Judge Yolanda Orozco, Case 19STCV10630 2022-09-20 Tentative Ruling

Judge: Yolanda Orozco, Case: 19STCV10630, Date: 2022-09-20 Tentative Ruling

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 19STCV10630 Hearing Date: September 20, 2022 Dept: 31

MOTION FOR SUMMARY ADJUDICATION IS GRANTED, IN PART

Background

On March 28, 2022, the Successors-in-Interest of the Estate of Alejandro Valencia Mendez, Alejandro Valencia Linares, and Alejandrina Valencia Linares filed this instant action against the City of Los Angeles, Charles Garcia, Ghanshym Patel, and Does 3 to 25.

The Complaint alleges:

1) Wrongful Death (Battery) Survival Action (CCP § 377.30)

2) Wrongful Death (Negligence) Survival Action (CCP§ 377.30)

3) Wrongful Death Battery (CCP § 377.60)

4) Violation of the Bane Act (Civ. Code § 52.1)

On July 08, 2022, Defendants filed this Motion for Summary Judgment, or in the alternative, Summary Adjudication.

On September 08, 2022, the Plaintiffs filed opposition papers.

On September 15, 2022, Defendant filed a reply.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “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. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿¿

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) The moving party is entitled to summary judgment if they can show that there is no triable issue of material fact or if they have a complete defense thereto. (Aguilar, supra, 25 Cal. 4th at 843.)¿ Summary adjudication may be granted as to one or more causes of action within an action, or one or more claims for damages. (Cal. Code of Civ. Proc. §437c(f).)¿¿¿

A defendant moving for summary judgment bears two burdens: (1) the burden of production – presenting admissible evidence, through material facts, sufficient to satisfy a directed verdict standard (Aguilar, supra, 25 Cal. 4th at 851); and (2) the burden of persuasion – the material facts presented must persuade the court that the plaintiff cannot establish one or more elements of a cause of action, or a complete defense vitiates the cause of action. (Code Civ. Proc., § 437c(p)(2);¿Aguilar,¿supra, 25 Cal.4th at p. 850.) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.¿¿(Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)¿¿Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”¿(Id.)¿¿

On ruling on a motion for summary judgment, the court is to ‘liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’” (Cheal v. El Camino Hospital¿(2014) 223 Cal.App.4th 736, 760.)

Evidentiary Objections

Plaintiffs failed to Comply with the California Rules of Court, rule 3.1354 subdivision (b) and (c) by including evidentiary objections in the Separate Statement. Accordingly, the Court will not consider the objections. (See Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal. App. 4th 1, 8-9 [court did not abuse its discretion in refusing to consider objections not filed separately as required by rule].)

Defendants object to the following:

1. Declaration of Roger Clark

Objection Nos. 1, 3, 7, 8, 11, and 12 are OVERRULED

Objection Nos. 2, 4, 5, 6, 9, and 10 are SUSTAINED.

Objection 13: Plaintiffs’ Exhibit A to Declaration of Iredale in its entirety – Excerpts from the Deposition of Charles Garcia.

Objection 14: Plaintiffs’ Exhibit B to Declaration of Iredale in its entirety – Excerpts from the Deposition of Ghanshym Patel.

Objections Nos. 13 and 14 are OVERRULED.

Objection 15: Plaintiffs’ Exhibit C to Declaration of Iredale in its entirety – FID Report

Objection 16: Plaintiffs’ Exhibit D to Declaration of Iredale in its entirety – Beck Memo

Objection 17: Plaintiffs’ Exhibit E to Declaration of Iredale in its entirety – BOPC Report.

Objection 18: Plaintiffs’ Exhibit G to Declaration of Iredale in its entirety – Autopsy Report.

Objections Nos. 15 to 18 are OVERRULED.

