Opinion
CV 19-4654 DSF (AFM)
2020-11-18
Susan PECK, Plaintiff, v. COUNTY OF ORANGE, et al., Defendants.
Barbara Faye Enloe Hadsell, Dan Stormer, David Clay Washington, Tanya Sukhija-Cohen, Hadsell Stormer Renick and Dai LLP, Pasadena, CA, for Plaintiff. Jonathan C. Bond, Norman J. Watkins, S. Frank Harrell, Jesse Keenon Cox, Lynberg and Watkins APC, Orange, CA, for Defendants.
Barbara Faye Enloe Hadsell, Dan Stormer, David Clay Washington, Tanya Sukhija-Cohen, Hadsell Stormer Renick and Dai LLP, Pasadena, CA, for Plaintiff.
Jonathan C. Bond, Norman J. Watkins, S. Frank Harrell, Jesse Keenon Cox, Lynberg and Watkins APC, Orange, CA, for Defendants.
Order GRANTING in Part and DENYING in Part Defendants’ Motion for Summary Judgment (Dkt. 87)
Dale S. Fischer, United States District Judge
This case arises from the fatal encounter between Paul Mono and members of the Orange County Sheriffs’ Department (OCSD). Plaintiff Susan Peck, both as an individual and as a surviving heir and successor in interest to Mono, brings (1) section 1983 claims for constitutional violations including under the Fourth and Fourteenth Amendments, (2) claims for violations of the Americans with Disabilities Act (ADA) and Rehabilitation Act (RA), and (3) state law claims for wrongful death, assault, battery, negligent infliction of emotional distress, and a violation of the Bane Act. Defendants move for summary judgement or partial summary adjudication. Dkt. 87 (Mot.). Peck opposes. Dkt. 98 (Opp'n). This matter is appropriate for decision without oral argument. See Fed. R. Civ. P. 78 ; Local Rule 7-15. For the reasons stated below, the motion is GRANTED in part and DENIED in part.
In future filings with this Court, the parties’ citations to legal databases should, whenever possible, cite to Westlaw, per the Court's standing order.
I. UNDISPUTED FACTS
In 2016, Paul Mono and his wife Susan Peck obtained the services of real estate agent Jennifer Heflin to assist them in purchasing a residence in Laguna Woods Village, a private retirement community. SUF ¶¶ 113, 115, 119. Mono was steadily losing his eyesight due to retinitis pigmentosa, a degenerative disease that affects vision. Id. ¶ 108. The couple told Heflin they wanted to relocate from Marina del Rey to an area that would be safer for Mono to navigate in given his condition. Id. ¶¶ 113-116. At the time of his death, Mono had approximately 10% of his eyesight left, and very little peripheral vision. Id. ¶ 111. Mono also had a history of depression and suicidal ideation. In August 2009, Peck had called the Los Angeles Police Department to report that Mono suffered from depression and was threatening suicide. Id. ¶ 402. Peck had also expressed to Heflin that Mono struggled with depression and had previously attempted suicide. Id. ¶ 420.
Citations to SUF refer to both "Plaintiff's Opposition to Separate Statement of Uncontroverted Facts and Conclusions of Law in Support of Motion for Summary Judgment, or in the Alternative, Summary Adjudication; Plaintiff's Additional Material Facts and Supporting Evidence," dkt. 98-1, which incorporates Defendants’ proposed uncontroverted facts and Peck's responses to those facts, and "Defendants’ Response to Plaintiff's Additional Material Facts and Supporting Evidence," dkt. 103, which incorporates Peck's proposed uncontroverted facts and Defendants’ responses to them. To the extent certain facts are not mentioned in this Order, the Court has not relied on those facts in reaching its decision. To the extent the Court cites to a disputed fact, the Court has found the dispute was not valid or was irrelevant, unless otherwise indicated. The Court has independently considered the admissibility of the evidence and has not considered facts that are irrelevant or based on inadmissible evidence.
Mono and Peck purchased a Laguna Woods Village condominium (the Residence) in September 2017. Id. ¶ 119. Before they could move in, they needed certain renovations, in part to address Mono's visual impairment. Id. ¶ 120. Heflin recommended the services of general contract Dennis Metzler. Id. ¶ 122.
Metzler started working on the Residence, but over time his relationship with Mono and Peck deteriorated because of issues with work quality, budget, and timing. Id. ¶¶ 123-130. Mono and Peck moved into the Residence in November 2017. Id. ¶ 131. They had numerous issues with shoddy construction, including flooding, mice, and electricity issues. Id. ¶¶ 132-137. In December 2017, a building inspector refused to sign off on Metzler's water heater installation. Id. ¶ 161. After this, Metzler did not enter the Residence again. Id. As the relationship between Mono, Peck, and Metzler worsened, Heflin began serving as an intermediary. Id. ¶¶ 144-148.
On February 5, 2018, Heflin came to the Residence to assess the remaining remodel issues. Id. ¶¶ 148, 151. During this visit, Mono and Peck repeatedly told Heflin they wanted to find someone else to finish the work. Id. ¶¶ 149-150. At some point during this visit or a prior visit, Mono showed Heflin a gun. Id. ¶ 152. The bullets were kept separately in plastic bags away from the gun. Id. At no point did Heflin fear for her safety. Id. ¶ 153. She viewed Mono as "a good person" who would "never hurt her." Id.
In order to proceed with a different contractor, Mono and Peck needed floor plans in Metzler's possession. Id. ¶ 149. Heflin and Metzler agreed they would meet in a carport near the Residence the next day so that Heflin could obtain the floor plans and bring them to Mono and Peck herself. Id. ¶ 156. Heflin told Metzler she did not think it was a good idea for Metzler to interact with Mono given how upset Mono was with him. Id. ¶ 155. On February 6, 2018, Heflin met Metzler in the carport and got the floor plans. Id. ¶ 158. Metzler attempted to discourage Heflin from going to the Residence out of concern for her safety. Id. ¶ 164. Metzler had never seen a gun in the Residence but had been informed by Heflin that Mono had at least one gun. Id. ¶ 159-160. To placate Metzler, Heflin stated that she would call him and leave her phone on while in the Residence so he could hear what was happening. Id. ¶ 165.
