1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LOUIS HERZOG, No. 2:21-cv-01174-MCE-CKD 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 MIGUEL A. LOPEZ-CUEN, et al., 15 Defendants. 16 17 Plaintiff Louis Herzog (“Plaintiff”) initiated this action against Defendants Miguel A. 18 Lopez-Cuen (“Lopez-Cuen”) and the State of California, by and through the California 19 Highway Patrol, (hereafter the “CHP”) (collectively, “Defendants”) for constitutional 20 violations arising out his purportedly unlawful arrest for driving under the influence. 21 Presently before the Court is Defendants’ Motion for Summary Judgment.1 ECF No. 19. 22 For the following reasons, that Motion is GRANTED in part and DENIED in part. 23 /// 24 /// 25 /// 26 /// 27 1 Because oral argument would not have been of material assistance, the Court ordered this 28 matter submitted on the briefs. E.D. Local Rule 230(g). 1 BACKGROUND2 2 3 On April 15, 2020, Lopez-Cuen was traveling westbound in his patrol vehicle as 4 he approached an intersection where he encountered Plaintiff in his own vehicle. At the 5 intersection, Lopez-Cuen had a green light, and Plaintiff’s light was red. According to 6 Defendants, Lopez-Cuen saw Plaintiff apply his brakes, but he did not appear to be able 7 to come to a complete stop before the limit line. Plaintiff avers, however, that he did in 8 fact stop before the limit line and looked to make sure the lane of traffic was clear before 9 he attempted to make a right turn. As Lopez-Cuen approached the intersection, he 10 moved from the left-hand lane, which was occupied by vehicles ahead of him, into the 11 right-hand lane, which is the same lane Plaintiff proceeded to turn into. Lopez-Cuen had 12 to apply his brakes to avoid colliding with Plaintiff, after which he immediately activated 13 his siren to conduct a traffic stop of Plaintiff for violations of California Vehicle Code § 14 21453(a), failure to stop for a circular red light, and § 21658(a), unsafe lane change. 15 Plaintiff pulled his vehicle off of the road into a parking lot. Lopez-Cuen 16 approached Plaintiff through the open driver side window, and, according to Defendants, 17 observed that Plaintiff’s eyes were watery, he was demonstrating repetitive body 18 movements and that he appeared agitated. Lopez-Cuen Decl., ¶ 5. Lopez-Cuen also 19 purportedly observed that Plaintiff’s speech was slurred and he was breathing heavily. 20 Id. Plaintiff denies that his eyes were watery, that he was making unusual body 21 movements, that he was breathing heavily or that his speech was slurred, but he admits 22 he was anxious and nervous at having been stopped by an officer across from his place 23 of work. Herzog Decl., ECF No. 26, ¶¶ 7-13. 24 /// 25 /// 26 ///
27 2 The following recitation of facts is taken, at times verbatim, from Defendants’ Response to Plaintiff’s Response to Defendants’ Statement of Undisputed Material Facts. ECF No. 31-1. The events 28 are also captured on dash camera and body camera footage. 1 Lopez-Cuen asked Plaintiff if he had consumed any drugs or alcohol that day, 2 and Plaintiff replied in the negative, although he offered that he had taken a Prozac 3 earlier in the morning, eight to nine hours prior to the traffic stop. Because Lopez-Cuen 4 nonetheless still suspected that Plaintiff had ingested something, he began to perform a 5 series of Field Sobriety Tests (“FSTs”): the Horizontal Gaze Nystagmus test, the Walk- 6 and-Turn test, the One-Leg Stand test, and the Modified Romberg Test. It is undisputed 7 that these are standard tests and Lopez-Cuen had been trained to administer each of 8 them. 9 With regard to the Horizontal Gaze Nystagmus test, Lopez-Cuen averred that 10 “[Plaintiff] displayed a lack of smooth pursuit in both eyes, as he was unable to 11 smoothly track [the] pen during the test.” Lopez-Cuen Decl., ¶ 6. Lopez-Cuen also 12 noted that Plaintiff’s pupils were constricted to 2.5 mm on an investigative chart. Id., ¶ 8. 13 Based on his observations, Lopez-Cuen believed Plaintiff might be intoxicated. For his 14 part, however, Plaintiff avers that he had no trouble tracking Lopez-Cuen’s pen. Herzog 15 Decl., ¶ 16. Plaintiff also provided expert testimony indicating that Lopez-Cuen did not 16 perform the Horizontal Gaze Nystagmus test properly and that Plaintiff performed as 17 would a sober person. Decl. of Corey Carter, ECF No. 27, ¶ 3, Ex. 3 (Expert Report of 18 Ed Barley), at 8-11. That report also indicates that pupils can be expected to be more 19 constricted during bright daylight hours and that 2.5 mm is within the normal range. Id. 20 at 11. 21 With regard to the rest of the tests, Defendants offer Lopez-Cuen’s testimony that 22 they were properly administered and that Plaintiff’s performance indicated he was under 23 the influence. For example, with regard to the Walk-and-Turn test, Lopez-Cuen 24 determined that Plaintiff began performing the test while still receiving instructions, 25 missed heel-to-toe contact on one step on his way out, stepped off the line at one point 26 on the way back, and did not conduct the turn as instructed. Lopez-Cuen Decl, ¶ 10. 