Gonzalez v. County of Fresno ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 VERONICA ORDAZ GONZALEZ, et al., Case No. 1:18-cv-01558-BAM 10 Plaintiffs, ORDER GRANTING IN PART DEFENDANT COUNTY OF FRESNO’S MOTION FOR 11 v. SUMMARY JUDGMENT AND REMANDING CASE TO STATE COURT 12 COUNTY OF FRESNO, et al., (Doc. Nos. 21, 44) 13 Defendants. 14 15 Currently before the Court is Defendant County of Fresno’s (“Defendant”) motion for 16 summary judgment pursuant to Federal Rule of Civil Procedure 56.1 (Doc. Nos. 21, 44.) Plaintiffs 17 Veronica Ordaz Gonzalez, Jose Ramos Santiago, Omar Perez, and Roberto Perez (“Plaintiffs”) 18 filed an opposition on June 12, 2020. (Doc. No. 56.) Defendant filed a reply on June 19, 2020. 19 (Doc. No. 57.) 20 The matter was heard before Magistrate Judge Barbara A. McAuliffe on June 26, 2020. 21 Nolan Kane appeared on behalf of Plaintiffs. Leslie Dillahunty appeared on behalf of Defendant. 22 Having considered the record, the parties’ briefing and arguments, and the relevant law, the Court 23 GRANTS the motion for summary judgment as to Plaintiffs’ First, Second, and Third Causes of 24 Action and remands the remaining state law claims to the Superior Court of California for the 25 County of Fresno. 26 27 1 The parties have consented to the jurisdiction of the United States Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. (Doc. Nos. 5, 41, 43, 45.) 28 1 I. BACKGROUND 2 Unless otherwise noted, the facts set forth below are uncontroverted.2 As necessary, the 3 Court discusses further factual details in its analysis. The parties’ legal conclusions, arguments, 4 and assertions are not considered facts. 5 On June 3, 2018, Fresno County Sheriff’s Deputy Courtney Bush was dispatched to a 6 residence in Fresno County on a call reporting vandalism. (Doc. No. 21-2, Joint Statement of 7 Undisputed Material Facts, Undisputed Material Fact (“JUMF”) 1.) Deputy Bush investigated the 8 call by interviewing the victim and a witness, the vandal’s mother and father. (JUMF 2.) The 9 mother informed Deputy Bush that she had observed her son, Jesus Ramos, who is violent and 10 not allowed in the home due to mental illness and drug use, damage her husband’s truck with a 11 tire rim the previous evening. (JUMF 3, 4.) She further informed Deputy Bush that Jesus Ramos 12 frequents 144 South Lind Avenue in Fresno. (JUMF 7; Doc. No. 21-3, Defendant’s Separate 13 Statement of Undisputed Material Facts, Undisputed Material Fact (“DUMF”) 19.) 14 Deputy Bush and Deputies Santos, Morse, and Reserve Deputy Moreno proceeded to 144 15 South Lind Avenue in Fresno in an attempt to locate Jesus Ramos. (JUMF 8; Doc. No. 56-1, 16 Plaintiffs’ Statement of Disputed Facts, Undisputed Material Fact (“PDMF”) 7.) Deputy Bush 17 walked up to the front of the residence and knocked on the door. (DUMF 21.) Deputy Bush 18 observed the front door to the residence open, but a security screen door remained closed. 19 (DUMF 22.) A female, later determined to be Plaintiff Veronica Ordaz Gonzalez, acknowledged 20 Deputy Bush. (JUMF 10.) Ms. Gonzalez was scared to open the front door because Deputy Bush 21 had her gun out. (PDMF 16.) Because she could not see who she was speaking to through the 22 security door, Deputy Bush asked Ms. Gonzales if she would open the screen door. (JUMF 11.) 23 Ms. Gonzalez said “no” and asked why the deputy was there. (Id.) Deputy Bush informed Ms. 24 Gonzalez that the deputies were looking for Jesus Ramos. (DUMF 24) Ms. Gonzalez told Deputy 25 2 In determining which facts are undisputed, the Court relies on Defendant’s moving papers (Doc. No. 21), 26 Joint Statement of Undisputed Material Facts (Doc. No. 21-2), Separate Statement of Undisputed Facts and the evidence cited therein, as well as the evidence cited in Plaintiffs’ opposition and supporting papers, including 27 Plaintiffs’ Objections to Defendant’s Separate Statement of Undisputed Facts (Doc. No. 56-2) and Statement of Disputed Facts (Doc. No. 56-1), and from other parts of the record that the Court has deemed undisputed after 28 considering all of the parties’ arguments and objections. 1 Bush that she did not know the suspect. (PDMF 14.) Deputy Bush then asked Ms. Gonzalez, 2 since she would not open the screen door, if she would come outside to speak with her and Ms. 3 Gonzalez agreed to come out back. (JUMF 12.) 