Heflin then went into the Residence. Id. ¶ 169. When she gave Mono the floor plans, he became upset, claiming they were not the right plans. Id. During the approximately 30 minutes she was in the Residence, Heflin said Mono swung through various emotions becoming angry or upset and then calming down. Id. ¶ 170. When Heflin exited the Residence and stood outside talking to Peck, Mono came to the front door with a gun which he waved around over his head for about 30 seconds. Id. ¶ 173. At one point, he pointed it in the direction of Heflin and said, "You referred him to me" and "I'm going to shoot his fucking head off." Id. ¶¶ 172-173. Heflin was not afraid. Id. ¶ 175. She thought Mono was just "messing around" and did not believe there were bullets in the gun. Id. Heflin told Mono to "put the gun down" and he walked back into the house and returned seconds later without the gun. Id. ¶¶ 177-178.
Metzler, who was listening to the conversation, hung up when he heard Heflin tell Mono to "put the gun down" and dialed 911, saying: "I've got a client that's threatening with a firearm to shoot somebody ... in his house." Id. ¶¶ 179-180 (alteration in original). He stated Mono was threatening him and while he was not in the house, a real estate agent was. Id. Heflin left the Residence, hugged Mono and Peck goodbye, and told them she would see them the next day. Id. ¶ 183. Heflin then walked back to Metzler and learned he had called 911 and the police were on their way. Id. ¶¶ 184-185. Heflin was upset Metzler called the police and asked him why, as she had not been in danger. Id. ¶¶ 186-187.
OCSD deputies Bradley Carrington, Brent Lind, John Frey, Anthony Montoya, and Michael Johnson (collectively, the Deputy Defendants) responded to the scene. Id. ¶¶ 194-195. Frey and Carrington each had more than 30 years of experience at the time, while Montoya and Johnson had five and six years, respectively. Id. ¶ 201. When the Deputy Defendants arrived at the scene, they had to pass by the carport area where Heflin and Metzler were, about 90-150 feet away from the Residence. Id. ¶ 202. Frey arrived at the scene first and asked Heflin and Metzler who had called 911. Id. ¶¶ 202, 207. Metzler stated he had, Mono had threatened to shoot him, and he believed there was a gun in the Residence. Id. ¶ 207. This interaction was very brief. Id. ¶ 206. Frey did not speak to Heflin directly, even though he understood she was the real estate agent mentioned in the 911 call and she, not Metzler, had been inside the Residence. Id. ¶ 205. Frey broadcast over the radio that Heflin was not inside the Residence and Metzler advised Mono waved a gun around Heflin. Id. ¶ 12. None of the other deputies stopped to talk to Heflin or Metzler even though they remained in the carport area. Id. ¶ 207.
Once at the Residence, Deputies Johnson, Lind, Carrington, and Frey took positions on the north side where they could see into the Residence through a large three-paned window. Id. ¶ 14. Montoya stood on the west side, where he could see through a window on the front door. Id. ¶ 15. Through the windows they saw Mono, who appeared agitated and was screaming. Id. ¶ 17. They also saw Peck inside the Residence. Id. ¶ 18. Montoya and Carrington tried to get Peck to open the door of the Residence, but she allegedly shook her head no. Id. ¶ 19. Peck states she could not understand what the deputies were saying because all the windows were closed. Id. Mono called the deputies derogatory names including "fuckers" and "assholes" and gave them the middle finger. Id. ¶ 22. It is unclear whether the deputies identified themselves as police officers. Id. ¶ 23.
Mono walked out of the living room for a moment and returned holding a white cane with red marks. Id. ¶¶ 24-26, 495. The deputies observed this and heard Mono make comments using the word "blind" including something along the lines of, "what are you going to do, shoot a blind man?" Id. ¶ 26. The deputies assert they did not believe Mono was blind because he did not use the cane to assist him, did not have trouble moving around the Residence, pointed his cane at individual deputies, tracked the deputies’ movements, and looked at the deputies when speaking to them. But Peck disputes this because Mono had a cane colored red on the bottom and was yelling about being blind. Id. ¶¶ 26-27. Mono started waving the cane aggressively and banging it on windows. Id. ¶ 28. The deputies tried to engage Mono but he continued to scream at them in a belligerent manner. Id. ¶ 30. At one point, Mono pressed his bare buttocks against the window on the north side of the Residence and spread his buttocks cheeks. Id. ¶ 38.
According to the Braille Institute, Mono was in fact legally blind. Id. ¶ 26. Because of his vision problems, he stopped driving around a decade prior to his death. Id.
Two neighbors – Larry and Marsha Berman – observed the incident from a grassy area approximately 100-120 feet from the Residence. Id. ¶¶ 370-372. Marsha Berman observed Mono waving around his cane and yelling obscenities and statements like "shoot me," "kill me," and "if you come in my house, I'm going to shoot you." Id. ¶ 34. At one point, Marsha Berman saw Mono step away and return carrying a "blind person's cane" and wearing "dark sunglasses." Id. ¶ 383. The Bermans both heard Mono repeatedly state he was blind. Id. ¶¶ 385, 387.
During this encounter, Montoya noticed a firearm sitting at the north end of a couch along the eastern wall of the Residence. Id. ¶ 39. Montoya told the other officers he saw a gun and used a flashlight to illuminate its location. Id. ¶ 40. The gun was holstered. Id. ¶ 41. Mono began screaming about the firearm, making statements like "I'll show you my gun! You wanna see my gun?" Id. ¶ 45. Johnson gave several loud commands to Mono to not go near or touch the gun. Id. ¶ 46. Despite the commands, Mono moved in the direction of the firearm. Id. ¶ 47.
