Olvera v. City of Modesto

38 F. Supp. 3d 1162, 2014 WL 3858362, 2014 U.S. Dist. LEXIS 108452

• Court: District Court, E.D. California
• Decided: August 6, 2014
• Docket: Case No. 1:11-CV-00540
• Status: Published

Opinion

ORDER RE MOTION FOR SUMMARY JUDGMENT

ANTHONY W. ISHII, Senior District Judge.

I. BACKGROUND

On January 11, 2011, Plaintiff Armando Olvera, filed a complaint in state court against seven named defendants; Modesto Police Department officers Bradley Beavers, Brian Keiber, Randy Raduechel, Sgt. Timothy Helton, the Modesto Police Department, the City of Modesto (“the City”), and Mark Ulrich (“Ulrich”). Plaintiff brought ten claims; two claims under Title 42 U.S.C. section 1983 for constitutional violations; a claim under Article 1, section 13 of the California Constitution; a claim under section 52.1 of the California Civil Code; claims for battery, assault with a deadly weapon, assault, and false arrest; and a claim under California Civil Code Section 3342 for liability for dog bite damages; and a claim for negligence.

On March 31, 2011, the case was removed to the Eastern District of California, Fresno Division. Discovery ensued.

On January 25, 2013, Plaintiffs claims against defendants Bradley Beavers, Brian Keiber, Randy Raduechel and Sgt. Timothy Helton were dismissed by stipulation. Plaintiffs cause of action under Title 42 U.S.C. section 1983 against City of Modesto was dismissed. Plaintiffs cause of action under California Civil Code section 52.1 was also dismissed, as was Plaintiffs sixth cause of action for “assault by means of force likely to produce great bodily injury.”

On March 8, 2013, Defendants filed a motion for summary judgment. Defendants contend that there is no triable issue of material fact and that the moving parties are entitled to judgment as a matter of law because the seizure of Plaintiffs person was a lawful detention and arrest, the entry into and search of the abandoned building where Plaintiff was found was reasonable under the circumstances, the force used on the plaintiffs person by the defendants was reasonable under the circumstances, and that Plaintiffs state tort claims fail for the same reasons.¹

II. LEGAL STANDARD

“A party may move for summary judgment, identifying each claim or defense— or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant 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). The moving party bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ ” which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see Fed.R.Civ.P. 56(c)(1)(A); see also Miller v. Glenn Miller Productions, Inc., 454 F.3d 975, 987 (9th Cir.2006). A fact is material if it could affect the outcome of the suit under the governing substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Miller, 454 F.3d at 987.

“Where 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.” In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir.2010) (citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548). If the moving party meets its initial burden, the burden shifts to the non-moving party to present evidence establishing the existence of a genuine dispute as to any material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir.2000); Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir.2008). A court ruling on a motion for summary judgment must construe all facts and inferences in the light most favorable to the non-moving party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. If the dispute is genuine, i.e. the opposing party has demonstrated that the evidence is such that a reasonable jury could return a verdict for the nonmoving party, summary judgment shall not be granted. See Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505; In re Caneva, 550 F.3d 755, 761 (9th Cir.2008); Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1144 (9th Cir.2006). 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.” First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Giles v. General Motors Acceptance Corp., 494 F.3d 865, 872 (9th Cir.2007).

Additionally, the court has the discretion in appropriate circumstances. to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir.2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.2001).

III. FACTS²

At approximately 4:17 a.m. on December 4, 2009, Modesto Police Department Officers Natalie Niles and Christopher Adams were dispatched to 315 J Street, Modesto, California on a reported “family fight” call in which a suspect named Mario had reportedly “pulled a knife”. As Officer Niles arrived on the scene, she was advised that the suspect was in the back yard. Officer Niles saw a man in a black leather jacket fall to the ground near the front gate' of 315 J Street, and she yelled at him, identifying herself as a Modesto Police Officer, and ordering him to show his hands. Rather than comply, the man got to his feet and ran toward the back of the house.

As Officer Adams was dispatched to the scene, he heard Dispatch broadcast that the suspect was dressed in a black leather jacket, black pants, and black boots. At the scene, Officer Adams heard a broadcast stating that the suspect was possibly running westbound toward Washington Street. Officer Adams got back in his patrol car and saw a male fitting the suspect’s description running westbound on the North side of Pine Street. Officer Adams lost sight of the suspect mid-block on the North side of Pine Street, West of Washington Street. Officer Adams took up a position to begin the establishment of a perimeter to contain the suspect, and called for additional units to assist in that effort. Officer Niles also lost sight of the man, and, as fellow officers were responding to set up a perimeter and search for the suspect, Officer Niles made contact with the reporting party oh the call, Kelley Jones, who told Niles that Mario was a wanted “parolee-at-large” and had a prior conviction involving the possession of dangerous weapons. Niles broadcasted this information to the officers setting up the perimeter, and Dispatch broadcast the same information.

Officer Mark Ulrich and his K-9 partner, Stryker, were summoned to the scene to assist in the search for the suspect, who had been identified as Mario Zephier. A search team led by Officer Ulrich and Stryker, and including Sergeant Timothy Helton and Officers Bradley Beavers and Brian Kleiber, was formed to search for Zephier. Because Officer Adams had last seen Zephier in the vicinity of 110 Pine Street and because Officer Ulrich had found a black leather jacket lying just inside a gap in the fence surrounding the property on 110 Pine Street, a search was commenced on that property. The property at 110 Pine Street consisted of six buildings, which were apparently vacant and boarded up.

Officer Ulrich gave a standard K-9 announcement and then sent Stryker to search the common outdoor areas surrounding the buildings before searching inside the buildings. As Stryker did not locate the suspect in the outdoor areas, Ulrich elected to search the interior of structures on the property whose condition allowed for entry from the outside. Prior to ordering Stryker to enter each such structure, Ulrich states in his declaration that he gave the K-9 Announcement several times. No one was located in the three structures on the east side of the property, which the search team dealt with first. The search team led by Ulrich and Stryker then approached the fourth structure’s entrance.' The parties dispute whether this structure had a door. From a position outside the doorway, Ulrich saw an open room immediately inside, a room to the right in the rear that had a piece of plywood lying across the doorway blocking the view into that.room and another room to the left into which he had an unobstructed view. Just inside the doorway to the room on the left, Ulrich could see what appeared to be a mattress lying on the floor with a maroon sleeping bag on top of it. It appeared to Ulrich that there was a person underneath the sleeping bag. Ulrich gave the K-9 announcement to the person underneath the sleeping bag and received no response.