4 When Ms. Gonzales exited the back door, there were two deputies outside and she was 5 grabbed, handcuffed, and taken to the front yard. (PDMF 17.) Omar Perez and Roberto Perez 6 were ordered out of the house at gunpoint and Omar Perez, who was on his cell phone, was 7 ordered to drop the phone or he would be shot. (PDMF 24.) Omar Perez complied, and he and 8 Roberto Perez were handcuffed and frisked without consent. (PDMF 25.) Jose Ramos Santiago 9 was also searched, handcuffed, and taken outside. (PDMF 26.) 10 Ms. Gonzalez asked for a search warrant and told Deputy Bush that Deputy Bush could 11 not go into the home. (PDMF 20.) Ms. Gonzalez also told Deputy Morse and another unknown 12 deputy that they could not enter the home. (PDMF 21-22.) The deputies did not have a search 13 warrant to enter Ms. Gonzalez’ residence. (PDMF 23.) 14 Deputy Bush, Deputy Morse, and Sergeant Dunn entered and searched the residence. 15 (PDMF 27.) Based on the deputies’ investigation, a K-9 officer, Deputy Cervantes, was requested 16 to assist. (JUMF 13.) A deputy secured Plaintiffs’ dog, Scooby, to a tree in the front yard with a 17 rope that was located on the premises. (JUMF 14.) While the deputies were searching the 18 residence, Deputy Cervantes shot Scooby after he freed himself by chewing through the rope and 19 approached the deputy and his K-9. (JUMF 16, 20; DUMF 34.) After animal services was 20 requested to assist, the deputies continued their investigation, cleared the residence, and 21 determined there was no one else inside. (JUMF 21-23; PDMF 27.) 22 Plaintiffs were handcuffed for approximately ninety (90) minutes. (PDMF 39.) After the 23 investigation of the residence was complete, deputies removed the handcuffs from Plaintiffs. 24 (JUMF 24.) Ms. Gonzalez was extremely emotional and crying heavily, Plaintiffs called 911, and 25 paramedics treated Ms. Gonzalez for rapid breathing, abdominal discomfort, and anxiety. (PDMF 26 44-45.) 27 Plaintiffs’ complaint alleges violations of 42 U.S.C. § 1983 for the use of excessive force 28 in violation of the Fourth and Fourteenth Amendments; municipal liability for unconstitutional 1 customs, practices, or policies and failure to train; and state law claims for battery, negligence, 2 intentional infliction of emotional distress, negligent infliction of emotional distress, violation of 3 California Civil Code § 52.1, trespass to chattels, conversion, and false imprisonment. (Complaint 4 (“Compl.”), Doc. No. 1-1 at Ex. A ⁋⁋ 27-80.) In addition to setting forth claims against 5 Defendant, the complaint names “Officer Doe 1” and “Does 2-25, inclusive” as defendants. (Id. at 6 ⁋⁋ 6-8.) The only named defendants at the time of these motions is the County of Fresno. 7 According to the complaint, the defendants’ actions and conduct on June 3, 2018 show 8 Defendant’s failure to train its officers and to prevent a violation of Plaintiffs’ and other County 9 citizens’ individual rights. (Compl. at ⁋ 15.) Plaintiff alleges Defendant has a long history of 10 examples of its pattern and practice of using excessive force in handling issues with its citizens 11 and there is a pattern and practice of officers not being properly disciplined for their actions 12 involving use of excessive force. (Id. at ⁋ 19.) As a result, Defendant has fostered an environment 13 and created a culture and belief that it is permissible to use excessive force against civilians and 14 their property without fear of repercussion, accountability, or disciplinary action. (Id.) 15 Plaintiffs further allege that the actions of the Doe defendants who were involved in this 16 incident were contrary to Defendant’s written policies and practices. (Compl. at ⁋ 20.) Those 17 actions were consistent with Defendant’s culture of deliberate indifference to the use of excessive 18 force in encounters with civilians when it is a grossly disproportionate response to a situation, and 19 even when no reasonable basis exists for any use of force whatsoever, as in this case. (Id.) 20 Despite Defendant’s knowledge of these illegal policies and practices, Defendant’s supervisory 21 and policy-making employees have, maliciously and with deliberate indifference, taken no 22 effective steps to terminate those policies and practices