At this point, four of the five Deputy Defendants were standing directly outside the windows to the Residence. Moments before, when Montoya had pointed out the gun to his colleagues, Lind had walked away from the Residence to speak with Metzler. Id. ¶ 44. Because Montoya was outside the front door – the remaining deputies were standing outside the three-paned window – he could not hear the exchanges between Mono and the remaining deputies. Id. ¶ 327.
The Deputy Defendants claim Mono reached for and grabbed the gun, picked it up, and began raising it towards the deputies positioned outside the three-paned window on the north side of the Residence. Id. ¶¶ 48, 50. Peck disputes that Mono grabbed the gun. Id. As Mono purportedly grabbed the firearm, Johnson began firing at Mono through the three-paned window. Id. ¶ 49. Johnson said he did not wait for Mono to reach the gun before he fired. Id. ¶ 52. Montoya began firing at Mono as he raised the gun. Id. ¶ 52. At the time Johnson and Montoya fired, neither was aware the other had also fired. Id. ¶ 69. The shots were fired approximately ten to twenty minutes after the deputies arrived on the scene. Id. ¶ 55. Only a matter of seconds elapsed between Johnson's commands not to go near the firearm and Johnson and Montoya firing their weapons. Id. ¶ 57. After the incident, the unloaded firearm was found secured in the holster under the coffee table, away from Mono's body. Id. ¶ 48.
Montoya testified he began firing because Mono raised his gun while facing the three deputies outside the three-paned window. Id. ¶ 52. However, all the bullets from Montoya's gun entered Mono from behind, indicating that Mono was standing to the east, facing the couch, not to the north. Id. There are numerous other discrepancies between the Deputy Defendants’ description of Mono's actions, position, and location, and other evidence including where the revolver was found, Peck's ballistic expert David E. Balash's analysis, the autopsy doctor's testimony, and the testimony of witness Larry Berman. Id. ¶ 50. At the time of the incident, Peck was suffering from mental fogginess, confusion, and difficulty concentrating. Id. ¶ 61. This was a result of the flu, lack of sleep, and a prescription medication she took to treat an autoimmune disorder. Id. ¶ 348; dkt. 98-4 (Peck Decl.) ¶ 3. She believes this, coupled with her terror from the incident, have negatively affected her ability to recall what happened. Peck Decl. ¶ 3. She does, however, remember the following. Peck was in her bedroom when the officers first approached. SUF ¶ 348. She began walking to the living room because she heard loud sounds. Id. ¶ 349. She observed the front area of the house was surrounded by men with guns standing against the windows. Id. The men were dressed in uniforms she did not recognize. Id. She initially thought she was dreaming. Id. ¶ 351. After spending a few seconds gathering her thoughts, she entered the living area. Id. ¶¶ 352-353. She saw Mono standing at the north window and moved toward him. Id. ¶ 354. Mono was clutching his cane in both hands over his head. Id. ¶ 355. She became aware the men outside were making statements, but she could not understand what they were saying. Id. ¶ 356. There is a gap in Peck's memory. The next thing she recalls is standing next to the kitchen counter, with her husband a few feet to her right in front of the dining table. Id. ¶ 358. She saw her husband move toward the living room and then remembers hearing gunfire and exploding glass. Id. ¶ 361. She dropped to the floor and crawled to Mono after the shooting stopped. Id. ¶ 362. When she reached her husband, she did not see a gun in his hands or anywhere near his body. Id. ¶ 363. Montoya handcuffed and searched Peck and then escorted her to a parked patrol car where she remained for just over an hour. Id. ¶ 65. Peck was subsequently interviewed, advised she was not under arrest, and released to a nearby hotel. Id. ¶¶ 66-67.
Because Peck and Mono had just moved to Orange County from Los Angeles County, they were not familiar with the County's law enforcement uniforms. Peck Decl. ¶ 40.
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 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). "This burden is not a light one." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). But the moving party need not disprove the opposing party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Rather, "the burden on the moving party may be discharged by ‘showing’ – that is, pointing out to the district court – that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548. If the moving party satisfies this burden, the party opposing the motion must set forth specific facts, through affidavits or admissible discovery materials, showing that there exists a genuine issue for trial. Id. at 323-24, 106 S.Ct. 2548 ; Fed. R. Civ. P. 56(c)(1). A non-moving party who bears the burden of proof at trial as to an element essential to its case must make a showing sufficient to establish a genuine dispute of fact with respect to the existence of that element of the case or be subject to summary judgment. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548.
The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is a genuine issue if it reasonably can be resolved in favor of either party. Id. at 248, 106 S.Ct. 2505. "[A] district court is not entitled to weigh the evidence and resolve disputed underlying factual issues." Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1161 (9th Cir. 1992). Summary judgment is improper "where divergent ultimate inferences may reasonably be drawn from the undisputed facts." Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (citing Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) ). Instead, "the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (punctuation omitted).
III. DISCUSSION
Defendants contend that (1) Peck's constitutional claims are barred by qualified immunity and (2) Peck's remaining claims fail.
A. Qualified Immunity
Qualified immunity is an affirmative defense that "shield[s] an officer from personal liability when an officer reasonably believes that his or her conduct complies with the law." Pearson v. Callahan, 555 U.S. 223, 244, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The doctrine "protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Id. at 231, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ).
To determine whether officers are entitled to qualified immunity, a court conducts a two-step inquiry. The plaintiffs must show their allegations, if true, establish a constitutional violation. Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th Cir. 2003). The court must also decide "whether the right at issue was ‘clearly established’ at the time of defendant's alleged misconduct." Pearson, 555 U.S. at 232, 129 S.Ct. 808. "Clearly established" means the "contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. 2151.
