Judge: Gail Killefer, Case: 19STCV35345, Date: 2023-02-01 Tentative Ruling

Case Number: 19STCV35345    Hearing Date: February 1, 2023    Dept: 37

HEARING DATE:                 February 1, 2023   

CASE NUMBER:                  19STCV35345

CASE:                                     Eddie Rankin, III v. California Department of Corrections, et al.

MOVING PARTY:                Defendant, Officer Kardouni

OPPOSING PARTY:             Plaintiff, Eddie Rankin III

TRIAL DATE:                        March 28, 2023

PROOF OF SERVICE:          OK

MOTION:                               Defendant Kardouni’s Motion for Summary Judgment  

OPPOSITION:                       January 18, 2023

REPLY:                                  January 27, 2023

TENTATIVE:                         Kardouni’s motion is granted. Kardouni is to give notice.

Background 

This action arises in connection with the incarceration of Eddie Rankin III (“Plaintiff”).   Plaintiff alleges that he was incarcerated by Defendant California Department of Corrections and Rehabilitation (“CDCR”) and under its medical care from approximately 2002 to January 2019 and that he was partially paralyzed from the waist down prior to his incarceration.  

According to Plaintiff’s Complaint, Plaintiff was not feeling well on or about September 29, 2018, and requested medical assistance (hereinafter the “Incident”).  CDCR’s guard, Amir Kardouni (“Kardouni”) allegedly responded to Plaintiff’s request by calling Plaintiff derogatory names and dropping Plaintiff to the ground in the direction of a wooden gurney. As a result, Plaintiff alleges that he landed on his neck and fractured his vertebra, resulting in additional paralysis, injuries and impairment. Additionally, the Complaint alleges that CDCR negligently hired, supervised and/or retained the other defendants.  

On September 18, 2020, Plaintiff filed a Doe amendment to the Complaint naming Kardouni as Doe 1. 

On January 6, 2021, Plaintiff filed his First Amended Complaint (“FAC”). The FAC alleges five causes of action: (1) violation of Bane Act (Civil Code § 52.1), (2) violation of Ralph Act (Civil Code § 51.7), (3) battery against “Doe 1”, (4) negligent hiring and retention, (5) negligent supervision.

On June 14, 2021, Plaintiff filed the Second Amended Complaint (“SAC”). The SAC alleges six causes of action: (1) violation of Bane Act (Civil Code § 52.1) against CDCR and Does 1-20, (2) violation of Ralph Act (Civil Code § 51.7) against CDCR and Does 1-20, (3) battery against “Doe 1”, (4) negligent hiring against CDCR and Does 2-20 (5) negligent supervision against CDCR and Does 2-20, and (6) negligent retention against CDCR and Does 2-20. 

On October 4, 2021, Defendants demurrer to the SAC was sustained as to the first and second causes of action.  

On November 5, 2021, Plaintiff filed the operative Third Amended Complaint (“TAC”). The TAC alleges the same six causes of action.  On May 13, 2022, the court overruled CDCR’s demurrer to the TAC.

Kardouni now moves for summary adjudication as follows: 

1.      Plaintiff’s First, Second, and Third Causes of Action against Kardouni fail as a matter of law because Officer Kardouni did not act violently against Plaintiff.

2.      Plaintiff’s First, Second, and Third Causes of Action against Kardouni fail as a matter of law because Kardouni did not cause Plaintiff harm.

Kardouni’s notice of motion also does not comply with California Code of Civil Procedure,         § 437c(f)(1). That section provides that “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty.” Kardouni’s noticed issues address multiple causes of action within one issue, and one cause of action is addressed across multiple issues. Thus, the court will address the motion pertaining to the causes of action as alleged by the TAC.  

Evidentiary Objections 

Kardouni’s Objections to Declaration of Plaintiff 

Overruled: Objections 2, 4, 6

Sustained: Objections 1, 5

Sustained-in-part: Objection 3 sustained-in-part as to everything after “false.”

