicle as it was driving away.

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(Roder Decl. ¶¶ 10, 14, Dkt. No. 115.) On August 15, 2017, Defendants filed their reply brief.

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(Defs.' Reply, Dkt. No. 123.)

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On September 7, 2017, the Court held a hearing on Defendants' motion for summary

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judgment, focused on the standing issue. (See Dkt. No. 127.) The parties disputed whether

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amending the complaint to add Decedent's Estate as a plaintiff would be futile, as Defendants

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argued that such a complaint would not relate back.

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On October 18, 2017, the Court stayed the case to allow the probate court to decide

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Plaintiff's petition to be appointed as personal representative of Decedent's Estate. (Dkt. No. 131

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at 2.) On November 27, 2017, Plaintiff filed a notice that the appointment had been made. (Dkt.

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No. 132.) On March 1, 2018, the Court unstayed the case and permitted Plaintiff to file a third

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amended complaint naming Plaintiff as the personal representative of Decedent's Estate, thus

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resolving the standing issue. (Dkt. No. 133 at 11.)

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On March 9, 2018, Plaintiff, acting in his capacity as the personal representative of
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Decedent's Estate, filed the operative complaint. Plaintiff brought the following causes of action:

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(1) 42 U.S.C. § 1983 claim for violation of Decedent's Fourth Amendment Rights; (2) 42 U.S.C. §

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1983 claim for wrongful death; (3) Monell liability; (4) wrongful death based on negligence; (5)

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assault; and (6) battery. (TAC at 6-11.)
The Court then set Defendants' motion for summary judgment for hearing and requested

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that the parties be prepared to address certain issues, including whether Mr. Roder's opinion

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complied with the requirements of Daubert and Federal Rule of Evidence 702. (Dkt. No. 136 at

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1-2.)

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II.

LEGAL STANDARD

"A party may move for summary judgment, identifying each claim or defense—or the part

United States District Court
Northern District of California

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of each claim or defense—on which summary judgment is sought." Fed. R. Civ. P. 56(a).

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Summary judgment is appropriate when, after adequate discovery, there is no genuine issue as to

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material facts and the moving party is entitled to judgment as a matter of law. Id.; see Celotex

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Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Material facts are those that might affect the

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outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a

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material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for

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the nonmoving party. Id.

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A party seeking summary judgment bears the initial burden of informing the court of the

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basis for its motion and of identifying those portions of the pleadings and discovery responses that

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demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Where the

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moving party will have the burden of proof at trial, it must affirmatively demonstrate that no

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reasonable trier of fact could find other than for the moving party. Southern Calif. Gas. Co. v.

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City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003).

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On an issue where the nonmoving party will bear the burden of proof at trial, the moving

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party may discharge its burden of production by either (1) "produc[ing] evidence negating an

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essential element of the nonmoving party's case" or (2) after suitable discovery, "show[ing] that

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the nonmoving party does not have enough evidence of an essential element of its claim or defense

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to discharge its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., Ltd., v.
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Fritz Cos., Inc., 210 F.3d 1099, 1106 (9th Cir. 2000); see also Celotex, 477 U.S. at 324-25.
Once the moving party meets its initial burden, the opposing party must then set forth

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specific facts showing that there is some genuine issue for trial in order to defeat the motion. See

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Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250. "A party opposing summary judgment may not

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simply question the credibility of the movant to foreclose summary judgment." Far Out Prods.,

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Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001). "Instead, the non-moving party must go beyond

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the pleadings and by its own evidence set forth specific facts showing that there is a genuine issue

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for trial." Id. (citations and quotations omitted). The non-moving party must produce "specific

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evidence, through affidavits or admissible discovery material, to show that the dispute exists."
Bhan v. NMS Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). Conclusory or speculative

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Northern District of California

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testimony in affidavits and moving papers is insufficient to raise a genuine issue of material fact to

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defeat summary judgment. Thornhill Publ’g Co., Inc. v. Gen. Tel. & Electronics Corp., 594 F.2d

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730, 738 (9th Cir. 1979).
In deciding a motion for summary judgment, a court must view the evidence in the light

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most favorable to the nonmoving party and draw all justifiable inferences in its favor. Anderson,

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477 U.S. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011).

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III.

DISCUSSION

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A.

