1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 Case No.: 5:20-cv-02468-MEMF-KK 11 J.A., a minor by and through his Guardian ad

litem Cindy Plasencia, as successor in interest to 12 Juan Antonio Ayon Ruiz, decedent; Maria ORDER DENYING REQUEST FOR

JUDICIAL NOTICE AND GRANTING IN

Dolores Ruiz Vasquez, and Jose Juan Ayon 13 PART MOTION FOR SUMMARY Romero, parents of decedent,

JUDGMENT [ECF NOS. 85, 80]

14 Plaintiffs, 17 County Of San Bernardino, Deputy Ed Fakhoury, an individual; Deputy 18 Brandon Becker, an individual and; DOES 3-10, inclusive, 19 Defendants. 20 21

22 Before the Court is a Request for Judicial Notice (ECF No. 85) and Motion for Summary 23 Judgment (ECF No. 80) filed by Defendants, County of San Bernardino, Deputy Brandon Becker, 24 and Deputy Ed Fakhoury. For the reasons stated herein, the Court DENIES the Request for Judicial 25 Notice and GRANTS IN PART the Motion for Summary Judgment. 26

27 / / / 28 / / / 1 I. Factual Background 2 This action stems from a police shooting of Juan Antonio Ayon Ruiz (“Ruiz”) on January 10, 3 2020. On the evening of January 10, Ruiz picked up his two-year-old son, J.A., from J.A.’s 4 grandmother’s house. As Ruiz drove J.A., two San Bernardino County Sherriff’s Deputies, Eid 5 Fakhoury (“Fakhoury”) and Charles Becker (“Becker”), attempted a traffic stop of Ruiz. Ruiz did 6 not pull over and a pursuit ensued. When the pursuit ended, Fakhoury and Becker parked behind 7 Ruiz’s car on the side of the road. As Fakhoury and Becker exited their car, Ruiz put his car in 8 reverse and accelerated towards Fakhoury and Becker’s vehicle, allegedly ramming it and knocking 9 them down. Fakhoury and Becker then fired repeatedly at Ruiz’s car, killing Ruiz. J.A. was not 10 physically harmed. 11 II. Procedural History 12 J.A., through his mother and Guardian ad Litem Cindy Plasencia, and Ruiz’s mother, Maria 13 Dolores Ruiz Vasquez (“Vasquez,” or collectively with J.A., “Plaintiffs”) filed suit in this Court on 14 November 24, 2020. ECF No. 1. On March 26, 2021, the Court granted in part Defendants’ motion 15 to dismiss and granted Plaintiffs leave to amend. ECF No. 29. Plaintiffs filed a First Amended 16 Complaint on April 9, 2021. ECF No. 30 (“FAC”). On May 20, 2021, the Court granted in part 17 Defendants’ second motion to dismiss and again granted Plaintiffs leave to amend. ECF No. 39. 18 Plaintiffs had moved to dismiss Vasquez’s claims for lack of standing. See ECF No. 31. The Court 19 denied this request and held that Vasquez had standing and could pursue claims for deprivation of 20 life without due process (second cause of action in the FAC) and for interference with parent-child 21 relationship (third cause of action in the FAC). See ECF No. 39 at 6–8. The Court dismissed 22 Plaintiffs’ Monell claim1 (fourth cause of action in the FAC) with prejudice. ECF No. 39 at 8–13. 23 Plaintiffs filed a Second Amended Complaint on August 3, 2021. ECF No. 45 (“SAC”). 24 Plaintiffs bring seven causes of action against Fakhoury, Becker, and the County of San Bernardino 25 (the “County”): (1) a 42 U.S.C. § 1983 (“Section 1983”) claim by J.A. only for unreasonable search 26

27 1 The Court held that Vasquez had standing to pursue this claim, but nevertheless dismissed the claim with prejudice as to Vasquez and J.A. for failure to state a claim upon which relief could be granted. See ECF No. 28 1 and seizure (excessive force) against Fakhoury and Becker (see SAC ¶¶ 32–42); (2) a Section 1983 2 claim by J.A. and Vasquez for deprivation of life without due process against Fakhoury and Becker 3 (see SAC ¶¶ 43–54); (3) a Section 1983 claim by J.A. and Vasquez for interference with parent-child 4 relationship against Fakhoury and Becker (see SAC ¶¶ 55–63); (4) a claim for wrongful death by 5 J.A. only pursuant to California Civil Procedure Code § 377.60 against Fakhoury, Becker, and the 6 County (see SAC ¶¶ 64–70); (5) a claim for assault and battery by J.A. only against Fakhoury, 7 Becker, and the County (see SAC ¶¶ 71–77); (6) a claim for negligence by J.A. only against 8 Fakhoury, Becker, and the County (see SAC ¶¶ 78–84); and (7) a claim for violations of California 9 Civil Code § 52.1 (the “Bane Act”) by J.A. only against Fakhoury, Becker, and the County (see SAC 10 ¶¶ 85–92). Plaintiffs seek general damages, special damages, punitive damages against Fakhoury 11 and Becker, attorneys’ fees, and other relief the Court may deem proper. See SAC at Prayer for 12 Relief. 13 Defendants filed a Motion for Summary Judgment on February 24, 2023. ECF No. 80 14 (“Motion” or “Mot.”). In accordance with the requirements in the Court’s Standing Order, the 15 Motion was briefed and filed jointly by Defendants and Plaintiffs. Also on February 24, 2023, 16 Defendants filed a Joint Appendix of Undisputed and Disputed Uncontroverted Facts (ECF No. 81, 17 “DSUF”), several declarations with exhibits (ECF No. 82, “Delhauer Declaration” or “Delhauer 18 Decl.;” ECF No. 83, “Meyer Declaration” or “Meyer Decl.;” ECF No. 84, “Flores-Oster 19 Declaration” or “Flores-Oster Decl.”), a Request for Judicial Notice2 (ECF No. 85, “RJN”), a Notice 20 of Manual Filing of a Thumb Drive3 (ECF No. 86), an Evidentiary Appendix (ECF No. 87), and a 21 set of Objections to the expert declaration submitted by Plaintiffs (ECF No. 88). Also on February 22

23 2 Defendants request that the Court take judicial notice of the existence of prior orders in this action and prior 24 versions of the complaint. See RJN. Although the Court can generally take judicial notice of the existence of court records, which “can be accurately and readily determined from sources whose accuracy cannot 25 reasonably be questioned,” see Fed. R. Evid. 201(b), it appears to the Court that it is wholly unnecessary to do so here. Defendants do not cite to the documents, the prior versions of the complaint are no longer operative, 26 and the orders are already law of the case. Defendants’ Request for Judicial Notice (ECF No. 85) is DENIED as MOOT. 27 3 ECF No. 86 indicates that Defendants lodged a USB with three audio recording and transcripts of all three audio recordings. See ECF No. 86. The USB the Court received contained only audio recordings and no 28 1 24, 2023, Plaintiffs filed a Statement of Uncontroverted Facts and Genuine Disputes (ECF No. 89, 2 “PSUF”) and three declarations with exhibits (ECF No. 90, “First Defoe Declaration” or “Defoe 3 Decl. 1;” ECF No. 914, “Second Defoe Declaration” or “Defoe Decl. 2;” ECF No. 92 “Navab 4 Declaration” or Navab Decl.”). 5 III. Applicable Law 6 Summary judgment should be granted if “the movant shows that there is no genuine dispute 7 as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 8 56(a). Material facts are those that may affect the outcome of the case. Nat’l Ass’n of Optometrists & 9 Opticians v. Harris, 682 F.3d 1144, 1147 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 10 477 U.S. 242, 248 (1986)). A dispute is genuine “if the evidence is such that a reasonable jury could 11 return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. 12 A court must view the facts and draw inferences in the manner most favorable to the non- 13 moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Chevron Corp. v. Pennzoil 14 Co., 974 F.2d 1156, 1161 (9th Cir. 1992). “A moving party without the ultimate burden of 15 persuasion at trial—usually, but not always, a defendant—has both the initial burden of production 16 and the ultimate burden of persuasion on a motion for summary judgment.” Nissan Fire & Marine 17 Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). To carry its burden of production, the 18 moving party must either: (1) produce evidence negating an essential element of the nonmoving 19 party’s claim or defense; or (2) show that there is an absence of evidence to support the nonmoving 20 party’s case. Id. 21 Where a moving party fails to carry its initial burden of production, the nonmoving party has 22 no obligation to produce anything, even if the nonmoving party would have the ultimate burden of 23 persuasion at trial. Id. at 1102–03. In such cases, the nonmoving party may defeat the motion for 24 summary judgment without producing anything. Id. at 1103. However, if a moving party carries its 25 burden of production, the burden shifts to the nonmoving party to produce evidence showing a 26

