Judge: Blaine K. Bowman, Case: 37-2020-00039800-CU-PO-NC, Date: 2023-11-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - November 21, 2023

11/22/2023  10:30:00 AM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2020-00039800-CU-PO-NC BIRTCHER VS COUNTY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 07/21/2023

RULING ON FIRST MOTION FOR SUMMARY JUDGMENT/ADJUDICATION The First Motion for Summary Judgment/Adjudication brought by defendants County of San Diego (the County), William Gore, Drew Beatty, Adrien Carrillo Roland Garza Joseph Kodadek John Robledo, Frank Stalzer and Scott Winter (collectively, Defendants) is DENIED.

Procedural History and Legal Analysis This is a case against peace officers, and the County, for an event that escalated into from an effort to check on an individual outside of a local store, to an arrest, to eventual death of that individual. It appears from that evidence that that individual was under the influence of illegal substances at the time of the incident. The individual was Christopher Birtcher (Mr. Birtcher), and his death occurred on October 14, 2017.

Thereafter, Mr. Birtcher's daughter, Aryanna (Plaintiff), filed an action in federal court. That action was filed on July 6, 2018. The federal district court granted summary judgment in favor of Defendants on October 1, 2020. Plaintiff appealed that ruling to the Ninth Circuit. Before the Ninth Circuit issued its final ruling, Plaintiff separate filed the instant case in state court.

The instant state court case was filed on October 29, 2020. It alleged three causes of action: (1) battery (including wrongful death) (2) negligence and negligent training (including wrongful death) (3) violation of the Bane Act (Civil Code § 52.1) In December 2022, the parties to this case stipulated to stay the instant state court action pending the outcome of the federal appeal to the Ninth Circuit. The Ninth Circuit ruling came down on April 8, 2022, and, though it affirmed the District Court's ruling, it slightly changed the rationale.

In the federal case, Plaintiff was suing under 42 U.S.C. § 1983 on grounds that the peace officers involved used excessive force in violation of the Fourth Amendment. Federal Fourth Amendment law is notably different from California law with regard to actions of peace officers because federal law breaks down discrete events to analyze whether they amounted to 'excessive force' while California law considers the 'totality of the circumstances' that lead up to the use of deadly force. (Compare Ninth Circuit Ruling (No. 20-56140) (hereinafter, Ninth Circuit Ruling) with Hayes v. County of San Diego (2013) 57 Cal.4th 622.) In the federal case, the Ninth Circuit identified four discrete instances of potential use of 'excessive force' to be analyzed, which were as follows: Calendar No.: Event ID:  TENTATIVE RULINGS

3015882 CASE NUMBER: CASE TITLE:  BIRTCHER VS COUNTY OF SAN DIEGO [IMAGED]  37-2020-00039800-CU-PO-NC (1) deputy Roland Garza used his body weight to take down Birtcher as Birtcher first attempted to resist detention, (2) deputy Garza and deputy John Robledo deployed tasers on Birtcher four times, (3) Robledo struck Birtcher with his fist and sap baton multiple times, (4) deputy defendants used a forceful prone restraint on Birtcher after backup deputies arrived.

(Ninth Circuit Ruling, p. 3.) The Ninth Circuit affirmed the District Court's ruling as to the first three of these instances on grounds that no excessive force occurred. However, as to the fourth instance, the Ninth Circuit's reasoning deviated from that of the District Court. The District Court had initially ruled that, as to that fourth instance as well, there had been no use of 'excessive force.' The Ninth Circuit, however, was unable to reach that conclusion. Instead, the Ninth Circuit achieved the same result, but on a different ground. Specifically, under the jurisprudence applicable to 42 U.S.C. § 1983, there is a doctrine known as 'qualified immunity' that provides that even if a peace officer violates the Fourth Amendment, he or she is not liable under federal law unless it was 'clearly established' that the actions that peace officer took were unconstitutional. The Ninth Circuit thus concluded that the peace officers in this case may have used excessive force as to that fourth instance of using a forceful prone restraint on Birtcher, but even if they had Plaintiff could not prevail under 42 U.S.C. § 1983 because, one way or another, the law was not 'clearly established' that their use of force was excessive. (Ninth Circuit Ruling, pp. 3-4 ('Even assuming that the deputy defendants used more force than necessary to hold Birtcher in place during the final 30 seconds, we know of no clearly established law that would have put them on notice that the force they used was excessive.').) This finding ended the federal case, with no liability on the part of Defendants.