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First, Defendants argue that Decedent was not seized as a matter of law, relying on

Seizure

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Nakagawa v. County of Maui, 686 Fed. Appx. 388 (9th Cir. 2017). (Defs.' Mot. at 8-9.)

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Generally, "[a] person is seized by the police and thus entitled to challenge the government's

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action under the Fourth Amendment when the officer by means of physical force or show of

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authority terminates or restrains his freedom of movement through means intentionally applied."

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Brendlin v. California, 551 U.S. 249, 254 (2007) (internal quotations and citations omitted). In

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Nakagawa, an unpublished decision,1 the Ninth Circuit found that there was no intentional seizure

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of the decedent where the plaintiffs admitted as "undisputed" that each of the officers was aiming

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Unpublished decisions are not binding authority. (Ninth Cir. Rule 36-3.)
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at the driver, but had instead hit a passenger. 686 Fed. Appx. at 389.
The facts of Nakagawa are readily distinguishable. Although not discussed by the Ninth
Circuit, the district court, in granting summary judgment, found that "the officers were not aware

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of [the p]laintiffs' presence in the bed of the truck before they discharged their firearms." Case

5

Nos. 11-cv-130 DKW-BMK, 12-569 DKW-BMK, 2014 WL 1213558, at *6 (D. Haw. Mar. 21,

6

2014). As the officers did not even know that the plaintiffs were in the vehicle, the officers could

7

not have intentionally aimed at the plaintiffs. Id. at *7. In contrast, Defendant Troche was aware

8

of Decedent's presence prior to the shooting. (Plf.'s Troche Dep. at 69:21-70:18.) There is also

9

testimony that Defendant Troche was aiming at the car to stop the driver, which is distinct from

10

shooting only at the driver. (See Plf.'s Troche Dep. at 94:15-16 ("Shots were fired at the car to

11
United States District Court
Northern District of California

3

stop the driver from continuing and running us over") (emphasis added).) The Court, therefore,

12

cannot conclude, as a matter of law, that Decedent was not seized within the meaning of the

13

Fourth Amendment.

14

B.

15

Second, the parties dispute whether the amount of force used by Defendant Troche was

Reasonable Force

16

reasonable. "Apprehension by deadly force is a seizure subject to the Fourth Amendment's

17

reasonableness requirement." Wilkinson v. Torres, 610 F.3d 546, 550 (9th Cir. 2010). While an

18

officer may not use deadly force to apprehend a suspect that poses no immediate threat to the

19

officer or others, "it is not constitutionally unreasonable to prevent escape using deadly force

20

where the officer has probable cause to believe that the suspect poses a threat of serious physical

21

harm, either to the officer or to others." Id. (internal quotation omitted). Determining

22

reasonableness "requires careful attention to the facts and circumstances of each particular case,

23

including the severity of the crime at issue, whether the suspect poses an immediate threat to the

24

safety of the officers or others, and whether he is actively resisting arrest or attempting to evade

25

arrest by flight." Graham v. Connor, 490 U.S. 386, 396 (1989). Furthermore, "[t]he

26

'reasonableness' of a particular use of force must be judged from the perspective of a reasonable

27

officer on the scene, rather than with the 20/20 vision of hindsight." Id. "The calculus of

28

reasonableness must embody allowance for the fact that police officers are often forced to make
11

1

split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the

2

amount of force that is necessary in a particular situation." Id.

3

i.

Firing at Vehicle that had Passed

In his papers, Plaintiff argues that "the fatal shots were fired after the vehicle had passed

5

Defendant Troche and his patrol vehicle." (Plf.'s Opp'n at 27.) Thus, "at the time the fatal shots

6

were fired, any alleged threat had subsided and the subject vehicle and its occupants did not pose a

7

threat." (Id.) The Court finds, however, that Plaintiff has failed to provide any admissible

8

evidence to support this theory. In his opposition, Plaintiff appears to primarily rely on Mr.

9

Roder's expert opinion that shots were fired at the back of the vehicle and that the fatal shot was

10

fired from behind the Honda as it was driving away. (Id. at 17-18; Roder Decl. ¶¶ 10, 14.) Mr.

