Garlick v. Cnty. of Kern

• Decision Date: 08 March 2016
• Docket Number: CASE NO. 1:13-CV-01051-LJO-JLT
• Citation: 167 F.Supp.3d 1117
• Parties: Tara Garlick et al., Plaintiffs, v. County of Kern et al., Defendants.
• Court: U.S. District Court — Eastern District of California

167 F.Supp.3d 1117

Tara Garlick et al., Plaintiffs,

v.County of Kern et al., Defendants.

CASE NO. 1:13-CV-01051-LJO-JLT

United States District Court, E.D. California.

Signed March 8, 2016

Chantal Amber Trujillo, Daniel Rodriguez, David K. Cohn, Neil K. Gehlawat, Chain Cohn Stiles, John Kawai, Rodriguez and Associates, Bakersfield, CA, Dale K. Galipo, Law Offices of Dale K. Galipo, Woodland Hills, CA, Thomas Carter Seabaugh, The Law Office of Thomas C. Seabaugh, Pasadena, CA, Adante Pointer, John L. Burris, Law Offices of John L. Burris, Oakland, CA, for Plaintiffs.

Marshall Scott Fontes, Bakersfield, CA, Steven Joseph Rothans, Carpenter, Rothans & Dumont, Brent William Reden, Office of the California Attorney Genenal, Daniel Gilbert Eskue, Attorney General's Office of the State of California, Edward Powell Wolfe, California Department of Justice, Paul Curtis Epstein, Office of the California Attorney General, Los Angeles, CA, James D. Weakley, Brande Lynn Gustafson, Weakley & Arendt, LLP, Roy C. Santos, Lozano Smith LLP, Fresno, CA, for Defendants.

MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT.

Lawrence J. O'Neill, UNITED STATES DISTRICT JUDGE

This case arises from the in-custody death of David S. Silva (“Silva” or “the Decedent”). Plaintiffs bring the instant civil rights action against the arresting officers, alleging excessive force under 42 U.S.C. § 1983 and state law causes of action for civil rights violations, battery, negligence, and wrongful death. Before the Court is the California Highway Patrol (“CHP”) Defendants¹ Michael Phillips and Michael Bright's Motion for Summary Judgment or, Alternatively, Partial Summary Judgment (Doc. 122); the Kern County Sherriff's Office (“KCSO”) Defendants Sergeant Douglas Sword, Deputy Jeffrey Kelly, and Deputy Luis Almanza's Motion for Summary Judgment or, in the Alternative, Summary Adjudication (Doc. 124); and the Defendants County of Kern, KCSO, and Deputies David Stephens, Ryan Greer, Tanner Miller, and Ryan Brock's Motion for Summary Judgment or, Alternatively, Summary Adjudication of issues (Doc. 125), each respectively filed December 1, 2015. Plaintiffs Tara Garlick, Merri Silva, Chris Silva, M.L.S., C.J.S., C.R.S., E.Z.S., minors by and through their guardian ad litem , Judy Silva, individually and as the successors in interest of Silva, the Decedent, as well as J.S., individually and as successor in interest to Silva, the Decedent, by and through her guardian ad litem , Adriane Dominguez (collectively, “Plaintiffs”) filed their Oppositions on January 5, 2016 (Docs. 129, 130, 131), to which Defendants filed their Replies on January 12, 2016 (Docs. 139, 141, 142) (Doc. 81). The Court deems the matter appropriate for resolution without oral argument. See E.D. Cal. Civ. L.R. 230(g). Having carefully considered the record in this case, the parties' briefing, and the relevant law, the Court grants in part and denies in part Defendants' motions.

BACKGROUND

I. FACTUAL ALLEGATIONS²

Objections

The parties interpose various evidentiary objections. See Docs. 131-2, 142-4. Defendants Kelly, Sword, and Almanza raise objections to Plaintiffs' experts' declarations (DeFoe Decl., Doc. 131-3; O'Halloran Decl., Doc. 131-4); Plaintiffs' counsel's declaration (Gehlawat Decl., Doc. 131-5), an exhibit purporting to be a birthday card (Doc. 131-5, Ex. 27), and an exhibit (Doc. 131-5, Ex. 28) purporting to be a picture of Decedent, Plaintiff Garlick, and their children.

Defendants object to Plaintiffs' response to an interrogatory (see Doc. 131-5, Ex. 26) on the basis of lack of foundation and authentication. Defendants argue that the interrogatory response omits question number 15 “and does not have verification from Ms. Garlick to verify the response.” Doc. 142-4 at 2. This objection is OVERRULED because the Court “is confident plaintiff would be able to authenticate them at trial, which is all that Rule 56(e) demands.” Burch v. Regents of Univ. of California , 433 F.Supp.2d 1110, 1124 (E.D.Cal.2006) (emphasis in original) (“Rule 56(e) requires only that evidence “would be admissible”, not that it presently be admissible. Such an exception to the authentication requirement is particularly warranted in cases such as this where the objecting party does not contest the authenticity of the evidence submitted but nevertheless makes an evidentiary objection based on purely procedural grounds.”). Defendants also object to exhibits to opposing counsel's declaration (Doc. 131-5, Exs. 27, 28) and Plaintiffs object to Almanza's declaration (Doc. 124-6). The Court need not address these objections, however, because in ruling on the instant motions it does not consider the materials to which the parties object. See Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir.2010).

