Filed 10/31/22; Certified for Publication 11/16/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

JAVIER GARCIA 

VILLALOBOS,

 Plaintiff and Appellant,

v.

CITY OF SANTA MARIA et al.,

 Defendants and Respondents.

2d Civil No. B318061

(Super. Ct. No. 20CV01151)

(Santa Barbara County)

This case arises out of a police shooting that resulted in the 

death of Javier Garcia Gaona, Jr. (decedent). Decedent’s parents 

filed a complaint against police officers involved in the shooting 

(the officers) and their employer, the City of Santa Maria (City). 

The officers and City are collectively referred to as “respondents.” 

The complaint consists of four causes of action: (1) battery; (2) 

negligence – wrongful death; (3) negligent hiring, supervision, 

and training; and (4) violation of the Bane Act (Civ. Code, § 52.1). 

Decedent’s father appeals from the judgment entered after 

the trial court granted respondents’ motion for summary 
2

judgment. We affirm because no reasonable trier of fact could 

find that respondents were negligent or that their conduct was 

not reasonable. 

Facts1

Police officers responded to a daytime report of a 

“suspicious person with a knife.” When the officers arrived at the 

scene, they saw decedent standing in the middle of the road at a 

major intersection. He was holding a knife with a long blade. 

The officers ordered him to drop it, but he refused. Decedent 

walked to a corner of the intersection and stood in front of a gas 

station’s price sign. He “yelled at [the] officers,” and “held the 

knife to his throat.” Detective Felix Diaz said to decedent, “‘You 

know it’s a sin to kill yourself.’” Decedent responded, “‘I am not 

going to kill myself, you are going to kill me. . . . You guys are 

here to hurt me.’” Diaz “repeatedly told [decedent] that they 

didn’t want to hurt him.” 

There is a video recording of the entire incident from the 

time the officers arrived until decedent was shot approximately 

43 minutes later. The trial court “viewed the video multiple 

times.” It accurately stated: “Decedent . . . point[s], 

gesticulate[s], and appears upset; he is talking to the officers 

while continuing to hold the knife.” “Decedent appears to be 

chattering incessantly . . . .” “He . . . places the knife . . . to his 

throat, as if he plans to kill himself.” 

Decedent continued to engage in this conduct until the 

42nd minute of the video, when Sergeant Mengel “ordered 

officers to deploy less-than-lethal beanbag rounds and 40mm 

rubber projectiles” against decedent. Mengel testified that his 

1 We grant respondents’ May 6, 2022 motion to augment 

the record. (Cal. Rules of Court, rule 8.155.)
3

plan was “[t]o continue to negotiate with [decedent] as long as it 

was being effective.” He resorted to the less-than-lethal, also 

referred to herein as “less-lethal,” weapons because of decedent’s 

“failure . . . to converse with the negotiators to establish any 

meaningful dialogue. [¶] And then also his change in demeanor 

and behavior at the sign. . . . He began looking for escape routes, 

or – from what I was seeing, I was very concerned he was going to 

leave that location.” Mengel was asked, “Why wasn’t any 

warning given that you were going to launch the less-than-lethal 

attack?” Mengel replied, “[W]hy would we give a warning and 

give someone the ability to prepare for the deployment of a lessthan-lethal?” He understood “that no warning is required.” 

In the trial court appellant did not dispute that “Spanish 

speaking officers and FBI trained . . . negotiators attempted to 

calm [decedent] and persuade him to surrender.” Appellant 

disputed the duration of the negotiations. Respondents claimed 

the negotiations continued for “approximately 40 minutes.” 

Appellant contended that “negotiators were on [the] scene less 

than 22 minutes before [the] shooting started.” Appellant noted 

that there is “a cell phone recording of negotiation[s] that lasted 

19 min. and 10 sec.” 

The following factual summary is based on our personal 

observation of the video: At the video’s 42 minute, 37 second 

mark, an order is given. In response to the order, officers lift 

their less-than-lethal rifles and take aim at decedent, who is still 

standing in front of the sign and holding the knife. The distance 

between decedent and the officers appears to be between 30 and 

40 feet. Decedent sees the officers taking aim and makes a “go 

ahead” gesture with his left hand. The officers fire several times, 

striking decedent in the torso with projectiles. Decedent grabs 
4

the knife with both hands and jumps up and down three times. 

Each time he lands on the ground, he forcefully stabs himself in 

the abdomen. Decedent then appears to slash his throat with the 

knife. He falls down, gets up, and charges full speed toward the 

officers. The knife is clearly visible in his right hand. The 

officers fire several rounds of live ammunition. Decedent 

collapses in the street a few feet away from the officers. 

Decedent’s cause of death was “multiple gunshot wounds.” 

