Judge: Deborah C. Servino, Case: 30-2021-01200297, Date: 2022-11-18 Tentative Ruling
MOTION FOR SUMMARY JUDGMENT
Defendants Eric Esparza and City of Huntington Beach’s motion for summary judgment as to the remaining cause of action for negligence/wrongful death in Plaintiff Tiffany Tabares’ First Amended Complaint (“FAC”), is denied.
Request for Judicial Notice
Defendants’ unopposed request for request for judicial notice of Exhibits C-E, is granted. As to the Vehicle Code and Health & Safety Code (Exhibits A and B), it is unnecessary to present state statutes for judicial notice.
Evidentiary Objections
Plaintiff’s evidentiary objection nos. 1-5 are sustained. Plaintiff’s remaining evidentiary objections are overruled.
Defendants’ evidentiary objections are overruled.
Summary Judgment Standard
“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.)
A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)
The scope of this burden is determined by the allegations of the plaintiff’s complaint. (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19 [defendant only required to defeat allegations reasonably contained in the complaint].)
In determining whether there is any “triable issue,” the court must consider all evidence submitted by the parties except that to which objections have been made and sustained by the court. (Code Civ. Proc., § 437c, subd. (c); see Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 281, fn. 2 [evidentiary objections not made at summary judgment hearing are waived].)
Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)
Merits
The First Amended Complaint has one cause of action for negligence/wrongful death. Plaintiff, Decedent’s mother, contends that Officer Esparza was negligent in using deadly force in shooting Decedent seven times on September 22, 2017, resulting in his death.
A police officer has the obligation “to use reasonable care in deciding to use and in fact using deadly force.” (Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1101.) A claim of negligence in connection with the application of force by police personnel requires a showing of (1) a legal duty to use reasonable care, (2) a breach of that duty, (3) proximate causation, and (4) injury to the plaintiff. (Phillips v. TLC Plumbing (2009) 172 Cal.App.4th 1133, 1139; see Tabares v. City of Huntington Beach (9th Cir. 2021) 988 F.3d 1119, 1125.)
Penal Code section 835a defines authority to use deadly force. The statute indicates that a peace officer is justified in using deadly force upon another person:
“only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons:
(A) To defend against an imminent threat of death or serious bodily injury to the officer or to another person.
(B) To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended.”
(Pen. Code, § 835a, subd. (c)(1).)
The California Supreme Court has held that California negligence law “is broader than federal Fourth Amendment law.” (Hayes v. County of San Diego (2013) 57 Cal.4th 622, 639.) “[O]fficers have a duty to act reasonably when using deadly force.” (Id. at p. 629.) “[T]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” (Id. at p. 632.) The officer's conduct must only “fall[ ] within the range of conduct that is reasonable” viewed “in light of the totality of circumstances.” (Ibid.) Officers are liable “if the tactical conduct and decisions leading up to the use of deadly force show, as part of the totality of circumstances, that the use of deadly force was unreasonable.” (Id. at p. 626) Under California law, the officer's pre-shooting decisions can be considered in relation to the question whether the officers' ultimate use of deadly force was reasonable. (Id. at p. 632.)
Here, the FAC alleges that Defendants were negligent in failing to properly and adequately assess the need to detain, arrest, and use force or deadly force against the Decedent. This allegation includes pre-shooting conduct and post-shooting conduct in the failure to provide medical care to Decedent. (FAC, at ¶ 20.)
Due care as an element of negligence presents a question of fact for the jury. If the circumstances permit a reasonable doubt whether defendants' conduct violated the boundaries of due care, the doubt must be resolved as an issue of fact by the jury rather than of law by the court. (Brummett v. County of Sacramento (1978) 21 Cal.3d 880, 887.)
Similarly, it is the trier of fact who decides what the facts are and what reasonable care means within those facts. (Coyle v. Historic Mission Inn Corporation (2018) 24 Cal.App.5th 627, 640.) Once the trier of fact determines the facts of the case, it can decide what reasonable care means in the circumstances of this case. (Id. at p. 641 [citing Eddy v. Stowe (1919) 43 Cal.App. 789, 797 - “Each case presents different conditions and situations. What would be ordinary care in one case might be negligence in another.”].)
