Campos v. City of Merced

709 F. Supp. 2d 944, 2010 U.S. Dist. LEXIS 41447, 2010 WL 1729798

• Court: District Court, E.D. California
• Decided: April 28, 2010
• Docket: 1:08-cv-00001 GSA
• Status: Published

Opinion

ORDER REGARDING CITY OF MERCED AND MERCED POLICE OFFICER JEFFREY HORN’S MOTION FOR SUMMARY JUDGMENT

GARY S. AUSTIN, United States Magistrate Judge.

I.

DEFENDANTS CITY OF MERCED AND MERCED POLICE OFFICER JEFFREY HORN’S MOTION FOR SUMMARY JUDGMENT

A. Relevant Procedural Background

On April 6, 2007, Plaintiff Joseph Campos filed a Complaint in the Merced County Superior Court, alleging the following causes of action: (1) a violation of Title 42 of the United States Code section 1983; (2) false arrest and imprisonment; (3) interference with California civil rights; (4) intentional infliction of emotional distress; (5) negligence per se; (6) negligent infliction of emotional distress; (7) assault and battery; and (8) negligence. (See Doc. 1, Ex. A, Parts I & II.)

On December 27, 2007, Defendant City of Merced filed an Answer to the complaint. (See Doc. 1, Ex. C, Part I at 5-12.) Shortly thereafter, Defendant Merced Police Officer Jeffrey Horn filed an Answer to the Complaint. (See Doc. 1, Ex. C, Part II.)

On or about December 28, 2007, Defendants City of Merced and Officer Horn filed a Notice of Removal pursuant to Title 28 of the United States Code section 1441(b). (See Docs. 1-2.)

Following consent to magistrate jurisdiction by all parties, this matter was referred to the Honorable Gary S. Austin, Magistrate Judge, on April 14, 2008, for all further proceedings. (Doc. 14.)

Defendants filed the instant motion for summary judgment on January 29, 2010. (Docs. 40-43.) Plaintiff filed his opposition on February 12, 2010. (Docs. 45-48.) On February 19, 2010, Defendants filed a reply to Plaintiffs opposition. (Doc. 49.)

On February 22, 2010, this Court took the February 26, 2010, hearing off calendar and took the matter under submission pursuant to Local Rule 230(g). (Doc. 50.) 1

B. Summary of Undisputed Facts

In moving for summary judgment, Defendants set forth the following facts as undisputed. Plaintiff accepts these facts except where noted and discussed.

1. On the evening of July 16 through July 17, 2005, Merced Police Officer Horn was on duty assigned to bar patrol with Officer Frank Bazzar in downtown Merced.

2. The officers had been assigned bar patrol as the result of a large number of fights that had been occurring at downtown bars, including Maloney’s.

3. Plaintiff and his wife Diane Maravilla Campos arrived at Maloney’s at about 12:30 a.m.

4. About a half hour later, Plaintiff was approached on the dance floor by his sister-in-law Linda Prieto. 2

5. Ms. Prieto advised Plaintiff that his stepdaughter Sharee Sok was outside crying.

6. Plaintiff has raised Ms. Sok from the age of five. She was married to Gary Sok.

7. Plaintiff and his wife exited Maloney’s in order to check on Ms. Sok.

8. Plaintiff found Ms. Sok outside. She had a bump on her head.

9. After checking on Ms. Sok, Plaintiff began to follow his wife up the street.

10. Officers Horn and Bazzar were approaching Maloney’s. They observed a woman lying on the ground and Mr. Sok, who was yelling and throwing his arms in the air, walking northbound towards 18th Street.

11. Mr. Sok had removed his “top” shirt as he walked, leaving on a “muscle” shirt; his tattoos were visible.

12. Both officers sought to contact Mr. Sok, assuming he had been involved in a fight.

13. Officer Bazzar caught up to Mr. Sok, and Officer Horn turned back to check on Plaintiffs stepdaughter, Ms. Sok, to find out what had occurred.

14. As Officer Horn was returning to the area of Maloney’s, he encountered Plaintiff walking in his direction.

15. At the time of the incident, Plaintiff was five feet, ten inches tall and weighed approximately 220 pounds. Officer Horn is five feet, six inches tall and weighed approximately 185 pounds.

16. When Plaintiff was about twenty feet from his wife, Officer Horn placed his hand on Plaintiffs chest.

17. Officer Horn asked Plaintiff was he was doing; Plaintiff responded that his daughter had fallen down or had been assaulted.

18. Plaintiff told Officer Horn that his wife had caught up with Mr. Sok at the corner.

19. Officer Horn was not disrespectful to Plaintiff and did not use profanity.

20. Plaintiff turned and began walking toward his wife, Mr. Sok and Officer Bazzar.

21. See footnote 6, infra.

22. According to Plaintiff, Officer Horn did not say anything to him after he began walking away.

23. There was a crowd of at least seven people on the sidewalk behind Plaintiff at the time of the incident.

24. After Plaintiff took five to ten steps toward his wife, Mr. Sok and Officer Bazzar, Officer Horn tased Plaintiff from behind.

25. After Officer Horn deployed his taser against Plaintiff, the officer retreated to the street and radioed for back-up units. 3

26. Officer Horn did not use any racial slurs or otherwise indicate that Plaintiffs race played a role in the incident.

27. Plaintiff was charged with resisting arrest and assault on a police officer, 4 and voluntarily pleaded no contest to disturbing the peace arising out of the incident. 5

28. See footnote 7, infra.

Plaintiff disputed two of Defendants’ statement of undisputed facts that the Court has determined to be disputed and material. More particularly, this Court finds that, as originally numbered, fact numbers 21 6 and 28 7 are disputed.

II.

LEGAL STANDARDS

Rule 56(b) of the Federal Rules of Civil Procedure permits a “party against whom relief is sought” to seek “summary judgment on all or part of the claim.” Summary judgment is appropriate when there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. F.R.Civ.P. 56(c); Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987). The purpose of summary judgment is to “pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial.” Matsushita Elec., 475 U.S. at 586, n. 11, 106 S.Ct. 1348; International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.1985).

The moving party

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

To carry its burden of production on summary judgment, a moving party “must either produce evidence negating an essential element of the nonmoving party’s claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir.2000); see High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir.1990). “[T]o carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact.” Ms san Fire, 210 F.3d at 1102; see High Tech Gays, 895 F.2d at 574. “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

“If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial.” Nissan Fire, 210 F.3d at 1102-1103; see Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). “If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense.” Nissan Fire, 210 F.3d at 1103; see High Tech Gays, 895 F.2d at 574. “If the non-moving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment.” Nissan Fire, 210 F.3d at 1103; see Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S.Ct. 2548 (“Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make the showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”)

“But if the nonmoving party produces enough evidence to create a genuine issue of material fact, the nonmoving party defeats the motion.” Nissan Fire, 210 F.3d at 1103; see Celotex, 477 U.S. at 322, 106 S.Ct. 2548. “The amount of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties’ differing versions of the truth at trial.’ ” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir.1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 288-289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)). “The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

On summary judgment, a court must decide whether there is a “genuine issue as to any material fact,” not weigh the evidence or determine the truth of contested matters. F.R.Civ.P. 56(c); Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir.1997); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir.1984). The evidence of the party opposing summary judgment is to be believed and all reasonable inferences that may be drawn from the facts before the court must be drawn in favor of the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505; Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. The inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-252, 106 S.Ct. 2505.