During the autopsy, “[b]ruising [was] noted at several locations 

on the torso [that] was consistent with being struck with lesslethal munitions.” Decedent had “15 superficial wounds” on his 

neck and “small lacerations” on his abdomen. 

Appellant’s expert opined “that a reasonable officer acting 

consistent with standard police practices would have allowed the 

negotiation process to continue. . . . [T]he negotiation process 

was viable even though there were times there was an 

impasse. . . . [Decedent] was contained and officers were afforded 

the time to establish dialogue to develop strategies to bring this 

incident to a peaceful resolution.” 

Trial Court Ruling

Based on “the totality of the circumstances,” the trial court 

found that respondents were “not negligent” and that “‘no 

reasonable juror could find that the police acted unreasonabl[y].’” 

It therefore granted respondents’ motion for summary judgment.

The trial court rejected respondents’ claim that “all four . . . 

causes of action are subject to dismissal under res 

judicata/collateral estoppel/issue preclusion principles.” 

Respondents’ claim was based on appellant’s prior federal court 

action against respondents that had been decided adversely to 

appellant. The trial court concluded that in the federal action “a 
5

determination of actual reasonableness of the officers’ conduct . . . 

was not made as required . . . to satisfy the requirements of 

collateral estoppel/issue preclusion.” We do not consider this 

matter because respondents are entitled to summary judgment 

on the merits.

Summary Judgment: Legal Principles and Standard of Review

“The purpose of the law of summary judgment is to provide 

courts with a mechanism to cut through the parties’ pleadings in 

order to determine whether, despite their allegations, trial is in 

fact necessary to resolve their dispute. [Citation.]” (Aguilar v. 

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) A 

motion for summary judgment “shall be granted if all the papers 

submitted show that there is no triable issue as to any material 

fact and that the moving party is entitled to a judgment as a 

matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A triable 

issue of material fact exists only if “the evidence would allow a 

reasonable trier of fact to find the underlying fact in favor of the 

party opposing the motion in accordance with the applicable 

standard of proof.” (Aguilar, supra, at p. 850, fn. omitted.) 

A defendant moving for summary judgment “bears the 

burden of persuasion that ‘one or more elements of’ the ‘cause of 

action’ in question ‘cannot be established,’ or that ‘there is a 

complete defense’ thereto. [Citation.]” (Aguilar, supra, 25 

Cal.4th at p. 850; see also Code Civ. Proc., § 437c, subd. (p)(2).) 

The defendant also “bears an initial burden of production to make 

a prima facie showing of the nonexistence of any triable issue of 

material fact.” (Aguilar, supra, at p. 850.) Where, as here, the 

burden of proof at trial is by a preponderance of the evidence, the 

defendant must “present evidence that would require such a trier 

of fact not to find any underlying material fact more likely than 
6

not.” (Id., at p. 845.) If the defendant carries this burden, the 

burden of production shifts to the plaintiff “to make a prima facie 

showing of the existence of a triable issue of material fact.” (Id., 

at p. 850.) The plaintiff must present evidence that would allow 

a reasonable trier of fact to find the underlying material fact 

more likely than not. (Id., at p. 852.)

On appeal we conduct a de novo review, applying the same 

standard as the trial court. (AARTS Productions, Inc. v. Crocker 

National Bank (1986) 179 Cal.App.3d 1061, 1064.) Our 

obligation is “‘“to determine whether issues of fact exist, not to 

decide the merits of the issues themselves. . . .”’” (Wright v. 

Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1228.) We 

must “‘consider all of the evidence’ and ‘all’ of the ‘inferences’ 

reasonably drawn therefrom [citation], and must view such 

evidence [citations] and such inferences [citations], in the light 

most favorable to the opposing party.” (Aguilar, supra, 25 

Cal.4th at p. 843.)

“We must presume the judgment is correct . . . .” (Jones v. 

Department of Corrections and Rehabilitation (2007) 152 

Cal.App.4th 1367, 1376.) “‘As with an appeal from any judgment, 

it is the appellant’s responsibility to affirmatively demonstrate 

error and, therefore, to point out the triable issues the appellant 

claims are present by citation to the record and any supporting 

authority. . . .’ [Citation.]” (Claudio v. Regents of University of 

California (2005) 134 Cal.App.4th 224, 230.)

Appellant’s Claimed Triable Issues of Material Fact

Are Based on the Officers’ Preshooting Conduct

There is no triable issue of material fact whether the 

officers were justified in using deadly force when decedent

charged at them while holding a knife. “‘[A]n officer may 
7

reasonably use deadly force when he or she confronts an armed 

suspect in close proximity whose actions indicate an intent to 

attack. In these circumstances, the Courts cannot ask an officer 

to hold fire in order to ascertain whether the suspect will, in fact, 

injure or murder the officer. The high numbers of officer 

mortalities in recent years illustrate the unreasonableness of 

such a notion.’” (Martinez v. County of Los Angeles (1996) 47 

Cal.App.4th 334, 345 (Martinez).)