Because qualified immunity is an affirmative defense, the initial burden of proof lies with the officials asserting the defense. Harlow, 457 U.S. at 812, 102 S.Ct. 2727. However, a plaintiff bears the initial burden of proving that the rights allegedly violated by defendants were clearly established at the time of the alleged misconduct. Davis v. Scherer, 468 U.S. 183, 197, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984) ; Houghton v. South, 965 F.2d 1532, 1534 (9th Cir. 1992). Law enforcement officers are charged with knowledge of controlling Supreme Court and Ninth Circuit precedent. Hallstrom v. City of Garden City, 991 F.2d 1473, 1482-83 & n.23 (9th Cir. 1993). "[T]he proper fact-specific inquiry ... is not whether the law is settled, but whether, in light of clearly established law and the information available to him, a reasonable person in [the defendant's] position could have objectively believed his actions to be proper." Floyd v. Laws, 929 F.2d 1390, 1394 (9th Cir. 1991) (citing Anderson, 483 U.S. at 641, 107 S.Ct. 3034 ).
1. Excessive Force Claim
a. Violation of a Constitutional Right
Peck alleges Montoya and Johnson used excessive force in violation of the Fourth Amendment by shooting and killing Mono. The Fourth Amendment requires law enforcement officers use only an amount of force that is objectively reasonable in light of the circumstances. Tennessee v. Garner, 471 U.S. 1, 7-8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Reasonableness "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight" and includes "allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation." Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
Garner and Graham offer guidance on the objective reasonableness of the use of force. " Graham sets out a non-exhaustive list of factors for evaluating reasonability: (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect actively resisted arrest or attempted to escape." Maxwell v. County of San Diego, 708 F.3d 1075, 1086 (9th Cir. 2013). The " ‘most important’ factor under Graham is whether the suspect posed an ‘immediate threat to the safety of the officers or others.’ " Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (quoting Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc)). In Garner, the Supreme Court considered (1) the immediacy of the threat, (2) whether force was necessary to safeguard officers or the public, and (3) whether officers administered a warning, assuming it was practicable. Scott v. Harris, 550 U.S. 372, 381-82 & n.9, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). While these factors are relevant, "there are no per se rules in the Fourth Amendment excessive force context." Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc).
"[T]he reasonableness of force used is ordinarily a question of fact for the jury." Liston v. County of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997). "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) (quoting Glenn v. Washington County, 673 F.3d 864, 871 (9th Cir. 2011) ). The Ninth Circuit has cautioned that excessive force cases pose a "particularly difficult problem" where cases involve the suspect's death, because "the witness most likely to contradict [an officer's] story" is not available to testify. Gonzalez v. City of Anaheim, 747 F.3d 789, 794-95 (9th Cir. 2014).
Defendants argue that Montoya and Johnson's use of deadly force was reasonable because Mono "attempted to arm himself." Mot. at 10-11. When an individual points a gun "in the officers’ direction," the Constitution may allow for the use of deadly force. Long v. City & County of Honolulu, 511 F.3d 901, 906 (9th Cir. 2007). But on Defendants’ motion for summary judgment, the Court must view the evidence in the light most favorable to Peck. Peck adequately shows a dispute of material fact over whether Mono posed a threat to Defendants. Johnson admits that he fired before Mono had the gun in his hand or was pointing it at anyone, SUF ¶ 49, and Balash's analysis shows Mono's wound pattern "attributed to bullets fired by Deputy Johnson do not support Deputy Johnson's version of the shooting." Dkt. 99-1, Ex. 3 at 9. Montoya states he fired when Mono was pointing his gun at the other Deputy Defendants, but Balash's ballistics analysis also contradicts that theory. SUF ¶ 521. The gun was found away from where Montoya said it was. Id. ¶ 575. Because no fingerprint analysis was done, it is unclear that Mono even grabbed the gun, as Defendants argue. Finally, Larry Berman testified that seconds before the officers fired, Mono moved away from the purported location of the gun. Id. ¶ 532.
Summary judgment is inappropriate where, as here, there is a dispute of material fact as to whether the individual actually brandished a weapon at the officers. This is because "[l]aw enforcement officials may not kill suspects who do not pose an immediate threat to their safety or to the safety of others simply because they are armed." Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997).
There are a number of other factors that cut against granting summary judgment here. First, while Mono was verbally abusive to the officers, his threats of violence "focused on harming himself rather than other people." Glenn, 673 F.3d at 873. Second, Mono committed no crime or offense. See Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th Cir. 2001) (the "character of the offense is often an important consideration in determining whether the use of force was justified"). Third, Mono was "obviously ‘emotionally disturbed, a factor to which the officers should have assigned greater weight.’ " Glenn, 673 F.3d at 875. Fourth, Deputy Defendants gave no warning before employing force even though "such warnings should be given, when feasible, if the use of force may result in serious injury." Deorle, 272 F.3d at 1284. Finally, officers "had an opportunity to observe [Mono] for a considerable period of time prior to firing at him" and "possessed a clear line of escape," diminishing the governmental interest in using deadly force. Id. at 1283.
b. Clearly Established Right
"Case law has clearly established than an officer may not use deadly force to apprehend a suspect where the suspect poses no immediate threat to the officer or others." Wilkinson v. Torres, 610 F.3d 546, 550 (9th Cir. 2010) (citing Garner, 471 U.S. at 11, 105 S.Ct. 1694 ); see also Harris, 126 F.3d at 1204 ("Law enforcement officials may not kill suspects who do not pose an immediate threat to their safety or to the safety of others simply because they are armed."); Deorle, 272 F.3d at 1285 ("Every police officer should know that it is objectively unreasonable to shoot ... an unarmed man who: has committed no serious offense, is mentally or emotionally disturbed, has been given no warning of the imminent use of such a significant degree of force, poses no risk of flight, and presents no objectively reasonable threat to the safety of the officers or other individuals."). Because there is a material dispute of fact as to whether Mono posed an immediate threat to the Deputy Defendants or others, the Court DENIES summary judgment on Peck's excessive force claim against Montoya and Johnson.
c. Non-shooting Deputy Defendants
Defendants protest that they did not properly brief the issue of whether Lind, Frey, and Carrington (the Non-shooting Deputy Defendants) used excessive force because they believed Peck would be dismissing the claim against those Defendants. Dkt. 102 (Reply) at 8 n.10. Given the factual disputes over the communications between counsel, the Court declines Defendants’ request to dismiss the claim. See id.; dkt. 102-1 (Second Cox Decl.), Ex. BB. It appears that both parties have agreed to Defendants filing a supplemental motion on the issue. Second Cox Decl. ¶ 8. Defendants are granted leave to file a motion of no more than four pages due no later than November 30, 2020 addressing whether summary judgment should be granted on the excessive force theory as to the Non-shooting Defendants. Peck is granted leave to file an opposition of no more than four pages due no later than December 14, 2020.