Ulrich then sent Stryker into the structure to search. Stryker is trained to “find and alert”, meaning he will bark and/or show excitement if he locates a human while he is searching. When Stryker was sent into the structure, he went'directly to the mattress and sleeping bag and alerted. He then nudged the sleeping bag with his nose. The person under the bag moved. Ulrich called Stryker back to him and then made statements to the person under the bag, beginning with ‘You underneath the sleeping bag ...” Because Ulrich believed the person in the sleeping bag was the suspect, and the suspect was an armed parolee-at-large who would fight a police officer apprehending him, Ulrich ordered Stryker to bite and hold the person under the sleeping bag until ordered to release. Stryker did so, biting Plaintiff first on the foot and then on the arm when Plaintiff sat up and extended his arm toward the dog.

Officers then approached Plaintiff and gained control of him. Ulrich conducted a “tactical out,” hit Stryker on the head with a flashlight and manually disengaged Stryker from Plaintiff, who was then handcuffed by other officers. The parties dispute whether further force was used on Plaintiffs person. The officers then learned that the person seized was Plaintiff, Armando Olvera. Plaintiff told the officers that he had not heard any of the commands or other noises prior to being bitten by the dog because he had been asleep. Plaintiff offers evidence that he told the officers he had the deed to the house and that the owner, Octavio Ramirez, had given him permission to be there. Defendants contend that Plaintiff told officers that the owner was staying on the property, but officers did not find him there. Plaintiff states he did not tell the officers that the owner lived on the property.

At the time of the incident, the property was owned by Deutsche Bank National Trust Co. Octavio Ramirez was a former owner of the property.

Because Stryker had been deployed to “bite and hold” Plaintiff, Ulrich was required to stop searching for the suspect Mario Zephier and attend to other duties related to “post-bite” care and the completion of necessary K-9 deployment reports.

Plaintiff was arrested for trespassing on the 110 Pine Street location and for resisting, obstructing or delaying a peace officer in the performance of his duty.

IV.SECTION 1983

Plaintiff brings claims for violations of his constitutional rights under Title 42 United States Code section 1893 against Defendant Mark Ulrich. Plaintiff contends that Ulrich’s invasion into his sleeping quarters and use of unreasonable and excessive force constituted an unlawful search and seizure in violation of Plaintiffs Fourth Amendment rights. Plaintiff further contends that as a result of these violations, he was falsely arrested.

Section 1983 provides, in pertinent part: “Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State [...] subjects, or causes to be subjected, any citizen of the United 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 party injured in an action at law [¶]... ] for redress.” 42 Ú.S.C. § 1983.

“To succeed on a section 1983 claim, a plaintiff must show that (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived the plaintiff of a federal constitutional or statutory right.” Patel v. Kent School Dist., 648 F.3d 965, 971 (9th Cir.2011) (citing Tatum, v. City and, County of San Francisco, 441 F.3d 1090, 1094 (9th Cir.2006)).

V.FOURTEENTH AMENDMENT CLAIM

Plaintiffs Complaint alleges a violation of Plaintiffs Fourteenth Amendment rights. However, Plaintiff does not elaborate on what Fourteenth Amendment violation occurred. Defendants contend in their Motion for Summary Judgment that the Fourteenth Amendment does not apply to Plaintiffs Constitutional claims. Plaintiff does not dispute this in his opposition. Plaintiffs claims concern excessive force and unlawful search and seizure. Thus, Fourth Amendment standards, as applicable to the states through the Fourteenth Amendment must be applied. Summary judgment on Plaintiffs freestanding Fourteenth Amendment claim is granted in favor of Defendants.

VI.FOURTH AMENDMENT CLAIMS

Defendants contend that Olvera has failed to raise genuine issues of material fact as to whether Defendant Ulrich infringed upon Plaintiffs Fourth Amendment rights. Defendants contend that Plaintiff had no reasonable expectation of privacy in the building where he was sleeping, and, in any event, the exigent circumstances exception to the Fourth Amendment warrant requirement permitted Ulrich to enter the building without a warrant. Defendants further contend that the force Ulrich used was objectively reasonable under the Fourth Amendment given the totality of the circumstances. Finally, Defendants contend that Plaintiffs arrest did not violate the Fourth Amendment because Ulrich had probable cause to arrest Plaintiff for trespassing and resisting, obstructing or delaying a peace officer in the performance of his duty.

1. Warrantless Entry

A person has Fourth Amendment privacy rights only in those areas and in those items where he or she has “an expectation of privacy that society is prepared to consider reasonable.” O’Connor v. Ortega, 480 U.S. 709, 715, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). If the government’s conduct does not violate a person’s reasonable expectation of privacy, then it does not constitute a Fourth Amendment search. Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983). Accordingly, no warrant is required. The Supreme Court has enunciated a two-part test to determine whether an expectation of privacy is reasonable and legitimate. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). First, the individual must have a manifested subjective expectation of privacy, and second, society must recognize that expectation as objectively reasonable. California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988); O’Connor v. Ortega, 480 U.S. at 715, 107 S.Ct. 1492; Katz v. United States, 389 U.S. at 361, 88 S.Ct. 507.

In this case, Plaintiff states that he believed he had an expectation of privacy in the Structure because he had consent from the owner to stay there and that expectation was manifested by his action of setting a board against the door to exclude others. Plaintiffs Opposition, 18:12-16. A reasonable jury could find that Plaintiff exhibited a subjective expectation of privacy in the building. Thus, the Court will turn to the issue of whether Plaintiffs subjective expectation of privacy was objectively reasonable.

a. Squatters

An overnight guest has a legitimate expectation of privacy in the host’s home because the host willingly shares his house and his privacy with his guest. Minnesota v. Olson, 495 U.S. 91, 96-97, 99, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). In contrast, a squatter lacks standing to contest a search of the structure in which he or she is squatting, regardless of the squatters subjective belief. Zimmerman v. Bishop Estate, 25 F.3d 784, 787-88 (9th Cir.1994). Society is not prepared to recognize as reasonable the expectation of privacy of an individual who unlawfully occupies a piece of property. United States v. Cortez-Dutrieville, 743 F.3d 881, 884 (3d Cir.2014); see also Lavan v. City of Los Angeles, 693 F.3d 1022, 1036 (9th Cir.2012); Zimmerman v. Bishop Estate, 25 F.3d 784, 787 (9th Cir.1994); United States v. Ruckman, 806 F.2d 1471, 1472 (10th Cir.1986).