27 4 The Defoe Declaration and Second Defoe Declaration, and the exhibits submitted with each, are identical. 28 1 genuine dispute of material fact for trial. Anderson, 477 U.S. at 248–49. Under these circumstances, 2 the nonmoving party must “go beyond the pleadings and by [its] own affidavits, or by the 3 depositions, answers to interrogatories, and admissions on file, designate specific facts showing that 4 there is no genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal 5 quotation marks omitted). If the nonmoving party fails to produce enough evidence to create a 6 genuine issue of material fact, the motion for summary judgment shall be granted. Id. at 322 (“Rule 7 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 8 against a party who fails to make a showing sufficient to establish the existence of an element 9 essential to that party’s case, and on which that party will bear the burden of proof at trial.”). 10 A party cannot create a genuine issue of material fact simply by making assertions in its 11 legal papers. S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., 690 F.2d 1235, 12 1238 (9th Cir. 1982). Rather, there must be specific, admissible evidence identifying the basis for 13 the dispute. See id. “If a party fails to properly support an assertion of fact or fails to properly 14 address another party’s assertion of fact . . . the court may . . . consider the fact undisputed.” Fed. R. 15 Civ. P. 56(e)(2). The Court need not “comb the record” looking for other evidence; it is only 16 required to consider evidence set forth in the moving and opposing papers and the portions of the 17 record cited therein. Id. 56(c)(3); Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 18 2001). The Supreme Court has held that “[t]he mere existence of a scintilla of evidence . . . will be 19 insufficient; there must be evidence on which the jury could reasonably find for [the opposing 20 party].” Anderson, 477 U.S. at 252. To carry its ultimate burden of persuasion on the motion, the 21 moving party must demonstrate that there is no genuine issue of material fact for trial. Nissan Fire, 22 210 F.3d at 1102; Celotex Corp., 477 U.S. at 323. 23 / / / 24 / / / 25 / / / 26 27 28 1 IV. Findings of Fact5 2 A. Ruiz picked up J.A. 3 J.A. is Ruiz’s son. PSUF ¶ 342. As of January 2020, J.A. was approximately two and a half 4 years old. PSUF ¶ 154. 5 On January 10, 2020, J.A. was the house of Lilia Arechiga6 (“Arechiga”), J.A.’s maternal 6 grandmother. PSUF ¶ 152. Arechiga often babysat J.A., and Ruiz would often pick up J.A. around 7 9:00 pm. See id. ¶¶ 156, 158. Ruiz came to Arechiga’s house at approximately 9:00 p.m. on January 8 10, 2020, to pick up J.A. Id. Ruiz mentioned that he was tired but did not seem agitated or in any 9 way intoxicated to Arechiga. Id. ¶ 161. Ruiz stayed at Arechiga’s house for five minutes before 10 leaving with J.A. Id. ¶ 160. Although there was a car seat for J.A. at Arechiga’s house, which Ruiz 11 typically took when he picked up J.A., Ruiz did not take the car seat with him that day. Id. ¶¶ 159, 12 160. 13 Ruiz drove a 2005 Buick Rainer, which he owned and which was registered to him. Id. ¶ 153. 14 Ruiz left with J.A. in the Buick Rainer. See id. ¶ 160. The Buick Rainer had dark tint on all 15 windows. See id. ¶ 230. 16 B. Deputies Fakhoury and Becker. 17 Fakhoury and Becker are Sheriff’s Deputies for the San Bernardino County Sheriff’s 18 Department (“SBCSD”), and received training on the use of force, traffic stops, and other topics 19

20 5 The facts set forth below are taken from the Defendants Appendix of Undisputed and Disputed 21 Uncontroverted Facts and Plaintiffs’ Statement of Undisputed Facts. ECF Nos. 81, 89. To the extent that any statements of fact are omitted, the Court concludes they are not material to the disposition of this Motion. To 22 the extent that any of the facts set below were allegedly disputed by the opposing party, the Court concludes 23 that no actual dispute exists or that the adopted language resolves the dispute. In making these Findings of Fact, the Court considered Defendants’ Evidentiary Objections. ECF No. 88. The 24 Court did not find any evidence that Defendants objected to essential to finding any fact stated herein, except where explicitly stated otherwise. The Court need not reach any objection except those addressed in this 25 Order. 26 Pursuant to Rule 56(g), the Court finds that these facts are “established in the case.” See Fed. R. Civ. P. 56(g). 6 Plaintiffs’ SUF uses the spelling “Archiga.” See, e.g., SUF ¶ 156. The underlying documents cited 27 documents consistently use “Arechiga.” See, e.g., Navab Decl. ¶ 12 (describing “Deposition Transcript of Lilia Arechiga”); ECF No. 92 at 91 (Deposition Transcript of “LILIA ARECHIGA”). The Court will use 28 1 from the SBCSD. DSUF ¶¶ 135, 141, 147, 149. Neither deputy has been involved in any use of 2 deadly force shootings other than that of Ruiz. DSUF ¶¶ 145, 151. 3 On January 10, 2020, Fakhoury and Becker were scheduled to work from 7:00 p.m. to 7:00 4 a.m. DSUF ¶ 1. Their assignment was to patrol an area that included Muscoy, California. Id. At 5 approximately 9:00 p.m. they began to patrol around Muscoy. Fakhoury considered Muscoy to be, in 6 his experience, an area with a high crime rate. Id. 7 C. The Deputies’ Account of the Pursuit. 8 Fakhoury first saw Ruiz’s car while Fakhoury and Becker were driving northbound on Macy 9 Street and Ruiz was driving southbound on Macy Street. Id. ¶ 6. Fakhoury testified7 that he noticed 10 Ruiz’s car did not have a front license plate and had tinted windows, and, upon looking in his mirror, 11 noticed that Ruiz’s car had a broken taillight. See id.; see also ECF No. 92-1 at 16 (Fakhoury Tr. 12 73:03–10). Fakhoury then told Becker that he would attempt a traffic stop on Ruiz’s car. DSUF ¶ 6; 13 PSUF ¶ 169. Becker testified that Becker recalls Fakhoury mentioning that Fakhoury noticed the 14 lack of a front license plate but testified that Becker did not recall Fakhoury mentioning the tinted 15 windows or broken taillight. See AUF ¶ 6; ECF No. 92-1 at 88–89 (Becker Tr. 72:03–73:05). Becker 16 had not noticed Ruiz’s Buick at all or noticed the lack of a front license plate or the other issues 17 Fakhoury saw, but Becker agreed that they should perform a stop. PSUF ¶ 171; ECF No. 92-1 at 94 18 (Becker Tr. 73:06–08). Fakhoury and Becker made a U-turn and pursued Ruiz. DSUF ¶ 8. 19 Initially, Fakhoury and Becker did not turn on their overhead lights or sirens. DSUF ¶ 10. 20 Fakhoury and Becker testified that they observed Ruiz turn right. See id. Although their lights and 21 sirens were not on, Fakhoury testified that he concluded that Ruiz was evading them. See id.; ECF 22

23 7 Where the Court describes what Fakhoury and/or Becker testified to, the Court’s finding is only that 24 Fakhoury and/or Becker gave this testimony, not that underlying facts testified to are true. In a police shooting case, the Court “may not simply accept what may be a self-serving account by the police officer.” 25 Zion v. Cnty. of Orange, 874 F.3d 1072, 1076 (9th Cir. 2017). “Deadly force cases pose a particularly difficult problem under [the standards governing summary judgment] because the officer defendant is often the only 26 surviving eyewitness.” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). “Therefore, the judge must ensure that the officer is not taking advantage of the fact that the witness most likely to contradict his story—the 27 person shot dead—is unable to testify.” Id. The Court “must also look at the circumstantial evidence that, if believed, would tend to discredit the police officer's story, and consider whether this evidence could convince 28 1 No. 92-1 at 22–23 (Fakhoury Tr. 86:19–87:16). Becker testified that he observed Ruiz traveling over 2 80 miles per hour before Becker and Fakhoury turned on their lights. DSUF ¶ 11. Ruiz drove into a 3 shopping center parking lot and quickly exited it back onto a public road, with Fakhoury and Becker 4 following. PSUF ¶ 181. 5 Fakhoury and Becker initiated their lights and sirens.8 DSUF ¶ 10. ECF No. 92-1 at 23 6 (Fakhoury Tr. 87:13–16). Ruiz did not stop his vehicle once the lights and sirens were turned on. 7 DSUF ¶ 12. Becker communicated with police dispatch and requested assistance from sheriff’s 8 aviation. PSUF ¶ 187. Fakhoury testified that Ruiz drove over 80 miles per hour, with Fakhoury and 9 Becker in pursuit. DSUF ¶¶ 13, 15. Fakhoury and Becker drove on the wrong side of the road in 10 pursuit. PSUF ¶ 189. Becker testified that Fakhoury and Becker only crossed to the wrong side of 11 the road when “safe to do so.” Id.; ECF No. 92-1 at 108 (Becker Tr. 105:07–12). Ruiz also crossed 12 to the wrong side of the road during the pursuit. DSUF ¶ 17. Ruiz ran a red light and several stop 13 signs. DSUF ¶ 18. 14 Fakhoury and Becker noticed that Ruiz had a temporary license plate and attempted to call in 15 the plate number. DSUF ¶ 190. Ruiz had recently purchased the Buick on October 11, 2019. DSUF ¶ 16 191. Fakhoury and Becker had no information suggesting that the car was stolen. DSUF ¶ 193. 17 Fakhoury and Becker could not see inside the vehicle during the pursuit and did not know 18 how many people were in it. DSUF ¶ 193. 19 Fakhoury believed that Ruiz might be heading towards “the Wash,” a flood basin where 20 suspects fleeing police sometimes go in attempts to escape pursuit. DSUF ¶ 205; ECF No. 92-1 at 21 109–110 (Becker Tr. 111:19–112:17). If Ruiz had entered the wash, air support could have aided in 22 the pursuit. DSUF ¶ 205; ECF No. 92-1 at 111 (Becker Tr. 113:02–16). 23 D. The Undisputed Facts Regarding the Pursuit. 24 The pursuit continued for six to seven minutes. DSUF ¶ 19; PSUF ¶ 196. During the pursuit, 25 Becker made radio transmissions describing the vehicle’s speed and the infractions Ruiz was 26

