Nash-Perry v. City of Bakersfield

District Court, E.D. California·Decided August 31, 2021·No. 1:18-cv-01512·Unknown

Opinion

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11 TAMETRIA NASH-PERRY, ) Case No.: 1:18-cv-01512 JLT ) 12 Plaintiff, ) ORDER GRANTING IN PART AND DENYING IN ) PART DEFENDANTS’ MOTION FOR 13 v. ) SUMMARY JUDGMENT ) 14 CITY OF BAKERSFIELD, OFFICER ) ALEJANDRO PATINO, and nominal ) (Doc. 61) 15 defendant JASON OKAMOTO, ) ) 16 Defendants. ) ) 17 ) ) 18 JASON OKAMOTO, individually and as ) successor-in-interest to CHRISTOPHER ) 19 OKAMOTO, and Z.S., by and through her ) guardian ad litem, Brittney Saucedo, ) 20 ) Plaintiffs, ) 21 ) v. ) 22 ) CITY OF BAKERSFIELD and OFFICER ) 23 ALEJANDRO PATINO, ) ) 24 Defendants. ) ) 25 26 Tametria Nash-Perry, Jason Okamoto, and minor Z.S. seek to hold Bakersfield Police Officer 27 Alejandro Patino and the City of Bakersfield liable for the fatal shooting of Christopher Okamoto under 28 federal and state law. (See generally Doc. 38.) Defendants argue Plaintiffs are unable to succeed upon 1 their claims and seek summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. 2 (Doc. 61.) The Court heard the oral arguments of the parties at hearing on August 16, 2021. Because 3 there are genuine issues of material facts remaining and Defendants have not demonstrated their 4 entitlement to judgment, the motion is GRANTED IN PART. 5 I. Background1 6 The decedent, Christopher Okamoto, was 21 years old and lived in an apartment with his 7 girlfriend Britney Saucedo and her daughter Z.S. (See Doc. 65 at 166; JSF 6, 8.) The parents of the 8 decedent—Tametria Nash-Perry and Jason Okamoto—report he treated Z.S. as his own daughter, 9 though he expressed doubts that he was the father to Mr. Okamoto. (See Doc. 61-4 at 22, J. Okamoto 10 Depo. 13:21- 14:11; JSF 7.) In fact, the decedent was not the biological father of Z.S., who was born 11 on December 21, 2017. (See Doc. 61-4 at 26; JSF 6.) 12 Ms. Nash-Perry and Mr. Okamoto report they gave financial assistance to their son after he 13 moved to Bakersfield in the summer of 2018. (See Doc. 61-4 at 13-14, 20; Nash-Perry Depo. 43:4- 14 44:1; J. Okamoto Depo. 11:2-15.) Mr. Okamoto explained he paid the down payment for the 15 decedent’s apartment as well as “half of the rent.” (Id. at 20, J. Okamoto Depo. 11:2-15.) Ms. Nash- 16 Perry reported she gave money to the decedent when he asked, and “from time to time… [would] hand 17 him some cash.” (Id. at 13, Nash-Perry Depo. 43:7-18.) 18 A. Underlying incident 19 On August 19, 2018, the decedent, Britney Saucedo and Z.S were in their apartment located at 20 4809 Hahn Avenue, Apartment No. 46. (JSF 8.) Ms. Saucedo drank “one tall can of [cheap] beer/malt 21 liquor,” which made her feel tired. (JSF 9, Doc. 73-1 at 6; see also Saucedo Depo. 18:3-8.) The 22 decedent “had two or three” of the drinks, and Ms. Saucedo observed that “[he] was drunk, slurring his 23 words.” (JSF 9.) They argued, and cans were “thrown around.” (JSF 10.) In addition, the decedent 24 pushed Ms. Saucedo at one point. (Id.) 25

26 1 The section is a summary of the undisputed facts as well as the parties’ contentions in the matter. The parties 27 submitted a “Joint Statement of Undisputed Material Facts,” which are identified as “UMF.” (Doc. 61-3.) The parties also each prepared separate statements of facts to support their respective positions. Facts prepared by Defendants that were either admitted by Plaintiffs or not disputed by the evidence cited are identified as “DSF” for Defendants’ Separate Fact. 28 (Doc. 61-2; Doc. 66.) Likewise, facts prepared by Plaintiffs that were either admitted or not disputed by the evidence cited 1 Adjacent neighbors, Edward White and Melissa Contreras, could hear “arguing from the 2 Okamoto apartment.” (JSF 11, 12.) Mr. White reported he heard the arguing earlier in the day and later 3 was “awakened by their arguing.” (JSF 12; PSF 10, Doc 73-3 at 4.) “As the argument continued to 4 escalate, Mr. White decided to contact the police to diffuse the situation.” (PSF 10, Doc. 73-3 at 4.) 5 “Mr. White never believed that Saucedo was being choked, nor did he believe anyone inside Mr. 6 Okamoto’s apartment was in immediate danger.” (PSF 11.) 7 During the argument, Timothy Brown, another neighbor who lived in the apartment below the 8 decedent, went upstairs to speak with the decedent. (PSF 5, Doc. 73-3 at 3.) Ms. Saucedo reports that 9 “[a]t some point after Chris came back inside…, he fell asleep by the bed.” (Doc. 68 at 2, Saucedo 10 Decl. ¶ 6.) Mr. Brown reports he did not hear any more noise or movement coming from the Okamoto 11 appointment until later when the police arrived. (See Doc. 65 at 149, Brown Depo. 24:16-25:17.) 12 At approximately 11:27 p.m., Bakersfield Police Officers Alejandro Patino and Eric Celedon 13 “were dispatched 4809 Hahn Street for a call to service related to a domestic violence incident.” (DSF 14 7; see also PSF 1.) “Dispatch advised the officers that a male was possibly choking a female.” (Id.) 15 “Officer Celedon was the first officer to arrive at the apartment complex and Officer Patino 16 arrived shortly thereafter at approximately 11:34 p.m.” (JSF 13.) The officers were not directed to a 17 particular apartment by dispatch and while they were trying to determine which apartment was at issue, 18 Mr. White went down to meet them. (Doc. 61-4 at 49) Mr. White gestured to the decedent’s apartment, 19 but the officers did not question him about the disturbance. (Id.) They allowed Mr. White to return to 20 his apartment before they ascended the stairs. (Id.) 21 “Patino and Celedon proceeded up the staircase toward Christopher Okamoto’s apartment.” 22 (JSF 15.) Although Patino and Celedon did not discuss “a tactical strategy” prior to approaching the 23 apartment, Patino was designated to be the officer “who would make contact at the door.” (PSF 12; 24 JSF 16.) Patino stood on the landing outside the apartment, while Celedon stood on the top stair of the 25 staircase. (Doc. 61-4 at 77, 104; Celedon Depo. 21: 4-11; Patino Depo. 53:17-21.) When he 26 approached the door, Officer Patino had unholstered his gun and was using the flashlight mounted on it 27 to illuminate the door. (Doc. 64-1 at 50; Doc. 65 at 127; Doc. 65-4 at 187; Doc. 75 at 6-7) 28 1 Ms. Saucedo reports2 that she and the decedent “were awakened by loud banging in [their] 2 door.” (PSF 15; Doc. 68 at 2, Saucedo Decl. ¶ 7.) According to Ms. Saucedo, she “never heard anyone 3 outside of the door announce they were the police.” (Doc. 68 at 2, ¶ 9.) In addition, she reports that 4 she “heard Chris continuously ask, who was at [the] door, or words to that effect,” and she “perceived 5 that Chris did not know who was at the door either, let alone the police.” (Id., ¶¶ 9-10.) Similarly, their 6 neighbor Mr. White reports he heard the decedent “scream … who the fuck is that at my door,” “who is 7 that knocking on my damn door,” or words to that effect. (Doc. 65 at 127-28, White Depo. 25:24-26:1, 8 26:14-22.) Officer Patillo testified that the decedent asked more than once words to the effect of “who 9 is at the door?” (Doc. 61-4 at 110-11, Patino Depo. 61:23-62:10; Doc. 61-4 at 111, Patino Depo. 62:12- 10 20.) Ms. Saucedo reports, “The person or persons outside the door did not respond any of the times 11 Chris asked who was at [the] door banging,” and she “thought [they] were being robbed.” (Doc. 68 at 12 3, Saucedo Decl. ¶¶ 11, 13.) 13 Ms. Saucedo reports they “lived in a high crime area” and she was in fear of her life and her 14 daughter’s life. (Id., ¶¶ 14-15; Saucedo Depo. 23:10-14.) Ms. Saucedo observed the decedent retrieve 15 a BB gun, and she told the decedent to “just open [the door] and see who it is.” (Saucedo Depo. 23:10- 16 14,24:17-19.) In the meantime, Ms.