Discussion

Summary of Case

On March 4, 2017, Alejandro Valencia Mendez (the “Decedent”) was 70 years old at the time was shot and killed by a Los Angeles Police Officer. The Los Angeles Police Department (LAPD) had received four 911 calls stating that the Decedent was swinging a metal pole or “pipe” or “stick” at citizens on the street in front of a Carl’s Jr. in Downtown Los Angeles (SUF 1, 40.) The steel pipe was 64 inches long and weighed about 5.84 pounds. (Iredale Decl. Ex. E [BOCP Report].) Witnesses reported that the Decedent had struck a person on the hand with the pipe, another witness reported that the Decedent had struck him with a pipe prior to the officers’ arrival at the scene. (Id.) No mention is made as to the nature, treatment, and severity of the injuries suffered by witnesses who were struck with the pipe.

At 12:22 P.M., the Communications Division broadcast an assault with a deadly weapon, with the description of the perpetrator fitting the Decedent. (SMF 3.) LAPD, Charles Garcia, who was a training officer, and his trainee, Officer Ghanshym Patel were assigned to respond to the scene. (SUF 5, PSMF 1-5.)

Officer Patel checked out a taser but did not check out a second taser cartridge. (Iredale Decl. Ex. C.) Plaintiffs cite no evidence to show that Officer Patel was required to carry a second taser cartridge. Defendant Garcia had also failed to check out a Taser at the start of his shift, despite the requirement that he carry a Taser while deployed in the field. (PSMF 5-8.) Moreover, Despite Officer Garcia having a body worn video unit, he failed to activate it. (PSMF 23.) Officer Patel, as a trainee, was not issued a body worn video unit. (Iredale Decl. Ex. C [Force Investigation Report] at p. 0009) Upon arriving at the scene, neither officer retried the bean bag shotgun in the car which was a less lethal mode of force. (PSMF 10-14.)

The Decedent was wearing a black sweater and sweatpants and appeared to be agitated and disheveled. (PSMF 25 - 29.) Defendants maintain that Decedent refused to obey multiple commands to drop the pipe. (SMF 20, 57, 61, 135.) Plaintiffs maintain that Decedent spoke to the officers in Spanish, that the Decedent did not understand their commands in English, and that Officer Garcia spoke and understood Spanish but chose to only communicate in English with the decedent. (PSMF 38, 40, 41.) Officer Garcia maintains that he only heard mumbling and does not recall if he spoke to the Decedent in Spanish. (Iredale Decl. Ex. A [Garcia Depo. at p.87-89.)

Officer Patel shot his taser at Decedent with one taser dart bouncing off the Decedent’s arm and the second taser dart flying past the Decedent. (SMF 26, 27.) Since the first taser shot failed, Officer Garcia asked Officer Patel to reload his taser, but Patel could not comply because he did not have another taser cartridge, and Garcia had failed to check out a taser. (Iredale Decl. Ex. A at p. 131-132; Ex. C at p.0009.)

The audio of the dashcam footage, along with the Force Investigation Report, confirm that a male at the scene was yelling at the Decedent to not put the pipe down while the Officers continued to yell to put the pipe down. (Iredale Decl. Ex. C at p. 00011, Opp. Ex. F [dash cam footage]). The same male also yelled to the officers, “Shoot him. Shoot him.” (Id.)

Officers continued to yell “Drop the Stick!” to Decedent. (SMF 30.) Officer Garcia fired two rounds at Decedent when the Decedent allegedly advanced rapidly toward Defendants Garcia and Patel while holding a pipe with two hands. (SMF 29, 33, 70.) Plaintiffs state that Mr. Mendez was walking laterally and not towards either officer or at a quick pace. (SMF 33.)

Timeliness of Opposition Papers

Plaintiffs do not dispute that their Opposition papers were due September 6, 2022, but were not filed and served until late at night on September 8, 2022. Plaintiffs’ counsel admits he inadvertently calendared the hearing date as September 22, 2022, rather than September 20, 2022, after the hearing date was advanced. (Iredale Supp. Decl. ¶¶ 4, 5.) Plaintiffs’ counsel asserts he has no objection to continuing the hearing to allow the Defendants extra time to supplement their replies. (Id. ¶ 6.)