or to change the culture of its illegal 23 policies and practices in dealing with its citizens, including Plaintiffs. (Id. at ⁋ 21.) Defendant has 24 not effectively disciplined or otherwise supervised officers who engage in these policies and 25 practices, has not effectively trained officers regarding the proper constitutional and statutory 26 limits of the exercise of their authority, and has sanctioned the policies and practices through their 27 deliberate or grossly negligent indifference to their detrimental effect on local residents’ 28 constitutional rights. (Id.) 1 The complaint further alleges that Defendant failed to remedy or address these violations 2 despite knowledge of civil rights abuses by its employees and knowingly and with deliberate 3 indifference promulgated policies on the use of excessive force by officers that deliberately 4 disregarded the constitutional rights of the citizens of the County of Fresno. (Compl. at ⁋ 22.) 5 Plaintiffs allege that the acts, omissions, practices, policies, failure to discipline, and long history 6 of lack of support by Defendant of its police officers involved in such situations and incidents of 7 civil rights abuses were ratified and approved by Defendant and its employees and/or agents, 8 resulting in Plaintiffs’ injuries and damages. (Id.) 9 II. LEGAL STANDARD 10 Summary judgment is appropriate when the pleadings, disclosure materials, discovery, 11 and any affidavits provided establish that “there is no genuine dispute as to any material fact and 12 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is 13 one that may affect the outcome of the case under the applicable law. See Anderson v. Liberty 14 Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that a 15 reasonable [trier of fact] could return a verdict for the nonmoving party.” Id. Summary judgment 16 must be entered, “after adequate time for discovery and upon motion, against a party who fails to 17 make a showing sufficient to establish the existence of an element essential to that party's case, 18 and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 19 317, 322 (1986). 20 The party seeking summary judgment “always bears the initial responsibility of informing 21 the district court of the basis for its motion, and identifying those portions of the pleadings, 22 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 23 which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. 24 3 at 323. The exact nature of this responsibility, however, varies depending on whether the issue 25 on which summary judgment is sought is one in which the movant or the nonmoving party carries 26 the ultimate burden of proof. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 27 2007). If the movant will have the burden of proof at trial, it must “affirmatively demonstrate that 28 no reasonable trier of fact could find other than for the moving party.” Id. (citing Celotex, 477 1 U.S. at 323). In contrast, if the nonmoving party will have the burden of proof at trial, “the 2 movant can prevail merely by pointing out that there is an absence of evidence to support the 3 nonmoving party’s case.” Id. 4 If the movant satisfies its initial burden, the nonmoving party must go beyond the 5 allegations in its pleadings to “show a genuine issue of material fact by presenting affirmative 6 evidence from which a jury could find in [its] favor.” FTC v. Stefanchik, 559 F.3d 924, 929 (9th 7 Cir. 2009) (emphasis in original). “[B]ald assertions or a mere scintilla of evidence” will not 8 suffice in this regard. Id. at 929; see also Matsushita Electric Industrial Co. v. Zenith Radio 9 Corp., 475 U.S. 574, 586 (1986) (“When the moving party has carried its burden under Rule 56[], 10 its opponent must do more than simply show that there is some metaphysical doubt as to the 11 material facts.”) (citation omitted). “Where the record taken as a whole could not lead a rational 12 trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 13 475 U.S. at 587 (quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 14 (1968)). 