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28 2 The parties present differing accounts of what occurred after the police approached the apartment. Thus, for 1 and the decedent was “standing in … a one-handed shooter position,” with “his right arm fully 2 extended out and [he had] the firearm pointed … directly at [him], at [his] head.” (Id.) Patino said, 3 “The only thing I could do was step over to the left to try to get offline from where he’s aiming that 4 firearm, and then I begin to fire.” (Id. at 117, Patino Depo. 70:1-6.) He fired six rounds in his first 5 volley. (Id. at 120, Patino Depo. 73:22-25.) Patino testified that “[a]fter the first volley, [the 6 decedent’s] position changed,” as the decedent “took a step back, back away from [Patino].” (Patino 7 Depo. 96:4-97:4.) Patino fired two shots in a second volley. (Depo. 74:1-5.) The decedent “was shot 8 six separate times during the incident.” (PSF 43, Doc. 73-3 at 12-13.) After the shooting, the decedent 9 was “laying just inside of the doorway on his back, arms up near his head, with a firearm near his right 10 hand.” (Celedon Depo. 45:1-5.) 11 B. Findings of the Medical Examiner 12 Dr. Robert Whitmore, a forensic pathologist, performed the autopsy on August 24, 2018, and 13 prepared a report detailing his findings. (Doc. 65 at 175-180.) Dr. Whitmore noted there were “six 14 gunshot wounds on the body and a graze gunshot wound of the right cheek.” (Id. at 177.) Dr. 15 Whitmore observed there were “[f]our penetrating and perforating gunshot wounds of the anterior left 16 trapezius, anterior left shoulder, and upper anterior left arm associated with multiple fragment wounds;” 17 and “[t]wo penetrating gunshot wounds of the left anterior chest and associated with multiple fragment 18 wounds.” (Id. at 175; see also PSF 51, Doc. 73-3 at 14.) Dr. Whitmore found “five exit wounds located 19 on the upper outer left back, posterior left shoulder and posterior upper left upper arm.” (Id. at 177.) 20 Two shots struck the decedent “in the outer left chest in a front to back[,] left to right (westbound 21 direction) trajectory.” (PSF 46; Doc. 65 at 177 ¶ D.) In Dr. Whitmore’s opinion the bullets that struck 22 the decedent in the left trapezius, left shoulder, and left upper arm traveled in a “front to back” 23 direction. (See PSF 48; Doc. 65 at 177 ¶ D.) 24 Dr. Whitmore located “[a] deformed medium-caliber bullet … in [the] T3 vertebra” and a bullet 25 jacket on “the left side of T8 vertebra,” and recovered “[a] deformed apparent medium- caliber lead 26 core … from [the] T8 .” (Doc. 65 at 177 ¶ C.) Dr. Whitmore testified that the bullet “core went 27 through the vertebra,” and “a bullet through the vertebra is going to cause loss of function.” (Id. at 82, 28 Whitmore Depo. 75:2-9.) Further, Dr. Whitmore testified that a transection of the spinal cord at the T3 1 level—which he found during the autopsy—would “cause probable immediate collapse.” (Id. at 83-84, 2 Whitmore Depo. 76:17- 77:19.) Plaintiffs contend the physical evidence identified by Dr. Whitmore 3 contradicts Patino’s claim that the decedent pointed the BB gun at Patino’s head with his right hand, 4 while in a one-handed shooter position. (See PSF 61.) 5 C. Procedural History 6 On October 31, 2018, Ms. Nash-Perry initiated this action by filing a complaint asserting 7 constitutional claims on her own behalf and constitutional, state law, and survivorship claims on behalf 8 of the decedent. (Doc. 1.) In addition, Mr. Okamoto and Z.S. filed a complaint on August 14, 2019. 9 (See Doc. 1, Case No. 1:19-cv-1125-LJO-JLT.) Mr. Okomoto sought to state claims on his own behalf 10 and as the decedent’s successor-in-interest, while Z.S. sought to state claims in her individual capacity. 11 (Id.) The Court consolidated the actions on November 8, 2019. (Doc. 42.) 12 Ms. Nash-Perry identified the following claims for relief in her Fourth Amended Complaint: (1) 13 unreasonable use of deadly force; (2) violation of substantive due process; (3) interference with familial 14 relationship and freedom of association; (4) battery; (5) negligence; (6) Monell liability for an 15 unconstitutional custom, practice, or policy; (7) Monell liability for inadequate training; and (8) Monell 16 liability for ratification of wrongful acts. (See generally Doc. 38 at 1, 10-28.) Similarly, Mr. Okamoto 17 and Z.S. identified the following claims for relief against the City of Bakersfield and Officer Patino: (1) 18 excessive force in violation of the Fourth and Fourteenth Amendments, (2) violation of substantive due 19 process under the Fourteenth Amendment, (3) conspiracy to violate civil rights, and (4) wrongful death 20 under California law. (Doc. 1, Case No. 1:19-cv-1125-LJO-JLT.) 21 On June 16, 2021, the parties stipulated to dismiss several causes of action with prejudice. 22 (Doc. 59.) Ms. Nash-Perry agreed to dismiss the Sixth, Seventh, and Eighth causes of action asserting 23 Monell liability. (Id. at 2.) Mr. Okamoto and Z.S. agreed to dismiss their claims against the City of 24 Bakersfield for violations of the Fourth and Fourteenth Amendments. (Id.) In addition, Mr. Okamoto 25 and Z.S. dismissed their third cause of action for conspiracy to violate civil rights against both 26 defendants. (Id.) The Court approved the stipulation and dismissed the claims with prejudice on June 27 21, 2021. (Doc. 60.) 28 Defendants filed the motion for summary judgment now pending before the Court on July 8, 1 2021. (Doc. 61.) Plaintiffs filed their opposition to the motion on July 27, 2021 (Doc. 64), to which 2 Defendants filed a reply on August 6, 2021 (Doc. 73). 3 II. Legal Standards for Summary Judgment 4 The “purpose of summary judgment is to pierce the pleadings and to assess the proof in order 5 to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio 6 Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is appropriate when there is 7 “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 8 Fed. R. Civ. P. 56(a). In addition, Rule 56 allows a court to grant summary adjudication, or partial 9 summary judgment, when there is no genuine issue of material fact as to a particular claim or portion 10 of that claim. Fed. R. Civ. P. 56(a); see also Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 11 1981) (“Rule 56 authorizes a summary adjudication that will often fall short of a final determination, 12 even of a single claim . . .”) (internal quotation marks, citation omitted). The standards that apply on a 13 motion for summary judgment and a motion for summary adjudication are the same. See Fed. R. Civ. 14 P. 56 (a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998). 15 Summary judgment, or summary adjudication, should be entered “after adequate time for 16 discovery and upon motion, against a party who fails to make a showing sufficient to establish the 17 existence of an element essential to that party’s case, and on which that party will bear the burden of 18 proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the “initial 19 responsibility” of demonstrating the absence of a genuine issue of material fact. Id., 477 U.S. at 323. 20 An issue of fact is genuine only if there is sufficient evidence for a reasonable fact finder to find for the 21 non-moving party, while a fact is material if it “might affect the outcome of the suit under the 22 governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Wool v. Tandem 23 Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 1987). A party demonstrates summary adjudication of 24 a claim is appropriate by “informing the district court of the basis of its motion, and identifying those 25 portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with 26 affidavits, if any,’ which it believes demonstrates the absence of a genuine issue of material fact.” 27 Celotex, 477 U.S. at 323 (quoting Fed. R. Civ. P. 56(c)). 28 If the moving party meets its initial burden, the burden then shifts to the opposing party to 1 present specific facts that show there is a genuine issue of a material fact. Fed R. Civ. P. 56(e); 2 Matsushita, 475 U.S. at 586. An opposing party “must do more than simply show that there is some 3 metaphysical doubt as to the material facts.” Id. at 587. The party is required to tender evidence of 4 specific facts in the form of affidavits, and/or admissible discovery material, in support of its 5 contention that a factual dispute exits. Id. at 586 n.11; Fed. R. Civ. P. 56(c). Further, the opposing 6 party is not required to establish a material issue of fact conclusively in its favor; it is sufficient that 7 “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 8 versions of the truth at trial.” T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 9 626, 630 (9th Cir. 1987). However, “failure of proof concerning an essential element of the 10 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. 11 The Court must apply standards consistent with Rule 56 to determine whether the moving 12 party demonstrated there is no genuine issue of material fact and judgment is appropriate as a matter of 13 law. Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). In resolving a motion for summary 14 judgment, the Court can only consider admissible evidence. Orr v. Bank of America, NT & SA, 285 15 F.3d 764, 773 (9th Cir. 2002) (citing Fed. R. Civ. P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854 16 F.2d 1179, 1181 (9th Cir. 1988)). Further, evidence must be viewed “in the light most favorable to the 17 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party. 18 Orr, 285 F.3d at 772; Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). 19 III. Evidentiary Objections 20 Defendants have raised several objections to the evidence submitted by Plaintiffs in support of 21 their opposition to summary judgement, including the discovery responses from Ms. Nash-Perry, the 22 report of James Bryant, the declaration of Brittney Saucedo, and the autopsy photos. (Doc. 73-4.) 23 A. Responses to Interrogatories- Exhibit 15 24 Plaintiffs submitted Ms. Nash-Perry’s “Responses to Defendant Alejandro Patino’s 25 Interrogatories, Set No. One” as Exhibit 15 in support of their opposition to summary judgment. (See 26 Doc. 65 at 194-98.) Defendants object to this evidence because the discovery responses were not 27 verified, neither when served upon Defendants nor in support of the opposition. (Doc. 73-4 at 2; see 28 also Doc. 73-1 at 2, Cohen Decl. ¶ 1.) Because the responses to interrogatories were not signed under 1 oath, Defendants request the Court disregard this evidence in evaluating the merits of the motion for 2 summary judgment. 3 Under Rule 33 of the Federal Rules of Civil Procedure, a party answering interrogatories has an 4 affirmative duty to provide a full and complete response. Fed. R. Civ. P. 33(b)(3)-(4). In addition, 5 Rule 33(b)(3) requires that answers to interrogatories be verified: “Each interrogatory must, to the 6 extent it is not objected to, be answered separately and fully in writing under oath.” Id. (emphasis 7 added). Thus, for discovery responses to be admissible evidence, they must be signed under oath. See 8 Blevins v. Marin, 2013 WL 718869, at *1 (E.D. Cal. Oct. 11, 2013) (“all responses to interrogatories 9 and requests for admission must be verified—that is, bear plaintiff’s signature attesting under penalty 10 of perjury that his responses are true and correct—in order to be an admissible form at summary 11 judgment”). 12 When discovery responses are not verified or signed under oath, courts have repeatedly 13 determined the unverified discovery may not be considered by a court evaluating a motion for 14 summary judgment. See, e.g., Blevins v. Marin, 2013 WL 718869, at *1; Wilson v. Frito-Lay N. Am., 15 Inc., 260 F. Supp. 3d 1202, 1212 (N.D. Cal. 2017) (disregarding interrogatory responses submitted in 16 opposition to summary judgment that the plaintiff “did not sign or verify… when they were served,” 17 finding the interrogatory responses were inadmissible); United States ex rel. Dahlstrom v. Sauk- 18 Suiattle Indian Tribes, 2019 WL 4082944 (W.D. Wash. Aug. 29, 2019) (noting the requirements of 19 Rule 33 that interrogatories be answered “in writing under oath,” and finding an “unsigned and 20 unverified interrogatory response is insufficient to raise a genuine factual dispute meriting trial”); 21 Cavanagh v. Ford Motor Co., 2017 WL 2805057, at *7 (E.D.N.Y. June 9, 2017) (holding unverified 22 answers to interrogatories cannot “create a genuine issue of material fact that would allow Plaintiffs to 23 survive summary judgment”); see also Kincaid v. Anderson, 681 Fed. App’x 178, 181 (4th Cir. 2017) 24 (“Although interrogatory answers are appropriate materials for summary judgment purposes, … 25 responses here were not properly attested, and the district court did not abuse its discretion in refusing 26 to accept them”). Consequently, because the responses to interrogatories from Ms. Nash-Perry were 27 not verified, the Court finds the evidence is inadmissible and “Exhibit 15” will not be considered in 28 support of Plaintiffs’ opposition to summary judgment. 1 B. Expert Report of Richard Bryce- Exhibit 9 2 Plaintiffs attached the Rule 26 Report of expert Richard Bryce as “Exhibit 9” to in opposition 3 to the motion. (Doc. 65 at 152-163.) Defendants object to this evidence, noting that the “report was 4 not included in any affidavit by Mr. Bryce, but was merely attached to the Declaration of Plaintiffs’ 5 counsel, James Bryant.” (Doc. 73-4 at 3.) Defendants argue, “The Bryce report cannot be considered 6 and should be stricken in that it is unsworn and constitutes hearsay.” (Id. at 4.) 7 Pursuant to Rule 56(c) of the Federal Rules of the Civil Procedure, “an affidavit or declaration 8 used to support or oppose a motion must be made on personal knowledge, set out facts that would be 9 admissible in evidence, and show that the affiant or declarant is competent to testify on the matters 10 stated.” See also Block v. City of Los Angeles, 253 F.3d 410, 419 (9th Cir. 2001) (holding it was an 11 abuse of discretion for the district court, at the summary judgment stage, to consider information from 12 an affidavit based on inadmissible hearsay rather than the affiant’s personal knowledge). Thus, it is 13 not sufficient for the report of an expert to be attached to the declaration of counsel, who cannot testify 14 about the expert’s statements. See Harris v. Estendicare Homes, Inc., 829 F. Supp. 2d 1023, 1027 15 (W.D. Wash. Nov. 4, 2011) (striking as hearsay the expert report submitted in opposition to summary 16 judgment because “counsel attached [the] reports to his declaration, but he is not competent testify 17 about the matters therein”). 18 Swearing under penalty of perjury that the expert will testify to the contents of the report is an 19 accepted method for the party to allow a court to consider expert reports for summary judgment. Amer. 20 Fed. of Musicians of U.S. and Canada v. Paramount Pictures Corp., 903 F.3d 968, 976-77 (9th Cir. 21 2018). It is well-established within the Ninth Circuit that unsworn expert reports cannot be used to 22 create a triable issue of fact for purposes of summary judgment. See, e.g., Shuffle Master, Inc. v. MP 23 Games LLC, 553 F.Supp.2d 1202, 1210-11 (D. Nev. 2008) (“an unsworn expert report is 24 inadmissible”); King Tuna, Inc. v. Anova Food, Inc., 2009 WL 650732, *1 (C.D. Cal. Mar. 10, 2009) 25 (“unsworn expert reports are not admissible to support or oppose summary judgment and that to be 26 competent summary judgment evidence, an expert report must be sworn to or otherwise verified, 27 usually by a deposition or affidavit”); Estate of Nunez v. Cty. of San Diego, 2018 WL 5817091 (S.D. 28 Cal. Nov. 3, 2018) (declining to consider expert reports that were not signed under penalty of perjury 1 and were not accompanied by any separate sworn declaration from the experts); see also Competitive 2 Techs., Inc. v. Fujitsu Ltd., 333 F. Supp. 2d 858, 863 (N.D. Cal. 2004) (court has discretion to consider 3 expert reports that are signed but unsworn submitted in opposition to summary judgment). Here, the 4 expert report of Mr. Bryce is neither signed nor sworn by Mr. Bryce3. (See Doc. 65 at 163.) Therefore, 5 the Court finds it is inadmissible at this juncture.4 6 C. Statements in the Declaration of Brittney Saucedo 7 Defendants object to statements contained in Paragraphs 6-7, 9, and 12 of the declaration of 8 Brittney Saucedo, asserting that it is “in many ways, contrary to the testimony she gave in her 9 deposition, lacks foundation, and is misleading based on her deposition testimony.” (Doc. 73-4 at 5, 10 footnote omitted.) 11 1. Sham affidavit rule 12 As Defendants note, “[t]he Sham Affidavit Rule prevents ‘a party who has been examined at 13 length on deposition from raising an issue of fact simply by submitting an affidavit contradiction his 14 own prior testimony, which would greatly diminish the utility of summary judgment as a procedure for 15 screening out sham issues of fact.’” (Doc. 73-4 at 4, n. 2, citing Kennedy v. Allied Mut. Ins. Co., 952 16 F.2d 262, 266 (9th Cir. 1991).) 17 The Ninth Circuit explained the rule “should be applied with caution,” and applies only in 18 limited circumstances. School District No.1J v. AC & S Inc., 5 F.3d 1255, 1264 (9th Cir. 1993); see 19 also Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (explaining the sham affidavit rule has 20 limited application “because it is in tension with the principle that the court is not to make credibility 21 determinations when granting or denying summary judgment”). Importantly, the sham affidavit rule 22 applies only to parties, and Ms. Saucedo is not a party in this action. Instead, Ms. Saucedo appears 23 only as guardian ad litem for Z.S. Thus, it is not clear that the rule may be applied in this action. 24

