Case 2:10-cv-08011-GW-PLA Document 1 Filed 10/25/10 Page 1 of 15 Page ID #:4

1 Dan Stormer (S.B. #101967) Virginia Keeny (S.B. #1395682
2 HADSELL STORMER KEENY RICHARDSON & RENICK, LLP
3 128 North Fair Oaks Avenue, Ste. 204 Pasadena, CA 91103-3645
4 Tel: (626) 585-9600 Fax: (626) 577-7079
5
Attorneys for Plaintiff
6 Michael Holguin

FILED ClERl<, U.S. DISTRICT COURT

OCT 2 5 2010

CENTRA\. DISTRICT OF CALIFORNIA

BY

DEPUTV

7

8

9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11

12 MICHAEL HOLGUIN,
13 Plaintiff,
14 vs.
15
COUNTY OF LOS ANGELES, LOS 16 ANGELES COUNTY SHERIFF'S
DEPARTMENT, SHERIFF LEE BACA, 17 DEPUTY RICO, DEPUTY FERNANDO
LUVIANO, DEPUTY LASCANO, 18 AND DOES 1-~,

19

Defendants.

CaseN<{;V 10-8 01 ~l.IW)
COMPLAINT FOR DAMAGES 1. VIOLATIONS OF CIVIL RIGHTS
- 42 U.S.C. § 1983 -Excessive Force 2. Cal. Civ Code§ 52.1 3. Battery 4. Intentional Infliction of Emotional Distress

20

5. Negligence

21 DEMAND FOR JURY TRIAL
22

23

24

25

26

27

28

COMPLAINT FOR DAMAGES

Case 2:10-cv-08011-GW-PLA Document 1 Filed 10/25/10 Page 2 of 15 Page ID #:5

1

JURISDICTION AND VENUE

2

1.

This is a police misconduct action filed pursuant to 42 U.S.C. § 1983. The

3 Court has jurisdiction under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. §

4 1343(3) (civil rights). Venue lies in the Central District of California, the judicial district

5 in which the claim arose, pursuant to 28 U.S.C. § 1391(b). Plaintiffs state law claims for

6 relief are within the supplemental jurisdiction of the Court, as authorized by 28 U.S. C. §

7 1367.

8

PARTIES

9

2.

Plaintiff Michael Holguin is a competent adult, residing in the County of

10 Los Angeles. He is not currently in the custody of any correctional facility.

11

3.

Defendant County of Los Angeles was and is a legal political entity

12 established under the laws of the State of California, with all the powers specified and

13 necessarily implied by the Constitution and the laws of the State of California and

14 exercised by a duly elected Board of Supervisors and/or their agents and officers.

15

4.

Defendant Los Angeles County Sheriffs Department is a public agency

16 subject to suit herein.

17

5.

Defendant Lee Baca is the Sheriff of Los Angeles County.

18

6.

Defendant Deputy Rico is an employee of the Los Angeles County Sheriffs

19 Department.

20 · 7.

Defendant Deputy Fernando Luviano is an employee of the Los Angeles

21 County Sheriffs Department.

22

8.

Defendant Deputy Lascano is an employee of the Los Angeles County

23 Sheriffs Department.

24

9.

The true names of Defendant Does 1 through 20, inclusive, are presently

25 unknown to Plaintiff, who therefore sues each of these Defendants by such fictitious

26 names. Upon ascertaining the true identity of Doe Defendants, Plaintiff will amend this

27 complaint, or seek leave to do so, by inserting the true name in lieu of the fictitious

28 name. Plaintiff is informed and believes, and on the basis of such information and belief

1

COMPLAINT FOR DAMAGES

Case 2:10-cv-08011-GW-PLA Document 1 Filed 10/25/10 Page 3 of 15 Page ID #:6

1 alleges, that each Doe Defendant is in some manner responsible for the injuries and

2 damages herein alleged.

3

10. Plaintiff exhausted his administrative remedies before filing suit by filing

4 the appropriate claim pursuant to California Government Code§ 910. He also exhausted

·5 any existing grievance procedure available at the Men's Central Jail within the time

6 period provided by jail rules and procedures.

7

FACTUAL ALLEGATIONS

8

A.

General Allegations re Policy and Practice

9

11. Plaintiff is informed and believes, and on the basis of such information and

10 belief alleges, that defendants County ofLos Angeles, Los Angeles County Sheriffs

11 Department, and Sheriff Lee Baca, with deliberate indifference, gross negligence, and

12 reckless disregard for the safety, security, and constitutional and statutory rights of

13 plaintiff and all persons similarly situated, maintained, enforced; tolerated, permitted,

14 acquiesced in, and applied policies, practices, or customs of, among other things:

15

a. .Subjecting persons to violations of their rights to be free from

16 excessive force and denial of due process;

17

b. Selecting, retaining, and assigning officers with demonstrable

18 propensities for excessive force, violence, dishonesty, and other misconduct;

19

c. Failing to adequately train, supervise, and control officers in the

20 practice of law enforcement;

21

d. Failing to adequately discipline officers involved in misconduct;

22

e. Permitting officers to have extended contact with inmates in areas of

23

the jail which are not monitored with video surveillance or visible

24

from areas staffed by supervisory personnel, thereby creating zones

25

where officers believe they have free rein to engage in excessive

26

force against inmates;

27

f. Allowing seriously overcrowded conditions in the Men's Central Jail

28

which causes officers to engage in excessive force so as to control the

2

COMPLAINT FOR DAMAGES

Case 2:10-cv-08011-GW-PLA Document 1 Filed 10/25/10 Page 4 of 15 Page ID #:7

1

inmate population;

2 and

3

g. Condoning and encouraging officers in the belief that they can violate

4 the rights of persons such as plaintiffwith impunity, and that such conduct will not

5 adversely affect their opportunities for promotion and other employment benefits.

6

12. Plaintiff is informed and believes and thereupon alleges that the official

7 policymakers for the County of Los Angeles and the Los Angeles County Sheriffs

8 Department knew or reasonably should have known that their deputies have used

9 excessive force on, and violated the due process rights of various individuals, and that

10. they have been deliberately indifferent in the training and supervision of their police

11 officers. Despite this knowledge, defendants failed to take any steps to remedy these

12 violations of constitutional and statutory authority, as well as of the Los Angeles County

13 Sheriffs Department's own written policies, through adequate hiring, training,

14 supervision and/or monitoring. In so doing, defendants exhibited deliberate indifference

15 to plaintiffs constitutional rights.

16

13. Plaintiff is informed and believes, and on the basis of such information and

17 belief alleges, that defendants County of Los Angeles and the Los Angeles County

18 Sheriffs Department ordered, authorized, acquiesced in, tolerated, or permitted other

19 defendants herein to engage in the unlawful and unconstitutional actions, policies,

20 practices, and customs set forth in the preceding paragraphs. Defendants' conduct as

21 alleged herein constitutes a pattern of constitutional violations based either on a

22 deliberate plan by defendants or on defendants' deliberate indifference, gross negligence,

23 or reckless disregard for plaintiffs safety, security, and constitutional and statutory

24 rights.

25

B.

The Incident

26

14. Plaintiff Michael Holguin was detained in the Los Angeles County Jail,

27 Men's Central Jail, commencing on or about October 6, 2009. During his first three

28 weeks in the jail, he was housed in a one-man cell in unit 3500. As with other inmates in

3

COMPLAINT FOR DAMAGES

Case 2:10-cv-08011-GW-PLA Document 1 Filed 10/25/10 Page 5 of 15 Page ID #:8

1 3500 during that period, he was not given a shower for approximately two weeks. On

2 October 18, 2009, he was finally let out of his cell for a shower. After being moved

3 towards the shower area, Mr. Holguin was told he would not be allowed to take a

4 shower. When he asked why he could not shower, ·one of the deputies, who plaintiff

5 believes to be named Deputy Luviano or Deputy Lascano, stated that he would not be

6 · getting a shower. The same guard stated, "turn around and I'll tell you why." Mr.

7 Holguin obeyed by turning around whereupon hewas handcuffed by Deputy

8 Luviano/Lascano behind his back. This same deputy then moved Mr. Holguin to a

9 nearby area where he shoved him face first into the bars.

1 0

15. After slamming Holguin into the bars, Deputy Luviano/Lascano began to

11 beat him on his rib cage. Deputy Luviano/Lascano then struck Mr. Holguin in the head

12 with a hard object and Mr. Holguin fell to the floor. Deputy Luviano/Lascano continued

13 to hit him with the hard object after he had fallen to the floor. Mr. Holguin curled up to

14 protect himself from the blows, but Luviano/Lacsano continued to hit or kick him. He

15 was struck repeatedly on his legs, ankle and his head. Deputy Lliviano/Lacsano kept

16 stating, "stop reisisting," though Mr. Holguin was not resisting and was already

17 handcuffed behind his back.

18

16. Another deputy, who plaintiff believes was named Deputy Rico, joined in

19 the beating at this time. Deputy Luviano/Lascano leaned over him and sprayed pepper

20 spray in his face and then proceeded to take his thumb and rub the pepper spray into his

21 eyes to make sure he felt effect of the caustic spray. Deputy Rico began to pull at Mr.

22 Holguin and to drag him around the floor. Although Mr. Holguin could no longer see as

23 a result of the pepper spray and searing pain in his eyes, he continued to receive blows to

24 his body and legs. At some point during the unprovoked beating, other deputies arrived.

25 None of those deputies said anything to enquire what had happened or to restrain Rico or

26 Luviano/Lacsano from continuing to hit Mr. Holguin and roughly shove him about the

27 floor.

28

17. During this unprovoked attack, Deputies Luviano/Lascano and Rico used

4

COMPLAINT FOR DAMAGES

Case 2:10-cv-08011-GW-PLA Document 1 Filed 10/25/10 Page 6 of 15 Page ID #:9

1 excessive and unreasonable force against Mr. Holguin, including hitting him with a

2 flashlight, kicking and beating him in the ribs, head, torso, and legs. At no point during

3 this assault did Mr. Holguin resist. He was handcuffed at all times and posed no threat to

4 any of the deputies.

5

18. As a result of this beating, Mr. Holguin suffered severe injuries, including

6 but not limited to several deep wounds and lacerations on his head, his right ankle was

7 broken in two places, and his left knee was opened to the bone, among other injuries.

8 These injuries were sufficiently severe to require extended hospital care, staples and

9 stitches for the several wounds to his head and eyes, and orthoscopic surgery for his left

10 knee. He was also required to wear a cast for the two breaks to his ankle for an extended

11 period of time.

12

19. Sometime later in the day on October 18, 2009, Mr. Holguin was taken to

13 the medical ward in the jail and then to the infirmary at the Twin Towers facility where

14 he received preliminary treatment. He received eight suture staples in the center of his

15 head, and four stitches to the right eyebrow. When it was revealed that he had a broken

16 tibia, he was transferred to LA County - USC Medical Center. Deputy Rico

17 accompanied him in the ambulance which transferred him to LA-USC Medical Center.

18 During that trip, Deputy Rico threatened Mr. Holguin, taunting him on several occasions,

19 "Bet you won't ask 'why' anymore, will you?" Over the following days, he was fitted

20 with a cast and required to undergo orthoscopic surgery for the injuries to his left knee.

21

20. After receiving medical care at the hospital, Mr. Holguin was returned to the

22 MCJ, and placed on a 29 day loss of privileges, further punishing him and isolating him.

23 During this period of time, he was confined to a cell which had no grab bars or other

24 assistive equipment and routinely was denied the use of crutches or a wheelchair.

25 Because his leg was in a cast, he either had to drag himself around his cell or place

26 weight on his cast, causing him pain. When he was required to leave his cell for a

27 shower or other inmate movement, on most occasions he was not given any assistive

28 devices, causing him considerable pain and discomfort. His requests for a crutch or cane

5

COMPLAINT FOR DAMAGES

Case 2:10-cv-08011-GW-PLA Document 1 Filed 10/25/10 Page 7 of 15 Page ID #:10

1 to assist him as he moved around his cell and in the hallways were ignored by all but one

2 of the guards. These additional injuries were a foreseeable consequence of the severe

3 beating he was administered by the guards.

4

DAMAGES

5

21. By reason of the aforementioned acts of defendants, plaintiff was injured in

6 his health, strength and activity and has sustained and in the future will continue to

7 sustain great mental pain and shock to his nervous system, as well as anxiety, anguish,

8 humiliation, and emotional distress, all to his damage in an amount according to proof.

9

22. By reason of the aforementioned acts of defendants, and each of them,

10 plaintiff was or will be required to receive medical care and treatment, and by reason

11 thereof, will incur expenses related thereto in an amount to be proven at trial.

12

23. By reason of the aforementioned acts of defendants, and each of them,

13 plaintiff did or will lose future income, wages and other financial benefits in an amount

14 to be proven at trial.

15

24. Defendants' acts were done and committed by each defendant knowingly,

16 deliberately, and maliciously, with the intent to oppress, injure, and harass plaintiff, and

17 with reckless indifference to the civil rights, personal security and safety of plaintiff, and

18 by reason thereof, plaintiff prays for punitive and exemplary damages from and against

19 the individual defendants, and each of them, in an amount to be proven at trial.

20

FIRST CLAIM FOR RELIEF- Excessive Force

21

(Fourth Amendment, 42 U.S.C. § 1983)

22

(Plaintiffv. All Defendants)

23

25. The conduct complained of herein was undertaken pursuant to the policies,

24 practices and customs of the Los Angeles County Sheriffs Department, an agency of the

25 County of Los Angeles, and was sanctioned and approved by each of the individual

26 named defendants, including the Doe defendants.

27

26. Defendants, acting under color of state law and through their policies,

28 practices and customs, deprived plaintiff of rights, privileges, and immunities secured by

6

COMPLAINT FOR DAMAGES

Case 2:10-cv-08011-GW-PLA Document 1 Filed 10/25/10 Page 8 of 15 Page ID #:11

1 th~ Constitution and laws of the United States under the Fourth Amendment, by 2 subjecting him, or through their deliberate indifference allowing others to subject him, to

3 excessive force.

4

27. As a direct and proximate cause of the aforementioned acts of defendants,

5 plaintiff was injured as set forth above.

6

28. Plaintiff's injuries entitle him to compensatory and punitive damages

7 according to proof as to the individual defendants and compensatory damages alone as to

8 the County defendants.

9

SECOND CLAIM FOR RELIEF

10

(Cal. Civ. Code§ 52.1)

11

(Plaintiff v. All Defendants)

12

29. The United States Constitution, Amendment IV, and the California

13 Constitution, Article I, guarantee the right of persons to be free from excessive force.

14 Defendants, by engaging in the wrongful conduct alleged herein, denied this right to

15 plaintiff, thus giving rise to a claim for damages pursuant to California Civil Code §

16 52.1.

17

30. As a direct and proximate cause of the aforementioned acts of defendants,

18 plaintiff was injured as set forth above and is entitled to statutory damages under

19 California Civil Code § 52, compensatory and punitive damages according to proof as to

20 the individual defendants and compensatory damages alone as to the County defendants.

21

THIRD CLAIM FOR RELIEF

22

(Battery)

. 23

(Plaintiffv. All Defendants)

24

31. Defendants battered plaintiff, causing his injuries as hereinabove alleged

25 and entitling him to compensatory and punitive damages according to proof as to the

26 individual.defendants and compensatory damages alone as to the County defendants.

27

32. As a direct and proximate cause of the aforementioned acts of defendants,

28 plaintiff was injured as set forth above.

7

COMPLAINT FOR DAMAGES

Case 2:10-cv-08011-GW-PLA Document 1 Filed 10/25/10 Page 9 of 15 Page ID #:12

1

FOURTH CLAIM FOR RELIEF

2

(Intentional Infliction of Emotional Distress)

3

(Plaintiffv. All Defendants)

4

33. Defendants' conduct was extreme and outrageous, and caused plaintiff to

5 sustain severe emotional distress, all to plaintiffs damage as hereinabove alleged.

6

34. As a direct and proximate cause of the aforementioned acts of defendants,

7 plaintiff was injured as set forth above.

8

35. Plaintiffs injuries entitle him to compensatory and punitive damages

9 according to proof as to the individual defendants and compensatory damages alone as to

10 the County defendants.

11

FIFTH CLAIM FOR RELIEF

12

(Negligence)

13

(Plaintiffv. All Defendants)

14

36. The individual defendants did not exercise ordinary care to ensure that

15 plaintiff would not suffer excessive force while in their custody, thus negligently

16 breaching a duty owed to him and proximately causing his injuries as hereinabove

17 alleged.

18

37. Defendants County of Los Angeles and Los Angeles County Sheriffs

19 Department negligently hired and supervised the individual defendants. As a proximate

20 result thereof, plaintiff has been damaged as hereinabove alleged, and is entitled to

21 compensatory and punitive damages according to proof as to the individual defendants

22 and compensatory damages alone as to the County defendants.

23

PRAYER FOR RELIEF

24

WHEREFORE, plaintiff seeks judgment as follows:

25

1.

Compensatory general and special damages in an amount in accordance

26 with proof;

27

2.

Punitive damages against each of the individual defendants in an amount

28 sufficient to punish and to make an example of said defendants, and to deter others from

8

COMPLAINT FOR DAMAGES

Case 2:10-cv-08011-GW-PLA Document 1 Filed 10/25/10 Page 10 of 15 Page ID #:13

1 engaging in similar conduct;

2

3.

Reasonable attorney's fees, expenses, and costs; and

3

4.

Such other and further relief as the Court deems proper.

4

DEMAND FOR JURY TRIAL

5

Plaintiff hereby demands a jury trial on all issues so triable.

6

7

8 DATED: October 25, 2010

9

Respectfully submitted,

10

HADSELL STORMER KEENY

11

RICHARDSON & RENICK, LLP

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

COMPLAINT FOR DAMAGES

Case 2:10-cv-08011-GW-PLA Document 1 Filed 10/25/10 Page 11 of 15 Page ID #:14
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY
This case has been assigned to District Judge George H. Wu and the assigned discovery Magistrate Judge is Paul Abrams. The case number on all documents filed with the Court should read as follows:
CV10- 8011 GW {PLAx)
Pursuant to General Order 05-07 of the United States District Court for the Central District of California, the Magistrate Judge has been designated to hear discovery related motions.
All discovery related motions should be noticed on the calendar of the Magistrate Judge

NOTICE TO COUNSEL

A copy of this notice must be served with the summons and complaint on all defendants (if a removal action is filed, a copy of this notice must be served on all plaintiffs).

Subsequent documents must be filed at the following location:

[X] Western Division
312 N. Spring St., Rm. G-8 Los Angeles, CA 90012

U Southern Division

U Eastern Division

411 West Fourth St., Rm. 1-053

3470 Twelfth St., Rm. 134

Santa Ana, CA 92701-4516

Riverside, CA 92501

Failure to file at the proper location will result in your documents being returned to you.

CV-18 (03/06)

NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY

Case 2:10-cv-08011-GW-PLA Document 1 Filed 10/25/10 Page 12 of 15 Page ID #:15

Name & Address: Dan Stormer, Esq. (S.B. # 101967)

\.8 Virginia Keeny, Esq. (S.B. # 139568)

~ U

U

Hadsell Stormer Keeny Richardson & Renick, LLP

128 N. Fair Oaks Avenue

Pasadena, California 91103

Tel: (626) 585-9600

MICHAEL HOLGUIN

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CASE NUMBER

v.
COUNTY OF LOS ANGELES, et al., (See Attachment A)

PLAINTIFF(S)

DEFENDANT(S).

V10- 11
SUMMONS

TO: DEFENDANT(S): COUNTY OF LOS ANGELES, et al., see attachment A

A lawsuit has been filed against you.
'2-\

Within 2-9. days after service of this summons on you (not counting the day you received it), you

must serve on the plaintiff an answer to the attached ricomplaint 0

amended complaint

0 counterclaim 0 cross-claim or a motion under Rule 12 ofthe Federal Rules of Civil Procedure. The answer

or motion must be served on the plaintiff's attorney, Virginia Keeny/Dan Stormer

, whose address is

HadsellStormerKeenyRichardsonRenick 128 N. Fair Oaks Ave., PasadenaCA 91103 . Ifyou fail to do so,

judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Dated: 10/25/10

Clerk, U.S. District Court

TANYA DURANT

Deputy Clerk

(Seal ofthe Court)

1188

[Use 60 days if the defendant is the United States or a United States agency, or is an officer or employee ofthe United States. Allowed
60 days by Rule 12(a)(3)].

CV-0 IA (12/07)

SUMMONS

Case 2:10-cv-08011-GW-PLA Document 1 Filed 10/25/10 Page 13 of 15 Page ID #:16
ATTACHMENT A to Summons in MICHAEL HOLGUIN v. County of Los Angeles, et al.
Total Named defendants:
COUNTY OF LOS ANGELES, LOS ANGELES COUNTY SHERIFF'S DEPARTMENT, SHERIFF LEE BACA, DEPUTY RICO, DEPUTY FERNANDO LUVIANO, DEPUTY LASCANO, AND DOES 1-20,

Case 2:10-cv-08011-GW-PLA Document 1 Filed 10/25/10 Page 14 of 15 Page ID #:17

I (a) PLAINTIFFS (Check box if you are representing yourselfO) MICHAEL HOLGUIN

DEFENDANTS COUNTY OF LOS ANGELES, LOS ANGELES COUNTY SHERIFF'S
DEPARTMENT, SHERIFF LEE BACA, DEPUTY RICO, DEPUTY
FERNANDO LUVIANO, DEPUTY LASCANO, ANb DOES 1-20,

(b) Attorneys (Finn Name, Address and Telephone Number. If you are representing yourself, provide same.)
Hadsell Stonner Keeny Richardson & Renick, LLP 128 N. Fair Oaks Avenue, Pasadena, California 91103 Tel: (626) 585-9600

Attorneys (If Known)
Virginia Keeny, Esq. (S.B. # 139568), Dan Stonner, Esq. (S.B. # 101967)

II. BASIS OF JURISDICTION (Place an X in one box only.)

0 I U.S. Government Plaintiff

'fi3 Federal Question (U.S.
Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES- For Diversity Cases Only (Place an X in one box for plaintiff and one for defendant.)

Citizen of This State

PTF DEF 01 01 Incorporated or Principal Place
of Business in this State

PTF DEF 04 04

0 2 U.S. Government Defendant 0 4 Diversity (Indicate Citizenship Citizen of Another State of Parties in Item III)

02 02 Incorporated and Principal Place 05 05 of Business in Another State

Citizen or Subject of a Foreign Country 0 3 0 3 Foreign Nation

06 06

IV. ORIGIN (Place an X in one box only.)

Ii'1 Original Proceeding

0 2 Removed from 0 3 Remanded from 0 4 Reinstated or 0 5 Transferred from another district (specifY): 0 6 Multi- 0 7 Appeal to District

State Court

Appellate Court

Reopened

District

Judge from

Litigation

Magistrate Judge

V. REQUESTED IN COMPLAINT: JURY DEMAND: ilYes 0 No (Check 'Yes' only if demanded in complaint.)

dNo CLASS ACTION under F.R.C.P. 23: 0 Yes

0 MONEY DEMANDED IN COMPLAINT: $

OTHER STATUTES

CONTRACT

TORT~

0400 State Reapportionment 0110 Insurance

0 410 Antitrust

0120 Marine

0430 Banks and Banking 0130 Miller Act

0450 Commerce/ICC

0140 Negotiable Instrument

Rates/etc.

0150 Recovery of

0460 Deportation

Overpayment &

0470 Racketeer Influenced

Enforcement of

and Corrupt

Judgment

Organizations

0 !51 Medicare Act

0480 Consumer Credit

0152 Recovery of Defaulted

0490 Cable/Sat TV

Student Loan (Excl.

0 810 Selective Service

Veterans)

0 850 Securities/Commodities/ 0153 Recovery of

Exchange

Overpayment of

0 875 Customer Challenge 12

Veteran's Benefits

USC3410

0160 Stockholders' Suits

0 890 Other Statutory Actions 0190 Other Contract

0 891 Agricultural Act

0195 Contract Product

0 892 Economic Stabilization

Liability

Act

0 196 Franchise

PERSONAL INJURY 0310 Airplane 0315 Airplane Product
Liability 0 320 Assault, Libel &
Slander 0330 Fed. Employers'
Liability 0340 Marine 0 345 Marine Product
Liability 0350 Motor Vehicle 0 355 Motor Vehicle
~
Product Liability 0 360 Other Personal
Injury 0362 Personal Injury-
Med Malpractice 0365 Personal Injury-
Product Liability 0 368 Asbestos Personal

0 893 Environmental Matters

REAL PROPERTY

Injury Product

0 894 Energy Allocation Act 0 895 Freedom oflnfo. Act 0 900 Appeal of Fee Determi-
nation Under Equal Access to Justice 0 950 Constitutionality of State Statutes

0210 Land Condemnation

Liability

0220 Foreclosure

IMMIGRATION

0230 Rent Lease & Ejectment 0462 Naturalization

0240 Torts to Land

Application

0245 Tort Product Liability 0463 Habeas Corpus-

0290 All Other Real Property

Alien Detainee

0465 Other Immigration

Actions

1;. 'TO~TS~'-' . :;

PRJSONEI~..

LABOR.

PERSONAL

I· PETITIONS

0 710 Fair Labor Standards

PROPERTY

0510 Motions to

Act

0370 Other Fraud

Vacate Sentence 0 720 Labor/Mgmt.

0371 Truth in Lending

Habeas Corpus

Relations

0380 Other Personal 0 530 General

0730 Labor/Mgmt.

Property Damage 0 535 Death Penalty

Reporting &

0 385 Property Damage 0 540 Mandamus/

Disclosure Act

.. Producticiab.ility

Other

BANKIU]I'JCY 0 550 Civil Rights

0740 Railway Labor Act 0790 Other Labor

0 422 Appeal 28 USC 0 555 Prison Condition

Litiga(ion

!58

.· •.. F()~~rfuR.E I 0791 Empl. Ret. Inc.

0 423 Withdrawal 28

···PENALTY

usc !57

0610 Agriculture

Security Act PROPERTY RIGHTS

·.· ·. ·•· CIVrL RJGHTS

0620 Other Food & 0 820 Copyrights

0441 Voting

Drug

0 830 Patent

0442 Employment 0625 Drug Related 0 840 Trademark

0443 Housing/Acco-

Seizure of

SOCIAL SECURITY

mmodations

Property 21 USC 0 861 HIA (1395ff)

0444 Welfare

881

0 862 Black Lung (923)

0445 American with 0630 Liquor Laws 0 863 DIWC/DIWW

Disabilities - 0640 R.R &Truck

(405(g))

Employment 0650 Airline Regs 0 864 SSID Title XVI

0446 American with 0660 Occupational 0 865 RSI (405(g))

Disabilities -

Safety /Health

FE.DERAL TAX SUITS

Other

0690 Other

0 870 Taxes (U.S. Plaintiff

M44o Other Civil

or Defendant)

Rights

0 871 IRS-Third Party 26

USC7609

-:!I;J.C~V 1_1_ _ _. FOR OFFICE USE ONLY: Case Number:

le!--.:0=-----=-8 -=-0

AFTER COMPLETING THE FRONT SIDE OF FORM CV-71, COMPLETE THE INFORMATION REQUESTED BELOW.

CV-71 (05/08)

CIVIL COVER SHEET

Page 1 of2

Case 2:10-cv-08011-GW-PLA Document 1 Filed 10/25/10 Page 15 of 15 Page ID #:18
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
CIVIL COVER SHEET

VIII(a). IDENTICAL CASES: Has this action been previously filed in this court and dismissed, remanded or closed? li'No 0 Yes If yes, list case number{s): - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
VIII{b). RELATED CASES: Have any cases been previously filed in this court that are related to the present case? ll!!'No 0 Yes If yes, list case number(s): - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Civil cases are deemed related if a previously filed case and the present case: (Check all boxes that apply) 0 A. Arise from the same or closely related transactions, happenings, or events; or
0 B. Call for determination of the same or substantially related or similar questions oflaw and fact; or 0 C. For other reasons would entail substantial duplication oflabor if heard by different judges; or 0 D. Involve the same patent, trademark or copyright, and one ofthe factors identified above in a, b or c also is present.