Kardouni’s Objections to Declaration of Reginald Terry 

Overruled: Objections 8, 10.

Sustained-in-part: Objection 7: sustained-in-part as to “I heard Eddie [Rankin] ask what they were doing.”

Objection 9: sustained-in-part as to everything before the last sentence.

Objections to Depositions Excerpts of Kardouni

Overruled: Objection 11  

Objections to Plaintiff’s Materials and Additional Disputed Material Facts

Overruled: Objections 12-19, 21

Sustained: Objection 20:   

Discussion

I.                   Legal Authority

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  Pursuant to CCP § 437c(a): 

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.  The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct….  The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.  The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading. 

A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (CCP § 437c(c).)   

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.  The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.  Each of the material facts stated shall be followed by a reference to the supporting evidence.  The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.”  (CCP § 437c(b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)   

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinesley).)  Pursuant to CCP § 437c(p)(2):

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.  Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.  The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto. 

The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.”  (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].)  A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).   

II.                Factual Summary

The majority of the circumstances surrounding this matter are undisputed by the parties.

It is undisputed that Plaintiff was a prisoner in CDCR custody on September 29, 2018 based upon a conviction of voluntary manslaughter; during the commission of this crime, Plaintiff was also shot, which left him partially paralyzed prior to his entry into CDCR custody. (Defendant’s Separate Statement of Material Facts; Plaintiff’s Separate Statement of Material Facts & Additional Material Facts (together “MF”) ¶1.) The parties also do not dispute that Plaintiff was found, on several occasions, to be guilty of rules violations for possession of controlled substances during his time in CDCR custody. (MF ¶¶2-9.)

The parties do not dispute Plaintiff made a first request for medical care on September 29, 2018 and medical care was provided to him. (MF ¶14.) After returning to his cell that day, Plaintiff made another request for medical care—the parties dispute whether the request was made “immediately” upon his return. (MF ¶16.)

Regarding his request, the parties do not dispute Plaintiff called for “man down” to indicate an emergency situation. (MF ¶17.) The parties dispute whether Kardouni arrived after medical care was provided; whether Officer Legge responded by summoning medical care; and Kardouni’s course of conduct after entering Plaintiff’s cell. (MF ¶¶18-22.) Plaintiff alleges that “after medical care was summoned and arrived to transport him, Officer Kardouni slammed him onto a gurney.” (MF ¶21.) The parties dispute Kardouni’s presence at any other point throughout that day, as well as the temporal sequence of events regarding Kardouni’s arrival before or after medical care had been summoned and arrived. (MF ¶18-25.)

Plaintiff informed LCSW J. Graupmann that Officer Kardouni “grab[bed] me by the shoulders and threw me on the board. . . . He does the same things to my legs.” (MF ¶25.) During Plaintiff’s interview with Sergeant Kang, he stated that upon his return to his cell, he “fell out.” Plaintiff called for man down, as did others. Plaintiff stated that Officer Legge responded and summoned medical care. After medical care arrived, Officer Kardouni picked Plaintiff up by the shoulders and slammed his shoulders into the wall and gurney, then picked up his legs and slammed them into the wall and gurney. (MF ¶¶27-28.)

On October 26, 2022, an investigation into Plaintiff’s claim was initiated and Plaintiff was interviewed by Sergeant Kang that same day. (MF ¶26.) The parties dispute the thoroughness of Sergeant Kang’s investigation. (MF ¶¶26-32.)

III.             Analysis

A.     First & Third Causes of Action: Violation of Bane Act & Battery

Civil Code § 52.1 (the “Bane Act”) allows an individual to sue for damages if a person or persons “interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state….”  (Civ. Code, § 52.1(a), (b).)  “The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., ‘threat[], intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.”  (King v. State of Cal. (2015) 242 Cal.App.4th 265, 294.)  