25 3Mr. Bryce’s report adds very little to the analysis. Plaintiffs refer to this report only for the proposition that the landing outside of the decedent’s home was large enough to allow both officers to stand on it. The photos, set forth in 26 Plaintiffs’ Exhibit 10, depict the area sufficiently without regard for Mr. Bryce’s opinion. 4 Courts have determined “a party can ‘cure’ the defect of an unsworn expert’s report by proffering the sworn 27 deposition or declaration of the expert.” Liebling v. Novartis Pharms. Corp., 2014 WL 12576619, at *1 (C.D. Cal. Mar. 24, 2014) (collecting cases); see also Martinez v. United States, 2019 WL 266210, n.6 (E.D. Cal. Jan. 18, 2019) (finding the 28 plaintiff cured the procedural deficiency of the original filing by submitting a sworn declaration from the expert and 1 2. Paragraphs 6-7 2 In these paragraphs of the declaration, Ms. Saucedo reports that “after Chris came back inside 3 our house, he fell asleep by the bed” and “[a]bout 15 minutes thereafter, Chris and I were awakened by 4 loud banging in our door.” (Doc. 68 at 2, ¶¶ 6-7.) Defendants contend these statements are “contrary 5 to her deposition and lack foundation,” because at the deposition Ms. Saucedo testified only that she 6 “was tired” but did not mention sleeping: 7 Q. And you said that it made you drowsy.