IX. VENUE: (When completing the following information, use an additional sheet if necessary.)

(a) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named plaintiff resides. 0 Check here if the government, its agencies or employees is a named plaintiff. If this box is checked, go to item (b).

County in this District:*

California County outside of this District; State, if other than California; or Foreign Country

L6s ~dRS Covnh1 ~

(b) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named defendant resides. 0 Check here 1.f the government, I.ts agenci.es or emplIOyees I.S a named defiendant. If th.IS box I.S checked, go to I.tem (c).

County in this District:*

Sh.e...\i~. ~w.-., LA Cou~

L.Ps fmt).e.ks (6 LA Cot.k"'

r-c9.. R..\(' 0

('>,

L)J \AViG\-0-t') ·- 0 i'\ fL. V\.M 1\...

California County outside of this District; State, if other than California; or Foreign Country

(c) List the County in this District; California County outside ofthis District; State if other than California; or Foreign Country, in which EACH claim arose. Note: In land condemnation cases, use the location of the tract of land involved.

County in this District:*

California County outside of this District; State, if other than California; or Foreign Country

* Los Angeles, Orange, San Bernardino, Riverside, V
Note: In land condemnation cases use the location ofthe.

Notice to Counsel/Parties: The CV-71 (JS-44) Civi Co er Sheet and the informati co ained herein neither replace nor supplement the filing and service ofpleadings or other papers as required by law. This form, approve bY. he Judicial Conference ofthe nited States in September 1974, is required pursuant to Local Rule 3-1 is not filed but is used by the Clerk ofthe Court for the purpose of statistics, venue and initiating the civil docket sheet. (For more detailed instructions, see separate instructions sheet.)
Key to Statistical codes relating to Social Security Cases:
Nature of Suit Code Abbreviation Substantive Statement of Cause of Action

861

HIA

All claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social Security Act, as amended.

Also, include claims by hospitals, skilled nursing facilities, etc., for certification as providers of services under the

program. (42 U.S.C. 1935FF{b))

862

BL

All claims for "Black Lung" benefits under Title 4, Part B, of the Federal Coal Mine Health and Safety Act of 1969.

(30 U.S.C. 923)

863

DIWC

All claims filed by insured workers for disability insurance benefits under Title 2 of the Social Security Act, as

amended; plus all claims filed for child's insurance benefits based on disability. (42 U.S.C. 405(g))

863

DIWW

All claims filed for widows or widowers insurance benefits based on disability under Title 2 of the Social Security

Act, as amended. (41 U.S.C. 405(g))

864

SSID

All claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security

Act, as amended.

865

RSI

All claims for retirement {old age) and survivors benefits under Title 2 of the Social Security Act, as amended. (42

U.S.C. (g))

CV-71 (05/08)

CIVIL COVER SHEET

Page 2 of2

 
 Case 2:10-cv-08011-GW-P;-LA Document 21 Filed 02/09/11 Page 1 of 10 Page ID #:90

1 Dan Stormer (S.B. #101967) Yirginia Keeny (S.B. #139568)
2 HADSELL STORMER KEENY RICHARDSON & RENICK, LLP
3 128 North Fair Oaks Avenue, Ste. 204 Pasadena~ CA 91103-3645
4 Tel: (626 585-9600 Fax: (62 ) 577-7079
5
Attorneys for Plaintiff
6 Michael Holguin

7

8

9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11

12 MICHAEL HOLGUIN,
13 Plaintiff,
14
vs. 15
COUNTY OF LOS ANGELES~LOS 16 ANGELES COUNTY SHERIFr 'S
DEPARTMENT, SHERIFF LEE BACAA 17 DEPUTY RICO, DEPUTY FERNANDu
LUVIANO],DEPUTYLASCANO, 18 AND DOE~ 1-10,

19

Defendants.

20

21

22

Case No.:CV 10-8011-GW(PLAx) Honorable George H. Wu-Courtroom 10 FIRST AMENDED COMPLAINT FOR DAMAGES 1. VIOLATIONS OF CIVIL RIGHTS
- 42 U.S.C. § 1983- Excessive Force 2. Cal. Civ Code § 52.1 3. Battery 4. Intentional Infliction ofEmotional Distress 5. Negligence

23

DEMAND FOR JURY TRIAL

24

25

26

27

28

FIRST AMENDED COMPLAINT FOR DAMAGES

Case 2:10-cv-08011-GW-PLA Document 21 Filed 02/09/11 Page 2 of 10 Page ID #:91

1

JURISDICTION AND VENUE

2

1.

This is a police misconduct action filed pursuant to 42 U.S.C. § 1983. The

3 Court has jurisdiction under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. §

4 1343(3) (civil rights). Venue lies in the Central District of California, the judicial district

5 in which the claim arose, pursuant to 28 U.S.C. § 1391(b). Plaintiffs state law claims for

6 relief are within the supplemental jurisdiction of the Court, as authorized by 28 U.S.C. §

7 1367.

8

PARTIES

9

2.

Plaintiff Michael Holguin is a competent adult, residing in the County of

10 Los Angeles. He is not currently in the custody of any correctional facility.

11

3.

Defendant County ofLos Angeles was and is a legal political entity

12 established under the laws of the State of California, with all the powers specified and

13 necessarily implied by the Constitution and the laws of the State of California and

14 exercised by a duly elected Board of Supervisors and/or their agents and officers.

15

4.

Defendant Los Angeles County Sheriffs Department is a public agency

16 subject to suit herein.

17

5.

Defendant Lee Baca is the Sheriff of Los Angeles County.

18

6.

Defendant Deputy Rico is an employee of the Los Angeles County Sheriffs

19 Department.

20

7.

Defendant Deputy Fernando Luviano is an employee of the Los Angeles

21 County Sheriffs Department.

22

8.

Defendant Deputy Lascano is an employee of the Los Angeles County

23 Sheriffs Department.

24

9.

Defendant David Ortega, previously identified as Defendant Doe 1, is an

25 employee of the Los Angeles County Sheriffs Department.

26

10. The true names of Defendant Does 2 through 10, inclusive, are presently

27 unknown to Plaintiff, who therefore sues each of these Defendants by such fictitious

28 names. Upon ascertaining the true identity of Doe Defendants, Plaintiff will amend this

1

FIRST AMENDED COMPLAINT FOR DAMAGES

Case 2:10-cv-08011-GW-PLA Document 21 Filed 02/09/11 Page 3 of 10 Page ID #:92

1 complaint, or seek leave to do so, by inserting the true name in lieu of the fictitious

2 name. Plaintiff is informed and believes, and on the basis of such information and belief

3 alleges, that each Doe Defendant is in some manner responsible for the injuries and

4 damages herein alleged.

5

11. Plaintiff exhausted his administrative remedies before filing suit by filing

6 the appropriate claim pursuant to California Government Code§ 910. He also exhausted

7 any existing grievance procedure available at the Men's Central Jail within the time

8 period provided by jail rules and procedures.

9

FACTUAL ALLEGATIONS

10

A.

General Allegations re Policy and Practice

11

12. Plaintiff is informed and believes, and on the basis of such information and

12 belief alleges, that defendants County of Los Angeles, Los Angeles County Sheriffs

13 Department, and Sheriff Lee Baca, with deliberate indifference, gross negligence, and

14 reckless disregard for the safety, security, and constitutional and statutory rights of

15 plaintiff and all persons similarly situated, maintained, enforced, tolerated, permitted,

16 acquiesced in, and applied policies, practices, or customs of, among other things:

17

a. Subjecting persons to violations of their rights to be free from

18 excessive force and denial of due process;

19

b. Selecting, retaining, and assigning officers with demonstrable

20 propensities for excessive force, violence, dishonesty, and other misconduct;

21

c. Failing to adequately train, supervise, and control officers in the

22 practice of law enforcement;

23

d. Failing to adequately discipline officers involved in misconduct;

24

e. Permitting officers to have extended contact with inmates in areas of

25

the jail which are not monitored with video surveillance or visible

26

from areas staffed by supervisory personnel, thereby creating zones

27

where officers believe they have free rein to engage in excessive

28

force against inmates;.

2

FIRST AMENDED COMPLAINT FOR DAMAGES

Case 2:10-cv-08011-GW-PLA Document 21 Filed 02/09/11 Page 4 of 10 Page ID #:93

1

f. Allowing seriously overcrowded conditions in the Men's Central Jail

2

which causes officers to engage in excessive force so as to control the

3

inmate population;

4 and

5

g. Condoning and encouraging officers in the belief that they can violate

6 the rights of persons such as plaintiff with impunity, and that such conduct will not

7 adversely affect their opportunities for promotion and other employment benefits.

8

13. Plaintiff is informed and believes and thereupon alleges that the official

9 policymakers for the County of Los Angeles and the Los Angeles County Sheriffs

10 Department knew or reasonably should have known that their deputies have used

11 excessive force on, and violated the due process rights of various individuals, and that

12 they have been deliberately indifferent in the training and supervision of their police

13 officers. Despite this knowledge, defendants failed to take any steps to remedy these

14 violations of constitutional and statutory authority, as well as of the Los Angeles County

15 Sheriffs Department's own written policies, through adequate hiring, training,

16 supervision and/or monitoring. In so doing, defendants exhibited deliberate indifference

17 to plaintiffs constitutional rights.

18

14. Plaintiff is informed and believes, and on the basis of such information and

19 belief alleges, that defendants County of Los Angeles and the Los Angeles County

20 Sheriffs Department ordered, authorized, acquiesced in, tolerated, or permitted other

21 defendants herein to engage in the unlawful and unconstitutional actions, policies,

22 practices, and customs set forth in the preceding paragraphs. Defendants' conduct as

23 alleged herein constitutes a pattern of constitutional violations based either on a

24 deliberate plan by defendants or on defendants' deliberate indifference, gross negligence,

25 or reckless disregard for plaintiffs safety, security, and constitutional and statutory

26 rights.

27

B.

The Incident

28

15. Plaintiff Michael Holguin was detained in the Los Angeles County Jail,

3

FIRST AMENDED COMPLAINT FOR DAMAGES

Case 2:10-cv-08011-GW-PLA Document 21 Filed 02/09/11 Page 5 of 10 Page ID #:94

1 Men's Central Jail, commencing on or about October 6, 2009. During his first three

2 weeks in the jail, he was housed in a one-man cell in unit 3500. As with other inmates in

3 3500 during that period, he was not given a shower for approximately two weeks. On

4 October 18, 2009, he was finally let out of his cell for a shower. After being moved

5 towards the shower area, Mr. Holguin was told he would not be allowed to take a

6 shower. When he asked why he could not shower, one of the deputies, who plaintiff

7 believes to be named Deputy Luviano or Deputy Lascano, stated that he would not be

8 getting a shower. The same guard stated, "tum around and I'll tell you why." Mr.

9 Holguin obeyed by turning around whereupon he was handcuffed by Deputy

10 Luviano/Lascano behind his back. This same deputy then moved Mr. Holguin to a

11 nearby area where he shoved him face first into the bars.

12

16. After slamming Holguin into the bars, Deputy Luviano/Lascano began to

13 beat him on his rib cage. Deputy Luviano/Lascano then struck Mr. Holguin in the head

14 with a hard object and Mr. Holguin fell to the floor. Deputy Luviano/Lascano continued

15 to hit him with the hard object after he had fallen to the floor. Mr. Holguin curled up to

16 protect himself from the blows, but Luviano/Lacsano continued to hit or kick him. He

17 was struck repeatedly on his legs, ankle and his head. Deputy Luviano/Lacsano kept

18 stating, "stop resisting," though Mr. Holguin was not resisting and was already

19 handcuffed behind his back.

20

17. Another deputy, who plaintiff believes was named Deputy Rico, joined in

21 the beating at this time. Deputy Luviano/Lascano leaned over him and sprayed pepper

22 spray in his face and then proceeded to take his thumb and rub the pepper spray into his

23 eyes to make sure he felt effect of the caustic spray. Deputy Rico began to pull at Mr.

24 Holguin and to drag him around the floor. Although Mr. Holguin could no longer see as

25 a result of the pepper spray and searing pain in his eyes, he continued to receive blows to

26 his body and legs. At some point during the unprovoked beating, other deputies arrived.

27 None of those deputies said anything to enquire what had happened or to restrain Rico or

28 Luviano/Lacsano from continuing to hit Mr. Holguin and roughly shove him about the

4

FIRST AMENDED COMPLAINT FOR DAMAGES

Case 2:10-cv-08011-GW-PLA Document 21 Filed 02/09/11 Page 6 of 10 Page ID #:95

1 floor.

2

18. During this unprovoked attack, Deputies Luviano/Lascano and Rico used

3 excessive and unreasonable force against Mr. Holguin, including hitting him with a

4 flashlight, kicking and beating him in the ribs, head, torso, and legs. At no point during

5 this assault did Mr. Holguin resist. He was handcuffed at all times and posed no threat to

6 any of the deputies.

7

19. Plaintiff is informed and believes that Deputy David Ortega was one of the

8 deputies who participated in the unprovoked beating and that Ortega, individually and in

9 concert with the other deputies, used excessive force against him and/or exhibited

10 deliberate indifference to his personal safety, civil rights and need for medical care.

11

20. As a result of this beating, Mr. Holguin suffered severe injuries, including

12 but not limited to several deep wounds and lacerations on his head, his right ankle was

13 broken in two places, and his left knee was opened to the bone, among other injuries.

14 These injuries were sufficiently severe to require extended hospital care, staples and

15 stitches for the several wounds to his head and eyes, and orthoscopic surgery for his left

16 knee. He was also required to wear a cast for the two breaks to his ankle for an extended

17 period oftime.

18

21. Sometime later in the day on October 18, 2009, Mr. Holguin was taken to

19 the medical ward in the jail and then to the infirmary at the Twin Towers facility where

20 he received preliminary treatment. He received eight suture staples in the center of his

21 head, and four stitches to the right eyebrow. When it was revealed that he had a broken

22 tibia, he was transferred to LA County- USC Medical Center. Deputy Rico

23 accompanied him in the ambulance which transferred him to LA-USC Medical Center.

24 During that trip, Deputy Rico threatened Mr. Holguin, taunting him on several occasions,

25 "Bet you won't ask 'why' anymore, will you?" Over the following days, he was fitted

26 with a cast and required to undergo orthoscopic surgery for the injuries to his left knee.

27

22. After receiving medical care at the hospital, Mr. Holguin was returned to the

28 MCJ, and placed on a 29 day loss of privileges, further punishing him and isolating him.

5

FIRST AMENDED COMPLAINT FOR DAMAGES

Case 2:10-cv-08011-GW-PLA Document 21 Filed 02/09/11 Page 7 of 10 Page ID #:96

1 During this period of time, he was confined to a cell which had no grab bars or other

2 assistive equipment and routinely was denied the use of crutches or a wheelchair.

3 Because his leg was in a cast, he either had to drag himself around his cell or place

4 weight on his cast, causing him pain. When he was required to leave his cell for a

5 shower or other inmate movement, on most occasions he was not given any assistive

6 devices, causing him considerable pain and discomfort. His requests for a crutch or cane

7 to assist him as he moved around his cell and in the hallways were ignored by all but one

8 of the guards. These additional injuries were a foreseeable consequence of the severe

9 beating he was administered by the guards.

10

DAMAGES

11

23. By reason of the aforementioned acts of defendants, plaintiff was injured in

12 his health, strength and activity and has sustained and in the future will continue to

13 sustain great mental pain and shock to his nervous system, as well as anxiety, anguish,

14 humiliation, and emotional distress, all to his damage in an amount according to proof.

15

24. By reason of the aforementioned acts of defendants, and each of them,

16 plaintiff was or will be required to receive medical care and treatment, and by reason

17 thereof, will incur expenses related thereto in an amount to be proven at trial.

18

25. By reason of the aforementioned acts of defendants, and each of them,

19 plaintiff did or will lose future income, wages and other financial benefits in an amount

20 to be proven at trial.

21

26. Defendants' acts were done and committed by each defendant knowingly,

22 deliberately, and maliciously, with the intent to oppress, injure, and harass plaintiff, and

23 with reckless indifference to the civil rights, personal security and safety of plaintiff, and

24 by reason thereof, plaintiff prays for punitive and exemplary damages from and against

25 the individual defendants, and each of them, in an amount to be proven at trial.

26

FIRST CLAIM FOR RELIEF- Excessive Force

27

(Fourth Amendment, 42 U.S.C. § 1983)

28

(Piaintiffv. All Defendants)

6

FIRST AMENDED COMPLAINT FOR DAMAGES

Case 2:10-cv-08011-GW-PLA Document 21 Filed 02/09/11 Page 8 of 10 Page ID #:97

1

27. The conduct complained of herein was undertaken pursuant to the policies,

2 practices and customs of the Los Angeles County Sheriffs Department, an agency of the

3 County of Los Angeles, and was sanctioned and approved by each of the individual

4 named defendants, including the Doe defendants.

5

28. Defendants, acting under color of state law and through their policies,

6 practices and customs, deprived plaintiff of rights, privileges, and immunities secured by

7 the Constitution and laws of the United States under the Fourth Amendment, by

8 subjecting him, or through their deliberate indifference allowing others to subject him, to

9 excessive force.

10

29. As a direct and proximate cause of the aforementioned acts of defendants,

11 plaintiff was injured as set forth above.

12

30. Plaintiff's injuries entitle him to compensatory and punitive damages

13 according to proof as to the individual defendants and compensatory damages alone as to

14 the County defendants.

15

SECOND CLAIM FOR RELIEF

16

(Cal. Civ. Code§ 52.1)

17

(Plaintiffv. All Defendants)

18

31. The United States Constitution, Amendment IV, and the California

19 Constitution, Article I, guarantee the right of persons to be free from excessive force.

20 Defendants, by engaging in the wrongful conduct alleged herein, denied this right to

21 plaintiff, thus giving rise to a claim for damages pursuant to California Civil Code §

22 52.1.

23

32. As a direct and proximate cause of the aforementioned acts of defendants,

24 plaintiff was injured as set forth above and is entitled to statutory damages under

25 California Civil Code § 52, compensatory and punitive damages according to proof as to

26 the individual defendants and compensatory damages alone as to the County defendants.

27 I I I

28 I I I

7

FIRST AMENDED COMPLAINT FOR DAMAGES

Case 2:10-cv-08011-GW-PLA Document 21 Filed 02/09/11 Page 9 of 10 Page ID #:98

1

THIRD CLAIM FOR RELIEF

2

(Battery)

3

(Piaintiffv. All Defendants)

4

33. Defendants battered plaintiff, causing his injuries as hereinabove alleged

5 and entitling him to compensatory and punitive damages according to proof as to the

6 individual defendants and compensatory damages alone as to the County defendants.

7

34. As a direct and proximate cause of the aforementioned acts of defendants,

8 plaintiff was injured as set forth above.

9

FOURTH CLAIM FOR RELIEF

10

(Intentional Infliction of Emotional Distress)

1 1

(Plaintiff v. All Defendants)

12

35. Defendants' conduct was extreme and outrageous, and caused plaintiff to

13 sustain sever~ emotional distress, all to plaintiffs damage as hereinabove alleged.

14

36. As a direct and proximate cause of the aforementioned acts of defendants,

15 plaintiffwas injured as set forth above.

16

37. Plaintiffs injuries entitle him to compensatory and punitive damages

17 according to proof as to the individual defendants and compensatory damages alone as to

18 the County defendants.

19

FIFTH CLAIM FOR RELIEF

20

(Negligence)

21

(Piaintiffv. All Defendants)

22

38. The individual defendants did not exercise ordinary care to ensure that

23 plaintiff would not suffer excessive force while in their custody, thus negligently

24 breaching a duty owed to him and proximately causing his injuries as hereinabove

25 alleged.

26

39. Defendants County ofLos Angeles and Los Angeles County Sheriffs

27 Department negligently hired and supervised the individual defendants. As a proximate

28 result thereof, plaintiff has been damaged as hereinabove alleged, and is entitled to

8

FIRST AMENDED COMPLAINT FOR DAMAGES

Case 2:10-cv-08011-GW-PLA Document 21 Filed 02/09/11 Page 10 of 10 Page ID #:99

1 compensatory and punitive damages according to proof as to the individual defendants

2 and compensatory damages alone as to the County defendants.

3

4

PRAYER FOR RELIEF

5

WHEREFORE, plaintiff seeks judgment as follows:

6

1.

Compensatory general and special damages in an amount in accordance

7 with proof;

8

2.

Punitive damages against each ofthe individual defendants in an amount

9 sufficient to punish and to make an example of said defendants, and to deter others from

10 engaging in similar conduct;

1 1

3.

Reasonable attorney's fees, expenses, and costs; and

12

4.

Such other and further relief as the Court deems proper.

13

14

DEMAND FOR JURY TRIAL

15

Plaintiff hereby demands a jury trial on all issues so triable.

16

17

18 DATED: January 21, 2011

19

Respectfully submitted,

20

HADSELL STORMER KEENY

21

RICHARDSON & RENICK, LLP

22

23

By: s/- Dan Stormer

Dan Stormer

24

Attorneys for Plaintiff

Michael Holguin

25

26

27

28

9

FIRST AMENDED COMPLAINT FOR DAMAGES

 
 Case 2:10-cv-08011-GW-PLA Document 34 Filed 05/23/11 Page 1 of 13 Page ID #:287

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11

12 MICHAEL HOLGUIN,

13

Plaintiff,

14

v.

15 COUNTY OF LOS ANGELES, et al.,

16

Defendants.

17

) No. CV 10-8011-GW (PLAx) ) ) ) ORDER RE: PLAINTIFF’S MOTION TO ) COMPEL DISCOVERY ) ) ) ) )

18

In this civil rights action, plaintiff is seeking damages from, among others, defendants

19 Deputy Giovani Rico (“Rico”), Deputy Fernando Luviano (“Luviano”), and Deputy David Ortega

20 (“Ortega”), based on their alleged use of excessive force against plaintiff on October 18, 2009,

21 while he was detained on the 3000 floor in unit 3500 of the Los Angeles County Men’s Central Jail

22 (“MCJ”). Plaintiff is also attempting to show Monell1 liability against the entity defendants.

23 /

24

25

1 Under Monell v. Dept. of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d

26 611 (1978), certain of the defendants can be held liable for the officers’ actions if “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation,

27 or decision officially adopted or promulgated by that body’s officers,” or if the alleged action was

“pursuant to governmental ‘custom’ even though such a custom has not received formal approval

28 through the body’s official decision making channels.”

Case 2:10-cv-08011-GW-PLA Document 34 Filed 05/23/11 Page 2 of 13 Page ID #:288

1

Through this Motion, plaintiff seeks documents from defendants pertaining to use of force

2 reports, excessive force complaints, and investigations at MCJ relating to defendants Rico,

3 Luviano, and Ortega, as well as the entire 3000 floor of MCJ, where detainees in protective

4 custody and administrative segregation are held. Plaintiff also seeks documents pertaining to

5 deputies of MCJ who have tattoos identifying their assignment to the 3000 floor. (See Joint

6 Stipulation at 3).2 Plaintiff argues that the documents are relevant to show the proclivity on the

7 part of MCJ deputies to engage in improper conduct, and go to plaintiff’s Monell claim, the alleged

8 supervisory and individual liability of defendant Sheriff Lee Baca, and the alleged punitive

9 damages. (Id. at 8-12).

10

Defendants have objected to producing some of the requested documents, arguing that the

11 Requests are overbroad and burdensome as defendants would have to undertake a tremendous

12 amount of work to gather responses and analyze documents and events in order to respond.

13 (See, e.g., Declaration of Captain Shaun Mathers). Defendants have also objected to the subject

14 discovery Requests on multiple other grounds, including the attorney-client privilege, the work

15 product doctrine, privacy interests, the official information privilege, the self-critical analysis

16 privilege, relevance, and on the Requests being vague and ambiguous. Defendants seek an in

17 camera inspection prior to any ordered release of documents, and if it is determined that release

18 is proper, that it only be done with an amended protective order in place.

19

The Court has reviewed the Joint Stipulation filed in connection with plaintiff’s Motion, and

20 all related filings, and has determined that oral argument will not be of material assistance in

21 determining the Motion. Accordingly, the hearing scheduled for May 31, 2011, is ordered off

22 calendar (see Local Rule 7-15), and the Court rules as follows:

23 /

24 /

25

26

2 The Requests for documents at issue here -- Requests Nos. 9-11, 21, 33 -- are somewhat

broader in scope than as stated in the Joint Stipulation. Plaintiff apparently narrowed the scope

27 of his Requests pursuant to meet and confer discussions between the parties prior to the bringing

of the instant Motion. (See Declaration of Virginia Keeny, Exhibits 2-3). It is this narrowed scope 28 that the Court addresses herein.

2

Case 2:10-cv-08011-GW-PLA Document 34 Filed 05/23/11 Page 3 of 13 Page ID #:289

1 A. Requests Nos. 9-10: granted.

2

Defendants have agreed to produce “complaints, investigations into complaints or discipline

3 resulting from complaints regarding use of force by [defendants Luviano and/or Ortega] subject

4 to a protective order, protecting the privacy rights of third parties.” (See Joint Stipulation at 17,

5 18).

6

The Court concludes that the documents agreed to be produced by defendants pursuant

7 to Requests Nos. 9 and 10 are sufficient to respond to the documents requested by plaintiff under

8 those Requests. All such documents must be produced. While the Court observes that the

9 Protective Order currently in place in this action has specific provisions to cover the protection of

10 confidential information -- including sensitive information in the parties’ possession pertaining to

11 third parties (see Protective Order issued March 17, 2011) -- to the extent defendants deem it

12 necessary, the parties may file a proposed stipulated amended protective order for the Court’s

13 review prior to the production of documents ordered herein that would provide additional

14 protections for confidential and sensitive information to be produced pursuant to this Order.

15

16 B. Requests Nos. 11, 21, 33: granted in part.

17

Pursuant to Requests Nos. 11 and 21, plaintiff requests all documents relating to any use

18 of force reports involving defendant Rico and/or involving inmates held on the 3000 floor of MCJ,

19 including any such reports, any investigations into such incidents, and any findings and/or

20 discipline resulting from such investigations. (See Joint Stipulation at 19-20, 27). Specifically, for

21 documents pertaining to defendant Rico (Request No. 11), plaintiff requests documents from the

22 time period “commencing on [defendant Rico’s] first assignment to the jails or January 1, 2006,

23 whichever is later, to the present.” (Joint Stipulation at 19-20). For documents concerning

24 inmates held on the 3000 floor of MCJ (Request No. 21), plaintiff requests documents from

25 January 1, 2006, to the present. (Joint Stipulation at 27).

26

Pursuant to Request No. 33, plaintiff requests “[a]ny and all documents, including notes,

27 reports, investigative interviews, recordings, memos and correspondence, discussing or analyzing

28 whether any deputies deployed to the 3000 unit of [MCJ] in 2009 bore a tattoo of the number

3

Case 2:10-cv-08011-GW-PLA Document 34 Filed 05/23/11 Page 4 of 13 Page ID #:290

1 ‘3000,’ or any other indicia of the unit or modules to which they were assigned within the jail.”

2 (Joint Stipulation at 31).

