I. BACKGROUND

1 The Parties do not dispute the following facts. On July 9, 2022, Defendant McColloch was 2 performing training exercises with his K-9 officer at the Santa Clara Youth Soccer Park. See Dkt. 3 56-3 (“McColloch Tr.”) at 13:11-15, 65:10-19, 68:17-24, 73:4-74:15. At some point during the 4 training session, Plaintiff and her dog entered the park. See id. at 87:22-88:16; Dkt. 56-2 (“Silva 5 Tr.”) at 53:9-17. Defendant McColloch noticed Plaintiff as soon as she entered the park and 6 immediately yelled at her to leave. See McColloch Tr. at 89:19-23, 94:22-95:7; Silva Tr. at 60:21- 7 61:8, 65:25-66:8. Before Plaintiff could comply, the K-9 officer charged at her and her dog. See 8 McColloch Tr. at 90:2-6, 94:22-95:10; Silva Tr. at 61:4-20, 62:14-22, 63:20-64:5. The K-9 officer 9 had self-deployed—Defendant McColloch had not commanded it to pursue or attack Plaintiff or 10 her dog. See McColloch Tr. at 89:19-90:6, 94:22-95:10; Silva Tr. at 62:23-25, 78:3-5, 92:10- 11 94:19. Defendant McColloch attempted to follow his K-9 officer, but as soon as he took a step, he 12 slipped, broke his toe and fractured his foot. See McColloch Tr. at 96:4-12; Hr’g Tr. at 23:16- 13 24:11. 14 Meanwhile, Plaintiff and her dog exited the park, and the K-9 officer followed. See Silva 15 Tr. at 66:5-67:19. The K-9 officer then attacked Plaintiff’s dog before moving on to Plaintiff and 16 biting her twice; upon the second bite, Plaintiff and the K-9 officer fell to the ground. See id. at 17 67:20-68:6, 73:1-74:14, 76:10-23; McColloch Tr. at 99:10-13. At that point, Defendant 18 McColloch “stumbl[ed]” over and immediately separated the K-9 officer from Plaintiff.2 See 19 McColloch Tr. at 98:4-8, 99:18-24; Silva Tr. at 77:3-78:2, 86:8-20. He had had several verbal 20

21 2 Plaintiff testified at her deposition that when Defendant McColloch arrived to find her on the 22 ground being bitten by the K-9 officer, he ordered her “to hold still and be quiet” before separating the K-9 officer from her. See Silva Tr. at 77:3-78:2, 86:8-20. Defendant McColloch did not 23 provide similar testimony at his deposition, but even if the Court considers that fact as undisputed, it would not negate the immediacy with which Defendant McColloch separated the K-9 officer 24 from Plaintiff. Plaintiff also asserts in the Opposition that when Defendant McColloch found her 25 on the ground being bitten, he “did not appear to be trying to get his K-9 to stop biting Plaintiff, but was instead talking on his radio.” See Opposition at 4 (citation omitted). That assertion 26 misrepresents her deposition testimony. At her deposition, Plaintiff testified that Defendant McColloch spoke “into his chest piece” before the K-9 officer bit her. See Silva Tr. at 68:15- 27 69:25. She did not, however, testify that he spoke into his chest piece when he found her on the 1 commands and a remote shock collar at his disposal that he could have used to call off the K-9 2 officer, but he did not use them at any time before the K-9 officer bit Plaintiff. See McColloch Tr. 3 at 29:18-34:14; Silva Tr. at 60:25-62:25, 68:23-69:7, 72:17-25, 73:13-17, 77:15-17. 4 Plaintiff suffered six wounds on her right arm from the attack totaling 24 centimeters in 5 length and received 26 sutures. See Dkt. 56-4 at 25. She also reports nerve damage resulting in a 6 loss of feeling in her arm. See Silva Tr. at 101:17-103:7. 7 II. LEGAL STANDARD 8 A party may move for summary judgment on any claim or defense or for partial summary 9 judgment on part of any claim or defense. See Fed. R. Civ. P. 56(a). “The court shall grant 10 summary judgment if the movant shows that there is no genuine dispute as to any material fact and 11 the movant is entitled to judgment as a matter of law.” Id. Material facts are those “that might 12 affect the outcome of the suit under the governing law.” See Anderson v. Liberty Lobby, Inc., 477 13 U.S. 242, 248 (1986). And a genuine dispute of material fact exists “if the evidence is such that a 14 reasonable jury could return a verdict for the nonmoving party.” See id. Thus, the “purpose of 15 summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there 16 is a genuine need for trial,’” and where “the record taken as a whole could not lead a rational trier 17 of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec. 18 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted)). 19 The moving party 20 always bears the initial responsibility of informing the district court of the basis for 21 its motion, and identifying those portions of “the pleadings, depositions, answers to 22 interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 23