15 In resolving a summary judgment motion, “the court does not make credibility 16 determinations or weigh conflicting evidence.” Soremekun, 509 F.3d at 984. Instead, “[t]he 17 evidence of the [nonmoving party] is to be believed, and all justifiable inferences are to be drawn 18 in [its] favor.” Anderson, 477 U.S. at 255. Inferences, however, are not drawn out of the air; the 19 nonmoving party must produce a factual predicate from which the inference may reasonably be 20 drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 21 810 F.2d 898 (9th Cir. 1987). 22 III. OBJECTIONS 23 The parties filed objections to certain evidence submitted in support of Defendant’s 24 motion and Plaintiffs’ opposition. In particular, Plaintiffs object to the Declaration of Ryan 25 Hushaw in its entirety. The parties also assert various objections to the evidence cited in support 26 of Defendant’s Separate Statement of Undisputed Material Facts and Plaintiffs’ Separate 27 Statement of Disputed Material Facts. 28 Declaration of Ryan Hunshaw 1 Plaintiffs seek an exclusionary sanction pursuant to Federal Rule of Civil Procedure 37 to 2 preclude consideration of the Declaration of Ryan Hushaw (“Hushaw Declaration”) submitted in 3 support of the motion. The Hushaw Declaration generally describes Defendant’s policies 4 regarding training of its deputies, the use of force, search and seizure, canines, and conducted 5 energy devices. (See Hushaw Decl., Doc. No. 21-4.) Plaintiffs argue that this declaration is 6 inadmissible in its entirety because Hushaw was not disclosed as witness, an expert, or a non- 7 retained expert in any of the County’s disclosures and was not otherwise brought to Plaintiffs’ 8 attention. (Doc. No. 56 at 8.) 9 Rule 26(a) of the Federal Rules of Civil Procedure requires parties to disclose the name 10 and, if known, address and telephone number of each individual likely to have discoverable 11 information, along with the subjects of that information, that the disclosing party may use to 12 support its claims or defenses, unless the use would be solely for impeachment. Fed. R. Civ. P. 13 26(a)(1)(A)(i). Parties also are required to supplement any incomplete or incorrect disclosures in 14 a timely manner. Fed. R. Civ. P. 26(e)(1)(A). Rule 37(c)(1) provides that a party who fails to 15 provide information required by Rule 26 “is not allowed to use that information or witness to 16 supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified 17 or is harmless.” 18 The Ninth Circuit has explained that “even absent a showing in the record of bad faith or 19 willfulness, exclusion is an appropriate remedy for failing to fulfill the required disclosure 20 requirements of Rule 26(a).” Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 21 (9th Cir. 2001) (“Implicit in Rule 37(c)(1) is that the burden is on the party facing sanctions to 22 prove harmlessness.”). Generally, this rule acts as a “self-executing ... and automatic sanction to 23 provide a strong inducement for disclosure of material.” Id. (citations and internal quotation 24 marks omitted). Nonetheless, the Ninth Circuit gives “particularly wide latitude to the district 25 court’s discretion to issue sanctions under Rule 37(c)(1).” Id. Among other factors, the 26 availability of less drastic sanctions and the public policy favoring disposition of cases on their 27 merits guide the court's discretion. Wendt v. Host Int'l, Inc., 125 F.3d 806, 814 (9th Cir. 1997). 28 1 Plaintiffs contend that Defendant’s lack of disclosure was not justified because Hushaw 2 has been employed by Defendant for nineteen years and Defendant has been aware of Plaintiffs’ 3 claims brought pursuant to Monell v. Dep't of Social Servs, 436 U.S. 658 (1978) (“Monell”) since 4 the action was first filed in October of 2018. (Doc. No. 56 at 9.) Plaintiffs further believe that the 5 failure to disclose Hushaw was not harmless and they have been prejudiced by the lack of 6 disclosure because they did not have an opportunity to depose Hushaw. (Id.) 7 Defendant, in turn, argues that Hushaw’s declaration was prepared by Defendant’s 8 counsel in support of the motion for summary judgment for foundational purposes as it pertains to 9 the previously produced policies and the identity of the declarant was not known until preparation 10 of the motion was underway. (Doc. No. 57 at 5.) According to Defendant, the declaration was 11 attorney work product up until the moment it was filed. (Id.) Defendant further contends that the 12 policies and procedures that Hushaw authenticates in his declaration were fully and completely 13 produced to Plaintiffs as part of Defendant’s Supplemental Initial Disclosures and therefore the 14 failure to disclose is harmless. (Id. at 4-6.) Additionally, Plaintiffs could have taken a deposition 15 of unknown or unidentified individuals regarding Defendant’s policies pursuant to Federal Rule 16 of Civil Procedure 30(b)(6), but failed to do so. (Id. at 4.) 