11
United States District Court
Northern District of California

4

Roder's opinion, however, fails to satisfy Rule 702 and Daubert. In general, "[t]he trial court must

12

assure that the expert testimony both rests on a reliable foundation and is relevant to the task at

13

hand. Expert opinion testimony is relevant if the knowledge underlying it has a valid connection

14

to the pertinent inquiry. And it is reliable if the knowledge underlying it has a reliable basis in the

15

knowledge and experience of the relevant discipline." Pyramid Techs., Inc. v. Hartford Cas. Ins.

16

Co., 752 F.3d 807, 813 (9th Cir. 2014).

17

Here, Mr. Roder's opinion satisfies neither of these requirements. In the order setting this

18

matter for oral argument, the Court explained that "there [wa]s no information on whether 'the

19

testimony is the product of reliable principles and methods,' and whether Mr. Roder 'has reliably

20

applied the relevant principles and methods to the facts of the case.'" (Dkt. No. 136 at 1-2

21

(quoting Pyramid Techs., Inc., 752 F.3d at 813).) The Court also noted that Mr. Roder's report

22

failed to account for Mr. McLeod's presence and the patrol vehicle doors being open. (Id. at 2.)

23

At the hearing, Plaintiff stated that Mr. Roder had been admitted and qualified in other cases, and

24

that Mr. Roder's opinion involved a computer program that had been used for his opinions

25

admitted as expert testimony in other cases. Plaintiff, however, did not explain the methodology

26

used by Mr. Roder, nor did Plaintiff explain how Mr. Roder's opinion had been reliably applied to

27

the facts of the case at bar. Indeed, at the hearing, Plaintiff appeared to concede the issue by

28

asserting that Mr. Roder's opinion was not necessary and requesting that the Court instead rely on
12

1
2

the evidence in the record.
That evidence, in turn, is also insufficient to create a dispute of material fact. At the

3

hearing, Plaintiff pointed only to a photograph by CSI Jennifer Padavana of a bullet hole in the

4

back passenger seat, and to the alleged conflicts in the testimony of Defendant Troche and Mr.

5

McLeod. (See Dkt. No. 116; Plf.'s Troche Dep. at 89:24-90:6, 95:6-12, 96:24-97:6; McLeod

6

Interview at 33:5-25.) With respect to the photograph, absent an expert report, there is no

7

information as to what conclusions a jury could draw from it. The photograph, alone, does not

8

demonstrate that Defendant Troche fired after the car had already passed him, and without expert

9

testimony to explain the significance of the photograph, a reasonable inference cannot be made as

10

United States District Court
Northern District of California

11

to when Defendant Troche fired his gun.
As to the alleged conflicts in the testimony of Defendant Troche and Mr. McLeod, the

12

Court finds that the conflicts, if any, do not create a dispute in material fact as to whether

13

Defendant Troche shot at the vehicle after it had passed. As a general matter, "once the movant

14

for summary judgment has supported his or her motion, the opponent must affirmatively show that

15

a material issue of fact remains in dispute and may not simply rest on the hope of discrediting

16

movant's evidence at trial." Frederick S. Wyle Prof'l Corp. v. Texaco, Inc., 764 F.2d 604, 608 (9th

17

Cir. 1985). Thus, "[n]either a desire to cross-examine affiant nor an unspecified hope of

18

undermining his or her credibility suffices to avert summary judgment, unless other evidence

19

about an affiant's credibility raises a genuine issue of material fact." Id.

20

Here, Plaintiff argues that Defendant Troche lacks credibility for several reasons. First,

21

Plaintiff contends that Defendant Troche testified that it took two seconds from the time he saw

22

the car moving towards him until he was done shooting, but that it was impossible for the

23

described of events to occur in two seconds. It is undisputed, however, that twelve seconds passed

24

from the time Defendant Troche reported that Pakman was driving towards him to the time he

25

reported that shots had been fired. (Brick Decl., Exh. 8 at 0:57-1:08.) Plaintiff does not argue that

26

based on this twelve seconds, Defendant Troche's testimony that the car was driving at him was

27

false, or that Defendant Troche was shooting at the car after it passed. In other words, whether the

28

events occurred in two seconds or twelve seconds, the dispute is not material because it does not
13

1

affect Defendant Troche's justification for shooting, which was that the car was driving at him.
Plaintiff also points to Mr. McLeod's testimony that he was in the car when he heard the