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.) “In an action for civil battery the element of intent is satisfied if the evidence shows defendant acted with a ‘willful disregard’ of the plaintiff's rights.” (Ashcraft v. King (1991) 228 Cal.App.3d 604, 613.)  

Kardouni argues Plaintiff’s Bane Act and battery claims fail here because the evidence presented “contradicting Plaintiff’s allegations that Officer Kardouni battered Plaintiff precludes a trier of fact from concluding it was more likely than not that Officer Kardouni battered Plaintiff as claimed.” (Motion, 13-14.) Kardouni further contends Plaintiff’s alleged inconsistent statements here show the first and third causes of action must fail as a matter of law since the changes are so numerous in times and ways, “such that a trier of fact would be precluded from believing his allegations.” (Motion, 14.) Kardouni points to Plaintiff’s alleged inconsistent statements regarding the type of medical care he was requesting, for which ailment, number of interactions with Officer Kardouni on that day, and the alleged battery, as well as Plaintiff’s alleged history of controlled substance use and falling, to emphasize a lack of credibility here. (Motion, 14-16.) Kardouni here opines as to what is the “more likely” cause of Plaintiff’s inconsistent statements regarding the medical care provided to him, and further makes the conclusory claim:

“Plaintiff’s allegation that Officer Kardouni responded to Plaintiff’s cell and attacked him without provocation are simply unbelievable, particularly given Plaintiff’s initial admissions that he was injured due to a fall and his changing statements regarding how Officer Kardouni assaulted Plaintiff and his addition of facts regarding Officer Kardouni’s prior involvement in his medical treatment on September 29, 2018. When one considers that Plaintiff had a history of possession of controlled substances and paraphernalia in custody [], along with his recent weaning off morphine due to taking other inmate’s morphine [], the only reasonable inference is that Plaintiff’s allegations are simply untrue regarding Officer Kardouni. A reasonable trier of fact could not conclude otherwise.” (internal citations omitted) (Motion, 16.)

Here, Kardouni also concludes by arguing there is no evidence of a neck fracture or injury to the spine caused by an alleged assault on September 29, 2018, and the medical record shows Plaintiff was treated for an infection in his neck. (Motion, 26-27.)

In opposition, Plaintiff retorts that any question of the credibility of Plaintiff’s statements should not be resolved the summary judgment stage, and should be left to a trier of fact at trial (Opposition, 8; citing AARTS Productions, Inc v. Crocker Nat’l Bank, (1986) 179 Cal.App.3d 1061, 1065 [“A court generally cannot resolve questions about a declarant's credibility in a summary judgment proceeding... unless admissions against interest have been made which justify disregard of any dissimulation.”])

“Kardouni attempts to argue that somehow Plaintiff’s prior disciplinary violations while in custody preclude Kardouni’s liability. This is a non-sequitur. There is no logical reason why Rankin’s rules violations would foreclose him being the victim of a battery.” (Opp., 8.)

Further, Plaintiff cites authorities to show “despite declarants inconsistencies [sic] between his declarations and depositions,” a granting of summary judgment was found to be in error. (Opp., 8-9; citing Saporta v. Barbagelata, (1963) 220 Cal.App.2d 463, 474-5; Frye v. Felder, (1966) 246 Cal.App.2d 136, 140.) Plaintiff further contends that if credibility is to be considered, “a reasonable trier of fact could find that Officer Kardouni committed a violent act against Plaintiff...” (Opp., 10.) Further, Plaintiff contends his prior statements are not inconsistent:

“Plaintiff’s prior statements are not inconsistent in any material way. Whether Plaintiff was previously seeking medical attention for back pain, or urinary tract pain – or both – does not bear on what caused the subsequent injuries which are at issue in this case. Moreover, Plaintiff’s explanations of what happened when Kardouni entered the cell are not inconsistent. Whether Kardouni slammed Plaintiff against the wall first, before Plaintiff hit the floor; or the floor first, is immaterial and does not create a statement so inconsistent as to impeach Plaintiff’s credibility for the purposes of this motion. The wall and the floor intersect, so it is possible that Kardouni slammed or dropped Plaintiff such that he hit both the wall and the floor at nearly the same time.” (Id.)