Appellant states that he “has not disputed that the 

shooting became reasonable at some point but submit[s] that it 

only became so on account of the intentional and negligent 

actions of the Respondents.” This is the key issue. Appellant 

maintains “that reasonable jurors are likely to conclude that the 

officers acted unreasonably when they used less-lethal force 

against an individual clearly experiencing a mental health crisis 

who presented no immediate threat to anyone but himself.” In 

other words, appellant is arguing that negligence in the officers’ 

preshooting conduct resulted in decedent’s suicidal assault with 

the knife: “[T]he unwarranted deployment of less-lethal weapons 

led to [his] death a few seconds later.” 

“[T]he reasonableness of a peace officer’s conduct must be 

determined in light of the totality of circumstances. [Citations.]

. . . [P]reshooting conduct is included in the totality of 

circumstances surrounding an officer’s use of deadly force, and 

therefore the officer’s duty to act reasonably when using deadly 

force extends to preshooting conduct.” (Hayes v. County of San

Diego (2013) 57 Cal.4th 622, 632 (Hayes).)

The Trial Court Properly Granted Summary Judgment

As to all causes of action, respondents satisfied their initial 

burden of production as well as their burden of persuasion for 
8

summary judgment purposes. The trial court noted that the 

undisputed facts and the video show the officers “clearly were 

faced with a very dangerous situation – a man carrying a large 

blade, in a public area with civilians present, who was obviously 

unstable, mercurial, and distraught, perhaps under the influence 

of drugs, who repeatedly refused to comply with their demands to 

drop the knife and submit to their authority, all during the 

course of a 40-minute long plus interaction and negotiations. . . . 

[¶] . . . It is uncontested that decedent placed a knife under his

own throat and threatened to kill himself during the entirety of 

the standoff . . . .” The officers “were not obliged to let [decedent] 

go, and could use reasonably necessary force to disable him. The 

fact th[at] less-than-lethal force . . . was unsuccessful is not the 

reason deadly force was needed – and cannot be the basis for 

liability in any realistic way. It was decedent’s conduct in 

charging the officers with [the] knife that was the cause of the 

death.” 

The burden shifted to appellant “to make a prima facie 

showing of the existence of a triable issue of material fact” 

whether the officers had acted unreasonably during their 

confrontation with decedent. (Aguilar, supra, 25 Cal.4th at p. 

850.) Appellant claims “there were a myriad of triable issues.” 

He lists them as follows: (1) whether Spanish-speaking 

negotiators “talked to [decedent] for 40 minutes” or “for less than 

22 minutes”; (2) whether decedent was preparing to flee when he 

was shot with the less-lethal weapons; (3) whether “Sgt. Mengel 

ordered the deployment of less-lethal weapons to prevent 

[decedent] from running”; (4) whether “Sgt. Mengel just wanted 

to see how [decedent] would react” to being struck with the lesslethal projectiles and had “no plan”; (5) whether decedent posed a 
9

threat to the officers when they fired the less-lethal weapons; (6) 

whether decedent was “seeking to escape when he was fired 

upon” with the less-lethal weapons; (7) whether the officers were 

negligently trained because they had been taught not to provide a 

warning before firing the less-lethal weapons; (8) whether “it was 

negligent not to have been trained to develop a plan as to how to 

proceed after deploying less-lethal weapons”; (9) whether 

“training by the [C]ity was negligent” because the officers 

“deliberately targeted [decedent’s] heart area with less-lethal 

projectiles even though manufacturers state that impact in that 

area should be avoided”; (10) whether “the [C]ity was negligent in 

the mental health training provided to officers”; and (11) whether 

“[t]he credibility of the [officers] was further compromised by 

Respondent City of Santa Maria allowing four of the Respondent 

officers to travel together in the same vehicle before being 

questioned by investigators.” 

“In order to prevent the imposition of a summary judgment, 

the disputed facts must be ‘material,’ i.e., relate to a claim or 

defense in issue which could make a difference in the outcome.” 

(Burton v. Security Pacific Nat. Bank (1988) 197 Cal.App.3d 972, 

976, disapproved on other grounds in Guz v. Bechtel National,

Inc. (2000) 24 Cal.4th 317, 351.) Appellant’s disputed facts are 

not material to the underlying question whether the officers’ use 

of force was reasonable. “[A]s the nation's high court has 

observed, ‘[t]he “reasonableness” of a particular use of force must 

be judged from the perspective of a reasonable officer on the 

scene, rather than with the 20/20 vision of hindsight.’ [Citation.] 