3

Under Federal Rule of Civil Procedure 26(b)(1), discovery is permitted of “any nonprivileged

4 matter that is relevant to any party’s claim or defense.” As a general matter, Rule 26(b) is to be

5 “liberally interpreted to permit wide-ranging discovery of information,” even if that information is

6 not ultimately admitted at trial. See Comcast of Los Angeles, Inc. v. Top End International, Inc.,

7 2003 WL 22251149, at *2 (C.D. Cal. July 2, 2003); see also Fed.R.Civ.P. 26(b)(1) (“Relevant

8 information need not be admissible at the trial if the discovery appears reasonably calculated to

9 lead to the discovery of admissible evidence.”). The burden is on defendants to show that

10 discovery should not be allowed (Comcast, 2003 WL 22251149, at *2 (citing Blankenship v. Hearst

11 Corp., 519 F.2d 418, 429 (9th Cir. 1975))); it is not up to defendants to decide what plaintiff needs

12 to pursue this action. While defendants complain that plaintiff’s Requests go beyond the bounds

13 of discoverable information, the Court finds that the discovery sought by plaintiff concerns

14 information that is properly and necessarily within the range of relevant material.3

15

As an initial matter, defendants object to the production of documents from defendant

16 Rico’s personnel file, arguing that plaintiff has failed to sufficiently establish that defendant Rico

17 was involved in the alleged incident of excessive force. (Joint Stipulation at 20). The Court

18 disagrees. In the First Amended Complaint (“FAC”), plaintiff identifies defendant Rico as one of

19 the MCJ deputies whom he believes used excessive force against him on October 18, 2009. (See

20 FAC at 4-5). Despite defendants’ contention that plaintiff has not sufficiently established that

21

22 3 It is not the role of the Court in this Motion to determine what evidence the District Judge
23 will actually allow in at a trial in this case, or whether the evidence responsive to Requests Nos.
11, 21, and 33 will be admitted for a permissible purpose. See, e.g., Colonial Life & Accident 24 Insur. Co. v. Superior Court of Los Angeles County, 31 Cal.3d 785, 791, n. 8 (1982) (quoting
25 Pacific Tel. & Tel. Co. v. Superior Court, 2 Cal.3d 161, 172-73 (1970) (“[Courts] may appropriately give the applicant [for discovery] substantial leeway, especially when the precise issues of the
26 litigation of the governing legal standards are not clearly established [citation]; a decision of relevance for purposes of discovery is in no sense a determination of relevance for purposes of
27 trial.”) (brackets in original)). At this discovery stage of the proceedings, the Court has determined
28 that the requested documents as limited herein are relevant to plaintiff’s claims.

4

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1 defendant Rico was actually involved in the incident, and defendant Luviano’s apparent deposition

2 testimony that defendant Rico was not involved (see Joint Stipulation at 20), defendants have

3 failed to point to any specific evidence (such as a deposition statement by plaintiff) in which

4 plaintiff acknowledged that he is not confident that defendant Rico was involved. Neither has

5 plaintiff withdrawn his allegations in the FAC as to defendant Rico. Accordingly, the Court

6 concludes that the requested documents pertaining to defendant Rico are discoverable, as such

7 “discovery appears reasonably calculated to lead to the discovery of admissible evidence” in

8 support of plaintiff’s claim of excessive force against defendant Rico. See Fed.R.Civ.P. 26(b)(1).

9

Further, the Court agrees with plaintiff that documents concerning use of force reports

10 pertaining to defendant Rico and/or detainees of the 3000 floor of MCJ are relevant to plaintiff’s

11 Monell claim. Specifically, such reports may show, among other things, that the defendant entity

12 had a custom or practice of allowing personnel to commit incidents similar to the misconduct

13 alleged herein, i.e., that the conduct that occurred was so prevalent as to constitute either a

14 custom or policy of the entity, which plaintiff will need to show to prevail on his Monell claim.

15 See Monell, 436 U.S. at 694 (plaintiff may hold a local government entity responsible under § 1983

16 for a constitutional injury only if he can show that his injury resulted from a policy, practice, or

17 custom made by the entity’s “lawmakers or by those whose edicts or acts may fairly be said to

18 represent official policy”); see also Delia v. City of Rialto, 621 F.3d 1069, 1081-82 (9th Cir. 2010)

19 (as amended) (plaintiff must show that the alleged “constitutional violation result[ed] from: (1) an

20 employee acting pursuant to an expressly adopted official policy; (2) an employee acting pursuant

21 to a longstanding practice or custom; or (3) an employee acting as a final policymaker”)

22 (quotations and citation omitted). Prior instances of, for example, use of force in dealing with

23 inmates by defendant Rico, or by any other MCJ personnel against inmates held on the 3000 floor

24 of MCJ, could show that defendant Rico’s or other MCJ personnel’s propensity for using excessive

25 force against inmates was known to the entity, and that the entity condoned the behavior, which

26 could trigger municipal liability.

27

Similarly, the Court agrees with plaintiff’s contention that evidence indicating that some MCJ

28 deputies sport tattoos identifying their assignment to the 3000 floor is relevant to show, among

5

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1 other things, “the indifference of jail officials to guards taking on their own personal ‘vigilante’

2 system to enforce order in the jails.” (Joint Stipulation at 31). Such evidence would in turn support

3 plaintiff’s Monell claim, as it would help establish plaintiff’s contention in the FAC that the

4 defendant entity has a policy and practice of exercising “deliberate indifference, gross negligence,

5 and reckless disregard” for the safety and security of MCJ inmates by selecting, retaining, and

6 assigning officers with demonstrable propensities for misconduct and who believe “they have free

7 reign to engage in excessive force against inmates.” (FAC at 2).

8

Defendants’ objections to many of the subject Requests as being vague and ambiguous

9 are overruled. While the Court recognizes that in some instances a discovery request may be so

10 vague or ambiguous as to not allow a response (see, e.g., Dubin v. E.F. Hutton Group Inc., 125

11 F.R.D. 372, 376 (S.D.N.Y. 1989)), such is not the case here. Rather, the Court finds that the

12 terms used by plaintiff in his discovery Requests are not presented in a vague or ambiguous

13 manner, and can readily be responded to using the common and ordinary meanings of those

14 terms. They do not involve matters of opinion, are not dependent on subjective standards of

15 measurement, and provide a reasonably clear indication of the information being sought. Indeed,

16 many of the terms in Request No. 11 that defendants assert are vague are the exact same terms

17 that defendants use in agreeing to produce documents responsive to Requests Nos. 9 and 10.

18 (Compare Joint Stipulation at 17-18 with Joint Stipulation at 19). In order to aid the quest for

19 relevant information, the parties should not seek to evade disclosure by quibbling and objection.

20

Turning to the specific privilege objections raised by defendants, the party who withholds

21 discovery materials based on a privilege must provide sufficient information (i.e., a privilege log)

22 to enable the other party to evaluate the applicability of the privilege or other protection.

23 Fed.R.Civ.P. 26(b)(5); see Clarke v. American Commerce Nat’l Bank, 974 F.2d 127, 129 (9th Cir.

24 1992). Failure to provide sufficient information may constitute a waiver of the privilege. Asserting

25 a “blanket objection” to plaintiff’s Requests will be found to be insufficient and improper. Davis v.

26 Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981) (blanket privilege objection is improper); see Clarke,

27 974 F.2d at 129 (blanket assertions of privilege are “extremely disfavored”). It appears that

28 defendants have not provided plaintiff with a privilege log identifying the documents that have been

6

Case 2:10-cv-08011-GW-PLA Document 34 Filed 05/23/11 Page 7 of 13 Page ID #:293

1 withheld pursuant to their various privilege objections. This failure alone could warrant the Court’s

2 rejection of defendants’ asserted privileges. See United States v. Construction Products

3 Research, Inc., 73 F.3d 464, 473-74 (2d Cir. 1996) (claim of privilege may be rejected where

4 claimant provides deficient privilege log). In any event and as explained below, the Court finds

5 that defendants have failed to demonstrate that documents responsive to Requests Nos. 11, 21,

6 and 33 may be withheld based on the asserted privileges.

7

Defendants’ objections based on attorney-client privilege and the work product doctrine are

8 overruled. “Under California law, the attorney-client privilege attaches to confidential

9 communications between a client and his attorney during the course of the attorney-client

10 relationship. The party asserting the attorney-client privilege bears the burden of demonstrating

11 the existence of the privilege.” QST Energy, Inc. v. Mervyn’s and Target Corp., 2001 WL 777489,

12 *2 (N.D. Cal. May 14, 2001) (citations omitted). The attorney-client privilege applies when “(1)

13 legal advice is sought (2) from a professional legal advisor in his capacity as such, and (3) the

14 communications relating to that purpose (4) are made in confidence (5) by the client.” Griffith v.

15 Davis, 161 F.R.D. 687, 694 (C.D. Cal. 1995). Here, defendants have set forth no evidence in the

16 Joint Stipulation establishing that counsel was contacted for the purpose of providing legal advice

17 about the matters at hand. Thus, the purpose of the privilege -- to protect disclosures necessary

18 to obtain informed legal advice and to encourage “full and frank disclosure by the client to his or

19 her attorney” -- has not been implicated here. Clarke, 974 F.2d at 129. Defendants’ blanket

20 assertion in the Joint Stipulation that the attorney-client privilege is implicated as to certain

21 unidentified documents is inadequate.

22

Neither can the Court conclude that the work product doctrine protects any of the requested

23 documents. Rule 26(b)(3) of the Federal Rules of Civil Procedure may “protect against disclosure

24 of the mental impressions, conclusions, opinions, or legal theories of an attorney . . . concerning

25 the litigation.” The work product doctrine “is intended to preserve a zone of privacy in which a

26 lawyer can prepare and develop legal theories and strategy ‘with an eye toward litigation,’ free

27 from unnecessary intrusion by his adversaries.” United States v. Adlman, 134 F.3d 1194, 1196

28 (2d Cir. 1998) (quoting Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451

7

Case 2:10-cv-08011-GW-PLA Document 34 Filed 05/23/11 Page 8 of 13 Page ID #:294

1 (1947)). Furthermore, “[t]o be entitled to the protection of the work product rule, the material must

2 have been generated in preparation for litigation. The prospect of future litigation is insufficient.”

3 Whitman v. United States, 108 F.R.D. 5, 9 (D.N.H. 1985). No showing that documents were

4 generated in preparation of litigation has been made by defendants here; accordingly, this doctrine

5 does not shield the requested documents.

6

Defendants also object to producing the requested documents based in part on California

7 Penal Code §§ 146e, 832.5, 832.7 and 832.8, California Evidence Code §§ 1040 and 1043, and

8 California Government Code § 3300, as well as on privacy concerns. The Court overrules these

9 objections as well. The privileges accorded by California statutory provisions have no applicability

10 in a federal civil rights action. See, e.g., Miller v. Pancucci, 141 F.R.D. 292, 297-99 (C.D. Cal.

11 1992); Kelly v. City of San Jose, 114 F.R.D. 653, 655 (N.D. Cal. 1987). Yet even the California

12 statutes recognize a litigant’s right to have access to the type of information that plaintiff is seeking

13 as long as the information is relevant to the subject matter involved in the pending litigation and

14 the procedures specified therein are followed. See, e.g., California Penal Code § 832.7(a);

15 California Evidence Code §§ 1043 and 1045. The Court finds that the information sought by

16 plaintiff in Requests Nos. 11, 21, and 33 (as limited below) is relevant to plaintiff’s claims in the

17 pending action, and further finds that plaintiff’s need for the discovery outweighs any alleged

18 privacy interest of defendants or third parties whose information may be produced. See Unger

19 v. Cohen, 125 F.R.D. 67, 70-71 (S.D.N.Y. 1989); Tyner v. City of Jackson, 105 F.R.D. 564, 565-66

20 (S.D. Miss. 1985) (“A basic function of federal courts is to facilitate the ascertainment of truth

21 in resolving disputes. . . . [I]nvestigative reports regarding other similar incidents involving any of

22 the individual police officers are also either relevant or will lead to the discovery of admissible

23 evidence.”); Ragge v. MCA/Universal Studios, 165 F.R.D. 601, 604-05 (C.D. Cal. 1995) (the right

24 to privacy is not absolute, but is “subject to invasion depending upon the circumstances”).

25 Moreover, the Court finds that the Protective Order entered in this action strikes the appropriate

26 balance between the need for the information and the privacy interests of defendants or third

27 parties, and the Court will entertain a stipulated amended protective order to further address the

28 privacy concerns raised by defendants. See, e.g., King v. Conde, 121 F.R.D. 180, 191-92

8

Case 2:10-cv-08011-GW-PLA Document 34 Filed 05/23/11 Page 9 of 13 Page ID #:295

1 (E.D.N.Y. 1988) (rejecting police officers’ claim of privacy interest in their professional personnel

2 records); Knoll v. American Tel. & Tel. Co., 176 F.3d 359, 365 (6th Cir. 1999) (approving of

3 protective orders to protect non-parties from “the harm and embarrassment potentially caused by

4 nonconfidential disclosure of their personnel files”).

5

Next, while federal common law recognizes that a privilege for official information exists,

6 and that government personnel files are official information, the privilege is only qualified. Kerr

7 v. United States District Court, 511 F.2d 192, 198 (9th Cir. 1975), aff’d., 426 U.S. 394 (1976). In

8 order to determine if a privilege exists that would bar discovery, a court “must weigh potential

9 benefits of disclosure against potential disadvantages; . . . [s]uch balancing should be considered

10 on a case by case basis, determining what weight each relevant consideration deserves in the

11 fact-specific situation that is before the Court.” Miller, 141 F.R.D. at 299-300 (emphasis added).

12 See also Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990), cert. denied, 502

13 U.S. 957 (1991). The court in Miller noted that the balancing test has been “moderately pre-

14 weighted in favor of disclosure.” Miller, 141 F.R.D. at 300 (citing Kelly, 114 F.R.D. at 662).

15

Before the balancing test is even conducted, however, certain requirements must be met.

16 Among other things, the party asserting the official information privilege must sufficiently identify

17 the documents so as to afford the requesting party an opportunity to challenge the assertion of the

18 privilege. Miller, 141 F.R.D. at 300. As stated above, there is no indication that defendants

19 provided plaintiff with a privilege log to do just that. In addition, the opposing party must also

20 submit a declaration from the head of the department with control over the issue containing, in

21 part, “a specific identification of the governmental or privacy interests that would be threatened by

22 disclosure.” Id. (quoting Kelly, 114 F.R.D. at 670). Once the department head’s objections are

23 received, and access to the requested information is still sought, a protective order should be

24 entered into to preserve confidentiality. Only if a protective order cannot be reached should resort

25 to the Court be had. Miller, 141 F.R.D. at 301. If the threshold burden of showing why production

26 is not warranted has not been met, the “privilege assertion will be overruled in its entirety and

27 complete disclosure will be ordered.” Id.

28

9

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1

Here, defendants through the declaration of Captain Shaun Mathers, supervisor in the Risk

2 Management Bureau of the Los Angeles County Sheriff’s Department, have asserted that

3 production of the documents requested by plaintiff would be harmful because Sheriff Department

4 personnel would need to be reassigned from other duties to respond to the Requests, and the task

5 of looking for responsive documents would “consum[e] [an] inordinate amount of time, expense,

6 and resources.” (See Mathers Decl. at ¶¶ 7-10). Captain Mathers’ declaration, however, is

7 generic in nature, and does not specifically address how “disclosure of the requested information

8 in this case would be harmful.” Miller, 141 F.R.D. at 301 (emphasis in original). Neither does the

9 declaration set forth to the Court’s satisfaction how disclosure pursuant to a carefully crafted

10 protective order would harm a “significant government interest and how much harm would be done

11 to those interests by disclosure in this particular case.” Id. (citing Kelly, 114 F.R.D. at 670)

12 (emphasis added). Generalized concerns that producing responsive documents would be time

13 consuming and would divert resources are inadequate to prevent disclosure of this relevant

14 information.4

15

16

4 Furthermore, it is insufficient for an objecting party to simply invoke generalized objections

17

of burdensomeness; rather, with respect to the discovery requests, the opposing party must show specifically how, despite the broad and liberal construction

18

afforded the federal discovery rules, each [request] is not relevant or

how each [request] is overly broad, burdensome or oppressive by

19

submitting affidavits or offering evidence revealing the nature of the

burden. 20 Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296-97 (E.D. Pa. 1980) (citations omitted);

21 Wirtz v. Capitol Air Service, Inc., 42 F.R.D. 641, 643 (D. Kan. 1967). For a burdensomeness argument to be sufficiently specific to prevail, it must be based on affidavits or other evidence

22 showing the exact nature of the burden. Kansas-Nebraska Natural Gas v. Marathon Oil Co., 109

F.R.D. 12, 24 (D. Neb. 1985) (party objecting to production requests must specify why the

23 requests are objectionable); Roesberg, 85 F.R.D. at 296-97. The Mathers declaration fails in this

regard.

24

Many of defendants’ contentions of burdensomeness do not take into account the more

25 limited scope of the Requests presented by plaintiff in the Joint Stipulation. Specifically, in opposing Request No. 11, defendants assert that it would be too burdensome to produce use of

26 force reports pertaining to defendant Rico since 2004 (see Joint Stipulation at 24-25), even though

plaintiff narrowed his Request to only those reports dated “on [defendant Rico’s] first assignment 27 to the jails or January 1, 2006, whichever is later, to the present.” (Joint Stipulation at 20).

28

Similarly, in opposing Request No. 21, defendants argue that it would be too burdensome for (continued...)

10

Case 2:10-cv-08011-GW-PLA Document 34 Filed 05/23/11 Page 11 of 13 Page ID #:297

1

Defendants’ reliance on Sanchez v. City of Santa Ana in support of its privilege argument

2 is misplaced. (See Joint Stipulation at 22-23). Sanchez involved a plaintiff’s efforts to obtain

3 statistical data from personnel records in an employment discrimination case. See Sanchez, 936

4 F.2d at 1033. That same statistical data was also available from a government agency, however,

5 so resort to the personnel records was not required. Id. at 1034. Defendants have not established

6 that the alternate avenues to obtain the requested information available in Sanchez are present

7 here. See also Soto v. City of Concord, 162 F.R.D. 603, 615-16 (N.D. Cal. 1995) (rejecting

8 defendant police officers’ assertion of official information privilege under Sanchez, where

9 defendants failed to show that the information sought by plaintiff from police documents could be

10 obtained from another source). Further, even assuming that the Mathers declaration was

11 sufficient to satisfy defendants’ threshold burden under Miller and Kelly with respect to the “official

12 information” privilege, the Court finds that the speculative, potential disadvantages of disclosure

13 cited therein are outweighed by plaintiff’s legitimate need for the discovery sought by these

14 Requests. While the Court recognizes defendants’ concerns that disclosure could result in harm

15 to defendants as well as to governmental and societal interests, the Court agrees with the

16 reasoning of the Kelly court that internal investigation files are “presumptively discoverable” where

17 plaintiff makes a proper showing of relevance. Kelly, 114 F.R.D. at 666. Such a showing has

18 been made here, especially when production is subject to a protective order.

19

Defendants’ reliance on the “self-critical analysis” privilege is also misplaced. No such

20 privilege exists under federal common law. Griffith v. Davis, 161 F.R.D. 687, 701 (C.D. Cal. 1995);

21 see Dowling v. American Hawaii Cruises, Inc., 971 F.2d 423, 425 n.1 (9th Cir. 1992) (“The

22

23

4(...continued)

defendants to produce use of force reports for all of MCJ since 2006 (Joint Stipulation at 28), even 24 though plaintiff limited the Request to only those documents dated since January 2006 relating

25 to detainees or inmates held on the 3000 floor of MCJ. (Joint Stipulation at 27). Nevertheless, with respect to plaintiff’s request for use of force reports relating to detainees or inmates held on

26 the 3000 floor of MCJ, the Court concludes that the scope of the Request -- dating back to 2006 -is overbroad. Further, to the extent plaintiff requests documents pertaining to MCJ deputies

27 bearing tattoos or other indicia of units or modules to which they were assigned on floors other

28

than the 3000 floor, the Court finds Request 33 overbroad. Accordingly, the Court finds it appropriate to further limit the Requests as set forth below.

11

Case 2:10-cv-08011-GW-PLA Document 34 Filed 05/23/11 Page 12 of 13 Page ID #:298

1 Supreme Court and the circuit courts have neither definitively denied the existence of such a

2 privilege, nor accepted it and defined its scope.”); see Carman v. McDonnell Douglas Corp., 114

3 F.3d 790, 793 (8th Cir. 1997) (suggesting that new evidentiary privileges are “not lightly created”

4 under federal common law).

5

With the above context in mind, the Court grants plaintiff’s Requests Nos. 11, 21, and 33,

6 in part, as follows5:

7

8

1. Request No. 11: granted.

9

Defendants must produce all documents in their possession, custody, or control relating

10 to any use of force reports involving defendant Rico, including any such reports, any investigations

11 into such incidents, and any findings and/or discipline resulting from such investigations from the

12 time period commencing on defendant Rico’s first assignment to the jails or January 1, 2006,

13 whichever is later, to the present.

14

2. Request No. 21: granted in part.

15

Defendants must produce all documents in their possession, custody, or control pertaining

16 to or constituting use of force reports, investigations into use of force incidents, findings of such

17 investigations, and imposition of discipline as a result of such use of force relating to detainees

18 or inmates held on the 3000 floor of MCJ, limited to the time frame of October 18, 2007, to the

19 present.

20

3. Request No. 33: granted in part.

21

Defendants must produce all documents in their possession, custody, or control discussing

22 or analyzing whether any deputies deployed to the 3000 floor of MCJ in 2009 bore a tattoo of the

23 number “3000,” or bore any other indicia of association with the units or modules of floor 3000.

24 /

25 /

26

27

5 The Court declines defendants’ invitation to conduct an in camera review prior to ordering

28

the production of documents. Rather, with the limits imposed herein and the use of a protective order, defendants’ concerns have been addressed by the Court.

12

Case 2:10-cv-08011-GW-PLA Document 34 Filed 05/23/11 Page 13 of 13 Page ID #:299

1

CONCLUSION

2

Plaintiff’s Motion to Compel is granted in part as set forth above. Within fifteen (15)

3 calendar days of the date of this ruling, defendants are ordered to produce all documents in

4 their possession, custody, or control responsive to plaintiff’s requests for production, as detailed

5 above. The Court will make the production of documents subject to an appropriately drafted

6 stipulated amended protective order, which the parties may submit to the Court for review prior

7 to the production of these documents.6 If the parties are unable, working in good faith, to stipulate

8 to an amended protective order within seven (7) calendar days of the date of this ruling, each party

9 may submit a proposed protective order for the Court’s consideration no later than June 1, 2011.

10 The proposed protective orders should indicate which section(s) were not agreeable to the other

11 party. The Court will then enter an amended protective order that will control this action.

12

13 DATED: May 23, 2011 14

PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE

15

16

17

18

19

20

21

22

23

24

25

26 6 The Court advises that a proposed amended stipulated protective order should, among
27 other things, indicate that documents produced herein may be used only in connection with this
28 action.

13

 
 Case 2:10-cv-08011-GW-PLA Document 51 Filed 10/12/11 Page 1 of 6 Page ID #:782

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11

12 MICHAEL HOLGUIN,

13

Plaintiff,

14

v.

15 COUNTY OF LOS ANGELES, et al.,

16

Defendants.

17

) No. CV 10-8011-GW (PLAx) ) ) ) ORDER RE: DEFENDANTS’ EX PARTE ) APPLICATION FOR PROTECTIVE ORDER ) ) ) ) )

18

On October 7, 2011, defendants filed an Ex Parte Application (“Application”) seeking a

19 protective order barring plaintiff from deposing defendant Sheriff Leroy Baca as well as non-parties

20 Captain John Clark, Undersheriff Paul Tanaka, and retired Commander Dennis Conte. Plaintiff

21 filed an Opposition to the Application (“Opposition”) on October 10, 2011.

22

By way of background, plaintiff first noticed the depositions of Clark, Tanaka, and Conte

23 on September 16, 2011, to occur at the beginning of October. (Declaration of Virginia Keeny in

24 Support of Opposition, at ¶ 14). Due to a scheduling conflict, counsel agreed to postpone the

25 depositions until the last week of October. (Id., at ¶ 15). On September 21, 2011, plaintiff served

26 amended deposition notices for Conte, Clark, and Tanaka, with depositions set for October 25,

27 2011, and October 26, 2011. (See Declaration of Nathan A. Oyster in Support of Application, Exs.

28

Case 2:10-cv-08011-GW-PLA Document 51 Filed 10/12/11 Page 2 of 6 Page ID #:783

1 A-C). On September 29, 2011, plaintiff also served a notice for Sheriff Baca, setting a deposition

2 date of October 28, 2011. (See id., Ex. D).

3

As an initial matter, plaintiff argues in his Opposition that defendants did not have good

4 cause to file the instant Application on an ex parte basis. (Opposition at 5-8). Defendants contend

5 that they were justified in proceeding ex parte because counsel were unable to reach an

6 agreement about the depositions through the meet and confer process, after which “[d]efendants’

7 counsel would be unable to timely prepare a Local Rule 37-2 joint stipulation with [p]laintiff prior

8 to the October 25 deposition of [Clark].” (Application at 5). While proceeding on an ex parte basis

9 is generally frowned upon (ex parte applications are for extraordinary relief and should be used

10 with discretion (see Mission Power Engineering Co. v. Continental Casualty Co., 883 F.Supp. 488

11 (C.D. Cal. 1995))), whether the circumstances here qualify as a true emergency is a close call, and

12 the Court will rule on the instant Application, especially since plaintiff has thoroughly briefed the

13 issues presented therein.1

14

Turning to the merits, defendants seek to bar the depositions of Captain Clark, Undersheriff

15 Tanaka, and retired Commander Conte on two grounds: 1. that they are third parties to the case

16 from whom plaintiff seeks information that is not relevant to plaintiff’s claims, and thus the

17 depositions would be unduly burdensome; and 2. that they “are or were high-ranking government

18 officials who are not subject to deposition.” (Application at 5-8).

19

As to defendants’ relevance arguments, under Rule 26(b)(1) of the Federal Rules of Civil

20 Procedure, discovery is permitted of “any nonprivileged matter that is relevant to any party’s claim

21 or defense.” As a general matter, Rule 26(b) is to be “liberally interpreted to permit wide-ranging

22

23

1 The Court notes that the process involved in filing a regularly-noticed motion relating to

discovery pursuant to Local Rule 37 usually takes no less than 38 days (10 days from defendants’ 24 service of a letter on plaintiff requesting a pre-filing conference until the actual conference; seven

25

days from defendants’ delivery of their portion of the joint stipulation to plaintiff until plaintiff delivers his portion of the joint stipulation back to defendants; and 21 days from the filing of the

26 motion until the hearing (see Local Rule 37)). Thirty-eight days from September 16, 2011, the day plaintiff first noticed the depositions of Clark, Tanaka, and Conte, is October 24, 2011. Thus, even

27 if defendants had immediately initiated the process pursuant to Local Rule 37 to seek a protective

order, the issue may not have been resolved until just one day before the first scheduled 28 deposition date of October 25, 2011.

2

Case 2:10-cv-08011-GW-PLA Document 51 Filed 10/12/11 Page 3 of 6 Page ID #:784

1 discovery of information,” even if that information is not ultimately admitted at trial. See Comcast

2 of Los Angeles, Inc. v. Top End International, Inc., 2003 WL 22251149, at *2 (C.D. Cal. July 2,

3 2003); see also Fed.R.Civ.P. 26(b)(1) (“Relevant information need not be admissible at the trial

4 if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”).

5 Here, the burden is on defendants, as the party resisting discovery, to show that discovery should

6 not be allowed (Comcast, 2003 WL 22251149, at *2 (citing Blankenship v. Hearst Corp., 519 F.2d

7 418, 429 (9th Cir. 1975)); it is not up to defendants to decide what plaintiff needs to pursue this

8 action.