Plaintiff further contends his battery claim should be resolved by a trier of fact, and points to the declaration of inmate Terry as support for Plaintiff’s contentions regarding Kardouni’s alleged battery. (Opp., 10-11.) The Terry declaration provides, in relevant part:

“Then the officers brought Mr. Rankin out of the cell on a board [stokes litter] and they dropped him before putting him on the stretcher [gurney]. He cried in pain again. The nurse on duty stood there and did not intervene.” (Ellis Decl., Exh. J, ¶5.)

Plaintiff thus contends Plaintiff’s proffered evidence sufficiently contradicts Defendant’s arguments, such that several issues of fact necessitate the procession to trial. (Opp., 11.)

Plaintiff further argues Kardouni’s conduct also violated the Bane Act as it prevented him from exercising protected rights to medical care and freedom from excessive force; and by using threat, intimidation and coercion against Plaintiff. (Opp., 12-14.)

In reply, Kardouni again argues Plaintiff’s inconsistent statements make his contentions not credible, as they are admissions against interest which justify discredit. (Reply, 5-6; citing AARTS, supra, 179 Cal.App.3d at 1065.) Kardouni further questions the weight of the Terry declaration, stating “Inmate Terry alleged a wholly separate event involving multiple officers when Plaintiff allegedly slid off the gurney as he was being transported.” (Id.) However, this is a mischaracterization of inmate Terry’s attestation, as Terry makes no mention that Plaintiff “slid off” a gurney, but rather clearly states “they dropped him...” (Ellis Decl., Exh. J.) Kardouni further states “[w]hen the lack of clarity is considered along with Plaintiff’s denial of other facts, it is unclear how any jury could conclude that Plaintiff was indeed assaulted.” (Reply, 7.) However, Kardouni’s referenced “lack of clarity” further shows the court the existence of several issues regarding the possible sequence of events.

Kardouni further points to the lack of substantiating evidence for several of Plaintiff’s claims in his opposition. (Id.)

“Plaintiff’s self-serving statements here are so contradictory that it is impossible to know what version of the events he now claims is the true version. And to believe Plaintiff, a jury would have to disbelieve all correctional and medical staff present at the time of the alleged assault, the medical records from CDCR, and the medical records from Scripps Medical Center.” (Id.)

Next, Kardouni points to the lack of evidence provided by Plaintiff to support any harm or damage alleged by the TAC. (Reply, 8.) Kardouni points to Plaintiff’s medical records and the findings of Defendant’s expert to show “there was no evidence of a fracture or any injury to the spine or spinal cord.” (Id.) “While a plaintiff can point to reasonable inferences to overcome summary judgment, ‘those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork.’” (Reply, 8-9; citing Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161.)

Lastly, Kardouni contends Plaintiff’s Bane Act claims must show that “Officer Kardoui battered Plaintiff and caused the injuries asserted,” otherwise “Plaintiff’s remaining allegations are insufficient to state a claim.” (Reply. 9.) Kardouni even cites the language of Civil Code § 52.1(k) to suggest speech alone is not sufficient to support an action and that “the alleged statements by Officer Kardouni do not amount to an intentional threat of violence.” (Reply, 9-10.) The court disagrees. As Kardouni notes in the reply, section 52.1 creates a crucial exception here: “[s]peech alone is not sufficient to support an action . . . except upon a showing that the speech itself threatens violence against a specific person . . . .” (emphasis added) (Reply, 10.) Kardouni’s invitation for this court to deduce Kardouni’s intent from the alleged expressions is not a relevant inquiry at the summary judgment stage. (Mann v. Cracchiolo (1985) 38 Cal.3d18, 39.)