8 A. Well, I was tired. I wasn’t – ‘cause it was 11:30 we stay up that night, and I guess he just wanted to look for an argument with me in that time, and I just wanted 9 to go to sleep because it had been eleven o'clock and we were supposed to be in bed by then so ... 10 11 (Doc. 73-4 at 5, quoting Saucedo Depo. 18:3-8) 12 The context of this testimony is the amount of alcohol Ms. Saucedo had and its affect upon her, 13 as Ms. Saucedo reported she had “one tall can” between 2 p.m. and 11 p.m., which made her tired. 14 (Saucedo Depo. 17:16-18:4.) Ms. Saucedo did not testify that she did not fall asleep or make any other 15 statement that directly contradicts the declaration. Instead, the statements can be harmonized to reveal 16 that the alcohol made Ms. Saucedo sleepy during the afternoon and the evening, and the couple later 17 fell asleep. 18 Defendants have not explained why they believe Ms. Saucedo’s testimony lacks foundation, and 19 the Court declines to speculate as to the basis for the objection, or as to which portions of the 20 paragraphs Defendants seek to strike on these grounds. Accordingly, Defendants’ objections to the 21 statements in Paragraphs 6 and 7 are overruled. 22 3. Paragraphs 9 and 17 23 Ms. Saucedo stated in her declaration that she “never heard anyone outside of the door 24 announce they were the police and perceived that Chris did not know who was at the door either, let 25 alone the police.” (Doc. 68 at 2, ¶ 9.) In addition, she reported that she “could perceive that Chris did 26 not know [who was] banging on our door based on him asking who was at the door.” (Id. at 3, ¶ 17.) 27 Defendants object to these statements on the grounds that they lack foundation, are speculative, lack 28 personal knowledge, and are misleading. (Doc. 73-4 at 5-6.) 1 Defendants observe that during her deposition, Ms. Saucedo testified: “I believe I did have 2 hearing problems that night.” (Doc. 73-4 at 5, citing Saucedo Depo. 22:7-25, 23:5-9.) Ms. Saucedo 3 stated she had a habit of stopping listening when in a tense situation, and the night of the incident she 4 stopped hearing what was going on. (Id.) For example, Ms. Saucedo stated: “Chris [was] probably 5 talking to me, trying to help me, but I – I don’t really recall him saying anything.” (Id.) 6 Importantly, Defendants have not identified any specific contradiction between the deposition 7 testimony and the declaration. Instead, Ms. Saucedo’s declaration statement that she did not hear 8 anyone announce the police presence is consistent with her reported habit of not hearing things in 9 tense situations. Also, the statement that Ms. Saucedo “perceived that Chris did not know who was at 10 the door either,” it is supported by the personal observations of Ms. Saucedo who also reported she 11 “heard Chris continuously ask, who was at our door, or words to that effect.” (Doc. 68 at 2, ¶ 10.) 12 Defendants’ objections to the statements in Paragraph 9 are overruled. 13 4. Paragraph 12 14 In the declaration, Ms. Saucedo reports that she “looked out of the peephole and did not see 15 anyone outside of [the] door.” (Doc. 68 at 3, ¶ 12.) Defendants object to this statement on the grounds 16 that it “lacks foundation, is misleading, and is irrelevant.” (Doc. 73-4 at 6.) 17 Again, Defendants fail to explain the objection that the statement “lacks foundation,” as it is 18 clear Ms. Saucedo may testify as to her own actions and perceptions. The statement does not contradict 19 her deposition testimony in which she reported that she looked through the peephole before there was 20 any banging on the door, but not after. (See Saucedo Depo. 25:17-22.) Defendants’ objections 21 Paragraph 12 are overruled. 22 D. Autopsy Photos- Exhibit 12 23 Defendants object to the autopsy photos identified as “Exhibit 12” to the declaration of James 24 Bryant, asserting Plaintiffs “submitted no expert opinion which explains the significance of these 25 photos in the context of this lawsuit.” (Doc. 73-4 at 6, citing Dudley v. Bexar Cty., 2014 U.S. Dist. 26 LEXIS 169913 (W.D. TX Dec. 9, 2014) [finding photographs depicting bullet holes and shell casings 27 to be of “limited probative value” because the plaintiff did not present any expert testimony interpreting 28 the photographs].) 1 Notably, in support of the opposition to summary judgment, Plaintiffs requested permission to 2 file the autopsy photos as “Exhibit 12” under seal. (Doc. 69.) The Court granted the motion and 3 ordered the documents to be submitted to the Court within three court days. (Doc. 70 at 3.) However, 4 it appears Plaintiffs have elected to not rely upon this evidence, because they did not submit the photos 5 for docketing. Because the documents have not been submitted in evidence, Defendants’ objections 6 thereto are moot. 7 E. Evidence Considered by the Court 8 When evaluating a motion for summary judgment, the court “cannot rely on irrelevant facts, 9 and thus relevance objections are redundant.” Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d 10 1110, 1119 (E.D. Cal. 2006). Likewise, “improper legal conclusions ... are not facts and likewise will 11 not be considered on a motion for summary judgment.” Id. Accordingly, the Court has relied only 12 upon any evidence it deems admissible in evaluating the merits of the motion for summary judgment 13 now before the Court. 14 IV. Discussion and Analysis 15 Defendants seek summary judgment of all remaining claims in the action and assert that 16 “Defendants are entitled to judgment as a matter of law as to all claims alleged.” (Doc. 61-1 at 16-33.) 17 Plaintiffs contend genuine issues of material fact preclude summary adjudication of their claims 18 because “[w]hen the facts in this case are viewed in the light most favorable to Plaintiffs, they show 19 that the officers used excessive force against [the decedent] when they shot him.” (See Doc. 64 at 20.) 20 A. Standing of Plaintiffs 21 As an initial matter, Defendants assert that “neither Ms. Nash-Perry or Mr. Okamoto have 22 standing to bring any claim[] other than the Fourteenth Amendment Claim, because of Z.S.’s status as 23 Christopher’s non-biological child and because neither were financially dependent on him.” (Doc. 61- 24 1 at 16.) On the other hand, Plaintiffs assert Ms. Nash-Perry and Mr. Okamoto have standing to assert 25 claims related to the wrongful death of their son under California law. (Doc. 64 at 13-14.) In addition, 26 the parties disagree regarding whether Z.S. has standing to bring a claim under the Fourteenth 27 Amendment. (Docs. 77, 78.) 28 /// 1 1. Judicial admission 2 Defendants argued for the first time at the hearing and in the supplemental briefing that 3 Plaintiffs’ complaints contain admissions related to the relationship between the decedent and Z.S. 4 (Doc. 77 at 2.) Defendants note that “Jason Okamoto and Z.S.’s Complaint clearly articulates that 5 Christopher Okamoto ‘held Z.S. out to the community as his daughter.’” (Id., quoting Case No. 1:19- 6 cv-1125-LJO-JLT, Doc. 1 at 3, ¶ 2.) Defendants contend “this statement was a judicial admission.” 7 (Id.) 8 The Ninth Circuit explained that “judicial admissions” include “formal admissions in the 9 pleadings which have the effect of withdrawing a fact from issue and dispensing wholly with the need 10 for proof of the fact.” American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988). In 11 general, “a statement in a complaint may serve as a judicial admission.” Sicor Ltd. v. Cetus Corp., 51 12 F.3d 848, 859-60 (9th Cir. 1995). Under federal law, judicial admissions “are generally binding on the 13 parties and the Court.” Lacelaw Corp., 861 F.2d at 226 (citation omitted). However, whether “to treat 14 a statement as a binding judicial admission” is committed to the discretion of the Court. Id. at 227 15 (reviewing the findings of the district court to determine whether there was an abuse of the court’s 16 discretion); see also Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997) (“A 17 trial judge has discretion whether to accept a judicial admission”). 18 In the complaint filed by previous counsel, Plaintiffs also asserted Z.S. was “dependent upon 19 Decedent for at least one-half of her support, and … resided with Decedent for at least one hundred- 20 eighty days prior to Decedent’s passing.” (Case No. 1:19-cv-1125-LJO-JLT, Doc. 1 at 3, ¶ 2.) 21 Following the filing of the complaints, the parties learned facts through discovery that contradicted the 22 allegations, including that Z.S. did not live with the decedent for 180 days. (See Doc. 64 at 13.) In 23 addition, despite the allegations presented in the complaint, Defendants questioned both Ms. Nash- 24 Perry and Mr. Okamoto during their depositions about the relationship of the decedent and Z.S. and his 25 financial support for the child. (See Doc. 64-1 at 9-12, 20-22.) Given the contrary evidence presented, 26 the Court finds the allegations related to Z.S. did not “dispens[e] wholly with the need of proof for the 27 fact,” and the defense did not rely upon these allegations. Thus, the Court declines to exercise its 28 discretion to find the statements in the Okamoto complaint were a “judicial admission.” See, e.g., 1 Singer, 116 F.3d at 376-77 (supporting the district judge’s discretion to find a judicial admission “[i]n 2 the absence of any conflicting evidence”); Parker v. Arizona, 2019 WL 2136290 at *3 (D. Az. May 13, 3 2019) (declining to characterize statements of anticipated facts made “during the early stages of the 4 case” as judicial admissions). 5 2. Survival claims 6 “In a survival action, a decedent’s estate may recover damages on behalf of the decedent for 7 injuries that the decedent has sustained.” Davis v. Bender Shipbuilding & Repair Co., 27 F.3d 426, 8 429 (9th Cir. 1994). Survivors of an individual may bring claims arising under 42 U.S.C. § 1983 “if 9 the relevant state’s law authorizes a survival action.” Hayes v. County of San Diego, 736 F.3d 1223, 10 1228 (9th Cir. 2013) (quoting Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir. 11 1998)). Here, the parents seek to state Section 1983 claims for violations of civil rights on behalf of 12 their deceased son. 13 To determine whether a plaintiff may bring a survivor action, the Ninth Circuit instructs that 14 the Court rely upon California Code of Civil Procedure Section 377.30, rather than Section 377.60. 15 Hayes, 736 F.3d at 1129. In relevant part, Section 377.30 provides that “[a] cause of action that 16 survives the death of the person entitled to commence an action or proceeding passes to the decedent’s 17 successor in interest...and an action may be commenced by the decedent’s personal representative or, 18 if none, by the decedent’s successor in interest.” Cal. Code Civ. P. § 377.30. Thus, a Section 1983 19 survival claim may be prosecuted by a successor in interest “[w]here there is no personal 20 representative for the estate.” Tatum v. City & County of S.F., 441 F.3d 1090, 1093 n.2 (9th Cir. 2006). 21 California Code of Civil Procedure § 377.11 defines a successor in interest as (1) “the 22 beneficiary of decedent’s estate” or (2) any “other successor in interest who succeeds to a cause of 23 action….” In the context of an intestate decedent, the “beneficiary of the decedent’s estate” is “a 24 person who succeeds to claims or property under Probate Code sections 6401 and 6402.” Cal. Code 25 Civ. Proc. § 377.10(b). Further, under California Probate Code 6402(a), if an individual dies intestate 26 without a surviving spouse, the decedent’s estate passes to “the issue of the decedent.” Id. In the 27 event the decedent has no surviving issue, the estate passes “to the decedent’s parent or parents 28 equally.” Id., § 6402(b). 1 It is undisputed that the decedent did not have biological children. The defense asserts that the 2 decedent was the presumed father of Z.S. However, the evidence upon which they rely is mixed. Ms. 3 Nash-Perry asserts that the decedent began providing for the child after she told him that if he felt the 4 baby was his, he should “do the right thing, and that is what he did.” (Doc. 61-4 at 9-10.) She 5 explained that “from the day he knew that Brittney was pregnant to the date he passed away, his 6 understanding he was the father.” (Id.) Mr. Okamoto testified that the decedent was taking care of the 7 child and his girlfriend despite having expressed doubts about whether the child was his. (Doc. 61-4 at 8 22.) This is not the unequivocal, open, and public expression of parenthood that Family Code section 9 7611(d) contemplates. See In re Spencer W. 48 Cal.App.4th 1647, 1653-1654 (Cal.App. 4 Dist.,1996). 10 On the other hand, without the paternity presumption, it is undisputed that as the non- 11 biological child of the decedent, Z.S. is not a successor in interest. Plaintiffs acknowledge that Z.S. 12 lived with the decedent for only approximately two months, and she does not satisfy the requirement 13 that “minor reside[] for the previous 180 days in the decedent’s household and [be] dependent on the 14 decedent for one-half or more of the minor’s support.” (Doc. 65 at 13, noting requirements under 15 Section 3774.60.) Thus, Plaintiffs concede Z.S. “is not eligible as an heir.” (Id.) The Court finds that, 16 as the surviving parents of the decedent, Plaintiffs Jason Okamoto and Tametria Nash-Perry have 17 standing to act as the decedent’s successors in interest. 18 3. Wrongful death claims 19 Defendants also argue that “Ms. Nash Perry and Mr. Okamoto cannot bring a wrongful death 20 claim because they lack standing under California Code of Civil Procedure Section 377.60.” (Doc. 21 61-1 at 16.) Plaintiffs respond that “Jason Okamoto and Tametria Nash-Perry are the only heirs 22 eligible to bring a claim for wrongful death against Defendants” under California law. (Doc. 64 at 14, 23 emphasis omitted.) 24 In general, “[i]n a wrongful death action, the decedent’s dependents ... pursue claims for 25 personal injuries they have suffered as a result of a wrongful death.” Davis v. Bender Shipbuilding & 26 Repair Co., 27 F.3d 426, 429 (9th Cir. 1994). Standing to bring a wrongful death claim is governed by 27 California Code of Civil Procedure § 377.60, and “[t]he category of persons eligible to bring wrongful 28 death actions are strictly construed.” Phraner v. Cote Mart, Inc., 55 Cal.App.4th 166, 168 (1997); see 1 also Medrano v. Kern Cty. Sheriff's Officer, 921 F. Supp. 2d 1009, 1018 (E.D. Cal. 2013) (“Standing 2 to sue is governed by California Code of Civil Procedure § 377.60, and the categories of persons 3 eligible to bring wrongful death actions are strictly construed.”). In relevant part, Section 377.60 4 provides: 5 A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent’s 6 personal representative on their behalf:

7 (a) The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, 8 including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession. If the parents of the decedent would 9 be entitled to bring an action under this subdivision, and the parents are deceased, then the legal guardians of the decedent, if any, may bring an action under this 10 subdivision as if they were the decedent’s parents.

11 (b) (1) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, parents, 12 or the legal guardians of the decedent if the parents are deceased.

13 (2) As used in this subdivision, “putative spouse” means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith 14 that the marriage to the decedent was valid.

