Jorge Enrique Serrano Robles Senior v. County of Los Angeles

Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 1 of 25 Page ID #:2294 O [7] 8 United States District Court 9 Central District of California [10] 11 JORGE ENRIQUE SERRANO ROBLES, Case № 2:20-cv-06648-ODW (PLAx) SENIOR, et al., [12] Plaintiffs, ORDER GRANTING IN PART AND [13] v. DENYING IN PART DEFENDANTS’ 14 MOTION FOR SUMMARY 15 COUNTY OF LOS ANGELES, et al., JUDGMENT [55] Defendants. [17] 18 I. INTRODUCTION 19 Plaintiffs Jorge Enrique Serrano Robles, Sr. and Yurida Dolores Miranda bring 20 this excessive force action individually and as successors in interest to their son, Jorge 21 Enrique Serrano, Jr. (“Serrano”)—against Defendants the County of Los Angeles (the 22 “County”), the Los Angeles County Sheriff’s Department (“LASD”),1 Sheriff Alex 23 Villanueva, and Deputy Nikolis Perez—based on allegations that LASD Deputies 24 used unreasonable deadly force when they shot and killed Serrano. Defendants move 25 for summary judgment on all nine of Plaintiffs’ claims. (Mot. Summ. J. (“Mot.” or [27] 1 On August 30, 2020, Plaintiffs filed a Second Amended Complaint, removing LASD as a 28 Defendant. (See Second Am. Compl., ECF No. 18.) Accordingly, in this Order, the Court uses the term “Defendants” to refer only to the remaining named Defendants. Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 2 of 25 Page ID #:2295 1 “Motion”), ECF No. 55.) As explained below, the Court GRANTS in PART and 2 DENIES in PART Defendants’ Motion.2 3 II. BACKGROUND 4 The following facts are undisputed unless otherwise noted. On December 16, 5 2019, Perez and non-party Deputy Kevin Thompson (together, the “Deputies”) were 6 driving in their patrol car in East Los Angeles when they noticed a man walking south 7 on Rowan Avenue. (Defs.’ Statement Uncontroverted Facts (“DSUF”) 1, 3, ECF 8 No. 55-2.) Perez and Thompson identified the man as Serrano,3 a known gang 9 member who had prior contact with law enforcement, including several prior arrests 10 and multiple felony convictions. (DSUF 5.) The Deputies knew Serrano had violated 11 his parole and had a “no-bail” warrant for his arrest. (DSUF 7.) 12 The parties agree that Thompson exited the vehicle to detain Serrano. 13 (DSUF 9.) However, neither party seems to assert a consistent rendition of the facts 14 that transpired next. According to Defendants, when the Deputies stopped their car, 15 they engaged in a “consensual encounter” with Serrano. (DSUF 4.) However, 16 Defendants also contend that when they stopped the car, Serrano pulled out a gun 17 from his waistband and began running. (DSUF 9.) The Court notes that it is highly 18 unlikely that Serrano both consented to the Deputies’ stop and simultaneously 19 revealed his gun and ran away. 20 Plaintiffs’ rendition of the facts is neither clearer nor more consistent. 21 According to Plaintiffs, Serrano never consented to the stop because he began running 22 away from the Deputies “as soon [as] the vehicle stop[ped]” or as soon as he saw the 23 patrol vehicle. (PSGD 5, 6.) Yet somehow, Plaintiffs also “[d]ispute[] that Jorge [24] 25 2 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 26 3 In one part of their Statement of Genuine Disputes, Plaintiffs do not dispute that the officers recognized the man as Serrano, (Pls.’ Statement of Genuine Disputes (“PSGD”) 5, ECF No. 64-1); [27] however, in another part of their Statement, they blatantly contradict this by “disput[ing] that the 28 deputies recognized Jorge Serrano,” (PSGD 6). Despite Plaintiffs’ apparent concession that the Deputies recognized Serrano, the Court views this fact as disputed. [2] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 3 of 25 Page ID #:2296 1 Serrano began running away from the Deputies as soon as he saw the Deputies.” 2 (PSGD 9.) Thus, neither party has relayed a clear or consistent version of what 3 happened in this moment. 4 The parties agree that, upon seeing Serrano’s gun, Thompson yelled “417” and 5 “gun” to warn Perez. (DSUF 10.) According to Defendants, as Serrano was running 6 away, he turned his upper body back towards the Deputies and pointed his firearm 7 toward the Deputies. (DSUF 12.) Plaintiffs state that Serrano was only running away 8 and never pointed his gun at the Deputies. (PSGD 12.) Thompson then directed 9 Serrano to stop and drop the gun but, according to Defendants, Serrano kept his hands 10 on the gun. (DSUF 13–14; but see PSGD 14.) Defendants contend that Thompson 11 feared for his and Perez’s lives when he fired a single shot at Serrano (the “First 12 Shot”), which struck Serrano. (DSUF 15; PSGD 19.) However, Plaintiffs argue that 13 forensic evidence demonstrates that the First Shot likely came from Perez. 14 (PSGD 15.) 15 Although Serrano “yelped,” he continued running and a foot pursuit ensued. 16 (DSUF 16–17.) According to Defendants, “[a]s the pursuit continued, Serrano’s 17 behavior became increasingly erratic,” a characterization that Plaintiffs dispute. 18 (DSUF 19; PSGD 19.) Defendants assert that “[t]he deputies repeatedly directed 19 Serrano to stop and drop the gun, but he disregarded their commands and continued 20 running with the gun in his hand”; Plaintiffs contend that Serrano did not have a gun 21 in his hands. (DSUF 20; PSGD 20.) After approximately one quarter of a mile, 22 Serrano stopped running and the Deputies stopped approximately “a car length” 23 behind him. (DSUF 22–23.) Defendants contend that, at that time, Serrano had his 24 back to the Deputies but they “could see that he was manipulating something in his 25 hands.” (DSUF 24.) The Deputies directed Serrano to turn around with his hands 26 visible. (DSUF 25.) According to Defendants, Serrano turned around but instead of 27 dropping the gun, he assumed a shooting stance and aimed it at the Deputies. 28 (DSUF 26.) Plaintiffs dispute that Serrano had a gun in his hands or assumed a [3] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 4 of 25 Page ID #:2297 1 shooting stance. (PSGD 26.) Defendants assert that witnesses heard the Deputies 2 instructing Serrano to “get down” and Serrano replied, “no”; however, Plaintiffs 3 dispute these witness accounts. (DSUF 27; PSGD 27.) 4 The Deputies then fired at Serrano: Thompson fired two rounds (the “Second 5 and Third Shots”) and Perez fired four rounds (the “Fourth through Seventh Shots”).4 6 (DSUF 28–29.) Serrano fell onto his back with his hands above his head. (DSUF 30.) 7 According to Defendants, Thompson saw that Serrano still had the gun in his hand 8 and was trying to aim the gun at Thompson; Plaintiffs maintain that Serrano did not 9 have a gun in his hands. (DSUF 33; PSGD 33.) Thompson then fired two final rounds 10 at Serrano (the “Eighth and Ninth Shots”). (DSUF 34.) Defendants contend that at 11 that point, Serrano dropped the gun and tried to crawl away before falling still. 12 (DSUF 35.) 