Under Federal Rules of Civil Procedure, rule 56(d)(1), a summary judgment/adjudication motion, interlocutory in character, may be rendered on the issue of liability alone. “In cases that involve ... multiple causes of action, summary judgment may be proper as to some causes of action but not as to others, or as to some issues but not as to others, or as to some parties, but not as to others.” Barker v. Norman, 651 F.2d 1107, 1123 (5th Cir.1981); see also Robi v. Five Platters, Inc., 918 F.2d 1439 (9th Cir.1990); Cheng v. Commissioner Internal Revenue Service, 878 F.2d 306, 309 (9th Cir.1989). A court “may grant summary adjudication as to specific issues if it will narrow the issues for trial.” First Nat'l Ins. Co. v. F.D.I.C., 977 F.Supp. 1051, 1055 (S.D.Cal.1997).

III.

DISCUSSION

A. Plaintiff’s Claim Pursuant to Title 42 of the United States Code section 1983

Defendants argue that Officer Horn’s conduct did not result in a deprivation of Plaintiffs constitutional rights, thus, Horn is entitled to judgment as a matter of law. Defendants rely upon recent Ninth Circuit authority regarding the use of tasers. (Doc. 41 at 5-10.) Plaintiff argues generally that the declaration and deposition testimony he has submitted “are sufficient in and of themselves to defeat the motion” on the issues of excessive force and probable cause to arrest because triable issues of material fact exist. (Doc. 48 at 7-13.)

1. Probable Cause

Plaintiff argues that Officer Horn did not have probable cause to arrest him for violations of California Penal Code sections 148(a) 8 and 243(b). More particularly, Plaintiff contends a triable issue of material fact exists as to whether he “was obstructing a police officer in the performance of his duties and whether battery was committed upon Officer Horn.... ” (Doc. 48 at 6-7.) Defendants reply that even assuming Plaintiffs version of events, Officer Horn had probable cause to arrest Plaintiff. (Doc. 49 at 6.)

Initially, it is noted that “establishing a lack of probable cause ... does not establish an excessive force claim.” Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th Cir.2004). An arrestee’s resistance may support the use of force regardless of whether probable cause existed. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir.2001); see also Blanford v. Sacramento County, 406 F.3d 1110, 1115-1118 (9th Cir.2005). “Probable cause exists when the facts and circumstances within the officer’s knowledge are sufficient to cause a reasonably prudent person to believe that a crime has been committed.” Lassiter v. City of Bremerton, 556 F.3d 1049, 1053 (9th Cir.2009). The existence of probable cause may be considered as a part of the totality of circumstances affecting the excessive force analysis. See Smith v. City of Hemet, 394 F.3d 689 (9th Cir.2005).

Here, it is undisputed that Officers Horn and Bazzar were approaching Maloney’s when they observed a woman lying on the ground. Mr. Sok was nearby, yelling and throwing his arms in the air. Mr. Sok was walking northbound towards 18th Street and had removed his shirt. The officers assumed he had been in a fight. Officer Bazzar sought to catch up to Mr. Sok, and Officer Horn turned back to check on the woman. (Doc. 43, ¶¶ 10-13.) Officer Horn was returning to the area of Maloney’s when he encountered Plaintiff walking in his direction, toward Officer Bazzar and Mr. Sok. Officer Horn placed his hand on Plaintiffs chest and asked Plaintiff was he was doing. Plaintiff told the officer that his daughter had fallen down or had been assaulted, and that his wife had caught up with Mr. Sok. Plaintiff then turned and began walking toward his wife, Mr. Sok and Officer Bazzar. (Doc. 43, ¶¶ 14-20.) Officer Horn did not say anything to Plaintiff after he began walking away. A crowd of at least seven people was on the sidewalk behind Plaintiff at about this time. After Plaintiff took five to ten steps away in the direction of his wife, Mr. Sok and Officer Bazzar, Officer Horn deployed his taser. (Doc. 43, ¶¶ 22-24.)

Given the facts and circumstances available to Officer Horn, it was reasonable for the officer to believe Plaintiff was resisting, delaying or obstructing his efforts where Plaintiff walked away from Officer Horn and toward Officer Bazzar, his wife and Mr. Sok. Additionally, the Court notes there is little, if any, information regarding the alleged violation of California Penal Code section 243(b). Neither party has provided the Court with facts pertaining to such a violation, whether it involved Officer Horn or Officer Bazzar, or any other individual. “As long as the officers had some reasonable basis to believe [Plaintiff] had committed a crime, the arrest is justified as being [ ] based on probable cause. Probable cause need only exist as to any offense that could be charged under the circumstances.” Bingham v. City of Manhattan Beach, 341 F.3d 939, 952 (9th Cir.2003).

In sum, probable cause to arrest Plaintiff for a violation of California Penal Code section 148(a) existed because the facts and circumstances known to Officer Horn were sufficient to cause a reasonably prudent person to believe that a crime had been committed. Lassiter v. City of Bremerton, 556 F.3d at 1053. Defendants’ motion for summary judgment is GRANTED with regard to this claim.

2. Excessive Force/Use of Taser

Defendants assert that Officer Horn did not violate Plaintiffs Fourth Amendment right to be free from excessive force because Officer Horn’s use of the taser was reasonable in light of the reasonableness standard set forth in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) and recent Ninth Circuit decisions in Mattos v. Agarano, 590 F.3d 1082 (9th Cir.2010) and Bryan v. McPherson, 590 F.3d 767 (9th Cir.2009). (Doc. 41 at 5-12.)

Plaintiff responds that a triable issue of material fact exists with regard to the question of excessive force. He argues “that any claims of resisting arrest obstructing an officer are made moot by the excessive force used to effectuate Plaintiffs arrest.” Plaintiff asserts the improper use of a taser can constitute excessive force and that in this case “there was no justification for use of the taser.” Because Plaintiff was facing only misdemeanor charges and because “he posed no threat to any person or police officer on July 17, 2005,” the force employed was excessive. {See Doc. 48 at 11-13.)

An excessive force claim is analyzed under the Fourth Amendment’s “objective reasonableness” standard. Graham v. Connor, 490 U.S. at 388, 109 S.Ct. 1865. The inquiry “requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing government interests at stake.” Id., at 396, 109 S.Ct. 1865, internal quotation marks omitted. Because reasonableness “is not capable of precise definition or mechanical application,” the inquiry requires “attention to the facts and circumstances of each particular case, including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. These factors should be considered in relation to the amount of force used. Smith v. City of Hemet, 394 F.3d at 701. Reasonableness “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. at 396, 109 S.Ct. 1865. “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Id., at 396-97, 109 S.Ct. 1865. “Force is excessive when it is greater than reasonable under the circumstances.” Santos v. Gates, 287 F.3d 846, 854 (9th Cir.2002).