17 It is undisputed that Defendant did not disclose Hushaw as a witness in its initial 18 disclosures or in any later, supplemental disclosure. Although Defendant argues that counsel was 19 not aware of Hushaw’s identity until preparation of the motion for summary judgment was 20 underway, Defendant was aware of the nature of Plaintiffs’ claims and was on notice that its 21 policies, customs, and practices were at issue since the inception of this litigation. As Defendant 22 concedes, if Plaintiffs would have noticed a Rule 30(b)(6) deposition, Hushaw would have been 23 produced and his identity would have been disclosed earlier. (Doc. No. 57 at 5.) Thus, 24 Defendant’s claim that Hushaw’s identity was unknown until preparation of the motion was 25 underway appears to be due to a failure to disclose and not because this information was not 26 reasonably available to Defendant. (See Doc. No. 57-2.) See Fed. R. Civ. P. 26(a)(1)(E) (“A party 27 must make its initial disclosures based on the information then reasonably available to it. A party 28 1 is not excused from making its disclosures because it has not fully investigated the case[.]”). 2 Likewise, Defendant’s argument that the declaration itself was work product misconstrues 3 Plaintiffs’ objection. Plaintiffs do not challenge Defendant’s failure to disclose the declaration 4 itself and instead contend that Hushaw should have been disclosed as a witness. Defendant has 5 not established that Hushaw’s identity as a witness revealed counsel’s mental impressions or trial 6 strategy and was therefore subject to work product protection. Compare, e.g., In re: Harmonic 7 Inc., Securities Litigation, 245 F.R.D. 424 (N.D. Cal. 2007) (holding that identities of confidential 8 witnesses were not protected under attorney work-product); with Plumbers & Pipefitters Local 9 572 Pension Fund v. Cisco Sys., Inc., 2005 WL 1459555 (N.D. Cal. June 21, 2005) (finding that 10 the identity of witnesses plaintiff's counsel had interviewed in preparing the complaint were 11 protected by work product privilege). 12 Although the lack of disclosure here does not appear to have been willful, lack of 13 willfulness does not amount to justification. “Parties, aware of the ‘self-executing’ and 14 ‘automatic’ nature of Rule 37(c)(1) sanctions, have a right to expect that only disclosed witnesses 15 will be used to support the disclosing party's claims and defenses.” Rhodes v. Sutter Health, 949 16 F. Supp. 2d 997, 1010 (E.D. Cal. 2013) (citing Yeti by Molly, Ltd., 259 F.3d at 1106). “They 17 should be able to rely on Rule 26 disclosures and not be required to second guess whether a 18 disclosing party has purposefully omitted a potential witness or done so accidently.” Id. The 19 Court accordingly finds that Defendant’s failure to disclose Hushaw as a witness was not 20 substantially justified. 21 Rule 26 does not require the Court to exclude the declaration if the nondisclosure is 22 harmless. Defendant argues that the failure to disclose Hushaw was harmless because the policies 23 he authenticates were provided to Plaintiffs during discovery. (Doc. No. 57 at 5.) The Court 24 agrees in part. Paragraphs 10 through 19 of the Hushaw Declaration appear to quote directly from 25 the policies which Defendant provided to Plaintiffs in Defendant’s supplemental disclosures. (See 26 Doc. Nos. 21-4, 57-2 at Ex. A.) The subjects of the information described in paragraphs 10 27 through 19 were made known to Plaintiffs during discovery. However, paragraphs 4 through 9 of 28 1 the Hushaw Declaration do not directly quote these policies and he testifies as a percipient 2 witness. (See id.) For instance, in paragraph 5 of his declaration, Lieutenant Hushaw states that 3 “[t]he Fresno County Sheriff’s Office has a custom, policy and practice of implementing and 4 executing searches as a result of and in connection