27 8 Fakhoury testified that they turned on their lights and sirens before entering the shopping center parking lot, while Becker testified that they turned on their lights and sirens after exiting the parking lot. DSUF ¶¶ 183, 28 1 committing. PSUF ¶ 205. Fakhoury and Becker were aware that backup units were en route, 2 including both other police cars and air support. PSUF ¶ 204. 3 At 9:34 pm., Ruiz called Citaly Plasencia, and told her he was being followed by police. 4 PSUF ¶ 160. Citaly Plasencia is J.A.’s aunt. See id. ¶ 156. The call ended before the pursuit came to 5 its end. See PSUF ¶ 160. 6 The pursuit ended with Ruiz veering to the right and appearing to collide with some 7 mailboxes. DSUF ¶ 20. Fakhoury could hear other sirens approaching. PSUF ¶ 223. Another 8 sheriff’s deputy, Lopez, was only 50 yards behind Fakhoury and Becker, and Becker had seen Lopez 9 earlier during the pursuit. Id. 10 Fakhoury and Becker parked behind Ruiz’s Buick. PSUF ¶ 224. They were approximately 11 four to ten feet behind the Buick. DSUF ¶ 21; ECF No. 92-1 at 39 (Fakhoury Tr. 118:21–25); ECF 12 No. 92-3 at 23 (Delhauer Tr. 84:18–23). 13 E. The Deputies’ Account of the Shooting. 14 Fakhoury stepped out his car and stood behind the car’s open door, in the A frame of the 15 door. DSUF ¶ 21. Fakhoury drew his gun. DSUF ¶ 26. Becker exited on the other side of their car, 16 keeping one foot in the car. PSUF ¶ 225. Becker drew his gun and pointed it towards Ruiz, through 17 the back window of Ruiz’s Buick. Id. Fakhoury and Becker could not see inside the Buick. DSUF ¶ 18 23. 19 Fakhoury pointed his gun towards the Buick and said, “Let me see your f***ing hands.” 20 DSUF ¶ 29. Fakhoury was not aware of whether Ruiz heard this command. PSUF ¶ 230; ECF No. 21 92-1 at 47 (Fakhoury Tr. 128:16–19). 22 Ruiz’s then moved backwards towards Fakhoury and Becker’s car.9 DSUF ¶ 30. Fakhoury 23 and Becker each testified that Ruiz hit the police car and caused both Fakhoury and Becker to 24 25 9 Based on a review of the DSUF, PSUF, and the objections to each, the Court understands that this fact—that Ruiz’s car at least briefly moved backwards towards Fakhoury and Becker’s car—is not in dispute. Plaintiffs 26 dispute whether there was a collision (noting that Lopez did not witness one and there is little to no evidence of damage) and note that “Mr. Ruiz’s gear shift was not in the reverse gear after the shooting,” but do not 27 dispute that Ruiz put the vehicle in reverse and accelerated backwards. See Objections to DSUF ¶ 30. At the hearing, Plaintiffs confirmed that they do not dispute that the car moved backwards, but suggested a 28 1 stumble. PSUF ¶ 231. Fakhoury testified that he believed there was an imminent threat when he 2 purportedly saw Ruiz’s reverse lights turned on. DSUF ¶ 50. Becker testified that he believed that he 3 and Fakhoury would be run over or killed by Ruiz’s car or their own car being pushed by Ruiz’s car. 4 DSUF ¶ 41. 5 Fakhoury and Becker then fired their guns at Ruiz’s Buick. DSUF ¶ 34. Fakhoury testified 6 that as he was shooting, Ruiz continued accelerating backwards into the police car, and the “tires 7 were kicking up dirt.” DSUF ¶ 45; ECF No. 92-1 at 60–61 (Fakhoury Tr. 144:25–145:11). Fakhoury 8 testified that the police car was pushed one to two feet backwards from the impact with Ruiz’s Buick 9 and Ruiz continued acceleration during the shooting. DSUF ¶ 35. The police car was in park and 10 remained in park. PSUF ¶ 271. 11 Fakhoury and Becker began shooting at approximately the same time. PSUF ¶ 277. Fakhoury 12 recalls firing five to seven shots in rapid succession, without pausing between the shots. PSUF ¶ 280. 13 ECF No. 92-1 at 52–53 (Fakhoury Tr. 134:20–135:01). Becker fired fourteen shots in rapid 14 succession, also without pausing between the shots. PSUF ¶ 281; ECF No. 29-1 at 128–129 (Becker 15 Tr. 134:20–135:06). Becker stopped shooting when he ran out of ammunition, at which point he 16 reloaded and reassessed the situation. PSUF ¶ 281; ECF No. 29-1 at 129 (Becker Tr. 135:09–15). 17 Fakhoury and Becker each testified that as Ruiz’s Buick moved backwards towards their car, 18 they believed they could be injured or killed if they moved from the cover of their police car. DSUF 19 ¶ 47. Fakhoury remained in the A-frame of the door as he fired at Ruiz. PSUF ¶ 241. Becker 20 remained in the A-frame of the other door, and Fakhoury was aware of Becker’s position. Id. ¶ 273. 21 The A-frame of a police car door is generally considered the safest place for a deputy to be during a 22 traffic stop. PSUF ¶ 269. 23 When Fakhoury and Becker stopped shooting, Ruiz was slumped over in the driver’s seat. 24 PSUF ¶ 281. Ruiz perished as a result of the shooting. DSUF ¶ 62. 25 F. Deputy Lopez’s Account of the Shooting. 26 Lopez—the previously mentioned deputy who was close behind Fakhoury and Becker— 27 arrived at the scene as the shooting occurred. PSUF ¶ 236; ECF No. 92-2 at 14–15 (Lopez Tr. 28 53:02–54:01). He had been driving 60 to 80 miles per hour and stopped abruptly next to Ruiz’s 1 Buick. PSUF ¶¶ 235, 236. Lopez did not see white reverse lights activate on the Buick, did not see 2 the Buick moving backwards, did not see the Buick hit Fakhoury and Becker’s car, did not see 3 Fakhoury and Becker’s car move backwards, did not see the tires spinning, and did not see Becker or 4 Fakhoury fall backwards. PSUF ¶¶ 242–246; ECF No. 92-2 at 17–19 (Lopez Tr. 56:19–58:02). 5 Lopez did not consider using deadly force and did not perceive any threat to himself when he 6 arrived. PSUF ¶ 247; ECF No. 92-2 at 19 (Lopez Tr. 58:18–23). By the time Lopez exiting his 7 vehicle, the shooting had ended. DSUF ¶ 56. 8 G. Other evidence regarding the alleged collision and the shooting. 9 Audio recordings of the incident reveal that approximately two second after Fakhoury said 10 “Let me see your f***ing hands,” Fakhoury said “Oh my,” and approximately two second after that, 11 Fakhoury said “I’ma [sic.] shoot him.” See Ex. A-1 to ECF No. 86 (Fakhoury Belt Recording) at 12 5:40–6:00; see also Ex. B-1 to ECF No. 86 (Becker Belt Recording) at 5:48–5:56. Approximately 13 two second after that, Becker said, “Rammed our vehicle.” Ex. B-1 to ECF No. 86 (Becker Belt 14 Recording) at 5:52–6:00. Immediately after that, the deputies began shooting. See id. 15 Defendants’ expert, Delhauer, testified there is no way to tell from the evidence whether the 16 Buick made contact with Fakhoury and Becker’s car. PSUF ¶ 250. The on-scene police investigator, 17 Garrison, also was unable to confirm from the evidence whether a collision occurred. PSUF ¶ 259. 18 There was chipped paint on the Buick’s tow hitch, which could have come from a collision with the 19 police car or could have been pre-existing from everyday use of the car. PSUF ¶¶ 254–56. The Buick 20 had a cracked rear taillight, which similarly could have come from the accident or could have been 21 pre-exiting. PSUF ¶¶ 257, 258. Pictures from the accident scene show the cars very close together, 22 with a possible gap (of an inch or two at most) between the two cars’ bumpers, and no clear view of 23 the tow hitch. PSUF ¶ 252; ECF No. 92-3 at 54–66. The photos do not show any visible damage to 24 either car from a collision. PSUF ¶ 253; ECF No. 92-3 at 54–66. Defendants did not document any 25 damage to the police car, and the crime scene report does not note any damage. PSUF ¶¶ 261, 262. 26 No airbags deployed in either car. PSUF ¶ 265. The Buick contained a module that was supposed to 27 record any collision at more than five miles per hour, and the module recorded no data suggesting a 28 collision. PSUF ¶ 266. 1 H. The Aftermath of the Shooting. 2 After Fakhoury and Becker had stopped shooting, Fakhoury and Becker noticed J.A. in the 3 second row of the Buick. Id. ¶ 285. Fakhoury instructed J.A. to get out of the vehicle, and Becker 4 continued pointing his gun at the vehicle. Id. ¶ 287. Fakhoury continued pointing his gun towards the 5 driver’s seat, believing that Ruiz might still be a threat. Id. ¶¶ 288, 290. Lopez also continued 6 pointing his gun at the vehicle. Id. ¶ 292. 7 J.A. appeared two to five years old to Becker. Id. ¶ 289. Fakhoury attempted to get J.A. to 8 exit the vehicle, and, at one point, asked J.A. whether Ruiz was moving.10 Ex. A-1 to ECF No. 86 9 (Fakhoury Belt Recording) at 7:10-7:30. J.A. was removed from the car approximately seven to 10 eight minutes after the shooting. DSUF ¶ 59. 11 Becker requested medical responders via radio approximately fifteen seconds after the 12 shooting. DSUF ¶ 61; Ex. B-1 to ECF No. 86 (Becker Belt Recording) at 6:00–6:30. A medic 13 arrived at approximately 9:45 p.m. and pronounced Ruiz deceased at 9:49 p.m. DSUF ¶ 62. 14 Citaly Plasencia was informed by a Sheriff’s deputy that J.A. was in the vehicle, and she 15 came to the scene. Id. ¶ 302. Cindy Plasencia, J.A.’s mother, also came to the scene after being told 16 by Citaly Plasencia. Id. ¶¶ 303, 304. Cindy Plasencia asked if she could see J.A. but was told by the 17 Sheriff’s deputies she could not, even after explaining that she was the J.A.’s mother. Id. ¶ 305. J.A. 18 left in an ambulance.11 J.A. was not physically injured in the shooting, but was transported to a 19 hospital as a precaution. DSUF ¶ 60. 20 No weapon or gun was found in Ruiz’s car. PSUF ¶ 268. 21 I. Autopsy of Ruiz. 22 23