Circuit courts have found that an individual without a legal right to be in a residence does not have an expectation of privacy in it, even if he mistakenly believed that his presence was not wrongful. For example, in Zimmerman, the Ninth Circuit found that the guest who had consent to be in the residence by squatters had no greater right than the squatters themselves, and the guest did not have an expectation of privacy in the residences. Zimmerman, 25 F.3d at 787-88. Similarly, the Sixth Circuit found that a consensual visitor of a squatter in a dilapidated, uninhabitable house did not have an objectively reasonable expectation of privacy in the house. United States v. Whitehead, 415 F.3d 583, 588 (6th Cir.2005). The Third Circuit found an individual who was an overnight guest with the consent of the owner did not have an expectation of privacy in the home because a protection order prohibited him from entering the home, and the consent did not override the terms of the protection order. CortezDutrieville, 743 F.3d at 884. The Seventh Circuit found that an individual that had been evicted from his home two weeks prior and given notice of the same did not have a legitimate expectation of privacy in the residence. United, States v. Curlin, 638 F.3d 562, 565 (7th Cir.2011).

In all of these cases, the courts found that an individual did not have an objectively reasonable expectation of privacy in a residence in which he had a mistaken subjective expectation of privacy because he did not have the legal right to be in the home in fact. One district court has stated: “To hold that someone has an expectation of privacy based solely' on their belief that the person who gave him consent to be there had authority to do so would truncate the objectively reasonable element from the expectation of privacy test.” United States v. Murray, 2010 WL 3069485, *7 n. 14, 2010 U.S. Dist. LEXIS 77954, *25, n. 14 (D.V.I. August 2, 2010).

Here, the undisputed facts show that Plaintiff did not have a legal right to be in the building. The facts of this case are very similar to Zimmerman, in which the Ninth Circuit found that a squatter’s overnight guest did not have an expectation of privacy in a shack on the property. The evidence showed that the squatters were aware that they did not have a legal right to occupy the premises they were told they were trespassing and told to vacate—but the evidence did not show that the guest was aware of their or his lack of legal right to be there. Zimmerman, 25 F.3d at 786, 787. The guest presented evidence that the squatters should have had an expectation of privacy because of the length of their residency, their improvements to the property, and the perceived acquiescence of their presence by the actual owners. Id. at 787. Even though the guest had consent from one with apparent authority to give consent, and may have had a reasonable subjective belief that he was an overnight guest of someone with a reasonable expectation of privacy, the Ninth Circuit found that he “had no greater right to be on the property than did the [squatters],” whose length of residency and improvements to the property did not give rise to an objectively reasonable expectation of privacy. Id. at 788. Considering Zimmerman with Cortez-Dutrieville, the Court finds that staying as an overnight guest by someone without actual authority to give consent does not create a reasonably objective expectation of privacy for the guest.

Here, Plaintiff provides evidence that he believed he had permission to be in the building by Octavio Ramirez, a previous owner. Plaintiffs Opposition 18:12-14. However, Octavio Ramirez was unable to give consent to Plaintiff to be in the building on December 4, 2009 because he was not the legal owner at that time and had no legal right to be present in the building. See Undisputed Fact 49. Consent from Octavio Ramirez does not create an expectation of privacy for Plaintiff because he did not have actual authority to give consent. Further, the evidence demonstrates the six buildings, including the building at issue, were gutted and in substandard condition, and, with the exception of Plaintiff, uninhabited. Undisputed Facts 20, 27, 50. Plaintiff did not have an objective reason to believe that Octavio Ramirez had the authority to give consent.

Plaintiff may have had a subjective belief that he had an expectation of privacy in the building, but his belief was not objectively reasonable. The building had been in an uninhabitable state at least since it was deemed “substandard” on April 22, 2009, and the state of the buildings was apparently abandoned. Undisputed Facts 20, 50. The person from whom he received consent also had no actual authority to do so because he had no legal right to occupy the building, and, as such, Octavio Ramirez did not have a privacy interest in the building to share with Plaintiff. See Undisputed Fact 49. Hence, Plaintiffs presence in the building was unlawful, and such unlawful presence did not give him an objectively reasonable expectation of privacy in it. Defendants’entry into the building, therefore, did not violate Plaintiffs Fourth Amendment rights.

b. Abandoned Property

In addition, Defendants’ entry into the building did not violate Plaintiffs Fourth Amendment rights because Ulrich had an objectively reasonable belief that the building was abandoned. Abandoned property is not subject to Fourth Amendment protection. United States v. Wilson, 472 F.2d 901, 902 (9th Cir.1972); United States v. Harrison, 689 F.3d 301, 306-307 (3d Cir.2012); McKenney v. Harrison, 635 F.3d 354, 358 (8th Cir.2011); see also Michigan v. Tyler, 436 U.S. 499, 503, 505, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978); Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). “Search or seizure of abandoned property, even without a warrant, is simply not unreasonable.” United States v. Wilson, 472 F.2d at 902.

A police officer’s warrantless entry into a house that appears to be abandoned, but is not actually abandoned, does not violate the Fourth Amendment when they act on an objectively reasonable mistake of fact. McKenney, 635 F.3d at 358-59, Harrison, 689 F.3d at 309; United States v. Sledge, 650 F.2d 1075, 1080 (9th Cir.1981).³ This is distinct from the officer’s entitlement to qualified immunity. McKenney, at 358.

Objective reasonableness 'of an officer’s belief that a house is abandoned is based on the totality of the circumstances. McKenney, 635 F.3d at 359. Courts have found that a poorly maintained exterior of a house is insufficient to find that an officer’s belief that the house is abandoned is reasonable (there is no “trashy house” exception to the warrant requirement); but there must be further observations, such as corroboration that the house’s interior matched the exterior. Harrison, 689 F.3d at 311.

A person’s presence in the house does not affect the reasonable belief that a house is abandoned. See McKenney, 635 F.3d at 359. “Because a reasonable officer could have concluded that the house was abandoned, a reasonable officer could also have concluded that anyone in the house was a trespasser who had no privacy interest under the Fourth Amendment.” Id. In United States, v. Knepper, an officer reasonably relied on the appearance of abandonment in conducting a warrantless search of a cottage. United States v. Knepper, 256 Fed.Appx. 982, 984 (9th Cir.2007). He relied in part on the former landlord’s credible account that the suspect had vacated the premises, even though an individual was in the cottage and had shut and locked the door as the officer approached. Id.

The facts supporting a finding that the officers had an objectively reasonable belief that a house was abandoned in McKenney v. Harrison were that the house had an unkempt yard and' fence, there were no vehicles parked in the driveway, there was no response when the officers knocked, the back door was open, the kitchen was viewable. through the open door and the cabinets and refrigerator were open and empty, there was no furniture or personal effects, and there were no lights on or any other indication that there was electrical power. McKenney, 635 F.3d at 359. In United States v. Harrison, the court reached the same conclusion based on the facts that there was trash strewn about the exterior of the house, the lawn was overgrown, the windows were boarded or exposed, the front door was open, and one officer had made prior entries over several months and observed squatters who claimed no right to be there, and that there were no furnishings, electricity, or plumbing. Harrison, 689 F.3d at 309, 312.