2. Failure to Intervene Claim
a. Violation of Right
Defendants argue the Non-shooting Defendants did not fail to intervene because they did not know the shooting was about to occur nor did they have an opportunity to intervene. Mot. at 11-12. Peck argues that "the opportunity to intervene extends beyond the final minutes" and the Non-shooting Defendants "failed to follow procedure at every step of the interaction." Opp'n at 16.
Police officers have a duty to intervene once an individual's constitutional rights are being violated. See O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988) ("A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers."); Fisher v. County of Orange, No. SACV 16-01866-CJC (KESx), 2018 WL 1036847, at *11 (C.D. Cal. Feb. 14, 2018) (no opportunity to intervene in arrest when arrest itself took place in less than thirty seconds); Medora v. City & County of San Francisco, No. C 06-0558 EDL, 2007 WL 2522319, at *4 (N.D. Cal. Aug. 31, 2007) ("An officer's duty to intervene does not arise until a person's constitutional rights are being violated in the officer's presence."). Because the shooting appeared to conclude quickly, it is unclear how any of the Non-shooting Deputy Defendants could have intervened, and Peck does not argue that they could have. See Ting v. United States, 927 F.2d 1504, 1511-12 (9th Cir. 1991) (denying failure to intervene claim in officer-involved shooting where there was no evidence that the four agents knew, or had reason to know, the fifth agent would shoot the plaintiff, or that the four agents were physically capable of preventing the shooting).
Instead, Peck argues that the Non-shooting Defendants violated internal policy by failing to establish a primary unit, not speaking with Heflin before approaching the Residence, failing to discuss any tactical plan or establishing a perimeter, and never taking cover. Opp'n 16. While the Non-shooting Defendants may have acted "patently unreasonabl[y] at every stage," it is unclear how their actions "constituted independent constitutional violations." See id. Peck's only support for her argument is Robinson v. Solano County in which the Ninth Circuit "recognize[d] as a general principle that pointing a gun to the head of an apparently unarmed suspect during an investigation can be a violation of the Fourth Amendment, especially where the individual poses no particular danger." 278 F.3d 1007, 1015 (9th Cir. 2002). Here, however, the facts do not show that prior to the shooting the Shooting Defendants were pointing their guns at Mono.
Peck's other citations are inapposite. For instance, while courts "may certainly consider a police department's own guidelines when evaluating whether a particular use of force is constitutionally unreasonable," Opp'n at 16 (quoting Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th Cir. 2003) ), that does not mean that every violation of internal police department policy is also a constitutional violation.
Because Peck has failed to articulate how the Non-shooting Defendants’ pre-shooting actions constitute excessive force or any other constitutional violation, or that they had the opportunity to intervene in the shooting, the Court GRANTS summary judgment as to Peck's second claim.
3. Deprivation of Familial Relationship Claim
a. Violation of Right
Peck has a cognizable liberty interest in her familial relationship with decedent under the due process clause of the Fourteenth Amendment. Ching v. Mayorkas, 725 F.3d 1149, 1157 (9th Cir. 2013) ; Duenez v. City of Manteca, No. CIV. S-11-1820 LKK/KJN, 2013 WL 6816375, at *13 (E.D. Cal. Dec. 23, 2013) (recognizing decedent's widow's cognizable liberty interest in familial relationship with decedent). If Defendants’ conduct, when viewed in the light most favorable to Peck, deprived Peck of her familial interest in a manner that "shocks the conscience," then their conduct "is cognizable as a violation of due process." Hayes v. County of San Diego, 736 F.3d 1223, 1230 (9th Cir. 2013) (quoting Wilkinson, 610 F.3d at 554 ).
In determining whether Defendants’ conduct "shocks the conscience," the Court must first decide which standard of culpability applies. The two standards are whether Defendants acted with (1) "deliberate indifference" to the harm they caused decedent, or (2) a "purpose to harm" decedent. Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). The appropriate standard of culpability depends on the type of situation a defendant finds himself in at the time of the challenged action. If Defendants found themselves in a situation where "actual deliberation is practical," then their deliberate indifference to the harm they caused may be sufficient to shock the conscience. Hayes, 736 F.3d at 1230. But, if Defendants made a "snap judgment because of an escalating situation," then their conduct will not shock the conscience unless they "act[ed] with a purpose to harm unrelated to legitimate law enforcement objectives. Id. Peck does not argue that Defendants had any illegitimate objective to harm Mono. The question for the Court therefore is whether the deliberate indifference standard applies and, if so, whether it was violated.
"By its nature, the determination of which situation [Defendants] actually found [themselves] in is a question of fact for the jury, so long as there is sufficient evidence to support both standards." Duenez, 2013 WL 6816375, at *14. The Court finds that there is a genuine issue of material fact as to whether the deliberate indifference standard applies and, if so, whether Defendants acted with deliberate indifference. Defendants – without explanation – apply the purpose to harm standard. See Mot. at 13 n.9. The Court does not agree that it is clear the purpose to harm standard applies here. The encounter lasted around ten to twenty minutes, SUF ¶ 55, and seemed to be a "stalemate" for a large part of it, id. ¶ 300.
During this time, Defendants could have deliberated on which course of conduct to take, but seemingly did not choose to withdraw, call in specialized units, try to gain a better understanding of the prior events, attempt to de-escalate the situation, or even take cover. Further, while only near the end of the encounter did the officers notice the gun, they were aware before they arrived that Mono owned at least one gun and had a gun in his hand minutes before Deputy Defendants arrived on the scene. SUF ¶ 10. It is therefore hard to characterize their spotting of the gun's location as a "rapidly evolving" circumstance in response to which they had to make a "snap judgment." Additionally, there is a material dispute of fact whether Defendants’ actions in failing to establish a perimeter, take cover, call Mono or Peck's phones, or talk more to Heflin and Metzler, constituted deliberate indifference. The Court DENIES Defendants’ motion for summary judgment as to the fourth claim for relief.