9

Neither is it the role of the Court in this Motion to determine what evidence the District

10 Judge will actually allow in at a trial in this case. See, e.g., Colonial Life & Accident Insur. Co. v.

11 Superior Court of Los Angeles County, 31 Cal.3d 785, 791, n. 8 (1982) (quoting Pacific Tel. & Tel.

12 Co. v. Superior Court, 2 Cal.3d 161, 172-73 (1970) (“[Courts] may appropriately give the applicant

13 [for discovery] substantial leeway, especially when the precise issues of the litigation of the

14 governing legal standards are not clearly established [citation]; a decision of relevance for

15 purposes of discovery is in no sense a determination of relevance for purposes of trial.”) (brackets

16 in original)). At the same time, however, the Court is guided by the requirement that “[d]iscovery

17 must be narrowly tailored . . . and must not be a fishing expedition.” Zewdu v. Citigroup Long

18 Term Disability Plan, 264 F.R.D. 622, 626 (N.D. Cal. 2010) (citing Groom v. Standard Ins. Co., 492

19 F.Supp.2d 1202, 1205 (C.D. Cal. 2007)).

20

In cases involving discovery from third parties, Rules 26 and 45 of the Federal Rules of Civil

21 Procedure control. Exxon Shipping Co. v. U.S. Department of Interior, 34 F.3d 774, 779 (9th Cir.

22 1994). Under Rule 26(c), a court may, “for good cause, issue an order to protect a party or person

23 from annoyance, embarrassment, oppression, or undue burden or expense,” including by

24 forbidding the disclosure or discovery. The party seeking to limit discovery has the burden of

25 establishing grounds for the issuance of a protective order. Blankenship, 519 F.2d at 429.

26 Further, a court can quash a Rule 45 subpoena if it subjects a person to undue burden.

27 Fed.R.Civ.P. 45(c)(3)(A)(iv). In reaching its conclusion set forth herein, the Court has balanced

28 the relevance of the discovery sought, the requesting party’s need, defendants’ reasons for

3

Case 2:10-cv-08011-GW-PLA Document 51 Filed 10/12/11 Page 4 of 6 Page ID #:785

1 seeking the protective order and any potential burden on defendants if the depositions are

2 permitted, and the potential hardship to the individuals subject to the subpoena. Heat and Control,

3 Inc. v. Hester Industries, Inc., 785 F.2d 1017, 1024 (Fed. Cir. 1986).

4

As to retired Commander Conte, while plaintiff states in his Opposition that “[t]he practice

5 by which Sheriff’s Deputies fake records, and any measures taken by Defendant Baca and

6 commanding officers John Clark, Dennis Conte, and Paul Tanaka to uncover and/or combat this

7 practice is . . . highly relevant to this matter” (see Opposition at 9), plaintiff does not allege what

8 role, if any, Conte had with regard to the Los Angeles County Men’s Central Jail (“MCJ”), and

9 whether he was in that position at the time of the alleged incident giving rise to this cause of

10 action, or any other relevant time period. As such, while defendants have the burden of showing

11 that the discovery of any nonprivileged matter relevant to plaintiff’s claim should not be allowed,

12 plaintiff has not even made the threshold showing that the deposition of Conte could lead to the

13 discovery of information relevant to plaintiff’s claim. Thus, defendants’ Application as to Conte is

14 granted.

15

Plaintiff’s Opposition does set forth specific allegations as to Undersheriff Tanaka and

16 Captain Clark. As to Tanaka, plaintiff alleges the following: that he is the highest ranking officer

17 in the Los Angeles County Sheriff’s Department (“LASD”) after Sheriff Baca; that he oversees the

18 “day-to-day operations” of the department; that as the former “Assistant Sheriff overseeing the

19 Custody and Corrections Division of the Department, [] Tanaka’s testimony will be highly relevant

20 to Plaintiff’s discovery of the LASD’s Internal Affairs investigation process and policy changes, or

21 the absence of policy changes, that have occurred following findings of wrongdoing by Sheriffs

22 Deputies in County Jails.” (See Opposition at 12-13). As to Clark, plaintiff alleges that he was “at

23 one time” and until 2006 or 2007 the Captain responsible for MCJ, and that Clark was reassigned

24 within the LASD shortly after instituting a policy to rotate sheriff’s deputies at MCJ between floors

25 “to disrupt gang-like activity by Deputies.” (Id. at 13). Plaintiff’s complaint includes a Monell claim

26 for County liability for the LASD’s use of force against inmates, its internal procedures for

27 investigating use of force incidents, and its lack of discipline of problem officers. (Id. at 4-5, 8).

28 Plaintiff’s allegations as to Tanaka and Clark are sufficient to reveal that they may possess

4

Case 2:10-cv-08011-GW-PLA Document 51 Filed 10/12/11 Page 5 of 6 Page ID #:786

1 information relevant to plaintiff’s Monell claim. Moreover, plaintiff states that he has been unable

2 to discover information relevant to this claim through prior interrogatories and depositions. (Id. at

3 7-8). On the other hand, while defendants cite Rule 45(c)(3)(A)(iv) of the Federal Rules of Civil

4 Procedure for the proposition that the depositions plaintiff seeks will subject those deposed to

5 undue burden, defendants do not specify how they, or Tanaka and Clark, would be burdened by

6 allowing plaintiff to depose Tanaka and Clark. After balancing the factors set out in Heat and

7 Control, the Court finds it inappropriate to bar Tanaka’s and Clark’s depositions on the ground of

8 undue burden.

9

Next, defendants seek to bar the depositions of Tanaka and Clark2 on the ground that they

10 are high ranking officials who are not subject to deposition absent extraordinary circumstances.

11 (Application at 8-11). In support, defendants rely on cases identifying the following as high ranking

12 government officials in the context of discovery and trial testimony: Administrator of the Small

13 Business Administration (Kyle Engineering Co. v. Kleppe, 600 F.2d 226, 228, 231 (9th Cir. 1979));

14 the mayor of Boston (Bogan v. City of Boston, 489 F.2d 417, 423 (1st Cir. 2007)); the Illinois state

15 attorney general (Stagman v. Ryan, 176 F.3d 986, 994 (7th Cir. 1999), cert. denied, 528 U.S. 986

16 (1993)); Commissioner of the Food and Drug Administration (In re United States of America, 985

17 F.2d 510, 512 (11th Cir. 1993) (per curiam), cert. denied sub nom., Faloon v. United States, 510

18 U.S. 989 (1993)); top Department of Labor officials (Simplex Time Recorder Co. v. Secretary of

19 Labor, 766 F.2d 575, 586 (D.C. Cir. 1985)); and the governor of Missouri (Sweeney v. Bond, 669

20 F.2d 542, 546 (8th Cir. 1982), abrogated on other grounds, O’Hare Truck Service, Inc. v. City of

21 Northlake, 518 U.S. 712 (1996)). Based on these cases, defendants have not shown that Clark

22 and Tanaka are “heads of government agencies . . . not normally subject to deposition” within the

23 meaning of Kyle Engineering. See Kyle Engineering, 600 F.2d at 231. Because Tanaka and

24 Clark do not qualify as high ranking officials, and because plaintiff has sufficiently shown that

25 Tanaka’s and Clark’s depositions may allow plaintiff to discover information relevant to his claims,

26 defendants’ Application as to Tanaka and Clark is denied.

27

28

2 As the Court is granting defendants’ Application as to Conte for the reason discussed supra, it does not include Conte in its discussion of this portion of defendants’ argument.

5

Case 2:10-cv-08011-GW-PLA Document 51 Filed 10/12/11 Page 6 of 6 Page ID #:787

1

Defendants also seek to bar the deposition of Sheriff Baca on the ground that he is a high

2 ranking official not subject to deposition absent extraordinary circumstances. Case law supports

3 defendants’ classification as to Sheriff Baca. See Jarbo v. County of Orange, 2010 WL 3584440,

4 at *2 (C.D. Cal. Aug. 30, 2010) (concluding that the Sheriff of Orange County was a high-ranking

5 government official not subject to deposition absent extraordinary circumstances); Avalos v. Baca,

6 2006 WL 6220447, at *2 (C.D. Cal. Oct. 16, 2006) (citing Green v. Baca, 226 F.R.D. 624, 648

7 (C.D. Cal. 2005) (An exception to the general rule on deposing high ranking officials exists for

8 officials who “have direct personal factual information pertaining to material issues in an action

9 . . . [and] where the information to be gained . . . is not available through any other source. Sheriff

10 Baca has answered written interrogatories, there are likely other sources of additional information

11 available, such as lower ranking officials, and it is unlikely that Sheriff Baca has any personal

12 knowledge of the facts surrounding Plaintiff’s specific situation.”) (internal citation and quotations

13 omitted); see also Slone v. Judd, 2011 WL 1584421, at *1-2 (M.D. Fla. Apr. 26, 2011) (barring the

14 deposition of the sheriff of Polk County, Florida); Gray v. Kohl, 2008 WL 1803643, at *1 (S.D. Fla.

15 Apr. 21, 2008) (finding the sheriff of Monroe County, Florida, “entitled to the heightened protection

16 from discovery often afforded to high ranking officials”). Here, plaintiff has not shown that Baca

17 has “direct personal factual information pertaining to material issues” in this action. See Green,

18 226 F.R.D. at 648. Further, as the Court is denying defendants’ Application as to Tanaka and

19 Clark, plaintiff will have the opportunity to depose these two individuals, and thus he has not

20 convinced the Court that the information to be gained from a deposition of Sheriff Baca “is not

21 available through any other source.” See id.

22

Based on the above, defendants’ Application seeking a protective order barring plaintiff

23 from deposing Sheriff Baca and Commander Conte is granted, and is denied as to Undersheriff

24 Tanaka and Captain Clark.

25

26 DATED: October 12, 2011 27

PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE

28

6

 
 Case 2:10-cv-08011-GW-PLA Document 101 Filed 05/09/12 Page 1 of 35 Page ID #:4357

1 DENNIS M. GONZALES, State BarNo. 59414 dgonza1es(Clllbaclaw.com
2 RA.YMOND W. SAKAI, State Bar No. 193507 rsakai(allbaclaw.com
3 CHRISTOPHER T. KIM, State Bar No. 279214 ckim(a\lbaclaw .com
4 LAWRENCE BEACH ALLEN & CHOI, PC 100 West Broadway, Suite 1200
5 Glendale, California 91210-1219 Telephone No. (818) 545-1925
6 Facsimile No. (818) 545-1937 7 Attorneys for Defendants
County of Los Angeles, Sheriff Leroy D. Baca, 8 Fernando Luviano, and David Ortega

9

10

UNITED STATES DISTRICT COURT

11

CENTRAL DISTRICT OF CALIFORNIA

12

13 MICHAEL HOLGUIN,

Case No. CV 10-08011 GW (PLAx)

14

Plaintiff,

Honorable George H. Wu

15

vs.

16 COUNTY OF LOS ANGELES LOS ANGELES COUNTY SHERIFF'S
17 DEPARTMENT, SHERIFF LEE 18 BFEARCNAA1 NDDEPOULTUYVRIIACNq,u_,DDEEPPUUTTYY
LASCANO, AND DOES 1-10,
19
Defendants.
20

DEFENDANTS' NOTICE OF INTERLOCUTORY APPEAL OF DENIAL OF QUALIFIED IMMUNITY

21

22

23

TO THE HONORABLE COURT, ALL PARTIES, AND TO THEIR

24 COUNSEL OF RECORD:

25

PLEASE TAKE NOTICE that Defendants Los Angeles County Sheriff

26 Leroy D. Baca and Deputy David Ortega (hereinafter "Defendants") hereby

27 appeal to the United States Court of Appeals for the Ninth Circuit from the

28 Tentative Rulings ofthis Court dated and filed on February 23 (see February 23,

1
HOLGUIN\Notice~QI Appeal

Case 2:10-cv-08011-GW-PLA Document 101 Filed 05/09/12 Page 2 of 35 Page ID #:4358

2012, Tentative Ruling, a true and correct copy of which is attached hereto as

2 Exhibit "A") and March 26,2012 (see March 26,2012, Tentative Ruling, a true

3 and correct copy of which is attached hereto as Exhibit "B"), denying the

4 Defendants' request for qualified immunity. Although the Court has not issued a

5 final order yet, Defendants are filing this Notice of Interlocutory Appeal of Denial

6 of Qualified Immunity out of an abundance of caution within thirty days from the

7 Court's final ruling on April12, 2012, (see April 12, 2012, Ruling on Defendants'

8 Motion For Summary Judgment, or in the Alternative, Summary Adjudication, a

9 true and correct copy of which is attached hereto as Exhibit "C"), wherein the

10 Court granted in pmi and denied in part Defendants' Motion For Summary

II Judgment, or in the Alternative, Summary Adjudication. Parties in this matter are

12 in the process of drafting a joint proposed order.

13

This interlocutory appeal is expressly authorized by Ortiz v. Jordan,

14 U.S. _ , 131 S.Ct. 884, 891, 178 L.Ed.2d 703 (20 11 ), citing Mitchell v. Forsyth,

15 472 U.S. 511, 525-527, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) and Knox v.

16 Southwest Airlines, 124 F.3d 1103, 1106-1107 (9th Cir. 1997) on the basis that

17 the Defendants' alleged conduct did not violate Plaintiffs constitutional rights

18 and did not violate clearly established law.

19

20 Dated: May 9, 2012

LAWRENCE BEACH ALLEN & CHOI, PC

21

22

By

/s/ Christopher T. Kim

23

Christopher T. Kim

Attorneys for Defendants

24

Sheriff Leroy D. Baca and David

25

Ortega

26

27

28

2
HOLGUIN\Notice-Ql Appeal

Case 2:10-cv-08011-GW-PLA Document 101 Filed 05/09/12 Page 3 of 35 Page ID #:4359
EXHIBIT "A"

.•CCaassee22::1100--ccvv--0088001111--GGWW-P-PLALA D.·o·~ccuummeenntt18091 FFiilleedd 0025//2039//1122 PPaagg~eA)4ooff935PaPgaegIeDID#:4#2:443960

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES -GENERAL

:.base'N;~. c~ite;: :';:;>:·_'_:'·::::-

_CV_1_ 0-8_ 01_ 1-G_W..(:P._L_A..x..):__ _ _ _ _ _ _ _ _ _~

February 23,2012

i•:.~it,I~..... '·· Michael Holguin v. County ofLos Angeles, eta!.

Javier Gonzalez Deputy Clerk

Pat Cuneo Court Reporter I Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Virginia Keeny

Nathan A. Oyster

PROCEEDINGS:

DEFENDANTS COUNTY OF LOS ANGELES, SHERIFF LEROY D. BACA, FERNANDO LUVIANO, DAVID ORTEGA, AND GIOVANNI RICO'S MOTION FOR SUMMARY JUDGEMENT (filed 12/15111)

The Court's Tentative Ruling is circulated and attached hereto. Court hears oral argument. For reasons stated on the record, the motion is continued to March 19, 2012 at 8:30 a.m. Parties may file a threepage brief regarding the points raised in the tentative by March 12, 2012.

CV-90 (06/04)

12

Initials ofPreparer -JG- - - - - - -

CIVIL MINUTES • GENERAL

Pagel of 1

CCaassee22::1100--ccvv--0088001111--GGWW-P-PLALA DDocoucummeennt t18091 FFiilleedd 0052//2039//1122 PPaaggee 25ooff935PaPgaeg1e0ID#:4#2:453061

'

Holguin v. Counrv o(Los Angeles. et al., Case No. CV-10-8011

Tentative Ruling on Defendants County of Los Angeles, Sheriff Leroy D. Baca, Fernando Luviano, David Ortega, and Giovanni Rico's Motion for Summary Judgment
or, in the Alternative, Summary Adjudication

Defendants County of Los Angeles ("COLA"), Sheriff Leroy D. Baca, Fernando Luviano, David Ortega and Giovanni Rico (collectively "Defendants") have moved for summary judgment or, in the alternative, summary adjudication in this prisoner excessive force case1 brought by Michael Holguin ("Plaintiff'), on 12 separate grounds: 1) that there is no genuine issue of material fact that COLA had a custom, policy, or practice sufficient for Monell liability; 2) that Defendants are entitled to judgment as a matter of law on Plaintiff's 42 U.S.C. § 1983 claim because of Plaintiff's failure to state a cognizable claim; 3) that the force used against Plaintiff was reasonable, dooming Plaintiff's section 1983 claim against all Defendants; 4) that COLA is entitled to judgment as a matter of law on Plaintiff's claims under state law in light of the effect of California Government Code section 844.6; 5) that Baca cannot be held vicariously liable; 6) that Baca did not fail to train Luviano and Ortega; 7) that Plaintiff cannot establish that any action taken by Baca was the proximate cause of his injuries; 8) that all individual defendants are entitled to qualified immunity; 9) that Plaintiff's claims under California's Bane Act fail because Plaintiff has not alleged separate conduct causing interference or coercion; I0) that any use of force was reasonable such that there was no battery; 11) that Plaintiff's claim for intentional infliction of emotional distress is barred because Defendants' conduct was not extreme and outrageous and because Plaintiff suffered no severe emotional distress; and 12) that Plaintiff's negligence claims fail because they are not authorized by statute and because no defendant breached any duty to Plaintiff.
Certain of the above issues - issues 2, 3, 4, 5, 8, 10 and 11 - are ready for resolution at this time, in whole or in part. The remainder requires further thought.
1 The First Amended Complaint, filed in this action on February 9, 2011, contains five claims for relief: l) a 42 U.S.C. § 1983 claim for violation of civil rights based on excessive force in violation of the Fourth Amendment; 2) a claim under California Civil Code § 52.1; 3) a claim for battery; 4) a claim for intentional infliction of emotional distress; and 5) a claim for negligence. All five claims are brought against ail Defendants.
1

CCaassee22::1100--ccvv--0088001111--GGWW-P-PLALA DDocoucummeennt t18091 FFiilleedd 00251/02391/1122 PPaaggee 36 ooff935PaPgaegIeDID#:4#2:541362

A. Summary Judgment Standards

~
l

Summary judgment shall be granted when a movant "shows that there is no

I ,

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law." Fed. R. Civ. P. 56(a). In other words, summary judgment should be entered

I

j

against a party "who fails to make a showing sufficient to establish the existence of an

element essential to that party's case, and on which that party will bear the burden of

proof at trial." Parth v. Pomona Valley Hosp. Med. Ctr., 630 F.3d 794, 798-99 (9th Cir.

2010), cert. denied, 131 S.Ct. 2902 (2011). The court does not make credibility

determinations or weigh conflicting evidence at this stage. See T. W: Elec. Serv., Inc., v.

Pac. Elec. Contractors Ass 'n, 809 F.2d 626, 630-31 (9th Cir.1987). All evidence must be

viewed in the light most favorable to the non-moving party. See Hrdlicka v. Reniff, 631

F.3d 1044 (9th Cir. 2011), cert. denied,_ S.Ct. _, 2012 WL 538355 (Feb. 21, 2012).

A moving party without the ultimate burden of persuasion may carry its burden of

production on summary judgment by negating m1 essential element of the opposing

party's claim or defense or by "showing" the opposing party does not have enough

evidence of an essential element of its claim or defense to carry its ultimate burden of

'

persuasion at trial.2 See Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d

1099, 1102 (9th Cir. 2000).

[If] the party moving for summary judgment meets its initial burden of identifYing for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact, the nonmoving party may not rely on the mere allegations in the pleadings in order to preclude summary judgment[, but instead] must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that
there is a genuine issue for trial.

T. W: Elec., 809 F.2d at 630 (citing, muong other cases, Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548,91 L.Ed.2d 265 (1986)). "Summary judgment may be resisted and

2 Although the Ninth Circuit has indicated that the latter of these two methods does not allow the moving party to "require the nonmoving party to produce evidence supporting its claim or defense simply by saying that the nonmoving party has no such evidence," Nissan Fire & Marine Ins. Co., Ltd v. Fritz Cos., Inc., 210 F.3d I099, 1105 (9th Cir. 2000), it has also indicated (by way of a parenthetical citation in an en bane opinion) tbat the necessary "showing" can be made by "pointing out through argument... the absence of evidence to support plaintiffs claim," Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en bane) (quoting Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000)). See also Schwarzer, Tashima, eta!., California Practice Guide: Federal Civil Procedure Before Trial (2011) §§ 14:137-137.1, at
14-46-47.

2

CCaassee22::1100--ccvv--0088001111--GGWW-P-PLALA DDocoucummeennt t18091 FFiilleedd 0052//2039//1122 PPaaggee 47 ooff935PaPgaegIeDID#:4#2:453263

must be denied on no other grounds than that the movant has failed to meet its burden of

demonstrating the absence of triable issues." Henry v. Gill Indus., Inc., 983 F.2d 943,

950 (9th Cir. 1993).

B. Plaintiff Has a Cognizable Section 1983 Claim

Defendants' argument for why Plaintiff does not have a cognizable claim under

42 U.S.C. § 1983 rests upon the fact that the First Amended Complaint relies upon the

Fourth Amendment as the source of the excessive force principle, whereas it is the Eighth

Amendment that applies to Plaintiff's situation. As Plaintiff acknowledges, Defendants

are correct that the Eighth Amendment applies, see Clement v. Gomez, 298 F.3d 898, 903

(9th Cir. 2002), but the Court will allow Plaintiff to proceed under that Amendment and

its applicable standards (in effect, granting Plaintiff leave to amend in that regard, whether examined under Fed. R. Civ. P. 15 or 16).3

Defendants have obviously been aware that it is the Eighth Amendment, and not

the Fourth Amendment, that is implicated on these facts, as they were the ones who

raised it in counection with this motion. They were, therefore, not operating under any

mistake as to the applicable standards. The same facts are germane to claims under both

standards. Defendants have not suggested how they could possibly be prejudiced by

allowing Plaintiff to proceed under the correct standard. Nor have they indicated that

they raised this issue with Plaintiff at any time before filing their summary judgment

i '
i

motion such that Plaintiff could be charged with an uureasonable delay in seeking to

effectively amend his claim.

C. With One Minor Exception, Disputed Facts Concerning the Force Used and Surrounding Circumstances Preclude Resolution at This Stage of Plaintiff's Section 1983 and Battery Claims in Defendants' Favor

Upon review of Plaintiff's deposition, it is plain that there are disputed issues of fact with respect to whether the force at least Luviano used was appropriate under the prevailing standards.4 See Plaintiff's Statement of Genuine Disputes of Material Fact in

3 Cowen v. Bank United ofTexas, FSB, 70 F.3d 937 (7th Cir. 2011), which Defendants cite in their Reply, actually suppmts allowing Plaintiff to "amend" here because there is obviously "some evidence... back[ing] [Plaintiffs claims] up." Id at 944.
4 Of the evidentiary objections Defendants pose to the citations to Plaintiffs depositions, the Court would sustain only a handful (and, of that handful, a few only in part): objections 27 (insofar as Plaintiff testifies to the fact that "nobody" talked to "anybody," but not insofar as he testifies that nobody talked to him), 30

3

CCaassee22:1:100-c-cvv--0088001111--GGWW-P-LPALA DDocoucmumeennt t18091 FFiilleedd 0052//0293//1122 PPaaggee 58 ooff 935 PaPgaegeIDID#:4#2:453364

Opposition to Defendants' Motion for Summary Judgment or, in the Alternative, Summary Adjudication, POR5 ~~ 17-20, 22-27, 29-32, 36-39, and PAF6 ~~ 4, 10-12, 14-

18, 20-21, 23-27, 35, 48, 70, 78-79, 86. This is often true when excessive force cases are

examined at the summary judgment stage. See, e.g., Liston v. County of Riverside, 120

F.3d 965, 976 n.IO (9th Cir. 1997) (examining under Fourth Amendment). Even under

the applicable Eighth Amendment standard, the Court cannot resolve the facts in

Defendants' favor. See Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003) ("In

I

the context of quelling a prison disturbance the question of whether the measure taken

I

inflicted unnecessary and wanton pain and suffering ultimately tums on whether force

:: 'I

l

was applied in a good faith effort to maintain or restore discipline or maliciously and

sadistically for the very purpose of causing harm.") (omitting internal quotation marks)

(quoting Hudson v. McMillian, 503 U.S. I, 6 (1992)); Clement, 298 F.3d at 903.

Here, if Plaintiffs account of the events that transpired is to be believed- and it is

not for the Court, on this motion, to reject that account - Luviano responded to a

completely non-threatening situation by, among other things, handcuffing and then

hitting, kicking and beating (with a metal flashlight) Plaintiff all over his body, causing

serious injury. This would, almost by definition, qualify as malicious and sadistic, done

for the purpose of causing harm. See, e.g., Motley v. Parks, 432 F.3d 1072, 1088 (9th

Cir. 2005) (en bane) ("The use of a force against a person who is helpless or has been

subdued is constitutionally prohibited."); P.B. v. Koch, 96 FJd 1298, 1304 (9th Cir.

1996) ("Because there was no need for force, one can reasonably infer that Koch took

these actions not in good faith but for the purpose of causing harm.").

Plaintiff has similarly made out a claim for battery against at least Luviano. "The

elements of a battery claim in California are that (I) the defendant intentionally did an

(as to page 97:20-25 of the deposition transcript), 46 (as to pages 192:11-16 and 192:23-193:4), 47 (the entire portion) and 51 (as to page 160:6-15). None of those rulings have any effect on the Court's conclusion that there are triable issues of fact with respect to the use of force.
5 "POR" refers to that portion of Plaintiffs Statement of Genuine Disputes of Material Fact in Opposition to Defendants' Motion for Summary Judgment or, in the Alternative, Summary Adjudication in which Plaintiff responds to Defendants' Undisputed Material Facts.
6 "PAF" refers to that pmtion of Plaintiffs Statement of Genuine Disputes of Material Fact in Opposition to Defendants' Motion for Summary Judgment or, in the Alternative, Summary Adjudication in which Plaintiff sets forth his Additional Material Facts and Supporting Evidence.
4

CCaassee22::1100--ccvv--0088001111--GGWW-P-PLALA DDocoucummeennt t18091 FFiilleedd 0052//2039//1122 PPaaggee69ooff935PaPgaegIeDID#:4#2:453465

action that resulted in harmful or offensive contact with the plaintiff's person, (2) the

plaintiff did not consent to the contact, and (3) the contact caused injury, damage, Joss or

harm to the plaintiff." Tekle v. United States, 511 F.3d 839, 855 (9th Cir. 2007).

Defendants direct the Court to Edson v. City ofAnaheim, 63 Cal.App.4th 1269 (1998),

where, on an "issue...of first impression in California," the Court of Appeal considered

whether a plaintiff must prove "unreasonable force" as part of a battery cause of action

against a police officer. Id at 1272. The court answered the question in the affirmative.

See id. 1272-75; see also Bowoto v. Chevron Corp., 621 F.3d 1116, 1129 (9th Cir. 2010)

("Under California Jaw, a plaintiff bringing a battery claim against a law enforcement

official has the burden of proving the officer used unreasonable force."), petition for cert.

filed, 80 U.S.L.W. 3004 (U.S. June 20, 2011) (No. 10-1536); Johnson v. County of Los

I -

Angeles, 340 F.3d 787, 794 (9th Cir. 2003). Even nnder the Edson standard, however, there are triable issues of fact with respect to Luviano's use of force.

'

Whether Ortega's use of force was permissible under the Eighth Amendment and

Edson standards, however, is a closer question that the Court will have to consider in

further detail before reaching a decision. In addition, Baca, who was not at the scene, see

POR ~ 64, could not be liable for battery. See Cal. Gov't Code§ 820.8.

D. Given the Above-Recited Facts - Viewed in Plaintiff's Favor- Luviano Is Not Entitled to Qualified Immunity at This Stage
A qualified immunity inquiry asks two questions: (I) was there a violation of a constitutional right, and, if so, then (2) was the right at issue 'clearly established' such that it would have been clear to a reasonable officer that his conduct was unlawful in that situation? See Saucier v. Katz, 533 U.S. 194, 201-02 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009). As noted above, when the facts are viewed in Plaintiff's favor, there was a clear violation of Plaintiff's Eighth Amendment right to be free from excessive force. Although Defendants would like the Court to view the facts in their favor, that is not how the analysis proceeds at this stage, as Martinez and other Ninth Circuit decisions make clear. See Martinez, 323 F.3d at 1184; Hopkins v. Bonvicino, 573 F.3d 752, 776 (9th Cir. 2009); Blankenhorn v. City of Orange, 485 F.3d 463,471 (9th Cir. 2007); Davis v. City ofLas Vegas, 478 F.3d 1048, 1051, 1055 (9th Cir.

5

CCasaese2:21:01-0c-vc-v0-088001111-G-GWW-P-LPALADoDcoucmumenetn1t 0819 FFilieledd0052/0/293//1122 PPaaggee 170oof f935PaPgeagIDe I#D:4#2:545366

2007); LaLonde v. County of Riverside, 204 F.3d 947, 963 (9th Cir. 2000) (Trott, J.,

concurring & dissenting).