In their motion, Defendants urge the court to simply review the video and objectively find that Officer Esparza’s use of deadly force was reasonable. They rely upon Mezger v. Bick (2021) 66 Cal.App.5th 76, 88 and Scott v. Harris (2007) 550 U.S. 372, 380-381 as support that Plaintiff cannot contradict the surveillance video. Neither are on point as Defendants acknowledge that the videos must be viewed with specialized training and standards in mind. Indeed, Defendants provide a declaration from Ken Hubbs, who was retained to assess whether Officer Esparza’s actions in contacting Decedent on September 22, 2017, and the subsequent officer-involved shooting, were consistent with contemporary police practices. (Hubbs Decl., at ¶ 2.) In so concluding that Officer Esparza’s conduct was consistent with contemporary police practices, Hubbs used his expertise and training to opine that Officer Esparza’s use of deadly force was reasonable under the circumstances. (Hubbs Decl., at ¶¶ 16-68.)
Both sides agree that expert testimony is required. Plaintiff provides expert testimony from Roger A. Clark, a police practices expert, specializing in the procedures of police practices and proper police tactics, including proper procedures for the detention and arrest of individuals and the type and degree of force, if any, appropriate under different circumstances. (Clark Decl., at ¶ 1.) Clark averred that a reasonable officer in Officer Esparza’s position acting consistent with standard police practices would not have believed he had reasonable suspicion to detain or probable cause to arrest. (Clark Decl., at ¶ 6.) Further, he opines that under the totality of the circumstances, the use of deadly force by Officer Eric Esparza against Dillan Tabares on September 22, 2017 was excessive and unreasonable, violated police officer standards and training, and was below the standard of care for several reasons. A reasonable officer in Officer Esparza’s position, confronted with the same circumstances, would not have believed Decedent posed an immediate threat of death or serious bodily injuries under these objective facts. (Clark Decl., at ¶¶ 13-19.) Plaintiff has met her burden of showing that there is a triable issue of fact as to whether Officer Esparza’s use of deadly force was reasonable under the circumstances. Accordingly, the motion for summary judgment is denied.
MOTION TO CONTINUE TRIAL
Defendants move to continue trial and all related dates. They assert that co-lead counsel, who associated into the case on September 28, 2022, has a conflict with the current trial date of February 14, 2023. Defendants also represent that they need additional time to complete discovery. Defendants’ motion to continue trial is granted.
Trial dates are firm and all parties and their counsel must regard the date set for trial as certain. (Cal. Rules of Court, rule 3.1332(a).) When a party seeks a continuance of the trial date, whether by noticed motion or ex parte application, the party must make the motion or application “as soon as reasonably practical once the necessity for the continuance is discovered.” (Cal. Rules of Court, rule 3.1332(b).)
Trial continuances are disfavored. (Cal. Rules of Court, rule 3.1332(c).) The court “may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include:
(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;
(2) The unavailability of a party because of death, illness, or other excusable circumstances;
(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;
(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;
(5) The addition of a new party if:
(A) The new party has not had a reasonable
opportunity to conduct discovery and prepare for
trial; or
(B) The other parties have not had a reasonable
opportunity to conduct discovery and prepare for
trial in regard to the new party's involvement in
the case;
(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or
(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.
Other factors the court may consider when determining whether to grant a trial continuance include:
(1) The proximity of the trial date;
(2) Whether there was any previous continuance, extension of time, or delay of trial due to any party;
(3) The length of the continuance requested;
(4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;
(5) The prejudice that parties or witnesses will suffer as a result of the continuance;
(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay
(7) The court's calendar and the impact of granting a continuance on other pending trials;
(8) Whether trial counsel is engaged in another trial;
(9) Whether all parties have stipulated to a continuance;
(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and
(11) Any other fact or circumstance relevant to the fair determination of the motion or application.
(Cal. Rules of Court, rule 3.1332(d).)
Here, Plaintiff argues that she will be prejudiced because the incident allegedly occurred on September 22, 2017 and her counsel has trial conflicts with the earliest availability to be December 12, 2023. However, Plaintiff did not initiate the instant action until May 6, 2021, after having first extensively litigating her claims in federal courts. There have been no previous trial continuances in the instant case. The case was not even at issue until February 8, 2022, when Defendants filed their Answer to the FAC. Defendants request a relatively short continuance. Accordingly, the motion to continue trial and related dates is granted. Counsel should be prepared to discuss their availability for trial on June 20, 2023. However, if Plaintiff’s counsel is unavailable for trial in June 2023, counsel should be prepared to discuss their availability for trial on December 11 or 18, 2023.
Defendants shall give notice of the rulings.