13 Several other deputies arrived at the scene and helped Thompson detain 14 Serrano. (DSUF 36–37.) Thompson and another deputy then began performing CPR 15 on Serrano until fire department personnel arrived and pronounced Serrano dead. 16 (DSUF 38–39.) Detectives from LASD’s Homicide Bureau later investigated the 17 incident. (DSUF 40.) Serrano’s parents, Plaintiffs, brought this action individually 18 and as successors in interest to Serrano. 19 In the operative Third Amended Complaint, Plaintiffs assert nine claims against 20 Defendants, the first six pursuant to 42 U.S.C. § 1983 and the remaining three under 21 California law: (1) excessive force and denial of medical care (against Perez and the 22 County); (2) substantive due process (against Perez); (3) supervisory liability (against 23 Villanueva); (4)–(6) municipal liability (against the County); (7) battery; 24 (8) negligence; and (9) violation of the Bane Act, California Civil Code section 52.1 [25] 26 4 The Court does not know the exact order in which the Second through Seventh Shots were fired and understands only that all six of these shots were fired within milliseconds of each other, or [27] otherwise simultaneously. The Court employs the aforementioned naming mechanism only to 28 indicate which deputy fired the shots and not to indicate the chronological order of the shots (e.g., the “Second Shot” is not necessarily the actual second shot that was fired). [4] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 5 of 25 Page ID #:2298 1 (claims (7)–(9) against Perez and the County). (Third Am. Compl. (“Compl.”), ECF 2 No. 23.) Defendants now move for summary judgment on all nine claims. (See Mot.) 3 The Motion is fully briefed. (See Opp’n, ECF No. 64; Reply, ECF No. 66.) 4 III. LEGAL STANDARD 5 A court “shall grant summary judgment if the movant shows that there is no 6 genuine dispute as to any material fact and the movant is entitled to judgment as a 7 matter of law.” Fed. R. Civ. P. 56(a). The burden of establishing the absence of a 8 genuine issue of material fact lies with the moving party, see Celotex Corp. v. Catrett, [9] 477 U.S. 317 , 322–23 (1986), and the court must view the facts and draw reasonable 10 inferences in the light most favorable to the nonmoving party, Scott v. Harris, [11] 550 U.S. 372, 378 (2007); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 12 2000). A disputed fact is “material” where the resolution of that fact might affect the 13 outcome of the suit under the governing law, and the dispute is “genuine” where “the 14 evidence is such that a reasonable jury could return a verdict for the nonmoving 15 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Although the 16 Court may not weigh conflicting evidence or make credibility determinations, there 17 must be more than a mere scintilla of contradictory evidence to survive summary 18 judgment. Addisu, 198 F.3d at 1134 . 19 Once the moving party satisfies its initial burden, the nonmoving party cannot 20 simply rest on the pleadings or argue that any disagreement or “metaphysical doubt” 21 about a material issue of fact precludes summary judgment. See Celotex, 477 U.S. 22 at 322–23; Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); 23 Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466 , 24 1468 (9th Cir. 1987). A “non-moving party must show that there are ‘genuine factual 25 issues that properly can be resolved only by a finder of fact because they may 26 reasonably be resolved in favor of either party.’” Cal. Architectural Bldg. Prods., 27 818 F.2d at 1468 (quoting Anderson, 477 U.S. at 250 ). Conclusory or speculative 28 testimony in affidavits is insufficient to raise genuine issues of fact and defeat [5] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 6 of 25 Page ID #:2299 1 summary judgment, as is “uncorroborated and self-serving” testimony.” Villiarimo v. 2 Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002); Thornhill Publ’g Co. v. 3 GTE Corp., 594 F.2d 730 , 738 (9th Cir. 1979). Courts should grant summary 4 judgment against a party who fails to demonstrate facts sufficient to establish an 5 element essential to his case when that party will ultimately bear the burden of proof 6 at trial. See Celotex, 477 U.S. at 322 . 7 IV. PRELIMINARY MATTERS 8 The Court addresses the parties’ various evidentiary objections and requests for 9 judicial notice as follows. 10 A. Evidentiary Objections 11 The parties raise numerous objections to evidence presented in the various 12 filings. (See Pls.’ Evid. Objs., ECF No. 64-6; Defs.’ Evid. Objs. Opp’n, ECF 13 No. 66-1; Defs.’ Resp. PSGD, ECF No. 66-2.) Evidentiary objections in motions for 14 summary judgment are typically unnecessary and not useful. This is because, 15 “[r]egardless of whether a party objects, the Court . . . will always recognize plain 16 error.” Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006) 17 (first citing Fed. R. Evid. 103(d); and then citing McClaran v. Plastic Indus., Inc., [18] 97 F.3d 347 , 357 (9th Cir. 1996)). “Nevertheless, attorneys routinely raise every 19 objection imaginable without regard to whether the objections are necessary, or even 20 useful, given the nature of summary judgment motions in general, and the facts of 21 their cases in particular.” Id. Evidentiary objections based “on the ground that it is 22 irrelevant, speculative, and/or argumentative, or that it constitutes an improper legal 23 conclusion are all duplicative of the summary judgment standard itself.” Id. “Instead 24 of objecting, parties should simply argue that the facts are not material.” Id. 25 Accordingly, the Court OVERRULES all such objections. 26 Additionally, the Court OVERRULES all boilerplate objections and improper 27 argument in the parties’ objections. (See Scheduling & Case Mgmt. Order 7–9, ECF 28 No. 17.) When the objected evidence is unnecessary to the resolution of the summary [6] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 7 of 25 Page ID #:2300 1 judgment motion or supports facts not in dispute, the Court need not resolve those 2 objections. To the extent the Court relies on objected evidence without discussion in 3 this Order, the Court OVERRULES the objections. See Burch, 433 F. Supp. 2d 4 at 1122 (proceeding with only necessary rulings on evidentiary objections). 5 Plaintiffs also filed a general objection to Defendants’ Motion, arguing that 6 Defendants submitted evidence and exhibits in support of their Motion, “which have 7 absolutely no bearing nor relate to any of the issues at hand.” (Pls.’ Objs. Mot., ECF 8 No. 63.) Accordingly, Plaintiffs ask the Court to strike Defendants’ Motion in its 9 entirety. (Id.) For the reasons stated above, the Court OVERRULES the general 10 objection and DENIES this request to strike. 11 B. Requests for Judicial Notice 12 Additionally, both parties filed requests for judicial notice. Defendants request 13 that the Court take judicial notice of Plaintiffs’ previous motion to add Thompson as a 14 Defendant in this action and Plaintiffs’ complaint against Thompson in a separate, 15 related action. (See Defs.’ Req. Judicial Notice (“DRJN”), ECF No. 55-3.) The Court 16 does not rely on either of these documents to resolve Defendants’ instant Motion and 17 therefore DENIES as MOOT the DRJN. 18 Finally, Plaintiffs request that the Court take judicial notice of two documents: 19 (1) Judge Phillip Gutierrez’s January 5, 2020 Order Denying in Part Defendants’ 20 Motion for Summary Judgment in Lisa Vargas v. County of Los Angeles, et al. (Case 21 No. 2:19-cv-03279-PSG (ASx)), (Pls.’ Req Judicial Notice (“PRJN”), Ex. 18 22 (“Vargas Order”), ECF No. 64-5); and (2) the Office of the Inspector General, County 23 of Los Angeles, Analysis of the Criminal Investigation of Alleged Assault by 24 Banditos, October 2020, (PRJN, Ex. 19 (“Banditos Analysis”)). 25 The Court may take judicial notice of court filings and other undisputed matters 26 of public record. See Fed. R. Evid. 201(b); United States v. Black, 482 F.3d 1035 , 27 1041 (9th Cir. 2007). As both the Vargas Order and the Banditos Analysis constitute 28 undisputed matters of public record, the Court GRANTS the PRJN, judicially [7] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 8 of 25 Page ID #:2301 1 noticing the existence of these documents but not any disputed matters contained 2 therein. 3 V. DISCUSSION 4 Defendants move for summary judgment on all nine of Plaintiffs’ claims. (See 5 Mot.) Plaintiffs assert that genuine disputes of material fact preclude summary 6 judgment for Defendants on each claim. (See Opp’n.) The Court addresses each 7 claim in turn. 8 A. First Claim: Excessive Force & Denial of Medical Care 9 Plaintiffs assert an excessive force and denial of medical care claim pursuant to [10] 42 U.S.C. § 1983 against Perez and the County, based on Perez’s use of deadly force 11 against Serrano when firing the Fourth through Seventh Shots. (See Compl.) 12 Defendants contend they are entitled to summary judgment on Plaintiffs’ excessive 13 force claim because the uncontroverted evidence shows Perez’s use of deadly force 14 did not constitute a constitutional violation under the circumstances. (Mot. 15–20.) 15 Thus, Defendants argue that the force used was objectively reasonable, thereby 16 entitling Defendants to qualified immunity. (Id.) Defendants also argue that even if a 17 jury could find the Deputies’ use of force was not objectively reasonable and, 18 therefore, was a constitutional violation, they are nevertheless entitled to qualified 19 immunity because there was no clearly established fact-specific precedent at the time 20 of the incident putting them on notice that their conduct violated constitutional rights. 21 (Id.) Finally, Defendants argue that Plaintiffs’ first claim also fails because Perez was 22 not involved with, and therefore cannot be responsible for, Serrano’s medical care. 23 “The Supreme Court has explained that ‘[t]he doctrine of qualified immunity 24 protects government officials from liability for civil damages insofar as their conduct 25 does not violate clearly established statutory or constitutional rights of which a 26 reasonable person would have known.’” Mattos v. Agarano, 661 F.3d 433 , 441 27 (9th Cir. 2011) (internal quotation marks omitted) (quoting Pearson v. Callahan, [28] 555 U.S. 223, 231 (2009)). In determining whether qualified immunity applies, the [8] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 9 of 25 Page ID #:2302 1 Ninth Circuit first determines “whether the officers actually violated a constitutional 2 right based on the record and plaintiffs’ alleged facts.” Monzon v. City of Murrieta, [3] 978 F.3d 1150, 1156 (9th Cir. 2020). If the court finds that “no constitutional right 4 was violated, then no further analysis is required.” Id. However, if the court finds 5 “that the officers did violate a constitutional right [it would] then need to proceed to 6 the second step of the inquiry to decide if the constitutional right ‘was clearly 7 established at the time of [the officers’] alleged misconduct.’” Id. (second alteration 8 in original) (quoting Pearson, 555 U.S. at 232 ). 9 1. Constitutional Violation 10 “Because apprehending a suspect through the use of deadly force is considered 11 a Fourth Amendment seizure of the person, [courts] must determine if the officers 12 acted in an objectively reasonable manner when they [used] deadly force or if they 13 violated [the suspect’s] right to be free from unreasonable seizures.” Id. at 1157. 14 Applying the holdings of Graham v. Connor, 490 U.S. 386 (1989), the Ninth 15 Circuit analyzes reasonableness by “considering the nature and quality of the alleged 16 intrusion” and “the governmental interests at stake by looking at (1) how severe the 17 crime at issue is, (2) whether the suspect posed an immediate threat to the safety of the 18 officers or others, and (3) whether the suspect was actively resisting arrest or 19 attempting to evade arrest by flight” (the “Graham factors”). Mattos, 661 F.3d at 441 20 (quoting Deorle v. Rutherford, 272 F.3d 1272 , 1279–80 (9th Cir. 2001)); see Graham, [21] 490 U.S. at 396 . “[T]here are no per se rules in the Fourth Amendment excessive 22 force context; rather, courts must still slosh their way through the factbound morass of 23 ‘reasonableness.’” Mattos, 661 F.3d at 441 (alteration and internal quotation marks 24 omitted) (quoting Scott, 550 U.S. at 383 ). 25 The reasonableness of the force used is “judged from the perspective of a 26 reasonable officer on the scene.” Graham, 490 U.S. at 396 . An officer cannot simply 27 claim that he “fear[ed] for his safety or the safety of others . . . there must be objective 28 factors to justify such a concern.” Young v. County of Los Angeles, 655 F.3d 1156 , [9] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 10 of 25 Page ID #:2303 1 1163 (9th Cir. 2011). Notably, the fact that the suspect was armed—or even 2 reasonably believed to be armed—with a deadly weapon does not render the officers’ 3 response per se reasonable under the Fourth Amendment. George v. Morris, 736 F.3d 4 829, 838 (9th Cir. 2013). 5 In light of the above, “[w]here the objective reasonableness of an officer’s 6 conduct turns on disputed issues of material fact, it is ‘a question of fact best resolved 7 by a jury’; only in the absence of material disputes is it ‘a pure question of law.’” 8 Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011) (first quoting Wilkins v. 9 City of Oakland, 350 F.3d 949, 955 (9th Cir. 2003); and then quoting Scott, 550 U.S. 10 at 381 n.8). As such, “summary judgment or judgment as a matter of law in excessive 11 force cases should be granted sparingly.” Id. at 1125. 12 The Court finds that the first and third Graham factors weigh at least slightly in 13 favor of Perez’s objective reasonableness because Serrano was actively fleeing from 14 the Deputies with a gun. However, genuine disputes of material fact as to the second 15 Graham factor preclude summary judgment on the excessive force claim. 