The Ninth Circuit has also determined that "the law regarding a prison guard's use of excessive force was clearly established" no later than 1994.7 Martinez, 323 F.3d at

1183; see also Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1136-37 (9th Cir.

2003) ("In order to find that the law was clearly established...we need not find a prior

case with identical, or even 'materially similar,' facts. Our task is to determine whether

the preexisting law provided the defendants with 'fair waming' that their conduct was

unlawful."); cf Brosseau v. Haugen, 543 U.S. 194, 199 (2004) ("[I]n an obvious case,

these [Fourth Amendment excessive force] standards can 'clearly establish' the answer,

even without a body of relevant case law."); Davis, 478 F.3d at 1057 ("Any reasonable

officer in Officer Miller's position would have known, in light of the Graham factors

discussed supra and our case law interpreting them, that swinging a handcuffed man into

a wall head-first multiple times and then punching him in the face while he lay face-down

on the ground, and breaking his neck as a result, was unnecessary and excessive.");

II '

Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003) (concluding that force used was

unreasonable and that right to be free of such force was clearly established where suspect

posed no safety risk, made no attempt to leave, crimes investigated were nonviolent

offenses, and force used included grabbing suspect by the arms, throwing her to the

7 In Skrtich v. Thornton, 280 F.3d 1295 (lith Cir. 2002), the Eleventh Circuit explained the point in further detail:
The argument that beating a prisoner for noncompliance with a guard's orders after the prisoner had ceased to disobey or resist turns the "clearly established law" of excessive force on its head and changes the purpose of qualified immunity in excessive force cases from one of protection for the legitimate use of force into a shield for clearly illegal conduct. The law of excessive force in this country is that a prisoner cannot be subjected to gratuitous or disproportionate force that has no object but to inflict pain. This is so whether the prisoner is in a cell, prison yard, police car, in handcuffs on the side ofthe road, or in any other custodial setting. The use offorce must stop when the need for it to maintain or restore discipline no longer exists. Long before the defendants acted, the law was clearly established that correctional officers could not use force maliciously or sadistically for the very purpose of causing harm.
The Supreme Court has made it clear in Hudson that the same standard applies to all prison excessive force claims. Any reasonable official understands the contour of this right.
I d. at 1304-05 (omitting internal citations).
6

CCasaese2:21:10-0c-vc-v0-088001111-G-GWW-P-LPALADoDcoucmuemnetn1t0819 FFilieledd0052/0/293//1122 PPaaggee 181oof f935PaPgaegIDe I#D:4#2:546367
ground and twisting her arms while handcuffing her); Dearie v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001) ("Every police officer should know that it is objectively unreasonable to shoot-even with lead shot wrapped in a cloth case-an unarmed man who: has committed no serious offense, is mentally or emotionally disturbed, has been given no warning of the imminent use of such a significant degree of force, poses no risk of flight, and presents no objectively reasonable threat to the safety of the officer or other individuals.").
In addition, unlike the situation in Marquez v. Gutierrez, 322 FJd 689, 692-93 (9th Cir. 2003), there is no room for a reasonable officer to believe in the lawfulness of Luviano's conduct under the facts Plaintiff proffers. For that reason, qualified immunity would be denied at least as to him. 8 The case is obviously better in that regard for Ortega, however, insofar as, even under Plaintiffs version of the facts, he arrived at the scene at a time when both Plaintiff and Luviano were already on the floor. See PAF ~~ 18-20. Even as to Ortega, however, the level of force he applied may make qualified immunity inappropriate. See id. ~~ 21, 23-24. Therefore, the Court will consider that question in further detail before reaching a conclusion on the issue.
E. There are Triable Issues of Fact on Plaintiffs Intentional Infliction of Emotional Distress Claim, at Least as to Luviano
As with the Section 1983 and battery claims, there are triable issues of fact with respect to both the extreme and outrageous nature of Luviano's actions vis a vis Plaintiff and Plaintiffs resulting emotional distress.9 See POR ~ 41; Berkley v. Dowds, 152 Cal.App.4th 518, 533 (2007) (indicating that a claim for intentional infliction of emotional distress consists of three elements: 1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of
8 Because a section 1983 claim against Luviano would proceed, at a minimum, the Court could not decline supplemental jurisdiction over Plaintiff's state law claims, a request Defendants make for the first time in their Reply brief.
9 Wong v. Tai Jing, 189 Cai.App.4th 1354 (2010), upon which Defendants rely with respect to the emotional distress question, was not a summary judgment decision. Given his testimony, it is not clear that Plaintiff's distress is of the same limited nature and degree as that which was at issue in Sima v. Union of Needletrades, Indus. & Textile Employees, 322 F.3d 602, 622 (9th Cir. 2003), which was a summary judgment decision. See also Fletcher v. W. Nat'! Life Ins. Co., 10 Cai.App.3d 376, 397 (1970) ("[T]he requisite emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embaiTassment, anger, chagrin, disappointment or worry.'').
7

CaCsaese2:21:01-0c-vc-v0-800801111-G-GWW-P-LPALADoDcoucmuemnetn1t0819 FFileiledd0052/10293/11122 PPaaggee192ooff935PaPgaegIeDI#D:4#2:547368
causing, emotional distress; 2) the suffering of severe or extreme emotional distress; and 3) actually and proximate causation of the injuries by the outrageous conduct); Tekle, 511 F.3d at 855. However, for similar reasons as expressed above, whether or not Ortega can be charged with extreme and outrageous conduct is a much closer question. The Court will therefore consider that issue in more detail before reaching a final conclusion.
Finally, because, again, he was not present at the incident, Baca cannot be liable on Plaintiffs intentional infliction claim. See Cal. Gov't Code§ 820.8.
F. Conclusion (on the Issues Ready for Decision) Given the above analysis, the Court will allow Plaintiff to pursue an Eighth Amendment-based section 1983 claim. It will deny the motion insofar as it seeks resolution, in Luviano's favor, on the section 1983 claim, qualified immunity, and the battery and intentional infliction of emotional distress claims. It will grant the motion in Baca' s favor on Plaintiffs battery and intentional infliction of emotional distress claims. 10 In addition, because the parties have consented (or Plaintiff has conceded the point), the Court will also: 1) dismiss the Los Angeles County Sheriffs Department as a separate defendant; 2) dismiss Rico entirely (see Plaintiffs Opposition Brief at 15 n.l5ll); and 3) dismiss COLA with respect to Plaintiffs state law claims, in light of California Government Code§ 844.6(a)(2). The Court will consider the remaining issues further before issuing a final ruling on the instant motion.
10 The Court might also grant the motion in Baca's favor on Plaintiffs Civil Code section 52.1 claim based on the fact that he was not present at the scene. However, Defendants raised this point for the first time in their Reply brief. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). The Court would therefore ask Plaintiff whether he has any position to take on this point or whether he would instead concede that Baca is not a proper defendant on that claim. 11 Plaintiff indicates that he had agreed to dismiss Rico in exchange for a mutual waiver and that such a dismissal would be filed in advance of the summary judgment hearing. It does not appear that the parties have filed such a voluntary dismissal. Before it dismisses Rico, the Court would question the parties about this issue.
8

Case 2:10-cv-08011-GW-PLA Document 101 Filed 05/09/12 Page 13 of 35 Page ID #:4369
EXHIBIT "B"

CaseC2a:s1e0-2c:v1-00-8cv0-1018-0G1W1--GPWLA-PDLoAcuDmoecnutm1e0n1t 9F4iledFi0le5d/0093//1226/1P2agPea1g4e o1fo3f517PaPgaegeIDID#:4370 #:4273

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Cas.e'No> CV 10-8011-GW(PLAx)
Michael Holguin v. County ofLos Angeles, et al.

Pf!.t~ March 26, 2012

l'resent: The'H(}t\o;;ible GEORGE H. WU, UNITED STATES DISTRICT JUDGE

Javier Gonzalez Deputy Clerk

Pat Cuneo Court Reporter I Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Virginia Keeny

Nathan A. Oyster

PROCEEDINGS:

DEFENDANTS COUNTY OF LOS ANGELES, SHERIFF LEROY D. BACA, FERNANDO LUVIANO, DAVID ORTEGA, AND GIOVANNI RICO'S MOTION FOR SUMMARY JUDGMENT (filed 12/15/11)

The Court's Tentative Ruling is circulated and attached hereto. Parties will file simultaneous supplemental briefs by April2, 2012. The motion is continued to April12, 2012 at 8:30a.m.

CV-90 (06/04)

05

Initials ofPreparer -J-G----------------

CIVIL MINUTES - GENERAL

Page I of l

CaseC2a:s1e0-2c:v1-00-8cv0-1018-0G1W1--GPWLA-PDLoAcuDmoecnutm1e0n1t 9F4iledFi0le5d/0093//1226/1P2agPea1g5e o2fo3f517PaPgaegeIDID#:4371 #:4274
Holguin v. Countv ofLos Angeles. et al.. Case No. CV-10-8011 ... Further Tentative Ruling on Motion for Summary Judgment or, iri.the Alternative,
Summary Adjudication
I. Background On December 15,2011, defendants County of Los Angeles ("COLA"), Sheriff
Leroy D. Baca, and Sheriffs Deputies Fernando Luviano, David Ortega and Giovanni Rico (collectively "Defendants'') moved for summary judgment or, in the alternative, on 12 separate grounds for summary adjudication in this prisoner excessive force case1 brought by Michael Holguin ("Plaintiff'). On February 23, 2012, the Court issued a ruling resolving several of the grounds identified for summary resolution. See Docket No. 89.2 Remaining for consideration are the Defendants' following contentions (numbered as they were in Plaintiffs original Notice of Motion): I) that there is no genuine issue of material fact that COLA had a custom, policy, or practice sufficient for Monell liability; 6) that Baca did not fail to train Luviano and Ortega; 7) that Plaintiff carmot establish that any action taken by Baca was the proximate cause of his injuries; 8) that all individual defendants are entitled to qualified immunity; 9) that Plaintiffs claims under California's Bane Act fail because Plaintiff has not alleged separate conduct causing interference or coercion; and 12) that Plaintiffs negligence claims fail because they are not authorized by statute and because no defendant breached any duty to Plaintiff. In addition, the Court will now resolve whether the force Ortega used in connection with the underlying incident was reasonable, such that he could not be liable under either a 42 U.S.C. § 1983 claim or a battery claim, and whether there are triable issues of fact with respect to his liability on the intentional infliction of emotional distress claim, all open issues that remain from three other grounds for relief raised in Defendants' motion that were resolved as to other defendants in the Court's February 23
1 The First Amended Complaint, filed in this action on February 9, 2011, contains five claims for relief: I) a 42 U.S.C. § 1983 claim for violation of civil rights based on excessive force in violation of the Fourth Amendment; 2) a claim under California Civil Code § 52.1; 3) a claim for battery; 4) a claim for intentional infliction of emotional distress; and 5) a claim for negligence. All five claims are brought against all Defendants. 2 Among other things, Rico was dismissed as a result of that hearing. See Docket No. 89, at 8.
1

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ruling, but not as to Ortega.

. .. .. . . II. Analysis

! '

A. Summary Judgment Standards

Summary judgment shall be granted when a movant "shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law." Fed. R. Civ. P. 56(a). In other words, summary judgment should be entered

against a party "who fails to make a showing sufficient to establish the existence of an

element essential to that party's case, and on which that party will bear the burden of

proof at trial." Parth v. Pomona Valley Hosp. Med. Ctr., 630 F.3d 794,798-99 (9th Cir.

2010), cert. denied, 131 S.Ct. 2902 (2011). The court does not make credibility

determinations or weigh conflicting evidence at this stage. See T. W. Elec. Serv., Inc., v.

Pac. Elec. Contractors Ass 'n, 809 F.2d 626, 630-31 (9th Cir.l987). All evidence must be

viewed in the light most favorable to the non-moving party. See Hrdlicka v. Reniff, 631

FJd 1044 (9th Cir. 2011 ), cert. denied,_ S.Ct. _, 2012 WL 538355 (U.S. Feb. 21,

2012). A moving party without the ultimate burden of persuasion may carry its burden of
production on summary judgment by negating an essential element of the opposing party's claim or defense or by "showing" the opposing party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of
persuasion at tria1.3 See Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d

1099, 1102 (9th Cir. 2000).
[If] the party moving for summary judgment meets its initial burden of identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact, the nonmoving party may not rely on the mere allegations in the pleadings in order to preclude summary judgment[, but instead] must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that

3 Although the Ninth Circuit has indicated that the latter of these two methods does not allow the moving party to "require the nonmoving party to produce evidence supporting its claim or defense simply by saying that the nonmoving party has no such evidence," Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d I099, II 05 (9th Cir. 2000), it has also indicated (by way of a parenthetical citation in an en bane opinion) that the necessary "showing" can be made by "pointing out tlu·ough argument... the absence of evidence to support plaintiff's claim," Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en bane) (quoting Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000)). See also Schwarzer, Tashima, et al., California Practice Guide: Federal Civil Procedure Before Trial (2011) §§ 14:137-137.1, at 14-46-47.

2

CaseC2a:s1e0-2c:v1-00-8c0v-1018-0G1W1--GPWLA -PDLoAcuDmoecnutm1e0n1t 9F4iledFi0le5d/0093/1/226/1P2agPea1g7e o4fo3f517PaPgaegeID10#:4373 #:4276
there is a genuine issue for trial.
T. W Elec., 809-F:2d at630Tciting; am6fig otnenases, Celotex Corp: v: Catrett, 477 US. -
317, 106 S.Ct. 2548,91 L.Ed.2d 265 (1986)). "Summary judgment may be resisted and must be denied on no other grounds than that the movant has failed to meet its burden of demonstrating the absence of triable issues." Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993).
To set the parameters of the substantive analysis which follows, the Court briefly addresses Defendants' evidentiary objections.4
B. Evidentiary Objections All of Defendants' evidentiary objections would be overruled other than the following: 27. Sustain insofar as Plaintiff testifies to the fact that "nobody" talked to "anybody," but not insofar as he testifies that nobody talked to him. 30. Sustain as to page 97:20-25 of the deposition transcript. 46. Sustain as to pages 192:11-16 and 192:23~193:4. 47. Sustain in full the entire portion. 51. Sustain as to 160:6-15. 52. Sustain as to 94:20-95:7. 53. Sustain. 157. Sustain as to 107:19-108:4. 164. Sustain. 172. Sustain. 203. Sustain. 212. Sustain. 229. Sustain. C. COLA's Monell Liability In light of the above rulings on Defendants' evidentiary objections (for purposes of this summary judgment only), there is sufficient evidence supporting triable issues of fact with respect to multiple potential avenues for Monell liability against COLA. See
4 The Court rules only on separately-filed evidentiary objections, not on objections to factual statements or characterizations within the parties' respective supporting and opposing separate statements of fact.
3

CaseC2a:s1e0-2c:1v-00-8c0v-1018-0G1W1--GPWLA-PDLAocuDmoecnutm1e0n1t 9F4iledFi0le5d/0093//1226/1P2agPea1g8e o5fo3f517PaPgaegeIDID#:4374 #:4277

i

I

Plaintiffs Statement of Genuine Disputes of Material Fact in Opposition to Defendants'
Motionfor SummaryJudgmentor, in the Alternative, Summary Adjudication, I'QR5 11 ..
48-50, 52-53, 57-61, PAF6 1156,62-63,69, 72, 75-79, 83, 92-94, 97-101, 121-22, 124-

I

25,128,130,133,138-41,144-47,153,159,164-65,169-70,172,176-77, 179,184-85,

i
I

206,208,210,212-13,217,223-25,228,238-43,246,248-55,259-60,262-67,270-71, 282-85, 289, and USPAF711 1-5, 8-9, 12-16, 18, 20-22,24. Just as an example, Plaintiff has evidence that I) COLA has a policy or custom of paying insufficient attention to

I

evidence of deputies' records of violent behavior, both on and off the job, and 2) COLA

has failed to train its deputies in connection with the (apparently relatively common) use

I

of a flashlight as a weapon and the use of force in general against handcuffed prisoners.8

I

See Bd. ofCnty. Comm 'rs ofBryan Cnty. v. Brown, 520 U.S. 397,404,407 (1997); City

i
f

ofCanton v. Harris, 489 U.S. 378, 387, 390 n.IO (1989) (providing as an example of the

'

"obvious" need "for more or different training" the fact that a city knows "to a moral

certainty that their police officers will be required to arrest fleeing felons" and that it "has

armed its officers with firearms, in part to allow them to accomplish this task," meaning

that "the need to train officers in the constitutional limitations on the use of deadly force

can be said to be 'so obvious,' that failure to do so could properly be characterized as

'deliberate indifference' to constitutional rights) (internal citation omitted); Dougherty v.

City ofCovina, 654 F.3d 892,900 (9th Cir. 2011) ("Failure to train may amount to a

policy of 'deliberate indifference,' if the need to train was obvious and the failure to do

so made a violation of constitutional rights likely."); Hunter v. Cnty. ofSacramento, 652

F.3d 1225, 1234 n.8 (9th Cir. 2011) ("[E]vidence of inaction- specifically, failure to

investigate and discipline employees in the face of widespread constitutional violations -

5 "POR" refers to that portion of Plaintiffs Statement of Genuine Disputes of Material Fact in Opposition to Defendants' Motion for Summary Judgment or, in the Alternative, Summary Adjudication in which Plaintiff responds to Defendants' Undisputed Material Facts.
6 "PAF" refers to that pottion of Plaintiffs Statement of Genuine Disputes of Material Fact in Opposition to Defendants' Motion for Summary Judgment or, in the Altemative, Summary Adjudication in which Plaintiff sets forth his Additional Material Facts and Supporting Evidence.
7 "USPAF refers to Plaintiff's Additional Statement of Genuine Disputes of Material Fact and Confidential Materials in Support Thereof, filed under seal.
8 Defendants argue that they need not have trained guards in these respects because the wrongfulness of such conduct would be obvious. H; indeed, the wrongfulness was obvious to any guard, one would not expect repeated implementation of such practices.

4

CaseC2a:s1e0-2c:v1-00-8cv0-1018-0G1W1--GPWLA -PDLoAcuDmoecnutm1e0n1t 9F4iledFi0le5d/0093//1226/1P2agPea1g9e o6fo3f517PaPgaegeIDID#:4375 #:4278
can support an inference that an unconstitutional custom or practice has been unofficially adopted. bya municipality."} (emphasis omitted). Set in the context of the almostpervasive reports of guard-on-inmate violence emanating from Los Angeles County's Men's Central Jail as described in the evidence Plaintiff has adduced, COLA's failure to address these issues could give rise to its liability here, even under an Eighth Amendment standard.
This is by no means a suggestion that these are the only routes to Monel/liability Plaintiff has begun to pave by way of this proceeding. Their presence, however, is certainly sufficient to deny Defendants' argument that the Court can resolve the issue of Monel/liability in COLA's favor at this stage.
D. Disputed Facts Conceming the Force Used and Surrounding Circumstances Preclude Resolution at This Stage of Plaintiffs Section 1983, Battery and Intentional Infliction Claims in Ortega's Favor
Even under the applicable Eighth Amendment standard, the Court carmot resolve the facts conclusively in Ortega's favor. See Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003) ("In the context of quelling a prison disturbance the question of whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.") (omitting intemal quotation marks) (quoting Hudson v. McMillian, 503 U.S. I, 6 (1992)); Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002). While it is true that no party disputes that Ortega arrived upon the scene only after Luviano and Plaintiff were already engaged, see POR -,r-,r 20-21 and PAF -,r I9, there are disputed facts that require resolution by a factfinder about what Ortega knew or did not know about the situation and Plaintiffs condition prior to Ortega's use of force, in addition to both the nature and duration of Ortega's application of force. See POR -,r-,r 35-36; PAF -,r-,r 20-21,23-24,27. Depending upon how the factfinder resolves those questions, it may determine that Ortega's conduct violated the Eighth Amendment standard. See, e.g., Motley v. Parks, 432 F.3d 1072, 1088 (9th Cir. 2005) (en bane) ("The use of a force against a person who is helpless or has been subdued is constitutionally prohibited."); P.B. v. Koch, 96 F.3d 1298, 1304 (9th Cir. 1996) ("Because there was no need for force, one can reasonably infer that Koch
5

CaseC2a:s1e0-2c:1v-00-8c0v-1018-0G1W1--GPWLA -PDLoAcuDmoecnutm1e0n1t 9F4iledFi0le5d/0093/1/226/1P2agPea2g0e o7fo3f517PaPgaegeID10#:4376 #:4279
took these actions not in good faith but for the purpose of causing harm."). . These observations. equally. preclude a resolution, at the summary judgrnent~tage,
of Plaintiffs battery claim in Ortega's favor. As the Court noted previously, "[t]he elements of a battery claim in California are that (I) the defendant intentionally did an action that resulted in harmful or offensive contact with the plaintiffs person, (2) the plaintiff did not consent to the contact, and (3) the contact caused injury, damage, loss or harm to the plaintiff." Tekle v. United States, 511 F.3d 839, 855 (9th Cir. 2007). In addition, a plaintiff attempting to make out a battery claim against a police officer must prove "unreasonable force." Edson v. City ofAnaheim, 63 Cal.App.4th 1269, 1272-75 (1998); see also Bowoto v. Chevron Corp., 621 F.3d 1116, 1129 (9th Cir. 2010) ("Under California law, a plaintiff bringing a battery claim against a law enforcement official has the burden of proving the officer used unreasonable force."), petition for cert. filed, 80 U.S.L.W. 3004 (U.S. June 20, 2011) (No. 10-1536); Johnson v. County ofLos Angeles, 340 F.3d 787, 794 (9th Cir. 2003). The disputed issues of fact require that a factfinder address whether Ortega's use of force was reasonable.
The same would be true with respect to Plaintiffs claim for intentional infliction of emotional distress. If the factfinder concludes that the facts are sufficient for Plaintiff to prevail under an Eighth Amendment standard, the Court would be hard-pressed to conclude that the facts could not also support a conclusion that Ortega's conduct was sufficiently extreme and outrageous. See Blankenhorn v. City ofOrange, 485 F.3d 463, 487 n.17 (9th Cir. 2007); see also Berkley v. Dowds, 152 Cal.App.4th 518, 533 (2007) (indicating that a claim for intentional infliction of emotional distress consists of three elements: I) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; 2) the suffering of severe or extreme emotional distress; and 3) actually and proximate causation of the injuries by the outrageous conduct); Tekle, 511 F.3d at 855. The Court already concluded that there were triable issues of fact with respect to whether Plaintiff suffered sufficiently severe or extreme emotional distress. See POR ~ 41; Docket No. 89, at 7.
E. Ortega Is Not Entitled to Qualified Immunity at This Stage
A qualified immunity inquiry asks two questions: (I) was there a violation of a
6

I

CaseC2a:s1e02-c:1v-00-8cv0-1018-0G1W1--GPWLA-PDLoAcuDmoecnutm1e0n1t 9F4iledFi0le5d/0093//1226/1P2agPea2g1e o8fo3f517PaPgaegeIDID#:4377

I t_h_e_n-(2_)_w_a_s_t_h_e~ri.ght l'------c-o_n_s-ti-tu-ti-o-na_l_r-ig-h-t,-a-n_d_,-if_s_o_,

#:4280 at issue 'clearly established' such

,•1

that it would have been clear to_ a r_easonable officer that his condlJctwas l!lllawful in that

situation? See Saucier v. Katz, 533 U.S. 194,201-02 (2001), overruled on other grounds

by Pearson v. Callahan, 239 S.Ct. 808 (2009). As noted above, with the facts viewed in

j"'!

1:

Plaintiff's favor, a violation of Plaintiffs Eighth Amendment rights occurred. In

I '

addition, as the Court already determined on February 23, "the law regarding a prison

I

guard's use of excessive force was clearly established" no later than 1994. Martinez, 323

I

FJd at 1183; see also Docket No. 89, at 6.

!