3

shots. (See McLeod Interview at 33:5-25.) Mr. McLeod testified that Pakman's vehicle clipped

4

the patrol vehicle door, which slammed into Mr. McLeod and caused him to fall onto the

5

passenger seat, when he heard gunfire. (Id. at 33:5-12.) When the shooting stopped, he looked up

6

and saw Defendant Troche following Pakman's vehicle as it drove down the street, with Defendant

7

Troche following it but not shooting. (Id. at 33:17-25.) Based on this, Plaintiff argues that a jury

8

could infer that Defendant Troche did, in fact, shoot at the back of the vehicle. This inference is,

9

however, unreasonable. In the absence of expert testimony, it cannot be inferred that Defendant

10

Troche shot at the back of Pakman's vehicle after it had passed him based solely on Mr. McLeod

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Northern District of California

2

observing Defendant Troche not shooting at the vehicle as it drove down the street. In short, Mr.

12

McLeod's testimony is not evidence that Defendant Troche shot at Pakman's vehicle after it passed

13

him, and thus does not create a genuine dispute of material fact.
Additionally, Plaintiff points to alleged discrepancies in the testimony in another attack on

14
15

the eyewitness testimony. For example, Plaintiff argues that Defendant Troche testified that the

16

car veered towards the passenger side, but that Sergeant Krimm did not see a discernible swerve

17

on the video footage. (Plf.'s Troche Dep. at 93:7-10; Plf.'s Krimm Dep. at 18:17-21, 21:11-16.)

18

First, the poor quality of the video made it difficult to determine whether the vehicle swerved.

19

Sergeant Krimm's failure to recall a discernable swerve does not create a conflict with the other

20

testimony.2 Moreover, even if the car did not swerve, Plaintiff provides no evidence to contradict

21

Defendants' evidence that the vehicle was aimed directly at the passenger side of the police

22

vehicle, where both Defendant Troche and Mr. McLeod were positioned. Indeed, Crime scene

23

tech Sergeant Corsolini testified that Pakman's vehicle was going straight toward the passenger

24

side of the patrol car.
Plaintiff also disputes what caused Mr. McLeod to be pushed into the vehicle. Mr.

25
26

McLeod testified that it was Pakman's vehicle making contact against the door that pushed him

27
2

28

Sergeant Krimm also testified that he had not seen the video since 2013, and thus did not recall
any discernible swerve. (Plf.'s Krimm Dep. at 21:11-14.)
14

into the patrol vehicle. (McLeod Prelim. Hearing Test. at 16:4-7; McLeod Interview at 71:12-25.)

2

Mr. McLeod also heard metal scraping metal against metal. (McLeod Prelim. Hearing Test. at

3

16:10-15.) Sergeant Corsolini did not, however, find paint chips from Pakman's vehicle on the

4

patrol vehicle, but did find white paint on Pakman's vehicle. (Plf.'s Corsolini Dep. at 56:3-5;

5

Reply Corsolini Dep. at 72:17-19, 74:15-75:2.) Based on this, Plaintiff argues that the lack of

6

paint chips means the car was not hit. Again, however, Plaintiff fails to produce any evidence,

7

such as expert testimony, that paint from Pakman's vehicle should have been found on the patrol

8

vehicle if the cars made contact. This is particularly significant when, as Defendants noted at oral

9

argument, Pakman's vehicle had a bumper that was not painted. (See also Dkt. No. 116.) Thus,

10

Plaintiff fails to affirmatively provide evidence that would create a dispute of material fact as to

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Northern District of California

1

whether Pakman's vehicle hit the patrol vehicle. In short, in the absence of admissible evidence,

12

Plaintiff's asserted discrepancies in the testimony are insufficient to defeat summary judgment.

13
14

ii.

Firing at a Slow-Moving Vehicle

At the hearing, Plaintiff, for the first time, raised the possibility that Pakman's vehicle was

15

driving between 2-7 mph when Defendant Troche fired at the vehicle. Plaintiff argued that in such

16

circumstance, it was unreasonable for Defendant Troche to shoot at the vehicle, particularly

17

without giving a warning that he would shoot.

