Hurtado v. State of CA

Opinion

FRANCISCO HURTADO, No. 2:19-cv-02343-DAD-AC Plaintiff, v. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ STATE OF CALIFORNIA, et al., MOTION FOR SUMMARY JUDGMENT Defendants. (Doc. No. 23)

This matter is before the court on the motion for summary judgment filed on behalf of defendants State of California, California Highway Patrol (“CHP”), and Officer Edgardo Yepez (collectively, “defendants”) on October 29, 2021. (Doc. No. 23.) The pending motion was taken under submission by the previously assigned district judge on December 9, 2021.1 (Doc. No. 28.) For the reasons explained below, defendants’ motion for summary judgment will be granted in part and denied in part. ///// ///// /////

1 On August 25, 2022, this case was reassigned to the undersigned. (Doc. No. 35.) A. Factual Background2 This case arises from the non-lethal shooting of plaintiff Francisco Hurtado by a law enforcement officer following a serious car accident involving a vehicle driven by plaintiff. On March 15, 2018, Officer Randazzo and defendant Officer Yepez were in full uniform in a marked CHP vehicle performing traffic enforcement on Highway 99 in Modesto. (DUF ¶ 1.)3 Officer Randazzo saw a dark SUV (the “vehicle”) travelling southbound on Highway 99 at a high rate of speed; at one point, the vehicle was going 80 miles per hour (“MPH”) even though the speed limit was 65 MPH. (DUF ¶ 3.) According to Officer Randazzo’s declaration, he also observed the vehicle swerving. (Doc. No. 23-3 at ¶ 3.) The vehicle was operated by plaintiff. (DUF ¶ 11.) Plaintiff had a loaded gun in the vehicle’s cup holder, though it does not appear that the officers knew that at the time they were pursuing his vehicle. (DUF ¶ 12.) Officer Randazzo activated his emergency lights to pull over plaintiff’s vehicle. (DUF ¶ 7.) The vehicle did not pull over. (DUF ¶ 8.) Officer Randazzo then activated his siren, but the vehicle still did not pull over. (DUF ¶ 10.) This pursuit lasted only approximately 15 seconds, after which time Officer Randazzo decided to end the pursuit and let plaintiff’s vehicle go. (PUDF ¶ 16.) At that point, Officer Randazzo turned off his vehicle’s emergency lights and

2 The relevant facts that follow are undisputed unless otherwise noted and are derived from the undisputed facts as stated by defendants and responded to by plaintiff (Doc. No. 30 at 2–116 (“DUF”)), the undisputed and disputed facts as stated by plaintiff and responded to by defendants (Doc. No. 30 at 116–55 (“PUDF”)), as well as declarations and exhibits attached to the pending motion and to the opposition to the pending motion (Doc. Nos. 23-3, 23-4, 23-5, 27-3). In addition, although plaintiff purports to dispute many of the facts as stated by defendants, he does so by repeating the fact and adding additional information to elaborate upon it. (See, e.g., DUF ¶¶ 7, 10.) In other words, plaintiff does not actually dispute the fact or portions of the fact stated, he merely provides additional information that he believes is relevant. Thus, where plaintiff has not genuinely disputed a fact or a portion of that fact, the court has treated that fact as undisputed for the purposes of ruling on the pending motion.

3 Although the parties do not dispute that the date of the incident was March 1, 2018 (DUF ¶ 1), given that the parties elsewhere consistently refer to the incident as having occurred on March 15, 2018 (see, e.g., DUF ¶ 44; PUDF ¶ 41), the undersigned assumes that the date agreed to as March 1, 2018 is a typographical error and that the parties intended to agree that the incident occurred on March 15, 2018. siren. (Id.) Due to the short duration of the pursuit and their decision to let the vehicle go, the officers did not call in the pursuit. (PUDF ¶ 17.) According to plaintiff, he did not realize the police lights were directed at him, and he did not hear any sirens. (PUDF ¶ 19.) As plaintiff was exiting the highway, he saw no lights, but he looked back because he thought he might have previously seen lights. (PUDF ¶¶ 18, 19.) When he looked forward again, he saw the stop sign and other cars. (PUDF ¶ 19.) Plaintiff tried to brake, but his brakes locked, and his vehicle did not stop. (Id.) The vehicle went through a fence, down a steep embankment, and turned upside down such that it was resting on its roof. (PUDF ¶ 21.) Officer Randazzo and defendant Officer Yepez pulled over on the off-ramp, exited their vehicle, and saw the overturned vehicle containing plaintiff. (PUDF ¶¶ 20–21.) It appeared to the officers to be a severe accident. (PUDF ¶ 26.) Officer Yepez radioed dispatch to request the fire department and an ambulance because the officers presumed that whoever was in the vehicle would be injured. (DUF ¶ 19.) Officer Randazzo then went down the embankment to determine if he could assist the vehicle’s occupants. (DUF ¶ 18.) Officer Randazzo approached the driver’s side of the vehicle. (DUF ¶ 23; PUDF ¶ 26.) As he was approaching the vehicle, Officer Randazzo heard plaintiff moaning. (PUDF ¶ 26.) He saw plaintiff’s torso lying on the vehicle’s interior roof because the vehicle was upside down. (DUF ¶ 25.) According to Officer Randazzo, because of plaintiff’s prior high-speed driving, swerving, and failing to pull over, he commanded plaintiff several times to show his hands and stop moving, and he also informed plaintiff that they were trying to extricate him from the vehicle. (Doc. No. 23-3 at ¶ 13.) Initially, when Officer Randazzo was looking at plaintiff’s torso inside the vehicle from two feet away, he did not see