“Determination of a reasonableness range requires consideration of the totality of the circumstances, including whether a warning was given, and the availability of alternative methods of capturing and subduing a suspect. The fact that a suspect does not threaten the officer does not shield him from the use of force.” Brooks v. City of Seattle, 599 F.3d 1018 (9th Cir.2010), internal citations omitted.

a. Quantum of Force

The gravity of the particular intrusion on Fourth Amendment interests is evaluated by analyzing the type and amount of force inflicted. Miller v. Clark County, 340 F.3d 959, 964 (9th Cir.2003), quoting Graham v. Connor, 490 U.S. at 396, 109 S.Ct. 1865.

Here, Defendants acknowledge that use of a taser stun represents a serious intrusion of Plaintiffs Fourth Amendment interests. (Doc. 41 at 10.) However, they contend Officer Horn’s use of the taser in this circumstance was reasonable.

b. The Graham Factors

i. Severity of the Crime

Plaintiff was arrested because he walked away from Officer Horn, after advising Officer Horn that his daughter had fallen down or had been assaulted. A crowd of at least seven others was on the sidewalk behind Plaintiff. After Plaintiff took five to ten steps in the direction of his wife, son-in-law and Officer Bazzar, Officer Horn deployed his taser. Plaintiff was ultimately cited for a violation of California Penal Code sections 148 (obstruction of justice) and 243(b) (battery on a peace officer). 9

Obstructing an officer is not a serious crime. Mattos v. Agarano, 590 F.3d at 1087-88; Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir.2007). Nevertheless, the Ninth Circuit held that in certain circumstances, obstruction of a police officer can justify the use of a Taser. Mattos, 590 F.3d at 1087-88. Mattos involved law enforcement response to a 911 call concerning an altercation between Jayzel and Troy Mattos. Several Maui police officers responded to the call and found Troy sitting at the top of the stairs just outside the front door of the residence. It appeared he had been drinking and was intoxicated. One of the officers asked Troy what had happened. Troy said he and his wife had a verbal altercation and denied any physical contact occurred. Troy was asked to have Jayzel come out and speak to the officers so they could confirm she was safe. Id., at 1084. Troy claimed one of the officers followed him inside. He became upset, began yelling and insisted the officer leave the house. Jayzel agreed to talk to the officers outside and asked Troy to calm down so that the children would not wake up. As an officer entered the hallway to arrest Troy, Jayzel asked why Troy was being arrested. She again asked officers why Troy was being arrested and also asked Troy to calm down and leave the house. Id., at 1084-85. At this point, Jayzel was cornered between Officer Agarano and Troy, with Officer Aikala beside her. When Aikala moved to arrest Troy, he bumped against Jayzel. Aikala asked Jayzel if she was touching an officer. Jayzel was scared and again implored everyone to calm down. She then raised her hands at chest level, palms out, to keep the officer at arm’s length. Aikala then tased Jayzel. Troy and Jayzel were arrested and charged. Eventually, all charges were dropped against the Mattoses. Id., at 1085.

The district court granted summary judgment in favor of defendants as to all claims save for a claim of excessive force under the Fourth Amendment based on the officer’s use of a taser on Jayzel. The district court found that there were questions of material fact regarding whether the use of the Taser was constitutionally reasonable. Defendants appealed. Id., at 1085. Calling the question “a close one,” the Ninth Circuit concluded the officers did not use excessive force in violation of the Fourth Amendment. Id., at 1086. The appellate court held that Jayzel’s

contact with Aikala appears to have been incidental and due mainly to the cramped quarters in which the Mattoses and the officers found themselves rather than to any intention on Jayzel’s part to interfere with the officers. Additionally, however, we must take into account Troy’s actions. He was belligerent and appeared to be intoxicated. As explained by the 911 call, Troy’s conduct that evening was a threat to Jayzel, and in his intoxicated condition, Troy posed a threat to the officers as well. Thus, Jayzel herself may have posed little threat, but any interference she caused only heightened the danger Troy represented. As the district court found, Jayzel’s actions ‘exacerbated an already tense, and rapidly escalating situation.’ On balance then, Jayzel’s actions were not a serious crime ... but carried the potential for a far more serious crime-assault on an officer.

Id., at 1087-88.

In Bryan v. McPherson, 590 F.3d 767 (9th Cir.2009), the Court was presented with a somewhat different set of facts that involved the use of a taser. Plaintiff Carl Bryan had already experienced a very trying situation involving a set of keys that went missing in Ventura County that required he travel to Los Angeles to retrieve them. While in Los Angeles, Bryan was pulled over by a California Highway Patrol (“CHP”) officer for speeding. He became very upset at this turn of events, and was crying and moping. Eventually nearing their final destination, Bryan and his younger brother crossed the Coronado Bridge toward their parents’ home in Coronado. However, Bryan was stopped at an intersection because he was not wearing his seatbelt. He realized immediately that he had forgotten to refasten his seat belt following his earlier encounter with the CHP officer. Bryan complied with Officer McPherson’s requests that he turn down his radio and pull over to the curb, but he did not respond to the officer’s inquiry about whether he knew why he had been stopped. Bryan was becoming increasingly angry with himself over the possibility of a second ticket, and once he pulled his car to the curb as directed, “he hit his steering wheel and yelled expletives to himself.” Id., at 770-71. Bryan exited the car in an agitated state, “yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes.” Id., at 771. He was standing twenty to twenty-five feet from Officer McPherson. The officer testified that he instructed the Bryan to stay in the car, but Bryan did not hear such an instruction. Officer McPherson said Bryan “took ‘one step’ toward him,” but Bryan denied taking any step. Without giving a warning, Officer McPherson deployed his taser. Bryan fell to the ground, suffering facial contusions and fracturing four teeth. Id., at 771.

On summary judgment, the district court determined that Officer McPherson was not entitled to qualified immunity, after having granted relief to the City of Coronado and the Coronado Police Department. That court found that a reasonable jury could find that Bryan was not an immediate threat, and thus the officer’s use of force was unnecessary. Id., at 771-72. The Ninth Circuit, in assessing the severity of Bryan’s crime, held as follows:

The severity of Bryan’s purported offenses provide little, if any, basis for Officer McPherson’s use of physical force. It is undisputed that Bryan’s initial crime was a mere traffic infraction— failing to wear a seat belt-punishable by a fine.... Officer McPherson also claims that he reasonably believed Bryan had committed three misdemeanors — resisting a police officer, failure to comply with a lawful order, and using or being under the influence of any controlled substance — and that these constitute serious and dangerous criminal activity. We disagree with Officer McPherson’s assessment. While the commission of a misdemeanor is not to be taken lightly, it militates against finding the force used to effect an arrest reasonable where the suspect was also nonviolent and posed no threat to the safety of the officers or others. None of the offenses for which Bryan was cited in inherently dangerous or violent, and as already discussed, Bryan posed little to no safety threat. Therefore, there was no substantial government interest in using significant force to effect Bryan’s arrest for these misdemeanor violations that even the State of California has determined are minor.