24 10 Although the parties’ submissions indicate that Fakhoury asked J.A. to “check” whether Ruiz was 25 “breathing,” PSUF ¶ 293, the Court’s review of the audio indicates that Fakhoury merely says “Is your dad moving, or no?” At the hearing, J.A.’s counsel confirmed that the Court’s understanding of the recording is 26 correct. 11 Plaintiffs submitted as an undisputed fact that Cindy Plasencia was threatened with arrest when she asked if 27 she could remove her son, J.A., from the ambulance. PSUF ¶ 306. The deposition transcript Plaintiffs submitted does not contain the pages cited in support of this fact. See ECF No. 92-1 at 147–151 (excerpt of 28 1 The Riverside County Coroner’s Office performed an autopsy on Ruiz on January 14, 2020. 2 DSUF ¶ 63. A sample of Ruiz’s blood was tested and found to be positive for: alcohol (0.053%), 3 methamphetamine (0.030 mg/L), delta 9 THC (marijuana, THC) (0.0046 mg/L and 0.026 mgL), and 4 a metabolite of cocaine (0.020 mg/L). DSUF ¶ 65. A sample of Ruiz’s urine was tested and found to 5 positive for: alcohol (0.081 g%), cocaine (0.012 mg/L, 3.890 mg/L, and less than .005 mg/L), 6 methamphetamine (1.610 mg/L and 0.273 mg/L), and THC (0.371 mg/L). DSUF ¶ 66. A sample of 7 Ruiz’s vitreous humor of the eye was tested and found to be positive for: alcohol (0.059% W/V); 8 Methamphetamine (0.166 mg/L); Cocaine (0.036 mg/L); Benzoylecgonine (0.081 mg/L); and 9 Cocaethylene (0.006 mg/L). DSUF ¶ 67. 10 J. Policies and Expert Opinions on the Policies. 11 SBCSD’s Policies (the “Policies”) advise that deputies should not shoot at a moving vehicle. 12 PSUF ¶ 275. Under the Policies, a deputy should have an identifiable target before shooting. Id. ¶ 13 283; ECF No. 29-1 at 83 (Becker Tr. 49:16–23). Fakhoury and Becker could not see into the car 14 when they began shooting and were not aware if there were passengers in the car. Id. ¶ 284. 15 The SBCDC found that none of Fakhoury or Becker’s actions had violated the Policies. Id. ¶ 16 309. Neither Fakhoury nor Becker were disciplined for the shooting of Ruiz. DSUF ¶¶ 146, 152. 17 Defoe, Plaintiffs’ expert, opined that they violated the Policies in several ways, and that 18 Fakhoury or Becker could have safely handled the situation if they had acted differently.12 Id. ¶¶ 19 310–330. Delhauer also opined that the pursuit of Ruiz was appropriate in the circumstances. DSUF 20 ¶ 98. Meyer, Defendants’ expert, opined that if Fakhoury’s and Becker’s testimony is believed, the 21 use of force was appropriate under the totality of the circumstances. DSUF ¶¶ 68–89. 22 K. Ruiz’s Mother’s Ties to the United States. 23 24

