Montanez v. City of Indio

• Decision Date: 25 April 2018
• Docket Number: Case No. 5:17-cv-00130-ODW(SHK)
• Court: U.S. District Court — Central District of California
• Parties: ESTATE OF PEDRO MONTANEZ et al, Plaintiffs, v. CITY OF INDIO et al, Defendants.

ESTATE OF PEDRO MONTANEZ et al, Plaintiffs, v. CITY OF INDIO et al, Defendants.

Case No. 5:17-cv-00130-ODW(SHK)

United States District Court Central District of California

April 25, 2018

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [46]

I. INTRODUCTION

This case arises from the shooting death of Pedro Montanez, Sr. ("Montanez" or "the Decedent") in the City of Indio, California. (Compl., ECF No. 1.) The Decedent's wife, Maria Telles, surviving children—Pedro Montanez, Ramona Montanez, and Christina Montanez (collectively, "Plaintiffs")—bring claims individually and on behalf of Montanez's estate. Plaintiffs bring the instant civil rights action against the City of Indio ("Indio"), the Indio Police Department, Officer Chris Cordova ("Cordova"), Officer Kevin Fowler ("Fowler"), and unknown employees of the Indio Police Department (collectively, "Defendants"). (Id.) The Complaint alleges six causes of action: (1) excessive force under 42 U.S.C. § 1983; (2) Municipal Liability for Unconstitutional Customs and Practices under 42 U.S.C. § 1983; (3) Interference with Familial Integrity under 42 U.S.C. § 1983; (4) Assault and Battery; (5) Wrongful Death; and (6) civil rights violations under California Civil Code § 52.1. (Id.) Before the Court is Defendants' Motion for Summary Judgment. (Mot., ECF No. 46-1.) 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' Motion.¹

II. BACKGROUND

A. Factual Background

1. The 911 Call

On August 20, 2016 at 9:15 p.m., Indio Police Department received a 911 call from a woman who reported a man yelling and threatening her with a knife on Jackson Street. (Defendants' Statement of Uncontroverted Facts ("SUF") ¶¶ 1-2, ECF No. 46-2; Plaintiffs' Statement of Genuine Issues of Material Fact ("SGI") ¶¶ 1-2, ECF No. 50.) The caller identified the man as someone who lived in her apartment building, and described him as Hispanic, wearing jeans, a grey shirt, thin, not tall, and "medium sized." (SUF ¶¶ 3-4; SGI ¶¶ 3-4.) She said that the man was going in and out of an apartment, and later stated that he was holding scissors. (SUF ¶ 4; SGI ¶ 4.)

2. Officer Fowler and Deployment of Taser

Officer Fowler was the first officer to respond to the 911 call, and arrived at the parking lot of the Rancho Fresco Market, also located on Jackson Street. (SUF ¶ 6; SGI ¶ 6; Fowler Decl. ¶ 4, ECF No. 46-4.) After exiting his police cruiser, Fowler activated his body worn camera ("BWC") and proceeded to look for the suspect.²(Fowler Decl. ¶¶ 5, 6; Fowler Decl., Ex. A—Body Worn Camera Footage ("Fowler BWC Footage"), ECF No. 46-4.) Fowler shined his flashlight at an individual near the apartment building with something metallic in his hand. He immediately recognized him as decedent, Pedro Montanez. (Fowler Decl. ¶ 7.) Just the day before, Officer Fowler arrested Montanez for battery; the week prior, he observed Montanez being uncooperative, aggressive and yelling at JFK Hospital, after other officers had arrested Montanez. (SUF ¶¶ 13-15; SGI ¶¶ 13-15; Fowler Decl. ¶ 10.) While at the hospital, Fowler recalls the officers looking for a spit mask to use on Montanez. (SUF ¶ 16; SGI ¶ 16.)

Once Officer Fowler noticed Montanez, he walked toward him and asked, "What's going on? What are you doing?" (SUF ¶ 18; SGI ¶ 18.) Montanez walked toward Fowler holding an object in his hand. (SUF ¶ 19; SGI ¶ 19.) Fowler radioed to dispatch that Montanez was "coming at him with scissors" and that he had him "at taser point." (SUF ¶¶ 24-25; SGI ¶¶ 24-25.) Montanez continued to approach Fowler and was saying something that Fowler could not understand. (Fowler Depo., 130:19-131:1; ECF No. 49-1, Ex. 1.) Officer Fowler told Montanez to "stop" and "drop it," but Montanez continued to move forward. (Fowler Decl. ¶ 16.) At that point, Officer Fowler deployed his taser at Montanez. (Id.) Montanez hunches forward slightly, but remains standing. (Fowler BWC Footage.) Officer Fowler takes out his rapid containment baton ("RCB") and extends it. (Id.) Fowler continuously orders Montanez to get on the ground. (Id.) Montanez does not comply and continues to yell at Fowler in Spanish. (Id.) At one point, Fowler tells Montanez to "stop" and Montanez replies "You stop too" in English, and then goes back to yelling in Spanish and pointing at Fowler. (Id.) A few seconds later, sirens from Officer Cordova's police car can be heard. (Id.)