Bryan v. McPherson, 590 F.3d at 777, internal citations and quotation marks omitted.

There are significant differences between the facts of this case and those at work in both Mottos and Bryan. While it is much plainer in Bryan that the officer’s use of the taser was unreasonable, here the undisputed facts differ enough (as discussed more fully infra) from the circumstances present in Mottos that resulted in a finding that the officer’s use of force was reasonable. For example, Mottos involved a 911 call that identified the parties involved in a domestic violence matter, Troy’s intoxication was clear and the situation was potentially volatile. Notably too, like Bryan, this ease involves a lack of warning.

Considering Plaintiffs evidence and all reasonable inferences drawn therefrom, the evidence weighs against the government’s interest in the use of force,

ii. Threat Posed to Officers or Others

This is the most significant Graham factor. Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir.1994). “A simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern.” Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir.2001). “A desire to resolve quickly a potentially dangerous situation is not the type of governmental interest that, standing alone, justifies the use of force that may cause serious injury.” Id.

Officer Horn and Officer Bazzar were on foot patrol in downtown Merced when they saw a woman lying on the ground outside Maloney’s bar. A man nearby was yelling and throwing his arms in the air, walking northbound towards 18th Street. (Doc. 43, ¶¶ 1 & 10.) Officer Bazzar caught up to the man, later identified as Plaintiffs son-in-law Mr. Sok, and Officer Horn turned to check on the woman. Officer Horn encountered Plaintiff walking toward him. The officer stopped Plaintiff by placing a hand on his chest. The officer asked Plaintiff what he was doing, and Plaintiff responded that his daughter had fallen down or had been assaulted. (Doc. 43, ¶¶ 13-14, 16-17.) After telling Officer Horn that his wife had caught up with Mr. Sok at the corner, Plaintiff began walking in that direction. (Doc. 43, ¶¶ 18 & 20.) A crowd of people was behind Plaintiff on the sidewalk. When Plaintiff had taken five to ten steps in the direction of Officer Bazzar, Mr. Sok and his wife, Officer Horn deployed his Taser at Plaintiff from behind. (Doc. 43, ¶¶ 23-25.)

Plaintiff may have posed a threat to the officers and/or the crowd. This situation is not one involving merely a statement by Officer Horn that he feared for his safety; rather, objective factors justify the officer’s concern. Deorle v. Rutherford, 272 F.3d at 1281. Officer Horn and Officer Bazzar had come upon an altercation of some kind. The officers saw a woman lying on the ground, and a young man angrily walking away. Officer Horn encountered Plaintiff between Mahoney’swhere the woman was seen lying on the ground-and the area where Officer Bazzar encountered Mr. Sok. After stopping for Officer Horn and answering his question, Plaintiff took five to ten steps away from Officer Horn with the intent of reaching the area of his wife, Mr. Sok and Officer Bazzar. A crowd consisting of about seven members of the public was nearby.

Accordingly, these objective factors weigh in favor of the government’s interest in the use of force.

iii. Resistance to Arrest and Risk of Flight

Here the Court considers whether the “suspect was actively resisting arrest or attempting to evade arrest by flight.” Miller v. Clark County, 340 F.3d 959, 964 (9th Cir.2003). In Bryan v. McPherson, the Ninth Circuit stated that

“[rjesistance,” however, should not be understood as a binary state, with resistance being either completely passive or active. Rather, it runs the gamut from the purely passive protestor who simply refuses to stand, to the individual who is physically assaulting the officer. We must eschew ultimately unhelpful blanket labels and evaluate the nature of any resistance in light of the actual facts of the case. For example, in Smith v. City of Hemet, we confronted an individual who “continually ignored” officer commands to remove his hands from his pockets and to not re-enter his home. In addition, he “physically resisted ... for only a brief time.” [Citation.] Although Smith was not perfectly passive in the encounter, we stated that it did not appear “that Smith’s resistance was particularly bellicose” and thus found that this factor provided little support for a use of significant force. [Citation.] Even purely passive resistance can support the use of some force, but the level of force an individual’s resistance will support is dependent on the factual circumstances underlying that resistance.

Bryan v. McPherson, 590 F.3d at 778-79.

On Plaintiffs version of the facts, Plaintiff stopped when Officer Horn placed his hand on his chest, he answered Officer Horn’s inquiry, and then he turned to proceed in the direction of his wife. Officer Horn did not say anything further, Plaintiff took five to ten steps, and then Officer Horn deployed his taser. These facts do not establish active resistance to arrest and there exists a genuine dispute as to whether or not Plaintiff was attempting to evade or resist arrest by walking away from Officer Horn, particularly where Horn gave no warning prior to deploying the taser. Thus, this third Graham factor tips in favor of Plaintiff.

c. Totality of the Circumstances

A consideration of the totality of circumstances may look to factors other than those stated in Graham v. Connor. See Forrester v. City of San Diego, 25 F.3d 804, 806 n. 2 (9th Cir.1994). According to Plaintiff, Officer Horn made no statement whatsoever after Plaintiff began walking away. (See Doc. 43, ¶ 21.) “[P]olice officers normally provide such warnings where feasible, even when the force is less than deadly, and that the failure to give such a warning is a factor to consider.” Bryan v. McPherson, 590 F.3d at 779.

In sum, given the facts viewed in the light most favorable to Plaintiff, there exists a genuine issue as to the reasonableness of Officer Horn’s use of the taser. Matsushita Elec., 475 U.S. at 586, 106 S.Ct. 1348. Accordingly, the motion is DENIED as to this cause of action.

3. Qualified Immunity

Qualified immunity shields government officials “from liability from civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The “concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made,” and that it is “often difficult for an officer to determine how the relevant legal doctrine will apply to the factual situation that he faces.” Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049 (9th Cir.2002).

First, a court must determine whether the facts alleged or shown by the plaintiff establish a constitutional violation. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If the court determines a constitutional violation did not occur, further analysis is unnecessary and qualified immunity will protect defendant from liability. Id. If however the question is answered affirmatively, the court asks whether the right at issue was clearly established at the time. Id. “If the law did not put the [defendant] on notice that [his] conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate.” Id., at 202, 121 S.Ct. 2151. The court has discretion to consider either question first. Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 818-19, 172 L.Ed.2d 565 (2009) (overruling holding in Saucier that two-step inquiry must be conducted in that order); McSherry v. City of Long Beach, 560 F.3d 1125, 1130 (9th Cir.2009).

Plaintiff has presented evidence that he stopped and responded to Officer Horn’s inquiry and that after he turned toward his wife, Mr. Sok and Officer Bazzar, Officer Horn did not say anything further to him before eventually deploying his taser. Taken in the light most favorable to Plaintiff, these facts are sufficient to show that Officer Horn violated Plaintiffs rights under the Fourth Amendment.

Next, this Court considers whether Officer Horn’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727. Defendants argue that “Officer Horn encountered a potentially explosive situation that, to his knowledge, involved domestic violence” and Horn’s reasonable assumption “that Plaintiff had been consuming alcohol.” As a result, Defendants argue, the instant matter is more analogous to the situation in Mattos wherein the defendant officers were determined to be entitled to qualified immunity. (Doc. 41 at 17.)