4. Unreasonable Seizure of Person Claim
Peck does not present any argument as to her unreasonable seizure of person claim in her Opposition. Accordingly, the Court GRANTS summary judgment as to her fifteenth claim for relief. See Jenkins v. County of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005) ("Jenkins abandoned her other two claims by not raising them in opposition to the County's motion for summary judgment.").
B. Monell Claim
Peck asserts a claim for municipal liability against the County of Orange and Sheriff Sandra Hutchens, as well as including a theory of municipal liability against the County on her excessive force, failure to intervene, and deprivation of rights to a familial relationship claims. FAC ¶¶ 66, 74, 89, 91-94. There is no vicarious liability under section 1983, but municipalities can be held liable in certain situations. Monell v. Dep't of Soc. Serv. of City of N.Y., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A local government may be held liable (1) "when implementation of its official policies or established customs inflicts the constitutional injury," (2) when "omissions," including the failure to train employees, "amount to the local government's own official policy," and (3) "when the individual who committed the constitutional tort was an official with final policy-making authority or such an official ratified a subordinate's unconstitutional decision or action and the basis for it." Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249 (9th Cir. 2010) (internal quotation marks omitted), overruled on other grounds by Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). Peck appears to argue Monell liability exists under all three of these grounds.
Peck has dismissed with prejudice her claims against Hutchens for excessive force, failure to intervene, and deprivation of rights to a familial relationship. Dkt. 101 ¶ 2.
1. Policy, Custom, Practice
A municipality may be held liable if a plaintiff can "prove that (1) he was deprived of a constitutional right; (2) the municipality had a policy; (3) the policy amounted to deliberate indifference to [plaintiff's] constitutional right; and (4) the policy was the moving force behind the constitutional violation." Lockett v. County of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020). A policy within the meaning of Monell exists where official policy makers "consciously" choose a particular course of action or procedure "from among various alternatives." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) ; Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) ("municipal liability under § 1983 attaches where – and only where – a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question"). "Liability for improper custom may not be predicted on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).
Peck does not identify any specific policy, practice, or custom that was the "moving force" behind a constitutional violation. The Court GRANTS summary judgment as to this prong of her Monell claim.
2. Failure to Train
To state a failure to train claim, a plaintiff must show "(1) he was deprived of a constitutional right, (2) the City had a training policy that ‘amounts to deliberate indifference to the [constitutional] rights of the persons’ with whom [its police officers] are likely to come into contact, and (3) his constitutional injury would have been avoided had the City properly trained those officers." Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007) (alterations in original) (internal quotation marks omitted). "[E]vidence of the failure to train a single officer is insufficient to establish a municipality's deliberate policy." Id. "[A]bsent evidence of a ‘program-wide inadequacy in training,’ any shortfall in a single officer's training ‘can only be classified as negligence on the part of the municipal defendant – a much lower standard of fault than deliberate indifference.’ " Id. at 484-85 (quoting Alexander v. City and County of San Francisco, 29 F.3d 1355, 1367 (9th Cir. 1994) ).
Peck submits evidence of failure to train with regard to all officers involved in the incident. As an initial matter, Defendants object to the use of the Defendant Deputies’ training records because it violates the parties’ protective order. Reply at 10. Even if the Court considered the records, however, they would be insufficient. Peck tries to make her failure to train argument based solely on the training that Deputy Defendants received – rather than based on a program-wide inadequacy in training. Without further evidence on the adequacy of the training given countywide, Peck cannot meet the high standard required by Monell. The Court therefore GRANTS the motion for summary judgment as to Peck's failure to train claims against the County and Hutchens.
If Plaintiff's counsel violated the terms of a Court order, the matter should be addressed to the judge who issued the order.
3. Ratification
Peck argues that "Defendant County of Orange ratified the Defendant officers’ conduct by exonerating them even though the investigation was fatally flawed and significant irreconcilable differences exist between Defendants’ statements and the physical evidence. Opp'n at 20-21.
A local government may be held liable under section 1983 when "an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it." Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992). "If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final." City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). "There must, however, be evidence of a conscious, affirmative choice" on the part of the authorized policymaker. Gillette, 979 F.2d at 1347. To show Monell liability under a ratification theory, the Supreme Court has held that the final policymaker must make a deliberate choice from among various alternatives to follow a particular course of action. Pembaur, 475 U.S. at 483-84, 106 S.Ct. 1292. The final policymaker must have approved not only the subordinate's decision but also the basis for it. See Praprotnik, 485 U.S. at 127, 108 S.Ct. 915 ("If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final."). "Accordingly, ratification requires, among other things, knowledge of the alleged constitutional violation." Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999). "Ordinarily, ratification is a question for the jury." Id. at 1238-39.
Failure to discipline employees, without more, is insufficient to establish ratification. Clouthier, 591 F.3d at 1253-54. "Ratification ... generally requires more than acquiescence." Sheehan v. City and County of San Francisco (Sheehan I ), 743 F.3d 1211, 1231 (9th Cir. 2014) rev'd in part on other grounds 575 U.S. 600, 135 S.Ct. 1765, 191 L.Ed.2d 856 (2015). Lower courts in the Ninth Circuit "appear to be divided on whether an internal police investigation that concludes a shooting by its officers was lawful and within the municipality's policies is alone sufficient to support a theory of ratification for the purposes of Monell liability." German v. Roberts, No. C15-5237 BHS-DWC, 2017 WL 3407052, at *3 (W.D. Wash. Aug. 9, 2017). Some judges have found such circumstances "create a question of fact regarding ratification that should be resolved by a jury" while others "have concluded that such an investigation and conclusion will not constitute ratification on their own absent evidence of ‘something more,’ such as a ‘sham investigation’ or ‘conduct so outrageous that a reasonable administrator should have known that he or she should do something about it.’ " Id. (quoting Kanae v. Hodson, 294 F. Supp. 2d 1179, 1191-92 (D. Haw. 2003) ).