15 (c) A minor, whether or not qualified under subdivision (a) or (b), if, at the time of the decedent’s death, the minor resided for the previous 180 days in the decedent’s 16 household and was dependent on the decedent for one-half or more of the minor’s support. 17 18 Cal. Civ. Code § 377.60. 19 A decedent’s parents become heirs under the wrongful death statute when there is no surviving 20 issue. See Cal. Prob. Code, § 6402(b); Chavez v. Carpenter, 91 Cal.App.4th 1433, 1440 (2001). 21 However, “[r]egardless of their status as heirs, parents may sue for the wrongful death of their child if 22 they were dependent on the decedent.” Chavez, 91 Cal.App.4th at 1440 (quoting Code Civ. Pro. § 23 377.60(b)); see also Foster v. City of Fresno, 392 F.Supp.2d 1140, 1146 (E.D. Cal. 2005). Accordingly, 24 “a parent may only assert a wrongful death claim if there are no children or issue or if ... she is 25 dependent on the decedent.” Foster, 392 F. Supp.2d at 1146 (emphasis added). 26 Again, it is undisputed that Z.S. is not the child or issue of the decedent, and “Z.S. does not 27 meet the standing requirements pursuant to section 377.60(c) in order to bring a claim for wrongful 28 death.” (Doc. 64 at 14.) Thus, Ms. Nash-Perry and Mr. Okamoto have standing to act as the heirs of 1 the decedent, whether they were dependent upon the decedent. See Foster, 392 F. Supp.2d at 1146. 2 Consequently, at the hearing, counsel for Z.S. agreed that her claims, except for the Fourteenth 3 Amendment claim, should be adjudicated against her. 4 4. Standing of Z.S. under the Fourteenth Amendment5 5 There is a constitutionally protected liberty interest in the companionship and society of a parent 6 and child. Ward v. City of San Jose, 967 F.2d 280, 283 (9th Cir. 1992); Lemire v. Cal. Dep’t. of 7 Corrections & Rehabilitation, 726 F.3d 1062, 1075 (9th Cir. 2013). Thus, parents and children of an 8 individual killed by law enforcement offers may bring a claim for a violation of the Fourteenth 9 Amendment. Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 371 (9th Cir. 1998). 10 Defendants contend, “Z.S. has no standing to make a Fourteenth Amendment claim.” (Doc. 77 11 at 2.) Defendants observe that “[h]istorically, the Supreme Court’s family and parental- rights holdings 12 have involved biological families.” (Id. at 3, citing Smith v. Organization of Foster Families for 13 Equality and Reform (OFFER), 431 U.S. 816, 842-43 (1977), emphasis in original.) For example, 14 Defendants note the Fifth Circuit and Seventh Circuit courts “refused to accord foster parents a 15 constitutionally protected liberty interest in the foster family relationship where the foster care 16 agreement involved only temporary care of a child during a transitional period in the child’s life.” (Id., 17 citing Kyees v. County Dep’t of Public Welfare, 600 F.2d 693, 698-99 (7th Cir. 1979); Drummond v. 18 Fulton County Dep't of Family & Children’s Servs., 563 F.2d 1200, 1206, 1208 (5th Cir. 1977), cert. 19 denied, 437 U.S. 910 (1978).) Further, Defendants observe that the Ninth Circuit determined 20 noncustodial godparents did not have protected liberty interests in visiting their grandchildren, and 21 foster parents similarly lacked cognizable liberty interests. (Id., citing Miller v. California, 355 F.3d 22 1172 (9th Cir. 2004); Backlund v. Barnhart, 778 F.2d 1386 (9th Cir. 1985).) 23 Defendants acknowledge that “[c]ourts applying OFFER have reached varying conclusions 24 regarding whether parents have a protected familial relationship with their non-biological children,” 25 and a liberty interest was recognized by the Second Circuit and Tenth Circuit courts where there was 26 27 5 Although Defendants challenged the standing of the decedent’s parents, the parties did not address Z.S.’s standing 28 to raise a Fourteenth Amendment claim in the motion to summary judgment or the opposition. Therefore, the parties 1 “significant evidence of a sustained long term relationship.” (Doc. 77 at 3-4, citing, e.g., Rivera v. 2 Marcus, 696 F.2d 1016, 1024 (2d Cir. 1982); Elwell v. Byers, 699 F.3d 1208, 1211 (10th Cir. 2012).) 3 However, Defendants maintain there is no evidence of a relationship like those considered by the courts 4 in Rivera and Elwell. (Id. at 4.) 5 Plaintiffs maintain “Z.S. has standing to sue under the Fourteenth Amendment in her individual 6 capacity.” (Doc. 78 at 2, emphasis omitted.) Plaintiffs observe that the Ninth Circuit held: “Judicially 7 enforceable Fourteenth Amendment interests require enduring relationships reflecting an assumption of 8 parental responsibility and “stem from the emotional attachments that derive from the intimacy of daily 9 association, and from the role it plays in promoting a way of life through the instruction of children.” 10 (Id. at 4, quoting Wheeler v. City of Santa Clara, 894 F.3d 1046, 1058 (9th Cir. 2018).) Plaintiffs 11 contend, “Decedent treated Z.S. as his own even though he doubted whether she was his natural child.” 12 (Id. at 5.) In addition, Plaintiffs observe: 13 Z.S. resided with Decedent, Christopher Okamoto for a period of 60 to 90 days. During that brief time, Decedent treated Z.S. as his child by caring and providing 14 for her. Decedent assumed responsibility for Z.S.’s upbringings up until his death. Decedent also maintained consistent contact with Z.S. for the brief period that he 15 was in her life once Z.S and her mother moved in with Decedent two months prior to his death. 16

17 (Id. at 78.) Plaintiffs argue that “Z.S. was deprived of the love, companionship, comfort, support, and 18 care, of the decedent and will continue to be so deprived for the remainder of her natural life,” and 19 indicate Z.S. had a protected liberty interest in the relationship on these grounds. (Id. at 4-5.) 20 Significantly, in OFFER, the Supreme Court observed that “biological relationships are not 21 exclusive determination of the existence of family.” Id., 431 U.S. at 843. The Court explained: “No 22 one would seriously dispute that a deeply loving and interdependent relationship between an adult and 23 a child in his or her care may exist even in the absence of blood relationship.” Id. at 844. In 24 determining whether an individual has a protected liberty interest in a familial relationship, courts have 25 considered whether there is a blood relationship; whether the relationship arises under the law, such as 26 a foster parent or stepparent; the length of the relationship; and whether the natural parent opposes the 27 relationship or relinquished rights. See e.g., OFFER, 431 U.S. at 844-847 (noting “important 28 distinctions between the foster family and the natural family,” include the contract with the state and 1 the right of the state to interfere in the relationship); Miller, 355 F.3d at 1175-76 (considering the court 2 had never extended the protected liberty interest to grandparents; the grandchildren were “wards of the 3 court at all relevant times;” and the interests of the grandparents conflicted with those of the biological 4 mother, who opposed visitation with the grandparents); Elwell, 699 F.3d at 1211, 1216-17 (finding a 5 liberty interest where the parental rights of the biological parents were terminated, and the foster 6 parents had cared for the child “nearly his entire life [more than a year] and were on the verge of 7 adopting him”). 8 For example, based upon the nature and length of the relationship, the one court found a 9 protected liberty interest where the plaintiff was “neither Decedent’s biological nor adopted mother.” 10 See Ramirez v. City of Oxnard, 2013 WL 12129396 at *7 (C.D. Cal. July 23, 2013). The defendants 11 argued Ramirez lacked standing to bring claims under the Fourth and Fourteenth Amendments, and the 12 plaintiff conceded she was unable to bring a Fourth Amendment claim. Id., at *5. However, Ramirez 13 maintained she had “standing to assert a Fourteenth Amendment claim for state-imposed interference 14 with her familial relationship with Decedent.” Id. The court agreed, noting: 15 It is undisputed that she married Decedent’s biological father and raised Decedent as her son since he was four and a half years old until his death when he was eighteen. 16 During that time, Eileen, Jose Ramirez, and Decedent lived together as a family of three. Further, Decedent’s biological mother passed away when he was approximately 17 five years old. Prior to her passing, Decedent had been taken away from her by social services due to her alcoholism and sole custody to Decedent was granted to his father, 18 Jose. Thus, Decedent had little relationship with his biological mother. Moreover, Defendants do not dispute that Eileen had a mother-son relationship with Decedent. She 19 monitored his education, tended to his health, cooked for him at home, bought him clothes, provided financial support, and took him on vacations. Conversely, it is 20 undisputed that Decedent treated Eileen like his mother, assisting her when she was ill, giving her gifts, and confiding in her about personal matters. Finally, as a result of 21 Decedent’s passing, Eileen has sought medical help and therapy for depression and anxiety, and is currently on medication for her depression. 22

23 Id. at *7 (citations to the record omitted). In addition, the court observed that Ramirez’s relationship 24 with her stepson was “not … a creature of law, but rather out of her marriage to Decedent’s biological 25 relationship,” and she had no expectation of the relationship being “attenuate by any state laws or 26 related contracts. Id. Further, the court observed that “‘just as the “natural bonds of affection [will] 27 lead [biological] parents to promote their child’s well-being,’ … it stands to reason that a person 28 married to a child’s biological parent is more likely to draw from these ‘natural bonds of affection’ 1 when compared to state-created foster parent.” Id., quoting Adoptive Couple v. Baby Girl, 133 S. Ct. 2 2552, 2582 (2013). Therefore, the Court concluded “Ramirez has standing to assert [a] Fourteenth 3 Amendment claim.” Id. at *7. 4 The facts before the Court are distinguishable from Ramirez. The decedent was not married to 5 the mother of Z.S., and there are no facts suggesting he planned to adopt Z.S. Compare with Elwell, 6 699 F.3d at 1211, 1216-17 (protected family interest where the foster parents had taken steps towards 7 adoption); Ramirez, 2013 WL 12129396 at *7 (finding a protected interest where the plaintiff was 8 married to the father of the decedent and raised him for nearly 14 years). Z.S. lived with the decedent 9 for only two months. Such a short duration weighs against a finding of a liberty interest. See 10 Backlund, 778 F.2d at 1389-90 (finding foster parents who cared for a child for about three years lacked 11 a cognizable liberty interest). Moreover, Plaintiffs do not present evidence that the decedent provided 12 parental care for Z.S., such as attending medical appointments, feeding her, changing her diapers, 13 bathing her, playing with her, or providing any other care for her. Absent such evidence, the fact that 14 Z.S. and her mother resided with the decedent does not alone establish that they lived as a family unit, 15 or that the decedent and the child enjoyed an enduring parent-child relationship. Because the plaintiffs 16 have failed to present evidence Z.S. had a protected interest in a relationship with the decedent, the 17 Court concludes Z.S. lacks standing to bring a claim under the Fourteenth Amendment. 18 B. Claims arising under Section 1983 19 Plaintiffs seek to hold Defendants liable for civil rights arising under the Fourth and Fourteenth 20 Amendments to the Constitution of the United States, pursuant to 42 U.S.C. § 1983. (See Doc. 38 at 21 10-28; Case No. 1:19-cv-1125-LJO-JLT, Doc. 1.) Section 1983 “is a method for vindicating federal 22 rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994). In relevant part, Section 23 1983 provides: 24 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory... subjects, or causes to be subjected, any citizen of the United 25 States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the 26 party injured in an action at law, suit in equity, or other proper proceeding for redress...

