1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 TRACY PACHOTE, et al., 7 Case No. 21-cv-04097-SK Plaintiffs, 8 v. ORDER ON CROSS-MOTIONS FOR 9 SUMMARY JUDGMENT COUNTY OF CONTRA COSTA, et al., 10 Regarding Docket Nos. 74, 79 Defendants. 11

12 13 This matter comes before the Court upon consideration of the motion for partial summary 14 judgment filed by Plaintiffs Tracy Pachote (“Pachote”) and minor K.R.J. (“K.R.J.”) (collectively 15 (“Plaintiffs”) and the motion for summary judgment or, in the alternative, for summary 16 adjudication filed by Defendants County of Contra Costa, Deputy Stefanie Nelson (“Nelson”), and 17 Deputy Christopher Thomas (“Thomas”) (collectively, “Defendants”). Having carefully 18 considered the parties’ papers, relevant legal authority, and the record in the case, the Court hereby 19 DENIES Plaintiffs’ motion and DENIES IN PART AND GRANTS IN PART Defendants’ motion 20 for the reasons set forth below. 21 BACKGROUND 22 In this action, Plaintiffs Pachote and her minor child K.R. J bring claims against 23 Defendants for their conduct when they came to their house to investigate a telephone call Pachote 24 made to report gun shots she heard in the neighborhood. Nelson and Thomas went to Plaintiffs’ 25 home to investigate the gun shots, and Pachote was then arrested for battery of Nelson. The 26 charges against Pachote were later dropped. Further facts are discussed below in the analysis. 27 Pachote brings the following claims against Defendants Nelson and Thomas: (1) a claim 1 Amendment against Defendants Nelson and Thomas, (2) a claim under 42 U.S.C. § 1983 2 (“Section 1983”) for “Unlawful Seizure/Detention/Arrest” in violation of the Fourth Amendment 3 against Defendants Nelson and Thomas, (3) a claim under Bane Act, Cal. Civ. Code § 52.1 against 4 Defendants Nelson, Thomas, and County of Contra Costa, (4) a claim for battery under Cal. Penal 5 Code § 242 against Defendants Nelson and Thomas, (5) a claim for negligence under California 6 common law against Defendants Nelson and Thomas, and (6) a claim for “False 7 Imprisonment/False Arrest” under California common law against Defendants Nelson and 8 Thomas. (Dkt. No. 1 (Compl.). Plaintiff K.R.J. asserts only one claim for negligent infliction of 9 emotional distress against Defendants Nelson, Thomas, and County of Contra Costa. (Id.) 10 ANALYSIS 11 A. Applicable Legal Standard on Motion for Summary Judgment. 12 A principal purpose of the summary judgment procedure is to identify and dispose of 13 factually unsupported claims. Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986). Summary 14 judgment is proper “if the movant shows that there is no genuine dispute as to any material fact 15 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In considering 16 a motion for summary judgment, the court may not weigh the evidence or make credibility 17 determinations, and is required to draw all inferences in a light most favorable to the non-moving 18 party.” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). 19 The party moving for summary judgment bears the initial burden of identifying those 20 portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue 21 of material fact. Celotex, 477 U.S. at 323. An issue of fact is “genuine” only if there is sufficient 22 evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, 23 Inc., 477 U.S. 242, 248-49 (1986). A fact is “material” if it may affect the outcome of the case. 24 Id. at 248. If the party moving for summary judgment does not have the ultimate burden of 25 persuasion at trial, that party must produce evidence which either negates an essential element of 26 the non-moving party’s claims or that party must show that the non-moving party does not have 27 enough evidence of an essential element to carry its ultimate burden of persuasion at trial. Nissan 1 Once the moving party meets his or her initial burden, the non-moving party must go 2 beyond the pleadings and, by its own evidence, set forth specific facts showing that there is a 3 genuine issue for trial. Nissan., 210 F.3d at 1102. In order to make this showing, the non-moving 4 party must “identify with reasonable particularity the evidence that precludes summary judgment.” 