The Court is not persuaded by Defendants’ argument on this issue. In Mattos v. Agarano, the Ninth Circuit held that

[bjefore August 23, 2006, when the confrontation occurred, neither our circuit nor the Supreme Court had decided an excessive force case involving the use of a Taser; in fact, only the Sixth, Tenth, and Eleven Circuits even addressed such cases. [Citations.] In all three cases, the courts held that the use of a Taser was constitutionally permissible. We note, however, that the Eleventh Circuit has recently rejected qualified immunity for officers who used a Taser to shock a man (who appeared mentally unstable) eight to twelve times before making any attempt to arrest him. [Citation.] The court found that although the initial use of the Taser may have been justified, the officers’ repeated use of the Taser was unreasonable and excessive under the Fourth Amendment. [Citation.] More recently, in Bryan v. McPherson [ ], we rejected qualified immunity for an officer who used a Taser on a driver during a traffic stop for a seatbelt infraction____ We determined that even though the driver’s behavior was bizarre, it posed no threat to the officer and did not indicate that the driver was attempting to flee. We denied the officer qualified immunity, holding that his use of force was excessive and unreasonable.

... this is simply not a case in which the officers’ conduct was so “patently violative” of Jayzel Mattos’s constitutional rights “that reasonable officials would know without guidance from the courts that the action was unconstitutional.” [Citation.] The officers used the Taser only once in a domestic violence situation that could have quickly become more dangerous to everyone involved. Because claims of excessive force are analyzed under a Fourth Amendment reasonableness standard using the factors delineated by the Supreme Court in Graham v. Connor [], nothing in our opinion today prevents another panel from deciding, with the benefit of a more complete and more substantial evidentiary record than the one we have in this case, that the use of a Taser constituted excessive force.

Mattos v. Agarano, 590 F.3d at 1089-90.

Unlike Mattos, where a 911 caller identified Jayzel and Troy Mattos as involved in a domestic disturbance, Officer Horn was initially uncertain of any party’s involvement in an altercation that resulted in a woman lying on the ground outside Mahoney’s bar. However, after Officer Horn spoke with Plaintiff, he was aware that either Plaintiffs daughter had fallen down or had been assaulted. Also, unlike Mattos, there are no facts indicating that Officer Horn had attempted to arrest Plaintiff, or any other party, before deploying his Taser. While this case involves one application of the Taser, the undisputed facts do not speak to any indication of a warning by Officer Horn.

Officer Horn is not entitled to summary judgment on the issue of qualified immunity. A reasonable jury, if it accepts Plaintiffs version of the events, could find that the decision by Horn to use any force to effect the arrest violated the excessive force clause of the Fourth Amendment. Accordingly, the motion is DENIED on this basis.

B. Plaintiff’s Due Process and Equal Protection Claims

Plaintiffs complaint asserts violations of his Fourteenth Amendment rights “to be free from summary punishment without due process, and to equal protection of the laws.” (Doc. 1, Ex. A, ¶ 24.) Defendants move for summary judgment on these claims as “Plaintiff was not ‘punished’ at the scene of the incident, but was seized.” (Doc. 41 at 13-14.) Further, Defendants assert the Complaint fails to “state the basis for” the equal protection violation, and Plaintiff cannot produce evidence of discrimination. (Doc. 41 at 14.)

Plaintiff fails to address Defendants’ argument in his opposition. At no point does Plaintiff reference or discuss any violation relative to due process or equal protection. {See Doc. 48.)

“To succeed on a § 1983 claim [based on the equal protection clause of the Fourteenth Amendment], the plaintiffs must prove that the defendants acted in a discriminatory manner and that the discrimination was intentional.” Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 739 (9th Cir.2000); see also Draper v. Reynolds, 369 F.3d 1270, 1278 n. 14 (9th Cir.), cert. denied, 543 U.S. 988, 125 S.Ct. 507, 160 L.Ed.2d 373 (2004) (“To state an equal protection claim, [plaintiff] must allege that ‘through state action, similarly situated persons have been treated disparately’ ... and put forth evidence that [defendant’s] actions were motivated by race”).

It is undisputed that Officer Horn did not use any racial slurs or otherwise indicate that Plaintiffs race played a role in the incident; in accord is Plaintiffs own deposition testimony. (Doc. 43, ¶ 26.) Plaintiffs separate statement of facts includes the fact he “is Hispanic and is of Mexican ancestry” (Doc. 43, ¶ 29), but, as indicated above, he fails to explain the relevance of this fact in any argument. {See also Docs. 45 & 47.) No evidence has been disclosed from which it may be inferred that any Defendant discriminated against Plaintiff or that similarly situated persons have been treated disparately.

Plaintiffs reference to his right “to be free from summary punishment without due process” (Doc. 1, ¶ 24) is more properly considered under the Fourth Amendment and its reasonableness standard. “Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide ....” Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), internal quotation marks & citation omitted.

To the extent Plaintiffs first cause of action is based on a violation of either his due process or equal protection rights, Defendants’ motion is GRANTED.

C. Plaintiff’s Conviction Pursuant to California Penal Code section 415

Plaintiff pled no contest to a violation of California Penal Code section 415(1). (Doc. 45, ¶ 10 & Exs. 6 & 7.) Defendants contend Plaintiffs conviction bars his claim for damages under Title 42 of the United States Code section 1983. (Doc. 41 at 14-15.) Plaintiff opposes Defendants’ position, indicating he is seeking to expunge his conviction and that his conviction under California Penal Code section 415 “does not arise from the same circumstances ----” (Doc. 48 at 14-15.) In reply, Defendants assert that a dismissal of a conviction pursuant to California Penal Code section 1203.4 does not render a conviction a legal nullity, and therefore, such a dismissal would not “negate[ ] the operation of the Heck v. Humphrey doctrine to bar” Plaintiffs civil rights claim. (Doc. 49 at 7-8.)

California Penal Code section 415(1) provides as follows:

Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hun dred dollars ($400), or both such imprisonment and fine:

(1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight.

Federal courts will not entertain claims seeking money damages under Title 42 of the United States Code section 1983 if doing so will require the court to rule on issues in dispute in a state court criminal proceeding. See Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Under the Supreme Court’s holding in Heck, a section 1983 action “that would call into question the lawfulness of a plaintiffs conviction or confinement is not cognizable, and does not, therefore, accrue until and unless the plaintiff can prove that his conviction or sentence has been reversed on direct appeal.” Harvey v. Waldron, 210 F.3d 1008, 1014-16 (9th Cir.2000) (citing Heck, 512 U.S. at 486-87, 114 S.Ct. 2364). The Ninth Circuit suggested in Harvey that the Heck rule applies to pending as well as outstanding convictions, id. at 1014, but this application of Heck has been explicitly overruled by the Supreme Court in Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 1097-98, 166 L.Ed.2d 973 (2007), which held that Heck only bars 1983 claims that would impugn criminal convictions that have actually been obtained and are outstanding. Ordinarily, Heck would not bar a court from hearing a claim for excessive force because such claims do not ordinarily impugn the underlying conviction. Smithart v. Towery, 79 F.3d 951, 952-53 (9th Cir.1996).