However, the court need not delve into such weighing of evidence or factual deductions. The court agrees with Kardouni that Plaintiff has failed to meet his burden of showing harm or damages as to the Bane Act and battery claims. "When the motion for summary judgment is supported by affidavits sufficient to sustain the motion,…the burden of showing that triable issues exist shifts to the party opposing the motion. [Citation.] A party cannot avoid summary judgment based on mere speculation and conjecture…but instead must produce admissible evidence raising a triable issue of fact.  (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1524.)  Additionally, the plaintiff cannot simply rely on allegations in the pleadings.  (See Snyder v. U.S. Fidelity & Guar. Co. (1997) 60 Cal. App. 4th 561, 565.)

“When opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork.”  (Joseph E. DiLoreto, Inc. v. O’Neill (1991) 1 Cal.App.4th149, 161.)

Here, Plaintiff submits little in the way of evidence to support his contentions of a harm or damages sustained due to Kardouni’s alleged conduct. Plaintiff’s opposition includes merely “speculation and conjecture” regarding what damages Plaintiff suffered, and how they were caused. Conversely, Defendant has raised the issue of causation and harm caused, submitted evidence to show little or no apparent damages suffered, and pointed to Plaintiff’s history to proffer an alternative theory of causation. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [“…the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of  trial...”].)

Viewing the evidence submitted in the light most favorable to Plaintiff, the court finds no triable issues exist with regard to the first and third causes of action. Specifically, the court finds no triable issues exist with regard to whether Plaintiff was harmed by any alleged conduct of Kardouni. Although Plaintiff correctly contends that any evaluation of credibility should be left to a trier of fact to resolve, Plaintiff submits little evidence before this court to show an injury, a harm, violation of a right, or reasonable harm or offense caused by Kardouni’s conduct, beyond repeating allegations made in the pleadings. Relying on the pleadings alone, only substantiated by Plaintiff’s declaration, fails to raise a triable issue of material fact as to what injuries or harms Plaintiff sustained. The court finds Plaintiff has failed to meet his burden in opposing summary adjudication as to this issue.  

For these reasons, Kardouni’s motion is granted as to the first and third causes of action. 

B.     Second Cause of Action: Violation of Ralph Act

Civil Code § 51.7 (the “Ralph Act”) provides that all persons have the right to be free of “violence, or intimidation by threat of violence, committed against their persons,” committed because of their political affiliation or any characteristic defined in Civil Code section 51. A person aggrieved under the Ralph Act may bring a civil action to recover damages, “a civil penalty of $25,000, exemplary damages, and an award of attorney fees.” (D.C. v. Harvard-Westlake School (2009) 176 Cal.App.4th 836, 856; Civil Code § 52(b), (c).)

The elements of a claim brought under section 51.7 are: (1) the defendant threatened or committed violent acts against the plaintiff; (2) a motivating reason for the defendant was his or her perception of the plaintiff's age or disability; (3) the plaintiff was harmed; and (4) the defendant’s conduct was a substantial factor in causing the plaintiff's harm. (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 881, citing CACI No. 3023 [the jury instruction form has since then been renumbered to 3063].) 

Civil Code § 51.7(b)(1), defines intimidation by threat of violence to include, but not be limited to, “making or threatening to make a claim or report to a peace officer or law enforcement agency that falsely alleges that another person has engaged in unlawful activity or in an activity that requires law enforcement intervention, knowing that the claim or report is false, or with reckless disregard for the truth or falsity of the claim or report.” 

Having found Plaintiff has failed to meet his burden in opposing the motion, this court has already determined Defendant has shown no triable issue of material fact exists as to whether Plaintiff was harm—negating a necessary element. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) Since this court has therefore found Plaintiff has failed to show triable facts exist as to whether Plaintiff sustained specific harms as pled in the TAC, the court now again finds there are no triable issues of material fact as to Plaintiff’s second cause of action as well for identical reasons.

For these reasons, Kardouni’s motion is also granted as to this issue.  

Conclusion

Kardouni’s motion is granted. Kardouni is to give notice.