The question as to Ortega in particular, however, is whether there was room for a

reasonable officer to believe in the lawfulness of Ortega's conduct even under the facts

viewed in a manner most favorable to Plaintiff. See Torres v. City ofMadera, 648 F.3d

1119, 1127 (9th Cir. 2011) ("[W] assume [the defendant] 'correctly perceived all of the

relevant facts' and ask whether an officer could have reasonably believed at the time that

the force actually used was lawful under the circumstances."), cert. denied sub nom.,

Noriega v. Torres, 132 S.Ct. 1032 (2012); Bryan v. MacPherson, 630 FJd 805, 832 (9th

Cir. 2010) ("If an officer's use offorce was 'premised on a reasonable belief that such

force was lawful,' the officer will be granted immunity from suit, notwithstanding the

fact excessive force was deployed.") (quoting Deorle v. Rutherford, 272 F.3d 1272, 1285

(9th Cir. 2001)); Wilkins v. City ofOakland, 350 FJd 949,954 (9th Cir. 2003)

(indicating that court must inquire "whether it would be objectively reasonable for the

officer to believe that the amount of force employed was required by the situation he

confronted"); Marquez v. Gutierrez, 322 F.3d 689, 692-93 (9th Cir. 2003); see also

Messerschmidt v. Millender, 132 S.Ct. 1235, 1244-45 (2012). As the Court already noted

in the February 23 hearing, even under Plaintiffs version of the facts, Ortega arrived at

the scene at a time when both Plaintiff and Luviano were already on the floor. See PAF

~~ 19-20. Nevertheless, qualified immunity is not available to Ortega at this stage

because the factual disputes necessitating factfinder resolution preclude even a

determination, as a matter of law, that Ortega could have been reasonably mistaken about

the facts leading to his actions or reasonably mistaken that the nature and duration of

force (which is itself uncertain at this stage) he applied to the situation was necessary

under the circumstances as he perceived them. See Watts v. McKinney, 394 F.3d 710,

7

CaseC2a:s1e0-2c:1v-00-8cv0-1018-0G1W1--GPWLA-PDLoAcuDmoecnutm10en1t 9F4iledFi0le5d/0093//1226/1P2agPea2g2e o9fo3f517PaPgaegIeDID#:4378 #:4281
711-12 (9th Cir. 2005) (affirming denial of qualified innnunity at summary judgment . stage, underEighthAmendment standard, where plaintiff filed declaration indicatingthat
he had been, without warning, kicked in his penis and several times in his back while he was lying on the cell floor with handcuffs on and his hands behind his back- "To suppose that any reasonable person, let alone a trained prison officer, would not know that kicking a helpless prisoner's genitals was cruel and unusual conduct is beyond belief."); Lolli v. County ofOrange, 351 F.3d 410,421 (9th Cir. 2003); Martinez, 323 F.3d at 1184-85; Santos v. Gates, 287 F.3d 846, 855 n.12 (9th Cir. 2002) (refraining from passing on qualified immunity question because "[u]ntil the jury makes those decisions [concerning disputed facts and the inferences it draws therefrom], we cannot know, for example, how much force was used, and, thus, whether a reasonable officer could have mistakenly believed that the use of that degree offorce was lawful"); Thomas v. Gomez, 143 F.3d 1246, 1248-49 (9th Cir. 1998); see also Espinosa v. City & Cnty. ofSan Francisco, 598 F.3d 528,532 (9th Cir. 2010), cert. denied, 132 S.Ct. 1089 (2012). All facts drawn in Plaintiff's favor cannot lead to a conclusion as a matter of law that Ortega acted safely within the confines of the Constitution. See Scott v. Harris, 550 U.S. 372, 281 n.8 (2007). 9
F. Baca Will Remain a Defendant in His Individual Capacity Baca can be liable for Plaintiff's injuries based upon either his "'own culpable action or inaction in the training, supervision, or control of his subordinates,' 'his acquiescence in the constitutional deprivations of which the complaint is made,' or 'conduct that showed a reckless or callous indifference to the rights of others."' Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011) (quoting Larez v. City ofLos Angeles, 946 F.2d 630,646 (9th Cir. 1991)),petition.for cert.filed, 80 U.S.L.W. 3462 (U.S. Dec. 30, 2011) (No. 11-834); see also id. at 1206-08. Although Starr involved inmate-on-inmate harm and this case involves deputy-on-inmate harm, this case is essentially Starr at the summary judgment stage. Plaintiff has presented evidence of repeated and relatively frequent incidents of deputy-on-inmate violence, insufficient/ineffective measures put in
9 Even if the Court were to conclude that Ortega was entitled to qualified immunity on Plaintiffs section 1983 claim, resolution of the qualified immunity question would not necessarily resolve any question of whether Ortega was liable for battery or intentional infliction of emotional distress. See, e.g., Liberal v. Estrada, 632 F.3d 1064, 1090 (9th Cir. 2011) (Tashima, J., concurring in part and dissenting in part).
8

CaseCa2s:1e02-:c1v0-0-c8v0-01810-G11W-G-PWLA-PLDAocuDmoecnumt 1e0n1t 94FileFdil0e5d/0093//1262/12PagPeag2e3 1o0f 3o5f 17PagPeagIeD 1#0:4379 #:4282
place to attempt to stem the flow of that violence, and suggestions for how to quell the situation going,athest, unaddressed or, at worst, ignored.
In light of the evidence Plaintiff has submitted, perhaps most of the responsibility for the failure to respond to this issue would lie at the feet of Undersheriff Paul Tanaka.
See PAF ~~ 230-35,238-40,242-43,246,248-55,259-60,263,266-67,282-85.
However, Tanaka's account of the situation could possibly point to Baca's decided
disinterest in learning anything at all about the use of force in COLA's jails. See id. ~~ 235-36,238,241,262,264, 274; see also id. ~~ 152, 155,228. Given that evidence, the Court cannot absolve Baca of liability at this stage, at least not while the Starr decision is
the law of this Circuit. Similarly, given the long-established rules governing supervisory liability for
Constitutional violations, qualified immunity as to Baca is inappropriate. At some point in time, the repeated refusal or failure to take up an issue that may he leading to direct physical harm to those who are entrusted to one's care at least borders on the necessary mental state for an Eighth Amendment violation (assuming that is the appropriate
standard for supervisory, as opposed to direct participant, liabiliti 0). See generally Jeffers v. Gomez, 267 F.3d 895,911,915-16 (9th Cir. 2001) (indicating that mental state
is relevant to qualified immunity where it is an element of the alleged constitutional violation).
Defendants also ask, in particular, for a ruling that Baca carmot be liable under a failure-to-train theory. The evidence concerning Baca's inaction in the face of persistent reports of guard-on-inmate violence is not tied directly to any knowledge (or, essentially, willful blindness) about glaring deficiencies in specific areas of training, such as training in counection with the use of flashlights as weapons and the use of force against
handcuffed inmates. Nevertheless, it is not entirely clear that a failure-to-train theory can
10 In Blyden v. Mancusi, 186 F.3d 252 (2d Cir. 1999), the Second Circuit ruled that a district court had correctly employed a "deliberate indifference" standard to a question of supervisory inaction-based liability whereas the Eighth Amendment standard applied to those who were accused of directly causing the unlawful condition or event. See id at 264-65. Specifically, the court reasoned that "[t]he sadistic and malicious standard articulated in Hudson makes little sense ... in the context of supervisory liability under Section 1983 based on, inter alia, failing to remedy a known wrong or being 'grossly negligent in managing subordinates who caused the unlawful condition or event."' !d. at 264 (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).
9

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be separated out from the "inaction"-based evidence involving Baca, because part of the evidence concerning his.inaction would consist of his apparent (ifPiaintiffs()videnceis to be believed) complete disinterest in the level and frequency of guard-on-imnate violence occurring in Men's Central Jail. Had Baca inquired as to that type of information, he might have learned of violent patterns involving flashlights and handcuffed inmates. While Baca will remain a defendant in this action no matter how the Court resolves this particular question, given the above-mentioned considerations the Court would ask the parties to discuss this failure-to-train aspect of the case against Baca. 11
G. Defendants Have Not Persuasively Demonstrated That Plaintiffs Civil Code§ 52.1 Claim is Flawed
Section 52.1 of the California Civil Code, in pertinent part, prohibits any person from "interfer[ing, or attempting to interfere,] by threats, intimidation, or coercion, ... with the exercise or enjoyment by any individual...ofrights secured by the Constitution or laws of the United States ...." Cal. Civ. Code§ 52.1(a). Any individual whose exercise or enjoyment of such rights has been interfered with in such marmer is entitled to bring a civil action for damages on account of such action. See id § 52.l(b); see also Lu v. Powell, 621 F.3d 944,950 (9th Cir. 2010).
The parties' primary dispute concerning this claim centers around the issue of whether the "threat," "intimidation," or "coercion" required for section 52.1 liability must be separate from the underlying Constitutional violation itself even where the underlying Constitutional violation, as in this case, necessarily involves some measure of at least intimidation or coercion. Defendants believe that it must, whereas Plaintiff disagrees. 12
11 As the Court noted in its February 23 ruling, see Docket No. 89, at 8 n.l 0, the Court could conceivably grant the motion in Baca's favor on Plaintiffs Civil Code section 52.1 claim based on the fact that he was not present at the scene. However, Defendants raised this point for the first time in their Reply brief. See
Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). Unless Plaintiff concedes the point at oral argumen~
therefore, the Comt might be hard-pressed to mle in that fashion on this motion. 12 Although there would have been support for it under Ninth Circuit authority, Defendants do not raise the argument that Plaintiffs section 52.1 claim is flawed because it does not allege that the threat/intimidation/coercion was on account of Plaintiffs membership in a protected class. See Nelson v. City ofIrvine, 143 F.3d 1196, 1206-07 (9th Cir. 1998) (reading section 52.1 as requiring that interference be on account of plaintiffs race, color, religion, ancestry, national origin~ political affiliation, sexl sexual orientation, age, disability, or position in a labor dispute because it must be read in conjunction with Civil Code section
51.7). In 2004, the California Supreme Court in effect rejected Nelson's reading of section 52.1 's
10

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In his Opposition, Plaintiff also asserts that the act of force used against him was an act separate .fromthe. Constitutional .violation.itself because it was a n:sponseto ]lis exercise .. of his right to complain about not receiving showers - in other words, a First Amendment right to file prison grievances.
With respect to the first issue - whether the threat, intimidation or coercion must be separate from the underlying Constitutional violation- the parties have largely focused on conflicting federal district court decisions throughout the briefing. However,
one of the leading California Supreme Court cases on the reach of section 52.1 would appear to suggest that Defendants' view is incorrect. If the threat, intimidation or
coercion must be separate from the Constitutional violation itself, Defendants would have
to explain Venegas v. County ofLos Angeles, 32 Cal.4th 820 (2004). There, the Supreme
Court ruled that the plaintiffs had sufficiently stated a claim under section 52.1, which the Court acknowledged imposed a requirement ofthreats, intimidation, or coercion, in a
straight-forward case raising a claim of an unreasonable search and seizure. See id. at
827-28, 841-43.
It is true that Venegas did not directly concern the issue at hand here. However, it
is equally true that the decision specifically concluded that the plaintiffs in that case had
stated a proper claim under section 52.1. Thus, if Venegas were the only authoritative
California precedent bearing on this question, the Court might have been inclined to agree with Plaintiff, thereby obviating the need to consider his First Amendment grievance theory.13
However, after briefing was complete on this motion, the California Court of Appeal adopted the Defendants' view of a threat/intimidation/coercion requirement
requirements, explicitly disagreeing with the California Court of Appeal decision- Boccato v. City of Hermosa Beach, 29 Cal.App.4th l 797 (t 994)- Nelson had relied upon in reaching its conclusion and noting that the California legislature had taken action subsequent to Boccato rejecting Boccato's approach. See Venegas v. County ofLos Angeles, 32 Cal.4th 820, 841-43 (2004); see also Shayaye v. County ofLos Angeles, 203 Cal.App.4th 947, _, 137 Cal.Rptr.3d 839, 847 (2012). The Ninth Circuit has not commented on Nelson's post- Venegas vitality in a published decision, but in a 2008 unpublished decision it noted that Venegas had rejected Boccato's approach to interpreting the requirements of section 52.1. See Moreno v. Town ofLos Gatos, 267 Fed. Appx. 665 (9th Cir. Feb. 21, 2008). 13 A threatening, intimidating, or coercive act separate from the Constitutional violation itself makes some sense when a private actor is involved who could not themselves violate the Constitution (because they were not a state actor). See, e.g., Jones v. Kmart Corp., 17 Cal.4th 329, 334 (1998). This case does not raise a private actor situation, however.
11

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independent from the underlying Constitutional violation in Shoyoye v. County ofLos

... Angeles,203 Cal.AppAth 947, 137Cal.Rptr.3d 839 (2012). There, the courtpresented

r

the following question for decision- "where coercion is inherent in the constitutional

!

violation alleged, as it is in an unreasonably prolonged detention, is the statutory

requirement satisfied or does the statute require a showing of coercion independent from

the coercion inherent in the wrongful detention itself?" Id., 137 Cal.Rptr.3d at 847. As

noted, it answered that question in favor of a requirement that the "wrongful" act be

independent of the violation itself. See id at 849-50.

Shoyoye's effort at distinguishing Venegas on this point, however, is not entirely

convincing. It concluded that Venegas was different because the case that the California

Supreme Court confronted posed facts which indicated (under the Shoyoye court's

reading of them) that the situation had, at some point in time, transitioned from a

situation where probable cause had existed to one where "the officers' conduct became

intentionally coercive and wrongful, i.e., a knowing and blameworthy interference with

the plaintiffs' constitutional rights." Id. at 850. Whether or not the underlying acts in

Venegas were intentional, however, does nothing to separate those acts from the

predicate Constitutional violation itself. Even if it somehow did, this case would fit

within Shoyoye's reading of Venegas, because Plaintiff has pled (and sufficiently

evidenced to survive summary judgment, at least as to some defendants) that the deputies

committed an Eighth Amendment violation, i.e. acted maliciously and sadistically. For at

least this reason, the Court might have some doubt whether it should - or the California

Supreme Court would, see Hayes v. County ofSan Diego, 658 F.3d 867, 870 (9th Cir.

2011)- follow Shoyoye's lead. If the Court determines Shoyoye should not be followed,

Defendants would be left having to explain why the federal district court decisions they

cite14 would be more persuasive than the at-least-implicit answer to this question the

California Supreme Court appears to have adopted in Venegas.

Assnming that Defendants can overcome Venegas and persuade the Court that

some independent threat, intimidation or coercion must be present, they are correct that

14 No published Ninth Circuit decision has addressed Venegas insofar as it relates to this issue. One unpublished decision could be interpreted as adopting the implicit approach in that case, however, though even there the facts are insufficiently presented to enable such a conclusion. See Moreno v. Town ofLos Gatos, 267 Fed. Appx. 665 (9th Cir. Feb. 21, 2008).
12

CaseCa2s:1e02-:c1v0-0-c8v0-01810-G11W-G-PWLA-PLDAocuDmoecunmt 1e0n1t 94FileFdil0e5d/0093//1262/12PagPeag2e7 1o4f 3o5f 17PaPgeagIeD I#D:4383 #:4286
Plaintiff may not rely upon a First Amendment theory in opposing the summary judgmentmotion asto_this claim. Plaintiffs claim under sectkm 52.1 is plainl)'pJemised
upon an alleged excessive force incident. See First Amended Complaint ~ 31. Unlike the
situation with Plaintiff's summary judgment-related effort to shift his section 1983 case
from the Fourth Amendment to the Eighth Amendment, see Docket No. 89, at 3, a
change in his section 52.1 claim from excessive force to a First Amendment right to file prison grievances would fundamentally shift the nature, focus and scope of that claim.
Plaintiff may not employ such a maneuver in opposing summary judgment. See, e.g., Fossen v. Blue Cross & Blue Shield ofMont., Inc., 660 F.3d 1102, 1115 (9th Cir. 2011); Coleman v. Quaker Oats Co., 232 FJd 1271, 1291-94 (9th Cir. 2000).
In sum, the Court's ruling on this motion as it relates to Plaintiffs California Civil Code section 52.1 claim depends upon how it resolves the question of whether an independent threatening, intimidating or coercive act is required for such a claim. This will require it to assess whether it believes the California Supreme Court, having issued
Venegas, would nevertheless follow the California Court of Appeal's decision in Shoyoye.
H. Defendants Have Not Persuasively Demonstrated That Plaintiffs Negligence Claim is Flawed
Defendants argue that Plaintiff has not identified, and they did not owe, any applicable duty of care and that Luviano and Ortega could not be liable for negligence because of the statutory immunity afforded by California Government Code§ 820.2. 15 Defendants also pointed out that it is undisputed that Baca was not at the scene, and cited
Taylor v. Buff, 172 Cal.App.3d 384, 388-89 (1985), as support for an argument that the
type of activity he would have undertaken (or failed to undertake) in this case would fit squarely within the immunity afforded by section 820.2. Plaintiffs only response with respect to the negligence issue was that the issues of breach and causation are ordinarily for the jury, and that he has sufficient evidence to make out a triable issue offact with respect to both of those elements. However, as noted above, Defendants did not move for
15 The Court's February 23 ruling granted summary judgment in COLA's favor on all state law claims and dismissed Rico as a defendant in general. See Docket No. 89, at 8. As a result, the parties' negligencebased arguments now concern only Baca, Luviano and Ortega.
13

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summary judgment on the issues of breach and causation. They moved with respect to the absence ofa duty and, e:venif a duty (and breach and cansatiQn) e)[isted,imm\lllitY pursuant to Government Code section 820.2. 16 Nevertheless, Defendants still must sustain their burden as the moving party, and the Court itself must resolve challenges based upon issues of law irrespective of whether the non-moving party has sufficiently
argued the point. First, contrary to Defendants' suggestion, Plaintiff has unquestionably identified
the duty of care he asserts applies to this situation. As to the individual defendants, Plaintiff alleged that they "did not exercise ordinary care to ensure that plaintiff would not suffer excessive force while in their custody." FAC 138. Such a duty of care is recognized under California law, at least in the context of a police officer's alleged use of excessive force. See Young v. County ofLos Angeles, 655 F.3d 1156, 1170 (9th Cir. 2011) (citing, as an example, Munoz v. City of Union City, 120 Cal.App.4th 1077, 110809 (2004)); see also Giraldo v. Cal. Dep 't ofCorr. & Rehab., 168 Cal.App.4th 231, 25051 (2008) (recognizing jailer's duty of care to prisoner, because of existence of"special relationship," in connection with threat of "sexual abuse in the prison enviromnent"). The California Court of Appeal only recently (if only implicitly) appears to have recognized it in the prison context as well. See Haney v. Castillo, F062080, 2012 WL 890671 (Cal. Ct. App. Mar. 15, 2012). 17 Given these authorities, unless and until Defendants can direct the Court to some authority actually explicitly precluding the existence of a duty of care in the circumstances present in this action, the Court will not rule in their favor on this basis. See also Cal. Gov't Code§ 844.6(d) (providing that nothing in section 844.6- which, among other things, provides immunity to a public
16 In their Reply, in addition to reiterating the arguments they initially advanced (and to which Plaintiff did not respond), Defendants also argued that Luviano aud Ortega acted reasonably and therefore did not breach auy duty, even assuming Plaintiff was able to identifY such a duty. Insofar as that argument was raised for the first time in a Reply brief, the Court could not credit it for purposes of ruling in any defendant's favor as to Plaintiffs negligence claim. Moreover, as addressed ftnther above and in the Court's February 23 ruling, there are triable issues of fact with respect to whether Luviano and/or Ortega acted reasonably.
17 It is unclear whether the Haney decision is unpublished because of a concerted decision that it should not be published (and, therefore, non-precedential) or simply because it was issued only one week ago. On Westlaw, it was discovered as the result of a search in a database purportedly consisting of only published California Supreme Court and California Court of Appeal decisions. Whether or not it is published, the Court need not rely solely on that decision to conclude that Defendants' duty-based arguments come up short on this motion.
14

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entity for "[a]n injury to any prisoner"- exonerates any public employee from "liability

..for injury. proximately causedbyhis_uegligenH>r W.tQ!lgful &ctor omission"); 5_ Witkin, __

.,

Summary of California Law: Torts (lOth ed.) § 361, at 574 ("Where no immunity

applies, the public officer is liable, as in other cases, to the same extent as a private

individual, for negligent or intentional conduct that results in injury.").

Of course, the duty of care question would be irrelevant if Defendants could

demonstrate that Government Code section 820.2 immunizes their conduct. California

Government Code section 820.2 provides that "a public employee is not liable for an

injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." Cal.

Gov't Code § 820.2. However, "not all acts requiring a public employee to choose

among alternatives entail the use of 'discretion' within the meaning of section 820.2."
Barner v. Leeds, 24 Cal.4th 676, 684-85 (2000); see also AE ex rei. Hernandez v. Cnty.

ofTulare, 666 F.3d 631, 639 (9th Cir. 2012). Thus, "operational, or ministerial,

decisions" are not protected by section 820.2 immunity because "there is no basis for

immunizing lower level decisions that merely implement a basic policy already
formulated." Barner, 24 Ca1.4th at 685; AE, 666 F. 3d at 639; see also Martinez v. City of Los Angeles, 141 F.3d 1373, 1379 (9th Cir. 1998); cf Liberal v. Estrada, 632 F.3d 1064,

1084 (9th Cir. 2011) (affirming lower court's rejection of section 820.2 immunity in

connection with alleged false imprisonment traffic stop, reasoning that "[a] 'workable

definition' of immune discretionary acts draws the line between 'plam1ing' and 'operational' functions of government" and "[a] police officer's decision to detain or

arrest a suspect is 'not a basic policy decision, but only an operational decision by the

police purporting to apply the law") (quoting Caldwell v. Montoya, 10 Cal.4th 972, 981 (1995) and Gillan v. City ofSan Marino, 147 Cal.App.4th 1033, 1051 (2007))18;
Blankenhorn, 485 F.3d 463 (9th Cir. 2007) ("[I]t has long been established that this

provision does not apply to officers who use unreasonable force in making an arrest.").

Luviano and Ortega, therefore, would not be able to take advantage of sectibn 820.2

immunity in connection with their actions.

"But see Blankenhorn v. City ofOrange, 485 F.3d 463, 487 (9th Cir. 2007) ("[Section 820.2] applies to police officers' discretionary decisions made during arrests.").
15

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------·-·-~··

Even with respect to "[q]uasi-legislative policy decisions," a government

defendant hears ''the burden ofestablishing th<ttthey are. entitled to immlll1ityfor!Ul

actual policy decision made by an employee who 'consciously balance[ed] risks and

advantages ... " AE, 666 F.3d at 639 (quoting Johnson v. State, 69 Cal.2d 782, 795 n.8

(1968)). "The fact that an employee normally engages in 'discretionary activity' is

. ,

irrelevant if, in a given case, the employee did not render a considered decision." Jd.

(quoting Johnson). Thus, while Baca might be entitled to section 820.2 immunity under

Taylor, he has not made the necessary factual showing yet.

III. Conclusion Other than with respect to possible exceptions for: 1) Plaintiff's Civil Code
section 52.1 claim insofar as it relates to Baca, see Footnote 11, supra, 2) Plaintiffs section 52.1 claim insofar as it relates to all defendants if the Court follows Shoyoye, and 3) Baca's liability on a "failure to train" theory, the Court would deny those portions of Defendants' summary judgment motion that remain following its earlier ruling issued

February 23, 2012.

16

Case 2:10-cv-08011-GW-PLA Document 101 Filed 05/09/12 Page 31 of 35 Page ID #:4387
EXHIBIT "C"

CCasaese2:21:100-c-cvv-0-088001111-G-GWW-P-LPALADoDcoucmumenetn1t 0919 FFilieledd0054//0192//1122 PPaaggee 312oof f435PaPgeagIDe I#D:4#3:148388

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES- GENERAL

;9ase L _____

No. -.._c_v_1_0-_8_01_1_-G_W_.o..(P_L_A_x.:...)- - - - - - - - - - · f>~t~, April 12, 2012

1-

';Tm~-,, :;----MtcliaelHoliiiiiiV.coiintToJLOSA.--ngetes:etar:- --~------ ----~--- ---- --- ·- ---····-· -

i

I

Javier Gonzalez

Pat Cuneo

I

Deputy Clerk

Court Reporter I Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Virginia Keeny -by telephone

Nathan A. Oyster- by telephone

PROCEEDINGS:

DEFENDANTS COUNTY OF LOS ANGELES, SHERIFF LEROY D. BACA, FERNANDO LUVIANO, DAVID ORTEGA, AND GIOVANNI RICO'S MOTION FOR SUMMARY JUDGMENT (filed 12/15/11)

Court hears further argument. The Court's Ruling after supplemental briefing as to Motion for Summary Judgment, or in the Alternative, Summary Adjudication is attached hereto. Defendants' motion is GRANTED IN PART and DENIED IN PART.
The stipulation to continue the hearing date filed on April6, 2012, is deemed MOOT.

CV-90 (06/04)

15

Initials ofPreparer _J_G_ _ _ _ _ _ __

CIVIL MINUTES -GENERAL

Page 1 of 1

CCasaese2:21:100-c-vcv-0-088001111-G-GWW-P-LPALADoDcoucmumenetn1t 0919 FFilieledd0054/0/192//1122 PPaaggee 323oof f435PaPgeagIeD I#D:4#3:149389
--""-""-------'--------------------------------
Holguin v. Countv o(Los Angeles, eta/., Case No. CV-10-8011 Ruling after supplemental briefing as to Motion for Summary Judgment or, in the Alternative, Summary Adjudication
The parties have now submitted supplemental briefing in connection with the viability of plaintiff Michael Holguin's claim pursuant to California Civil Code section 52.1. Section 52.1 of the California Civil Code, in pertinent part, prohibits any person from "interfer[ing, or attempting to interfere,] by threats, intimidation, or coercion, ... with the exercise or enjoyment by any individual ... of rights secured by the Constitution or laws of the United States ...." Cal. Civ. Code§ 52.l(a). Reference is made to pages 10 through 13 of the Court's tentative ruling issued on March 26, 2012 (which are hereby incorporated into this ruling), for purposes of a full understanding of the issue with that claim. See Docket No. 94.
Employing the criteria for determining whether the California Court of Appeal's decision in Shoyoye v. County ofLos Angeles, 203 Cal.App.4th 947 (2012), should be followed on this question, see. e"g., Hayes v. County ofSan Diego, 658 F.3d 867, 870 (9th Cir. 20 II),1 the Court concludes that it should not. As expressed in its March 26, 2012 tentative ruling, the Court tinds the Shoyoye decision's attempt to distinguish the California Supreme Court's decision in Venegas v. County ofLos Angeles, 32 Cal. 4th 820 (2004), to be unpersuasive. As such, Venegas remains "convincing evidence," Hayes, 658 FJd at 870, that Plaintiffs section 52.1 claim remains viable.2 Even if Venegas
1 "In deciding an issue of state law, when 'there is relevant precedent from the state's intermediate appellate court, the federal court must follow the state intermediate appellate decision unless the federal court finds convincing evidence that the state's supreme court likely would not follow it.'" 658 F.3d at 870 (quoting Ryman v. Sears, Roebuck & Co", 505 F3d 993, 994 (9th Cir" 2007)). 2 For that reason, the Court need not address Plaintiffs alternative argument that it should reconsider its tentative view that Plaintiff should be allowed to employ an alleged First Amendment violation as the "separate" conduct allowing a section 52.1 claim. To be clear, however, the Court would not change its view in that regard" Although Plaintiff asserts it is "clear" from his First Amended Complaint ("FAC") that he intended to employ a First Amendment basis for his section 52.1 claim, the opposite is true. Plaintiff points to references to his "ask[ing] why he could not shower" (which was simply presented as part of a narrative description of events leading to his beating, and not emphasized in any way, at least as part of Plaintiffs allegations) and (highlighted, in this context, for the first time in connection with this, supplemental, briefing) post-incident taunting on the way to the hospital, see FAC ~~ 15, 21, as providing sufficient notice of the First Amendment hook, Plaintiff gave every indication in his actual claim under
1

CCasaese2:21:010-c-vc-v0-088001111-G-GWW-P-LPALADoDcoucmumenetn1t 0919 FFilieledd0054//0192//1122 PPaaggee 334oof f435PaPgeagIDe I#D:4#3:240390

were distinguishable along the lines drawn by Shoyoye, this case would fit within

Venegas, not Shoyoye, under the terms of that distinction, because of Plaintiff's allegation

(and evidence, as discussed at length in the Court's March 26,2012 tentative ruling, in

connection with the Court's analysis of Plaintiff's other claims) supporting the view that

..·-· ---~---~----

--~..

--·-------- -

-----~------- - - - - - - - - - - - - - - - - -

'

the Defendants acted with some measure of intent in the events leading to this case.

The Court similarly believes that Defendants' attempt to distinguish Venegas for

reasons not identified by the California Court of Appeal in Shoyoye is equally

unpersuasive. Although Defendants believe there were acts separate from the

Constitutional violations in Venegas, they point only to the conduct underlying the very
same Constitutional violations- an unreasonable search and seizure.3 Moreover, since

the Court is already disinclined to follow a path that the California Court of Appeal has

already begun to blaze for distinguishing Venegas, it is even less likely to follow a path

perceived to be present in Venegas that not even the Court of Appeal has recognized.

While the Court again acknowledges that Venegas did not decide the precise issue

underlying a section 52.1 claim that the parties address here, the Court is persuaded that

there are insufficient reasons to believe that the California Supreme Court would now

decide that its section 52.1 analysis in Venegas was, in effect, unnecessary because of a

requirement for a section 52.1 claim that is not present on the face of that legislation.
'
The federal district court decisions Defendants cite- Barsamian v. City a,/'Kingsburg,

section 52.1, that only Fourth Amendment conduct (which was actually Eighth Amendment conduct)
formed the basis for the claim. See id. 1 31 ("The United States Constitution, Amendment IV, and the
California Constitution, Article I, guarantee the right of persons to be tree from excessive force. Defendants, by engaging in the wrongful conduct alleged herein, denied this right to plaintiff ....") (emphasis added). Unlike normal pleading practice, Plaintiff(who is- and was, when the FAC was filedrepresented by counsel) did not incorporate all preceding paragraphs of his FAC into his section 52.1 claim. Furthermore, because the right to be free from excessive force was the only right sufficiently pled as at issue in connection with the claim, the taunting conduct which occurred qfier the incident in question could not serve as the necessary threat, intimidation or coercion occurring in connection with the Constitutional violation.
' If what Defendants mean to argue is that the unconstitutional seizure is the separate act supporting the unconstitutional search, and vice versa, the California Supreme Court ruled that plaintiffs (i.e., both David Venegas and his wife, Beatriz) had sufficiently stated section 52.1 claims. David Venegas was under arrest and not at the scene when his house was searched, and had specifically declined to give the officers in question permission to search the house. See Venegas, 32 Ca1.4th at 827. Consequently, any acts that occurred once the officers and Beatriz Venegas were at the Venegas residence could not have served as a threat or act of intimidation or coercion vis a vL< David Venegas and his arrest/seizure. As such, the only conduct supporting the threat, intimidation or coercion element of David Venegas's section 52. I claim would have been the arrest/seizure itself.

2

/

CCasaese2:21:010-c-vc-v0-088001111-G-GWW-P-LPALADoDcoucmumenetn1t 0919

FFilieledd0054//0192//1122

PPaaggee

345oof f435PaPgeagIDe

ID #:4391 #:4321

597 F.Supp.2d 1054, 1064 (E. D. Cal. 2009), Rodriguez v. City ofFresno, No. CV F 09CV-1176 AWl MJS, 20ll U.S. Dist. LEXIS 51945, *33-37 (E.D. Cal. May 16, 2011), and Justin v. City & County ofSan Francisco, No. C05-4812 MEJ, 2008 U.S. Dist. ---~----~~--L_E_X_I~S~6_46~-*~2~3-26 (N.D. Cal. May_:J_,__20_08_)(.T~111es, MiJ:.gJ.l_=are_n_omor_e~~~~ persuasive in explaining Venegas (if they even cite or discuss it -Justin does not at all) than are Shoyoye or Defendants' arguments herein. As a result, the Court denies Defendants' summary judgment motion insofar as it concerns the viability of Plaintiff's section 52.1 claim in general.4
Additionally, the Court would inquire of the parties as to whether the prior tentative ruling left open questions concerning whether or not Baca should remain open to liability on the section 52.1 claim or on a failure to train theory. Those issues were not addressed in the supplemental briefing.