25 12 Defendants object to much of Dafoe’s testimony. See ECF No. 88. Defendants’ objections are, in summary, 26 that Dafoe should not opine on the ultimate question of whether the use of force was reasonable, and that the standard of reasonableness is not guided by police department policies. See id. The Court need not reach this 27 issue at this stage but will consider Defendants’ argument if a motion to exclude Defoe’s testimony is filed in advance of trial. At this stage, the Court finds that the portions of Defoe’s testimony summarized in the 28 1 Vasquez is Ruiz’s mother, and Ruiz was her eldest son. Id. ¶¶ 331, 353. Vasquez moved 2 from Mexico to the United States in 1989. Id. She resided in the United States from 1989 until 3 October 2019, when she left to Mexico for her mother’s funeral. Id. ¶¶ 332, 333; DSUF ¶ 124. 4 Vasquez currently resides in Tijuana, Mexico. DSUF ¶ 108. Vasquez testified that she intends to 5 return to the United States but does not have a date certain for this return. PSUF ¶ 358. She is a 6 citizen of Mexico, and not a citizen of the United States. DSUF ¶¶ 115, 116. She has a Mexican 7 passport and does not have an American passport. DSUF ¶¶ 120, 121. She has never owned 8 property, registered to vote, or had a driver’s license in the United States. DSUF ¶¶ 117–119. She 9 does not currently have a green card issued by the United States. DSUF ¶ 122. 10 Vasquez married Ruiz’s father, Jose Juan Ayon Romero (“Romero”) in Sacramento, 11 California in 2005. PSUF ¶ 335. Romero paid income tax in the United States. Id. ¶ 357. Vasquez 12 and Romero have been separated for six years. DSUF ¶ 130. Vasquez worked at a restaurant in 13 Rancho Cucamonga, California from 2009 until 2019. PSUF ¶ 337. 14 L. The Relationship Between Ruiz and the Plaintiffs. 15 Vasquez lived in a house with Ruiz from 2005 until 2019. Id. ¶ 338. Vasquez and Ruiz 16 vacationed together when he was a child. Id. ¶ 339. Vasquez was with Ruiz at J.A.’s birth. Id. ¶ 352. 17 Vasquez babysat J.A. at times before she left for Mexico. Id. ¶ 340. Vasquez had a good relationship 18 with Ruiz. Id. ¶ 353. Vasquez last saw Ruiz in person in October 2019. Id. ¶ 344. Vasquez spoke to 19 Ruiz on the afternoon of his death, and he stated that he would send her money. Id. ¶ 343. 20 Ruiz was a good father to J.A., was involved in J.A.’s life, and spent significant time with 21 J.A. Id. ¶ 342. Ruiz lived with Romero, Cindy Plasencia, and J.A. at the time of Ruiz’s death. Id. ¶¶ 22 362, 363. Romero paid in part for Ruiz’s funeral. Id. ¶ 366. 23 V. Discussion 24 A. Summary judgment is denied as to the first cause of action. 25 J.A.’s first cause of action is a Section 1983 claim for “unreasonable search and seizure— 26 excessive force.” See SAC ¶¶ 32–42. Defendants seek summary judgment on this claim. See Mot. at 27 5–13. For the reasons stated below, the Court finds that there are disputed issues of material fact on 28 this claim that preclude summary judgment. 1 i. Whether or not Defendants had probable cause to pull Ruiz over is not relevant to the first cause of action. 2 3 Defendants first argue that the undisputed facts show that Fakhoury and Becker were 4 justified in pulling over Ruiz and attempting to arrest him. See Mot. at 5–6. Plaintiffs dispute this 5 and argue that Fakhoury and Becker lacked probable cause for their initial decision to pursue Ruiz. 6 See Mot. at 13. 7 J.A.’s first cause of action alleges that Fakhoury and Becker engaged in an “unjustified 8 shooting and use of deadly force that was both excessive and unreasonable under the 9 circumstances.” SAC ¶ 34. Although the parties briefed the issue of probable cause as discussed 10 above, and Plaintiffs argue that the initial stop lacked probable cause, this cause of action concerns 11 only excessive force and not the initial stop. See id. The Court finds that the reasonableness of the 12 initial stop is not relevant to the first cause of action but is relevant to the state law claims as 13 discussed below. 14 ii. There are disputed issues of fact as to whether the force used was reasonable. 15 Excessive force claims are evaluated using an objective reasonableness standard, where the 16 finder of fact must decide whether “whether the officers’ actions are objectively reasonable in light 17 of the facts and circumstances confronting them, without regard to their underlying intent or 18 motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). The “proper application” of this test 19 “requires careful attention to the facts and circumstances of each particular case, including the 20 severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the 21 officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” 22 Id. at 396. Factors to consider include “the severity of the crime at issue, whether the suspect poses 23 an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest 24 or attempting to evade arrest by flight.” Id. 25 “Ultimately, the ‘most important’ Graham factor is whether the suspect posed an ‘immediate 26 threat to the safety of the officers or others.’” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011). 27 If the suspect poses such a threat, the officer may use deadly force to apprehend the suspect. Ting v. 28 United States, 927 F.2d 1504, 1510 (9th Cir. 1991). If a suspect does not pose a threat, the use of 1 deadly force to stop the suspect from escaping is constitutionally unreasonable. See Tennessee v. 2 Garner, 471 U.S. 1, 11 (1985). “A desire to resolve quickly a potentially dangerous situation,” 3 standing alone, “is not sufficient to justify a use of deadly force.” Deorle v. Rutherford, 272 F.3d 4 1272, 1281 (9th Cir. 2001). 5 “The question of the reasonableness of the force used in an arrest is usually for the jury.” 6 However, the trial court “must decide this issue on summary judgment where qualified immunity is 7 at issue.” White by White v. Pierce Cnty., 797 F.2d 812, 816 (9th Cir. 1986). In deciding a motion for 8 summary judgment, the Court must draw all inferences that the undisputed facts allow in favor of the 9 non-moving party. See Diebold, 369 U.S. at 655. Accordingly, in order to win summary judgment on 10 the issue of qualified immunity (and any other issue), Defendants must show that even viewing the 11 undisputed facts in the light most favorable to Plaintiffs, Defendants are entitled to qualified 12 immunity as a matter of law. 13 Here, Fakhoury and Becker each testified that they feared for their safety as Ruiz reversed 14 into their vehicle, immediately before firing their weapons. DSUF ¶¶ 40, 41. But a “simple statement 15 by an officer that he fears for his safety or the safety of others is not enough; there must be objective 16 factors to justify such a concern.” Mattos v. Agarano, 661 F.3d at 441–42. Based on the undisputed 17 facts in the record, a jury could find that a reasonable officer would not have viewed Ruiz as an 18 immediate threat sufficient for the use of deadly force. 19 There is a dispute of fact as to whether the Buick hit the police car at all, and if so, how hard 20 the Buick hit the police car, whether Ruiz continued accelerating into the police car after initial 21 impact, and whether Ruiz was still accelerating towards the police car when Fakhoury and Becker 22 began shooting. Fakhoury and Becker testified that all of this occurred, and that the impact from the 23 collision knocked them over and made them fear for their safety. DSUF ¶¶ 37–48. But, viewing the 24 facts in the light most favorable to Plaintiffs as required, other evidence could lead a jury to find the 25 Deputies’ testimony not credible and find that Ruiz did not crash into the police car, or that he did 26 not hit the police car at any significant speed, and that he did not continue accelerating after hitting 27 the car. There was no obvious damage to either vehicle suggesting a significant crash. PSUF ¶ 253; 28 ECF No. 92-3 at 54–66. No airbags deployed, and the Buick’s module did not record an impact. 1 PSUF ¶¶ 265, 266. A jury could also find that Ruiz accelerated towards the car, but had stopped and 2 was no longer a threat when Fakhoury and Becker began shooting. Lopez, who arrived during the 3 shooting, did not see anything that would support Fakhoury and Becker’s testimony on these issues. 4 See PSUF ¶¶ 242–246. Among other things, Lopez did not see Ruiz’s tires spinning during the 5 shooting, while Fakhoury testified that the tires were spinning and kicking up dirt during the 6 shooting. PSUF ¶ 244; ECF No. 92-1 at 60–61 (Fakhoury Tr. 144:25–145:11). Lopez also did not 7 see either Fakhoury or Becker fall. PSUF ¶¶ 241; 241. The on-scene investigator could not confirm 8 from the evidence whether a collision occurred, nor could Defendants’ expert witness. PSUF ¶¶ 250, 9 259. All of this could lead the jury to disbelieve Fakhoury and Becker and find that the vehicles did 10 not collide, or that if they collided, the collision was not as significant as Fakhoury and Becker 11 claimed. Such a finding could lead the jury to find that Fakhoury and Becker were objectively not in 12 any danger of being hit by the car. One possible finding is that Ruiz accelerated backwards briefly, 13 then stopped accelerating, and that Fakhoury and Becker began firing after he had stopped 14 accelerating, when it was clear that he was not a threat. 15 Other facts could also support a finding that Fakhoury and Becker were not in danger of 16 being hit by the car when they began shooting. Even taking Fakhoury and Becker’s testimony as 17 true, Ruiz hit their car, kept pushing against it, and only caused it to move one or two feet. DSUF ¶ 18 35. The police car was in park and remained in park. PSUF ¶ 271. Drawing all inferences in favor of 19 J.A., it is far from clear that such an incident could lead to either officer being run over. Further, it is 20 worth noting that each deputy was to the side of the car, not directly in the path of Ruiz’s car. See 21 DSUF ¶ 21; PSUF ¶ 225. A jury could find that if the car were pushed straight backwards, it would 22 be very unlikely to hit them. And if Ruiz had swerved around the car towards Fakhoury and Becker 23 (which might not even be possible given the angle), they were protected by the A-frame of their 24 doors, considered the safest place to be, and ready to fire if necessary. See PSUF ¶¶ 241, 269, 273. 25 And as discussed above, a jury could also find Fakhoury and Becker’s testimony not credible. 26 The other Graham factors should also be considered but are ultimately not dispositive. See 27 Graham, 490 U.S. at 396. The severity of the crime at issue—various alleged violations of the 28 vehicular code followed by an attempt to evade arrest—is not sufficient to justify a fatal shooting if 1 the deputies did not face an immediate threat. The fact that Ruiz sought to evade arrest by flight 2 weighs slightly towards justification for the force used, but similarly is not sufficient if there was not 3 an immediate threat. Whether the officer faced a threat is “the most important Graham factor,” and 4 because the jury could find the officers did not face such a threat, the jury could find that the force 5 used was not justified. See Mattos, 661 F.3d at 441. 6 Despite Defendants’ argument otherwise (see Mot. at 54), the evidence discussed above that 7 could support a finding of liability is more than a “scintilla.” See Anderson, 477 U.S. at 252. On the 8 factual record before the Court, the Court holds that a reasonable jury could find that Fakhoury and 9 Becker did not have an objectively reasonable fear of danger that would justify the use of deadly 10 force. 11 Defendants point to many other facts that could support a finding of a reasonable fear that 12 justified that shooting. To be clear, the Court’s holding here is not that the only possible finding 13 from a reasonable juror would be that the use of force was unjustified. A jury could find the use of 14 force justified on these facts. But Defendants are not entitled to summary judgment, and a jury must 15 decide whether Fakhoury’s and Becker’s actions were justified. 16 Defendants’ other arguments and citations to other case law are unavailing.13 First, 17 Defendants point to Sykes v. United States,14 where the Court held that when a suspect flees police in 18 a vehicle, “a lack of concern for the safety of others [is] an inherent part of the offense.” Sykes v. 19 United States, 564 U.S. 1, 8 (2011). Defendants argue that Ruiz’s flight shows he had a “willful 20 disregard for the lives of others,” and that “decisional authority permits officers to use deadly force 21 when necessary to protect the public.” Mot. at 8–9. Plaintiffs argue that to justify the use of deadly 22 23 24 13 Defendants argued that the testimony of purportedly unavailable witness “Maria” should not be considered. See Mot. at 12. The Court need not reach this issue, having found other evidence sufficient to create a triable 25 issue of fact. 14 Plaintiffs argue that Sykes was “overturned in its entirety” by Johnson v. United States, 576 U.S. 591 26 (2015). See Mot. at 16. Having reviewed both Sykes and Johnson, the Court finds that the portions of Sykes cited by Defendants are still binding law, and that Johnson only overturned other portions. See Johnson, 576 27 U.S. at 606 (“We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process. Our contrary holdings in James and Sykes 28 1 force, any flight has to reflect an intent to hit officers or be so reckless that it is endangering others. 2 Nothing in Sykes supports the notion that flight alone (and the lack of concern for others it shows) is 3 sufficient to justify deadly force, absent some ongoing risk to the safety of police officers or others. 4 The Court must still analyze the circumstances as a whole, and while the flight is one factor which 5 might a support a jury’s finding that Fakhoury’s and Becker’s actions were justified, flight is not 6 alone dispositive. 7 Second, Defendants note that in certain circumstances, a car should be considered a deadly 8 weapon, and that officers may be justified in using deadly force to protect themselves against a car. 9 See Mot. at 9–12. These broad statements are correct. But although a car “under certain 10 circumstances can constitute the type of threat that justifies an officer's shooting the driver,” this is 11 not the case in all circumstances, as the Ninth Circuit has recognized.15 See Acosta v. City & Cnty. of 12 San Francisco, 83 F.3d 1143 (9th Cir. 1996), abrogated on other grounds by Saucier v. Katz, 533 13 U.S. 194 (2001). On certain fact patterns, a reasonable jury can find that a moving car “was moving 14 or rolling sufficiently slowly that a reasonable officer in [the defendant’s] position would not have 15 perceived himself to be in danger of serious bodily harm.” Id. The Court finds that the facts here 16 could lead a jury to a similar conclusion—that even if the car moved shortly before or even during 17 the shooting, Fakhoury and Becker were not in danger, and thus their shooting of Ruiz was 18 unjustified. 19 Third, Defendants argue that after they were justified to use deadly force, they were justified 20 in continuing to use deadly force until the threat ended. See Mot. at 11 – 12. The Court need not 21 reach this issue, given the Court’s finding above that a jury could find that no amount of deadly 22 force was ever justified. The Court does note, however, that it appears there is a genuine issue of 23 24 25