Here, Plaintiff has moved for dismissal pursuant to California Penal Code section 1203.4. (Doc. 45, Ex. 9.) However, while such a petition for expungement does act to relieve a defendant from most disabilities and penalties associated with the offense, it does not nullify the conviction. See People v. Vasquez, 25 Cal.4th 1225, 1230, 108 Cal.Rptr.2d 610, 25 P.3d 1090 (Cal.2001); United States v. Hayden, 255 F.3d 768 (9th Cir.2001) (a conviction “set aside” by Cal. Pen.Code § 1203.4 just releases the defendant “from all penalties and disabilities resulting from the offense,” but does not invalidate the conviction). Rather, the final judgment of conviction is a fact which cannot be nullified even where a conviction is set aside pursuant to California Penal Code section 1203.4. Id. Whether or not Plaintiffs petition was granted, 10 Heck will act to bar Plaintiffs claims regarding his arrest or the probable cause related thereto, but it will not preclude him from arguing that the police used excessive force. See Smithart v. Towery, 79 F.3d at 951.

Therefore, the Heck doctrine does not bar Plaintiffs claim regarding excessive force because such a claim does not impugn the underlying conviction pursuant to California Penal Code section 415(1).

D. The Claim Against the City of Merced

Defendants move for summary judgment on Plaintiffs first claim for relief pursuant to Title 42 of the United States Code section 1983 alleging Defendant City of Merced is liable because the harms alleged by Plaintiff are the direct result of policies, procedures and established customs of the City. (Doc. 41 at 17-19.) Plaintiff fails to address Defendants’ argument on this issue. {See Doc. 48.)

Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) authorizes direct suits against local government units under section 1983 where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Monell, at 690-91, 98 S.Ct. 2018. “Moreover, ... local governments ... may be sued for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Id. Since “Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort ... a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under [section] 1983 on a respondeat superior theory.” Id., at 691, 98 S.Ct. 2018. A municipality will be liable under section 1983 only if “the municipality itself causes the constitutional violation at issue.” City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). In order to assert a Monell claim and impose liability, a plaintiff must establish: (1) a violation of constitutional rights occurred; (2) the existence of a municipal policy or custom; (3) that this policy “amounts to deliberate indifference” to the plaintiffs constitutional right; and (4) that the policy is the “moving force behind the constitutional violation.” Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir.1992) (quoting City of Canton v. Harris, 489 U.S. at 389-91, 109 S.Ct. 1197).

Specifically, Defendants assert that Officer Horn did not deprive Plaintiff of any constitutional right. Moreover, Defendants contend Plaintiff “has produced no evidence that the City’s investigation and supervision policies or practices amounted to ‘deliberate indifference’ to Plaintiffs constitutional rights.” (Doc. 41 at 19.) The Court has examined Plaintiffs opposition to Defendants’ motion for summary judgment and can find no argument on this issue. Thus, it appears Plaintiff has conceded the issue.

When a moving party alleges the absence of evidence to establish a material issue of fact, the non-moving party is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 586 n. 11, 106 S.Ct. 1348. Plaintiff has the burden to come forward with specific facts to support his Monell claims. Mattos v. Agarano, 590 F.3d at 1085. Therefore, a successful Monell claim requires that Plaintiff show that an official policy permitted or encouraged the constitutional violation at issue. See Crowe v. County of San Diego, 593 F.3d 841, 880 (9th Cir.2010). Because Plaintiff has tendered no evidence of the existence of any policy or established practice that is fairly traceable to the alleged harm, summary judgment will be GRANTED as to Plaintiffs first claim for relief against the City of Merced.

E. The State Law Claims

1. False Arrest and Imprisonment

In his second cause of action, Plaintiff asserted false arrest and imprisonment. (Doc. 1 at ¶¶ 30-37.) Defendants argue that because Office Horn could have reasonably believed Plaintiff intended to obstruct Officer Bazzar’s efforts, “or escalate the danger of the situation, Officer Horn possessed sufficient probable cause to arrest Plaintiff,” and thus Defendants are entitled to summary judgment on Plaintiffs second cause of action. (Doc. 41 at 19-20.)

California Penal Code section 847 provides, in pertinent part:

(b) There shall be no civil liability on the part of, and no cause of action shall arise against, any peace officer or federal criminal investigator or law enforcement officer described in subdivision (a) or (d) of Section 830.8, acting within the scope of his or her authority, for false arrest or false imprisonment arising out of any arrest under any of the following circumstances:

(1) The arrest was lawful, or the peace officer, at the time of the arrest, had reasonable cause to believe the arrest was lawful.

Under California law, a law enforcement officer is protected from liability for false arrest where the officer, acting within the scope of his or her authority, either (1) effects a lawful arrest or (2) has reasonable cause to believe the arrest is lawful. Galvin v. Hay, 374 F.3d 739 (9th Cir.2004).

This Court has already found that Officer Horn had probable cause to arrest Plaintiff. Thus, Defendants’ motion for summary judgment on Plaintiffs second cause of action for false arrest and imprisonment is GRANTED.

2. Assault and Battery

Plaintiff alleged assault and battery in his seventh cause of action as follows:

As a separate and distinct SEVENTH CAUSE OF ACTION, Plaintiff CAMPOS complains of Defendant CITY OF MERCED and Defendant JEFFREY HORN, and each of them, and alleges:

Defendant HORN illegally and without legal justification tasered, assaulted and used excessive force upon [P]laintiff CAMPOS. Said [Defendant HORN without just or legal cause[] viciously attacked [P]laintiff CAMPOS with his night stick. All the foregoing was done under the color of law.

As a proximate result of the tasering, assault and battery upon [P]laintiff CAMPOS by said defendants, and each of them, plaintiff CAMPOS has sustained severe physical, emotional and pecuniary loss as a result of the injuries.

(Doc. 1 at ¶¶ 77-80.)

Defendants note “Plaintiff has produced no evidence that Officer Horn used his night stick against Plaintiff ...” and thus the only basis for the cause of action is the use of the taser. Defendants are correct on this point.

Defendants argue that California law provides a police officer is entitled to use reasonable force in making an arrest, preventing flight or overcoming resistance. The applicable standard is a reasonable one and is highly deferential to the officer’s need to protect himself and others. Defendants argue that because “Officer Horn’s use of force was reasonable under the circumstances,” he is entitled to judgment as a matter of law. (Doc. 41 at 20-21.)

In order to prevail on a claim of battery against a police officer, the plaintiff bears the burden of proving the officer used unreasonable force. A police officer in California may use reasonable force to make an arrest, prevent escape or overcome resistance, and need not desist in the face of resistance. The standard jury instruction in police battery actions recognizes this: A peace officer who uses unreasonable or excessive force in making a lawful arrest or detention commits a battery upon the person being arrested or detained as to such excessive force.’ (BAJI No. 7.54.)