16 Specifically, there are genuine factual disputes as to whether Serrano posed an 17 immediate threat of harm to the Deputies or others, which is the most significant 18 factor. See Mattos, 661 F.3d at 441 ; see also Smith v. City of Hemet, 394 F.3d 689 , 19 702 (9th Cir. 2005) (en banc) (finding whether plaintiff posed a threat to be the most 20 important of the Graham factors), cert. denied, 545 U.S. 1128 (2005). The Court 21 addresses each Graham factor in order, focusing on the force used by Perez—that is, 22 the Fourth through Seventh Shots—because the First through Third, Eighth, and Ninth 23 Shots were fired by Thompson, who is not a party to this action. 24 a. Whether the Crime was Severe 25 In this case, the parties agree that there was no report of an ongoing crime when 26 the Deputies stopped Serrano. (PSGD 70.) However, the parties also agree that 27 Serrano had a “no-bail” warrant out for his arrest when the Deputies stopped him. 28 (DSUF 7.) The parties also do not dispute the following: at some point, the Deputies [10] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 11 of 25 Page ID #:2304 1 identified Serrano as the subject of the arrest warrant with previous arrests and felony 2 convictions; the Deputies saw that Serrano had a gun; and Serrano ran from the 3 Deputies—all before any deadly force was used. (DSUF 5, 9, 10, 12; PSGD 5, 6, 9, 4 12.) 5 Although the mere existence of an arrest warrant is not a strong justification for 6 the use of dangerous or deadly force, such a warrant combined with the fact the 7 suspect is fleeing the officers may provide stronger justification. See Chew v. Gates, [8] 27 F.3d 1432 , 1442–43 (9th Cir. 1994) (noting that three warrants was not strong 9 justification for the use of dangerous force when suspect was not fleeing the officers 10 because the prospects for imminent capture were far greater). Moreover, “[t]he 11 government has an undeniable legitimate interest in apprehending criminal 12 suspects . . . and that interest is even stronger when the criminal is . . . suspected of a 13 felony. This factor strongly favors the government.” Miller v. Clark County, [14] 340 F.3d 959, 964 (9th Cir. 2003) (internal citation omitted). Thus, the Deputies’ 15 knowledge of Serrano’s arrest warrant and felonious criminal history, combined with 16 the fact that Serrano was fleeing with a gun, weigh slightly in favor of Perez’s 17 objective reasonableness when using deadly force. 18 b. Whether Serrano Posed an Immediate Threat 19 The most important Graham factor is whether Serrano posed an immediate 20 threat to the Deputies or to others. Defendants argue that Serrano posed an immediate 21 threat when Perez fired the Fourth through Seventh Shots because Serrano’s behavior 22 became “increasingly erratic” as the foot pursuit continued and Serrano refused to 23 comply with multiple commands to stop running and drop his weapon. (DSUF 19– 24 24.) Defendants assert that when Serrano finally stopped running, he refused to show 25 his empty hands and instead kept his back to the Deputies and appeared to be 26 “manipulating something in his hands.” (Id.) Most significantly, Defendants argue 27 that Serrano then turned around, assumed a shooting stance, and aimed his gun at the 28 Deputies. (DSUF 26.) [11] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 12 of 25 Page ID #:2305 1 In support of these contentions, Defendants cite to the deposition and 2 declaration testimonies of the Deputies, Detective Gordon Lukehart5 (who later 3 investigated the incident), and Lukehart’s interview of third party witness, Jordan 4 Juarez. (See Decl. Nikolis Perez (“Perez Decl.”), ECF No. 57; Decl. Kevin Thompson 5 (“Thompson Decl.”), ECF No. 58; Decl. Gordon Lukehart (“Lukehart Decl.”), ECF 6 No. 59; Decl. Mira Hashmall (“Hashmall Decl.”) ¶ 28, Ex. Z (“Juarez Interview”), 7 ECF No. 61.) Defendants also rely on surveillance video footage from nearby 8 residences to substantiate their rendition of the facts. (See Lukehart Decl. ¶¶ 14, 15, 9 24 Exs. D, E, F, L, ECF Nos. 59-4 to 59-6, 59-12 (collectively, “Defendants’ 10 Footage”).) 11 However, Plaintiffs dispute Defendants’ contentions and support their version 12 of events with equivalent evidence. According to Plaintiffs, Serrano did not have a 13 gun in his hands during the foot pursuit and was “was simply running away from the 14 deputies.” (PSGD 12–14, 20, 24, 26, 33.) Plaintiffs state that Serrano never assumed 15 any shooting stance and never aimed his gun at the Deputies. (PSGD 79.) 16 Accordingly, Plaintiffs conclude, that Serrano was merely running away from the 17 Deputies with no weapon in his hands and therefore posed no immediate threat to the 18 Deputies or others. Notably, Plaintiffs argue that at the time Perez and Thompson 19 fired the Second through Seventh Shots, Serrano had stopped running, was 20 surrendering to the Deputies, and had his visibly empty hands in the air. (PSGD 105– 21 15.) Plaintiffs support their arguments with the deposition testimonies of numerous 22 third-party witnesses and surveillance video footage similar to that submitted by 23 Defendants. (See Decl. Christian Contreras (“Contreras Decl.”) ¶¶ 2, 3, 5, 7, Exs. 1, 2, 24 4, 6, ECF No. 64-2 (collectively, “Plaintiffs’ Footage”).) In view of Plaintiffs’ [25] 26 5 Plaintiffs focus the majority of their objections on Defendants’ alleged use of Lukehart as “a non-retained expert” and further object to Lukehart’s testimony as hearsay. (See Pls.’ Evid. Objs. 2.) [27] The Court notes that it relies on Lukehart’s testimony only to authenticate Defendants’ Footage, 28 which Plaintiffs do not seem to dispute. Accordingly, the Court need not and does not rule on these objections. [12] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 13 of 25 Page ID #:2306 1 contrary narration of facts, all supported by evidence, there are genuine disputes of 2 fact as to whether Serrano posed an immediate threat, which the Court must view in 3 the light most favorable to Plaintiffs unless video evidence plainly clarifies events. 4 Although both parties provide different cuts of what is essentially the same 5 video surveillance footage to substantiate their narrations of the facts, none of the 6 footage is sufficiently clear or comprehensive so as to blatantly contradicts either 7 version of the events. That is, the video footage depicts Serrano running away from 8 the Deputies as they chase him but is not clear enough to show whether Serrano had a 9 gun in his hands or whether his hands were empty. Notably, even if the video footage 10 did clearly show Serrano’s hands, the footage shows only broken segments of the foot 11 pursuit, each a few seconds long, and thus is not comprehensive enough to concretely 12 indicate whether, at some time during the pursuit, Serrano pulled out a gun and aimed 13 it at the Deputies, put the gun away (e.g., back into his waistband), assumed a 14 shooting stance, pointed the gun at anyone, or surrendered to the Deputies. Thus, the 15 video footage does not clearly contradict either party’s narration of the facts and 16 therefore cannot answer the factual question of whether Serrano posed an immediate 17 threat. See A.G., 1-4 v. City of Fresno, 804 F. App’x 701 , 702 (9th Cir. 2020) (citing 18 Scott, 550 U.S. at 381) (finding the court may “view[] the facts in the light depicted by 19 the video[]” to the extent that it “blatantly contradict[s]” one party’s version of the 20 incident). 