As such, the parties proceeded with their remaining claims in this Court, and Defendants filed an initial Motion for Summary Judgment/Adjudication in this Court on November 9, 2022. (ROA 44.) That initial motion included seven separate issues to be adjudicated, but largely commingled two concepts – res judicata (from the underlying federal action) and that the '[u]ncontested material facts of this case establish that there are no triable issues of material fact as to any of the alleged causes of action.' (ROA 44, p. 2.) However, before the matter came on for hearing, the opposition briefing was filed oversized, with an additional mix-up of total page numbers in addition to being oversized. As a result, the opposition brief was 44 pages in length and the number of issues being raised were not digestible. As such, when the matter came on for hearing, this Court provided a brief analysis of the understanding of the two issues that needed to work in tandem to achieve full summary judgment (those issues being res judicata and the lack of any remaining triable issues of fact after res judicata was applied), and then decided to break the issues into two categories so that the Court could first address the legal issues (like res judicata) and then, only if those were successful, address the factual issues (like whether there were triable issues of fact). The parties graciously agreed and this Court set a briefing schedule.

Defendants then filed a 'first' Motion for Summary Judgment/Adjudication focused primarily on the res judicata question. (ROA 88.) This Court issued a tentative ruling, heard the matter, took it under submission, but then continued it to be heard alongside the 'second' Motion for Summary Judgment/Adjudication because there was a certain interconnectedness to the issues. The problem was this: even if this Court could apply the doctrine of res judicata to resolve the first three of the four 'instances' of alleged use of excessive force, that was not enough to grant summary judgment as to the fourth of those discrete instances. More problematically, California law does not even seem to accept these hair-splitting distinctions as to each instance of use of excessive force – it looks, again, to the 'totality of the circumstances' by considering pre-death conduct by the peace officers involved. (See Hayes v. County of San Diego (2013) 57 Cal.4th 622.) If it could be said that that 'fourth instance' of alleged excessive force was not excessive, then, given the overlap between California battery law and federal 'excessive force' jurisprudence, it could be possible Calendar No.: Event ID:  TENTATIVE RULINGS

3015882 CASE NUMBER: CASE TITLE:  BIRTCHER VS COUNTY OF SAN DIEGO [IMAGED]  37-2020-00039800-CU-PO-NC in this case to grant summary judgment as to the claim of battery (and, derivatively, to the claim for violation of the Bane Act (Civil Code § 52.1)). But, that cannot be said as a matter of law using the doctrine of res judicata (because the Ninth Circuit's analysis did not conclude that no excessive force was used as to that fourth instance – only that liability could not attach because of 'qualified immunity').

(See Samara v. Matar (2018) 5 Cal.5th 322 (holding that when an appellate court affirms an underlying judgment, but on different grounds than the grounds identified by the trial court, only the grounds identified by the appellate court have res judicata impact).) And, that cannot be said as a matter of fact because in this case, doing so would require a weighing of evidence – which is more appropriately the task of fact-finder.

While this Court's prior ruling signaled an effort to apply the doctrine of res judicata to at least three of the four discrete instances, the intertwinement of that issue with the overall standard under California law has cause this Court to reconsider. As stated in Hayes v. County of San Diego (2013) 57 Cal.4th 622, 631 (bold and underline added): Here, the one injury plaintiff alleged is the loss of her father. Thus, this case involves a single primary right (plaintiff's right to not be deprived of her father by an improper use of deadly force), which necessarily corresponds to a single duty (the duty not to use deadly force in an improper manner), and the breach of that duty gives rise to a single indivisible cause of action. Plaintiff's many claims for relief are merely different legal and factual theories on which she seeks to recover on that one cause of action.

Plaintiff's 'single primary right' has not been adjudicated in this case (or in the prior federal case).

Perhaps the greatest source of confusion on this issue is the use of the word 'indivisible' in terms of determining what the primary right at stake is. The word 'indivisible' is used by California law, but, as stated above, federal law 'divides' discrete instances of 'excessive force.' That is the heart of the difficulty of reconciling these two bodies of law. Federal divides what California law makes indivisible.

For this reason, Defendant's first Motion for Summary Judgment/Adjudication cannot be granted.