In United States v. Johnson, which discusses McKenney v. Harrison and United States v. Harrison, .the district court of Nevada found that the officers did not have an objectively reasonable belief that the property was abandoned because their observations of a dark dilapidated building, without testimony that any officer had gone into the property, only gave rise to a suspicion that the property was abandoned. United States v. Johnson, 2012 WL 7761544, *15-16, 2012 U.S. Dist. LEXIS 186865, *44-46 (D.Nev. Dec. 26, 2012).

The facts in this case are analogous to those in McKenney v. Harrison and United States v. Harrison. Defendant Ulrich observed a building complex consisting of six buildings, many of which lacked doors and window glass, and the buildings appeared to have been gutted. Undisputed Fact 20. Officer Ulrich first had Stryker search outside the buildings, giving the “K-9 announcement” without any response. Undisputed Fact 23. Stryker did not locate any people outside of the buildings, and Officer Ulrich began to search the interior of the buildings, giving the K-9 announcement before entering each building and waiting some time to allow anyone inside to reveal himself. Undisputed Facts 25-26. These facts alone may not be sufficient to find that Ulrich’s belief that the building was abandoned was objectively reasonable; however, Ulrich found by entering and searching that the first three buildings were abandoned. Undisputed Fact 27. Ulrich had not been in the specific building in question on a previous occasion, as in United States v. Harrison, but the condition of the interior of the first three buildings raises a strong presumption that the interior or the remaining three were also in an abandoned state. In fact, the property was owned by a bank, it had been declared substandard, and there was no electricity, heat, or plumbing in any of the buildings. Undisputed Facts 21, 49, 50.

Plaintiff has attached to his brief deposition testimony that corroborates the condition of the building. Plaintiff had to use a wooden board to secure the door and that it was very cold so he went to sleep wearing several layers, including two jackets and boots. Plaintiffs Opposition 1:10, 1:21-22. He states that he did not hear or respond to any of Ulrich’s announcements or demands because he was asleep. Undisputed Fact 44. He states that Ulrich observed some personal items in each of the buildings and that Ulrich saw a person that turned out to be Plaintiff sleeping on a mattress when he shined a flashlight into the building. Plaintiffs Opposition 3:19-22. However, those contentions do not contradict a finding that the interior of the buildings objectively appeared abandoned.

Here, the totality of the circumstances suggests that it was objectively reasonable to believe that the fourth building Ulrich entered, and in which Plaintiff was sleeping, was abandoned. As previously stated, the exterior of the buildings were dilapidated, lacking windows and doors, and the interior appeared to be gutted, there was no response to the officer’s announcement, and three adjacent buildings in the same structure were abandoned. Whether Plaintiff was sleeping in the building, and whether or not Ulrich had observed Plaintiff when he shined a flashlight into the window, does not change his objectively reasonable belief that the building was abandoned. The building’s exterior and interior appeared to be abandoned, and the actual abandoned state of the three other buildings in the same complex gave rise to a strong presumption that the fourth was also abandoned. A reasonable jury could not find that Ulrich’s mistake of fact that the building was abandoned was objectively unreasonable.

Hence, Plaintiff did not have an objectively reasonable expectation of privacy in an apparently abandoned building, and there is no genuine dispute that Defendants entry into the building was not a violation of the Fourth Amendment.

Because Plaintiff had no legal right to be in the building and because the building was apparently abandoned, Plaintiff did not have an objectively reasonable expectation of privacy in the building. Therefore Plaintiff did not have Fourth Amendment rights in the building, and the warrantless entry into the building did not constitute a Fourth Amendment search. Defendants’ motion will be granted to the extent that it is based on the warrantless entry.

2. Excessive Force

“If the evidence, reviewed in the light most favorable to [Plaintiff], could support a finding of excessive force, then the defendants are not entitled to summary judgment.” Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir.2005). Defendants contend that Ulrich’s use of force in deploying Stryker to bite Plaintiff was objectively reasonable given the totality of the circumstances Ulrich faced, and argue that summary judgment must be granted in their favor on Plaintiffs excessive force claim. Plaintiff contends that a reasonable jury could find that Defendant Ulrich’s use of force contravened the Fourth Amendment because, in applying the relevant factors, a jury could conclude Ulrich’s use of force was unnecessary and therefore unjustified.

In excessive force cases, the extent of the intrusion on the individual’s Fourth Amendment rights must be balanced “against the government’s interests to determine whether the officer’s conduct was objectively reasonable based on the totality of the circumstances.” Espinosa v. City and County of San Francisco, 598 F.3d 528, 537 (9th Cir.2010); see also Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Price v. Sery, 513 F.3d 962, 968 (9th Cir.2008); Miller v. Clark County, 340 F.3d 959, 964 (9th Cir.2003). This analysis has three steps, explained by the Ninth Circuit as the following:

“First, we must assess the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating ‘the type and amount of force inflicted.’ ... Next, we must evaluate the government’s interests by assessing (1) the severity of the crime; (2) whether the suspect posed an immediate threat to the officers’ or public’s safety; and (3) whether the suspect was resisting arrest or attempting to escape ... Third, we balance the gravity of the intrusion on the individual against the government’s need for that intrusion.’ ... Ultimately, we must balance the force that was used by the officers against the need for such force to determine whether the force used was greater than is reasonable under the circumstances.’ ”

Espinosa, 598 F.3d at 537.

a. The Severity of the Intrusion

“When the governmental interests at stake are substantial, a greater intrusion upon the Fourth Amendment rights of the person may be justified. Conversely, when the governmental interest is insubstantial, the application of even minimal force.may be unreasonable.” Nelson v. City of Davis, 685 F.3d 867, 878 (9th Cir.2012). Where both the risk of harm and actual harm are significant, the harm must be justified by substantial government interests. Id. at 879.