4 The Court declines to rely upon Plaintiffs statutory interpretation and/or legislative history-related arguments for why there should be no "separate act" requirement for a section 52.1 claim because it finds those arguments unpersuasive insofar as Plaintiff has presented them.
3

 
 Case 2:10-cv-08011-GW-PLA Document 131 Filed 04/01/13 Page 1 of 1 Page ID #:4519

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

APR 01 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

MICHAEL HOLGUIN,

No. 12-55876

Plaintiff - Appellee, v. LEE ROY BACA, Sheriff and DAVID ORTEGA,
Defendants - Appellants.

D.C. No. 2:10-cv-08011-GW-PLA

Central District of California,

Los Angeles

RECEIVED
CLERK, U.S. DISTRICT COURT

ORDER

4/1/2013

CENTRAL DISTRICT OF CALIFORNIA
BY: ________D_L__M________ DEPUTY

The court is in receipt of the parties’ Voluntary Dismissal Agreement. The court construes the parties’ agreement as a stipulation to dismiss. So construed, the stipulation is granted and this appeal is dismissed. Fed. R. App. P. 42(b). The parties shall bear their own costs and attorneys’ fees on appeal.
A copy of this order shall serve as and for the mandate of this court. FOR THE COURT

LJ/Mediation_3-28-13

By: Lisa Jaye Circuit Mediator

 
 Case 2:10-cv-08011-GW-PLA Document 132 Filed 04/03/13 Page 1 of 1 Page ID #:4520

1

MADE JS-6

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

11 MICHAEL HOLGUIN,

12

Plaintiffs,

13

v.

14 COUNTY OF LOS ANGELES, et al.,
15
Defendants.
16

Case No. CV 10-8011-GW(PLAx) ORDER TO DISMISS WITH PREJUDICE

17

18

Based upon the stipulation between the parties and their respective counsel,

19 it is hereby ORDERED that the above-captioned action be and hereby is dismissed,

20 with prejudice, pursuant to Federal Rules of Civil Procedure, Rule 41(a)(1)(A)(ii)

21 based on the Parties’ settlement of this matter.

22
IT IS SO ORDERED.
23

24 Dated: April 3, 2013
25
26
27

BY THE COURT
_________________________________ HONORABLE GEORGE H. WU UNITED STATES DISTRICT COURT

28

 
 Case: 2:10-cv-8011 As of: 07/15/2015 01:58 AM PDT 1 of 14
(PLAx),CLOSED,DISCOVERY,MANADR,PROTORD,STAYED
UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA (Western Division − Los Angeles)
CIVIL DOCKET FOR CASE #: 2:10−cv−08011−GW−PLA

Michael Holguin v. County of Los Angeles et al Assigned to: Judge George H. Wu Referred to: Magistrate Judge Paul L. Abrams Case in other court: 9th CCA, 12−55876 Cause: 28:1983 Civil Rights
Plaintiff
Michael Holguin

Date Filed: 10/25/2010 Date Terminated: 04/03/2013 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Anne K Richardson Public Counsel 610 South Ardmore Avenue Los Angeles, CA 90005 213−385−2977 Fax: 213−385−9089 Email: arichardson@publiccounsel.org ATTORNEY TO BE NOTICED

Christy Virginia Keeny Hadsell Stormer Kenny Richardson and Renick LLP 128 North Fair Oaks Avenue Suite 204 Pasadena, CA 91103 626−585−9600 Fax: 626−577−7079 Email: vkeeny@hskrr.com TERMINATED: 07/02/2012 ATTORNEY TO BE NOTICED

Cindy Panuco Hadsell Stormer Richardson and Renick LLP 128 North Fair Oaks Avenue Pasadena, CA 91103−3645 626−585−9600 Fax: 626−577−7079 Email: cpanuco@hadsellstormer.com ATTORNEY TO BE NOTICED

Dan Stormer Hadsell Stormer Richardson and Renick LLP 128 North Fair Oaks Avenue Pasadena, CA 91103 626−585−9600 Fax: 626−577−7079 Email: dstormer@hadsellstormer.com ATTORNEY TO BE NOTICED

Lincoln Wolf Ellis Hadsell Sotrmer Richardson and Renick LLP 128 North Fair Oaks Avenue Pasadena, CA 91103 626−585−9600 Fax: 626−577−7079 Email: l.ellis@hadsellstormer.com ATTORNEY TO BE NOTICED

Case: 2:10-cv-8011 As of: 07/15/2015 01:58 AM PDT 2 of 14

V. Defendant County of Los Angeles
Defendant Los Angeles Sheriff's Department Defendant Sheriff Lee Baca
Defendant Deputy Rico

represented by Christopher Taewoo Kim Lawrence Beach Allen and Choi PC 100 West Broadway Suite 1200 Glendale, CA 91210 818−545−1925 Fax: 818−545−1937 Email: ckim@katzyoon.com ATTORNEY TO BE NOTICED
Matthew Philip Allen Lawrence Beach Allen and Choi PC 100 West Broadway Suite 1200 Glendale, CA 91210 818−545−1925 Fax: 818−545−1937 Email: mpa@lbaclaw.com ATTORNEY TO BE NOTICED
Nathan A Oyster Lawrence Beach Allen and Choi PC 100 West Broadway Suite 1200 Glendale, CA 91210−1219 818−545−1925 Fax: 818−545−1937 Email: noyster@bwslaw.com ATTORNEY TO BE NOTICED
Raymond W Sakai Lawrence Beach Allen and Choi PC 100 West Broadway Suite 1200 Glendale, CA 91210−1219 818−545−1925 Fax: 818 545 1937 Email: rsakai@lbaclaw.com ATTORNEY TO BE NOTICED
represented by Christopher Taewoo Kim (See above for address) ATTORNEY TO BE NOTICED
Matthew Philip Allen (See above for address) ATTORNEY TO BE NOTICED
Nathan A Oyster (See above for address) ATTORNEY TO BE NOTICED
Raymond W Sakai (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 2:10-cv-8011 As of: 07/15/2015 01:58 AM PDT 3 of 14

Christopher Taewoo Kim (See above for address) ATTORNEY TO BE NOTICED

Matthew Philip Allen (See above for address) ATTORNEY TO BE NOTICED

Nathan A Oyster (See above for address) ATTORNEY TO BE NOTICED

Raymond W Sakai (See above for address) ATTORNEY TO BE NOTICED

Defendant Deputy Fernando Luviano

represented by Christopher Taewoo Kim (See above for address) ATTORNEY TO BE NOTICED

Dennis Michael Gonzales Lawrence Beach Allen and Choi PC 100 W Broadway Suite 1200 Glendale, CA 91210−1219 818−545−1925 Fax: 818−545−1937 Email: dgonzales@lbaclaw.com ATTORNEY TO BE NOTICED

Matthew Philip Allen (See above for address) ATTORNEY TO BE NOTICED

Nathan A Oyster (See above for address) ATTORNEY TO BE NOTICED

Raymond W Sakai (See above for address) ATTORNEY TO BE NOTICED

Defendant Deputy Lascano

Defendant
DOES 1−10

represented by Raymond W Sakai (See above for address) ATTORNEY TO BE NOTICED

Mediator (ADR Panel)
Nikki Tolt Act Mediation 9024 West Olympic Boulevard, Suite 200 Beverly Hills, CA 90211 310−888−8200

represented by Nikki Tolt Nikki Tolt Law Offices 9024 West Olympic Boulevard Suite 2090 Beverly Hills, CA 90211 310−285−9990 Fax: 310−285−0025 Email: ntolt@msn.com ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 2:10-cv-8011 As of: 07/15/2015 01:58 AM PDT 4 of 14

10/25/2010
10/25/2010 10/25/2010 10/27/2010
11/29/2010 11/29/2010 11/30/2010 11/30/2010 12/01/2010
12/01/2010
12/03/2010
12/03/2010
12/03/2010
12/03/2010

1 COMPLAINT against Defendants Sheriff Lee Baca, County of Los Angeles, DOES 1−10, Deputy Lascano, Los Angeles Sheriff's Department, Deputy Fernando Luviano, Deputy Rico. Case assigned to Judge George H Wu for all further proceedings. Discovery referred to Magistrate Judge Paul L Abrams.(Filing fee $ 350 PAID) Jury Demanded, filed by plaintiff Michael Holguin.(car) (ds). (Entered: 10/25/2010)
2 NOTICE TO PARTIES OF ADR PROGRAM filed.(car) (Entered: 10/25/2010)
3 CERTIFICATION AND NOTICE of Interested Parties filed by Plaintiff Michael Holguin (car) (ds). (Entered: 10/25/2010)
4 STANDING ORDER Re Final Pre−Trial Conferences for Civil Jury Trials BeforeJudge George H. Wu. You are instructed to read and to follow (unless otherwise superseded herein) the Central District of California Local Rules (henceforth "Local Rules") 16−1 through 16−15 regarding pre−trial requirements. SEE ATTACHED ORDER. (rs) (Entered: 10/27/2010)
5 ANSWER to Complaint − (Discovery), Complaint − (Discovery) 1 with JURY DEMAND filed by Defendants Lee Baca, County of Los Angeles.(Sakai, Raymond) (Entered: 11/29/2010)
6 Notice of Interested Parties filed by Defendants Lee Baca, County of Los Angeles, (Sakai, Raymond) (Entered: 11/29/2010)
7 ANSWER to Complaint − (Discovery), Complaint − (Discovery) 1 with JURY DEMAND filed by Defendant Fernando Luviano.(Gonzales, Dennis) (Entered: 11/30/2010)
8 NOTICE of Interested Parties filed by Defendant Fernando Luviano, (Gonzales, Dennis) (Entered: 11/30/2010)
9 NOTICE of Change of Attorney Information for attorney Nathan A Oyster counsel for Defendants Lee Baca, County of Los Angeles, Fernando Luviano. Adding Nathan A Oyster as attorney as counsel of record for Defendants County of Los Angeles, Sheriff Leroy D. Baca, and Deputy Fernando Luviano for the reason indicated in the G−06 Notice. Filed by Defendants Defendants County of Los Angeles, Sheriff Leroy D. Baca, and Deputy Fernando Luviano (Oyster, Nathan) (Entered: 12/01/2010)
10 MINUTE ORDER IN CHAMBERS by Judge George H Wu. A Scheduling Conference is set for January 13, 2011 at 8:30 a.m. Counsel are reminded of their obligations to disclose information, confer on a discovery plan, and report to the Court, as required by F.R.C.P. 26 and the Local Rules of this Court. Trial counsel are ordered to be present. A Joint 26(f) Report and a Notice of Settlement Procedure Selection Form ADR−1 shall be filed with the Court not later than January 3, 2011. (rs) (Entered: 12/01/2010)
11 PROOF OF SERVICE Executed by Plaintiff Michael Holguin, upon Defendant Fernando Luviano served on 11/5/2010, answer due 11/26/2010. Service of the Summons and Complaint were executed upon Deputy Pagkaliwangan, front desk at Men's Central Jail in compliance with Federal Rules of Civil Procedure by personal service. Original Summons returned. (Stormer, Dan) (Entered: 12/03/2010)
12 PROOF OF SERVICE Executed by Plaintiff Michael Holguin, upon Defendant Lee Baca served on 11/5/2010, answer due 11/26/2010. Service of the Summons and Complaint were executed upon Kathleen Camacho, Front Desk Receptionist in compliance with Federal Rules of Civil Procedure by personal service. Original Summons returned. (Stormer, Dan) (Entered: 12/03/2010)
13 PROOF OF SERVICE Executed by Plaintiff Michael Holguin, upon Defendant County of Los Angeles served on 11/5/2010, answer due 11/26/2010. Service of the Summons and Complaint were executed upon Tammy Johnson − Deputy Clerk, Executive Office of the Board in compliance with Federal Rules of Civil Procedure by personal service. Original Summons returned. (Stormer, Dan) (Entered: 12/03/2010)
14 PROOF OF SERVICE Executed by Plaintiff Michael Holguin, upon Defendant Los Angeles Sheriff's Department served on 11/5/2010, answer due 11/26/2010. Service of the Summons and Complaint were executed upon Kathleen Camacho, Front Desk Receptionist in compliance with Federal Rules of Civil Procedure by personal service.

Case: 2:10-cv-8011 As of: 07/15/2015 01:58 AM PDT 5 of 14

12/27/2010 01/05/2011 01/13/2011
01/28/2011 01/28/2011 01/31/2011
02/08/2011 02/09/2011 03/16/2011 03/16/2011 03/16/2011 03/16/2011 03/17/2011 03/17/2011 05/02/2011

Original Summons returned. (Stormer, Dan) (Entered: 12/03/2010)
15 JOINT REPORT Rule 26(f) Discovery Plan ; estimated length of trial 5−7 days, filed by Defendants Lee Baca, County of Los Angeles, DOES, Lascano, Los Angeles Sheriff's Department, Fernando Luviano, Rico, Plaintiff Michael Holguin.. (Keeny, Christy) (Entered: 12/27/2010)
77 ORDER ALLOWING PLAINTIFFS ADDITIONAL STATEMENT OF GENUINE DISPUTES OF MATERIAL FACT AND CONFIDENTIAL MATERIALS IN SUPPORT TO BE FILED UNDER SEAL by Judge George H Wu: 76 Application to Seal (pj) Modified on 4/17/2013 (jp). (Entered: 01/06/2012)
16 MINUTES OF Scheduling Conference held before Judge George H Wu. The Court sets the following: Last day to add parties and/or amend pleadings February 4, 2011. Mediation cutoff June 22, 2011. Post−Mediation Status Conference June 23, 2011 at 8:30 a.m. Discovery cutoff August 3, 2011. Expert discovery cutoff August 26, 2011. Motion hearing cutoff September 29, 2011. Pretrial Conference November 3, 2011 at 8:30 a.m. Jury Trial November 15, 2011 at 9:00 a.m. Court Reporter: Victoria Valine. (im) (Entered: 01/14/2011)
17 First STIPULATION to Amend Complaint − (Discovery), Complaint − (Discovery) 1 filed by Plaintiff Michael Holguin. (Attachments: # 1 Proposed Order Re Filing of First Amended Complaint)(Stormer, Dan) (Entered: 01/28/2011)
18 First STIPULATION to Amend Complaint − (Discovery), Complaint − (Discovery) 1 filed by Plaintiff Michael Holguin. (Attachments: # 1 Proposed Order Re Filing of First Amended Complaint, # 2 Proposed First Amended Complaint for Damages)(Stormer, Dan) (Entered: 01/28/2011)
19 ORDER RE STIPULATION OF THE PARTIES RE FILING OF FIRST AMENDED COMPLAINT by Judge George H Wu, 18 17 . Pursuant to stipulation of the parties and upon a showing of good cause, it is Ordered that Plaintiff may manually file the First Amended Complaint submitted herewith at the courts civil intake department. (im) (Entered: 02/01/2011)
20 NOTICE of Change of Attorney Information for attorney Dan Stormer counsel for Plaintiff Michael Holguin. Adding Virginia Keeny as attorney as counsel of record for Plaintiff, Michael Holguin for the reason indicated in the G−06 Notice. Filed by Plaintiff Holguin (Stormer, Dan) (Entered: 02/08/2011)
21 FIRST AMENDED COMPLAINT against Defendants County of Los Angeles, Los Angeles Sheriff's Department, Sheriff Lee Baca, Deputy Rico, Deputy Fernando Luviano, Deputy Lascano, and Does 1−10; amending Complaint 1 ; with Jury Demand filed by Plaintiff Michael Holguin. (gk) (gk). (Entered: 02/09/2011)
22 STIPULATION for Order Authorizing In−Custody Deposition of Plaintiff Michael Holguin filed by Defendants Lee Baca, County of Los Angeles, Fernando Luviano. (Attachments: # 1 Proposed Order)(Sakai, Raymond) (Entered: 03/16/2011)
23 STIPULATION for Protective Order filed by Defendants Lee Baca, County of Los Angeles, Fernando Luviano. (Attachments: # 1 Proposed Protective Order)(Sakai, Raymond) (Entered: 03/16/2011)
24 ANSWER to Amended Complaint, 21 filed by Defendants Lee Baca, County of Los Angeles, DOES, Fernando Luviano.(Sakai, Raymond) (Entered: 03/16/2011)
25 NOTICE of Interested Parties filed by Defedant David Ortega DOES, (Sakai, Raymond) (Entered: 03/16/2011)
26 ORDER by Magistrate Judge Paul L. Abrams AUTHORIZING IN−CUSTODY DEPOSITION OF PLAINTIFF 22 . **NOTE CHANGES BY COURT** (ch) (Entered: 03/17/2011)
27 PROTECTIVE ORDER by Magistrate Judge Paul L. Abrams re Stipulation for Protective Order 23 . **See Order for details.** (ch) (Entered: 03/17/2011)
28 ANSWER to Amended Complaint, 21 filed by Defendant Rico.(Sakai, Raymond) (Entered: 05/02/2011)

Case: 2:10-cv-8011 As of: 07/15/2015 01:58 AM PDT 6 of 14

05/02/2011 05/09/2011 05/09/2011
05/12/2011 05/23/2011 05/23/2011 06/02/2011
06/06/2011 06/11/2011 06/13/2011 06/15/2011
06/16/2011
06/23/2011 07/07/2011

29 NOTICE of Interested Parties filed by Defendant Rico, identifying Michael Holguin, County of Los Angeles, Sheriff Baca, Fernando Luviano, David Ortega, Giovanni Rico. (Sakai, Raymond) (Entered: 05/02/2011)
30 NOTICE OF FILING RE: JOINT STIPULATION PURSUANT TO LOCAL RULE 37−1 filed by Plaintiff Michael Holguin. (Keeny, Christy) (Entered: 05/09/2011)
31 NOTICE OF MOTION AND MOTION for Discovery regarding JOINT STIPULATION PURSUANT TO LOCAL RULE 37−1 filed by Plaintiff Michael Holguin. Motion set for hearing on 5/31/2011 at 10:00 AM before Magistrate Judge Paul L. Abrams. (Attachments: # 1 Declaration of Keeny, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Declaration of Mathers)(Keeny, Christy) Modified on 5/10/2011 (ch). (Entered: 05/09/2011)
32 STIPULATION REGARDING SELECTION of Attorney Settlement Officer Filed; Parties stipulate that Nikki Tolt may serve as Attorney Settlement Officer for Settlement Proceedings The Plaintiff obtained the consent of the Attorney Settlement Officer. Filed by Plaintiff Michael Holguin(Keeny, Christy) (Entered: 05/12/2011)
33 NOTICE OF ASSIGNMENT of Attorney Settlement Officer. Nikki Tolt has been assigned to serve as Attorney Settlement Officer. (mb) (Entered: 05/23/2011)
34 ORDER by Magistrate Judge Paul L. Abrams RE PLAINTIFF'S MOTION TO COMPEL DISCOVERY 31 . The hearing scheduled for May 31, 2011, is ORDERED OFF CALENDAR. Plaintiff's Motion to Compel is granted in part. **See Order for details.** (ch) (Entered: 05/23/2011)
35 PROOF OF SERVICE Executed by Plaintiff Michael Holguin, upon Defendant DOES served on 2/8/2011, answer due 3/1/2011. Service of the Summons and Complaint were executed upon Deputy Ortega in compliance with Federal Rules of Civil Procedure by personal service. Original Summons returned. (Keeny, Christy) (Entered: 06/02/2011)
36 NOTICE OF MOTION AND MOTION for Reconsideration re Order on Motion for Discovery 34 filed by Defendant County of Los Angeles. Motion set for hearing on 7/7/2011 at 08:30 AM before Judge George H Wu. (Sakai, Raymond) (Entered: 06/06/2011)
37 STIPULATION to Continue Pretrial and Trial Dates Re: Scheduling Conference, Set/Reset Deadlines/Hearings,,,, 16 filed by Parties Lee Baca, County of Los Angeles, Michael Holguin, Fernando Luviano, Rico. (Attachments: # 1 Proposed Order)(Sakai, Raymond) (Entered: 06/11/2011)
38 NOTICE of Change of Attorney Information for attorney Matthew Philip Allen counsel for Defendants Lee Baca, County of Los Angeles, Fernando Luviano, Rico. Filed by DEFENDANTS County of Los Angeles, Sheriff Leroy D. Baca, Fernando Luviano, David Ortega, and Giovanni Rico (Allen, Matthew) (Entered: 06/13/2011)
40 ORDER RE STIPULATION TO MODIFY THE SCHEDULING ORDER TO CONTINUE PRETRIAL AND TRIAL DATES by Judge George H Wu. Discovery cut−off 11/3/2011., Motion hearing cutoff 1/12/2012., Mediation cutoff 9/28/2011., Jury Trial set for 2/28/2012 09:00 AM., Pretrial Conference set for 2/23/2012 08:30 AM., Post−Mediation Status Conference set for 9/29/2011 08:30 AM. (bp) (Entered: 06/17/2011)
39 OPPOSITION in opposition re: MOTION for Reconsideration re Order on Motion for Discovery 34 36 PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR RECONSIDERATION; DECLARATION AND EXHIBITS IN SUPPORT THEREOF filed by Plaintiff Michael Holguin. (Attachments: # 1 Declaration Decl of V. Keeny & Exhs In Opp to Defts Mtn for Reconsideration)(Keeny, Christy) (Entered: 06/16/2011)
41 REPLY in support MOTION for Reconsideration re Order on Motion for Discovery 34 36 filed by Defendant County of Los Angeles. (Attachments: # 1 Exhibit Exhibit "A")(Allen, Matthew) (Entered: 06/23/2011)
42 MINUTES OF Motion Hearing held before Judge George H Wu:Re DEFENDANTS MOTION FOR RULE 72(A) RECONSIDERATION OF MAGISTRATE JUDGES 5/23/11 DISCOVERY ORDER. Tentative circulated and attached hereto, is adopted as

Case: 2:10-cv-8011 As of: 07/15/2015 01:58 AM PDT 7 of 14

07/15/2011 09/21/2011 09/27/2011 09/29/2011 09/30/2011 10/07/2011 10/10/2011 10/10/2011 10/12/2011 10/19/2011 10/20/2011

Courts final ruling. Defendants motion for Rule 72(a) Reconsideration of Magistrate Judges 5/23/11 discovery order is Denied. Documents will be produced by 8/19/11. Counsel for plaintiff will file a proposed order forthwith.Court Reporter: Wil Wilcox. (lc) (Entered: 07/08/2011)
43 ORDER ON MOTION FOR RECONSIDERATION OF MAGISTRATE'S RULING RE DISCOVERY by Judge George H Wu, re MOTION for Reconsideration re Order on Motion for Discovery 34 36 . Defendant is to produce the documents responsive to requests Nos. 11 and 21 asoutlined above on or before August 19, 2011, subject to the protective order limiting thedocuments use and dissemination in this case. (pj) (Entered: 07/18/2011)
44 ATTORNEY SETTLEMENT OFFICER PROCEEDING REPORT Filed by Attorney Settlement Officer Nikki Tolt: Settlement Proceedings were held on September 21, 2011. The parties are unable to reach an agreement at this time.(Tolt, Nikki) (Entered: 09/21/2011)
45 STIPULATION to Continue Expert Discovery Deadlines from (Expert Witness Exchange) November 1, 2011, (Rebuttal Expert Exchange) November 15, 2011, and (Expert Discovery Completion) December 2, 2011 to November 22, 2011, December 6, 2011 and December 23, 2011 filed by Defendants Lee Baca, County of Los Angeles, Fernando Luviano, Rico. (Attachments: # 1 Proposed Order)(Oyster, Nathan) (Entered: 09/27/2011)
46 MINUTES OF POST−MEDIATION Status Conference held before Judge George H Wu: The parties informs the Court that they are unable to reach an agreement at this time. Defendant informs the Court that they will file a Motion for Summary Judgment.: Court Reporter: Rosalyn Adams. (pj) (Entered: 10/03/2011)
47 ORDER by Judge George H Wu, having reviewed and considered the Parties' Stipulation to Continue Expert Discovery deadlines 45 . The last day to exchange expert witness information is November 22, 2011. The last day to exchange rebuttal expert witness information is December 6, 2011. The last day to complete expert discovery is December 23, 2011. (ir) (Entered: 10/03/2011)
48 EX PARTE APPLICATION for Protective Order for Order Barring the Depositions of Baca, Clark, Tanaka, and Conte filed by Defendants Lee Baca, County of Los Angeles, Fernando Luviano, Rico. (Attachments: # 1 Proposed Order)(Oyster, Nathan) (Entered: 10/07/2011)
49 Opposition In Opposition re: EX PARTE APPLICATION for Protective Order for Order Barring the Depositions of Baca, Clark, Tanaka, and Conte 48 Plaintiffs' Opposition to Defendants' Ex Parte Application for Protective Order Barring Depositions of Baca, Clark and Tanaka; Memorandum of Points and Authorities filed by Plaintiff Michael Holguin. (Keeny, Christy) (Entered: 10/10/2011)
50 DECLARATION of Virginia Keeny In Opposition EX PARTE APPLICATION for Protective Order for Order Barring the Depositions of Baca, Clark, Tanaka, and Conte 48 Declaration of Virginia Keeny and Exhibits In Opposition To Defendants' Ex Parte Application For Protective Order filed by Plaintiff Michael Holguin. (Attachments: # 1 Exhibit Exhibits 1−9, # 2 Exhibit Exhibits 10−13, # 3 Exhibit Exhibits 14−21)(Keeny, Christy) (Entered: 10/10/2011)
51 ORDER by Magistrate Judge Paul L. Abrams RE: DEFENDANTS' EX PARTE APPLICATION FOR PROTECTIVE ORDER 48 . Defendants' Application seeking a protective order barring plaintiff from deposing Sheriff Baca and Commander Conte is GRANTED, and is DENIED as to Undersheriff Tanaka and Captain Clark. **See Order for details.** (ch) (Entered: 10/12/2011)
52 EX PARTE APPLICATION for Reconsideration re Order on Ex Parte Application for Protective Order, 51 filed by Defendants Lee Baca, County of Los Angeles, Fernando Luviano, Rico. (Attachments: # 1 Proposed Order)(Sakai, Raymond) (Entered: 10/19/2011)
53 Opposition re: EX PARTE APPLICATION for Reconsideration re Order on Ex Parte Application for Protective Order, 51 52 Re Undersheriff Tanaka; Memorandum of Points and Authorities and Declaration In Support Thereof filed by Plaintiff Michael

Case: 2:10-cv-8011 As of: 07/15/2015 01:58 AM PDT 8 of 14

10/20/2011 10/25/2011 12/15/2011 12/15/2011
12/15/2011 12/15/2011 12/15/2011 12/19/2011
12/29/2011 12/29/2011 12/29/2011 12/29/2011