5 Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). In addition, the party seeking to establish a 6 genuine issue of material fact must take care to adequately point a court to the evidence precluding 7 summary judgment because a court is “not required to comb the record to find some reason to 8 deny a motion for summary judgment.” Carmen v. San Francisco Unified School Dist., 237 F.3d 9 1026, 1029 (9th Cir. 2001) (citation omitted). If the non-moving party fails to point to evidence 10 precluding summary judgment, the moving party is entitled to judgment as a matter of law. 11 Celotex, 477 U.S. at 323. 12 B. The Parties’ Cross-Motions for Summary Judgment. 13 Plaintiffs move for partial summary judgment on Pachote’s claims under Section 1983 that 14 Nelson unlawfully detained and seized Plaintiff. Defendants move for summary judgment on: (1) 15 K.R.J.’s claim for negligent infliction of emotional distress; (2) Pachote’s Section 1983 claim for 16 seizure prior to the use of force; (3) Pachote’s Section 1983 claim based on her arrest by Nelson 17 (as well as Plaintiff’s state-law claims premised on Nelson’s arrest); (4) Pachote’s excessive force 18 claim under Section 1983 against Thomas; and (5) Pachote’s request for punitive damages against 19 Thomas. 20 Plaintiffs do not oppose Defendants’ motion on K.R.J.’s claim for negligent infliction of 21 emotional distress. (Dkt. No. 83 at 4, fn. 2.) Therefore, the Court GRANTS Defendants’ motion 22 as to this claim as unopposed and DISMISSES WITH PREJUDICE the claim by Plaintiff K.R.J. 23 for negligent infliction of emotional distress. The Court will address the remainder of the parties’ 24 motions in turn. 25 1. Seizure of Pachote Before Any Force – Knock and Talk. 26 The parties dispute whether Pachote can maintain a claim under Section 1983 for seizure 27 based on Nelson’s conduct before there was a physical confrontation between Pachote, Nelson, 1 Pachote alleges that Nelson broke through the gate leading to Pachote’s house, refused to leave 2 after Pachote told her to several times to leave, and grabbed Pachote to prevent her from 3 retreating into her home. (Dkt. No. 1 (Compl.), ¶¶ 2, 3, 5, 25-27, and 29.) Pachote’s claim for 4 unlawful seizure incorporates all allegations from the Complaint. (Id., ¶ 41.) 5 Despite the framing of the claim for unlawful seizure based on the entire series of events, 6 all the parties address the claim as if there are two separate and discrete claims – one before the 7 physical confrontation and one after. Here, though, there is only one claim. Therefore, the Court 8 must consider Pachote’s allegations regarding Nelson’s conduct before any physical confrontation 9 as part of her overall claim for unlawful seizure as opposed to a separate stand-alone claim for 10 unlawful seizure before the physical confrontation. 11 There is a factual dispute about the seizure based on the entire sequence of events. Pachote 12 stated in her deposition that she (Pachote) took no physical action against Nelson but merely 13 stated: “You want to be a smart ass bitch today, I see.” (Dkt. No. 74-1 (Deposition of Tracy 14 Pachote, attached as Exhibit 1 to the Declaration of Patrick Buelna) at 13:16-14:10.) Pachote 15 further testified that, immediately after that statement, Nelson “pushed up” on her arm, “giggled,” 16 and told Pachote that she was “under arrest for assaulting a police officer.” (Id. at 14:4-10.) In 17 contrast, Nelson stated in her declaration that she did not touch Pachote but that Pachote “reached 18 around my left shoulder and slammed the screen door on my back,” two times and that only after 19 Pachote had pushed and pulled Nelson did Nelson “use force to detain her.” (Dkt. No. 80-3 20 (Declaration of Stephanie Nelson, attached as Exhibit C to the Declaration of D. Cameron Baker) 21 at ¶¶ 11, 