The parties agree that when Stryker bit Plaintiff, substantial force was used. Stryker bit Plaintiff twice, in the foot and in the arm. Plaintiff required medical attention. Plaintiff sustained scarring and post-traumatic nerve injury. See Plaintiffs Exhibit H, Statement of Dr. Robert A. Forester. Ulrich testified that he was aware that a police dog is capable of inflicting great bodily injury and even death. See Plaintiffs Exhibit B, Testimony of Mark Ulrich. Based on the undisputed facts, the Court finds the intrusion into Plaintiffs Fourth Amendment right was a substantial one. See Miller, 340 F.3d at 964. Therefore, the government interest at stake must be substantial to justify the use of substantial force.

b. Governmental Interests

Defendants contend that Ulrich reasonably thought that Plaintiff was the suspect Mario Zephier when Stryker was sent to “bite and hold”. Therefore, Defendants conclude that the governmental interest at stake here was suspect Mario Zephier’s capture, and this constituted a substantial governmental interest. Plaintiff contends that Ulrich’s belief that Plaintiff was Mario Zephier was unreasonable, and therefore, the governmental interest here was not substantial. Plaintiff also argues that the governmental interest was minor because Plaintiff was arrested for only minor offenses (trespassing and resisting, obstructing, or delaying a peace officer). If Ulrich’s belief was reasonable, then the governmental interest here would be a substantial one, possibly justifying the use of substantial force. See Hill v. California, 401 U.S. 797, 804, 91 S.Ct. 1106, 1111, 28 L.Ed.2d 484 (1971) (holding that officers’ reasonable mistake as to a suspect’s identity entitled the officers to do what the law would have allowed had the correct suspect been arrested, i.e. perform a search incident to arrest).

i. Factual Issues

Whether the Property was Secured: Plaintiff contends that upon arriving at the scene, Ulrich did not have any information indicating that the 110 Pine Street property had been secured and therefore, for all Ulrich knew, Zephier had left the area. The undisputed facts show that a search perimeter was being set up to include 110 Pine Street. See Undisputed Facts 10 and 11. It is undisputed that the property at 110 Pine Street consisted of several buildings. See Undisputed Fact 20. However, nothing in the undisputed facts demonstrates that Ulrich knew that the search perimeter or the property had been secured or that Ulrich believed Zephier was in the specific building where Plaintiff was found. Therefore, the Court cannot conclude that that Ulrich knew Zephier was within the search perimeter, the property, or the building.⁴

Pursuit and Jacket: The undisputed facts show that Ulrich and the other Modesto Police Department officers were in pursuit of a suspect whom they had lost sight of in the vicinity of 110 Pine Street. See Undisputed Facts 8-11. Further, a jacket matching the description of one worn by the suspect Zephier was found in a gap in the fence around 110 Pine Street. See Undisputed Fact 19. Upon entering the building, Ulrich could not see Plaintiff or what he was wearing to make further identification. See Undisputed Fact 30.

Failure to Respond to Commands: Plaintiff did not respond to any of Ulrich’s K-9 announcements. See Undisputed Fact 30. Plaintiff contends that he did not hear the K-9 announcements because he was asleep. Defendants contend that Ulrich was reasonable in believing that Plaintiff was Zephier because Plaintiff was found within the search parameters underneath a sleeping bag and did not respond to the K-9 announcements.

Failure to Make Further Efforts to Identify: Plaintiff also contends that Ulrich did not act reasonably because he did nothing to ascertain whether the person under the sleeping bag was Zephier. For example, he did not ask the person to identify themselves, nor observe the person’s eyes. None of the undisputed facts show that Ulrich made any efforts to ascertain whether the person under the sleeping bag was in fact Zephier.

ii. Similar Cases

Case law on similar issues does not conclusively demonstrate that Ulrich’s beliefs and actions were reasonable. In Tarantino v. Dupnik, a sleeping homeless man was bitten by a sheriff department K-9 dog. 2012 WL 1718893, *3 (D.Ariz. May 15, 2012). In Tarantino, the dog was being used to seek a felony suspect who had fled into the desert. See Id. at *4. The court granted the defendant deputy’s motion for summary judgment, finding that the Ninth Circuit factors favored the objective reasonableness of the officer’s decision to release the dog. See Id. at *5. The court considered the fact that officers attempted less forceful means of apprehension before releasing the dog (searching on foot, using helicopters to search the scene, and making several loud announcements). See Id. The court also found that the officer had no reason to believe that anyone other than the suspect would be in the desert search area. See Id. Several factors distinguish Tarantino from the case before the court. In Tarantino, officers did not have the “suspect” cornered because they were searching in the open desert. Here, the officers had identified a finite search area. In addition, there is no evidence that Ulrich attempted less forceful means of apprehension before releasing the dog, other than calling out to him. Nothing before the court shows that Ulrich reasonably believed that no one other than the suspect would be within the search area.⁵

In Chew v. Gates, a suspect fled from the police and was bitten by a police dog in a shipping yard where he had hidden. 27 F.3d 1432, 1436 (9th Cir.1994). The court found that Chew did not pose an immediate threat to officers because nothing suggested that he engaged in any threatening behavior during the time he was hiding, “or that he did anything other than hide quietly.” Id. at 1442. The court found that in light of these facts, a rational jury could easily find that Chew posed no immediate safety threat to anyone. The court found that the other two Ninth Circuit factors weighed slightly in favor of the defendants. See Chew, 27 F.3d at 1442. In regard to the severity of the crime at issue, the court found that the significance of three prior outstanding felony warrants was diminished “by the facts that Chew was completely surrounded by the police, and that the prospects for his imminent capture were far greater than are those of the many fleeing suspects who are fleeter than the police officers chasing them.” Id. at 1443. Chew is similar to this action. Here, Defendants have shown nothing to suggest that Plaintiff posed an immediate threat when he was found within the building on 110 Pine Street. As in Chew, the prospect of the imminent capture of the person under the sleeping bag was great.

In Kopf v. Wing, armed robbery suspects fled from police officers, hid in a backyard shed of a house in a residential neighborhood, and ultimately bitten by a police dog. See Kopf v. Wing, 942 F.2d 265, 266 (4th Cir.1991). In Kopf, as here, the issuance of loud K-9 warnings was contested. Id. at 268. The Fourth Circuit found it significant that “[njeither [suspect] nor any civilian witness heard the announcement; only police officers testified that it was given.” Id. In addition, the plaintiff submitted expert affidavits stating that the use of police dogs on surrounded suspects was unreasonable with or without a warning. Id. The Fourth Circuit found that these issues precluded granting summary judgment for defendant police officers. Id. at 269.

In McKay v. City of Hayward, a man was bitten by a K-9 dog that police were using to track a burglary suspect. See McKay v. City of Hayward, 12-CV-01613 NC, 2013 WL 2605782 *1 (N.D.Cal. June 11, 2013). The court found that while the governmental interests in securing the safety of the community by apprehending an armed individual who had fled and whose whereabouts were unknown was strong, other facts came into play when the officer and K-9 dog pursued the suspect into the Plaintiffs backyard. Id. at *7. The officer did not give a warning and released the dog in a residential area. Id. The court found that because testimony called into question the reasonableness of this decision; the task of determining whether the officer’s decision was reasonable under the circumstances was for a jury. See McKay, 949 F.Supp.2d at 980-81.