27 42 U.S.C. § 1983. To establish a Section 1983 violation, a plaintiff must show (1) deprivation of a 28 constitutional right and (2) a person who committed the alleged violation acted under color of state law. 1 West v. Atkins, 487 U.S. 42, 48 (1988); Williams v. Gorton, 529 F.2d 668, 670 (9th Cir. 1976). 2 A plaintiff must establish a specific injury was suffered and show a causal relationship between 3 the defendant’s conduct and the injury suffered. See Rizzo v. Goode, 423 U.S. 362, 371-72 (1976). A 4 person deprives another of a right “if he does an affirmative act, participates in another’s affirmative 5 acts, or omits to perform an act which he is legally required to do so that it causes the deprivation of 6 which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In other words, 7 “[s]ome culpable action or in action must be attributable to defendants.” See Puckett v. Corcoran 8 Prison - CDCR, 2012 WL 1292573, at *2 (E.D. Cal. Apr. 13, 2012). 9 1. Use of force under the Fourth and Fourteenth Amendments 10 The Supreme Court of the United States determined that the Due Process Clause of the 11 Fourteenth Amendment protects individuals who have not yet been convicted of a crime “from the use 12 of excessive force that amounts to punishment.” Graham v. Connor, 490 U.S. 386, 388 (1989). 13 However, allegations of excessive force are analyzed under the Fourth Amendment. Id. (“claim[s] that 14 law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or 15 other ‘seizure’ ... are properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ 16 standard”). Accordingly, “apprehension by the use of deadly force is a seizure subject to the 17 reasonableness requirement of the Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1, 7 (1985). 18 “An excessive force claim is a claim that a law enforcement officer carried out an unreasonable 19 seizure through a use of force that was not justified under the relevant circumstances.” County of Los 20 Angeles, Calif. v. Mendez, 137 S.Ct. 1539, 1547 (2017). An officer’s use of force violates the Fourth 21 Amendment is determined by “whether the officers’ actions are ‘objectively reasonable’ in light of the 22 facts and circumstances confronting them, without regard to their underlying intent or motivation.” 23 Graham, 490 U.S. at 397. This inquiry “requires a careful balancing of ‘the nature and quality of the 24 intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental 25 interests at stake.” Id., 490 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). Thus, the 26 Court must balance the force used against the need for the use of force. Liston v. County of Riverside, 27 120 F.3d 965, 976 (9th Cir. 1997) 28 In applying this standard, the factfinder considers “the totality of the circumstances and . . . 1 whatever specific factors may be appropriate in a particular case.” Bryan v. MacPherson, 630 F.3d 805, 2 826 (9th Cir. 2010). Courts consider “the severity of the crime at issue, whether the suspect poses an 3 immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or 4 attempting to evade arrest by flight.” Graham, 490 U.S. at 396 (citing Tennessee, 471 U.S. at 8-9). In 5 general, the “most important” under Graham factor is whether the suspect posed an “immediate threat 6 to the safety of the officers or others.” Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005). 7 Courts must also consider “the quantum of force used” “because the ‘factors articulated in Graham, and 8 other factors bearing on the reasonableness of a particular application of force are not to be considered 9 in a vacuum but only in relation to the amount of force used to effect a particular seizure.’” Davis v. 10 City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007) quoting Chew v. Gates, 27 F.3d 1432, 1441 11 (9th Cir. 1994). Ultimately, the “reasonableness” of an officer’s actions “must be judged from the 12 perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” 13 Graham, 490 U.S. at 396. Due to the fact-intensive nature of the Graham test, the Ninth Circuit 14 observed that “summary judgment . . . in excessive force cases should be granted sparingly. This is 15 because police misconduct cases almost always turn on a jury's credibility determinations.” Espinosa v. 16 City and County of San Francisco, 598 F. 3d 528, 544 (9th Cir. 2010) (quoting Santos v. Gates, 287 F. 17 3d 846, 853 (9th Cir. 2002)). 18 Defendants argue “[t]here is no question that the use of deadly force by Officer Patino was 19 objectively reasonable.” (Doc. 61-1 at 23.) Defendants observe that the officers were “dispatched to 20 the apartment complex for a call to service related to a domestic violence incident” and “[d]omestic 21 violence situations are ‘particularly dangerous’ because ‘more officers are killed or injured on domestic 22 violence calls than on any other type of call.” (Id.; n. 5 quoting George v. Morris, 736 F. 3d 829, 839 23 (9th Cir. 2013).) Defendants maintain that Patino and Celedon6 “hear[d] people arguing inside the 24

25 6What the officers heard is inconsistent. Officer Celedon testified that he heard nothing from the apartment as he and Officer Patino walked up the stairs toward the apartment. (Doc. 61-4 at 76 -78) After Officer Patino arrived on the landing, Officer 26 Celedon heard a voice, but he could not tell if it was male or female and he could not make out what was being said. Id. He thought it was louder than what would be used in normal conversation. Id. He also heard a “loud shuffling” sound, which 27 could have been furniture moving. Id. at p. 81. These sounds lasted “a few seconds.” Id. at 82-83. Officer Celedon didn’t know if what the voice was saying was in response to Officer Patino’s announcement of their presence. (Doc. 61-4 at 85) 28 Officer Patino testified he heard a male and a female voice. (Doc. 61-4 at 107) He testified that the female’s voice was 1 apartment and both heard what they perceived to be a struggle inside the apartment.” (Id. at 24.) 2 Further, Defendants assert that the decedent opened the door standing in a one-handed shooter position, 3 with his arm fully extended holding what appeared to be a firearm “pointed directly at Officer Patino’s 4 head,” and “Patino believed that the gun was real and capable of killing him.” (Id.) According to 5 Defendants, “The reasonable belief that the gun was real, coupled with [the decedent’s] actions of 6 pointing the gun at Officer Patino,” establishes that the decedent “posed a deadly threat not only to 7 Officer Patino, but to whoever was inside the apartment.” (Id.) 8 Defendants contend “it is well established that when a potential assailant threatens a police 9 officer with a weapon, the officer is justified in using deadly force.” (Id. at 21, citing, e.g., Smith v. 10 City of Hemet, 394 F.3d 689, 704 (9th Cir. 2005); Estate of Larsen v. Murr, 511 F. 3d 1255, 1260 (10th 11 Cir. 2008) [“a reasonable officer need not await the glint of steel before taking self-protective action”]; 12 Garcia v. United States, 826 F. 2d 806, 807, 812 (9th Cir. 1987) [a “felonious and deadly assault” gave 13 the officer probable cause to believe that victim posed a “threat of serious physical harm]; Lal v. 14 California, 746 F. 3d 1112, 1114 (9th Cir. 2014).) Defendants note the Ninth Circuit determined 15 “deadly force is ‘unquestionably reasonable’ if a suspect ‘reaches for’ what is believed to be a weapon 16 or makes some ‘similar threatening gesture,’ like getting into a ‘shooter’s stance.’ (Id. at 22, quoting 17 Cruz v. City of Anaheim, 765 F. 3d 1076, 1079 (9th Cir. 2014), emphasis omitted.) Defendants 18 conclude that based on the “facts and circumstances” in this action, “Patino had every right to use 19 deadly force to protect himself.” (Doc. 61-1 at 24.) 20 On the other hand, Plaintiffs argue summary adjudication of this claim is not appropriate due to 21 “a question of fact as … to whether or not [the decedent] was pointing a gun at either the first or the 22 second volley of gunshots.” (Doc. 64 at 24.) Plaintiffs observe, “The Ninth Circuit has consistently 23 held that while the presence of a weapon is an ‘important consideration’ in determining whether a use 24 of deadly force is objectively reasonable, it is not dispositive.” (Id. at 21, quoting Glenn v. Washington 25 County, 673 F.3d 864, 872-73 (2011).) Defendants contend the Ninth Circuit has determined “[i]f a 26 suspect is armed with a weapon but is not threatening the officers or others with it, the Fourth 27 Amendment does not permit the officers to use deadly force against the suspect.” (Id., citing, e.g., 28 George, 724 F.3d at 1199-1200; Glenn, 673 F.3d at 879-80; Harris v. Roderick, 126 F.3d 1189, 1202- 1 03 (1997); Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991).) 2 Plaintiffs observe that courts have considered physical evidence—and whether such 3 corroborated officers’ versions of events— in evaluating whether the force used was reasonable. (Doc. 4 64 at 23-24, citing, e.g., Aguilar v. County of Fresno, 2010 U.S. Dist. LEXIS 30933, 2010 WL 1267355 5 (E.D. Cal. Mar. 31, 2010); Reed v. City of Modesto, 122 F. Supp. 3d 967 (E.D. Cal. 2015).) For 6 example, in Aguilar, the court determined summary judgment was not appropriate where the physical 7 evidence included the positioning of the decedent’s body and the location where his knife was found. 8 Id., 2010 WL 1267355 at *4. The Court explained the “physical evidence [was] susceptible to at least 9 two interpretations,” one of which “can be interpreted to support a factual narrative that contradicts the 10 narrative asserted by Defendants. Id. Because the Court must take the interpretation of the physical 11 evidence in favor of the non-moving party, the Court found the deputy was neither entitled to summary 12 adjudication for a claim of excessive force nor qualified immunity. Id., 2010 WL 1267355 at *4-5. 13 In Reed, the Court considered the physical evidence in evaluating the defendants’ motion for 14 judgment as a matter of law, after a jury returned a verdict in favor of the plaintiff. Id., 122 F. Supp. 3d 15 at 971-72. The defendants asserted the officer’s use of force was reasonable and he was entitled to 16 qualified immunity. Id. The Court noted there was some dispute about the distance between the 17 plaintiff and the defendant officer, and the physical evidence did “not corroborate[]” the officer’s 18 statements concerning when he fired a second volley of shots at Reed. Id. at 978. The Court observed 19 that “[t]he bullet that did the most damage hit [Reed] in his side and not his front,” and “[f]rom this 20 evidence, the jury could have reasonably concluded that Plaintiff was turning away and not confronting 21 the Police Officers during the second volley of shots.” Id. Thus, the Court concluded the officer was 22 not entitled to judgment as a matter of law. Id. at 981-982. 23 Similarly, Plaintiffs argue the physical evidence before the Court does not support the version 24 of events presented by Patino and Celedon and can reasonably be interpreted in a manner that 25 contradicts their claims. Plaintiffs contend “analysis of the gunshot wounds that [the decedent] 26 sustained demonstrates that [the decedent] could not have been facing Officer Patino in a “one-handed 27 shooting stance” and pointing an object at Officer Patino during the entirety of the time that Officer 28 Patino was firing his weapon.” (Doc. 64 at 21.) Plaintiffs assert: 1 The locations and trajectories of those wounds, including two gunshot wounds to the outer left chest that traveled front to back and left to right (east to west direction), are 2 consistent with a movement in which [the decedent] was rotating away from Patino in a westerly direction in an attempt to retreat while trying to close the front door with 3 his left arm, exposing his entire left side of his body to Officer Patino’s gunfire. A jury could find from this physical evidence that [the decedent] did not pose an 4 immediate threat of death or serious bodily injury to Officer Patino at the time of either the first or second volley of shots fired in [the decedent] direction. 5