18

Plaintiff, however, provides no evidence from which a fact-finder could conclude that the

19

vehicle was driving at such a speed, and oral argument is not evidence. Plaintiff relies heavily on

20

Gonzalez v. City of Anaheim, in which the Ninth Circuit found that a jury could find that the

21

vehicle was only going 3-7 mph based on the defendants' own testimony. 747 F.3d 789, 795-96

22

(9th Cir. 2014). Specifically, the officers testified that the vehicle had moved 50 feet in five to ten

23

seconds, and that it was going 50 mph when one of the officers shot. Id. at 794. The Ninth Circuit

24

explained that the combination of these three facts was physically impossible; it pointed to the

25

plaintiffs' arguments that if the vehicle had traveled 50 feet in ten seconds, the average speed

26

would be 3.4 mph. Id. Likewise, if the vehicle had traveled 50 feet in five seconds, the average

27

speed would be 6.8 mph. Thus, if a jury believed the officers' testimony that the vehicle had

28

moved 50 feet in five to ten seconds, then the vehicle would only have been going at between 3-7
15

1

mph, a speed at which the defendants did not argue a threat would still be posed. Id. at 795-96.
Here, however, Plaintiff has not produced evidence to conclude that the vehicle was

2

driving at only 2-7 mph. Plaintiff states that the parking lot was "small," but does not provide a

4

measurement, nor compare that with the time it might have taken for Pakman to drive out of the

5

parking lot -- which, as discussed above, would be a maximum of twelve seconds. Plaintiff does

6

not provide expert testimony that opines as to the speed Pakman was driving. Furthermore, the

7

evidence that Defendant Troche heard Pakman's car's tires screeching suggests that Pakman had

8

floored the gas, suggesting he was not going 2-7 mph. (Plf.'s Troche Dep. at 91:16-20.) In short,

9

there is nothing from which a fact-finder could infer that the vehicle was driving at only 2-7 mph,

10

and, therefore, no support for Plaintiff's theory that the car was moving so slowly that Defendant

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United States District Court
Northern District of California

3

Troche and Mr. McLeod were not in danger, or that Defendant Troche had sufficient time to give

12

a warning that he would shoot.

13

Plaintiff also relies on the failure to test whether asphalt came from the gouge marks. The

14

failure to test the asphalt is merely an attempt to create a genuine dispute of material fact from the

15

absence of evidence. This is insufficient to defeat summary judgment, as Plaintiff must produce

16

evidence to show a genuine dispute exists. See Bhan, 929 F.2d at 1409 (finding that the non-

17

moving party must produce "specific evidence, through affidavits or admissible discovery

18

material, to show that the dispute exists").
Accordingly, the Court finds that Plaintiff has failed to produce admissible evidence to

19
20

conclude that Pakman's vehicle was moving so slowly that it did not pose a threat. Thus, Plaintiff

21

cannot establish that Defendant Troche's actions were unreasonable, or that the vehicle was

22

moving slowly enough for Defendant Troche to issue a warning that he would shoot. Further, to

23

the extent Plaintiff argues that Defendant Troche should have given a warning regardless of the

24

speed at which the vehicle was moving, Plaintiff provides no authority which suggests that an

25

officer must issue a warning even if a vehicle is coming at them at a high speed.3

26
3

27
28

To the extent Plaintiff relies on Gonzalez, again, there the Ninth Circuit found that the vehicle
may have been moving at 3-7 mph, and thus a jury could find that a warning was practicable. 747
F.3d at 797. In so finding, however, the Ninth Circuit emphasized that "[t]he absence of a warning
does not necessarily mean that [the] use of deadly force was unreasonable." Id. At the hearing,
16

iii.

1

Firing at Vehicle Without Identifying Self and While Blinded by Headlights

At the hearing, Plaintiff argued briefly that Defendant Troche acted unreasonably because
2
he never identified himself, and then shot at Pakman's vehicle while blinded by Pakman's
3
headlights. Even assuming these facts as true, however, the Court finds that these facts alone do
4
not demonstrate that Defendant Troche acted unreasonably, and Plaintiff does not explain
5
otherwise.
6
Analyzing the Graham factors, the Court finds that the underlying crime was not severe, as
7
Defendant Troche believed Pakman was a drunk driver, and saw Pakman commit traffic violations
8
such as going through a stop sign. (Defs.' Troche Dep. at 38:5-14, Plf.'s Troche Dep. at 46:11-16.)
9
At the time of the shooting, however, the evidence in the record shows that Pakman was
10
attempting to escape the scene by driving toward the passenger side of the police vehicle, where
11
United States District Court
Northern District of California