Defendants assert they were prejudiced by the delay by reducing the time they had to reply. (Rocawhich ¶ 3.) However, the Defendants do not request additional time to supplement their reply. Any delay was mitigated by the fact that Plaintiffs improperly submitted evidentiary objections were not considered by the Court and the fact that Defendants did not request additional time to file a reply.

Accordingly, the Court addresses the motion on the merits.

1st and 3rd Causes of action: Battery

The elements of civil battery are: (1) defendant intentionally performed an act that resulted in a harmful or offensive contact with the plaintiff’s person; (2) plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused injury, damage, loss or harm to plaintiff. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 536-527.) “An officer ‘may use reasonable force to make an arrest, prevent escape or overcome resistance, and need not desist in the face of resistance.’[Citaion].” (Id. At 527.) “The question is whether a peace officer's actions were objectively reasonable based on the facts and circumstances confronting the peace officer. The test is ‘highly’ deferential to the police officer’s need to protect himself and other.’” (Id.) “A police officer’s use of deadly force is reasonable if ‘the officer had probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.’” (Id. [internal citations omitted].) Plaintiff must prove unreasonable force as an element of the tort. (Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1272.)

Defendants assert that the use of force was reasonable based on the fact that (1) the Officers’ had probable cause to believe that the Decedent posed a threat of serious physical harm to either the officers or the people near the Decedent at the time of the incident; (2) the fact that the Decedent refused to comply with the Officers multiple commands to drop the “pipe;” (3) and the fact that Decedent started to rapidly advance towards the Officers.

Plaintiffs submit sufficient evidence to show that since 2017, the standard set of equipment that a patrol officer is supposed to carry includes a taser (Iredale Decl. Ex. A [Garcia Depo. at 20:21-25-22:13; 66:1-3], Ex. B [Patel Depo. at 51:11-12.]. This fact was known to both Officers, including Patel who was a trainee on his first full day on Patrol Assignment. (Iredale Decl. Ex. B [Patel Depo. at 31-22]; Ex. C.) Officer Garcia was assigned as Officer Patel’s training officer. (Iredale Decl. Ex. B [Patel Depo. at 31-22].) On the day of the incident, Officer Garcia failed to check out a taser or activate his body worn video camera (Iredale Decl. Ex. C [Force Investigation Report] at p.0009, p.00019.) As a trainee Officer Patel was assigned a body worn video camera and the Plaintiffs fail to cite any evidence showing that Officer Patel was required to carry a second taser cartridge. (Iredale Decl. Ex. C at p. 0009.)

Plaintiffs state that Officer Garcia spoke and understood Spanish and acted unreasonably in failing to communicate with the Decedent in Spanish. However, Plaintiffs have failed to show that the Decedent spoke in Spanish to the Officers. Officer Garcia’s deposition only shows that he heard mumbling, not that he heard the decedent speak Spanish or that Officer Garcia knew that the Decedent spoke Spanish.

In his correspondence to the Board of Police Commissioners, Chief of Police Charlie Beck noted that both officers gave simultaneous non-conflicting commands but that “officers are reminded that simultaneous commands can sometimes lead to confusion and non-compliance.” (Iredale Decl. Ex. D.) The audio of the dashcam footage, along with the Force Investigation Report, confirm that a male at the scene was yelling at the Decedent to not put the pipe down while the Officers continued to yell to put the pipe down. (Opp. Ex. C [Force Investigation Report] at p. 00011, Opp. Ex. F [dash cam footage]). The same male also told officers “Shoot him. Shoot him” prior to the discharge of the taser (Id.) The dash camera footage shows that the Officers did not disperse the crowd or told the crowd to quiet down. Instead, they continued to tell the Decedent to put the pipe down in a loud voice. Officer Garcia asserts that lethal force was necessary because the Decedent refused to comply. Plaintiffs assert that the Decedent did not understand the commands being issued, this was complicated by the conflicting commands being given by someone in the crowd.