21 Accordingly, viewing these factual disputes in the light most favorable to 22 Plaintiffs—that Serrano did not have a weapon in his hands, never pointed a weapon 23 at anyone or assumed any shooting stance, was merely running away from the 24 Deputies, and eventually surrendered to the Deputies with his visibly empty hands in 25 the air—a reasonable jury could conclude that Perez’s Fourth through Seventh Shots 26 were not objectively reasonable. Thus, this factor cannot be resolved on summary 27 judgment. [13] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 14 of 25 Page ID #:2307 1 c. Whether Serrano Was Attempting to Resist or Evade Arrest 2 Although Plaintiffs attempt to argue that Serrano was not attempting to evade 3 arrest, (see Opp’n 1–2), the overwhelming evidence, including that provided by 4 Plaintiffs, contradicts this contention as to the Second through Seventh Shots. The 5 surveillance video footage provided by both Defendants and Plaintiffs clearly depicts 6 Serrano running away from the Deputies as they chased him. And in their Statement 7 of Genuine Disputes, Plaintiffs make numerous concessions that Serrano was indeed 8 running away from the Deputies, even after being hit by the First Shot, and at least 9 until immediately before Perez fired the Fourth through Seventh Shots. (See e.g., 10 PSGD 11 (“Jorge Serrano ran away from the deputies.”); PSGD 12 (“Jorge Serrano 11 was simply running away from the deputies.”); PSGD 14, 16, 17, 19.) Thus, there is 12 no genuine dispute that Serrano was actively fleeing the Deputies and evading arrest, 13 at least just before Perez fired the Fourth through Seventh Shots. Even if Plaintiffs’ 14 contention that Serrano stopped running to surrender is true, the undisputed facts 15 demonstrate that Serrano was actively evading arrest in the moments leading up to 16 Perez’s Fourth through Seventh Shots. Accordingly, this factor weighs in favor of the 17 objective reasonableness of Perez’s Second through Seventh Shots. 18 2. Clearly Established, Fact-Specific Precedent 19 The Court next considers the second step of the qualified immunity analysis: 20 whether clearly established fact-specific precedent existed that rendered Perez’s use of 21 deadly force against Serrano unconstitutional. Thus, the Court must determine 22 whether the officers’ conduct “violate[d] clearly established statutory or constitutional 23 rights of which a reasonable person would have known.” Bryan v. MacPherson, 630 24 F.3d 805, 832 (9th Cir. 2010) (quoting Harlow v. Fitzgerald, 457 U.S. 800 , 818 25 (1982)). 26 As discussed above, the Court finds that there are genuine disputes of material 27 fact as to the circumstances surrounding Perez’s use of deadly force against Serrano. 28 Thus, the Court views all disputed facts in the light most favorable to Plaintiffs, the [14] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 15 of 25 Page ID #:2308 1 non-movants. Under this recitation of the facts, Serrano never had a gun in his hands, 2 never aimed a gun at anyone, merely ran away from the Deputies, and eventually 3 surrendered to them with his visibly empty hands in the air. At the time of the 4 shooting, clearly established precedent held that deadly force under these 5 circumstances was unconstitutional. See Tennessee v. Garner, 471 U.S. 1, 11 (1985) 6 (concluding deadly force is permissible only when “the suspect threatens the officer 7 with a weapon or there is probable cause to believe that he has committed a crime 8 involving the infliction or threatened infliction of serious physical harm”); George, [9] 736 F.3d at 838 (rendering deadly force against a suspect as unconstitutional, despite 10 the suspect having a pistol in his hand, because the suspect’s pistol was pointed down 11 and therefore was not a threat to the officers). 12 In summary, a genuine dispute of material fact exists regarding whether Serrano 13 posed an immediate threat to the Deputies or others, which precludes the Court from 14 finding the Perez’s force against Serrano was not a constitutional violation. See 15 Smith, 394 F.3d at 701 (“Because [the excessive force inquiry] nearly always requires 16 a jury to sift through disputed factual contentions, and to draw inferences therefrom, 17 we have held on many occasions that summary judgment or judgment as a matter of 18 law in excessive force cases should be granted sparingly.” (alteration in original)). 19 Additionally, Defendants fail to show Perez is entitled to qualified immunity based on 20 a lack of fact-specific precedent rendering his deadly force unconstitutional. Thus, the 21 Court DENIES Defendants’ Motion as to Plaintiffs’ excessive force claim. 22 3. Denial of Medical Care 23 In addition to allege excessive force in their first claim, Plaintiffs also assert 24 constitutional violations resulting from Perez’s alleged denial of Serrano’s medical 25 care. Defendants finally argue that they are entitled to summary judgment on 26 Plaintiffs’ first claim because Perez was not involved with Serrano’s medical care. 27 (Mot. 22.) Plaintiffs do not address this argument. (See generally Opp’n.) Indeed, 28 “[l]iability under § 1983 must be based on the personal involvement of the defendant.” [15] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 16 of 25 Page ID #:2309 1 Payne v. Butler, 713 F. App’x 622, 623 (9th Cir. 2018) (quoting Barren v. 2 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)); see e.g., Grandinetti v. Bauman, 3 No. CIV 07-00089 ACK/LEK, 2007 WL 676012 , at *3 (D. Haw. Feb. 28, 2007) 4 (dismissing claims for denial of medical care because the plaintiff did not allege any 5 direct or personal involvement by the defendants or claim that they participated in or 6 directed the denial of medical care). 7 Here, the parties agree the Thompson and another unidentified deputy 8 performed CPR on Serrano after he was detained, but neither party suggests any other 9 Deputies—namely, Perez—provided any medical care to Serrano. Thus, looking to 10 the undisputed material facts, the Court finds that Defendants are entitled to judgment 11 as a matter of law regarding the denial of medical care theory of Plaintiffs’ first claim. 12 Accordingly, the Court GRANTS Defendants’ Motion for summary judgment as to 13 Plaintiffs’ first claim on the theory of denial of medical care. 14 B. Second Claim: Substantive Due Process 15 Plaintiffs also assert a claim for violation of Serrano’s substantive due process 16 rights resulting from Perez’s deadly force and violation of Plaintiffs’ substantive due 17 process rights resulting from state interference with their familial relationship with 18 their son. Defendants seek summary judgment on Plaintiffs’ second claim under [19] 42 U.S.C. § 1983 , asserted against Perez for violation of Serrano’s and Plaintiffs’ 20 substantive due process under the Fourteenth Amendment. (Mot. 20–22.) 