638 F.3d 688 (9th Cir. 2011), 09-55644, Hayes v. County of San Diego

Docket Nº:09-55644.
Citation:638 F.3d 688
Opinion Judge:GOODWIN, Circuit Judge:
Party Name:Chelsey HAYES, a minor by and through her guardian ad litem, Plaintiff-Appellant, v. COUNTY OF SAN DIEGO, DBA San Diego County Sheriff's Department; Sue Geer, Mike King, Defendants-Appellees.
Attorney:Alvin M. Gomez, The Gomez Law Group, San Diego, CA, for the plaintiff-appellant. Morris G. Hill, Senior Deputy, John J. Sansone, County Counsel, County of San Diego, San Diego, CA, for the defendants-appellees.
Judge Panel:Before: ALFRED T. GOODWIN and JOHNNIE B. RAWLINSON, Circuit Judges, and ALGENON L. MARBLEY, District Judge.[*] RAWLINSON, Circuit Judge, concurring in part and dissenting in part:
Case Date:March 22, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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638 F.3d 688 (9th Cir. 2011)

Chelsey HAYES, a minor by and through her guardian ad litem, Plaintiff-Appellant,

v.

COUNTY OF SAN DIEGO, DBA San Diego County Sheriff's Department; Sue Geer, Mike King, Defendants-Appellees.

No. 09-55644.

United States Court of Appeals, Ninth Circuit.

March 22, 2011

Argued and Submitted June 9, 2010.

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[Copyrighted Material Omitted]

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Alvin M. Gomez, The Gomez Law Group, San Diego, CA, for the plaintiff-appellant.

Morris G. Hill, Senior Deputy, John J. Sansone, County Counsel, County of San Diego, San Diego, CA, for the defendants-appellees.

Appeal from the United States District Court for the Southern District of California, Dana M. Sabraw, District Judge, Presiding. D.C. No. 3:07-cv-01738-DMS-JMA.

Before: ALFRED T. GOODWIN and JOHNNIE B. RAWLINSON, Circuit Judges, and ALGENON L. MARBLEY, District Judge.[*]

OPINION

GOODWIN, Circuit Judge:

On the night of September 17, 2006, Shane Hayes was shot and killed inside his home by San Diego County Sheriff's Deputies Mike King and Sue Geer. Hayes's minor daughter filed suit against the deputies and the County of San Diego, alleging state and federal claims stemming from the incident. The district court granted Defendants summary judgment on all claims, and Plaintiff timely appealed. For the reasons that follow, we affirm in part, reverse in part and remand for further proceedings.

I. FACTUAL BACKGROUND

Deputy King arrived at Hayes's residence at 9:12 p.m. in response to a domestic disturbance call from a neighbor who had heard screaming coming from the house. Hayes's girlfriend Geri Neill, who owned the house, spoke with Deputy King at the front door. During a three-minute conversation, Neill advised Deputy King that she and Hayes had been arguing about his attempt that night to commit suicide by inhaling exhaust fumes from his car. She told Deputy King that there had not been a physical altercation between them, rather she was concerned about Hayes harming himself, indicating that he had attempted to do so on prior occasions. Deputy King did not ask Neill about the manner of Hayes's prior suicide attempts and was unaware that he had previously stabbed himself with a knife. Although Neill advised Deputy King that there were no guns in the house, she made no indication that Hayes might be armed with a knife.

At 9:16 p.m., Deputy Geer arrived at the scene and was advised by Deputy King that there was a subject inside the house who was potentially suicidal. Based on the

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concern that Hayes might harm himself, the deputies decided to enter the house to check on Hayes's welfare, a process Deputy King described as seeing whether Hayes could " physically or mentally care" for himself. While Neill later stated that Hayes had been drinking heavily that night, Deputy King had not asked Neill whether Hayes was under the influence of drugs or alcohol. Although the deputies had been sent a notification that Hayes was intoxicated, neither deputy was aware of this information before entering the house. The deputies had also not checked whether there had been previous calls to the residence and were unaware that Hayes had been taken into protective custody four months earlier in connection with his suicide attempt involving a knife.

Upon entry, both deputies had their guns holstered. Deputy King was also carrying a Taser. While moving in the dimly lit house, Deputy King advanced ahead of Deputy Geer and was using his sixteen-inch flashlight, which he had been trained to use as an impact weapon.