27 /// 28 /// 1 Plaintiff disputes Lopez-Cuen’s observations as to each test, contends any deviations 2 were not sufficient to constitute “clues” to intoxication, and provides expert testimony 3 indicating that the tests were administered improperly. Carter Decl., Ex. 3. 4 Eventually, satisfied that Plaintiff was under the influence of something, Lopez- 5 Cuen placed Plaintiff under arrest for violation of California Vehicle Code § 23152(f). 6 Plaintiff was taken to a local hospital for a blood draw and was then booked into the San 7 Joaquin County Jail. It was later determined that Plaintiff had no alcohol or drugs in his 8 bloodstream, and he was never prosecuted. 9 Plaintiff thereafter initiated this action in state court alleging causes of action for: 10 (1) unreasonable search and seizure under the Fourth Amendment to the United States 11 Constitution; (2) violation of California’s Unruh Civil Rights Act, California Civil Code §§ 12 51, et seq.; (3) violation of California’s Bane Act, California Civil Code § 52.1; (4) 13 intentional infliction of emotional distress (“IIED”); and (5) false imprisonment or false 14 arrest. Defendants removed the action to this Court, and Plaintiff’s IIED claim was 15 dismissed. Presently before the Court is Defendants’ Motion for Summary Judgment as 16 to Plaintiff’s remaining claims. 17 18 STANDARD 19 20 The Federal Rules of Civil Procedure provide for summary judgment when “the 21 movant shows that there is no genuine dispute as to any material fact and the movant is 22 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. 23 Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to 24 dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325. 25 /// 26 /// 27 /// 28 /// 1 Rule 56 also allows a court to grant summary judgment on part of a claim or 2 defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may 3 move for summary judgment, identifying each claim or defense—or the part of each 4 claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v. 5 Madan, 889 F. Supp. 374, 378–79 (C.D. Cal. 1995). The standard that applies to a 6 motion for partial summary judgment is the same as that which applies to a motion for 7 summary judgment. See Fed. R. Civ. P.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LOUIS HERZOG, No. 2:21-cv-01174-MCE-CKD 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 MIGUEL A. LOPEZ-CUEN, et al., 15 Defendants. 16 17 Plaintiff Louis Herzog (“Plaintiff”) initiated this action against Defendants Miguel A. 18 Lopez-Cuen (“Lopez-Cuen”) and the State of California, by and through the California 19 Highway Patrol, (hereafter the “CHP”) (collectively, “Defendants”) for constitutional 20 violations arising out his purportedly unlawful arrest for driving under the influence. 21 Presently before the Court is Defendants’ Motion for Summary Judgment.1 ECF No. 19. 22 For the following reasons, that Motion is GRANTED in part and DENIED in part. 23 /// 24 /// 25 /// 26 /// 27 1 Because oral argument would not have been of material assistance, the Court ordered this 28 matter submitted on the briefs. E.D. Local Rule 230(g). 1 BACKGROUND2 2 3 On April 15, 2020, Lopez-Cuen was traveling westbound in his patrol vehicle as 4 he approached an intersection where he encountered Plaintiff in his own vehicle. At the 5 intersection, Lopez-Cuen had a green light, and Plaintiff’s light was red. According to 6 Defendants, Lopez-Cuen saw Plaintiff apply his brakes, but he did not appear to be able 7 to come to a complete stop before the limit line. Plaintiff avers, however, that he did in 8 fact stop before the limit line and looked to make sure the lane of traffic was clear before 9 he attempted to make a right turn. As Lopez-Cuen approached the intersection, he 10 moved from the left-hand lane, which was occupied by vehicles ahead of him, into the 11 right-hand lane, which is the same lane Plaintiff proceeded to turn into. Lopez-Cuen had 12 to apply his brakes to avoid colliding with Plaintiff, after which he immediately activated 13 his siren to conduct a traffic stop of Plaintiff for violations of California Vehicle Code § 14 21453(a), failure to stop for a circular red light, and § 21658(a), unsafe lane change. 15 Plaintiff pulled his vehicle off of the road into a parking lot. Lopez-Cuen 16 approached Plaintiff through the open driver side window, and, according to Defendants, 17 observed that Plaintiff’s eyes were watery, he was demonstrating repetitive body 18 movements and that he appeared agitated. Lopez-Cuen Decl., ¶ 5. Lopez-Cuen also 19 purportedly observed that Plaintiff’s speech was slurred and he was breathing heavily. 20 Id. Plaintiff denies that his eyes were watery, that he was making unusual body 21 movements, that he was breathing heavily or that his speech was slurred, but he admits 22 he was anxious and nervous at having been stopped by an officer across from his place 23 of work. Herzog Decl., ECF No. 26, ¶¶ 7-13. 24 /// 25 /// 26 ///