with the investigation and attempt to locate an 5 individual who has purportedly committed a felony.” (See Doc. No. 21-4 at 2.) This information 6 is not set forth in the policies Defendant provided to Plaintiffs in its supplemental disclosures and 7 instead appears to be based upon knowledge Lieutenant Hushaw obtained through his 8 employment with the Fresno County Sheriff’s Office. (See Doc. Nos. 21-4 at 1, 57-1 at Ex. A.) 9 Rule 37(c)(1) “‘is an either/or standard,” meaning a party need only show that its failure 10 was either substantially justified or harmless in order to avoid exclusion.” Holen v. Jozic, 2018 11 WL 5761775, at *2 (W.D. Wash. Nov. 2, 2018) (quoting R & O Constr. Co. v. Rox Pro Int'l Grp., 12 Ltd., 2011 WL 2923703, at *3 (D. Nev. July 18, 2011)). Additionally, the Advisory Committee 13 notes to Rule 26 recognize: 14 Broad, vague, and conclusory allegations sometimes tolerated in notice pleading-- 15 for example, the assertion that a product with many component parts is defective in some unspecified manner--should not impose upon responding parties the 16 obligation at that point to search for and identify all persons possibly involved in, or all documents affecting, the design, manufacture, and assembly of the product. 17 The greater the specificity and clarity of the allegations in the pleadings, the more complete should be the listing of potential witnesses and types of documentary 18 evidence. Although paragraphs (1)(A) and (1)(B) by their terms refer to the factual disputes defined in the pleadings, the rule contemplates that these issues would be 19 informally refined and clarified during the meeting of the parties under subdivision (f) and that the disclosure obligations would be adjusted in the light of these 20 discussions. The disclosure requirements should, in short, be applied with common sense in light of the principles of Rule 1, keeping in mind the salutary purposes 21 that the rule is intended to accomplish. The litigants should not indulge in gamesmanship with respect to the disclosure obligations. 22 23 Fed. R. Civ. P. 26, advisory committee’s note. Although violations of Rule 26 may warrant 24 evidence preclusion, this is a particularly harsh sanction and courts should balance the 25 consequences to be imposed. R & R Sails, Inc. v. Ins. Co. of Pennsylvania, 673 F.3d 1240, 1247 26 (9th Cir. 2012); see ACT Grp., Inc. v. Hamlin, 2016 WL 7634679, at *10 (D. Ariz. May 11, 2016) 27 (finding that the court appropriately sanctioned a party’s failure to disclose witnesses by limiting 28 witness testimony to matters properly disclosed during deposition); see also Yeti by Molly, 259 1 F.3d at 1106 (“[W]e give particularly wide latitude to the district court’s discretion to issue 2 sanctions under Rule 37(c)(1).”); Keener v. U.S., 181 F.R.D. 639, 642 (D. Mont. 1998) (finding 3 that “[i]f full compliance with Rule 26(a) and 26(e)(1) is not made, Rule 37(c)(1) mandates some 4 sanction, the degree and severity of which are within the discretion of the trial judge”). 5 With these principles in mind, the Court finds that the failure to disclose Hushaw as a 6 witness was neither substantially justified nor harmless with respect to paragraphs 4 through 9 of 7 the Hushaw Declaration. Therefore, the Court has not considered these portions of the declaration 8 in ruling on the motion. However, the Court must apply the Rules with an eye toward “common 9 sense,” keeping in mind the purposes that the Rules are intended to accomplish. Fed. R. Civ. P. 10 26, advisory committee’s note. With respect to paragraphs 1 through 3 and 10 through 19 of the 11 Hushaw Declaration, the potential prejudice that Plaintiffs claim they will suffer is not so severe 12 as to warrant exclusion in light of the fact that these portions of the declaration merely provide 13 foundation for information that was made known to Plaintiffs during discovery.3 Accordingly, the 14 Court declines to exclude these paragraphs pursuant to Rule 37(c)(1).4 15 Other Evidentiary Objections 16 The parties submitted numerous objections to the evidence cited in Defendant’s Separate 17 Statement of Undisputed Material Facts and Plaintiffs’ Separate Statement of Disputed Material 18 Facts. (Doc. Nos. 56-2, 57-1.) Not every objection will be addressed by the Court