26 15 The Court notes that as of the date of this Order, the state of Ninth Circuit law on this issue is even more clear. See Orn v. City of Tacoma, 949 F.3d 1167, 1174–75 (9th Cir. 2020) (“A moving vehicle can of course 27 pose a threat of serious physical harm, but only if someone is at risk of being struck by it” and there is no qualified immunity where an officer “was obviously not in harm’s way” and nevertheless fired his weapon). 28 1 material fact as to whether, assuming the shooting was justified at all, the Deputies continued 2 shooting beyond the point where the threat had subsided.16 3 iii. Defendants are not entitled to qualified immunity at this stage. 4 Even if an officer violates a constitutional right, the officer is entitled to qualified immunity 5 from a Section 1983 suit if “the unlawfulness of their conduct” was not “clearly established at the 6 time.” Villanueva v. California, 986 F.3d 1158, 1165 (9th Cir. 2021). “A law is clearly established if 7 at the time of the officer's conduct, the law was sufficiently clear that every reasonable official 8 would understand that what he is doing is unlawful.” Id. “While there does not have to be a case 9 directly on point, existing precedent must place the lawfulness of the conduct beyond debate.” Id. 10 (internal quotations and alterations omitted). 11 In determining whether police officers are entitled to qualified immunity, the Court must ask 12 two questions: “(1) Was the law governing the officer’s conduct clearly established? (2) Under that 13 law, could a reasonable officer believe that the conduct was lawful?” Case v. Kitsap County Sheriff’s 14 Dep’t., 249 F. 3d 921, 926 (9th Cir. 2001). As to the first question, although a case need not be 15 “directly on point for a right to be clearly established, existing precedent must have placed the 16 statutory or constitutional question beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) 17 (internal quotations omitted). Furthermore, “officials can be on notice that their conduct violates 18 established law even in novel factual situations.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). The 19 focus on a qualified immunity analysis is “whether the officer had fair notice that her conduct was 20 unlawful.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004). 21 Qualified immunity is “an immunity from suit rather than a mere defense to liability,” and so 22 it should be decided “at the earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 23 231–32 (2009). However, where there are factual disputes “surrounding the circumstances” of the 24 25