In Fallis v. Sasaki, officers were attempting to locate a fleeing suspect who had possibly hidden within a perimeter established by the officers. See 2011 WL 111724 *9 (W.D.Wash. Jan. 13, 2011). The officers did not know where and if the suspect was hiding. See Id. The search took place at night and “the facts known to these officers did not suggest that the officers had a way to determine whether [the suspect] was armed or posed other threats to their individual safety or those of the residents who lived in the area where [the suspect] had fled.” Id. A police K-9 dog was released and bit the suspect. Id. at *11. The court found that a rational jury could not conclude that the officer’s use of the dog was unreasonable and therefore constituted excessive force. Id. at *11. However, in Fallis, the person bitten was not inside a structure, but outside while hiding in bushes. Id. at *3.

iii. Expert Declaration

Plaintiff has offered the declaration of a K-9 expert, Vanness H. Bogardus III, who concludes that “when Officer Ulrich permitted his dog to bite Mr. Olvera, he did not see or develop a factual basis to believe that Mr. Olvera was the subject he was seeking, Mr. Zephier, or that he was armed with anything.” Plaintiffs Exhibit J, p. 7. Further, Bogardus states that “the situation begged for further investigation, to rule Mr. Olvera in or out as the reportedly armed and dangerous domestic violence parolee-at-large.” Plaintiffs Exhibit J, p. 8. Bogardus states that Ulrich should have used other methods to arrest Plaintiff and that the releasing of the police dog to effect Mr. Olvera’s arrest was unreasonable, unnecessary, and excessive force. See Plaintiffs Exhibit J, p. 15. In his declaration, Bogardus states that standard K-9 practice holds that even if a handler is operating under the belief that a suspect is armed, the dog will not be released. Instead, additional back-up should be called. See Plaintiffs Exhibit J, p. 11. Bogardus also states that California POST Standards “require that an officer (or another) be under physical assault in order to exercise a canine attack as a force option.” Id. at 14. Finally, he states that “[ajssuming no immediate risk to life, Officers are supposed to take the additional few minutes sometimes required to wake up or persuade persons to comply with the officers’ commands.” Id.

Bogardus’s expert declaration is the type of testimony the Ninth Circuit in Smith v. City of Hemet found to create a disputed issue of fact requiring a jury to assess the reasonableness of force used. See 394 F.3d 689, 703 (9th Cir.2005). Considering this expert testimony, this case’s facts, the severity and extent of force used, and the decisions of other courts in regard to similar incidents, the Court finds that, as in Smith, “it is evident that the question whether the force used here was reasonable is a matter that cannot be resolved in favor of the defendants on summary judgment.” Smith, 394 F.3d at 703 (9th Cir.2005).

Further, even if Ulrich’s belief as to Plaintiffs identity was objectively reasonable, Bogardus’ declaration calls into question the reasonableness of using a police dog in such a situation. In Chew and Smith, the Ninth Circuit held that an additional factor to be considered under Graham is the “availability of alternative methods of capturing or subduing a suspect.” Smith, 394 F.3d at 703; Chew, 27 F.3d at 1441 n. 5. In Smith, the plaintiff presented an expert declaration concluding that officers could, and should have used other methods to complete the arrest rather than to “sic the police dog” on the suspect. 394 F.3d at 703. The Ninth Circuit found that “a rational jury could rely upon such evidence in assessing whether the officers’ use of force was unreasonable.” Id. (internal citations omitted). Considering the availability of other means with the three Ninth Circuit factors, the court held that “it is evident that the question whether the force used here was reasonable is a matter that cannot be resolved in favor of the defendants on summary judgment.” Smith, 394 F.3d at 703.

c. Whether Ulrich was Objectively Reasonable

On a motion for summary judgment, Defendants must provide evidence to show that Ulrich’s decision was objectively reasonable given the facts he knew at the time. Defendants have not met this burden. Ulrich did not have sufficient information to believe that Plaintiff was the suspect. Plaintiff demonstrated no threatening actions to the officers. Ulrich did not attempt to wake Plaintiff or cause him to reveal himself other than calling out to him. Ulrich did not attempt less invasive means to apprehend him. Given the facts, Plaintiffs expert’s declaration, and the case law, a reasonable jury could find in Plaintiffs favor that Ulrich’s decision was not objectively reasonable in such a situation. Summary judgment cannot be granted to Defendants on the issue of excessive force.

3. False Arrest

Defendants contend that Plaintiffs false arrest claim fails because probable cause existed to arrest Plaintiff for trespassing and for resisting, obstructing, or delaying Officer Ulrich. Plaintiff contends that Ulrich did not have probable cause and, therefore, Ulrich’s arrest of Plaintiff violated the Fourth Amendment.

A warrantless arrest must be justified by probable cause, which requires the officers to have knowledge or reasonably trustworthy information sufficient to warrant a prudent person in believing that the suspect has committed a crime or is committing a crime, based on the totality of the circumstances known to the officers at the time. United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir.2007); Rohde v. City of Roseburg, 137 F.3d 1142, 1144 (9th Cir.1998); Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). A plaintiff must show there was no probable cause in order to prevail on a section 1983 claim for false arrest. Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir.1998).

a. Trespassing Under California Penal Code 602(m)

Ulrich arrested Plaintiff for trespassing. Defendants contend that Plaintiff told Ulrich he had the permission of the person living in the property’s front to sleep in the building where Plaintiff was found. Ulrich then went to inspect the front building and found it “gutted, uninhabitable and abandoned.” See Defendant’s Statement of Undisputed Material Facts. Plaintiff contends that he never told Ulrich that he had the permission of a person living in the front building to sleep there. Plaintiff has attached exhibits from Plaintiffs deposition in which Plaintiff testifies that he told Ulrich that he had permission to be in the building, had the deed to the property in his pocket, and that the owner had given him permission to stay in the building in exchange for helping him remodel the house. See Plaintiffs Exhibit A. Plaintiff also has submitted a statement to the Court asserting that he never told Ulrich that the owner of the property lived in the front structure of the property.

For the purposes of this motion for summary judgment, the Court must accept Plaintiffs version of the disputed facts as true. Here, there is a genuine dispute of material fact as to what Plaintiff told Ulrich about his permission to be on the property. A reasonable jury, believing Plaintiff, could find that Ulrich did not have probable cause to arrest Plaintiff for trespassing. Therefore, the Court does not grant summary judgment to Defendants on the issue of false arrest in relation to the trespassing charge.

b. Resisting, Obstructing, or Delaying a Peace Officer under California Penal Code Section 148(a)

Ulrich arrested Plaintiff for resisting, delaying, or obstructing a peace officer under California Penal Code Section 148(a). Section 148(a) states:

Every person who willfully resists, delays, or obstructs any public officer [or] peace officer ... in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine hot exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

Cal.Penal Code 148 (West) (emphasis added).