27 2 The following recitation of facts is taken, at times verbatim, from Defendants’ Response to Plaintiff’s Response to Defendants’ Statement of Undisputed Material Facts. ECF No. 31-1. The events 28 are also captured on dash camera and body camera footage. 1 Lopez-Cuen asked Plaintiff if he had consumed any drugs or alcohol that day, 2 and Plaintiff replied in the negative, although he offered that he had taken a Prozac 3 earlier in the morning, eight to nine hours prior to the traffic stop. Because Lopez-Cuen 4 nonetheless still suspected that Plaintiff had ingested something, he began to perform a 5 series of Field Sobriety Tests (“FSTs”): the Horizontal Gaze Nystagmus test, the Walk- 6 and-Turn test, the One-Leg Stand test, and the Modified Romberg Test. It is undisputed 7 that these are standard tests and Lopez-Cuen had been trained to administer each of 8 them. 9 With regard to the Horizontal Gaze Nystagmus test, Lopez-Cuen averred that 10 “[Plaintiff] displayed a lack of smooth pursuit in both eyes, as he was unable to 11 smoothly track [the] pen during the test.” Lopez-Cuen Decl., ¶ 6. Lopez-Cuen also 12 noted that Plaintiff’s pupils were constricted to 2.5 mm on an investigative chart. Id., ¶ 8. 13 Based on his observations, Lopez-Cuen believed Plaintiff might be intoxicated. For his 14 part, however, Plaintiff avers that he had no trouble tracking Lopez-Cuen’s pen. Herzog 15 Decl., ¶ 16. Plaintiff also provided expert testimony indicating that Lopez-Cuen did not 16 perform the Horizontal Gaze Nystagmus test properly and that Plaintiff performed as 17 would a sober person. Decl. of Corey Carter, ECF No. 27, ¶ 3, Ex. 3 (Expert Report of 18 Ed Barley), at 8-11. That report also indicates that pupils can be expected to be more 19 constricted during bright daylight hours and that 2.5 mm is within the normal range. Id. 20 at 11. 21 With regard to the rest of the tests, Defendants offer Lopez-Cuen’s testimony that 22 they were properly administered and that Plaintiff’s performance indicated he was under 23 the influence. For example, with regard to the Walk-and-Turn test, Lopez-Cuen 24 determined that Plaintiff began performing the test while still receiving instructions, 25 missed heel-to-toe contact on one step on his way out, stepped off the line at one point 26 on the way back, and did not conduct the turn as instructed. Lopez-Cuen Decl, ¶ 10. 27 /// 28 /// 1 Plaintiff disputes Lopez-Cuen’s observations as to each test, contends any deviations 2 were not sufficient to constitute “clues” to intoxication, and provides expert testimony 3 indicating that the tests were administered improperly. Carter Decl., Ex. 3. 4 Eventually, satisfied that Plaintiff was under the influence of something, Lopez- 5 Cuen placed Plaintiff under arrest for violation of California Vehicle Code § 23152(f). 6 Plaintiff was taken to a local hospital for a blood draw and was then booked into the San 7 Joaquin County Jail. It was later determined that Plaintiff had no alcohol or drugs in his 8 bloodstream, and he was never prosecuted. 9 Plaintiff thereafter initiated this action in state court alleging causes of action for: 10 (1) unreasonable search and seizure under the Fourth Amendment to the United States 11 Constitution; (2) violation of California’s Unruh Civil Rights Act, California Civil Code §§ 12 51, et seq.; (3) violation of California’s Bane Act, California Civil Code § 52.1; (4) 13 intentional infliction of emotional distress (“IIED”); and (5) false imprisonment or false 14 arrest. Defendants removed the action to this Court, and Plaintiff’s IIED claim was 15 dismissed. Presently before the Court is Defendants’ Motion for Summary Judgment as 16 to Plaintiff’s remaining claims. 17 18 STANDARD 19 20 The Federal Rules of Civil Procedure provide for summary judgment when “the 21 movant shows that there is no genuine dispute as to any material fact and the movant is 22 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. 23 Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to 24 dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325. 25 /// 26 /// 27 /// 28 /// 1 Rule 56 also allows a court to grant summary judgment on part of a claim or 2 defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may 3 move for summary judgment, identifying each claim or defense—or the part of each 4 claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v. 5 Madan, 889 F. Supp. 374, 378–79 (C.D. Cal. 1995). The standard that applies to a 6 motion for partial summary judgment is the same as that which applies to a motion for 7 summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep’t of Toxic 8 Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary 9 judgment standard to motion for summary adjudication). 10 In a summary judgment motion, the moving party always bears the initial 11 responsibility of informing the court of the basis for the motion and identifying the 12 portions in the record “which it believes demonstrate the absence of a genuine issue of 13 material fact.” Celotex, 477 U.S. at 323. If the moving party meets its initial 14 responsibility, the burden then shifts to the opposing party to establish that a genuine 15 issue as to any material fact actually does exist. Matsushita Elec. Indus. Co., Ltd. v. 16 Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); First Nat’l Bank v. Cities Serv. Co., 17 391 U.S. 253, 288–89 (1968). 