RULING ON SECOND MOTION FOR SUMMARY JUDGMENT/ADJUDICATION The Second Motion for Summary Judgment/Adjudication brought by Defendants is disposed as follows: --as to defendant the County of San Diego – GRANTED --as to defendant William Gore – GRANTED --as to defendants Drew Beatty, Adrien Carrillo Roland Garza Joseph Kodadek John Robledo, Frank Stalzer and Scott Winter – DENIED Objections to Evidence Defendants make several objections to evidence. (ROA 132.) Evidentiary objections in connection with motions for summary judgment/adjudication must comply with certain formatting requirements found in California Rule of Court, rule 3.1354. Defendants' objections are not in conformity with those rules. They are compound and fail to discretely identify objectionable material. Instead, the commingle numerous sets of evidence into one objection. Though not required when a party fails to comply with the Rules of Court, this Court will overlook the failure and rule on the objections, with the one caveat that to the extent that objections commingle various items of evidence, if any one item is admissible, the entire objection will be overruled as it was the burden of the Defendants to parse out the discrete items.

Objection A: Overruled Objection B: Overruled Objection C: Overruled Objection D: Overruled Calendar No.: Event ID:  TENTATIVE RULINGS

3015882 CASE NUMBER: CASE TITLE:  BIRTCHER VS COUNTY OF SAN DIEGO [IMAGED]  37-2020-00039800-CU-PO-NC Merits of Motion – Sovereign Immunity of the County The County, citing Government Code §§ 815(a) and 815.6, argues that it has sovereign immunity and owed no duty to Mr. Birtcher or his daughter. Plaintiff's opposition brief does not appear to dispute this.

The emphasis on this point is largely on whether the County can be liable directly or only vicariously.

Plaintiff has failed to cite any authority for holding the County directly liable, and, as such, summary judgment is appropriate as to the County – though it would appear that such is of little import to the extent that the County remains liable vicariously for the actions of its officers.

Merits of Motion – Direct Involvement of Sheriff Gore Plaintiff's claim is that the use of the forceful prone restraint in-the-moment, but also that it occurred due to improper training. In other words, better trained officers would not have used a forceful prone restraint, or, if they did, would have known how to apply it in a safe manner (i.e. a manner that did not involve in death, as occurred to Mr. Birtcher), or, if it could not be applied in a safe manner, would have known how to look for signs of risk and reposition or undo the restraint in a manner that made it safer. Plaintiff claims that this is the result of negligent training.

The parties' legal authorities on this issue are rather unclear, which is somewhat unusual given the simplicity and presumed frequency with which the simple question would come up: can Sheriff's be held liable for inadequate training of deputies under California law? Notably, the California Civil Jury Instructions have a specific instruction for when a local government entity fails to adequately train its employees – CACI No. 3003. But, also of note is the fact that that jury instruction specifically references that it is setting forth the elements of liability under 42 U.S.C. § 1983, which is federal law. Plaintiff's federal case is over and she did not prevail. It is unclear what her basis is for suing Sheriff Gore on a 'failure to train' theory.

Sheriff Gore makes the point that officer training is controlled at the state level, such that he, as a local official, does not have the authority to control precisely what is and what is not taught. The unique thing about federal law is that, due to sovereign immunity and the 11th Amendment, state officials must be sued in their individual capacity. See Ex Parte Young (1908) 209 U.S. 123. That same problem does not exist when a State makes law that allows itself or its agents to be liable. The authority upon which Plaintiff relies is the case of Brandt v. Board of Supervisors (1978) 84 Cal.App.3d 598. But, Brandt was a writ of mandamus case. It was not a case involving liability for damages after the fact of a negligent act.

As such, based on the briefing provided, Plaintiff has not identified a legal basis for sustaining a claim of negligent training against Sheriff Gore under California law.

Merits of Motion – Triable Issues of Fact re Battery Despite the effort to split the res judicata legal issues from the fact-intensive questions about whether a triable issue of fact exists, the doctrine of res judicata is again re-asserted in Defendant's Second motion – perhaps identifying, again, the heart of the difficulty of the issue being raised with regard to res judicata. Specifically, Defendants' reply brief recites that: 'California courts recognize that California law battery or wrongful death actions are the counterpart of federal civil rights actions under 42 U.S.C., section 1983.' (ROA 130, p. 3:3-5, citing Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1274.) The issue presented in Edson was as follows: 'The issue is one of first impression in California: In a battery action against a police officer, must plaintiff prove unreasonable force as part of the cause of action or must the officer prove reasonable force as an affirmative defense?' Edson, supra, 63 Cal.App.4th at 1272. In adopting the rule that the burden is on a plaintiff must plead and prove the use of unreasonable force (rather than an officer having the burden of proving that the force in question was reasonable), the Edson court provided as follows: This is the rule in federal civil rights actions under 42 United States Code section 1983,[ftnt] the federal counterpart of state battery and wrongful death actions. [Citation.] To make a prima facie case under section 1983, plaintiff must demonstrate a deprivation of a federal right by a person acting under color of state law. The rule is that plaintiff must establish, as part of his affirmative care, the unreasonableness of the force used. [Citations.] Calendar No.: Event ID:  TENTATIVE RULINGS