Munoz v. City of Union City, 120 Cal.App.4th 1077, 1102, 16 Cal.Rptr.3d 521 (2004), internal quotation marks & citations omitted. Because this Court has found that Plaintiff may proceed with his first cause of action as it relates to the use of excessive force by Officer Horn, Defendants’ motion for summary judgment as to Plaintiffs seventh cause of action is DENIED.

Defendants argue that the City is entitled to immunity from liability under California Government Code section 815.2. (Doc. 41 at 20-21.) That section provides: “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” This provision clearly allows for vicarious liability of a public entity when one of its police officers uses excessive force in making an arrest. See Mary M. v. City of Los Angeles, 54 Cal.3d 202, 285 Cal.Rptr. 99, 814 P.2d 1341, 1348 (1991) (“[A] governmental entity can be held vicariously liable when a police officer acting in the course and scope of employment uses excessive force or engages in assaultive conduct”); see also Blankenhorn v. City of Orange, 485 F.3d 463, 488 (9th Cir.2007). Because the City of Merced does not claim that Officer Horn was acting outside the scope of his duties, and Officer Horn is not entitled to summary judgment on the use of unreasonable force, the City is not entitled to immunity from liability under California Government Code section 815.2.

3. Interference with California Civil Rights

Plaintiffs third cause of action concerns an interference with California Civil Rights and specifically references California Civil Code sections 43, 51 and 52.1. Paragraph 42 states that Officer Horn “pursued said course of conduct intentionally, maliciously, fraudulently, in conscious disregard of the rights of Plaintiff CAMPOS and/or with reckless disregard of the likelihood of causing serious injury to Plaintiff.” (Doc. 1, ¶¶ 38-45.) Defendants argue “there is no evidence that Officer Horn discriminated against Plaintiff based on his race or any other such characteristic.” (Doc. 41 at 21-22.)

California Civil Code section 43 provides:

Besides the personal rights mentioned or recognized in the Government Code, every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations.

Section 51 of the California Civil Code, also known as the Unruh Civil Rights Act, provides, in pertinent part:

(b) All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

Lastly, California Civil Code section 52.1 states, in relevant part:

(a) If 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 secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured. An action brought by the Attorney General, any district attorney, or any city attorney may also seek a civil penalty of twenty-five thousand dollars ($25,000). If this civil penalty is requested, it shall be assessed individually against each person who is determined to have violated this section and the penalty shall be awarded to each individual whose rights under this section are determined to have been violated.

(b) Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured.

In County of Los Angeles v. Superior Court, 181 Cal.App.4th 218, 104 Cal. Rptr.3d 230 (2d Dist.2009), the court stated:

Civil Code section 52.1 is part of a comprehensive legislation designed to combat hate crimes. The statutory language fulfills that purpose by providing remedies for certain misconduct that interferes with any right secured by the Constitution or laws of the United States ... or of this state .... Civil Code section 52.1 does not require state action but applies to private as well as government actors. Also, under section 52. 1, liability is limited to violations of constitutional or statutory rights accomplished by threats, intimidation, or coercion.

Id., at 227-28, 104 Cal.Rptr.3d 230, footnote, internal quotation marks and citations omitted. Plaintiff does not have to be a member of a protected class in order to sustain a civil rights claim under California Civil Code section 52.1. See Venegas v. County of Los Angeles, 32 Cal.4th 820, 11 Cal.Rptr.3d 692, 87 P.3d 1, 14 (2004).

Here, because a material dispute exists with regard to Officer Horn’s use of force in the form of a taser, summary judgment on Plaintiffs third cause of action is not proper. Should a jury find excessive force was employed against Plaintiff, the jury may also find that by using such force Officer Horn committed a violent act against Plaintiff in violation of his California constitutional rights.

Thus, summary judgment for Defendants is DENIED with respect to the Plaintiffs third cause of action.

4. Intentional Infliction of Emotional Distress

Plaintiffs fourth cause of action alleged intentional infliction of emotional distress. (Doc. 1, ¶¶ 46-53.) Defendants seek summary judgment because “Officer Horn had reasonable suspicion and probable cause to detain and arrest Plaintiff, and used reasonable force in doing so.” (Doc. 41 at 22.)

The elements of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendants with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965 1001, 25 Cal.Rptr.2d 550, 863 P.2d 795 (1993); Delfino v. Agilent Technologies, Inc., 145 Cal.App.4th 790, 808, 52 Cal.Rptr.3d 376 (2006). For conduct to be extreme and outrageous, it must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Potter, 6 Cal.4th 965 at 1001, 25 Cal.Rptr.2d 550, 863 P.2d 795; Delfino, 145 Cal.App.4th at 809, 52 Cal.Rptr.3d 376.

Here, the Court has determined that Plaintiff may proceed with his claim of excessive force against Officer Horn, and therefore a trier of fact needs to determine whether Officer Horn’s actions constituted extreme and outrageous conduct. Therefore, Defendants’ motion for summary judgment on Plaintiffs fourth cause of action for intentional infliction of emotional distress is DENIED. See Blankenhorn v. City of Orange, 485 F.3d at 487 n. 17.

5. Negligence Per Se

The Fifth Cause of Action, captioned “Negligence Per Se,” alleges that Defendants “owed a duty of care to Plaintiff CAMPOS not to falsely arrest and imprison [him] as set forth in the Fourth Amendment ..., Article One, Sections One and Seven of the California Constitution, and California Civil Code sections 43 and 52.1” and that the alleged conduct of Defendants constitutes negligence per se in that Defendants “breached the statutory standards set forth” in these constitutional and statutory provisions. (Doc. 1, ¶¶ 54-62.)

“Negligence per se” is an evidentiary doctrine codified at Evidence Code section 669. Under subdivision (a) of this section, the doctrine creates a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.

Quiroz v. Seventh Ave. Center, 140 Cal.App.4th 1256, 1285, 45 Cal.Rptr.3d 222 (2006). “[T]he doctrine of negligence per se does not establish tort liability. Rather, it merely codifies the rule that a presumption of negligence arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm that the plaintiff suffered as a result of the violation.” Id. “Even if the four requirements of Evidence code section 669, subdivision (a), are satisfied, this alone does not entitle a plaintiff to a presumption of negligence in the absence of an underlying negligence action.” Id. “Accordingly, to apply negligence per se is not to state an independent cause of action. The doctrine does not provide a private right of action for violation of a statute.” Id. Negligence per se is an evidentiary vehicle only.

Defendants’ motion is GRANTED as to Plaintiffs fifth cause of action.

6. Negligent Infliction of Emotional Distress and Negligence

Defendants move for summary judgment on Plaintiffs sixth cause of action for negligent infliction of emotional distress and negligence. They contend that because this claim is derivative of Plaintiffs other claims, and because Officer Horn acted reasonably, they are entitled to summary adjudication. (Doc. 41 at 23-24.) Plaintiff has failed to address Defendants’ argument in any way. (See Doc. 48.)

There is no independent tort of negligent infliction of emotional distress. Potter v. Firestone Tire & Rubber Co., 6 Cal.4th at 984, 25 Cal.Rptr.2d 550, 863 P.2d 795. Rather, the tort is negligence. Id.

