Because the events at issue in this case occurred in California, the Court applies California tort law to Johnson's FTCA claims. Avina v. United States, 681 F.3d 1127, 1130 (9th Cir. 2012). C. False Arrest
The tort of assault requires that Plaintiffs establish: (1) the defendant threatened to touch the plaintiffs in a harmful or offensive manner, (2) it reasonably appeared to the plaintiffs that the defendant was about to carry out the threat, (3) the plaintiffs did not consent to the conduct, (4) the plaintiffs were harmed, and (5) defendant's conduct was a substantial factor in causing plaintiffs harm. See Avina v. United States, 681 F.3d 1127, 1130 (9th Cir. 2012). To prevail on a negligence claim, the plaintiff must show that (1) the defendant owed a legal duty to conform to a certain standard of conduct to protect the plaintiff, (2) the defendant failed to conform his behavior to this standard, (3) the defendant's actions proximately and legally caused the resulting injury, and (4) the plaintiff suffered damage.
Because the alleged conduct giving rise to the claims occurred in San Diego County and fall under the FTCA, the Court must apply California tort law. See Avina v. United States, 681 F.3d 1127, 1130 (9th Cir. 2012) (citing Richards v. United States, 369 U.S. 1, 7 (1962)) (“Because the [Plaintiffs'] tort claims are brought under the FTCA, and the events at issue occurred in California, we apply California tort law.”).
"Because [Plaintiff's] tort claims are brought under the FTCA, and the events at issue occurred in California, we apply California tort law." Avina v. United States, 681 F.3d 1127, 1130 (9th Cir. 2012) (citing Richards v. United States, 369 U.S. 1, 7 (1962)). Under California law, to prevail on the tort of assault, the plaintiff must establish that: (1) the defendant threatened to touch the plaintiff in a harmful or offensive manner; (2) it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in causing the plaintiff's harm.
"To prevail on a claim of battery under California Law, a plaintiff must establish that: (1) the defendant touched the plaintiff or caused the plaintiff to be touched with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in plaintiff's situation would have been offended by the touching." Avina v. United States, 681 F.3d 1127, 1130-31 (9th Cir. 2012). "Harmful or offensive contact, intentionally done, is the essence of battery, while apprehension of that contact is the basis of assault."
Thus here, California law as to assault and battery applies. Avina v. United States, 681 F.3d 1127, 1130 (9th Cir. 2012) ("Because [appellant's] tort claims are brought under the FTCA, and the events at issue occurred in California, we apply California tort law."). Under California law, where assault and battery "claims concern the conduct of peace officers acting in their official capacities, [Plaintiff] must [] establish, for each cause of action, that the officers used 'unreasonable force.
“Because the excessive force inquiry nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, [the Ninth Circuit has] held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly.” Avina v. United States, 681 F.3d 1127, 1130 (9th Cir. 2012) (internal quotations and citations omitted). However, “defendants can still win on summary judgment if the district court concludes, after resolving all factual disputes in favor of the plaintiff, that the officer's use of force was objectively reasonable under the circumstances.”
Johnson, 2016 WL 4488180, at *9 (quoting Tekle, 511 F.3d at 855). Because the case involves law enforcement officers, Johnson must also establish “that the officers used ‘unreasonable force.'” Id. (quoting Avina v. United States, 681 F.3d 1127 (9th Cir. 2012)). “[T]his standard requires that police officers executing an arrest or detention use only such force as is ‘objectively reasonable' under the circumstances, regardless of their intent or motivation.
In this regard, “[b]ecause the excessive force inquiry nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, [the Ninth Circuit has] held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly.” Avina v. United States, 681 F.3d 1127, 1130 (9th Cir. 2012) (citation omitted); see also Green v. City and County of San Francisco., 751 F.3d 1039, 1049 (9th Cir. 2014) (“Because this inquiry is inherently fact specific, the ‘determination whether the force used to effect an arrest was reasonable under the Fourth Amendment should only be taken from the jury in rare cases.'” (citation omitted))
“[T]he reasonableness of force used is ordinarily a question of fact for the jury.” Avina v. United States, 681 F.3d 1127, 1130 (9th Cir. 2012) (quoting Liston v. Cnty. of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997)). Thus, “[b]ecause the excessive force inquiry nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, [the Ninth Circuit] held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly.”