24 See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Further, where the moving party would 25 bear the burden of persuasion at trial (e.g., where the moving party seeks summary judgment on its 26 own claim or defense), the moving party must establish “beyond controversy every essential 27 element of its” claim or defense. See S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th 1 Cir. 2003) (citation omitted). If the moving party meets its burden, the burden then shifts to the 2 non-moving party to “demonstrat[e that] the evidence, taken as a whole, could lead a rational trier 3 of fact to find in its favor.” See id. (citation omitted). 4 Where the moving party would not bear the burden of persuasion at trial (e.g., where the 5 moving party seeks summary judgment on the non-moving party’s claim or defense), the moving 6 party 7 has both the initial burden of production and the ultimate burden of persuasion . . . . 8 In order to carry its burden of production, the moving party must either produce 9 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 10 element to carry its ultimate burden of persuasion at trial. In order to carry its ultimate burden of persuasion on the motion, the moving party must persuade the 11 court that there is no genuine issue of material fact. 12 13 See Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000) (citations 14 omitted). If the moving party meets its burden, “the nonmoving party must produce evidence to 15 support its claim or defense [sufficient] . . . to create a genuine issue of material fact.” See id. at 16 1103 (citations omitted). 17 In evaluating a motion for summary judgment, “[t]he court must view the evidence in the 18 light most favorable to the nonmovant and draw all reasonable inferences in the nonmovant’s 19 favor.” See City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (citation 20 omitted). But even under this favorable standard, “the non-moving party must come forward with 21 more than ‘the mere existence of a scintilla of evidence.’” See Miller v. Glenn Miller Prods., Inc., 22 454 F.3d 975, 988 (9th Cir. 2006) (citation omitted). 23 /// 24 /// 25 /// 26 /// 27 ///