Finally, the parties make nearly blanket objections to the proffered evidence in support of the motions for summary judgment, the oppositions' evidence, and the various separate statements on the basis of relevance, hearsay, lack of foundation, lack of personal knowledge, prejudice, improper character evidence, and assuming facts not in evidence. The Court reminds the parties that, on summary judgment, evidence need not be in a form that is admissible at trial. See Burch v. Regents of the Univ. of Cal., 433 F.Supp.2d 1110, 1119 (E.D.Cal.2006) (citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (1986) ). “[M]any of these objections are unnecessary when made to evidence presented in support of a motion for summary judgement as the court is not in danger of prejudice and the summary judgment standard dictates that summary judgment can be granted “only when there is no genuine dispute of material fact.” Arias v. McHugh , No. CIV. 2:09–690 WBS GG, 2010 WL 2511175, at *6 (E.D.Cal. June 17, 2010) (citing Burch, 433 F.Supp.3d at 1119–20).” These objections are OVERRULED . The parties may address evidentiary issues in pre-trial motions.

A. The Parties

Plaintiff Merri Silva (“Mrs. Silva”) is the mother of the Decedent, Silva, who died on May 7, 2013. Mrs. Silva sues in her individual capacity and as the successor in interest of her son, the Decedent, (pursuant to Section 377.11 of the California Code of Civil Procedure ) alleging a substantive due process violation pursuant to the Fourteenth Amendment. Salvador Silva (“S. Silva”), the decedent Silva's father, passed away while this case was pending. Therefore, his son, Chris Silva (“C. Silva”), as successor in interest, substituted into the case in a representative capacity, pursuant to Rule 25 and California Code of Civil Procedure 377.11 and 377.32 (see Docs. 106 & 113), for his father's only claim for loss of familial relationship under the Fourteenth Amendment. See Docs. 106, 111 & 113. By the complaint he seeks general, special, compensatory, and punitive damages. See SAC, Doc. 78.

The Decedent's surviving children, Plaintiffs M.L.S., C.J.S., C.R.S., E.Z.S., minors by and through their guardian ad litem , Judy Silva, bring this action individually and as successors in interest to Silva, the Decedent. See id . Minor Plaintiff J.S., by and through her guardian ad litem , Adriane Dominguez, brings this action in her individual capacity and as successor in interest to Silva. See id.

By their complaint, Plaintiffs seek general, special, compensatory, and punitive damages against all Defendants, including municipal Defendant County of Kern (“the County”), as well as Jeffrey Kelly (“Kelly”), Douglas Sword (“Sword”), Luis Almanza (“Almanza”), Ryan Brock (“Brock”), Ryan David Stephens (“Stephens”), Tanner Miller (“Miller”), Greer (“Greer”), Michael Phillips (“Phillips”), and Michael Bright (“Bright”), each in their individual capacities. See SAC, Doc. 78. At all relevant times, Sword was a Sergeant for the KCSO; Kelly, Almanza, Brock, Greer, Miller, and Stephens were KCSO Deputies; and Phillips and Bright were CHP Officers.³

The parties do not acknowledge that Defendants Does 1-50 remain unnamed, although the parties have had ample time in which to engage in discovery. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.1980) (finding that “the plaintiff should be given an opportunity through discovery to identify the unknown defendants.”). At this late stage, post-discovery, Plaintiffs have neither named additional defendants—presumably additional officers—nor have they offered arguments or evidence indicating liability against such officers based on the facts alleged in the SAC. As there is no provision in the Federal Rules of Civil Procedure permitting the use of fictitious defendants, the Court, sua sponte , GRANTS summary judgment in their favor and DISMISSES the remaining Doe Defendants in advance of the imminent trial. See Fifty Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1191 (9th Cir.1970) ; see also Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery , 44 F.3d 800, 803 (9th Cir.1995) (affirming district court's grant of summary judgment in favor of non-appearing defendant).

B. Undisputed Facts Leading to Events between Law Enforcement and Silva⁴

This suit is an excessive force claim stemming from events near midnight on May 7, 2013, in Bakersfield, California, where KCSO Deputy Kelly responded to a call to check on an intoxicated man.

JSUMF ¶¶ 2, 4, 5. Kelly learned from his in-vehicle computer that the reporting party was a security guard with the nearby Kern Medical Center (“KMC” or “the Hospital”). JSUMF ¶ 3. Along with Kelly in the car was his K-9 partner, Luke. JSUMF ¶¶ 6, 7.

Kelly, dressed in a KCSO uniform and driving a KCSO vehicle, parked his patrol vehicle and turned its spotlight on Silva before walking over to check on him. JSUMF ¶ 2, 4, 5, 9; Kelly Dep. 38:14-17, 40:13-41:5. When Kelly first saw Silva, Silva appeared to be lying on the ground by the stop sign on the southeast corner of Flower and Palm, across the street from the Hospital. JSUMF ¶ 8. Silva was breathing but not moving, and did not...