6 (Id.) Plaintiffs maintain that “[b]ased upon the upon the physical evidence, we know that it would have 7 been virtually impossible to achieve the gunshot wound positioning and trajectories if you relied on 8 Officer Patino’s statements.” (Id. at 24.) 9 The Ninth Circuit observed that when cases challenging the use of force involve a death, the 10 evidence should be carefully examined “to determine whether the officer’s story is internally consistent 11 and consistent with other known facts.” Gonzalez v. City of Anaheim, 747 F.3d 789, 794-95 (9th Cir. 12 1994); see also Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 2013) (explaining that “we must respect 13 the exclusive province of the jury to determine the credibility of witnesses, resolve evidentiary 14 conflicts, and draw reasonable inferences from proven facts”). In Scott v. Henrich7, 39 F.3d 912, 915 15 (9th Cir 1994), the Court held, 16 Deadly force cases pose a particularly difficult problem under this regime because the officer defendant is often the only surviving eyewitness. Therefore, the judge must 17 ensure that the officer is not taking advantage of the fact that the witness most likely to contradict his story—the person shot dead—is unable to testify. The judge must 18 carefully examine all the evidence in the record, such as medical reports, contemporaneous statements by the officer and the available physical evidence, as well 19 as any expert testimony proffered by the plaintiff, to determine whether the officer's story is internally consistent and consistent with other known facts. Hopkins, 958 F.2d at 20 885–88; Ting v. United States, 927 F.2d 1504, 1510–11 (9th Cir.1991). In other words, the court may not simply accept what may be a self-serving account by the police 21 officer. It must also look at the circumstantial evidence that, if believed, would tend to discredit the police officer's story, and consider whether this evidence could convince a 22 rational factfinder that the officer acted unreasonably.

23 Here, there are many facts in dispute related to the events that occurred prior to the shooting. Although 24 the officers report they heard people arguing inside the apartment and sounds of a struggle when they 25

26 7 The Court notes that in Scott, the Ninth Circuit Court of Appeals determined that the officers acted constitutionally when they shot and killed a person who pointed a gun at them. Scott at 914. However, the salient details of the officers’ statements 27 in Scott were not contradicted by witnesses, unlike here where witnesses contradict important facts including that there were no sounds of a struggle in the apartment when Officer Patino was at the door and that he did not announce himself as a 28 police officer after the decedent expressed a lack of awareness of who was at the door in addition to the physical injuries 1 arrived, Ms. Saucedo reports they were asleep and the neighbors— who had been able to hear the 2 arguing throughout the day and night—testified it was quiet and there was no movement in Apartment 3 No. 46 when the officers arrived. (See Doc. 65 at 134, 135, 140.) 4 In addition, at the time of the shooting, Officer Celedon stood near the top step of the stairway 5 about “five to ten feet” away from, but in a “V” formation with, Officer Patino. P. 21 Though Officer 6 Patino testified the decedent opened the door with his gun arm fully extended, Officer Celedon did not 7 see this. (Doc. 61-4 at 86-87) He testified, “From my position, I couldn't -- from my position, all I 8 could see was Senior Officer Patino. What I heard was what I believed to be the door opening. It was at 9 that point that I saw Senior Officer Patino shine his light towards the doorway and then I immediately 10 saw him yell "gun" and draw his firearm.” Id. Though Officer Celedon clarified that he could not see 11 into the doorway, the re-enactment photos demonstrate that even without seeing into the doorway, the 12 decedent’s extended gun arm should have been visible. (Doc. 75 at 6). 13 In addition, though the officers assert Patino repeatedly announced the presence of the 14 Bakersfield Police Department, Ms. Saucedo reports that she and the decedent did not know who was at 15 the door, and he “continuously” asked who was at the door. Further, both Mr. White and Officer Patino 16 report they heard a male voice from inside the apartment yelling questions such as: “Who the fuck is at 17 my door?” “Who’s banging on my door?” and “Who is that knocking on my damn door?” (Doc. 61-4 at 18 110-11, Patino Depo. 61:23-62:10; Doc. 65 at 127-28, White Depo. 25:24-26:1, 26:14-22.) This raises 19 an inference that Patino should have known that the decedent did not realize that police officers were at 20 his door. 21 This isn’t a situation in which Patino had no time to yell out that the police were present. He 22 testified, “At that point I see the door handle begin to turn very slowly. . . The door -- I looked at 23 Officer Celedon. Something didn’t seem right to me. This is not the typical response that we get from 24 when we’re investigating any type of offenses like this or somebody opening the door. It’s just very, 25 very slow.” (Doc. 65 at 25:6-11.) The officer then testified he saw the gun through the narrow opening 26 of the door (id. at 27:2-10) and it was pointed directly at him. (Doc. 65 at 25:6-11.) 27 This evidence taken in the light most favorable to Plaintiffs would indicate that there was no 28 crime in progress, and the decedent was awakened by the banging on the door and remained unaware of 1 who was outside of his apartment door, although he asked repeatedly. Because they lived in a high 2 crime area, a factfinder could infer that the decedent approached the door with a weapon drawn out of 3 caution, while his girlfriend hid in fear in the bathroom with the baby. Indeed, Mr. White testified that 4 immediately after the decedent yelled words to the effect of, “Who is at the door?” the door opened, the 5 shots were fired. This is contrary to Officer Patino’s testimony that he identified himself after the 6 decedent yelled words expressing unawareness of who was at the door. See, e.g. Cooper v. Sheehan, 7 735 F.3d 153, 159-60 (4th Cir. 2013) (in holding that officers’ use of deadly force was not reasonable, 8 the court noted “[i]mportantly, the Officers never identified themselves—even when asked” and there 9 was an explanation that a person might carry a firearm while investigating a disturbance on his 10 property). 11 The evidence before the Court creates a dispute related to the positioning of the decedent. For 12 example, Patino reported that the decedent stood in “a one-handed shooter position,” and only changed 13 positions to take a step back between the first volley of six shots and the second volley of two more 14 shots. In the re-enactment photos with Patino, it appears as though the person standing in place of the 15 decedent had primarily the right side of his body exposed; his left shoulder, most of his trapezius and 16 his left arm were behind the door. (See Doc. 74 at 6, 9.) The decedent did not sustain any injuries to the 17 right side of his body, and two bullets traveled “in a front to back, left to right… trajectory.” (See PSF; 18 Doc. 65 at 177 ¶ D.) As Plaintiffs contend, the physical evidence could be interpreted such that the 19 decedent was not standing in the position identified by Patino and he could have exposed his left side 20 only when turning away from the officer. (See Doc. 65 at 9.) Under such circumstances, the Court 21 must take the evidence in favor of Plaintiffs’ interpretation. See Aguilar, 2010 WL 1267355 at *4-5. 22 Finally, the Court notes that “[u]nder Ninth Circuit precedent, the mere presence of a weapon 23 does not justify the use of deadly force.” Haugen v. Brosseau, 351 F.3d 372, 383 (9th Cir. 2003) 24 (citations omitted); see also Harris, 126 F.3d at 1204 (“Law enforcement officials may not kill suspects 25 who do not pose an immediate threat to their safety or to the safety of others simply because they are 26 armed”); Curnow, 952 F.2d at 323, 325 (according to the plaintiff’s version of the facts, the decedent 27 had a gun but was not pointing it at the officers or facing them when shot). Indeed, even with a weapon 28 present, “[a] simple statement by an officer that he fears for his safety or the safety of others is not 1 enough; there must be objective factors to justify such a concern.” Deorle v. Rutherford, 272 F.3d 2 1272, 1281 (9th Cir. 2001). Given the material differences in the facts presented by Plaintiffs and 3 Defendants, and inferences that may be made from the physical evidence, the Court is unable to find 4 that objective factors justified the actions of Patino. Defendants have failed to show the absence of a 5 dispute of material fact, and the Court finds summary adjudication of the claims for excessive force is 6 not appropriate. See Aguilar, 2010 WL 1267355 at *4-5. 7 2. Due process and familial rights under the Fourteenth Amendment 8 The Supreme Court explained: “[T]he freedom to enter into and carry on certain intimate or 9 private relationships is a fundamental element of liberty protected by the Bill of Rights.” Board of 10 Directors of Rotary Int’l v. Rotary Club, 481 U.S. 537, 544 (1987). Consequently, the Ninth Circuit 11 has recognized there is a constitutionally protected liberty interest in the companionship and society of 12 a parent and child. Ward, 967 F.2d at 283; Lemire, 726 F.3d at 1075; see also Venerable v. City of 13 Sacramento, 185 F. Supp. 2d 1128, 1133 (E.D. Cal. 2002). Thus, “[a] substantive due process claim 14 may be asserted by … the parents and children of a person killed by law enforcement officers.” 15 Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 371 (9th Cir. 1998). 16 To establish a claim for interference with familial rights under Section 1983, a plaintiff must 17 show “the defendant acted with deliberate indifference to these rights.” Venerable, 185 F. Supp. 2d at 18 1131; see also Byrd v. Guess, 137 F.3d 1126, 1134 (9th Cir. 1998) (“to prove their Fourteenth 19 Amendment claim, [plaintiffs] had to prove that the Officers acted with deliberate indifference to [their] 20 rights of familial relationship”). This may be established where the officer’s conduct “shock[ed] the 21 conscience.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 842 (1989); see also Porter v. Osborn, 546 22 F.3d 1131, 1137 (9th Cir. 2008). The Ninth Circuit explained a court must first inquire “whether the 23 circumstances are such that actual deliberation [by the officer] is practical.” Id. The Court explained: 24 Where actual deliberation is practical, then an officer’s “deliberate indifference” may suffice to shock the conscience. On the other hand, where a law enforcement officer 25 makes a snap judgment because of an escalating situation, his conduct may only be found to shock the conscience if he acts with a purpose to harm unrelated to legitimate 26 law enforcement objectives.