21 “To prevail on a substantive due process claim under the Fourteenth 22 Amendment, Plaintiffs must show that an officer’s conduct ‘shocks the conscience.’” 23 Nicholson v. City of Los Angeles, 935 F.3d 685, 692 (9th Cir. 2019) (quoting 24 Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010)). “The ‘critical consideration 25 [is] whether the circumstances are such that actual deliberation is practical.’” Id. 26 (quoting Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008)). “If so, an officer's 27 deliberate indifference may suffice to shock the conscience and the plaintiff may 28 prevail by showing that the officer disregarded a known or obvious consequence of [16] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 17 of 25 Page ID #:2310 1 his action.” Id. at 692–93 (internal citations and quotation marks omitted). “The 2 ‘deliberate-indifference inquiry should go to the jury if any rational factfinder could 3 find this requisite mental state.’” Id. at 693 (quoting Patel v. Kent Sch. Dist., 648 F.3d 4 965, 974 (9th Cir. 2011)). 5 Here, Defendants argue that Perez is entitled to qualified immunity for this 6 claim because Plaintiffs cannot show that Perez acted with the requisite intent. 7 (Mot. 20–22.) Although Defendants suggest that Perez could not have acted with 8 such deliberateness because he had to “make a snap judgment because of an escalating 9 situation,” (Mot. 21), according to Defendants, Perez was chasing Serrano for several 10 minutes and knew Serrano had a gun in his hands all along. Thus, even if the Court 11 looks to Defendants’ narration of the facts, the circumstances would be such that 12 “actual deliberation” by Perez would have been practical. Nicholson, 935 F.3d at 692 . 13 Further, resolving all factual disputes in favor of Plaintiffs as the non-movants, Perez 14 fired his gun four times at a suspect who had no weapon in his hands, posed no 15 immediate threat to anyone, and was surrendering with his visibly empty hands in the 16 air. Based on these facts, a reasonable jury could find that Perez acted with such 17 deliberate indifference so as to “shock the conscious” because he “disregarded a 18 known or obvious consequence of his action.” Id. at 692–93. Accordingly, the Court 19 DENIES Defendants’ Motion as to Plaintiffs’ substantive due process claim. 20 C. Third Claim: Supervisory Liability 21 Defendants move for summary judgment on Plaintiffs’ third claim, asserted 22 against Villanueva, for supervisory liability for Perez’s constitutional violations. 23 (Mot. 33–34.) “A defendant may be held liable as a supervisor under § 1983 if there 24 exists either (1) his or her personal involvement in the constitutional deprivation, or 25 (2) a sufficient causal connection between the supervisor’s wrongful conduct and the 26 constitutional violation.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (internal 27 quotation marks and citation omitted). “A supervisor can be liable in his individual 28 capacity for his own culpable action or inaction in the training, supervision, or control [17] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 18 of 25 Page ID #:2311 1 of his subordinates; for his acquiescence in the constitutional deprivation; or for 2 conduct that showed a reckless or callous indifference to the rights of others.” Id. at 3 1208 (quoting Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir.1998)). The 4 Ninth Circuit has “never required a plaintiff to allege that a supervisor was physically 5 present when the injury occurred.” Id. at 1205 . 6 Here, Defendants argue that Plaintiffs’ supervisory liability claim fails because 7 they cannot show a predicate constitutional violation, Villanueva’s personal 8 involvement with such violation, or a “causal connection” between Villanueva’s 9 conduct and the violation. (Mot. 33–34.) As explained above, Plaintiffs have 10 provided evidence to support their contention that a constitutional violation occurred 11 when Perez used deadly force against Serrano. However, Plaintiffs do not provide 12 any facts supported by evidence to demonstrate what, specifically, Villanueva did to 13 cause Perez to use deadly force against Serrano.6 Even if these facts were true, no 14 reasonable jury could find that Villanueva was personally involved in, and caused, 15 Perez’s deadly force against Serrano. Accordingly, the Court GRANTS Defendants’ 16 Motion as to this claim. 17 D. Fourth Through Sixth Claims: Municipal Liability (Monell) 18 Pursuant to 42 U.S.C. § 1983 , Plaintiffs assert municipal liability claims for 19 (i) ratification, (ii) unconstitutional custom, policy, or practice, and (iii) failure to 20 train. (Compl. ¶¶ 66–158.) Defendants seek summary judgment on all three claims, 21 arguing that Plaintiffs lack supporting evidence for each. (Mot. 25–33.) As explained 22 below, the Court finds that a reasonable jury could find Plaintiffs’ evidence sufficient 23 to establish their Monell claims. [25] 26 6 In support of their third claim, Plaintiffs only provide facts and evidence to suggest that Villanueva knew of the “Banditos” gang problem and that Villanueva “turned over the entire leadership of the [27] East Los Angeles Station in order to address the Banditos problem.” (PSGD 168, 172–73.) 28 However, Plaintiffs fail to connect this tangential and vague fact about the Banditos gang problem to Villanueva’s responsibility for Perez shooting Serrano. [18] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 19 of 25 Page ID #:2312 1 1. Predicate Constitutional Violation 2 Defendants first argue that they are entitled to summary judgment on Plaintiffs’ 3 municipal liability claims because there is no evidence of any constitutional violation, 4 as required under Monell v. Department of Social Services, 436 U.S. 658 (1978). 5 (Mot. 26–27.) As discussed above, the Court finds there is a genuine dispute of 6 material fact as to whether Perez’s use of force was a constitutional violation. Thus, 7 the Court rejects this argument. Additionally, Defendants contend that Plaintiffs 8 cannot show a predicate constitutional violation by Thompson that would support 9 municipal liability for Thompson’s conduct. The Court again disagrees. 10 The Court’s above Graham factor analysis as to Perez’s Fourth through Seventh 11 Shots applies almost identically to Thompson’s First through Third, Eighth and Ninth 12 Shots. Thompson’s First through Third Shots were just as objectively reasonable as 13 Perez’s Fourth through Seventh Shots because they were all fired under similar 14 circumstances. The only difference arises as to the Eighth and Ninth Shots, which 15 Thompson fired when Serrano had already been shot numerous times and fallen to the 16 ground on his back. Viewing the disputed facts in the light most favorable to 17 Plaintiffs, when Thompson fired his Eighth and Ninth Shots, Serrano posed a minimal 18 risk of evading arrest, and, more importantly, of causing immediate harm to anyone— 19 rendering these shots even less objectively reasonable than the others. In summary, 20 for the same reasons a reasonable jury could find Perez committed a constitutional 21 violation when firing his Fourth through Seventh Shots, a reasonable jury could find 22 Thompson committed a constitutional violation when firing his First through Third 23 Shots and Eighth and Ninth Shots. 