3. Arrival of Officer Cordova and the Use of Deadly Force

After hearing Officer Fowler's call to police dispatch, Officer Cordova drove to assist Fowler, and pulled his police car into the parking lot where Fowler andMontanez were located. (SUF ¶ 54; SGI ¶ 54.) Officer Cordova knew that the suspect involved was Montanez, "the same subject he dealt with before." (SGI ¶ 12; Cordova Depo., 172:03-172:13, ECF No 49-2.) After stopping his vehicle, Officer Cordova exited, took out his RCB and expanded it. (Cordova Depo., 204:13-17; Fowler BWC Footage.) Montanez backed up from Officer Fowler and began to move towards Officer Cordova. (SGI ¶ 57; Fowler BWC Footage.) Montanez faced Cordova in a "bladed" stance, with his left foot in front, his body turned sideways, and his right leg behind him. (Fowler BWC Footage.) Montanez was holding the scissors in his right hand. (Id.) Directly after Montanez turns to face Cordova, Cordova drops his RCB, pulls out his gun, and points it at Montanez. (Id.) Officer Cordova begins to yell at Montanez, and Officer Fowler is heard continuously ordering Montanez to "get on the ground." (Id.) Officer Cordova yells "Don't come towards me with that, I'm giving you a warning." (Id.) Montanez continues yelling in Spanish while pointing his left finger at Cordova. (Id.) At this point, Cordova and Montanez are approximately four feet apart, and Cordova's back is to the sidewalk adjacent to the street. (Id.) Cordova then yells, "You are going to get shot." (Id.) Three seconds later, Cordova fires seven shots from his gun, striking Montanez. (Id.) Montanez falls to the ground. (Id.) Officer Cordova radios to dispatch "Shots fired, shots fired. One down. Requesting a supervisor. He was coming at me with scissors." (SGI ¶ 74; Fowler BWC Footage.)

B. Procedural History

Plaintiffs commenced this action on January 25, 2017. (Compl.) Defendants moved for summary judgment on all causes of action on February 20, 2018. (ECF No. 46.) Plaintiffs opposed the Motion on March 12, 2018. (Opp'n, ECF No. 48.) On March 19, 2018, Defendants filed a Reply. (Reply, ECF No. 55.)

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III. LEGAL STANDARD

A. Summary Judgment

Summary judgment is appropriate if, viewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmoving party, there are no genuine disputed issues of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law," and a dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable trier of fact to decide in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "If the evidence is merely colorable, or is not significantly probative," the Court may grant summary judgment. Id. at 249-50 (citation omitted). At the summary judgment stage, the Court "does not assess credibility or weigh the evidence, but simply determines whether there is a genuine factual issue for trial." House v. Bell, 547 U.S. 518, 559-60 (2006).

The moving party has the burden of demonstrating the absence of genuine issue of fact for trial. Celotex, 477 U.S. at 323. To meet its burden, "the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000) (citation omitted). Once the moving party satisfies its initial burden of production, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact. Id. at 1103.

"It is well-settled in this circuit and others that the filing of cross-motions for summary judgment, both parties asserting that there are no uncontested issues of material fact, does not vitiate the court's responsibility to determine whether disputed issues of material fact are present. A summary judgment cannot be granted if a genuine issue as to any material fact exists." United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606 (9th Cir.1978).

IV. EVIDENTIARY OBJECTIONS

A. Plaintiffs' Objections

The Court SUSTAINS Plaintiffs' foundation/speculation objections to Defendants' SUF ¶¶ 45, 50, 52, 58; and SUSTAINS Plaintiffs' objection to ¶ 60 as misstating the evidence. (SGI ¶¶ 45, 50, 52, 58.)

The Court OVERRULES Plaintiffs' speculation objection to Defendants' SUF ¶ 53; and OVERRULES Plaintiffs' objection to ¶ 64 based on speculation and misstating the evidence. (Id. ¶¶ 53, 64.) The Court also OVERRULES Plaintiffs' lack of foundation/speculation objections to portions of the declaration of Defendants' expert, Ron Martinelli, Ph.D., insofar as this testimony is based on Martinelli's personal knowledge regarding the training and instruction of police officers in California. (Id. at ¶¶ 80-92; Declaration of Ron Martinelli, Ph.D., ECF No. 46-5.)

B. Defendants' Objections

Defendants object to Plaintiffs' use of an expert report created by Roger Clark (Plaintiff's Expert Report ("Clark Report"), ECF No. 49-8), upon which Plaintiffs rely to support their contentions of fact and their Opposition. (See Objection to Plaintiffs' Expert Report ("Objection"), ECF No. 55-7.) The Court SUSTAINS Defendants' objections to the following...