a gun. (PUDF ¶ 30.) Officer Randazzo also does not remember seeing plaintiff trying to get onto his knees. (PUDF ¶ 38.) Rather, he remembers plaintiff wiggling from left to right on his stomach as he was still in a prone position. (Id.) As he was looking at plaintiff, Officer Randazzo’s flashlight shined on a gun which was on the right side of plaintiff’s torso. (Doc. No. 23-3 at ¶ 15.) Under Officer Randazzo’s version of events, the gun was a foot from plaintiff and well within his reach. (Id.) According to Officer Randazzo, when he saw the gun, he again commanded plaintiff not to move and he took cover. (Id. at ¶ 16.) He then called out to his partner to alert him of the weapon. (Id.) Because he was taking cover, Officer Randazzo did not reach for his own weapon. (Id.) Officer Randazzo testified at his deposition that he never saw plaintiff touch the firearm or move towards it. (Doc. No. 27-3 at 127.) According to Officer Randazzo’s declaration, whilst moving backwards to take cover, he was looking down to avoid tripping over large weeds and lost sight of plaintiff as he did so. (Doc. No. 23-3 at ¶ 16.) When Officer Randazzo was about halfway down the embankment, defendant Officer Yepez headed down the embankment toward plaintiff’s overturned vehicle. (DUF ¶ 20.) At that time, defendant Yepez did not believe this was a high-risk traffic stop, and he did not have his gun drawn. (PUDF ¶ 80.) Defendant Yepez approached the vehicle’s rear and shined his flashlight inside to determine if he could get plaintiff out from the rear of the vehicle. (DUF ¶¶ 29, 30.) According to defendant Yepez’s declaration, when he heard his partner yell “gun,” he crouched and saw plaintiff crouched on the roof of the car in the center area close to the driver’s seat. (Doc. No. 23-4 at ¶ 9.) At that vantage point, according to defendant Yepez, he could see plaintiff’s right shoulder, right arm, right hand, buttocks, knee, and both feet. (Id.) He also states that he spotted the gun next to plaintiff’s feet on the right side of his right foot and that he then observed plaintiff put his right hand on the gun and that he appeared to grab it. (Id.) Defendant Yepez declared that approximately a second and a half passed between when he first saw the gun and when he saw plaintiff reach for it. (Id.) Defendant Yepez then fired four rounds toward plaintiff, and he states that he did so because he feared for the safety of himself and Officer Randazzo, who was close to the driver’s side door of the vehicle at the time. (Id. at ¶ 10.) Plaintiff was shot on the right side of his buttocks, his right upper thigh, and his right ankle/foot. (PUDF ¶ 105.) Before shooting, defendant Yepez did not issue any commands or warnings to plaintiff. (PUDF ¶ 96.) Plaintiff was not actively resisting arrest or attempting to evade arrest by flight at that time. (PUDF ¶ 93.) Defendant Yepez has also testified that plaintiff was not committing any crime when he shot him. (Doc. No. 27-3 at 166.) Plaintiff testified that after the accident, he was lying in a belly flop position with his face down on the inside roof of the vehicle. (Doc. No. 27-3 at 28, 39.) Plaintiff testified that he did not hear anyone speak to him or either officer directing him to show his hands or stop moving. Ud. at 38.) He also testified that he did not grab or reach for the gun in his car at any point after the accident occurred. (Ud. at 31.) According to plaintiff's reconstruction and forensic biomechanical expert, Jesse L. Wobrock, Ph.D., plaintiff was on his belly, facing away from defendant Yepez when he was shot. (Doc. No. 27-3 at 276.) Based on his analysis of the bullet trajectories, Dr. Wobrock prepared the following trajectory diagrams: Pa ly J □ MM a = ;

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Ud.) Dr. Wobrock concluded that plaintiff was moving slightly at the time of the four shots and that all four shots came from the rear. (/d. at 275-76.) He further concluded that plaintiff did not have a gun in his hand at the time he was shot and that he was falling in and out of consciousness because of the severe car accident that had just occurred. (d. at 276.) Plaintiff pleaded no contest to the misdemeanor offense of evading an officer and to the felony offense of possessing a loaded weapon in connection with the events of March 15, 2018. (DUF 4 44.) B. Procedural Background On April 2, 2019, plaintiff filed a complaint in Stanislaus County Superior Court initiating this action. (Doc. No. 1.) Defendants removed the case to this federal court on November 19,

2019 on the basis of federal question jurisdiction. (Id.) Plaintiff filed his second amended complaint (“SAC”) on December 12, 2019, asserting two constitutional claims under 42 U.S.C. § 1983 against defendant Yepez: (1) unreasonable search and seizure, unreasonable and/or excessive force and denial of medical care; and (2) violation of substantive due process. (Doc. No. 9 at 9–11.) In addition, in his SAC, plaintiff has brought state law claims against defendants Yepez, the State of California, and the CHP for: (3) battery; (4) negligence; and (5) violation of California Civil Code § 52.1 (Id. at 13–16.) Pursuant to a joint stipulation of the parties, plaintiff’s claims based upon the alleged denial of medical care in plaintiff’s first and fourth claims for relief, as well as his fifth claim seeking relief under California Civil Code § 52.1 (Bane Act), have all previously been dismissed. (Doc. No. 18.) On October 29, 2021, defendants filed the pending motion seeking summary judgment in their favor as to all of plaintiff’s remaining claims. (Doc. No. 23.) On December 2, 2021, plaintiff filed an opposition to the pending motion, and on December 9, 2021, defendants filed their reply thereto. (Doc. Nos. 27, 29.) Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In summary judgment practice, the moving party “initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials,” or by showing that such materials “do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, “the moving party need only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). Indeed, after adequate time for discovery and upon motion, summary judgment should be entered against a party who fails to make a 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. See Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 322–23. In such a circumstance, summary judgment should be granted, “so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment . . . is satisfied.” Id. at 323. If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits or admissible discovery material in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11; Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (“A trial court can only consider admissible evidence in ruling on a motion for summary judgment.”). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986). In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (citations omitted). “In evaluating the evidence to determine whether there is a genuine issue of fact,” the court draws “all inferences supported by the evidence in favor of the non-moving party.” Walls v. Cent. Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing party’s obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 586–87 (citations omitted). A. Fourth Amendment Excessive Force Claim Defendants move for summary judgment in their favor as to plaintiff’s 42 U.S.C. § 1983 claim that defendant Yepez deployed excessive force against plaintiff by shooting him in violation of the Fourth Amendment. (Doc. No. 23-1 at 12.) Defendants so move on the grounds that under the undisputed facts on summary judgment: (1) defendant Yepez’s use of force was objectively reasonable; and (2) defendant Yepez is entitled to judgment in his favor based on qualified immunity. (Id. at 12-18.) Under § 1983, a private right of action exists against anyone who, “under color of” state law, causes a person to be subjected “to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . .” 42 U.S.C. § 1983. “Section 1983 does not create substantive rights; it merely serves as the procedural device for enforcing substantive provisions of the Constitution and federal statutes.” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991) (citing Chapman v. Hous. Welfare Rights Org., 441 U.S. 600, 617 (1979)). State officials are entitled to qualified immunity from a § 1983 suit unless “(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, ––– U.S. ––––, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). ///// 1. Step One: Whether a Constitutional Right Was Violated Under the Fourth Amendment, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” U.S. Const. amend. IV. “The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.” Florida v. Jimeno, 500 U.S. 248, 250 (1991) (citations omitted); see also United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir. 1997) (“For purposes of the Fourth Amendment, a seizure occurs when a law enforcement officer, by means of physical force or show of authority, in some way restrains the liberty of a citizen.”). Plaintiff’s §1983 claim for excessive use of force in violation of the Fourth Amendment is governed by an “objective reasonableness standard.” Graham v. Connor, 490 U.S. 386, 388 (1989) (internal quotation marks omitted). This standard requires a “careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). The calculus “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. Reasonableness in this context is to be judged “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396. In Graham, the Supreme Court listed several factors to be considered in determining the government’s interest in the force it used: (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 [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Id. The “‘most important’ factor under Graham is whether the suspect posed an “immediate threat to the safety of the officers or others.” George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013) (quoting Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)). The Ninth Circuit has noted that “[t]hese factors, however, are not exclusive” and that courts should consider “the totality of the circumstances and consider whatever specific factors may be appropriate in a particular case, whether or not listed in Graham.” Bryan, 630 F.3d at 826 (citation and internal quotation marks omitted); see also S.B. v. Cnty. of San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017); Glenn v. Washington Cnty., 673 F.3d 864, 872 (9th Cir. 2011) (“Other relevant factors include the availability of less intrusive alternatives to the force employed, whether proper warnings were given and whether it should have been apparent to officers that the person they used force against was emotionally disturbed.”). In short, “[t]he force which [is] applied must be balanced against the need for that force: it is the need for force which is at the heart of the Graham factors.” Liston v. Cnty. of Riverside, 120 F.3d 965, 976 (9th Cir. 1997) (citation omitted); see also Velazquez v. City of Long Beach, 793 F.3d 1010, 1025 (9th Cir. 2015); Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir. 2003). “[T]he reasonableness of force used is ordinarily a question of fact for the jury.” Liston, 120 F.3d at 976 n.10. Indeed, the Ninth Circuit has repeatedly recognized that “summary judgment should be granted sparingly in excessive force cases.” Gonzalez v. City of Anaheim, 747 F.3d 789, 795 (9th Cir. 2014); see also Seidner v. de Vries, 39 F. 4th 591, 601 (9th Cir. 2022); Estate of Lopez v. Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017); C.V. ex rel. Villegas v. City of Anaheim, 823 F.3d 1252, 1255 (9th Cir. 2016); Green v. City and Cnty. of San Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014); Avina v. United States, 681 F.3d 1127, 1130 (9th Cir. 2012) (citation omitted); Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002) (“Because such balancing nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, we have held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly.”). Thus, while it is true that officers “are often forced to make split-second judgments,” “it is equally true that even where some force is justified, the amount actually used may be excessive.” Santos, 287 F.3d at 853 (citations omitted). In the final analysis, “[f]orce is excessive when it is greater than is reasonable under the circumstances.” Id. at 854 (citing Graham, 490 U.S. at 395). Here, with respect to the first Graham factor—the severity of the crime at issue—it is undisputed on summary judgment that plaintiff’s initial “crime” was driving over the speed limit by approximately 15 miles per hour, going 80 MPH in a zone where the speed limit was 65 MPH. Along with violating the speed limit, defendants also argue that plaintiff drove recklessly. (Doc. No. 23-1 at 13, 15.) The nature of these traffic violations, however, provides little independent basis for defendant Yepez’s use of force. See Bryan, 630 F.3d at 828 (“Traffic violations generally will not support the use of a significant level of force.”); Wiley v. Washington State Patrol, No. 05-cv-1948-RSM, 2007 WL 1655273, at *7 (W.D. Wash. June 7, 2007) (stating that the victim allegedly speeding and driving recklessly provided “little, if any, basis for the troopers’ use of physical force”). In addition, defendants point out that as a result of the events of March 15, 2018, plaintiff later entered pleas of no contest in the Stanislaus County Superior Court to the felony offense of possessing a loaded firearm in a public place in violation of California Penal Code § 25850(c)(6), as well as to the misdemeanor offense of evading a police officer in violation of Penal Code § 2800.1(a). (Doc. No. 23-2 at 5.) Regarding the former offense, the Ninth Circuit has recognized that “[t]he mere fact that a suspect possesses a weapon does not justify deadly force,” though “threatening an officer with a weapon does . . . .” Hayes v. Cnty. of San Diego, 736 F.3d 1223, 1233, 1234 (9th Cir. 2013) (citing cases); see also S.R. Nehad v. Browder, 929 F.3d 1125, 1134 (9th Cir. 2019) (“Indeed, we have often denied summary judgment in excessive force cases to police officers who use force against armed individuals.”) (citing cases). As plaintiff argues, the weapon possession offense to which he pled no contest provides that “a person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place . . . .” (Doc. No. 27 at 17) (citing Cal. Pen. Code § 25850(A)). Thus, as plaintiff notes, it was the mere possession of a loaded gun in the vehicle that provided a sufficient factual basis for his no contest plea to that offense. (See id.; see also Doc. No. 23-5 at 17 [the deputy district attorney provided the factual basis for Hurtado’s plea to California Penal Code § 25850 as follows: “the officer was able to locate a loaded operable pistol in the vehicle at the time of the stop”].) Plaintiff’s misdemeanor offense was for evading a police officer by not pulling his vehicle over to the side of the road before the crash occurred when Officer Randazzo activated his emergency lights and siren. (See Doc. No. 23-5 at 16–17.) The Ninth Circuit has noted that “misdemeanors are relatively minor and will generally not support the deployment of significant force.” Bryan, 630 F.3d at 829 n.12. Notably, defendant Yepez testified at his deposition that plaintiff was not committing any crime at the time he was shot. (Doc. No. 27-3 at 166.) Considering the undisputed evidence on summary judgment that plaintiff was not actively resisting arrest or attempting to evade arrest by flight or committing any other crime when he was shot, the court cannot conclude that the government had a substantial interest in using potentially deadly force4 to arrest him for a felony violation of possession of a loaded gun in his car or for a misdemeanor violation. For these reasons, the first Graham factor weighs in favor of plaintiff. As to the third Graham factor, the undisputed evidence before the court establishes that plaintiff was not actively resisting arrest or attempting to evade arrest by way of flight at the time he was shot. Consideration of this factor thus also weighs in plaintiff’s favor. The “most important” factor under Graham, of course, is whether plaintiff posed an “immediate threat to the safety of the officers or others.” Bryan, 630 F.3d at 826. While defendant Yepez stated in his declaration that he shot plaintiff because he feared for the safety of himself and his partner, “such a statement ‘is not enough; there must be objective factors to justify such a concern.’” George, 736 F.3d at 838 (citing Bryan, 630 F.3d at 826). In this case, there