24 2. Fourth Claim: Ratification or Authorization 25 Defendants next seek summary judgment on Plaintiffs’ fourth claim, arguing 26 that Plaintiffs have no evidence of the City ratifying or authorizing an unconstitutional 27 policy or custom, as required by Monell. (Mot. 28–30.) Municipalities “may be held 28 liable under § 1983 when the individual who committed the constitutional tort was an [19] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 20 of 25 Page ID #:2313 1 official with final policy-making authority or such an official ratified a subordinate’s 2 unconstitutional decision or action and the basis for it.” Gravelet-Blondin v. Shelton, [3] 728 F.3d 1086, 1097 (9th Cir. 2013) (internal quotation marks omitted). The Ninth 4 Circuit set forth four requirements that a plaintiff must show for a § 1983 municipal 5 liability claim: “(1) that the plaintiff possessed a constitutional right of which she was 6 deprived; (2) that the municipality had a policy; (3) that this policy amounts to 7 deliberate indifference to the plaintiff's constitutional right; and, (4) that the policy is 8 the moving force behind the constitutional violation.” McDougal v. County of 9 Orange, No. 21-cv-2027-JVS (ADS), 2022 WL 2374874 , at *2 (C.D. Cal. June 30, 10 2022) (quoting Plumeau v. Sch. Dist. No. 40 County of Yamhill, 130 F.3d 432 , 438 11 (9th Cir. 1997). “Ratification is generally a question of fact for the jury, and by 12 implication, so too is deliberate indifference.” Cole v. Doe 1 thru 2 Officers of City of 13 Emeryville Police Dep’t, 387 F. Supp. 2d 1084, 1099 (N.D. Cal. 2005) (internal 14 citation omitted). 15 Here, Plaintiffs allege Perez was a prospect of the Banditos gang in the LASD 16 and that Perez used unconstitutional deadly force toward Perez and at least one other 17 person in order to secure his membership in the gang. (Compl. ¶¶ 25, 35, 36.) 18 Accordingly, Plaintiffs allege, the LASD by way of the Banditos ratified such 19 unconstitutional actions. (Compl. ¶¶ 66–77.) In support of their allegations, Plaintiffs 20 cite to the Vargas Order, which is derived from an excessive force civil action also 21 against Perez, to demonstrate that Perez has engaged in similar tortious conduct before 22 and was not reprimanded—and instead was rewarded—for it. (PSGD 158–60.) And 23 although Defendants argue that a “single failure to discipline” cannot be the basis for 24 Monell liability, (Mot. 29), the Vargas Order suggests that tortious conduct was and is 25 proliferate in the LASD. (See Vargas Order 17–18 (noting that “Plaintiff has provided 26 ample evidence of the existence of the Banditos gang and the [LASD’s] deliberate 27 indifference to its practices,” which include destroying evidence and fabricating 28 probable cause).) Plaintiffs also provide the Banditos Analysis, which further [20] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 21 of 25 Page ID #:2314 1 evidences the existence of the Banditos gang and the County’s ratification, by way of 2 the LASD’s deliberate indifference, toward the repeated tortious conduct of its 3 deputies including Perez. (See generally Banditos Analysis.) Thus, a reasonable jury 4 could consider Plaintiffs’ evidence and conclude that the County has a practice of 5 ratifying tortious conduct. 6 3. Fifth Claim: Unconstitutional Custom or Policy 7 Defendants next seek summary judgment on Plaintiffs’ sixth claim for Monell 8 liability on the basis that Plaintiffs have no evidence of an unconstitutional custom or 9 policy. (Mot. 30–32.) In Monell, the Supreme Court held that municipalities may be 10 held liable under § 1983 only for constitutional violations resulting from official 11 county custom or policy. 436 U.S. at 694 . “The custom or policy must be a deliberate 12 choice to follow a course of action . . . made from among various alternatives by the 13 official or officials responsible for establishing final policy with respect to the subject 14 matter in question.” Benavidez v. County of San Diego, 993 F.3d 1134, 1153 (9th Cir. 15 2021) (alteration in original; internal quotation marks omitted). The policies can 16 include “written policies, unwritten customs and practices, [and] failure to train 17 municipal employees on avoiding certain obvious constitutional violations.” Id. 18 Here, Plaintiffs again cite to the Vargas Order and the Banditos Analysis as 19 evidence supporting their claim that the County has an unconstitutional custom or 20 policy. Notably, Plaintiffs also provide extensive testimony by their retained expert, 21 Roger Clark, who provides substantial testimony regarding the existence of the 22 County’s unconstitutional customs and policies of deliberately disregarding, not 23 investigating, and actively concealing violative conduct. (PSGD 144–52.) A 24 reasonable jury could consider this evidence and conclude it supports the existence of 25 an unconstitutional policy or custom, sufficient to establish Monell liability. Thus, the 26 Court denies Defendants’ Motion as to this claim. [21] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 22 of 25 Page ID #:2315 1 4. Sixth Claim: Failure to Train 2 Finally, Defendants seek summary judgment on Plaintiffs’ sixth claim on the 3 basis that Plaintiffs have no evidence of a failure to train the officers. (Mot. 32–33.) 4 “[T]he inadequacy of police training may serve as the basis for § 1983 liability only 5 where the failure to train amounts to deliberate indifference to the rights of persons 6 with whom the police come into contact.” Flores v. County of Los Angeles, 758 F.3d 7 1154, 1158 (9th Cir. 2014) (quoting City of Canton v. Harris, 489 U.S. 378 , 388 8 (1989).) Here, Plaintiffs cite to the undisputed fact that Perez was Thompson’s 9 training officer. (DSUF 2.) Relying on Clark’s expert opinion, Plaintiffs argue that 10 Perez was responsible for training Thompson, failed to do so, and instead, instructed 11 Thompson to shoot and kill Serrano—conduct that is contrary to the LASD’s training 12 policies. (PSGD 147, 149, 151.) If Plaintiffs’ facts are taken as true, Perez’s violative 13 instructions and failure to adequately train Thompson certainly amount to a deliberate 14 indifference toward Serrano’s constitutional rights. Plaintiffs therefore provide 15 evidence to support their failure to train municipal liability claim. 16 Plaintiffs have offered evidence sufficient for a reasonable jury to find for 17 Plaintiffs on each municipal liability claim. The Court thus DENIES Defendants’ 18 Motion for summary judgment on Plaintiffs’ fourth, fifth, and sixth claims. 19 E. Seventh Through Ninth Claims Under State Law 20 Defendants finally move for summary judgment on Plaintiffs’ state law claims 21 for battery (seventh claim), negligence (eighth claim), and violation of the Bane Act 22 (ninth claim). (Mot. 22–25.) As explained below, genuine disputes of material fact 23 preclude summary judgment on each of these claims. 