13).) Under Pachote’s version of the facts, based on the entire sequence of events, she 22 can maintain a claim for unlawful seizure based on nothing more than her insults. Duran v. City 23 of Douglas, Ariz., 904 F.2d 1372, 1378 (9th Cir. 1990) (“‘W]hile police. . . may resent having 24 obscene words and gestures directed at them, they may not exercise the awesome power at their 25 disposal to punish individuals for conduct that is not merely lawful, but protected by the First 26 Amendment.”); see also Mackinney v. Nielsen, 69 F.3d 1002, 1007 (9th Cir. 1995) (“Even when 27 crass and inarticulate, verbal challenges to the police are protected. . . . [officer] should have 1 to think otherwise.”). 2 Given this factual dispute, the Court denies the cross-motions for summary judgment by 3 Plaintiffs and Defendants on the purported claim for unlawful seizure, separate and apart from the 4 physical confrontation and formal arrest. 5 2. Pachote’s Claims Based on Nelson’s Arrest. 6 Nelson moves for summary judgment on Pachote’s Section 1983 claim and state-law 7 claims premised on the arrest based on the argument that Thomas and not Nelson made the arrest. 8 (Dkt. No. 80-3 at ¶ 19.) Thus, Nelson argues that she cannot be liable for this claim. However, 9 there are questions of fact, including Nelson’s own statement that she “began to use force to detain 10 Pachote.” (Dkt. No. 80-3, ¶ 14.) This fact indicates that Nelson was part of the arrest and thus 11 precludes summary judgment on this claim. 12 As noted above, an arrest based solely on insults violates the Fourth Amendment, and there 13 is a factual dispute about the reasons for Nelson’s actions. These facts, interpreted in the light 14 most favorable to Pachote, show that Nelson was involved in the arrest and that the arrest was 15 improper. Accordingly, the Court DENIES Defendants’ motion on Pachote’s claims premised on 16 her arrest. 17 3. Pachote’s Claim for Excessive Force by Thomas. 18 Defendants also move for summary judgment on Pachote’s claim for excessive force by 19 Thomas. Thomas claims that his use of force was justified because he only saw Pachote and 20 Nelson involved in a struggle and thus went to her assistance. (Dkt. No. 79 at page 28.) Thus, the 21 factual question is what Thomas saw or knew before he became involved in the physical 22 altercation with Pachote and Nelson. Pachote states that she did not use any force against Nelson 23 but that, without any provocation, Thomas went into Pachote’s home, pushed Pachote from 24 behind, and fell onto her back with his knees. (Dkt. No. 74-1 at 14:6-10; 15:3-5; 17:15-25; 18:22- 25 19:13.) Thomas testified that, when he first saw Nelson and Pachote, Nelson was on the porch 26 approximately three feet away from Pachote. (Dkt. No. 74-9 (August 24 and 25, 2020 Hearing 27 Transcript from People v. Pachote, attached as Exhibit 9 to the Buelna Decl.) at 56:8-19.) Thomas 1 after the push, he observed Pachote and Nelson engage in a physical struggle and that he then 2 assisted Nelson in controlling and hand-cuffing Pachote. (Dkt. No. 80-4 (Declaration of 3 Christopher Thomas, attached as Exhibit D to the Baker Decl.), ¶¶ 7-9.) However, Pachote 4 disputes that she pushed Nelson and instead testified that Nelson initiated the physical contact. 5 (Dkt. No. 74-1 at 16:4-10, 33:25-34:5.) Despite his testimony about what he observed, Thomas’s 6 initial call to dispatch regarding Pachote’s arrest was only for disturbing the peace and did not 7 include battery of a police officer or resisting arrest. (Id. at 57:4-8; 75:8-22; Dkt. No. 74-10 8 (Deposition of Christopher Thomas, attached as Exhibit 10 to the Buelna Decl.) at 64:13-65:8.) 9 Moreover, while there were numerous people outside when Thomas and Nelson handcuffed 10 Pachote, Thomas did not interview any of the neighbors as potential witnesses regarding the 11 incident. (Dkt. No. 74-10 at 59:16-60:12.) Approximately an hour and a half later, Thomas 12 changed the arrest to one for battery of a police officer. (Dkt. No. 74-9 at 77:2-78:7.) 