are clearly triable issues of fact as to whether plaintiff was reaching for his gun and whether he was on his stomach or was in a crouching position when defendant Yepez shot him. In determining whether defendant Yepez is entitled to qualified immunity on summary judgment, because plaintiff’s version of the events is not “blatantly contradicted by the record,” the court must credit plaintiff’s deposition testimony that he did not reach for the gun and that he was on his belly when defendant Yepez shot him from behind. See Gomez v. Fachko, No. 19-cv-05266- LHK, 2021 WL 1721067, at *9 (N.D. Cal. Apr. 30, 2021) (“In weighing whether an officer is entitled to qualified immunity at summary judgment, the Court ‘must construe the facts in the 4 “Some uses of force can be quantified categorically. The best example is shooting a firearm, which by definition is ‘deadly force’: force that ‘creates a substantial risk of causing death or serious bodily injury.’” Seidner v. de Vries, 39 F.4th 591, 596 (9th Cir. 2022) (quoting Smith v. City of Hemet, 394 F.3d 689, 693 (9th Cir. 2005)). light most favorable to the plaintiff.’ Specifically, as the Ninth Circuit has explained, the Court must credit plaintiff’s version of events unless it is ‘blatantly contradicted by the record, so that no reasonable jury could believe it.’”) (quoting Orn v. City of Tacoma, 949 F.3d 1167, 1171 (9th Cir. 2020)). Based on the evidence presented by plaintiff, a reasonable jury could conclude that he did not pose an “immediate threat to the safety of the officers or others,” George, 736 F.3d at 838 (internal quotation marks omitted), and that it was therefore objectively unreasonable for defendant Yepez to employ deadly force. Finally, it is undisputed that defendant Yepez provided no verbal warnings to plaintiff before shooting him. This is significant. The Ninth Circuit has recognized “that an officer must give a warning before using deadly force ‘whenever practicable.’” Gonzalez, 747 F.3d at 794 (citing Harris v. Roderick, 126 F.3d 1189, 1201 (9th Cir. 1997)); see also S.R. Nehad, 929 F.3d at 1137 (“The seemingly obvious principle that police should, if possible, give warnings prior to using force is not novel, and is well known to law enforcement officers.”); Deorle v. Rutherford, 272 F.3d 1272, 1284 (9th Cir. 2001) (“Appropriate warnings comport with actual police practice . . . [and] such warnings should be given, when feasible, if the use of force may result in serious injury.”). Defendants argue that it was not feasible for defendant Yepez to issue a warning in this situation (Doc. Nos. 23-1 at 15; 29 at 2), but it remains unclear based upon the evidence before the court on summary judgment whether that was true. Plaintiff contends that it was feasible to give a warning, arguing that in the time defendant Yepez took to fire, he could have instructed plaintiff “don’t touch that gun.” (Doc. No. 27 at 18.) “A jury could consider [defendant Yepez’s] failure to provide such a warning as evidence of objective unreasonableness.” S.R. Nehad, 929 F.3d at 1138. Viewing the evidence presented on summary judgment in the light most favorable to plaintiff, the court concludes that a reasonable jury could find defendant Yepez’s use of force to be objectively unreasonable and thus in violation plaintiff’s right under the Fourth Amendment to be free from the excessive use of force.5 5 Therefore, defendant Yepez is also not entitled to summary judgment in his favor as to plaintiff’s excessive use of force claim based upon defendants’ contention that Officer Yepez’s 2. Step Two: Whether the Right Was Clearly Established “Under the second prong of the qualified immunity test, we ask whether the alleged violation of [plaintiff’s] Fourth Amendment right against excessive force was clearly established at the time of the officer’s alleged misconduct.” C.V. ex rel. Villegas, 823 F.3d at 1257 (internal quotation marks omitted); see also Orn, 949 F.3d at 178. If a violation of plaintiff’s Fourth Amendment right against excessive force in this context was not clearly established at the time of the encounter, defendant Yepez is entitled to judgment in his favor on qualified immunity grounds. C.V. ex rel. Villegas, 823 F.3d at 1257. “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would [have understood] that what he is doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (alteration in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see also Wesby, 138 S. Ct. at 589. “We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Wesby, 138 S. Ct. at 590 (quoting Ashcroft, 563 U.S. at 741). It is not appropriate for courts to define clearly established law at a high level of generality; instead, the inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (citation omitted); see also Wesby, 138 S. Ct. at 590. “Such specificity is especially important in the Fourth Amendment context, where . . . [i]t is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.” Mullenix, 577 U.S. at 12 (internal quotation marks and citation omitted). In his opposition to the pending motion, plaintiff identifies several prior court decisions that he contends establish the relevant and clearly established law, including the Ninth Circuit’s decision in Curnow ex rel. Curnow v. Ridgecrest Police, 952 F.2d 321 (9th Cir. 1991). (Doc. No. 27 at 20–22.) In Curnow, the police broke down a suspect’s front door because the officers