24 1. Battery & Negligence (Wrongful Death) 25 Defendants seek summary judgment on Plaintiffs’ wrongful death claims based 26 in battery and negligence, arguing that these claims fail because Perez did not cause 27 Serrano’s death. (Mot. 22–23.) In support of this contention, Defendants point to the 28 undisputed fact that Thompson fired the final two shots before Serrano was [22] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 23 of 25 Page ID #:2316 1 pronounced dead. (Id.; see PSGD 63.) However, this alone fails to establish that 2 either of Thompson’s final two shots were fatal. Absent evidence establishing that 3 Thompson’s shots killed Serrano, not Perez’s, Defendants have failed to meet their 4 burden on summary judgment. See Celotex, 477 U.S. 322–23. 5 Defendants alternatively argue that they are entitled to summary judgment on 6 Plaintiffs’ battery and negligence claims because Plaintiffs cannot show that Perez 7 used unreasonable force, as is required for these claims. (Mot. 23–25.) Viewing the 8 disputed facts in a light favorable to Plaintiffs, a reasonable jury could conclude the 9 force Perez used was objectively unreasonable. Thus, the Court DENIES summary 10 judgment as to Plaintiffs’ battery and negligence claims on this basis. 11 2. Bane Act 12 Defendants also seek summary judgment on Plaintiffs’ Bane Act claim, arguing 13 that it necessarily fails along with Plaintiffs’ § 1983 claims. (Mot. 24.) A Bane Act 14 claim is premised on the violation of a federal constitutional right, and as such, a court 15 must look to the elements of the constitutional claim to determine whether a Bane Act 16 claim has merit. See Knapps v. City of Oakland, 647 F. Supp. 2d 1129 , 1168 17 (N.D. Cal. 2009) (“The elements of a section 52.1 excessive force claim are 18 essentially identical to those of a § 1983 excessive force claim.”). The Court has 19 determined that a reasonable jury could find Perez used unreasonable force in 20 violation of Serrano’s constitutional rights. 21 Additionally, “the Bane Act requires a ‘a specific intent to violate the arrestee’s 22 right to freedom from unreasonable seizure.’” Reese v. County of Sacramento, [23] 888 F.3d 1030, 1043 (9th Cir. 2018) (quoting Cornell v. City & County of San 24 Francisco, 17 Cal. App. 5th 766, 800 (2017), as modified (Nov. 17, 2017)). To show 25 such intent, a plaintiff need only demonstrate a “reckless disregard” for the 26 constitutional right at issue. Id. at 1045. As explained above, under Plaintiffs’ 27 narration of the facts, Perez knowingly used deadly force on Serrano while Serrano 28 was surrendering to the Deputies with his visibly empty hands in the air. A [23] Case 2:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 24 of 25 Page ID #:2317 1 reasonable jury could find that Perez’s actions demonstrate a reckless disregard for 2 Serrano’s constitutional right to be free from excessive force. Accordingly, summary 3 judgment is not appropriate on the Bane Act claim. The Court thus DENIES 4 summary judgment as to Plaintiffs’ state law claims on this basis. 5 3. Plaintiff Miranda’s Failure to File a Government Claim 6 Defendants next contend that Miranda’s state claims—which she asserts 7 individually and as a successor in interest to Serrano—are barred as a matter of law 8 because she failed to first file a claim for money damages with the government, 9 pursuant to California Government Claims Act. (Mot. 23.) 10 “The Government Claims Act provides that ‘all claims for money or damages 11 against local public entities,’ . . . must be presented to those entities.” Garcia v. City 12 of Los Angeles, No. 19-cv-06182-DSF (PLAx), 2020 WL 2129830 , at *9 (C.D. Cal. 13 Feb. 15, 2020) (quoting Cal. Gov’t Code § 905). “[N]o suit falling into this category 14 may be brought ‘until a written claim therefor has been presented to the public entity 15 and has been acted upon by the board, or has been deemed to have been rejected by 16 the board.’” Id. (quoting Cal. Gov’t Code § 945.4)). Here, Plaintiffs argue that, 17 although Miranda did not file a claim in her name, Plaintiff Serrano Robles, Sr. did, 18 and the substance of the claim is the same for them both and should prevail over any 19 deficiency in the form. (Opp’n 20.) However, Defendants are correct that this is not 20 the law, at least as to the state law claims Miranda brings individually. (Reply 14.) 21 “Where two or more persons suffer separate and distinct injuries from the same 22 act or omission, each person must submit a claim, and one cannot rely on a claim 23 presented by another.” Nelson v. County of Los Angeles, 113 Cal. App. 4th 783 , 796 24 (2003). Because the Act’s filing requirement is intended “to provide sufficient 25 information to enable the entity to adequately investigate claims . . . the statutory 26 requirements have not been met by the person who has not filed a claim.” Id. at 797 . 27 “This rule applies where different claimants are alleging survivor theories and 28 wrongful death theories of liability arising from the same transaction.” Castaneda v. [24] Case P:20-cv-06648-ODW-PLA Document 70 Filed 07/18/22 Page 25o0f25 Page ID #:2318 1 || Dep’t of Corr. & Rehab., 212 Cal. App. 4th 1051, 1062 (2013). Accordingly, “the 2 | doctrine of substantial compliance (which applies only when there is a defect in form 3 || but the statutory requirements have otherwise been met) does not apply” to Miranda’s 4 || state claims as asserted individually. Nelson, 113 Cal. App. 4th at 796 . Similar to 5 || Nelson “the problem here is not that Plaintiffs’ government forms were defective, but 6 || rather that no government claim at all was filed.” Abrego v. City of Los Angeles, 7 || No. 15-cv-00039-BRO (JEM), 2016 WL 9450679 , at *10 (C.D. Cal. Sept. 23, 2016). 8 However, the Court finds that Miranda’s state law claims asserted as Serrano’s 9 || successor in interest, are neither separate nor distinct from those claims Serrano 10 || Robles Sr. also asserted as Serrano’s successor in interest. Thus, the Court GRANTS 11 | Defendants’ Motion for summary judgment on Miranda’s seventh through ninth state 12 | law claims as asserted individually and DENIES Defendants’ Motion for those same 13 || claims insofar that Miranda asserts them as Serrano’s successor in interest. 14 VI. CONCLUSION 15 For the reasons discussed above, the Court GRANTS in PART and DENIES 16 || in PART Defendants’ Motion for Summary Judgment. (ECF No. 55.) Specifically, 17 || the Court GRANTS Defendants’ Motion as to: (1) the denial of medical care theory 18 | of Plaintiffs’ first claim against Perez and the County; (2) Plaintiffs’ third claim 19 | against Villanueva for supervisory liability; and (3) Plaintiff Miranda’s seventh 20 | through ninth state law claims insofar as she asserts them individually. The Court 21 || DENIES Defendants’ Motion as to all other claims. [22] 23 IT IS SO ORDERED. [24] 25 July 18, 2022 See 4 fA 26 Ged: car | 7 OTIS D. HT, 08 UNITED STATES DISTRICT JUDGE