26 16 As part of J.A.’s first cause of action, Plaintiffs allege that “Defendants are liable for Mr. Ruiz’s injuries either because they were integral participants in the excessive use of force, or because they failed to intervene 27 to prevent those violations.” SAC ¶ 39 (emphasis added). Plaintiffs did not present any argument on this theory and the Court understands that the theory has been abandoned. See Mot. Summary judgment will be 28 1 alleged conduct, it may not be possible to resolve qualified immunity on summary judgment. See 2 Ting, 927. F.2d at 1504. 3 Here, Defendants argue that even if their conduct is found to have violated Ruiz’s rights, they 4 are entitled to qualified immunity. Defendants argue that no case law is directly on point as to the 5 constitutionality of what occurred here, and that the Supreme Court has cautioned courts about “too 6 generally evaluating qualified immunity.” See Mot. at 23 (citing City & Cnty. of San Francisco, 7 Calif. v. Sheehan, 575 U.S. 600, 613 (2015). Defendants explain Plaintiffs bear the burden of 8 showing that a right was violated and that the right was clearly established prior to its violation. See 9 Mot. at 24. 10 Here, in analyzing qualified immunity on Defendants’ Motion, we must construe disputed 11 facts in favor of J.A. See Villanueva, 986 F.3d at 1172–73. Construing all disputed facts in favor of 12 the J.A., the Buick never hit the police car and/or was not still accelerating backwards when 13 Fakhoury and Becker began shooting, contrary to the Defendants’ assertion in their Motion that 14 “The undisputed facts in the case at bar, however, demonstrate Mr. Ruiz continuously reversed his 15 vehicle such that the Deputies, who, consistent with their training, remained in the protected A- 16 frame of the patrol car, lost their position, stumbling and falling backwards as a result of that force.” 17 Motion at 25. It was clearly established at the time of the incident that police violate an individual’s 18 constitutional rights when unwarranted deadly force is used, as discussed above. See Garner, 471 19 U.S. at 11; Mattos, 661 F.3d at 441; Deorle, 272 F.3d at 1281. Similarly, it was clearly established at 20 the time of the incident that police officers are not justified in shooting at a suspect fleeing in a car if 21 the car “was moving or rolling sufficiently slowly that a reasonable officer in [the defendant’s] 22 position would not have perceived himself to be in danger of serious bodily harm.” Acosta, 83 F.3d 23 at 1147. In fact, the Ninth Circuit recognized that this issue was clearly established in 1996, and held 24 that if a jury found as fact that an officer who fired at a slow moving car was not in danger, the 25 officer would not be protected by qualified immunity. See id. at 1147–48. Defendants argued in the 26 hearing that one case is not a “robust consensus” sufficient for qualified immunity, but the Court 27 does not read Acosta as one outlier case. Rather, Acosta acknowledges that in 1996, there was 28 already a robust consensus of cases finding that firing at a car that does not pose danger was 1 unconstitutional, such that qualified immunity would not apply in 1996. See id. Here, the Court has 2 no choice but to find the same—if the jury were to find that Ruiz’s car did not pose a danger, which 3 is one finding that the facts could support, Fakhoury and Becker would not be protected by qualified 4 immunity. 5 Accordingly, the Defendants cannot meet their burden with respect to qualified immunity 6 because of the genuine disputes of fact that remain. As discussed above, a jury could find a set of 7 facts that would constitute a clear constitutional violation under the standards laid out above— 8 namely, the jury could find that when Fakhoury and Becker began shooting, there was no risk that 9 Ruiz’s car would hit them, either because he never hit the police car, had already stopped 10 accelerating, or because they were not in the vehicle’s path and protected by their parked car. 11 Shooting under these circumstances would constitute a constitutional violation that was clearly 12 established. There are other Ninth Circuit cases which demonstrate the limits of what constitutes an 13 unjustified use of force against a suspect in a vehicle. For example, where a suspect accelerated 14 towards a group of officers on foot, eventually hitting a police car, the officers did not commit a 15 constitutional violation when they began firing at the suspect as his car came towards them. Monzon 16 v. City of Murrieta, 978 F.3d 1150, 1160 (9th Cir. 2020).17 Defendants also point to Earl v. 17 Campbell, which held that “no controlling authority has placed deadly force off limits where an 18 officer on foot perceives a car accelerating in his direction” but Earl is an unpublished case and “not 19 precedent.” Earl v. Campbell, 859 F. App'x 73, 75 (9th Cir. 2021).18 But given the disputes of fact, 20 these cases are of no consequence at this stage. For the reasons described above, a jury could make 21 findings such that this case is not controlled by Monzon. 22 Finally, Defendants point to Estate of Ford v. Ramirez-Palmer, which held that triable issues 23 of fact do not alone preclude a finding of qualified immunity. See Est. of Ford v. Ramirez-Palmer, 24 25 26 17 The Court notes that Monzon was decided after the incident at issue. Nevertheless, it relied on previous Ninth Circuit caselaw, and is a useful reference point for what fact patterns might constitute a justified 27 shooting. The Court finds it appropriate to cite it for this purpose but would not rely on it alone as clearly established law at the time of the shooting. 28 18 1 301 F.3d 1043, 1047 (9th Cir. 2002). But in Ford, the Court held that even drawing all inferences in 2 favor of plaintiffs, to the extent there was a constitutional violation, the law was not clearly 3 established prior to the incident. See id. Not so here. The facts are such that a reasonable juror could 4 find a constitutional violation that was clearly established at the time of the incident. Hence, the 5 triable issues of fact preclude a finding of qualified immunity here. 6 For these reasons, Defendants are not entitled to qualified immunity on the claim for 7 excessive force. Defendants’ Motion is GRANTED IN PART as to the first cause of action: 8 Defendants cannot be liable for failing to intervene, but otherwise, this cause of action will proceed 9 to trial. 10 B. Summary judgment is denied as to the second cause of action. 11 Plaintiffs’ second cause of action is a Section 1983 claim for deprivation of life without due 12 process. See SAC ¶¶ 43–54. Defendants seek summary judgment on this claim. See Mot. at 33–35. 13 The Court finds that a reasonable jury could find for Plaintiffs on this claim, and so summary 14 judgment will be denied. 15 i. A reasonable jury could find a constitutional violation. 16 Parents “have a Fourteenth Amendment liberty interest in the companionship and society of 17 their children,” and children have a similar interest in the companionship and society of their parents 18 Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010); Smith v. City of Fontana, 818 F.2d 1411, 19 1418 (9th Cir. 1987), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 20 (9th Cir. 1999). Conduct that “shocks the conscience” in infringing upon these interests is actionable 21 as a due process violation. Wilkinson, 610 F.3d at 554. There are two different tests depending on the 22 context. See id. Where officials have time to deliberate, “deliberate indifference” is sufficient to 23 shock the conscience and trigger liability. See id. On the other hand, where “a law enforcement 24 officer makes a snap judgment” about an escalating situation, “his conduct may only be found to 25 shock the conscience if he acts with a purpose to harm unrelated to legitimate law enforcement 26 objectives.” Id. Plaintiffs appear to concede in their briefing that Fakhoury and Becker did not have 27 28 1 time to deliberate and argue only that Fakhoury and Becker acted with purpose to harm.19 See Mot. 2 at 36. 3 A reasonable jury could find that Fakhoury and Becker did not face danger and acted with a 4 purpose to harm Ruiz. The facts discussed in the section above could support such a finding. Also 5 relevant is Fakhoury’s statement “I’ma [sic.] shoot him,” captured on the audio recording. See Ex. 6 A-1 to ECF No. 86 (Fakhoury Belt Recording) at 5:40–6:00; see also Ex. B-1 to ECF No. 86 7 (Becker Belt Recording) at 5:48–5:56. This statement came after a brief moment of commotion. See 8 id. While the tape is susceptible to multiple interpretations, one possible interpretation is that 9 Fakhoury decided to shoot Ruiz after any threat had ended, and as retribution for Ruiz’s decision to 10 briefly back up towards Fakhoury and Becker or for allegedly fleeing in the first place. If shown, this 11 would constitute a purpose to harm unrelated to a legitimate law enforcement objective.20 See 12 Wilkinson, 610 F.3d at 354 (“a purpose to harm might be found where an officer uses force to bully a 13 suspect or ‘get even’”). Similarly, a jury could find that the number of shots fired, the delay in 14 seeking medical care, and leaving a toddler in a car for nearly ten minutes after a police shooting 15 was circumstantial evidence of a purpose to harm unrelated to a legitimate law enforcement 16 objective.21 17 ii. Defendants are not entitled to qualified immunity at this stage. 18 Defendants argue that qualified immunity shields them from this claim, and that even if there 19 was a violation, it was not of a clearly established right. This argument fails. The standard for 20 21