German relies on the Ninth Circuit's decision in Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir. 1991). Lower courts disagree on whether Larez is a ratification-based Monell case or a policy, practice, or custom case. Compare German, 2017 WL 3407052, at *3 (characterizing Larez as "the Ninth Circuit's leading decision on ratification based on internal police investigations") with Cole v. Doe 1 thru 2 Officers of City of Emeryville Police Dep't, 387 F. Supp. 2d 1084, 1100-01 (N.D. Cal. 2005) (in Larez, "the court did not conclude that the city was liable under a ratification theory" but rather "the problems with the actual investigation were considered evidence that the city engaged in a pattern and practice"). However, in Cole, the court noted that ratification could not be established by "deliberate indifference towards a single after-the-fact investigation" but could be established with "actual knowledge of the alleged prior constitutional violation." Id. The Court's ruling, therefore, would not change.
Peck at the very least establishes a dispute of material fact sufficient to proceed under either standard. Peck has submitted expert testimony that one of the few possible explanations for the investigation – in which the County relied solely on the statements of involved deputies – was "directions from command authorities on what will or will not be examined." SUF ¶ 546. Unlike in German, the investigators here did not simply accept an officer's version of events over a victim's differing version, 2017 WL 3407052, at *3, but actually ignored physical evidence that could have either disproved or proved the officers’ theory of events, including fingerprints and ballistic evidence, SUF ¶ 547. Furthermore, given that in this case an individual was killed in his own home, it is very possible the County's decisionmakers were in fact aware that a constitutional violation likely occurred. The Court therefore finds that summary judgment is not appropriate and DENIES Defendants’ motion as to a ratification theory of Monell liability.
C. ADA and Rehabilitation Claims
Plaintiff's discrimination claims under the ADA and section 504 of the RA are analyzed together because the statutes "provide identical remedies, procedures and rights." Vos v. City of Newport Beach, 892 F.3d 1024, 1036 (9th Cir. 2018) (internal quotation marks omitted). To state a claim under Title II of the ADA:
a plaintiff generally must show (1) she is an individual with a disability; (2) she is otherwise qualified to participate in or receive the benefit of a public entity's services, programs or activities; (3) she was either excluded from participation in or denied the benefits of the public entity's services, programs or activities or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits or discrimination was by reason of her disability.
Sheehan I, 743 F.3d at 1232. Defendants argue summary judgment is appropriate because Peck has not demonstrated any Defendant discriminated against Mono "solely by reason of" his alleged disabilities. Mot. at 20-21; Reply at 11.
"Although the Supreme Court granted certiorari as to whether Title II requires ‘any accommodation of an armed and violent individual,’ it later dismissed that issue as improvidently granted. Sheehan I therefore controls ...." Vos, 892 F.3d at 1036 (citation omitted).
Sheehan I and Vos are both instructive here. In Sheehan I, the Ninth Circuit found judgment as a matter of law on an ADA claim was inappropriate when two officers shot a mentally disabled woman who held a knife. 743 F.3d at 1219-20, 1233. The two officers knew the woman was disabled and armed. Id. at 1219-20. They initially entered the room and retreated, but chose to renter the room, at which point the woman advanced with the knife and the officers fired on her. Id. The Ninth Circuit held the officers could have waited for backup and employed less confrontational tactics, including accommodations that took Sheehan's mental illness into account. Id. at 1233.
In Vos, a third party called 911 after observing Vos run around a 7-Eleven convenience store screaming, and cursing. 892 F.3d at 1028. Officers arrived and quickly realized Vos was potentially mentally unstable or under the influence of narcotics. Id. at 1029. After Vos did not drop the weapon he held – likely scissors – after the police asked twice, officers fired on and killed him. Id. at 1029-30. The Ninth Circuit again held that summary judgment was inappropriate because the officers "had the time and the opportunity to assess the situation and potentially employ ... accommodations ... including de-escalation, communication, or specialized help." Id. at 1037.
This case is similar to Sheehan I and Vos in that the Deputy Defendants had ample opportunity to employ accommodations related to Mono's blindness and mental instability but did not. Before Defendants became aware of the gun and drew Mono's attention to it, they engaged with him for around ten to twenty minutes. SUF ¶ 55. During that time, Mono repeatedly stated he was blind and even brought out a white cane. Id. ¶¶ 25-26. Additionally, he shouted expletives, exposed his buttocks and genitalia to the officers, and repeatedly expressed suicidal ideations. SUF ¶¶ 22, 34, 38, 74. Despite all of this, Defendants at no point undertook any accommodations, such as calling in special forces trained to deal with individuals with mental health issues.
Defendants argue Peck cannot base her ADA and RA claims on a mental disability because the operative complaint limits Mono's alleged disability to retinitis pigmentosa. Reply at 11-12. "[A] court has discretion to refuse to allow a new theory in opposition to summary judgment." Jefferson v. Chase Home Fin., No. C 06-6510 TEH, 2008 WL 1883484, at *5 (N.D. Cal. Apr. 29, 2008) (citing Coleman v. Quaker Oats Co., 232 F.3d 1271, 1291-92 (9th Cir. 2000) ). Typically, courts refuse to allow new theories where the defendant would suffer prejudice. See Coleman, 232 F.3d at 1292-95 (refusing to allow a new theory where it was asserted after the close of discovery, involved different burdens and defenses, and would require defendant to develop "entirely different defenses"). That is not the case here. While the ADA and RA claims specifically mention only retinitis pigmentosa, the Complaint as a whole includes allegations regarding mental instability and that topic was sufficiently covered by the discovery parties have undertaken so far. See FAC ¶ 28 ("[Mono] began experiencing a gradually worsening mental crisis, which culminated shortly before the Defendant Deputies shot and killed him.").