27 Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010). Where an officer’s actions come in rapid 28 succession without time for reflection, the Ninth Circuit has applied the “purpose to harm” standard 1 rather than the “deliberate indifference” standard. See Zion v. County of Orange, 874 F.3d 1072, 1077 2 (9th Cir. 2017). 3 Importantly, courts have determined “the parents of a decedent can recover under the 4 substantive due process prong of the Fourteenth Amendment for a loss of familial association when an 5 officer unreasonably kills.” Estate of Kosakoff v. City of San Diego, 2010 WL 1759455 at *12 (S.D. 6 Cal. Apr. 29, 2010); Estate of Jacobo v. L.A. County, 2011 WL 1522345 at *5 (C.D. Cal. Jan. 31, 2011) 7 (explaining a loss of familial association claim may be derivative of another violation of the Fourteenth 8 Amendment); see also Moreland, 159 F.3d at 371. As set forth above, here there are material disputes 9 as to the conduct of the decedent and position in which he stood, including whether he could have been 10 positioned in a shooting stance pointing a weapon at Patino. A reasonable jury could find—with facts 11 taken in favor of Plaintiffs—that Patino acted with a purpose unrelated to a legitimate law enforcement 12 objective. See, e.g., F.C. ex rel. Rios v County. of L.A., 2010 WL 5157339, at *5-6 (C.D. Cal. 2010) 13 (“crediting plaintiffs’ version of the incident, as the Court must do at the summary judgment stage, the 14 Court concludes that a rational jury could find that [defendants] acted with a purpose to harm unrelated 15 to legitimate law enforcement objectives” if the plaintiffs could show the decedent was shot “as he 16 turned around to run” and did not draw a weapon.) 17 3. Qualified immunity 18 Defendants contend Patino is entitled to qualified immunity, which protects government 19 officials from “liability for civil damages insofar as their conduct does not violate clearly established 20 statutory or constitutional rights of which a reasonable person would have known.” Harlow v. 21 Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is “immunity from suit rather than a mere 22 defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The doctrine of qualified immunity 23 “balances two important interests — the need to hold public officials accountable when they exercise 24 power irresponsibly and the need to shield officials from harassment, distraction, and liability when 25 they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Defendants 26 have the burden to prove that officers are entitled to qualified immunity. Moreno v. Baca, 431 F.3d 27 633, 638 (9th Cir.2005). 28 The threshold inquiry to a qualified immunity determination is whether the facts alleged, when 1 taken in the light most favorable to the plaintiff, demonstrate that the official’s conduct violated a 2 statutory or constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If the alleged conduct 3 would not be considered a violation, the inquiry stops, and the defense of qualified immunity applies. 4 See id. However, if a constitutional violation occurred, the Court must next determine whether the 5 statutory or constitutional right was “clearly established.” Id. For a constitutional right to be clearly 6 established, it must be sufficiently clear that a reasonable official would understand that what he is 7 doing violates that right. Mullenix v. Luna, 136 S. Ct. 305, 308 (2015). 8 As discussed above, the Court found genuine material disputes as to factors that must be 9 considered in evaluating the reasonableness of an officer’s use of force. The Court cannot resolve the 10 parties’ dispute as to whether Patino’s violated clearly established statutory or constitutional rights of 11 which a reasonable person would have known, in light of the conflicting witness statements and 12 physical evidence concerning whether the decedent was engaged in a crime when the officers arrived, 13 the position the decedent stood in after opening the door, and whether the decedent posed a threat to 14 Patino when he fired the weapon. If a jury were to accept Plaintiffs’ version of the facts to be true, 15 Patino would not be entitled to qualified immunity “because it is a violation of clearly established law 16 for an officer to use deadly force against someone who poses no threat of serious harm to the officers or 17 others.” Hung Lam v. City of San Jose, 869 F.3d 1077, 1086 (9th Cir. 2017) (citation omitted). 18 As discussed above, the Court found genuine material disputes as to factors that must be 19 considered in evaluating the reasonableness of an officer’s use of force. Where such factual disputes 20 remain, qualified immunity is not appropriate. See, e.g., Lolli v County of Orange, 351 F.3d 410, 421 21 (9th Cir. 2003) (finding officers were not entitled to qualified immunity “[b]ecause of the factual 22 disputes that [the plaintiff] has identified”); M.H. v. County of Alameda, 62 F. Supp. 3d 1049, 1094 23 (N.D. Cal. 2014) (“[T]he core issue for Plaintiffs’ excessive force claim is a factual determination of … 24 whether that amount of force was excessive given the circumstances. In such situations, a determination 25 on qualified immunity will rarely be appropriate at summary judgment.”). Accordingly, Patino is not 26 entitled to qualified immunity. 27 C. Claims arising under California law 28 Ms. Nash-Perry asserts Defendants are liable for wrongful death based upon both battery and 1 negligence. (Doc. 38 at 17-18.) Similarly, Mr. Okamoto seeks to hold Defendants liable for wrongful 2 death. (Doc. 1 at 12, Case No. 1:19-cv-1125-LJO-JLT.) 3 1. Battery- Wrongful Death 4 Ms. Nash-Perry asserts Defendants are liable for wrongful death from battery. (Doc. 38 at 17.) 5 Under California law, a battery occurs when: “[a] defendant intentionally performed an act that resulted 6 in a harmful or offensive contact with the plaintiff’s person; (2) [the] plaintiff did not consent to the 7 contact; and (3) the harmful or offensive contact caused injury, damage, loss or harm to [the] plaintiff.” 8 Brown v. Ransweiler, 171 Cal. App. 4th 516, 526-527 (2009). Thus, when a claim of battery is brought 9 against a police officer, it is analogous to a claim for excessive use of force. Id. at 527; see also Edson 10 v. City of Anaheim, 63 Cal.App.4th 1269, 1272 (1998) (an officer who uses force in the course of an 11 arrest is not liable for battery unless the plaintiff proves that the force used was unreasonable). 12 Consequently, a claim for battery against a peace officer under California law is analyzed under the 13 Fourth Amendment’s reasonableness standard. Edson, 63 Cal. App. 4th at 1274; Saman v. Robbins, 14 173 F.3d 1150, 1156-57 & n. 6 (9th Cir. 1999). 15 Because Defendants fail to show the absence of a dispute of material fact related to the 16 reasonableness of the force used by Patino, summary adjudication of the battery claim is likewise not 17 appropriate. See S.T. v. City of Ceres, 327 F.Supp.3d 1261, 1282 (E.D. Cal. 2018) (“a material issue of 18 fact as to whether the officers’ use of deadly force was reasonable that precludes summary judgment on 19 Plaintiff’s state law battery [claim]”); see also Carter v. City of Carlsbad, 799 F.Supp.2d 1147, 20 1164(S.D. Cal. 2011) (denying summary adjudication of a claim for battery where the defendants were 21 “not entitled to summary judgment that…. [the] use of force was objectively reasonable”). 22 2. Negligence under California law 23 Ms. Nash-Perry states a claim for negligence (wrongful death) against the defendants under Cal. 24 Gov’t Code § 820. (Doc. 38 at 18.) To establish a claim for negligence, Plaintiffs “must establish four 25 required elements: (1) duty; (2) breach; (3) causation; and (4) damages.” Ileto v. Glock, Inc., 349 F.3d 26 1191, 1203 (9th Cir. 2003). In general, “the plaintiff must show that the defendant owed a duty to the 27 plaintiff.” See John B. v. Superior Court, 38 Cal. 4th 1177, 1188 (2006). The existence of a duty is a 28 matter of law for a court to decide, and under California law, police officers have a duty to use 1 reasonable force. See Munoz v. City of Union City, 120 Cal. App. 4th 1077, 1100 (2004). 2 This standard of “objective reasonableness” under California law is the analog to the standard of 3 reasonableness for Fourth Amendment claims under federal law. As such, federal cases are 4 “instructive” in deciding whether a given exertion of force is reasonable. See Brown, 171 Cal. App. 4th 5 at 534. Under Brown, the Court’s conclusions regarding the Fourth Amendment claim are equally 6 applicable in addressing the negligence claim. See id., 171 Cal. App. 4th at 534; see also Young v. 7 County of Los Angeles, 655 F.3d 1156, 1170 (9th Cir. 2011). Because disputes of fact related to the 8 reasonableness of the force used by Officer Patino preclude a determination on the negligence claim, 9 Defendants’ motion for summary adjudication on this cause of action is denied. See S.T., 327 10 F.Supp.3d at 1282 (“a material issue of fact as to whether the officers’ use of deadly force was 11 reasonable that precludes summary judgment on Plaintiff’s state law… negligence claims”). 12 3. Privilege for state claims 13 Defendants contend “Patino is immune for liability for the state law claims.” (Doc. 61-1 at 32.). 14 Defendants observe, “Under California law, a statutory privilege defeats all tort claims, including 15 negligence claims.” (Id., quoting Gilmore v. Superior Court, 230 Cal.App.3d 416, 421-422 (1991).) 16 Defendants observe that the state court determined, “When the defendant has been justified in the use 17 of deadly force against the decedent, the privileged nature of the conduct is a defense to all civil 18 liability regardless of the plaintiff’s status.” (Id., quoting Horwich v. Superior Court, 21 Cal. 4th 272, 19 285 (1999).) Defendants also observe that “Cal. Penal Code § 196 establishes a privilege for peace 20 officers to use deadly force,” the test for which “is the same as the test for when deadly force is 21 reasonable under the Fourth Amendment.” (Id., citing, e.g., Brown v. Ransweiler, 171 Cal.App.4th 516 22 (2009); Gilmore, 230 Cal.App.3d at 416.) Specifically, a homicide is justifiable under Section 196 23 when “the circumstances reasonably created a fear of death or serious bodily harm to the officer or 24 another. Martinez v. City of Los Angeles, 47 Cal. App. 45h 334, 338 (1996). 25 As Defendants acknowledge, the test for whether the privilege under Section 196 applies is the 26 same test applied by the Court in addressing force used under the Fourth Amendment. As discussed 27 above, the Court determined there are material disputes of fact related to whether the force exerted was 28 reasonable, and summary judgment is not appropriate on the Fourth Amendment claim. Likewise, the 1 Court finds application of the privilege under Section 196 is not appropriate, as Defendants have not 2 shown a “justifiable homicide.” See Shannon v. City of Sacramento, 2018 WL 3861604 (E.D. Cal. 3 Aug. 13, 2018) (explaining that if the offers did not act reasonably, Section 196 does not bar a 4 plaintiff’s claim and denying summary judgment “[g]iven the record, in which virtually all evidence 5 comes from the officers’ potentially self-serving testimony”). 6 V. Conclusion and Order 7 Given the conflicting evidence presented by the parties related to the circumstances of the 8 decedent’s encounter with Officer Patino and the reasonableness of the force exerted—and the 9 inferences that must be taken in favor of Plaintiffs— Defendants have not met the burden to show an 10 absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. A jury must make credibility 11 determinations and resolve the conflicts between the evidence. See T.W. Electrical Serv., Inc., 809 F.2d 12 at 630. Based upon the foregoing, the Court ORDERS the motion for summary judgment (Doc. 61) is 13 granted in part as follows: 14 1. The motion for summary adjudication of the claims of Z.S. is GRANTED; and 15 2. The motion for summary adjudication of all claims raised by Ms. Nash Perry and Mr. 16 Okamoto is DENIED. 17 18 IT IS SO ORDERED.

19 Dated: August 31, 2021 _ /s/ Jennifer L. Thurston 20 CHIEF UNITED STATES MAGISTRATE JUDGE

21 22 23 24 25 26 27 28

Nash-Perry v. City of Bakersfield, (E.D. Cal. 2021).

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