use of force was objectively reasonable. believed the suspect had injured a woman inside. 952 F.2d at 323. According to the witness’s statement submitted in support of the plaintiff’s opposition to the motion for summary judgment brought in that case—which contradicted the affidavits submitted by the police officers—when the officers entered the house, the suspect did not reach for his gun before the police shot him. Id. In addition, the witness perceived the suspect as having been shot in the back by the first shot fired by officers. Id. The Ninth Circuit held that when viewing that evidence in the light most favorable to the plaintiff, the “police officers could not reasonably have believed the use of deadly force was lawful because [the victim] did not point the gun at the officers and apparently was not facing them when they shot him the first time.” Id. at 325. The court agrees with plaintiff that the Ninth Circuit’s 1991 decision in Curnow clearly established the legal principle that is relevant and applicable here: officers cannot use deadly force against a suspect who is not facing them and does not threaten them with a weapon, even if a weapon is within the suspect’s reach at the time. In fact, the Ninth Circuit has subsequently specifically recognized that the 1991 decision in Curnow gave “‘fair notice’ that the use of deadly force is unreasonable where the victim does not directly threaten the officer with the gun.” Estate of Lopez ex rel. Lopez v. Gelhaus, 871 F.3d 998, 1020 (9th Cir. 2017); see also id. at 1010, 1021 (affirming the district court’s denial of the defendants’ motion for summary judgment on qualified immunity grounds where the suspect had a gun in his hand with the barrel pointing towards the ground); George, 736 F.3d at 838 (affirming the district court’s denial of the defendants’ motion for summary judgment on qualified immunity grounds where the suspect held a gun with the barrel pointed downward, without pointing it at the officers or engaging in threatening behavior); Banks v. Mortimer, 620 F. Supp. 3d 902, 929–32 (N.D. Cal. 2022) (denying summary judgment on qualified immunity grounds where there was a genuine dispute as to whether the plaintiff was armed when he was shot, finding that the prior decisions in Curnow and Gelhaus clearly established that officers cannot use deadly force even when a weapon is within suspect’s reach if the suspect is not facing or threatening officers). In light of these decisions, the granting of summary judgment in defendant Yepez’s favor is not appropriate here because his entitlement to qualified immunity depends on disputed factual issues which must be resolved by the trier of fact. See Gelhaus, 871 F.3d at 1021 (“Because [officer’s] entitlement to qualified immunity ultimately depends on disputed factual issues, summary judgment is not presently appropriate.”). Defendants’ motion for summary judgment on plaintiff’s Fourth Amendment claim will therefore be denied. B. Fourteenth Amendment Claim Defendant Yepez next moves for summary judgment in his favor on plaintiff’s claim that he violated plaintiff’s substantive due process rights under the Fourteenth Amendment. (Doc. No. 23-1 at 18.) In his SAC, plaintiff attempts to assert both a Fourth Amendment claim and a substantive due process claim under the Fourteenth Amendment in connection with the alleged excessive force used by defendant Yepez. (Doc. No. 9 at 9–13.) With respect to his Fourteenth Amendment claim, plaintiff asserts that defendant Yepez’s conduct “shocked the conscience and interfered with the life, safety and health” of plaintiff, in that defendant “had time to deliberate and then used excessive force that was deliberately indifferent to the constitutional rights of the [p]laintiff and/or shocks the conscience and with a purpose to harm unrelated to any legitimate law enforcement objective in violation of 42 U.S.C. §1983[.]” (Id. at ¶ 39.) To succeed on their Fourteenth Amendment claim, plaintiff must meet a higher standard than the “objective reasonableness” standard applicable to his Fourth Amendment claim. Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). Substantive due process is violated when government conduct “can properly be characterized as arbitrary, or conscience shocking.” Collins v. City of Harker Heights, 503 U.S. 115, 128 (1992). The Supreme Court has been reluctant to expand the concept of substantive due process (id. at 125), holding that “[w]here 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 for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (citing Graham, 490 U.S. at 395) (internal quotation marks omitted); see also Armendariz v. Penman, 75 F.3d 1311, 1328 (9th Cir. 1996) (holding that the defendants were entitled to summary judgment on the plaintiff’s substantive due process claims where “substantive due process provides the plaintiffs no additional relief”), overruled in part on other grounds as recognized in Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851, 852 (9th Cir. 2007). Consistent with that precedent, “all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.” Graham, 490 U.S. at 395; see also Peck v. Montoya, 51 F.4th 877, 892 (9th Cir. 2022). In his opposition to the pending motion, plaintiff argues that a cause of action under the Fourteenth Amendment exists when the police kill a person without justification. (Doc. No. 27 at 23.) Plaintiff’s argument in this regard, however, misses the mark. Plaintiff cites to two decisions in which the Ninth Circuit held that parents have a constitutionally protected liberty interest in the companionship of their child and thus have a cognizable cause of action under the Fourteenth Amendment when the police kill their