Once in the living room, Deputy King saw Hayes in an adjacent kitchen area, approximately eight feet away from him. Because Hayes's right hand was behind his back when Deputy King first saw him, Deputy King testified that he ordered Hayes to " show me his hands." While taking one to two steps towards Deputy King, Hayes raised both his hands to approximately shoulder level, revealing a large knife pointed tip down in his right hand. Believing that Hayes represented a threat to his safety, Deputy King immediately drew his gun and fired two shots at Hayes, striking him while he stood roughly six to eight feet away from him. Deputy Geer simultaneously pulled her gun as well, firing two additional rounds at Hayes.

Deputy King testified that only four seconds elapsed between the time he ordered Hayes to show his hands and the time the first shot was fired. When asked why he believed Hayes was going to continue at him with the knife, Deputy King testified: " Because he wasn't stopping." Neither deputy had ordered Hayes to stop. While stating that such a command would have only taken " a split second," Deputy King testified that " I didn't believe I had any time."

Neill witnessed the shooting from behind Deputy Geer and testified that Hayes was walking towards the deputies with the knife raised at the time the shots were fired. She stated, however, that Hayes was not " charging" at the officers and had a " clueless" expression on his face at the time, which she described as " like nothing's working upstairs." Neill testified that just before the shooting, Hayes had said to the officers: " You want to take me to jail or you want to take me to prison, go ahead."

II. DISCUSSION

Hayes's minor daughter, Chelsey Hayes, filed suit against the deputies and the County of San Diego, alleging claims under 42 U.S.C. § 1983 for alleged violations of her deceased father's Fourth Amendment rights and her own Fourteenth Amendment rights. The complaint also included state law claims for negligent wrongful death and negligent hiring, training and supervision by the County. While finding Chelsey Hayes had standing to assert survival claims, the district court nonetheless granted defendants summary judgment on all her causes of action.

Chelsey Hayes appeals the district court's grant of summary judgment, except for her claim of negligent hiring,

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training and supervision by the County.1 In responding, Appellees contest the district court's finding that Chelsey Hayes has standing to assert survival claims based on violations of her father's constitutional rights.

A. Standing to Assert Survival Claims

" In § 1983 actions, ... the survivors of an individual killed as a result of an officer's excessive use of force may assert a Fourth Amendment claim on that individual's behalf if the relevant state's law authorizes a survival action. The party seeking to bring a survival action bears the burden of demonstrating that a particular state's law authorizes a survival action and that the plaintiff meets that state's requirements for bringing a survival action." Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir.1998) (internal citation omitted).

In finding that Chelsey Hayes met California's statutory requirements to bring a survival action, the district court relied upon California Code of Civil Procedure § 377.60. The district court erred in doing so because § 377.60 relates to wrongful death actions that are based on personal injuries resulting from the death of another, not survival actions that are based on injuries incurred by the decedent. See CAL. CODE CIV. PROC. § 377.60 (" A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons...." ); Schwarder v. United States, 974 F.2d 1118, 1123 n. 3 (9th Cir.1992) (" [T]he cause of action granted by Section 377 to the heirs and personal representatives of a decedent is not derivative in character or a continuation or revival of a cause of action existing in the decedent before his death, but is an original and distinct cause of action granted to the heirs and personal representatives of the decedent to recover damages sustained by them by reason of the wrongful death of the decedent." ) (quoting Van Sickel v. United States, 285 F.2d 87, 90 (9th Cir.1960); see also Davis v. Bender Shipbuilding & Repair Co., 27 F.3d 426, 429 (9th Cir.1994)) (" In a survival action, a decedent's estate may recover damages on behalf of the decedent for injuries that the decedent has sustained. In a wrongful death action, by comparison, the decedent's dependents may only pursue claims for personal injuries they have suffered as a result of a wrongful death." ).

California's statutory requirements for standing to bring a survival action are stated under California Code of Civil Procedure § 377.30: " A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent's successor in interest ..., and an action may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest." See also Tatum v. City & County of San Francisco, 441 F.3d 1090, 1094 (9th Cir.2006) (" Where there is no personal representative for the estate, the decedent's ‘ successor in interest’ may prosecute the survival action if the person purporting to act as successor in interest satisfies the requirements of California law ...." ) (citing CAL. CODE CIV. PROC. §§ 377.30, 377.32). While claiming she is the decedent's " sole surviving heir," Appellant fails

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to allege that she is her father's personal representative or successor in interest. Indeed, Appellant argues only that standing is appropriate under § 377.60, not § 377.30. There is no indication Appellant has filed the affidavit necessary under California law to commence a survival action as a decedent's successor in interest, see CAL. CODE CIV. PROC. § 377.32, or whether survival claims may now be time barred if Appellant has failed to do so.

Because it is unclear on the present record whether Appellant has standing to assert...

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