22 19 At the hearing, Plaintiffs stated that they do not concede as such, and argued that the time between 23 Fakhoury’s statement “I’ma shoot him” and the first shot (approximately two seconds) was time to deliberate. The Court need not reach this issue, as the analysis of purpose of harm is sufficient to deny this Motion. 24 20 Defendants argued in the hearing that the Court should not find a purpose to harm based solely upon the 25 shooting (relying on Wilkinson, 610 F.3d at 554) or on Fakhoury’s statement that he was going to shoot Ruiz in advance of shooting. The Court is not finding as such. Rather, the Court’s finding is that the tone and 26 timing of this statement, in the broader context, are susceptible to a finding of fact by the jury that Ruiz had a purpose to harm Ruiz. 27 21 Although the Ninth Circuit held in Gonzalez v. Anaheim, 747 F.3d 789, 797 (9th Cir. 2014), , that speculation as to improper motive is insufficient, the Court is aware of no authority which prohibits the jury 28 1 qualified immunity is the same as that discussed in detail above—Plaintiffs must show that a clearly 2 established right was violated. 3 The right to a protected relationship with family members is clearly established, as is the 4 general test for evaluating such claims. See Wilkinson, 610 F.3d at 354. However, there does not 5 appear to be much precedent addressing such claims in factual contexts like the one here, and neither 6 Defendants nor Plaintiffs provided binding cases that are factually close. This lack of caselaw does 7 not mean that the Court must grant summary judgment on qualified immunity. A “materially similar 8 case” is not necessary when faced with “‘an obvious case.’” White v. Pauly, 580 U.S. 73, 79-80 9 (2017); see also Brosseau, 543 U.S. at 199 (citing Hope, 536 U.S. at 738 for the proposition that 10 where a constitutional violation “was ‘obvious’ that there need not be a materially similar case for 11 the right to be clearly established”). The Court finds that interpreting the facts in the light most 12 favorable to Plaintiffs, this is a sufficiently obvious case that qualified immunity would not apply. 13 As discussed above, one possible interpretation of the facts is that Defendants were not in any real 14 danger, but used deadly force, and did so with intent to harm. 15 For these reasons, Defendants’ Motion is DENIED as to the second cause of action for 16 deprivation of life without due process. 17 C. Summary judgment is denied as to the third cause of action. 18 Plaintiffs’ third cause of action is a Section 1983 claim for interference with parent-child 19 relationship. See SAC ¶¶ 55–63. Defendants move for summary judgment on this claim. See Mot. at 20 37. Both Defendants and Plaintiffs discuss this claim only briefly—simply referencing the 21 arguments made on the previous two claims. See Mot. at 37–38. Because the Court found that a jury 22 could find for Plaintiffs on the previous claims, the Court also finds that a jury could find for 23 Plaintiffs on this claim. 24 For this reason, Defendants’ Motion is DENIED as to the third cause of action. 25 D. Summary judgment is denied as to the fourth cause of action. 26 J.A.’s fourth cause of action is a wrongful death claim brought under to California Civil 27 Procedure Code § 377.60 (“Section 377.60”). See SAC ¶¶ 64–70. Defendants move for summary 28 judgment on this claim. See Mot. at 38–40. 1 The standard for Section 377.60 claims is similar to the Graham analysis for the first cause 2 of action—the “reasonableness of an officer’s conduct is determined in light of the totality of 3 circumstances.” Hayes v. Cnty. of San Diego, 305 P.3d 252, 256 (Cal. 2013). In fact, “California’s 4 civil jury instructions specifically direct the jury, in determining whether police officers used 5 unreasonable force for purposes of tort liability, to consider the same factors that the high court has 6 identified and that the federal court’s instructions in this case set forth.” Hernandez v. City of 7 Pomona, 207 P.3d 506, 515 (Cal. 2009). However, in evaluating negligence claims for police 8 shootings under California law, juries may consider “tactical conduct and decisions leading up to the 9 use of deadly force,” which is a distinction from the federal law standard for evaluating Section 1983 10 claims. Hayes, 305 P.3d at 254, 262–63. Wrongful death claims may be based on allegedly negligent 11 conduct, and Plaintiffs’ SAC includes negligence as one theory supporting the wrongful death claim. 12 See Lattimore v. Dickey, 239 Cal. App. 4th 959, (2015) (“The elements of the cause of action for 13 wrongful death are the tort (negligence or other wrongful act), the resulting death, and the 14 damages”); SAC ¶ 66 (“This claim is based upon the fact that Defendants’ negligent, reckless and 15 wrongful acts and omissions . . . .”). 16 As discussed above, in applying the federal court standard, a jury could find for J.A. on the 17 excessive force claim. For the same reasons, the jury could find for J.A. on this claim. In addition, 18 the jury could take into account all of the pre-shooting conduct, including the initial decision to 19 pursue Ruiz and the deputies’ conduct during the pursuit. The inclusion of this conduct in the 20 analysis might provide further factual findings supporting liability. 21 Defendants’ Motion is DENIED as to the fourth cause of action for wrongful death. 22 E. Summary judgment is denied as to the fifth cause of action. 23 J.A.’s fifth cause of action is for assault and battery. See SAC ¶¶ 71–77. Defendants move 24 for summary judgment on this claim. See Mot. at 40. Defendants’ sole argument as to this claim is 25 that one essential element for a battery claim by a peace officer is the use of unreasonable force, and 26 incorporating the arguments on other claims, Plaintiffs cannot make this showing. See id. 27 As discussed above, the Court found that J.A. could make a showing of unreasonable force. 28 Accordingly, Defendants’ Motion is DENIED as to the fifth cause of action for assault and battery. 1 F. Summary judgment is denied as to the sixth cause of action. 2 J.A.’s sixth cause of action is action is for negligence. See SAC ¶¶ 78–84. Defendants move 3 for summary judgment on this claim. See Mot. at 4. 4 Defendants argue that the standard of review for this claim “follows federal law concerning 5 the use of force by law enforcement officers.” Mot. at 41 (citing Brown v. Ransweiler, 171 Cal. App. 6 4th 516, 526–28 (2009)). Plaintiffs argue that the standard for this claim is actually distinct from the 7 standard for Section 1983 claims, in that instead of focusing “narrowly on the moment when deadly 8 force in used,” a finder of fact analyzing a negligence claim may consider “tactical conduct and 9 decisions leading up to the use of deadly force.” See Mot. at 42 (citing Hayes, 305 P.3d at 262). As 10 discussed above, the Court finds that on a negligence claim, it is appropriate for the jury to consider 11 “tactical conduct and decisions leading up to the use of deadly force.” Hayes, 305 P.3d at 254. 12 For the same reasons discussed on the other claims, a jury could find that Defendants actions 13 were not “objectively reasonable based on the facts and circumstances.” See Brown, 171 Cal. App. 14 4th at 527. This finding could be based on the same facts as the Section 1983 causes of action, and 15 could be further supported by pre-shooting conduct, including the decision to pursue Ruiz and the 16 conduct during the pursuit. 17 For this reason, Defendants’ Motion is DENIED as to the sixth cause of action for 18 negligence. 19 G. Summary judgment is denied as to the seventh cause of action. 20 J.A.’s seventh cause of action is for a violation of the Bane Act. See SAC ¶¶ 85–92. 21 Defendants move for summary judgment on this claim. See Mot. at 43–44. Defendants’ sole 22 argument is that the Bane Act requires conduct that interferes with a constitutional or statutory right, 23 and for the reasons discussed on the other claims, Defendants did not violate any right. See Mot. at 24 44. This argument fails, for the same reasons as the similar arguments made on other claims. The 25 Court finds that a reasonable jury could find a violation of constitutional rights by the Defendants. 26 Accordingly, Defendants’ Motion is DENIED as to the Bane Act claim. 27 / / / 28 / / / 1 H. Ruiz’s mother Vasquez is a proper plaintiff. 2 Defendants argue that Ruiz is not a proper plaintiff in this action because she resides in 3 Mexico. The Court already ruled on this issue in its order regarding Defendants’ Motion to Dismiss. 4 ECF No. 39 (“MTD Order”). The Court held that Vasquez’s allegations—that she resided in the 5 United States for 25 years, that she left shortly before the events that led to this litigation, that her 6 children are American citizens, and that she wishes to return to the United States—were sufficient 7 for standing. See id. at 7. Now, the only difference is that Vasquez’s allegations are established facts. 8 See PSUF ¶¶ 331–40. Defendants appear to be relitigating an already-decided issue, and the Court 9 sees no reason to change its prior ruling. Even if the Court were to reconsider this ruling, it would 10 not side with Defendants. As the Ninth Circuit held in Ibrahim, a plaintiff does not automatically 11 forfeit the right to bring constitutional claims when he or she leaves voluntarily after establishing 12 connections with the United States. Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 996 (9th Cir. 13 2012). Where a plaintiff “did not intend to sever her established connection to the United States by 14 her voluntary departure,” the plaintiff may still bring constitutional claims if a connection was 15 previously established. Id. Here, Vasquez established a connection by living in the country for 25 16 years and did not intend to sever it when she left for a funeral and intended to return, as the Court 17 previously held. See MTD Order at 7. 18 Defendants also argue that non-resident aliens may not bring “indirect” Fourth Amendment 19 claims. See Mot. at 45. This issue was not directly addressed in the MTD Order. See MTD Order. 20 Defendants note that non- resident aliens may bring many other Constitutional claims, including 21 “direct claims under the Fourth Amendment,” but explain that no precedent recognizes a right to 22 bring indirect Fourth Amendment claims on behalf of others. See id. Defendants cite no binding 23 precedent prohibiting such claims. See id. Defendants cite two non-binding cases that addressed 24 different issues. The first held that claims cannot be brought by others on behalf of “non resident 25 alien minors” who “lack standing to enforce constitutional rights as their own,” a distinct question 26 from the one raised here. Estate of Garcia-Vasquez v. County of San Diego, No. 27 06CV1322LABLSP, 2006 U.S. Dist. LEXIS 94341 (S.D. Cal. Dec. 27, 2006). The second held that 28 a “longtime permanent resident” could assert a claim for the death of her daughter, despite being 1 | outside the United States when the death occurred, but that she would need to show at trial that she 2 | was in fact a longtime permanent resident. See Torre v. City of Salinas, No. C0900626RMW, 2010 3 | U.S. Dist. LEXIS 97725 (N.D. Ca. Sep. 27, 2010). Even if these were binding, neither would require 4 | the conclusion that Vasquez may not pursue her claim. Absent any authority suggesting this claim is 5 | not permitted, the Court holds that Vasquez may pursue her indirect Fourth Amendment claim. 6 I. Summary judgment is denied on the issue of punitive damages. 7 Plaintiffs seek punitive damages. See SAC at Prayer for Relief. Defendants move for 8 | summary judgment on this issue, arguing punitive damages are not warranted. 9 A jury in a Section 1983 case may assess punitive damages “when the defendant's conduct is 10 | shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference 11 | to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). Here, the Court 12 | finds that a reasonable juror could make such a finding. The facts that might support such a finding 13 | are similar to those that could support a finding that Fakhoury and Becker acted with a purpose to 14 | harm Ruiz, discussed in detail above. Defendants have not carried their burden of showing that they 15 | are entitled to summary judgment on this issue. Summary judgment is DENIED as to the question of 16 | punitive damages. 17 VI. Conclusion 18 For the reasons stated herein, Defendants’ Motion is GRANTED IN PART: 19 1. Plaintiff's first cause of action cannot proceed on a theory of failure to intervene. Summary 20 judgment is otherwise DENIED as to the first cause of action. 21 2. Summary judgment is DENIED as to the second, third, fourth, fifth, sixth, and seventh 22 causes of action. 23 3. Summary judgment is DENIED on the issue of punitive damages. 24 IT IS SO ORDERED. 25 Af 26 Dated: November 9, 2023 27 MAAME EWUSI-MENSAH FRIMPONG 28 United States District Judge