Defendants contend that Officer Ulrich had probable cause to arrest Plaintiff for violating Section 148 because Modesto Police officers had to divert time and attention away from the search for Mario Zephier in order to “gain control over the recalcitrant Mr. Olvera” and because Ulrich had to stop searching for Zephier to attend to “post-bite” care for Plaintiff and complete the necessary K-9 deployment reports. Defendants contend that though Plaintiff did not run from officers, he concealed himself beneath the sleeping bag as officers attempted to gain control of him. Defendants contend that these facts show sufficient probable cause to grant Defendants’ motion for summary judgment on the issue of false arrest.

In support of their position, Defendants cite to People v. Allen, in which a suspect ran and hid from an officer, thereby delaying the officer in the performance of his duty. 109 Cal.App.3d 981, 167 Cal.Rptr. 502 (1980). However here, Plaintiff did not run and hide under the sleeping bag to avoid police. The parties do not dispute that Plaintiff was beneath the sleeping bag when Officer Ulrich entered the structure and remained beneath the bag until Stryker bit Plaintiff and officers gained control of him. Even without considering the disputed facts as to whether Plaintiff was awake and concealed beneath the sleeping bag or merely sleeping in the sleeping bag, Defendants have not provided facts sufficient to show that Ulrich had probable cause to believe that Plaintiff willfully resisted, delayed, or obstructed Ulrich and other Modesto Police Department officers by remaining under the sleeping bag.

“An outright refusal to cooperate with police officers cannot create adequate grounds for an intrusion which would otherwise be unjustifiable.” People v. Bower, 24 Cal.3d 638, 649, 156 Cal.Rptr. 856, 597 P.2d 115, 122 (1979). Here, Plaintiff contends that he was asleep and Defendants have failed to show that there is no genuine dispute of material fact on whether Ulrich had probable cause to arrest Plaintiff for a violation of section 148. In addition, as noted above, there is a genuine issue of fact as to whether Ulrich had probable cause to arrest Plaintiff for trespassing based on the undisputed facts. Therefore, the Court must deny Defendants’ motion for summary judgment on the claim of false arrest.

VII. STATE LAW CLAIMS

1. California Constitutional Law Claim

Defendants contend that because the Fourth Amendment standard of reasonableness applies to Plaintiffs claims under Article I, 13 of the California Constitution, summary judgment should be granted to Defendants. Plaintiffs claim under Article I, 13 alleges that Defendants’ use of unreasonable and/or excessive force violated Plaintiffs California Constitutional rights. Plaintiff contends that broader protection is afforded to citizens under Article I, 13 than under the Fourth Amendment and a different standard applies to Plaintiffs California Constitutional law claim.

“The touchstone for all issues under the Fourth Amendment and [Ajrticle I, [§ ]13 of the California Constitution is reasonableness. [Citations.]” People v. Boulter, 199 Cal.App.4th 761, 768, 131 Cal.Rptr.3d 185, 190 (2011), review denied (Dec. 21, 2011) (citing Ingersoll v. Palmer, 43 Cal.3d 1321, 1329, 241 Cal.Rptr. 42, 743 P.2d 1299 (1987)); see also Sanchez v. Cnty. of San Diego, 464 F.3d 916, 928-29 (9th Cir.2006). “This language indicates that the right to be free from unreasonable searches under Article] I § 13 of the California Constitution parallels the Fourth Amendment inquiry into the reasonableness of a search.” Sanchez, 464 F.3d at 928-29. Defendants are correct in asserting that the Fourth Amendment standard of reasonableness applies to Plaintiffs California constitutional law claims. However, as discussed above, Defendants are not entitled to summary judgment on Plaintiffs Fourth Amendment excessive force and false arrest claims. Thus, summary judgment on Plaintiffs California constitutional law claims based on the same arguments is not appropriate.

2. Assault

Defendants contend that Plaintiffs claim of assault fails for lack of proof of a necessary element of assault. The essential elements of a cause of action for assault are:

“(1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiffs harm.”

Yun Hee So v. Sook Ja Shin, 212 Cal.App.4th 652, 668-69, 151 Cal.Rptr.3d 257, 269 (2013), as modified on denial of reh’g (Jan. 28, 2013) (citing CACI No. 1301; Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1603-1604, 146 Cal.Rptr.3d 585). Defendants contend that plaintiff was unaware of any impending harmful or offensive touching because he was asleep and unaware of a police presence in the building ⁶ until after any harmful touching commenced, and that therefore his claim fails the essential elements of an assault cause of action. Plaintiff contends that because he was awake between the first and second dog bite, he was aware and anticipated harm from Stryker’s second bite. Defendant further contends that even if Plaintiff can establish the elements of assault, Ulrich is immune from liability because he was acting reasonably in his performance of duty when he chose to have Stryker bite Plaintiff.

The undisputed facts show that Plaintiff was bitten twice and was awake when he was bitten a second time. Therefore, Plaintiff was aware of impending harmful or offensive touching from Stryker between the first and second time he was bitten. Plaintiffs claim for assault does not fail for lack of one of the elements.

3. Battery

Defendants contend that Plaintiffs state law battery claim fails because the reasonableness standard for a claim of state law battery by a peace officer is the same as the Fourth Amendment reasonableness standard for excessive force claims. Defendants are correct that the reasonableness standard applies to both claims. See Yount v. City of Sacramento, 43 Cal.4th 885, 902, 76 Cal.Rptr.3d 787, 183 P.3d 471, 484 (2008) (common law battery claim, like section 1983 claim, requires proof of unreasonable force by officer); see also Rodriguez v. City of Modesto, CVF 10-1370 LJO MJS, 2011 WL 2224765, *9 (E.D.Cal. June 7, 2011). However, as stated above, Defendants have failed to show that Plaintiffs excessive force claim fails because the force was reasonable. Therefore, summary judgment on Plaintiffs state law claim for battery fails for the same reasons. Defendants are not entitled to summary judgment on Plaintiffs battery claim.

4. Negligence

Defendants contend that no reasonable juror could find that Ulrich acted unreasonably in releasing Stryker. Plaintiffs claim for negligence flows “from the same facts as the alleged Fourth Amendment violation for excessive force and are measured by the same reasonableness standard of the Fourth Amendment.” Abston v. City of Merced, 2011 WL 2118517, *16 (E.D.Cal. May 24, 2011) aff'd, 506 Fed.Appx. 650 (9th Cir.2013) (citing Munoz v. City of Union City, 120 Cal.App.4th 1077, 1102 n. 6, 16 Cal.Rptr.3d 521 (2004)). Therefore Defendants’ motion for summary judgment on Plaintiffs negligence claim fails for the same reason as does their motion on Plaintiffs federal constitutional claims; the evidence taken in the light most favorable to Plaintiff does not show that Defendant Ulrich acted reasonably.