III. DISCUSSION

1 Defendants move for partial summary judgment on three of Plaintiff’s claims: 2  Use of excessive force in violation of the Fourth Amendment to the United States 3 constitution. 4  Violation of the California Bane Act. 5  Civil battery. 6 In light of the undisputed facts, Defendants are entitled to judgment as a matter of law on all three 7 of these claims. 8 A. The Fourth Amendment Claim Fails Because 9 Defendant McColloch Did Not Intend To Restrain Plaintiff 10 The Fourth Amendment prohibits unreasonable searches and seizures by the government. 11 See Wall v. Cnty. of Orange, 364 F.3d 1107, 1112 (9th Cir. 2004); Fontana v. Haskin, 262 F.3d 12 871, 879 (9th Cir. 2001). Plaintiff brings a claim concerning an allegedly unreasonable seizure 13 only. Thus, to succeed on her claim of excessive force in violation of the Fourth Amendment, she 14 must demonstrate both: (1) a seizure; and (2) excessive force. See Cuevas v. City of Tulare, 107 15 F.4th 894, 898 (9th Cir. 2024); see, e.g., Seidner v. de Vries, 39 F.4th 591, 596 (9th Cir. 2002) 16 (“Before addressing de Vries’s use of force, we must decide whether Seidner was seized, thereby 17 implicating the Fourth Amendment.” (citation omitted)). Her claim fails because the undisputed 18 facts show that no Fourth Amendment seizure occurred. 19 “There are two types of Fourth Amendment seizures. ‘[A]n officer seizes a person when 20 he uses force to apprehend her.’ An officer can also seize a person through a ‘show of authority’ 21 that ‘in some way restrain[s] the liberty’ of a person.” Cuevas, 107 F.4th at 899 (citations 22 omitted). This action concerns an alleged seizure through the use of force (i.e., the K-9 officer 23 biting Plaintiff). Force results in a Fourth Amendment seizure only when “the challenged 24 conduct objectively manifests an intent to restrain.” See Torres v. Madrid, 592 U.S. 306, 317 25 (2021); see also Brower v. Cnty. of Inyo, 489 U.S. 593, 597 (1989) (Fourth Amendment seizure 26 occurs “only when there is a governmental termination of freedom of movement through means 27 intentionally applied.”). 1 Defendant McColloch did not intend to restrain Plaintiff: 2  Defendant McColloch yelled at Plaintiff to leave as soon as she entered the park. 3  Defendant McColloch never directed the K-9 officer to pursue or attack Plaintiff or her 4 dog. 5  The K-9 officer self-deployed when it charged Plaintiff and her dog. 6  Defendant McColloch attempted to follow the K-9 officer as soon as it self-deployed but 7 slipped, broke his toe and fractured his foot. 8  When Defendant McColloch eventually stumbled over to the K-9 officer biting Plaintiff, 9 he immediately separated them. 10 Indeed, courts often find a lack of intent where K-9 officers self-deploy. See, e.g., Andrade v. City 11 of Burlingame, 847 F. Supp. 760, 762-64 (N.D. Cal. 1994) (no intent where dog acted on its own 12 in approaching and biting plaintiffs), aff’d sub nom. Marquez v. Andrade, No. 94-15794, 1996 WL 13 111581, at *1 (9th Cir. Mar. 13, 1996) (no intent because officer “did not order the dog to find or 14 attack the plaintiffs”); Parker-Liles v. Garcia, No. 15-cv-00894-MCE, 2017 WL 4340268, at *3-4 15 (E.D. Cal. Sept. 29, 2017) (no intent where officer “never called to the canine, threatened use of 16 the canine, or intentionally deployed the canine from the vehicle”); Gangstee v. Cnty. of 17 Sacramento, No. 10-cv-01004-KJM, 2012 WL 112650, at *7 (E.D. Cal. Jan. 12, 2012) (no intent 18 where officer did not issue any commands to dog or perform any other affirmative act suggesting 19 intent), aff’d, 567 F. App’x 500, 501 (9th Cir. 2014) (“Here, there is no evidence, nor contention, 20 that LeCouve intentionally deployed his canine in an effort to seize Gangstee.”).3 21 Plaintiff counters that it is nevertheless reasonable to infer that Defendant McColloch 22 intended to restrain her because he: (1) “allowed” the K-9 officer to charge towards her and attack 23 her; (2) never issued a command or used his remote shock collar to stop the K-9 officer; (3) 24 25 3 Plaintiff addresses only one of these authorities—Andrade—in her Opposition. See Opposition 26 at 8. She attempts to distinguish that case by noting that the officer there “called the dog off as soon as he became aware that it had bitten the” plaintiffs. See id. (quoting Andrade, 847 F. Supp. 27 at 762). But here, it is also undisputed that Defendant McColloch separated the K-9 officer from 1 “offers no explanation why he did not recall his K-9” officer4; and (4) should have known that 2 “the only rational explanation of what’s about to happen [after the K-9 officer self-deployed] is 3 that it’s about to bite Plaintiff.” See Opposition at 7-8; Hr’g Tr. at 12:6-18. Essentially, Plaintiff 4 argues that, taken together, these facts support a reasonable inference that Defendant McColloch, 5 by his inaction vis-à-vis the K-9 officer, intended to restrain Plaintiff. But inferring intent from 6 that inaction under the facts here would impermissibly depart from drawing a reasonable inference 7 in Plaintiff’s favor to speculating in her favor, and the Court will not do so. See LVRC Holdings 8 LLC v. Brekka, 581 F.3d 1127, 1136 (9th Cir. 2009) (“While we must draw all reasonable 9 inferences in favor of the non-moving party, we need not draw inferences that are based solely on 10 speculation.” (citations omitted)); see, e.g., Ostly v. City & Cnty. of S.F., No. 23-16000, 2024 WL 11 3963839, at *1 (9th Cir. Aug. 28, 2024) (“Arriving at that conclusion requires a series of 12 inferential leaps that are impermissibly speculative.”). The critical fact is that immediately upon 13 reacting to the K-9 officer self-deploying, Defendant McColloch slipped, broke his toe and 14 fractured his foot.5 This undisputed fact negates any inference that Defendant McColloch 15 objectively manifested an intent to restrain Plaintiff by failing to subsequently call off the K-9 16 17 4 Plaintiff proposes her own explanation, namely, that Defendant McColloch sought to detain her 18 for her perceived trespass into the park. See Opposition at 7; Hr’g Tr. at 10:23-11:12. But the undisputed facts do not support such an inference as reasonable (see Hr’g Tr. at 10:23-11:12), and 19 Plaintiff does not explain why Defendant McColloch would have yelled at her to leave the park as 20 soon as he saw her enter if he sought to detain her for trespassing. 