It was the opinion of the Los Angeles Chief of Police, Charlie Beck that:

“the officers made the decision to immediately deploy on the suspect, thus limiting the amount of time they would have to assess the situation or consider other tactical options. I would have preferred the officers’ plan include the consideration of the deployment and the use of a longer range of less-lethal tool, i.e. bean bag shotgun. This tool would have provided officers a greater range for dealing with weapons other than firearms.”

(Iredale Decl. Ex. D.)

The Chief of Police report also stated that Officer Garcia was required to check out a taser when on the field, that he failed to check one out at the start of his shift, that his failure to do so limited his force options, and that his failure to carry a taser “was a substantial deviation without justification from approved Department tactical training.” (Iredale Decl. Ex. D, Ex. E.)

When Officer Patel, who was on his first day on patrol assignment, fired his taser and failed to make contact with the Decedent, Officer Garcia told him to reload, only to be told by Patel that he did not have a second taser cartridge. (Iredale Decl. Ex. A [Garcia Depo. p. 131-132]; Ex. C [Force Investigation Report] at p.0009.) Officer Garcia’s failure to carry a taser, meant that the only use of force option subsequently available was lethal force.

A triable issue of material fact exists as to whether Officer Garcia’s use of force was reasonable given the fact that he apparently thought a second taser shot would be effective. Moreover, knowing he did not have a taser on him, Officer Garcia decided not to deploy the bean bag shotgun, before approaching the Decedent. The Board of Police Commissioners also found Officer Garcia’s “lethal use of force not to be objectively reasonable and was out of policy.” (Iredale Decl. Ex. E.)

Defendants assert that a failure to adhere to administrative regulations does not equate to a constitutional violation. (See Hovater v. Robinson, 1 F.3d 1063, 1068 n. 4 (10th Cir.1993); see also Billington v. Smith (9th Cir. 2002) 292 F.3d 1177, 1190 abrogated on other grounds by County of Los Angeles, Calif. v. Mendez (2017) 198 L.Ed.2d 52 [137 S.Ct. 1539] [“Our precedents do not forbid any consideration of events leading up to a shooting. But neither do they permit a plaintiff to establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided.’]

However, under California state law, courts look at the totality of the circumstances. (See Hayes v. County of San Diego (2013) 57 Cal.4th 622, 629.) State negligence law, which considers the totality of the circumstances surrounding any use of deadly force is broader than federal Fourth Amendment law, which tends to focus more narrowly on the moment when deadly force is used. (Koussaya v. City of Stockton (2020) 54 Cal.App.5th 909, 941 (citing fromHayes, supra, 57 Cal.4th at p. 639.)

Accordingly, the Court finds a triable issue of material fact exists as to whether Officer Garcia’s failure to carry a taser was such as substantial deviation from department policies that his use of force was unreasonable when lethal use of force became the only option available due to Officer Garcia’s failure to carry and/or deploy a less lethal alternative.

“The trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th¿832, 839.)

Accordingly, the Court makes no determination as to whether the Decedent was walking rapidly towards Officer Garcia when dash camera footage only shows that the decedent took three steps forward and not at a rapid pace. A triable issue of material fact exists as to whether the Decedent was rapidly approaching Officer Garcia as Defendants claim such that he posed an imminent threat, justifying the use of lethal force.

The Plaintiffs do not present evidence that Officer Patel was required to carry a second laser cartridge or that he failed to use reasonable force in deciding not to deploy the bean bag shotgun when the decision was left to his training officer. For this reasons, summary adjudication as to the first and third cause of action is GRANTED as to Officer Patel.

Summary adjudication is denied as to Officer Garcia and the City of Los Angeles.