In California, the elements of a negligence cause of action are the exis tence of a legal duty of care, breach of that duty, and the breach is the proximate cause of the resulting injury. Ladd v. County of San Mateo, 12 Cal.4th 913, 917-18, 50 Cal.Rptr.2d 309, 911 P.2d 496 (1996); Mendoza v. City of Los Angeles, 66 Cal.App.4th 1333, 1339, 78 Cal.Rptr.2d 525 (1998). Duty is the expression of a court’s conclusion that a particular plaintiff is entitled to protection. Rowland v. Christian, 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561 (1968); Mendoza v. City of Los Angeles, 66 Cal.App.4th at 1339, 78 Cal.Rptr.2d 525.

To the degree Plaintiffs negligence claim arises from his claim concerning the excessive force employed by Officer Horn, Defendants are not entitled to summary judgment on this claim. Thus, the motion is DENIED.

F. Punitive Damages

Plaintiffs complaint prays for punitive damages against Officer Horn in connection with the first, second, third, fourth and fifth causes of action. (See Doc. 1.) Defendants contend they are entitled to summary judgment because Plaintiff has not produced any evidence “that Officer Horn harbored an evil intent, or that his acts were reprehensible or fraudulent.” (Doe. 41 at 24-25.) Plaintiff briefly replies that “[tjhere are reasonable inferences that can be drawn from the evidence to support Plaintiffs claims of punitive damages .... ” (Doc. 48 at 16-17.)

Punitive damages may be assessed in a Section 1983 action “when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). Under California law, punitive damages are allowed if the plaintiff

... has proved by clear and convincing evidence that [the named defendant] engaged in that conduct with malice, oppression, or fraud....

“Malice” means that [the named defendant] acted with into to cause injury or that [the named defendant’s] conduct was despicable and was done with a willful and knowing disregard of the rights or safety of another. A person acts with knowing disregard when he or she is aware of the probable dangerous consequences of his or her conduct and deliberately fails to avoid those consequences.

“Oppression” means that [the named defendant’s conduct was despicable and subjected [the plaintiff] to cruel and unjust hardship in knowing disregard of [his] rights.

“Despicable conduct” is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people.

CACI 3941.

Because the use of the taser by Officer Horn arguably constitutes excessive force in violation of the Fourth Amendment and state law, there is a question of fact whether his use of the taser was motivated by evil motive or intent or was in reckless or callous indifference to the constitutional rights of Plaintiff. Thus, the motion for summary judgment on the issue of punitive damages is DENIED with respect to Officer Horn as to the first, third, fourth, sixth and seventh causes of action. The motion is GRANTED as to the second and fifth causes of action.

ORDER

Accordingly, as set forth above:

1. Defendants’ motion for summary judgment is DENIED as to Defendant Officer Horn for the first cause of action involving an allegation of excessive force in violation of the Fourth Amendment, the third cause of action regarding California constitutional protections, the fourth cause of action for intentional infliction of emotional distress, the sixth cause of action for negligence, and the seventh cause of action for battery under state law;

2. Defendants’ motion for summary judgment as it relates to qualified immunity for Officer Horn is DENIED;

3. Defendants’ motion for summary judgment is GRANTED as to Plaintiffs due process and equal protections claims asserted within the first cause of action;

4. Defendants’ motion for summary judgment is GRANTED as to Plaintiffs first cause of action as against the City of Merced;

5. Defendants’ motion for summary judgment is GRANTED as to Plaintiffs second and fifth causes of action as to all Defendants;

6. Defendants’ motion for summary judgment as to Defendant City of Merced is DENIED as to Plaintiffs seventh cause of action;

7. Defendants’ motion for summary judgment as to the prayer for punitive damages is DENIED with respect to the first, third, fourth, sixth and seventh causes of action. The motion is GRANTED with respect to the second and fifth causes of action.

IT IS SO ORDERED.

1 . The Court carefully reviewed and considered all relevant pleadings, points and authorities, declarations, and exhibits. Any omission of a reference to a pleading is not to be construed that this Court did not consider the argument or pleading.

2 . Plaintiff initially disputed this fact with regard to the time frame asserted because Defendants originally stated one hour had passed. However, following Plaintiff's objection, Defendants acknowledged in their reply that the proper time frame was one hour.

3 . Plaintiff attempts to dispute this fact wherein he proffers a declaration that he does not recall the officer immediately retreating to the street. However, an inability to recall events is not a " 'specific fact[ ] showing that there is a genuine issue for trial.' ” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Thus, the Court finds the fact to be undisputed.

4 . California Penal Code section 243(b) provides, in pertinent part: "When a battery is committed against the person of a peace officer ... engaged in the performance of his or her duties ... and the person committing the offense knows or reasonably should know that the victim is a peace officer ... the battery is punishable....''

5 .Plaintiff disputes this fact and refers the Court to his own declaration and that of Plaintiff’s counsel. (See Doc. 46 at 4.) However, documents appended as exhibits to Mr. Escamilla’s declaration clearly establish that Plaintiff was indeed charged with a violation of California Penal Code section 243(b)-as-sault on a peace officer. (Doc. 45, Ex. 3 [citation dates July 17, 2005] & Ex. 8 [amended complaint alleging violation of same in count 2].) Plaintiff’s references to the fact that Officer Horn was not identified as the victim of the offense is irrelevant; Defendants did not state Officer Horn was or was not a victim. Rather the undisputed fact is simply whether or not Plaintiff was charged with a violation of that crime.

6 . 21. Plaintiff appeared anxious as he approached his wife, Mr. Sole and Officer Bazzar. Defendants support this fact with reference to Plaintiff’s wife's deposition.

Plaintiff disputed this fact and in support thereof refers to his Declaration at paragraph 13: "On the evening of July 17, 2005, as I approached my wife, Mr. Sok and Officer Bazzar, I do not recall being anxious for any reason.’’ (Doc. 47 at 2.) This fact is in dispute.

7 . 28. Plaintiff has not sought to appeal, overturn or otherwise set aside his conviction for disturbing the peace. Defendants support this fact with Plaintiff’s deposition testimony at page 61, line 25 through page 62, line 2.

Plaintiff disputes this fact. He offers his declaration at paragraph 21 and counsel’s declaration at paragraphs 17 through 19. (Doc. 46 at 4.) Plaintiff declares that on February 11, 2010, his attorney filed a "Petition for Dismissal" and the petition was to be heard March 7, 2010 which would result in expungement. (Doc. 47, ¶ 21; see also Doc. 45, ¶ 19 & Ex. 9.) This fact is in dispute.

8 . The section provides, in pertinent part: "Every person who willfully resists, delays, or obstructs any ... peace officer ... in the discharge or attempt to discharge any duty of his or her office ... shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”

9 . As previously noted, information concerning any battery upon a peace officer is less than sparse.

10 . The matter was set to be heard March 7, 2010, in the Merced County Superior Court. (Doc. 45, ¶ 19.) The Court is unaware of the outcome of the proceeding.