individually, as 19 3 At oral argument, counsel for Plaintiffs argued that they did not seek leave to depose Hushaw during the six- 20 month pendency of the motion because fact discovery had closed, and the Court had denied other requests to modify the scheduling order in this case. However, the policies quoted in paragraphs 10 through 19 of the Hushaw 21 Declaration were disclosed prior to the close of fact discovery. (Doc. No. 57-2 at Ex. A.) While it is notable that Defendant did not disclose its policies until the day before the scheduled fact discovery cutoff, Plaintiffs apparently 22 did not object to the timing of disclosure or otherwise seek to obtain discovery regarding Defendant’s written policies. Furthermore, the Court previously granted the parties’ request to extend the fact discovery deadline in this 23 case to allow further deposition of Deputy Bush on the basis of a report produced late in discovery. (Doc. No. 11.) The Court had accordingly granted requests to modify the scheduling order where good cause was shown, consistent with the requirements of Federal Rule of Civil Procedure 16(b)(4) and the Court’s advisements to the parties when 24 the scheduling order issued. (See Doc. No. 9 at 5.) 25 4 The Court notes that Plaintiffs’ allegations in the complaint regarding Defendant’s customs, policies, and practices were largely broad and unspecified and, as Defendant argues in its reply, the scope of Plaintiffs’ claims in 26 that regard appear to have been somewhat of a moving target. (See Doc. Nos. 1, 57 at 2.) Plaintiffs, in their opposition and at the hearing of the motion, clarified that the alleged basis for Defendant’s liability under Monell is 27 that Ms. Gonzalez told three different officers at the incident on June 3, 2018, that she did not consent to a search of her home. (Doc. No. 56 at 8-10.) The Court therefore notes that the Hushaw Declaration has limited relevance in 28 light of the fact that Plaintiffs do not challenge Defendant’s written policies. 1 doing so is neither necessary nor the practice of this Court in the summary judgment context. 2 The parties submitted various objections that the statements of material facts misstate 3 evidence and/or are irrelevant. (Doc. Nos. 56-2, 57-1.) Defendant likewise objected that certain 4 statements of the evidence were argumentative. (Doc. No. 57-1.) However, these objections are 5 duplicative of the summary judgment standard itself. See Burch v. Regents of Univ. of Cal., 433 6 F.Supp.2d 1110, 1119–20 (E.D. Cal. 2006) (“[O]bjections to evidence on grounds that the 7 evidence is irrelevant, speculative, argumentative, or constitutes an improper legal conclusion are 8 all duplicative of the summary judgment standard itself.”); Connor v. California, 2013 WL 9 321703, at *1 (E.D. Cal. Jan. 28, 2013); Carden v. Chenega Sec. & Protection Services, LLC, 10 2011 WL 1807384, at *3-4 (E.D. Cal. May 10, 2011); Arias v. McHugh, 2010 WL 2511175, at 11 *5-6 (E.D. Cal. June 17, 2010); Tracchia v. Tilton, 2009 WL 3055222, at *3 (E.D. Cal. Sept. 21, 12 2009). Given the Court’s duty to determine whether there exists a genuine dispute as to any 13 material fact, these objections are both unnecessary and unhelpful and are overruled. Burch v. 14 Regents of Univ. of California, 433 F.Supp.2d 1110, 1120 (E.D. Cal. 2006). 15 Plaintiffs’ hearsay objections are likewise overruled. (See Doc. No. 56-2.) Declarations 16 which contain hearsay are admissible for summary judgment purposes if they can be presented in 17 admissible form at trial. Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 846 (9th 18 Cir. 2004). Furthermore, “[i]f the significance of an out-of-court statement lies in the fact that the 19 statement was made and not in the truth of the matter asserted, then the statement is not 20 hearsay.” Calmat Co. v. U.S. Dep't of Labor, 364 F.3d 1117, 1124 (9th Cir. 2004). At this stage, 21 the Court does not find Plaintiffs’ hearsay objections to be preclusive of the evidence submitted. 22 The Court does not rule on the remainder of Plaintiffs’ specific objections to Defendant’s 23 Material Facts Nos. 19, 20, 23, 25, 26, 32, and 36 because the Court does not rely on the 24 evidence at issue. Wilson v. Kiewit Pac. Co., 2010 WL 5059522, at *10 (N.D. Cal. Dec. 6, 2010). 