In addition, ‘[a]s long as an officer’s conduct falls within the 

range of conduct that is reasonable under the circumstances, 

there is no requirement that he or she choose the “most 
10

reasonable” action or the conduct that is the least likely to cause 

harm and at the same time the most likely to result in the 

successful apprehension of a violent suspect, in order to avoid 

liability for negligence.’ [Citation.] Although preshooting 

conduct is included in the totality of circumstances, we do not 

want to suggest that a particular preshooting protocol . . . is 

always required. Law enforcement personnel have a degree of 

discretion as to how they choose to address a particular situation. 

Summary judgment is appropriate when the trial court 

determines that, viewing the facts most favorably to the plaintiff, 

no reasonable juror could find negligence.” (Hayes, supra, 57 

Cal.4th at p. 632.)

Viewing the facts most favorably to appellant, no 

reasonable juror could find that respondents were negligent or 

had acted unreasonably. The officers patiently waited 

approximately 40 minutes before resorting to less-than-lethal 

weapons. The negotiations with decedent had been futile. He 

was armed with a deadly weapon, was behaving erratically, and 

was also suicidal. He presented an immediate threat of physical 

harm to himself. At any time he could have used the knife to 

inflict a grievous injury upon himself. Instead of calming down, 

he appeared to be growing more agitated. 

There was no legitimate reason to continue a hopeless 

standoff that had disrupted the flow of traffic and was consuming 

police resources. The video shows that the police had closed all 

lanes at a major intersection. Seven officers were present. The 

officers reasonably used less-lethal weapons in an attempt to 

safely subdue decedent, disarm him, and end the crisis. The 

projectiles from the less-lethal weapons caused no injury other 

than bruising.
11

Appellant maintains that, when decedent ran toward the 

officers while holding the knife, he was “attempt[ing] to run from 

the pain” caused when he was “struck by multiple pain-inducing, 

less-lethal rounds.” (Bold omitted.) We disagree. Decedent 

charged the officers in an apparent attempt to commit “suicide by 

cop.” “‘“Suicide by cop” refers to an instance in which a person 

attempts to commit suicide by provoking the police to use deadly 

force.’” (City of Simi Valley v. Superior Court (2003) 111 

Cal.App.4th 1077, 1079, fn. 1.) Despite stabbing himself three 

times in the abdomen and slashing his throat with the knife, 

decedent was unable to kill himself. So he provoked the police 

into killing him. 

Appellant faults Sergeant Mengel for not having a plan as 

to how to proceed without the use of deadly force after the firing 

of the less-lethal weapons: “A K-9 [police dog] could have been 

released after the firing of less-lethal. Officers with shields could 

have rushed [decedent]. Tasers could have been deployed. The 

SWAT team could have been utilized. A water cannon could have 

been fired.” But “‘[t]here is no precedent . . . which . . . requires 

law enforcement officers to use all feasible alternatives to avoid a 

situation where deadly force can justifiably be used. . . .’” 

(Martinez, supra, 47 Cal.App.4th at p. 348.) “It would be 

unreasonable to require police officers in the field to engage in 

the sort of complex calculus that would be necessary to determine 

the ‘best’ or most effective and least dangerous method of 

handling an immediate and dangerous situation . . . .” (Brown v.

Ransweiler (2009) 171 Cal.App.4th 516, 537-538.) “‘We must 

never allow the theoretical, sanitized world of our imagination to 

replace the dangerous and complex world that policemen face 

every day. . . .’” (Martinez, supra, at p. 343.)
12

Because appellant did not carry his burden “to make a 

prima facie showing of the existence of a triable issue of material 

fact” whether the officers’ use of force was negligent or 

unreasonable (Aguilar, supra, 25 Cal.4th at p. 850), the trial 

court properly granted respondents’ motion for summary 

judgment.

Disposition

The judgment is affirmed. Respondents shall recover their 

costs on appeal.

YEGAN, J.

We concur:

GILBERT, P. J.

BALTODANO, J.
Timothy Staffel, Judge

Superior Court County of Santa Barbara

______________________________

William L. Schmidt, for Plaintiff and Appellant.

Ferguson, Praet & Sherman and Bruce D. Praet, for 

Defendants and Respondents.
Filed 11/16/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

JAVIER GARCIA 

VILLALOBOS,

 Plaintiff and Appellant,

v.

CITY OF SANTA MARIA et al.,

 Defendants and 

Respondents.

2d Civil No. B318061

(Super. Ct. No. 20CV01151)

(Santa Barbara County)

ORDER CERTIFYING 

OPINION FOR PUBLICATION

[NO CHANGE IN 

JUDGMENT]

THE COURT:

The opinion in the above-entitled matter filed on October 

31, 2022, was not certified for publication in the Official Reports. 

For good cause, it now appears that the opinion should be 

published in the Official Reports and it is so ordered.

GILBERT, P. J. YEGAN, J. BALTODANO, J.