child without legal justification. (Id.) (citing Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1106 (9th Cir. 2014) and Porter, 546 F.3d at 1136). Unlike those cases, here, plaintiff was the one shot by the police. Plaintiff in this case is not a surviving family member claiming that his liberty interest in familial association was denied by the police killing his family member without justification. See Peck, 51 F.4th at 892 (“We have construed the [Supreme] Court’s statement in Graham to limit only claims brought by ‘the person who claims excessive force was directed at him,’ leaving open the possibility of substantive due process claims by a parent or child who claims ‘loss of the companionship and society’ of the decedent.”) (quoting Curnow, 952 F.2d at 325). Because plaintiff asserts in this action that “law enforcement officers have used excessive force . . . in the course of . . . [a] ‘seizure’ of a free citizen,” his Fourteenth Amendment claim is not cognizable. Graham, 490 U.S. at 395. Accordingly, the court will grant defendants’ motion for summary judgment in their favor with respect to plaintiff’s Fourteenth Amendment claim. C. State Law Claims Against Defendant Yepez In his SAC, plaintiff brings state law battery and negligence claims against defendant Yepez based on the same facts alleged in support of his Fourth Amendment claim asserted under § 1983. (Doc. No. 9 at 13–17.) “Courts generally analyze these claims under the same rubric as § 1983 claims based on the Fourth Amendment.” Banks, 620 F. Supp. 3d at 935. Accordingly, when there are triable issues of fact as to the plaintiff’s Fourth Amendment claim, there are likewise triable issues of fact as to the plaintiff’s state law negligence and battery claims stemming from the same facts. See id. (“Because the Court has already found that triable issues of fact exist as to whether Officer Mortimer violated Mr. Banks’s Fourth Amendment rights, it reaches the same conclusion on the state law claims [for false arrest, battery, and negligence].”); Diaz v. Cnty. of Ventura, 512 F. Supp. 3d 1030, 1048 (C.D. Cal. 2021) (“[B]ecause the Court denies the MSJ as to the Fourth Amendment claim, the Court also DENIES the MSJ as to the negligence and battery claims.”); Orr v. California Highway Patrol, No. 2:14-cv-585-WBS-EFB, 2015 WL 848553, at *15 (E.D. Cal. Feb. 26, 2015) (“Because genuine issues of material fact remain as to the reasonableness of the arrest, the court will deny both parties’ motions for summary judgment with respect to plaintiff's state-law claims for assault, battery, false arrest, and negligence.”). Defendants next contend that they are immune from liability under the California Government Code § 820.2 and California Penal Code § 835a and are therefore entitled to summary judgment on plaintiff’s state law claims. (Doc. No. 23-1 at 23.) California Government Code § 820.2, part of the California Tort Claims Act, states: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” Cal. Gov’t Code § 820.2. However, § 820.2 “does not confer immunity on peace officers for discretionary acts involving unreasonable use of force.” Megargee v. Wittman, 550 F. Supp. 2d 1190, 1208 (E.D. Cal. 2008) (citing Scruggs v. Haynes, 252 Cal. App. 2d 256, 266 (1967)); see also J.A. v. Madera Cnty., No. 1:21-cv-00252-ADA-EPG, 2023 WL 425819, at *6 (E.D. Cal. Jan. 26, 2023) (“[S]ection 820.2 ‘applies to police officers’ discretionary decisions made during arrests. But it has long been established that this provision does not apply to officers who use unreasonable force in making an arrest.’”) (quoting Blankenhorn v. City of Orange, 485 F.3d 463, 487 (9th Cir. 2007)). Section 835 provides that “[t]he person arrested may be subjected to such restraint as is reasonable for his arrest and detention.” Cal. Pen. Code § 835. Section 835a states that an officer may use objectively reasonable force to effect arrest, prevent escape, or overcome resistance. Id. § 835a. As plaintiff argues, the operative language of the provision is clear: the privilege applies only to the use of “reasonable” force, not to the use of “unreasonable” force. (Doc. No. 27 at 27.) Because the court has already determined that genuine issues of material fact remain to be resolved at trial regarding the reasonableness of defendant Yepez’s use of force, he is not entitled to summary judgment in his favor under §§ 835 and 835a. See Orr, 2015 WL 848553, at *14 (finding that the defendants were not entitled to immunity under §§ 835 and 835a at the summary judgment stage because there were genuine issues of material fact as to the reasonableness of the officers’ use of force). Thus, defendants’ motion for summary judgment with respect to plaintiff’s state law claims for battery and negligence against defendant Yepez, predicated on the same facts as plaintiff’s Fourth Amendment claim brought pursuant to § 1983, will be denied. D. Negligence Claim Against Defendant CHP Defendants also move for summary judgment in their favor as to plaintiff’s state-law negligence claim against defendant CHP. (Doc. No. 23-1 at 20.) In his SAC, plaintiff alleges two negligence theories as to defendant CHP. The first is a theory of direct liability, that defendant CHP is liable for its own negligence in failing to train and supervise and failing to ensure an adequate number of employees with appropriate training were available to meet the needs and protect the rights of plaintiff. (Doc. No. 9 at 15.) The second is a theory of vicarious liability, alleging that defendant CHP is vicariously liable for defendant