Gomez v. City of Vacaville

• Decision Date: 31 August 2020
• Docket Number: No. 2:18-cv-2698-KJM-KJN,2:18-cv-2698-KJM-KJN
• Citation: 483 F.Supp.3d 850
• Parties: Carlos M. GOMEZ, Sr., Plaintiff, v. CITY OF VACAVILLE, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

483 F.Supp.3d 850

Carlos M. GOMEZ, Sr., Plaintiff,

v.CITY OF VACAVILLE, et al., Defendants.

No. 2:18-cv-2698-KJM-KJN

United States District Court, E.D. California.

Signed August 31, 2020

Filed September 2, 2020

Catherine Anne Beekman, Beekman Cortes, LLP, Vallejo, CA, Francisco Valentin Cortes, Beekman Cortes LLP, Benicia, CA, for Plaintiff.

Henry B. Bernstein, Richard W. Osman, Sheila Dana'e Crawford, Bertrand, Fox, Elliot, Osman & Wenzel, San Francisco, CA, for Defendants.

ORDER

Kimberly J. Mueller, CHIEF UNITED STATES DISTRICT JUDGE

In this civil rights case arising out of an altercation between City of Vacaville police officer William Boehm ("Boehm") and plaintiff Carlos M. Gomez ("Gomez"), defendants move for summary judgment, or, in the alternative, for partial summary judgment on all claims. For the reasons stated below, defendants’ motion for summary judgment is DENIED.

I. BACKGROUND

A. Undisputed Facts

The court has compared the parties’ statements of fact and reviewed the available dashboard camera footage, Ex. 1 ("Dash. Cam."), body camera footage, Ex. 3 ("Moore's Body Cam."); Ex. 7 ("Bellamy Body Cam."), and dispatch recordings, Ex. 2 ("Dispatch Recordings"), provided by plaintiff and lodged with the court in DVD format, ECF No. 29 (Notice of Lodging). Based on this review of the record, the court finds the following facts are undisputed, except where noted.¹ On August 28, 2017, Dolores Gomez ("Dolores"), plaintiff Carlos Gomez ("Gomez") and their son Carlos Gomez, Jr. ("Junior") ate dinner at Gomez's family home. Mot. for Summ. J. ("MSJ"), ECF No. 25, at 7–8; Opp'n at 5 (citing, inter alia , Dolores Dep., ECF No. 28-4, at 13–15² ). Gomez and Junior each had a shot of vodka after dinner. MSJ at 8; Opp'n at 5 (citing Gomez Dep., ECF No. 28-5, at 43). By about 10 p.m., Junior had left dinner and was sitting in his car in front of the house. Opp'n at 5 (citing Delores Dep. at 14).

At about 11:00 p.m., Officer Steven Moore, who is not a party in this case, pulled over near Junior's vehicle, after having seen a male standing next to the vehicle waving his hands earlier in the night. MSJ at 8 (citing Moore Decl. ¶¶ 2–4, ECF No. 25-3). When Officer Moore approached, he saw the driver's side rear window was shattered and Junior was sitting in the driver's seat. Id. (citing Moore Decl. ¶ 4). Officer Moore told Junior to show his hands; Junior did not immediately comply. Id. ; Moore Decl. ¶ 6. An altercation followed between Moore and Junior during which Junior advanced on Officer Moore, who used his radio to call for "Code 11," a covert request for backup. MSJ at 8–9 (citing Moore Decl. ¶ 7; Moore Dep., ECF No. 25-1, at 14:11–20, 15:13–16:1, 19:14–22). Officer Moore eventually deployed his taser against Junior, in an effort to subdue him, and reported his use of the taser over the radio. MSJ at 9–10 (citing Moore Decl. ¶ 9; Moore Dep. 20:16–18; Boehm Decl. ¶ 5, ECF No. 25-2; Boehm Dep., ECF No. 25-1, at 19:16–18). Officer Moore's use of force is not at issue in this case.

Before Boehm arrived, Gomez, with Dolores in tow, approached the scene and yelled at Officer Moore, asking why he had tased Junior and what was going on, to which Officer Moore responded by telling Gomez to stand back. Opp'n at 6 (citing Gomez Dep. at 47). According to plaintiff, Dolores told Officer Moore that Gomez could not hear him, but defendants dispute that Officer Moore heard her say this. Id. (citing Dolores Dep. at 19). Then, Junior stood up, pulled the taser darts off his body, and started to challenge Officer Moore to a fight. Id. (citing Dash. Cam. at 22:56:47–22:56:50). The two engaged in a scuffle before Officer Moore again deployed his taser and Junior fell or lay down on the ground. Dash. Cam. at 22:56:50–22:57:09. Gomez, standing roughly 6 to 10 feet away with no indication he was armed, continued yelling at Officer Moore. See MSJ at 10 (citing, inter alia , Moore Decl. ¶ 11; Moore Dep. 20:24–21:23, 21:25–22:4); Opp'n at 6 (citing Dash. Cam. at 22:57:14–22:57:30).

Over the radio, defendant Boehm heard Officer Moore advise that he was investigating a situation involving a subject and a vehicle with a shattered window and heard Moore's request for Code 11 cover. MSJ at 9 (citing Boehm Decl. ¶¶ 2–4; Boehm Dep. at 18:10–17). He also heard Officer Moore say he had deployed his taser and that a second subject, now identified as Gomez, was approaching him. Id. at 9–10 (citing Moore Decl. ¶ 9; Moore Dep. 20:16–18; Boehm Decl. ¶ 5; Boehm Dep. 19:16–18); see also Boehm Decl. ¶ 6.