3015882 CASE NUMBER: CASE TITLE:  BIRTCHER VS COUNTY OF SAN DIEGO [IMAGED]  37-2020-00039800-CU-PO-NC The federal practice is all the more significant because plaintiffs sometimes join federal and state claims against police defendants, either in federal or state court. [Citation.] To avoid jury confusion and to ease judicial administration, it makes sense to require plaintiff to prove unreasonable force on both claims.

California courts in such cases have articulated the same concerns that underlie our decision today, sounding the warning that ' '[w]e must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes 'reasonable' actions may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.'' [Citation.] (Edson, supra, 63 Cal.App.4th at 1274-1275.) While the wisdom of Edson is not necessarily 'bad law,' it appears to be weaker than the decision in Hayes, as the former was decided by a California Court of Appeal in 1998, while the latter was decided by the California Supreme Court in 2013. Edson seems to counsel in favor of treating federal excessive force claims and state law battery claims as almost completely overlapping in the venn diagram of claims that cover the primary right of loss of a loved one (to use the language of Hayes that the plaintiff's injury was 'the loss of her father.'). But, federal and state law have grown apart since that time in 1998 when the Edson case was handed down, and, as covered above, federal law now looks to discrete instances of excessive force while state law looks to the 'totality of the circumstances.' Hayes, supra, 57 Cal.4th 622. Edson was not addressing this exact question of how to parse various moments when force is used; rather, Edson addressed the question of who has the burden of establishing whether the force was excessive or reasonable. As such, Edson is not necessarily abrogated or overruled by Hayes, but its rationale is somewhat boxed-in by the fact that even though some efforts to keep consistency between federal law and state law have weight and merit (with regard to things like the burden of proof) others do not (with regard to things like discretely parsing instances of uses of excessive force instead of considering the totality of the circumstances), others do not (such as attempts to discretely parse various instances of use of 'excessive force').

To make the point that even without res judicata there is no triable issue of fact in this case, Defendants argue as follows: Given Birtcher's attempts to flee, it was reasonable for deputies to hobble Birtcher's feet, and hold him in place to do so. Given Birtcher's refusal to follow directions to stop resisting and stop his antagonistic and combative conduct, it was reasonable for deputies to handcuff him. Given Birtcher's strength, attempts to flee, and assault through kicking, it was reasonable to restrict his legs by attaching them to his waist.

(ROA 130, p. 4:20-24.) Defendants then cite Martinez v. City of Los Angeles (1996) 47 Cal.App.4th 334 for the proposition that, as recited above in Edson, 'We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face everyday.' The question here, however, is whether summary judgment is appropriate – i.e. whether the decision about whether what occurred to Mr. Birtcher was excessive or not is triable such that a finder of fact should review it since this Court is not entitled to weigh facts on summary judgment. What distinguishes the Martinez case from the instant case is that, in Martinez, the defendants raised state law immunity principles under Penal Code § 196.

Under that provision, according to Martinez, 'a police officer who kills someone has committed a justifiable homicide if the homicide was 'necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty' or when 'necessarily committed in retaking felons who have been rescued or who have escaped... and who are fleeing from justice or resisting such arrest.'' Martinez, supra, 47 Cal.App.4th at 349, quoting Penal Code § 196(2) and (3).