2nd and 4th Causes of Action: Negligence

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) The California Supreme Court “has long recognized that peace officers have a duty to act reasonably when using deadly force” and that “[t]he reasonableness of an officer’s conduct is determined in light of the totality of the circumstances,” including “the tactical conduct and decisions leading up to the use of deadly force” and “extends to preshooting conduct” because “preshooting circumstances might show that an otherwise reasonable use of deadly force was in fact unreasonable.” (Hayes, supra, 57 Cal.4th at 626, 629, 631.)

Defendants assert that the use of deadly force was reasonable because despite being given multiple chances to comply, the Decedent refused to drop the pipe, and attempts to use less lethal force by use of the taser were ineffective. Therefore, at the moment of the shooting, the Decedent posed a serious threat to the safety of the Officers when he started to approach Officer Garcia and that deadly force was necessary to stop the threat.

As explained above, police shootings in California, are not analyzed in isolation, but under the totality of the circumstances, including preshooting conduct. (Hayes, supra, 57 Cal.4th at p. 629-630.) Even if Officer Garcia was not required to use the least intrusive degree of force possible, he was still required to use reasonable force. As explained above, triable issues of fact exist as to the reasonableness of Officer Garcia’s conduct in failing to carry a taser or his decision to not deploy a bead bag shotgun under the totality of the circumstances. Moreover, questions of fact exist as to the risk posed by the Decedent, whether there was a risk of substantial bodily harm, or whether he did in fact advance toward officer Garcia in a manner that suggested he posed an imminent threat of harm.

Accordingly, the motion for summary adjudication as to the second and fourth cause of action is DENIED as to the City of Los Angeles and Officer Garcia but GRANTED as to Officer Patel.

5th Cause of Action: Violation of the Bane Act

The Bane Civil Rights act provides a cause of action where “a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals” of rights under federal or state law. (Cal. Civ. Code § 52.1.) “A defendant is liable if he or she interfered with or attempted to interfere with the plaintiff's constitutional rights by the requisite threats, intimidation, or coercion.” (Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 956.)

In Cornell v. City & County of San Francisco (2017) the Appeal Court found “that the use of excessive force can be enough to satisfy the ‘threat, intimidation or coercion’ element of Section 52.1.” (Cornell v. City & County of San Francisco (2017) 17 Cal.App.5th 766, 799 (Cornell).) However, Appeal Court also found that the Bane Act imposes an additional requirement beyond the finding of a constitutional violation by finding that for the conduct to be “sufficiently egregious to warrant enhanced statutory remedies beyond tort relief,” “the egregiousness required by Section 52.1 is tested whether the circumstances indicate that the arresting officer had a specific intent to violate the arrestee’s right to freedom from unreasonable seizure.” (Id. at 800-801, citing People v. Lashley (1991) 1 Cal.App.4th 938, 949.)

Defendants assert that Plaintiffs’ 5th cause of action fails because Plaintiffs cannot prove that any of the officers had the specific intent to violate the Decedent’s rights. However, the Plaintiffs are correct in pointing out that under Cornell, “[r]eckless disregard to the ‘right at issue’ is all that was necessary” not whether “whether the appellant officers understood they were acting unlawfully[.]” (Cornell, supra, Cal.App.5th at 804.)

Accordingly, the Court finds that questions of fact exist as to whether Officer Garcia acted with reckless disregard of the Decedent’s right to be free from excessive force when he shot the Decedent or failed to carry a taser or other less lethal alternative prior to approaching the Decedent. Nevertheless, the Plaintiffs have failed to present any evidence that Officer Patel acted with reckless disregard for the rights of the Decedent.

Accordingly, summary adjudication as to the fifth cause of action is DENIED as to the City of Los Angles and Officer Garcia but GRANTED as to Officer Patel.

Conclusion

The Motion for Summary Judgment is GRANTED as to Officer Ghanshym Patel but DENIED as to the City of Los Angles and Officer Charles Garcia.

Defendants to give notice.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking protocols will be observed at the Courthouse and in the courtrooms.