both Defendant Troche and Mr. McLeod were located. Even if Pakman's intent was simply to
12
escape, and not to hit Defendant Troche and Mr. McLeod, as Plaintiff argues, Plaintiff does not
13
dispute that Pakman was driving in their direction. By driving towards them, the threat to
14
Defendant Troche and Mr. McLeod was extremely high, which is evidenced by Mr. McLeod
15
being knocked over when Pakman's vehicle hit the passenger door of the police car. Further,
16
Pakman was attempting to escape the scene, although he may not have known that Defendant
17
Troche was an officer. Moreover, from the time it took for Defendant Troche to report that
18
Pakman was driving at him to reporting that shots were fired, only twelve seconds had passed,
19
suggests a fast-developing situation. Under these circumstances, "[a] reasonable police officer
20
confronting this scene could reasonably believe that the [vehicle] posed a deadly threat" to Mr.
21
McLeod and himself. Wilkinson v. Torres, 610 F.3d 546, 553 (9th Cir. 2010).
22
Therefore, the Court concludes that based on the evidence in the record, the amount of
23
force used by Defendant Troche was reasonable. Defendant Troche is therefore entitled to
24
summary judgment on this claim.
25
26
27
28

Plaintiff did not argue that Defendant Troche should give a warning regardless; instead, Plaintiff
only argued that because Pakman was probably going between 2-7 mph, it was reasonable to give
a warning.
17

1

C.

Qualified Immunity

"Qualified immunity attaches when an official's conduct does not violate clearly
2
established statutory or constitutional rights of which a reasonable person would have known."
3
White v. Pauly, 137 S.Ct. 548, 551 (2017) (internal quotation omitted). "In other words, immunity
4
protects all but the plainly incompetent or those who knowingly violate the law." Id. (internal
5
quotations omitted). In particular, "[u]se of excessive force is an area of law in which the results
6
depend very much on the facts of each case, and thus police officers are entitled to qualified
7
immunity unless existing precedent squarely governs the specific facts at issue." Kisela v.
8
Hughes, 138 S.Ct. 1148, 1153 (2018). The Supreme Court has further emphasized that "qualified
9
immunity is effectively lost if a case is erroneously permitted to go to trial." White, 137 S.Ct. at
10
551 (internal quotation omitted).
11
United States District Court
Northern District of California

In determining if qualified immunity exists, the Court must generally first determine
12
whether the facts make out a violation of a constitutional right. Pearson v. Callahan, 555 U.S.
13
223, 232 (2009). Next, the Court determines if "the right at issue was 'clearly established' at the
14
time of defendant's alleged misconduct." Id. In Pearson, however, the Supreme Court found that
15
this two-step sequence was not mandatory (although beneficial), and that some cases could be
16
decided by going directly to the second step. Id. at 236.
17
As discussed above, Plaintiff has failed to establish a violation of a constitutional right.
18
Even if Plaintiff had done so, the Court finds that Defendant Troche would still be entitled to
19
qualified immunity because Plaintiff has not shown that the right at issue was clearly established
20
at the time of the alleged misconduct. The Supreme Court has overturned the appellate court's
21
rejection of qualified immunity because "[i]t failed to identify a case where an officer acting under
22
similar circumstances as [the defendant officer] was held to have violated the Fourth
23
Amendment." 137 S.Ct. at 552. Moreover, "general statements of the law are not inherently
24
incapable of giving fair and clear warning to officers . . . the general rules set forth in Garner and
25
Graham do not by themselves create clearly established law outside an obvious case." Kisela, 138
26
S.Ct. at 1153 (internal quotations omitted).
27
Here, instead of pointing to any authority with similar facts that would have clearly
28
18

1

established the right at issue, Plaintiff only argues that the credibility issues preclude a finding of

2

qualified immunity. The Court disagrees; simply attacking a party's or witness's credibility does

3

not create a genuine issue of material fact when Plaintiff has failed to produce evidence that would

4

support his theories. Based on the facts in the record, the Court finds that there is no clearly

5

established constitutional or statutory right that was violated. Plaintiff points to no authority with

6

similar circumstances which would have provided an officer in Defendant Troche's situation

7

notice that his actions were a violation of a constitutional right. The closest such case is Gonzalez;

8

again, however, that case involved a situation where the jury could have found that the decedent's

9

vehicle was moving at 3-7 mph and that a warning should have been given, whereas here Plaintiff
has produced no evidence to allow a fact-finder to draw a similar conclusion.4 The Court,

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United States District Court
Northern District of California

10

therefore, concludes that Defendant Troche is entitled to qualified immunity.