21 5 Plaintiff argued at the hearing on the Motion that Defendant McColloch slipping actually supports an inference that he intended to restrain Plaintiff, “because if he slipped and fell, you 22 would think then that would be the perfect instance to use a command to stop the dog instead of trying to physically remove it after you’re injured.” See Hr’g Tr. at 24:6-11; see also id. at 13:18- 23 21. While that reasoning has some (albeit minimal) appeal in the sanitized vacuum of hindsight, the Court cannot reasonably infer that in the moment he slipped, broke his toe and fractured his 24 foot, Defendant McColloch would have thought to issue a command to his K-9 officer. Cf. 25 Graham v. Connor, 490 U.S. 386, 396-97 (1989) (“With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: ‘Not every push or shove, even if it may 26 later seem unnecessary in the peace of a judge’s chambers,’ violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced 27 to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving . 1 officer before it bit Plaintiff. 2 Plaintiff also urges an inference of intent from the fact that Defendant McColloch “was 3 physically standing over Plaintiff” when he finally separated the K-9 officer from her. See Hr’g 4 Tr. at 11:21-12:4. But that fact does not lead to any reasonable inference (one way or the other) 5 about intent—when Defendant McColloch arrived to find Plaintiff being bitten, she was already 6 on the ground. The Parties do dispute whether Plaintiff was on top of the K-9 officer or vice versa 7 after she fell to the ground (compare McColloch Tr. at 98:4-17, with Silva Tr. at 86:8-15), but they 8 agree that Defendant McColloch removed the K-9 officer from Plaintiff. Logically, the only way 9 for Defendant McColloch to get to the K-9 officer in that situation would be to stand over both 10 Plaintiff and the K-9 officer. 11 As for legal support for her position, Plaintiff cites to three decisions for the proposition 12 that permitting the K-9 officer to bite her for an excessively long period demonstrates an intent to 13 restrain her (or at least creates a dispute of fact). See Opposition at 8-10. But those cases are 14 distinguishable because the K-9 officers there did not self-deploy. See Watkins v. City of Oakland, 15 Cal., 145 F.3d 1087, 1090 (9th Cir. 1998) (K-9 officer directed to search for the plaintiff); Bates v. 16 Rezentes, No. 22-cv-01097-RFL, 2024 WL 1846392, at *1-2 (N.D. Cal. Apr. 29, 2024) (same); 17 Ellis v. Pierce Cnty. ex rel. Pierce Cnty. Sheriff’s Off., No. 22-cv-05142-BHS, 2024 WL 519149, 18 at *1-2 (W.D. Wash. Feb. 9, 2024) (same). Further, Defendant McColloch did not permit the K-9 19 officer to bite Plaintiff for an excessively long period, as he separated the K-9 officer from 20 Plaintiff once he saw it was biting Plaintiff. 21 In sum, no Fourth Amendment seizure occurred because the undisputed facts show that 22 Defendant McColloch did not intend to seize Plaintiff. The Court will therefore grant summary 23 judgment to Defendants on the Fourth Amendment claim.6 24 /// 25 26 6 In light of the Court’s reasoning herein, the Court does not reach Defendants’ arguments 27 that: (1) Defendant McColloch did not use excessive force; and (2) the doctrine of qualified B. The Bane Act Claim Fails Because Defendant 1 McColloch Did Not Violate Plaintiff’s Fourth Amendment Rights 2 To succeed on a Bane Act claim, “[a] plaintiff must show (1) intentional interference or 3 attempted interference with a state or federal constitutional or legal right, and (2) the interference 4 or attempted interference was by threats, intimidation or coercion.” See Allen v. City of 5 Sacramento, 234 Cal. App. 4th 41, 67 (3d Dist. 2015) (citations omitted); see also Cal. Civ. Code 6 §§ 52.1(b)-(c). Plaintiff predicates her Bane Act claim on Defendant McColloch’s alleged Fourth 7 Amendment violation. See Dkt. 19 ¶¶ 24-28. Her Bane Act claim therefore fails because her 8 Fourth Amendment claim fails. See, e.g., Williamson v. City of Nat’l City, 23 F.4th 1146, 1155 9 (9th Cir. 2022); Price v. Peerson, 643 F. App’x 637, 638 (9th Cir. 2016). 10 In the Opposition, Plaintiff argues that even if her Fourth Amendment claim fails, her Bane 11 Act claim would still succeed as predicated on violations of Section 43 of the California Civil 12 Code and Article I, Section 1, of the California constitution. See Opposition at 16-17. But 13 Plaintiff does not allege that Defendants violated these specific provisions of the Civil Code or 14 state constitution in her operative complaint.7 See Dkt. 19 ¶¶ 24-28. She cannot, therefore, pursue 15 a Bane Act claim based on such alleged violations. See Powell v. Cnty. of Orange, No. 21-cv- 16 00801-JVS, 2022 WL 3574282, at *3 (C.D. Cal. July 7, 2022) (“A plaintiff may not add new 17 claims or theories of liability in an opposition brief to a motion for summary judgment.” (citations 18 omitted)); see, e.g., Coleman v. Quaker Oats Co., 232 F.3d 1271, 1291-94 (9th Cir. 2000) 19 (affirming grant of summary judgment to defendants where plaintiffs attempted to proceed on 20 theory of liability at summary-judgment stage not alleged in complaint); cf. Pickern, 457 F.3d at 21 965, 968-69 (same where plaintiff raised allegations in opposition to motion for summary 22 judgment not included in complaint, because “the complaint gave the [defendants] no notice of the 23 specific factual allegations presented for the first time in [the plaintiff’s] opposition”). 24 25 7 To be sure, Plaintiff does allege in her operative complaint that Defendants violated the Bane Act 26 by violating the California constitution. See Dkt. 19 ¶¶ 25, 28. But she does not identify a specific provision of the state constitution that Defendants allegedly violated. Such a general 27 allegation does not permit assertion of a new legal theory at the summary-judgment stage. Cf. 1 The Court also asked counsel for Plaintiff at the hearing on the Motion whether Plaintiff 2 sought to base her Bane Act claim on conduct other than Defendants’ alleged violations of the 3 Fourth Amendment. See Hr’g Tr. at 18:21-19:22. Counsel answered that Plaintiff premised her 4 Bane Act claim on Defendant McColloch’s “intent to commit excessive force.” See id. at 19:23- 5 20:7. As discussed above, however, the undisputed facts demonstrate that Defendant McColloch 6 did not intend to restrain Plaintiff. 7 In sum, Plaintiff’s Bane Act claim fails because her Fourth Amendment claim fails. The 8 Court will therefore grant summary judgment to Defendants on that claim. 9 C. The Civil-Battery Claim Fails Because Defendant McColloch Did Not Intend To Touch Plaintiff 10 To succeed on a civil-battery claim, 11