Yepez’s negligent conduct. (Id. at 16.) In their pending motion for summary judgment, defendants argue that plaintiff’s negligence claim against defendant CHP fails as a matter of law because a cause of action for direct liability for negligent hiring, supervision, and training cannot be maintained against a public entity under California law. (Doc. No. 23-1 at 21.) “In California, a governmental entity can only be sued in tort pursuant to an authorizing statute or enactment.” Van Ort v. Est. of Stanewich, 92 F.3d 831, 840 (9th Cir. 1996) (citing Lopez v. S. Cal. Rapid Transit Dist., 40 Cal. 3d 780, 785 n.2 (1985); Searcy v. Hemet Unified Sch. Dist., 177 Cal. App. 3d 792, 798 (1986)). California law is clear that direct liability of a public entity “must be based on a specific statute declaring [the public entity] to be liable, or at least creating some specific duty of care[.]” de Villers v. Cnty. of San Diego, 156 Cal. App. 4th 238, 255 (2007) (citation omitted). “[A] direct claim against a governmental entity asserting negligent hiring and supervision, when not grounded in the breach of a statutorily imposed duty owed by the entity to the injured party, may not be maintained.” Id. at 255–56; see also Sandoval ex rel. B.U. v. City of Nat’l City, No. 22-cv-1657-GPC-AGS, 2023 WL 3295590, at *12 (S.D. Cal. May 5, 2023). To the extent that the plaintiff is alleging a theory of direct liability against defendant CHP for negligent hiring, supervision, or ensuring an adequate number of trained employees, plaintiff has not identified a statute providing for defendants’ direct liability. See Heflin v. Cnty. of Los Angeles, 438 F. App’x 596, 597 (9th Cir. 2011)6 (affirming the dismissal of a claim against a California county, stating that plaintiff “points to no statutory language supporting a negligent hiring or supervision claim against a public entity”). Furthermore, “California courts have repeatedly held that there is no statutory basis for direct claims against a public entity for negligent hiring and supervision practices.” Shoval v. Sobzak, No. 09-cv-01348-H-JMA, 2009 WL 2780155, at *4 (S.D. Cal. Aug. 31, 2009) (collecting cases). Defendants also appear to seek summary judgment in their favor on plaintiff’s entire negligence claim against defendant CHP. (Doc. No. 23-1 at 21.) It is not entirely clear if defendants are moving for summary judgment in their favor as to plaintiff’s vicarious liability theory of negligence. In any event, the court finds that defendant CHP has not established its entitlement to summary judgment in its favor as to that claim. In his SAC, plaintiff asserts his negligence claim based upon defendant CHP’s vicarious liability pursuant to California Government Code § 815.2 (see Doc. No. 9 at 16), which states that “[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 . . . have given rise to a cause of action 6 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 36-3(b). against that employee[.]” Cal. Gov’t Code § 815.2(a); see also Mary M. v. City of Los Angeles, 54 Cal. 3d 202, 215 (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.”). Due to the disputed issues of material fact surrounding the reasonableness of defendant Yepez’s actions taken in the course of his duties, summary judgment in favor of defendant CHP as to plaintiff’s vicarious liability theory of negligence is also not appropriate. Accordingly, the court will grant defendants’ motion for summary judgment in their favor with respect to plaintiff’s direct negligence claim against defendant CHP for negligent supervision, hiring, and ensuring adequate numbers of trained employees. However, plaintiff’s negligence claim against defendant CHP based upon a theory of vicarious liability remains. For the reasons explained above, 1. Defendants’ motion for summary judgment (Doc. No. 23) is granted in part and denied in part as follows: a. Defendants’ motion for summary judgment as to plaintiff’s Fourth Amendment claim is denied; b. Defendants’ motion for summary judgement as to plaintiffs’ Fourteenth Amendment claim is granted; c. Defendants’ motion for summary judgment as to plaintiff’s battery claim is denied; d. Defendants’ motion for summary judgment as to plaintiff’s negligence claim against defendant Yepez is denied; and e. Defendants’ motion for summary judgment as to plaintiff’s negligence claim against defendant CHP is granted in part, as follows: i. Defendants’ motion for summary judgment with respect to plaintiff’s negligence claim against defendant CHP for negligent hiring, supervision, and ensuring an adequate number of trained employees is granted; il. Defendants’ motion for summary judgment with respect to plaintiffs negligence claim against defendant CHP based upon a theory of its vicarious liability is denied; and 2. Consistent with the undersigned’s scheduling practices, the court now sets a Final Pretrial Conference on August 22, 2023 at 1:30 p.m. before District Judge Dale A. Drozd by Zoom and a Jury Trial on October 23, 2023 at 9:00 a.m. before Judge Drozd in Courtroom 4.’ The parties are referred to Judge Drozd’s Standing Order (Doc. No. 36) for the requirements of the joint pretrial statement. Dated: _ June 15, 2023 Dal A. 2, el UNITED STATES DISTRICT JUDGE *6 7 Should the Pretrial and Trial dates set by this order be inconvenient for the parties, they are instructed to consult with Judge Drozd’s Courtroom Deputy Pete Buzo (PBuzo @caed.uscourts.gov) and thereafter submit a proposed stipulation and order resetting dates that are convenient for the parties, their counsel, and the court. 22