18 In attempting to establish the existence or non-existence of a genuine factual 19 dispute, the party must support its assertion by “citing to particular parts of materials in 20 the record, including depositions, documents, electronically stored information, 21 affidavits[,] or declarations . . . or other materials; or showing that the materials cited do 22 not establish the absence or presence of a genuine dispute, or that an adverse party 23 cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The 24 opposing party must demonstrate that the fact in contention is material, i.e., a fact that 25 might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 26 Inc., 477 U.S. 242, 248, 251–52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and 27 Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992). 28 /// 1 The opposing party must also demonstrate that the dispute about a material fact “is 2 ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for 3 the nonmoving party.” Anderson, 477 U.S. at 248. In other words, the judge needs to 4 answer the preliminary question before the evidence is left to the jury of “not whether 5 there is literally no evidence, but whether there is any upon which a jury could properly 6 proceed to find a verdict for the party producing it, upon whom the onus of proof is 7 imposed.” Anderson, 477 U.S. at 251 (quoting Improvement Co. v. Munson, 81 U.S. 8 442, 448 (1871)) (emphasis in original). As the Supreme Court explained, “[w]hen the 9 moving party has carried its burden under Rule [56(a)], its opponent must do more than 10 simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 11 475 U.S. at 586. Therefore, “[w]here the record taken as a whole could not lead a 12 rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” 13 Id. at 587. 14 In resolving a summary judgment motion, the evidence of the opposing party is to 15 be believed, and all reasonable inferences that may be drawn from the facts placed 16 before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 17 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 18 obligation to produce a factual predicate from which the inference may be drawn. 19 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 20 810 F.2d 898 (9th Cir. 1987). 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 ANALYSIS 2 3 Defendants contend they are entitled to judgment as a matter of law because: 4 (1) Lopez-Cuen had probable cause to arrest Plaintiff for driving under the influence 5 pursuant to California Vehicle Code § 23152(f); (2) even if Lopez-Cuen’s conduct was 6 unconstitutional, he is entitled qualified immunity; (3) Plaintiff’s false arrest/false 7 imprisonment claims fail because Lopez-Cuen’s conduct was lawful or subject to 8 privilege; (4) Plaintiff cannot state a claim under the Unruh Act because it does not apply 9 to police functions; (5) Plaintiff’s Bane Act claim is also insufficient, again because of 10 privilege; and (6) the claims against the CHP fail with the claims against Lopez-Cuen. 11 Plaintiff concedes judgment should be entered in Defendants’ favor on the Unruh Act 12 and Bane Act causes of action. Accordingly, Defendants’ Motion is GRANTED as to 13 both of those claims. 14 As for the rest of the claims, however, there are triable issues of material fact that 15 preclude the entry of judgment. Plaintiff disputes each of Defendants’ facts regarding 16 the FSTs he underwent via his own declaration and the report of his expert. The videos 17 submitted by the parties do not eliminate any factual dispute because certain critical 18 aspects of the FSTs are not captured on camera. Construing all of the facts and the 19 videos in Plaintiff’s favor requires the Court to find that Plaintiff appeared nervous, but 20 nonetheless performed sufficiently well on the FSTs and behaved in a manner indicative 21 of a sober as opposed to intoxicated state. If that was the case, then there would have 22 been no basis on which to arrest Plaintiff. To find for Defendants, on the other hand the 23 Court would have to construe the facts in their favor, which would of course be improper 24 at this stage of the proceedings. Accordingly, because there are genuine issues of 25 material fact that must be decided by a jury before questions of constitutionality and 26 immunity can be reached, Defendants’ Motion is DENIED as to Plaintiff’s Fourth 27 Amendment and false arrest/imprisonment causes of action. 28 /// 1 CONCLUSION 2 3 Defendant's Motion for Summary Judgment (ECF No. 19) is GRANTED in part 4 | and DENIED in part consistent with the foregoing. This action shall proceed on Plaintiff's 5 || First and Fifth Causes of action. 6 IT IS SO ORDERED. 7 | Dated: September 11, 2024 8 □ late JES. Whip AX XC - ° SENIOR UNITED STATES URTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28