12

D.

13

Next, the Court concludes that Plaintiff has failed to establish Monell liability against the

Monell Liability

14

City. In general, local governments are "persons" subject to liability under 42 U.S.C. § 1983

15

where official policy or custom causes a constitutional tort, see Monell v. Dep't of Soc. Servs., 436

16

U.S. 658, 690 (1978); however, a city or county may not be held vicariously liable for the

17

unconstitutional acts of its employees under the theory of respondeat superior. See Bd. of Cty.

18

Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691; Fuller v.

19

City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995). Thus, to impose municipal liability under §

20

1983 for a violation of constitutional rights, a plaintiff must show: (1) that the plaintiff possessed a

21

constitutional right of which he or she was deprived; (2) that the municipality had a policy; (3) that

22

this policy amounts to deliberate indifference to the plaintiff's constitutional rights; and (4) that the

23

policy is the moving force behind the constitutional violation. See Plumeau v. Sch. Dist. #40 Cty.

24

of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997).
Here, Plaintiff argues that Defendant's practice of allowing ride alongs to accompany

25
26

patrol officers without proper training, supervision, and management proximately caused

27
4

28

Indeed, the evidence in the record shows that Defendant Troche yelled at Pakman to turn the car
off before opening fire. (McLeod Prelim. Hearing Test. at 15:9-11.)
19

1

Decedent's death. (Plf.'s Opp'n at 30-31.) Plaintiff, however, provides no explanation for how this

2

alleged practice caused Decedent's death. Plaintiff, for example, argues that Mr. McLeod was

3

permitted to ride along with Defendant Troche without preparing the appropriate documents and

4

without receiving instructions on where to stand during car stops, but fails to explain how either of

5

those facts, if different, would have affected what occurred. Similarly, Plaintiff points to the

6

failure to adequately instruct patrol officers as to how to monitor and control their ride along

7

passengers, but again fails to analyze how this failure proximately caused Decedent's death.

8

In the alternative, Plaintiff points to Defendant "Troche's act of firing at the car as it sped

9

away from the scene" as indicating a severe lapse in training, but again, there is no evidence that
would permit a fact-finder to conclude that Defendant Troche fired at Pakman's vehicle after it had

11
United States District Court
Northern District of California

10

passed him. Accordingly, summary judgment on the Monell claim is appropriate.

12

E.

13

"The California Court of Appeal has held that a determination that an officer's use of

State Claims for Assault, Battery, and Negligence

14

deadly force is objectively reasonable under § 1983 precludes negligence, assault, and battery

15

claims." Watkins v. City of San Jose, Case No. 15-cv-5786-LHK, 2017 WL 1739159, at *20

16

(N.D. Cal. May 4, 2017); see also Brown v. Ransweiler, 171 Cal. App. 4th 516, 533 (2009) ("We

17

further conclude that because Ransweiler's use of force against Ojeda was reasonable, Ransweiler

18

may not be held liable . . . for battery for any injury that may have resulted from that same use of

19

force."); id. at 534 ("As we have already concluded in analyzing the . . . battery claim,

20

Ransweiler's decision to use deadly force and his use of deadly force were objectively reasonable

21

under the circumstances. As a result, Ransweiler met his duty to use reasonable care in deciding

22

to use and in fact using deadly force, and, as a matter of law, cannot be found to have been

23

negligent in this regard."). Here, the Court has concluded that Defendant Troche's use of deadly

24

force was objectively reasonable under § 1983. Therefore, Defendants are entitled to summary

25

judgment on the negligence, assault, and battery claims.

26

///

27

///

28

///
20

IV.

1

CONCLUSION

For the reasons stated above, the Court GRANTS Defendants' motion for summary
2
judgment.
3
IT IS SO ORDERED.
4
Dated: June 28, 2018
5

__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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