13 Viewing these facts in the light most favorable to Pachote, a reasonable juror could find 14 that Thomas knew that there was no basis for arresting Pachote and merely fabricated a story to 15 support arresting Pachote to cover up for Defendants’ unprovoked, unjustified force against 16 Pachote. In other words, a reasonable juror could find that Thomas had no justification to use any 17 force against Pachote because he knew that she had not done anything illegal. Accordingly, the 18 Court DENIES Defendants’ motion as to Pachote’s excessive force claim against Thomas. 19 4. Qualified Immunity. 20 Nelson and Thomas also contend that they are entitled to qualified immunity on Pachote’s 21 Section 1983 claims. The doctrine of “qualified immunity shields individual officers from 22 liability for civil damages insofar as their conduct did not violate clearly established constitutional 23 rights of which a reasonable person would have known.” Kirkpatrick v. County of Washoe, 843 24 F.3d 784, 788 (9th Cir. 2016) (internal quotation marks and alterations omitted). “Summary 25 judgment on qualified immunity is not proper unless the evidence permits only one reasonable 26 conclusion.” Munger v. City of Glasgow Police Dep’t., 227 F.3d 1082, 1087 (9th Cir. 2000). The 27 court must determine “(1) whether there has been a violation of a constitutional right; and (2) 1 of Lopez v. Gelhaus, 871 F.3d 998, 1005 (9th Cir. 2017). A constitutional right is “clearly 2 established” at the time of the incident if “the contours of that right [are] sufficiently clear that a 3 reasonable officer would understand that what he is doing violates that right.” Anderson v. 4 Creighton, 483 U.S. 635, 640 (1987). 5 Generally, a clearly established right cannot be determined at a high level of generality. 6 Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). However, some cases involve “conduct so clearly 7 and obviously wrong that the conduct itself unmistakably ‘should have provided [defendants] with 8 some notice’ that their alleged conduct violated their targets' constitutional rights.” Hardwick v. 9 County of Orange, 844 F.3d 1112, 1120 (9th Cir. 2017) (quoting Hope v. Pelzer, 536 U.S. 730, 10 745 (2002) (holding social workers were not entitled to qualified immunity when they perjured 11 testimony and fabricated evidence). 12 i. Unlawful Seizure. 13 Defendants argue that qualified immunity applies to Nelson’s conduct before any physical 14 confrontation, but Pachote only has one claim for unlawful seizure that extends from the time 15 Nelson first encountered Pachote on her front porch to the time Pachote was arrested. Defendants 16 do not argue that they are entitled to qualified immunity on Pachote’s claim for seizure to the 17 extent it is premised on her arrest. Instead, they focus on the allegations before the formal arrest. 18 However, as discussed above, the Court cannot grant summary judgment on a claim which does 19 not actually exist in Plaintiffs’ Complaint as a stand-alone, separate claim. Because Defendants do 20 not even move for qualified immunity on Pachote’s arrest (which is part of Plaintiff’s unlawful 21 seizure claim), the Court DENIES Defendants’ motion as to qualified immunity on Pachote’s 22 claim for unlawful seizure. 23 Additionally, as a separate and independent reason for denying qualified immunity on 24 Pachote’s claim for unlawful seizure, Pachote disputes that she initiated any physical contact with 25 Nelson. As discussed above, she contends Nelson initiated physical contact with her. (Dkt. No. 26 74-1 at 14:6-10; 15:3-5; 16:4-10, 17:15-25; 18:22-19:13, 33:25-34:5.) Taking Plaintiff’s version 27 of the events as true, there are questions of fact which preclude the Court from finding Nelson is 1 438 F. Supp. 3d 1120, 1137-38 (S.D. Cal. 2020) (finding no qualified immunity based on 2 questions of fact regarding unlawful seizure and existence of probable cause); Cupp v. Smith, 2022 3 WL 541177, at *4-5 (N.D. Cal. Feb. 23, 2022) (finding no qualified immunity because there were 4 “triable issues of fact as to whether defendant violated plaintiff’s Fourth Amendment rights”). 