Defendants cite two cases in which the courts found that a mental impairment of less than four months and temporary panic attacks were not of sufficient duration to constitute a disability under the ADA. Reply at 12 (citing Sanders v. Arneson Prods., Inc., 91 F.3d 1351, 1354 (9th Cir. 1996) and Wilkey v. County of Orange, 295 F. Supp. 3d 1086, 1092 (C.D. Cal. 2017) ). Here, however, Mono has suffered from depression or suicidal ideations since at least 2009. SUF ¶ 402.
Defendants also argue that summary judgment should be granted because Mono posed a direct threat to the health or safety of others. Mot. at 22 n.11. As they admit, this argument tracks the reasonableness considerations in a Fourth Amendment use of force analysis. Id. Because the Court has already found that summary judgment was not appropriate as to Defendants’ use of force, it declines to find that summary judgment is appropriate here. The Court therefore DENIES Defendants’ motion for summary judgment on Peck's sixth and seventh claims for relief.
D. State Law Claims
Defendants argue that Peck's Bane Act, assault, battery, and negligent infliction of emotional distress (NIED) claims are barred as a matter of law because Peck did not provide notice of intent to pursue these theories as a successor in interest. Mot. at 23.
The parties have stipulated to dismiss the claims for negligence, intentional infliction of emotional distress, and false arrest. Dkt. 101 ¶ 5. The Court considers Defendants’ arguments only as to the remaining state law claims.
The California Tort Claims Act requires anyone suing a public entity to first file a claim with the entity that includes a "general description" of the alleged injury "so far as it may be known at the time of presentation of the claim." See Cal. Gov't Code §§ 910, 945.4. The statute is designed "to give the government entity notice sufficient for it to investigate and evaluate the claim, not to eliminate meritorious actions." Stockett v. Ass'n of Cal. Water Agencies Joint Powers Ins. Auth., 34 Cal. 4th 441, 446, 20 Cal.Rptr.3d 176, 99 P.3d 500 (2004). The bar applies only to a "complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim." Id. at 447, 20 Cal.Rptr.3d 176, 99 P.3d 500 (quoting Blair v. Superior Court, 218 Cal. App. 3d 221, 226, 267 Cal.Rptr. 13 (1990) ). It is "not necessary that the claim comply with formal pleading standards" so long as it includes (1) "the date, place and other circumstances of the occurrence or transaction which gave rise to the claim," (2) a "general description" of the "injury, damage, or loss incurred," and (3) the "name or names of the public employee or employees causing the injury," if known. Blair, 218 Cal. App. 3d at 224, 267 Cal.Rptr. 13.
When the purported issue with the claim relates to the identity of the claimant, California courts look to see if the facts alleged include a claim on behalf of the unnamed party. For example, in Lacy v. City of Monrovia, 44 Cal. App. 3d 152, 154-55, 118 Cal.Rptr. 277 (1974), the court concluded a wife's claim in a lawsuit was not barred even though she did not submit a claim on her own behalf because her husband's claim incorporated her injuries. But, in Nelson v. County of Los Angeles, 113 Cal. App. 4th 783, 796-97, 6 Cal.Rptr.3d 650 (2003), the court held the statute barred a lawsuit seeking redress for a son's injuries before he died where the claim discussed only wrongful death injuries suffered by the son's estate when he died. In other words, "[w]hen people suffer separate and distinct injuries from the same act or omission, they must each submit a claim." Castaneda v. Dep't of Corr. & Rehab., 212 Cal. App. 4th 1051, 1062, 151 Cal.Rptr.3d 648 (2013). "This rule applies where different claimants are alleging survivor theories and wrongful death theories of liability arising from the same transaction." Id.
Courts look carefully at the submitted claim to see if the injuries stated encompass those raised by an unnamed plaintiff. See Bradley v. County of Sonoma, No. 19-cv-07464-KAW, 2020 WL 1332082, at *3 (N.D. Cal. Mar. 23, 2020) (noting that the attachment to the claim identified the second plaintiff and her damages). Here, in the "Damages Claimed" section of her claim, Peck lists only damages related to her personal theories of recovery, not any on behalf of Mono's estate or as a successor in interest to Mono. Dkt. 87-1 (First Cox Decl.), Ex. X (listing "[l]oss of love, society, companionship, support for the remainder of my life without my husband). The Court therefore believes summary judgment is appropriate to the extent Peck seeks to recover on behalf of Mono under any state law theories.
Defendants also argue Peck's NIED claim is barred because the claim submitted does not contain facts giving rise to an NIED claim. Mot. at 25. In order to state a claim for NIED, "(1) the plaintiff must be closely related to the injury victim; (2) the plaintiff must have been present at the scene of the injury-producing event at the time it occurred and then aware that it was causing injury to the victim; and (3) as a result, the plaintiff must have suffered serious emotional distress." Keys v. Alta Bates Summit Med. Ctr., 235 Cal. App. 4th 484, 488, 185 Cal.Rptr.3d 313 (2015) (citing Thing v. La Chusa, 48 Cal. 3d 644, 667-68, 257 Cal.Rptr. 865, 771 P.2d 814 (1989) ). The Court agrees with Defendants that Peck's claim submission does not give rise for a claim for NIED because nowhere does it indicate that Peck was present. It states only that Orange County sheriffs shot and killed Mono, but not that Peck was present, observed what happened, and has suffered injury as a result. First Cox Decl., Ex. X.
The Court GRANTS summary judgment as to Peck's ninth, tenth, eleventh, and fourteenth claims, as well as her eighth claim to the extent Peck brings it as a successor in interest to Mono.
IV. CONCLUSION
Defendants’ motion for summary judgment is GRANTED in part and DENIED in part. Judgment is GRANTED on Peck's second, ninth, tenth, eleventh, fourteenth, and fifteenth claims, and her eighth claim to the extent she brings it as a successor in interest to Mono. The Court also GRANTS summary judgment as to Peck's policy, practice, or custom and failure to train theories of Monell liability.
IT IS SO ORDERED.