When Officer Boehm arrived on the scene with Sgt. Larsen, Gomez and Officer Moore were still shouting at each other. Opp'n at 6; Dash. Cam. at 22:57:14–22:57:30. It is disputed whether Junior was under the officer's control at this point, though the dashboard camera footage suggests Junior was lying on the ground motionless and Moore was kneeling beside him, pointing his taser at Gomez, who was approximately 8 feet away. Id. (citing Dash. Cam. at 22:57:30–34). As Officer Boehm and Sgt. Larson exited their vehicle, Gomez turned away from the officers, threw his hands up, and began walking away from them. Dash. Cam. at 22:57:38–22:57:40. Officer Moore asked Officer Boehm and Sgt. Larson to detain Gomez for "148," which is the code section for misdemeanor offense of resisting or disrupting a police officer. Opp'n at 6 (citing Moore Body Cam. at 22:57:36–37). Within seconds of arriving on the scene, either Boehm or Larson yelled "on the ground, on the ground now!" three times and ran towards Gomez, who continued walking away, towards his house and vehicle, at a normal walking pace. Id. at 7 (citing Moore Body Cam. at 22:57:38–39; Dash. Cam. at 22:57:38–39).

As shown on the dashboard camera footage, Boehm rammed the right side of Gomez's upper-body hard enough to cause Gomez to fall some distance from where he had been walking. Dash. Cam. at 22:57:39–43. Gomez landed on the pavement, cracking his head, and Boehm fell on top of him. Opp'n at 7 (citing Dash. Cam. at 22:57:40-41; Dolores Dep. at 20). According to plaintiff, Gomez was immediately knocked unconscious. Id. (citing Gomez Dep. at 49, 53). Boehm and Larsen then attempted to roll Gomez over by yanking on his arms and, in the process, dragged Gomez's face on the asphalt. Id. (citing Dash. Cam. at 22:57:42–48). Boehm placed his knees on Gomez's back and handcuffed him, then rolled him into a seated position and radioed for medical aid. Id. (citing Dash. Cam. at 22:57:48–22:58:25).

Gomez is hard of hearing, such that he is not always able to hear even when yelled at. MSJ at 13 (citing Gomez Dep. 23:5–19, 24:1–10, 24:19–22, 25:1–9). At the time of the incident, Gomez was not wearing hearing aids. Id. ; Gomez Dep. 23:15–21.

Defendants describe Gomez as "an adult male of average build, who appeared to be 5’10, 180 pounds," but allege Boehm "was unable to determine his approximate age." MSJ at 12 (citing Boehm Dep. 22:12–23:7). However, the recording of Officer Boehm's radio communications to dispatch captured Boehm describing Gomez as "an elderly male," when he radioed for medical assistance, suggesting his older age was apparent to Officer Boehm at that time. Opp'n at 7 (citing Dash. Cam. at 22:58:12–25; Dispatch Recording at 22:58:25). The dashboard camera footage also shows Gomez has white hair, further suggesting his status as an elderly individual was readily apparent. See generally Dash. Cam.

Gomez went in and out of consciousness immediately after the incident and, the day after the assault, he remembers doctors telling him he had suffered a brain hemorrhage

. Opp'n at 8 (citing Gomez Dep. at 70). He stayed in the hospital for three days, with the following injuries: left epidural/subdural hematoma, parenchymal hemorrhage in the inferior right frontal lobe, trace subdural hematoma along the anterior falx, and left temporal bone and left occipital fracture. Opp'n at 8 (citing Ex. 4 ("Medical Records"), ECF No. 28-3, at 1). The bones in his left ear were shattered and he was told he would have permanent hearing loss; his balance has since worsened. Id. (citing, inter alia , Gomez Dep. at 74–76). Plaintiff reports experiencing dizzy spells, headaches, and nightmares as a result of the incident. Id. at 8–9 (Gomez Dep. at 75–82, 84–85). Plaintiff testified at deposition that he also experienced a diabetes complication due to stress from the incident. Id. at 9 (citing, inter alia , Gomez Dep. at 82).

B. Procedural Background

On October 4, 2018, plaintiff filed a complaint against the City of Vacaville and Officer Boehm, which included four claims: (1) excessive force in violation of the Fourth Amendment, brought under 42 U.S.C. § 1983, (2) battery, (3) violation of the Bane Act, California Civil Code § 52.1, and (4) negligence. Compl., ECF No. 1. As noted, defendants move for summary judgment or, alternatively, partial summary judgment, on all of plaintiff's claims. They argue summary judgment is proper because: "(1) Gomez's § 1983 claim for violation of the Fourth Amendment is unsupportable; (2) Officer Boehm is entitled to qualified immunity from Gomez's § 1983 claim; (3) the state law battery claim is unsupportable; (4) the Bane Act claim is meritless; (5) the negligence claim is unsupported by evidence; and (6) defendants are immune from liability under Gov't Code §§ 815.2 and 820.2." MSJ at 7. Plaintiff opposes, Opp'n, and defendants have replied, Reply, ECF No. 33. The court heard oral argument on the motion on March 12, 2020, and requested supplemental briefing on the case of Santos v. Gates, 287 F.3d 846 (2002). See Pl.’s Suppl. Br., ECF No. 36; Defs.’ Suppl. Br., ECF No. 37. After receiving the supplemental briefing, the court submitted the matter.

For the reasons below, summary judgment is DENIED.

II. DEFENDANTS’ EVIDENTIARY OBJECTIONS

On reply, defendants object to plaintiff's Exhibit 4, ECF No. 28-3, and Exhibit 7, lodged with the court, arguing they are both irrelevant and Exhibit 4 is not authenticated. Re...