5 ii. Excessive Force. 6 Defendants argue that Thomas is entitled to qualified immunity on Pachote’s claim against 7 him for excessive force. In their motion, Defendants focus on their version of the facts, even 8 though there is a disputed issue of fact about the events leading to the use of force. Here, the 9 Court must consider the facts and inferences from them in the light most favorable to Plaintiffs. 10 As stated above, a reasonable juror could find that Thomas knew that there was no basis for 11 arresting Pachote and merely fabricated a story to support arresting Pachote to cover up for 12 Defendants’ unprovoked, unjustified force against Pachote. If true, a reasonable officer would 13 know that it would violate Pachote’s clearly established Fourth Amendment rights to use force to 14 arrest her without probable cause but as a way to cover up Nelson’s and Thomas’ unprovoked, 15 unjustified use of force against Pachote. When an officer fabricates a basis to arrest an individual, 16 courts have had no trouble finding qualified immunity is inapplicable. Hope, 536 U.S. at 745 (no 17 qualified immunity when defendants perjured testimony and fabricated evidence); see also 18 Devereaux v. Abbey, 263 F.3d 1070, 1075 (9th Cir. 2001) (finding it “virtually self-evident” that a 19 “constitutional due process right not to be subjected to criminal charges on the basis of false 20 evidence that was deliberately fabricated by the government” was clearly established); Franklin v. 21 Mally, 2019 WL 2548687, at *7 (N.D. Cal. Jun. 20, 2019) (“it is obvious to any reasonable officer 22 that they cannot cite a suspect based on knowingly false information, from which a prosecutor 23 would file charges.”) Accordingly, the Court DENIES Defendants’ motion for qualified immunity 24 on Pachote’s claim for excessive force against Thomas. 25 5. Punitive Damages Against Thomas. 26 A jury may award punitive damages for a Section 1983 claim of excessive force either 27 “when a defendant’s conduct was driven by evil motive or intent, or when it involves a reckless or 1 Cir. 2005) (citation and internal quotation marks omitted); Smith v. Wade, 461 U.S. 30, 33 (1983). 2 || Courts have denied summary adjudication on the issue of punitive damages when there were 3 factual disputes regarding the use of excessive force. See Johnson vy. County of San Bernardino, 4 || 2020 WL 5224350, at *30 (C.D. Cal. June 24, 2020) (finding that if a jury determined that the 5 officer “engaged in excessive force, a factfinder may tie a punitive damages finding to that 6 conclusion”); Smith v. County of Orange, --- F. Supp. 3d ---, 2023 WL 4680798, at *20 (C.D. Cal. 7 June 23, 2023) (“This Court ‘is not inclined to take the question of punitive damages out of the 8 factfinder’s hands where there are still viable claims for, among other things, an unreasonable 9 seizure and excessive force... .””) (quoting Johnson, 2020 WL 5224350, at *30). 10 Here, as discussed above, there are questions of fact which preclude granting summary 11 || judgment on the excessive force claim against Thomas. Moreover, viewing the evidence in the 12 || light most favorable to Pachote, a jury could find that Thomas had a reckless or callous 5 13 indifference to Pachote’s constitutional rights. Accordingly, the Court DENIES Thomas’ motion 14 as to punitive damages. 3 15 CONCLUSION a 16 For the foregoing reasons, the Court DENIES Plaintiff’s motion for partial summary 3 17 || judgment and GRANTS IN PART AND DENIES IN PART Defendants’ motion for summary 18 || judgment or, in the alternative, for summary adjudication. The Court GRANTS Defendants’ 19 || motion as to K.R.J.’s claim for negligent infliction of emotional distress and DENIES Defendants’ 20 || motion as to the remainder of Plaintiffs’ claims. 21 IT IS SO ORDERED. 22 Dated: November 3, 2023 23 hadhas. lane

ALLIE KIM

24 United States Magistrate Judge 25 26 27 28