While Martinez does appear to stand for the proposition that the typical summary judgment standard (which is fairly deferential to the party opposing summary judgment) is somewhat lessened in the context of excessive force claims against peace officers in order to give such officers wide berth when making moment-to-moment decisions in the middle of an emergency situation, the facts of Martinez were somewhat different that then facts set forth in this case. Martinez involved a report of a man who Calendar No.: Event ID:  TENTATIVE RULINGS

3015882 CASE NUMBER: CASE TITLE:  BIRTCHER VS COUNTY OF SAN DIEGO [IMAGED]  37-2020-00039800-CU-PO-NC was high on phencyclidine (PCP) and was running around the streets of Los Angeles with a carving-type kitchen knife. After a separate incident where the peace officers arrested individuals who were engaged in graffiti, a man yelled, 'Over here. Here I am, I'm the one you want. I'm the one you're looking for...' crossed the street and came toward the deputies 'seemingly oblivious to the traffic around him' and causing motorists to 'brake or swerve.' Martinez, supra, 47 Cal.App.4th at 339. The man continued walking toward the deputies in a slow, stiff, rigid, deliberate, lethargic, and mechanical manner, and both deputies were aware that the drug PCP causes individuals to have extraordinary strength and very high pain tolerance. As the man continued approaching the deputies, moving the knife to various positions as he approached, the deputies warned the man to stop and drop the knife, but he responded, 'Go ahead, kill me or I'm going to kill you' and 'Shoot me. Shoot me.' Martinez, supra, 47 Cal.App.4th at 340. The deputies fired their pistols when the man got within about 10 to 15 feet of them.

The facts of the instant case involve a similar claim of a man under the influence of drugs, though not necessarily drugs that cause the same strength and pain tolerance that PCP does. While it seems to be clear that Mr. Birtcher resisted arrest, what is less clear, from a 'totality of the circumstances' perspective, is whether this incident could have been handled in a manner that would not have resulted in Mr. Birtcher's death. While is has been determined that the first three incidents leading up to the arrest were not excessive force, the last incident of using a forceful prone restraint on Mr. Birtcher until after backup deputies arrived has not been adjudicated as being a reasonable use of force. The question on summary judgment/adjudication is whether there is a triable issue of fact on that question.

Interestingly, the District Court that heard the federal claims concluded that there was no triable issue of fact on that issue. The Ninth Circuit did not. The facts of this case do involve a closer call than in Martinez in that that case involved a knife-wielding man, exhibiting signs of being on PCP, approaching officers after repeated warnings to stop with firearms used as a last resort. The instant case does not seem to have quite the same kind of belligerent behavior in terms of Mr. Birtcher approaching the officers. Though the facts seem to indicate that Mr. Birtcher indeed became belligerent after the encounter got underway, the question posed by the instant case is somewhat different than in Martinez in that the officers decided to shoot at an oncoming man holding a knife who was approaching them, making threats, and under the influence of drugs. The question in the instant case is more about the appropriateness of a prone restraint and pressure to the lungs once an individual is hogtied – leading to questions about his ability to breathe, as well as to questions about how much training officers have received about properly protecting the airways of a person in a prone restraint. These questions do not appear to be readily-subject to summary judgment/adjudication.

Conclusion The result in this case is ultimately a close call – a very close call. In this Court's initial review of the motion(s) as they were previously put forth, the nuances of the res judicata doctrine clouded some of the focus. Having now had the opportunity to consider that doctrine and place it into context in this case, what remains is an isolated focus on the final step – the prone restraint that was applied to Mr. Birtcher and undisputedly resulted in his death – and whether it meets the legal standard for battery. Were this Court in the shoes of a finder-of-fact, the actions of the officers in this case do not appear to have met that standard. But, that is not the legal standard on summary adjudication, and this Court is not to weigh the evidence on a motion for summary judgment/adjudication. Defendants' arguments, while persuasive in nature, fail to get this case across the proverbial 'finish line' in terms of obtaining summary judgment as to that relatively fact-based question.

Given such a close call, particularly on an issue that appears to be factual in nature, this Court's ruling is in deference to the general principle that: 'Any doubts about the propriety of summary judgment... are generally resolved against granting the motion, because that allows the future development of the case and avoids errors.' Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839, quoting Henly, Action Guide, Making and Opposing a Summary Judgment Motion, p. 15 (Cont.Ed.Bar 1998) (emphasis in original). This general principle derives from the more specific authorities counseling that evidence must be liberally construed in favor of a party opposing summary judgment and narrowly construed against a party seeking summary judgment. Id. at 838-839 (citations omitted). Without a precise focus on the facts Calendar No.: Event ID:  TENTATIVE RULINGS

3015882 CASE NUMBER: CASE TITLE:  BIRTCHER VS COUNTY OF SAN DIEGO [IMAGED]  37-2020-00039800-CU-PO-NC and expert standards that go into use of a forceful prone restraint – and why determination of that issue is appropriate for a trial court on summary judgment rather than a fact-finder at trial – the Court cannot grant the motion.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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