5. False Arrest

As noted above, the Court finds that summary judgment cannot be granted to Defendants on the Fourth Amendment false arrest claim. Given that Defendants make no new contentions regarding Plaintiffs false arrest tort claim and offer no additional evidence, the Court cannot grant summary judgment for Defendants on the state law false arrest claim.

6. Cal. Civ.Code Section 3342

Defendants contend that Plaintiffs claim under California Civil Code section 3342 fails because subsection (b) of section 3342 applies in this instance and provides Defendants with immunity. Section 3342(a) sets forth strict liability for dog bites. Section 3342(b) provides an exception to this strict liability.

Nothing in this section shall authorize the bringing of an action pursuant to subdivision (a) against any governmental agency using a dog in military or police work if the bite or bites occurred while the dog was defending itself from an annoying, harassing, or provoking act, or assisting an employee of the agency in any of the following: (1) In the apprehension or holding of a suspect where the employee has a reasonable suspicion of the suspect’s involvement in criminal activity.

Cal. Civ.Code 3342 (West). Section 3342(d) provides that “[subdivision (b) shall apply only where a governmental agency using a dog in military or police work has adopted a written policy on the necessary and appropriate use of a dog for the police or military work enumerated in subdivision (b).” Id.

It is undisputed that Stryker was a dog used in police work. Ulrich attaches to his declaration the Modesto Police Department “Guidelines for Canine Unit Operations,” which has the stated purpose of “establishing] policies and procedures for the authorized use of Modesto Police Department Canine Teams.” Ulrich Decl., Exh. H, p. 1. Plaintiff objects on the basis that Ulrich is not an authorized representative to testify on behalf of the Modesto Police Department and the document lacks the proper foundation. Plaintiffs Objections, 9:14-17. However, Plaintiff does not dispute that such document exists.

Because Plaintiff has not disputed the existence of the document and its contained policy regarding the use of police dogs, but only is concerned with the document’s foundation, the Court finds, for the purposes of this motion only, that Ulrich, as an employee subject to the policy on the necessary and appropriate use of Modesto Police Department dog, has sufficient authority to authenticate the document in order to support the conclusion that such document exists.⁷ Taking the facts most favorable to the Plaintiff, no reasonable jury could find that the Modesto Police Department did not have in place a written policy on the necessary and appropriate use of a dog.

Defendants contend that the bite occurred during Stryker’s assisting Ulrich in the apprehension of a suspect where he had a reasonable suspicion of the suspect’s involvement in criminal activity. Plaintiff contends that he was not the actual suspect and it is a question of fact whether Ulrich had reasonable suspicion that Plaintiff was the suspect sought. Reasonable suspicion is a standard lesser than probable cause. It is defined as “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Valdes-Vega, 738 F.3d 1074, 1078 (9th Cir.2013).

Defendants provide particularized and objective facts indicating that the bite occurred while the dog was assisting Ulrich, an employee of the Modesto Police Department, in the apprehension of a suspect.' The undisputed facts show that Ulrich had reasonable suspicion of the suspect’s involvement in criminal activity. Defendants indicate the suspect Zephier was reported for criminal activity and fled when police arrived, and that Ulrich was attempting to apprehend Zephier when he commanded Stryker to bite Plaintiff. Further, Defendants provide articulable and objective facts supporting Ulrich’s reasonable suspicion that Plaintiff was the suspect—the suspect was announced to be at large, Plaintiff was in the search area, a jacket like the suspect’s was found under the fence of the property, and Plaintiff did not comply with the officers’ several loud requests that he reveal himself. These facts'meet the lesser standard of reasonable suspicion.

No reasonable jury could find that Stryker was not a dog used in police work assisting Ulrich in apprehending Plaintiff. Ulrich had a reasonable suspicion that Plaintiff was the suspect involved in criminal activity. Hence, there is no genuine dispute that an action against Defendants may not be brought under this statute. Defendants’ motion for summary judgment on Plaintiffs section 3342 claim will be granted.

VIII. CONCLUSION AND ORDER

THEREFORE, in accord with the forgoing discussion, it is hereby ORDERED that;

1. Defendants’ motion for summary judgment is GRANTED on Plaintiffs Section 1983 claims based on the Fourteenth Amendment, and based on the Fourth Amendment prohibition of unreasonable searches;

2. Defendants’ motion for summary judgment is GRANTED on Plaintiffs Cal. Civ.Code section 3342 claim; and

3. Defendants’ motion for summary judgment is DENIED ON ALL OTHER CLAIMS.

IT IS SO ORDERED.

1 . Defendants make one brief reference to qualified immunity in their notice of Motion for Summary Judgment. However, nowhere else do Defendants raise or argue the issue of qualified immunity. "[S]uch a ‘boilerplate’ ” reference, particularly given the absence of any legal argument as to why any of the individual defendants were entitled to qualified immunity in the event that a constitutional violation occurred, is not adequate to preserve qualified immunity. Pullano v. No. 8170, CCDC Guard, 2:10-CV-00335-MMD, 2013 WL 1758999, n. 1 (D.Nev. Apr. 24, 2013).

2 . These facts are considered undisputed only for the purposes of deciding this motion for summary judgment.

3 . It is worth noting that the Sixth Circuit has recently found that certain dilapidated properties may be considered an "open field” not subject to Fourth Amendment protection. United States v. Mathis, 738 F.3d 719, 731 (6th Cir.2013). An unused factory site "consisting of a partially demolished building and debris strewn throughout a paved lot” was "undeveloped (as one might reasonably understand ‘undeveloped’ ” in an urban setting) and qualified as an open field. Id. at 731.

4 . Defendants point to the fact that a black jacket was found inside the fence gap of 110 Pine Street. However, this does not demonstrate that Defendants believed or would have been reasonable in believing that Zephier was in the one specific building where Plaintiff was found. At most, they have shown there was a one in six chance that Zephier was in a building. This draws parallels to the aforementioned U.S. v. Winsor case. See 846 F.2d 1569 (9th Cir.1988).

5 . In fact, prior to the search of 110 Pine Street Officer Randy Raduechel encountered a black male within the search perimeter whom he ascertained was not the suspect. See Plaintiffs Exhibit E.

6 . This position is in contrast with Defendant's argument that Plaintiff was aware of the officers and was intentionally hiding from them.

7 . This finding does not prejudice any parties' challenge to this document at trial or a motion in limine.