12 a plaintiff must prove that (1) the defendant intentionally touched the plaintiff, (2) the defendant used unreasonable force to arrest, prevent the escape of, or overcome 13 the resistance of the plaintiff, (3) the plaintiff did not consent to the use of that 14 force, (4) the plaintiff was harmed, and (5) the defendant’s use of unreasonable force was a substantial factor in causing the plaintiff’s harm. 15

16 See Pryor v. City of Clearlake, 877 F. Supp. 2d 929, 952 (N.D. Cal. 2012) (citations omitted). As 17 discussed above, the undisputed facts show that Defendant McColloch did not intend to restrain 18 Plaintiff. Accordingly, the civil-battery claim fails, and the Court will grant summary judgment to 19 Defendants on that claim. See, e.g., Burns v. City of Concord, No. 14-cv-00535-LB, 2017 WL 20 5751407, at *16 (N.D. Cal. Nov. 28, 2017) (granting summary judgment to police officers on 21 civil-battery claim where only potentially relevant questions of fact concerned unintentional acts); 22 Cardenas v. Am. Airlines, Inc., No. 17-cv-02513-GPC, 2019 WL 1469131, at *7 (S.D. Cal. Apr. 3, 23 2019) (granting summary judgment to defendant on civil-battery claim where, inter alia, “there is 24 no indication that [the defendant’s employee] touched or intended to touch Plaintiff”). 25 /// 26 /// 27 ///

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS the Motion. In light of the Court’s two 2 summary-judgment decisions (i.e., this Order and the decision at Dkt. 44), the Parties shall appear 3 for a status conference on October 8, 2024. The Parties shall meet and confer prior to the status 4 conference and submit a joint status report by October 1, 2024. In the status report, the Parties 5 shall: (1) identify the claims that remain for trial; and (2) update the Court on the general status of 6 settlement negotiations. 7

SO ORDERED.

8 Dated: September 19, 2024 9

SUSAN VAN KEULEN

D United States Magistrate Judge

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