Holguin. (Attachments: # 1 Declaration Virginia Keeny, # 2 Exhibit 1−5, # 3 Exhibit 6−16)(Keeny, Christy) (Entered: 10/20/2011)
54 Objection to Evidence Submitted by Defendants re: EX PARTE APPLICATION for Reconsideration re Order on Ex Parte Application for Protective Order, 51 52 Re Undersheriff Tanaka filed by Plaintiff Michael Holguin. (Keeny, Christy) (Entered: 10/20/2011)
55 DENIED BY ORDER OF THE COURT by Judge George H Wu: [PROPOSED] ORDER GRANTING DEFENDANTS EX PARTE APPLICATION FOR PARTIAL RECONSIDERATION OF MAGISTRATE JUDGES ORDER DENYING DEFENDANTS REQUEST FOR A PROTECTIVE ORDER BARRING THE DEPOSITION OF UNDERSHERIFF PAUL TANAKA 52 (pj) (Entered: 10/25/2011)
56 STIPULATION to Continue Motion Dates and Expert Discovery Cutoff filed by defendants Lee Baca, County of Los Angeles, Fernando Luviano, Rico. (Attachments: # 1 Proposed Order)(Sakai, Raymond) (Entered: 12/15/2011)
57 NOTICE OF MOTION AND MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT filed by DEFENDANTS Lee Baca, County of Los Angeles, Fernando Luviano, Rico. Motion set for hearing on 1/12/2012 at 08:30 AM before Judge George H Wu. (Attachments: # 1 Declaration ALLEN DECLARATION, # 2 Declaration BACA DECLARATION, # 3 Declaration STUVER DECLARATION, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H)(Allen, Matthew) (Entered: 12/15/2011)
58 STATEMENT of UNDISPUTED FACTS MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 filed by Defendants Lee Baca, County of Los Angeles, Fernando Luviano, Rico. (Allen, Matthew) (Entered: 12/15/2011)
59 REQUEST FOR JUDICIAL NOTICE re MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 filed by DEFENDANTS Lee Baca, County of Los Angeles, Fernando Luviano, Rico. (Attachments: # 1 Exhibit 1)(Allen, Matthew) (Entered: 12/15/2011)
60 NOTICE OF LODGING filed re MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 (Attachments: # 1 [PROPOSED] JUDGMENT)(Allen, Matthew) (Entered: 12/15/2011)
61 ORDER by Judge George H Wu: re Stipulation to Continue 56 . IT IS SO ORDERED that the dates be continued as follows: Expert discovery cutoff from December 23, 2011, to January 20, 2012; Plaintiffs opposition due date to Defendants motion for summary judgment from December 22, 2011, to December 29, 2011; Defendants reply due date from December 29, 2011, to January 12, 2012; and The hearing on the motion from January 12, 2012, to January 26, 2012 at 8:30 a.m. (kti) (Entered: 12/19/2011)
62 MEMORANDUM in Opposition to MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 Plaintiff Michael Holguins Opposition to Defendants Motion for Summary Judgment Or, in the Alternative, Summary Adjudication filed by Plaintiff Michael Holguin. (Keeny, Christy) (Entered: 12/29/2011)
63 STATEMENT of Genuine Disputes of Material Fact in Opposition to MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 filed by Plaintiff Michael Holguin. (Keeny, Christy) (Entered: 12/29/2011)
64 DECLARATION of Virginia Keeny in Opposition to MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 Declaration of Virginia Keeny and Evidence in Support of Plaintiffs Opposition to Defendants Motion for Summary Judgment Or, in the Alternative, Summary Adjudication filed by Plaintiff Michael Holguin. (Keeny, Christy) (Entered: 12/29/2011)
65 NOTICE of Manual Filing filed by Plaintiff Michael Holguin of Plaintiffs Additional Statement of Genuine Disputes of Material Fact and Confidential Materials in Support Thereof. (Keeny, Christy) (Entered: 12/29/2011)

Case: 2:10-cv-8011 As of: 07/15/2015 01:58 AM PDT 9 of 14

12/29/2011 12/29/2011 12/29/2011 12/29/2011 12/29/2011 12/29/2011 12/29/2011 12/29/2011 12/29/2011 01/03/2012
01/03/2012 01/05/2012

66 REQUEST FOR JUDICIAL NOTICE re MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 Request for Judicial Notice in Support of Plaintiffs Opposition to Defendants Motion for Summary Judgment Or, in the Alternative, Summary Adjudication, Volume I of IX filed by Plaintiff Michael Holguin. (Keeny, Christy) (Entered: 12/29/2011)
67 REQUEST FOR JUDICIAL NOTICE re MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 Request for Judicial Notice in Support of Plaintiffs Opposition to Defendants Motion for Summary Judgment Or, in the Alternative, Summary Adjudication, Volume II of IX filed by Plaintiff Michael Holguin. (Keeny, Christy) (Entered: 12/29/2011)
68 REQUEST FOR JUDICIAL NOTICE re MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 Request for Judicial Notice in Support of Plaintiffs Opposition to Defendants Motion for Summary Judgment Or, in the Alternative, Summary Adjudication, Volume III of IX filed by Plaintiff Michael Holguin. (Keeny, Christy) (Entered: 12/29/2011)
69 REQUEST FOR JUDICIAL NOTICE re MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 Request for Judicial Notice in Support of Plaintiffs Opposition to Defendants Motion for Summary Judgment Or, in the Alternative, Summary Adjudication, Volume IV of IX filed by Plaintiff Michael Holguin. (Keeny, Christy) (Entered: 12/29/2011)
70 REQUEST FOR JUDICIAL NOTICE re MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 Request for Judicial Notice in Support of Plaintiffs Opposition to Defendants Motion for Summary Judgment Or, in the Alternative, Summary Adjudication, Volume V of IX filed by Plaintiff Michael Holguin. (Keeny, Christy) (Entered: 12/29/2011)
71 REQUEST FOR JUDICIAL NOTICE re MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 Request for Judicial Notice in Support of Plaintiffs Opposition to Defendants Motion for Summary Judgment Or, in the Alternative, Summary Adjudication, Volume VI of IX filed by Plaintiff Michael Holguin. (Keeny, Christy) (Entered: 12/29/2011)
72 REQUEST FOR JUDICIAL NOTICE re MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 Request for Judicial Notice in Support of Plaintiffs Opposition to Defendants Motion for Summary Judgment Or, in the Alternative, Summary Adjudication, Volume VII of IX filed by Plaintiff Michael Holguin. (Keeny, Christy) (Entered: 12/29/2011)
73 REQUEST FOR JUDICIAL NOTICE re MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 Request for Judicial Notice in Support of Plaintiffs Opposition to Defendants Motion for Summary Judgment Or, in the Alternative, Summary Adjudication, Volume VIII of IX filed by Plaintiff Michael Holguin. (Keeny, Christy) (Entered: 12/29/2011)
74 REQUEST FOR JUDICIAL NOTICE re MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 Request for Judicial Notice in Support of Plaintiffs Opposition to Defendants Motion for Summary Judgment Or, in the Alternative, Summary Adjudication, Volume IX of IX filed by Plaintiff Michael Holguin. (Keeny, Christy) (Entered: 12/29/2011)
75 NOTICE of Manual Filing filed by Plaintiff Michael Holguin of 1) Plaintiff's Application to File Under Seal the Plaintiff's Additional Statement of Genuine Disputes of Material Fact and Confidential Materials in Support Thereof;2)[Proposed] Order Allowing Plaintiff's Additional Statement of Genuine Disputes of Material Fact and Confidential Materials in Support Thereof to be Filed Under Seal; and 3)Plaintiff's Additional Statement of Genuine Disputes of Material Fact and Confidential Materials in Support Thereof. (Keeny, Christy) (Entered: 01/03/2012)
76 APPLICATION to file UNDER SEAL the Plaintiff's additional statement of genuine disputes of material fact and confidential materials filed by Plaintiff Michael Holguin. (pj) (Entered: 01/05/2012)
80 SEALED DOCUMENT− PLAINTIFF'S ADDITIONAL STATEMENT of Genuine Disputes of Material Fact and Confidential Materials in Support Thereof. (mat)

Case: 2:10-cv-8011 As of: 07/15/2015 01:58 AM PDT 10 of 14

01/12/2012 01/12/2012 01/18/2012 01/23/2012 01/23/2012 01/24/2012 01/24/2012 01/24/2012
01/24/2012 01/25/2012
02/23/2012

(Additional attachment(s) added on 1/13/2012: Part 2) (mat). Modified on 1/13/2012 (mat). (Entered: 01/13/2012)
78 REPLY in support of MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 filed by Defendants Lee Baca, County of Los Angeles, Fernando Luviano, Rico. (Oyster, Nathan) (Entered: 01/12/2012)
79 Evidentiary Objections re: MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 filed by Defendants Lee Baca, County of Los Angeles, Fernando Luviano, Rico. (Oyster, Nathan) (Entered: 01/12/2012)
81 Joint STIPULATION to Continue Hearing Date for Defendant's Motion for Summary Judgment or, in the alternative, Summary Adjudication from January 26, 2012 at 8:30 a.m. to January 30, 2012 at 8:30 a.m. filed by Plaintiff Michael Holguin. (Attachments: # 1 Proposed Order, # 2 Declaration Virginia Keeny)(Keeny, Christy) (Entered: 01/18/2012)
82 ORDER by Judge George H Wu, granting Stipulation to Continue, 81 . IT IS HEREBY ORDERED, pursuant to the stipulation of the parties, that the hearing on Defendants' Motion for Summary Judgment or, in the alternative, SummaryAdjudication be continued to January 30, 2012 at 8:30 a.m. (rrey) (Entered: 01/23/2012)
83 Joint STIPULATION to Continue Trial Date from February 28, 2012 at 9:00 a.m. to September 4, 2012 at 9:00 a.m. filed by Plaintiff Michael Holguin. (Attachments: # 1 Proposed Order, # 2 Declaration Virginia Keeny)(Keeny, Christy) (Entered: 01/23/2012)
84 OPPOSITION to MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 Plaintiffs Rebuttal to Defendants Evidentiary Objections to Plaintiffs Evidence Opposing Defendants Motion for Summary Judgment and Evidentiary Issues Raised in Defendants Reply Brief in Support of Summary Judgment filed by Plaintiff Michael Holguin. (Keeny, Christy) (Entered: 01/24/2012)
85 RESPONSE filed by Plaintiff Michael Holguinto Objection/Opposition (Motion related) 79 Plaintiffs Responses to Defendants Evidentiary Objections to Plaintiffs Evidence Opposing Defendants Motion for Summary Judgment (Keeny, Christy) (Entered: 01/24/2012)
86 DECLARATION of Virginia Keeny re Response in Opposition to Motion, 84 Declaration of Virginia Keeny and Evidence in Support of Plaintiffs Rebuttal to Defendants Evidentiary Objections to Plaintiffs Evidence Opposing Defendants Motion for Summary Judgment and Evidentiary Issues Raised in Defendants Reply Brief in Support of Summary Judgment filed by Plaintiff Michael Holguin. (Attachments: # 1 Exhibit 1−4)(Keeny, Christy) (Entered: 01/24/2012)
87 RESPONSE filed by Plaintiff Michael Holguinto Response in Opposition to Motion, 84 Second Request for Judicial Notice in Support Of Plaintiffs Opposition to Defendants Motion for Summary Judgment Or, in The Alternative, Summary Adjudication (Attachments: # 1 Exhibit 1−2)(Keeny, Christy) (Entered: 01/24/2012)
88 ORDER re Stipulation to Continue 83 by Judge George H Wu. IT IS HEREBY ORDERED, pursuant to the stipulation of the parties, that the Jury Trial date for February 28, 2012 at 9:00 a.m. be continued to September 4, 2012 at 9:00 a.m. IT IS HEREBY ORDERED that the Pretrial Conference is set for August 23, 2012 at 8:30 a.m. IT IS HEREBY ORDERED that Defendants County of Los Angeles, Sheriff Leroy D. Baca, Fernando Luviano, David Ortega, and Giovanni Rico's Motion for Summary Judgement, filed on December 15, 2011, and presently set for January 30, 2012, is continued to February 23, 2012 at 8:30 a.m. (kti) (Entered: 01/25/2012)
89 MINUTES OF 57 DEFENDANTS COUNTY OF LOS ANGELES, SHERIFF LEROY D. BACA, FERNANDO LUVIANO, DAVID ORTEGA, AND GIOVANNI RICO'S MOTION FOR SUMMARY JUDGEMENT held before Judge George H Wu. The Courts Tentative Ruling is circulated and attached hereto. Court hears oral argument. For reasons stated on the record, the motion is continued to March 19, 2012 at 8:30 a.m. Parties may file a three−page brief regarding the points raised in the tentative by March 12, 2012. Court Reporter: Pat Cuneo. (kti) (Entered: 02/24/2012)

Case: 2:10-cv-8011 As of: 07/15/2015 01:58 AM PDT 11 of 14

02/27/2012
02/29/2012 03/12/2012 03/26/2012 03/26/2012
04/02/2012 04/02/2012 04/06/2012 04/12/2012
04/13/2012
05/09/2012 05/09/2012 05/09/2012

90 Joint STIPULATION to Continue the Hearing Date for Defendants' Motion for Summary Judgment or, in the Alternative, Summary Adjudication from March 19, 2012 at 8:30 a.m. to March 26, 2012 at 8:30 a.m. Re: Motion Hearing, Set/Reset Motion Hearing and R&R Deadlines,,,, 89 filed by Plaintiff Michael Holguin. (Attachments: # 1 Proposed Order, # 2 Declaration Virginia Keeny)(Keeny, Christy) (Entered: 02/27/2012)
91 ORDER by Judge George H Wu, re MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 ,IT IS HEREBY ORDERED, pursuant to the stipulation of the parties, that the hearing on Defendants' Motion for Summary Judgment or, in the alternative, SummaryAdjudication, be continued to March 26, 2012 at 8:30 a.m. (pj) (Entered: 03/01/2012)
92 SUPPLEMENT to MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 filed by Defendants Lee Baca, County of Los Angeles, Fernando Luviano, Rico. (Oyster, Nathan) (Entered: 03/12/2012)
93 STIPULATION to Dismiss defendant Rico filed by Defendants Rico, County of Los Angeles, Fernando Luviano, Lee Baca.(Sakai, Raymond) (Entered: 03/26/2012)
94 MINUTES OF DEFENDANTS COUNTY OF LOS ANGELES, SHERIFF LEROY D. BACA, FERNANDO LUVIANO, DAVID ORTEGA, AND GIOVANNI RICO'S MOTION FOR SUMMARY JUDGMENT 57 held before Judge George H Wu. The Courts Tentative Ruling is circulated and attached hereto. Parties will file simultaneous supplemental briefs by April 2, 2012. The motion is continued to April 12, 2012 at 8:30 a.m. Court Reporter: Pat Cuneo. (kti) (Entered: 03/27/2012)
95 Opposition re: MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 Supplemental Brief filed by Plaintiff Michael Holguin. (Attachments: # 1 Exhibit A)(Keeny, Christy) (Entered: 04/02/2012)
96 RESPONSE IN SUPPORT of MOTION for Summary Judgment as to PLAINTIFF'S FIRST AMENDED COMPLAINT 57 filed by Defendants Lee Baca, County of Los Angeles, Fernando Luviano. (Sakai, Raymond) (Entered: 04/02/2012)
97 Joint STIPULATION to Continue Hearing Date for Defendant's Motion for Summary Judgment or, in the alternative, Summary Adjudication from April 12, 2012 at 8:30 a.m. to May 3, 2012 at 8:30 a.m. filed by Plaintiff Michael Holguin. (Attachments: # 1 Proposed Order, # 2 Declaration Virginia Keeny)(Keeny, Christy) (Entered: 04/06/2012)
99 MINUTES: Defendants County of Los Angeles, Sheriff Leroy D Baca, Fernando Luviano, David Ortega, and Giovani Rico's Motion for Summary Judgment 57 : Court hears further argument. The Court's Ruling after supplemental briefing as to Motion for Summary Judgment, or in the alternative Summary Adjudication is attached hereto. Defendants' motion is GRANTED IN PART AND DENIED IN PART. The Stipulation to continue the hearing date filed on 4/6/12 97 is deemed MOOT by Judge George H Wu Court Reporter: Pat Cuneo. (ir) (Entered: 04/13/2012)
98 NOTICE of Change of Attorney Information for attorney Christopher Taewoo Kim counsel for Defendants Lee Baca, County of Los Angeles, Fernando Luviano, Rico. Adding Christopher T. Kim as attorney as counsel of record for Defendants County of Los Angeles, Sheriff Leroy D. Baca, Fernando Luviano, David Ortega and Giovanni Rico for the reason indicated in the G−06 Notice. Filed by Defendants County of Los Angeles, Sheriff Leroy D. Baca, Fernando Luviano, David Ortega and Giovanni Rico (Kim, Christopher) (Entered: 04/13/2012)
100 NOTICE Notice of Interlocutory Appeal of Denial of Qualified Immunity filed by Defendants Lee Baca, County of Los Angeles, Fernando Luviano. (Kim, Christopher) (Entered: 05/09/2012)
101 NOTICE OF APPEAL to the 9th CCA filed by Defendants Lee Baca, County of Los Angeles, Fernando Luviano.(Appeal fee of $455 receipt number 0973−10351985 paid.) (Kim, Christopher) (Entered: 05/09/2012)
102 REPRESENTATION STATEMENT re Notice of Appeal to 9th Circuit Court of Appeals 101 . (Kim, Christopher) (Entered: 05/09/2012)

Case: 2:10-cv-8011 As of: 07/15/2015 01:58 AM PDT 12 of 14

05/11/2012 06/07/2012
06/29/2012 07/02/2012 07/02/2012 07/05/2012 07/06/2012 07/10/2012 08/23/2012
08/23/2012
08/23/2012 08/28/2012 09/06/2012

103 NOTIFICATION by Circuit Court of Appellate Docket Number 12−55876, 9th CCA regarding Notice of Appeal to 9th Circuit Court of Appeals 101 as to Defendants Lee Baca, County of Los Angeles, Fernando Luviano. (car) (Entered: 05/11/2012)
104 TRANSCRIPT ORDER re: Court of Appeal case number 12−55876, as to Defendants Lee Baca, County of Los Angeles, Fernando Luviano Court Reporter Patricia Cuneo. Civil Appeal, Court will contact Sylvia Schmidt at sschmidt@lbaclaw.com with any questions regarding this order. Transcript portion requested: Pre−Trial Proceeding: February 23, 2012, March 26, 2012, April 12, 2012. Civil case appeal. Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Sakai, Raymond) (Entered: 06/07/2012)
105 Joint STIPULATION to Stay Case pending Appeal in this Matter and/or Continue Trial Date filed by Plaintiff Michael Holguin. (Attachments: # 1 Proposed Order, # 2 Declaration Virginia Keeny)(Keeny, Christy) (Entered: 06/29/2012)
106 NOTICE of Change of Attorney Information for attorney Christy Virginia Keeny counsel for Plaintiff Michael Holguin.Christy Virginia Keeny is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G−06 Notice. Filed by plaintiff Michael Holguin (Keeny, Christy) (Entered: 07/02/2012)
107 NOTICE of Change of Attorney Information for attorney Dan Stormer counsel for Plaintiff Michael Holguin. Changing firm name to Hadsell Stormer Richardson & Renick LLP. Filed by plaintiff Michael Holguin (Stormer, Dan) (Entered: 07/02/2012)
108 NOTICE of Change of Attorney Information for attorney Cindy Panuco counsel for Plaintiff Michael Holguin. Adding Cindy Panuco as attorney as counsel of record for Michael Holguin for the reason indicated in the G−06 Notice. Filed by plaintiff Michael Holguin (Panuco, Cindy) (Entered: 07/05/2012)
109 ORDER GRANTING STAY by Judge George H Wu. IT IS HEREBY ORDERED, pursuant to the stipulation fo the parties, that the action be stayed in its entirety until the appeal by Sheriff Baca and Deputy Ortega is resolves. The Court sets a status conference date for January 31, 2013 at 8:30 a.m. (bp) (Entered: 07/10/2012)
110 NOTICE of Change of Attorney Information for attorney Anne K Richardson counsel for Plaintiff Michael Holguin. Adding Anne Richardson as attorney as counsel of record for Michael Holguin for the reason indicated in the G−06 Notice. Filed by Plaintiff Michael Holguin (Richardson, Anne) (Entered: 07/10/2012)
111 TRANSCRIPT for proceedings held on 2/23/2012 9:27 a.m. Court Reporter: PAT CUNEO, CSR 1600, website: www.patcuneo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 9/13/2012. Redacted Transcript Deadline set for 9/23/2012. Release of Transcript Restriction set for 11/21/2012. (Cuneo, Patricia) (Entered: 08/23/2012)
112 TRANSCRIPT for proceedings held on 4/12/2012 12:19 p.m. Court Reporter: PAT CUNEO, CSR 1600, website: www.patcuneo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 9/13/2012. Redacted Transcript Deadline set for 9/23/2012. Release of Transcript Restriction set for 11/21/2012. (Cuneo, Patricia) (Entered: 08/23/2012)
113 NOTICE OF FILING TRANSCRIPT filed for proceedings 2/23/2012 9:27 a.m., 4/12/2012 12:19 p.m. re Transcript 111 , 112 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(Cuneo, Patricia) TEXT ONLY ENTRY (Entered: 08/23/2012)
114 NOTICE of Change of Attorney Information for attorney Lincoln Wolf Ellis counsel for Plaintiff Michael Holguin. Adding Lincoln Ellis as attorney as counsel of record for Plaintiff Michael Holguin for the reason indicated in the G−06 Notice. Filed by Plaintiff Michael Holguin (Ellis, Lincoln) (Entered: 08/28/2012)
115 TRANSCRIPT for proceedings held on 3/26/2012 8:53 a.m. Court Reporter: PAT CUNEO, CSR 1600, website: www.patcuneo.com. Transcript may be viewed at the

Case: 2:10-cv-8011 As of: 07/15/2015 01:58 AM PDT 13 of 14

09/06/2012 09/10/2012 09/10/2012 09/10/2012 01/30/2013 01/31/2013
02/01/2013 02/14/2013 02/14/2013

court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 9/27/2012. Redacted Transcript Deadline set for 10/7/2012. Release of Transcript Restriction set for 12/5/2012. (Cuneo, Patricia) (Entered: 09/06/2012)
116 NOTICE OF FILING TRANSCRIPT filed for proceedings 3/26/2012 8:53 a.m. re Transcript 115 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(Cuneo, Patricia) TEXT ONLY ENTRY (Entered: 09/06/2012)
117 TRANSCRIPT ORDER for date of proceedings 02−23−2012 to 02−23−2012 re: Court of Appeal case number 12−55876, as to Plaintiff Michael Holguin Court Reporter Patricia Cuneo. Civil Appeal, Court will contact Lincoln Ellis at l.ellis@hadsellstormer.com with any questions regarding this order. Transcript portion requested: Civil case appeal. Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Ellis, Lincoln) (Entered: 09/10/2012)
118 TRANSCRIPT ORDER for date of proceedings 03−26−2012 to 03−26−2012 re: Court of Appeal case number 12−55876, as to Plaintiff Michael Holguin Court Reporter Patricia Cuneo. Civil Appeal, Court will contact Lincoln Ellis at l.ellis@hadsellstormer.com with any questions regarding this order. Transcript portion requested: Civil case appeal. Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Ellis, Lincoln) (Entered: 09/10/2012)
119 TRANSCRIPT ORDER for date of proceedings 04−12−2012 to 04−12−2012 re: Court of Appeal case number 12−55876, as to Plaintiff Michael Holguin Court Reporter Patricia Cuneo. Civil Appeal, Court will contact Lincoln Ellis at l.ellis@hadsellstormer.com with any questions regarding this order. Transcript portion requested: Civil case appeal. Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Ellis, Lincoln) (Entered: 09/10/2012)
120 EX PARTE APPLICATION for Order for Clarification on Grand Jury Subpoena Plaintiffs Ex Parte Application to Clarify Grand Jury Subpoena; Memorandum of Points and Authorities filed by Plaintiff Michael Holguin. (Attachments: # 1 Declaration of Lincoln Ellis, # 2 Exhibit 1−6, # 3 Proposed Order)(Richardson, Anne) (Entered: 01/30/2013)
121 MINUTES OF Status Conference held before Judge George H. Wu. Parties notify the Court that the appeal in this action has been resolved. For reasons stated on the record, the status conference is continued to 5/2/13 at 8:30 a.m. The parties are advised that the status conference will be vacated and no appearance will be required provided that a Stipulation to Dismiss with a proposed order, is filed by noon on 4/30/13. Court and counsel confer re Plaintiff's Ex Parte Application to Clarify Grand Jury Subpoena, filed on 1/30/13. Court will confer with Magistrate Judge Abrams and advise whether Judge Abrams or this Court will handle the ex parte. Court Reporter: Wil Wilcox. (sp) (Entered: 02/01/2013)
122 NOTICE filed by Plaintiff Michael Holguin. Plaintiff's Written Notice of Tentative Settlement (Attachments: # 1 Enclosure)(Ellis, Lincoln) (Entered: 02/01/2013)
123 MINUTE ORDER IN CHAMBERS by Judge George H. Wu. The Court refers Plaintiffs Ex Parte Application to Clarify Grand Jury Subpoena 120 , filed on January 30, 2013, to Magistrate Judge Paul L. Abrams. (kti) (Entered: 02/14/2013)
124 (IN CHAMBERS) ORDER by Magistrate Judge Paul L. Abrams: The Court has reviewed plaintiff's Ex Parte Application to Clarify Grand Jury Subpoena, filed on January 30, 2013, in which plaintiff seeks an "order" regarding the production of documents exchanged in discovery in this action that have been requested by the United States Department of Justice via a Grand Jury Subpoena. The Court denies the Application, 120 as plaintiff in essence is seeking an advisory opinion from the Court concerning the Court's interpretation of his responsibilities under the Protective Order entered in this case in light of the subpoena. interpretation of his responsibilities under the Protective Order entered in this case in light of the subpoena. Under the "case or controversy" requirement of Article III, Section 2 of the United States Constitution, federal courts may not issue advisory opinions. See Princeton University v. Schmid, 455 U.S. 100, 102, 102 S. Ct. 867, 869, 70 L.Ed.2d 855 (1982) ("We do not sit to decide hypothetical issues or give advisory opinions about issues as to which there are

Case: 2:10-cv-8011 As of: 07/15/2015 01:58 AM PDT 14 of 14

03/04/2013
03/05/2013 03/05/2013 03/05/2013 03/05/2013 03/28/2013 04/01/2013 04/03/2013

not adverse parties before us."). As of this time, no one has moved to quash or enforce the subpoena, and no one has moved to enforce the Protective Order. (es) (Entered: 02/14/2013)
125 NOTICE of Manual Filing filed by Plaintiff Michael Holguin of 1) Plaintiff's Application to File Under Seal Stipulation to Amend the Protective Order; 2) [Proposed] Order Allowing Plaintiff to File Under Seal the Stipulation to Amend the Protective Order; 3) Stipulation to Amend the Protective Order and 4) [Proposed] Order Amending Protective Order. (Ellis, Lincoln) (Entered: 03/04/2013)
126 APPLICATION to File Under Seal Stipulation to Amend the Protective Order filed by plaintiff Michael Holguin. (es) (Entered: 03/07/2013)
127 ORDER ALLOWING PLAINTIFF TO FILE UNDER SEAL THE STIPULATION TO AMEND THE PROTECTIVE ORDER by Magistrate Judge Paul L. Abrams: GRANTING 126 Application to File Under Seal Filing. (es) (Entered: 03/07/2013)
128 SEALED DOCUMENT− JOINT STIPULATION to Amend the Protective Order. (mat) (Entered: 03/13/2013)
129 SEALED DOCUMENT− ORDER Amending Protective Order. (mat) (Entered: 03/13/2013)
130 STIPULATION to Dismiss Case pursuant to settlement of entire action filed by Defendants Lee Baca, County of Los Angeles, Fernando Luviano, Rico.(Sakai, Raymond) (Entered: 03/28/2013)
131 ORDER from 9th CCA filed re: Order 99 CCA # 12−55876. This appeal is dismissed. A copy of this order shall serve as and for the mandate of this court. Order received in this district on 4/1/2013. (dmap) (Entered: 04/03/2013)
132 ORDER Granting Stipulation to Dismiss Case 130 by Judge George H. Wu. It is hereby ORDERED that the above−captioned action be and hereby is dismissed, with prejudice, pursuant to Federal Rules of Civil Procedure, Rule 41(a)(1) (A)(ii) based on the Parties' settlement of this matter. (Made JS−6. Case Terminated.) (lom) (Entered: 04/04/2013)