25 IV. DISCUSSION 26 A. Monell Claim 27 Plaintiffs’ First and Second Causes of Action assert claims for violations of 42 U.S.C. § 28 1 1983 for the use of excessive force in violation of the Fourth and Fourteenth Amendments. (Doc. 2 No. 1-1 at Ex. A.) Plaintiffs’ Third Cause of Action asserts municipal liability for unconstitutional 3 customs, practices, or policies and failure to train. (Id.) 4 The parties do not dispute that Defendant, a public entity, cannot be held vicariously liable 5 for the actions of its employees in violation of section 1983 on a theory of respondeat superior.5 6 (Doc. Nos. 21-1 at 8, Doc. No. 56 at 7.) See Monell, 436 U.S. 658. Rather, a municipality can 7 only be held liable for injuries caused by the execution of its policy or custom or by those whose 8 edicts or acts may fairly be said to represent official policy. Id. at 694. Municipal liability may be 9 premised on: (1) conduct pursuant to a formal or expressly adopted official policy; (2) a 10 longstanding practice or custom which constitutes the “standard operating procedure” of the local 11 government entity; (3) a decision of a decision-making official who was, as a matter of state law, 12 a final policymaking authority whose edicts or acts may fairly be said to represent official policy 13 in the area of decision; or (4) an official with final policymaking authority either delegating that 14 authority to, or ratifying the decision of, a subordinate. See Thomas v. County of Riverside, 763 15 F.3d 1167, 1170 (9th Cir. 2014); Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008). It is the 16 plaintiff's burden to demonstrate that the municipality promulgated or endorsed an 17 unconstitutional policy, practice or custom. Trevino v. Gates, 99 F.3d 911, 918-20 (9th Cir. 18 1996), holding modified by Navarro v. Block, 250 F.3d 729 (9th Cir. 2001); Duran v. City of 19 Porterville, 2015 WL 3794930, at *8 (E.D. Cal. June 17, 2015). 20 1. Plaintiffs have the burden to demonstrate an unconstitutional policy, custom or practice. 21 22 At oral argument, counsel for Plaintiffs asserted that it was not their burden to prove their 23 Monell claim at this stage in the proceedings. However, this argument misconstrues the applicable 24 standard on a motion for summary judgment when the nonmoving party has the burden of proof 25 at trial. 26 5 In conceding that Defendant cannot be held vicariously liable for the actions of its employees, Plaintiffs 27 again attempt to reargue their motions for leave to amend and to certify an interlocutory appeal. (Doc. No. 56 at 6-7.) Plaintiffs’ arguments regarding the merits of those motions, both of which have been denied, have no bearing on 28 Defendant’s motion for summary judgment and have not been considered. 1 The party moving for summary judgment bears the initial burden of demonstrating the 2 absence of a genuine issue of fact for trial. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 3 2001) (citing Celotex, 477 U.S. at 323). However, when the nonmoving party has the burden of 4 proof at trial, the moving party need only point out “that there is an absence of evidence to 5 support the nonmoving party's case.” Id. (citing Celotex at 325; Fairbank v. Wunderman Cato 6 Johnson, 212 F.3d 528, 532 (9th Cir. 2000) (holding that the Celotex “showing” can be made by 7 “pointing out through argument—the absence of evidence to support plaintiff's claim”)). Once the 8 moving party carries its initial burden, the adverse party must provide affidavits or other sources 9 of evidence that “set forth specific facts showing that there is a genuine issue for trial.” Id. (citing 10 Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 323–24; Nissan Fire & Marine Ins. Co. v. Fritz 11 Cos., 210 F.3d 1099, 1107 (9th Cir. 2000) (holding that once the moving party carries its initial 12 burden of production, “the nonmoving parties were obligated to produce evidence in response”)); 13 Fairbank, 212 F.3d at 532 (“Under the federal standard a moving defendant may shift the burden 14 of producing evidence to the nonmoving plaintiff merely by ‘showing’—that is, pointing out 15 through argument—the absence of evidence to support plaintiff's claim.”). 16 As the Supreme Court has explained, “the plain language of Rule 56(c) mandates the entry 17 of summary judgment, after adequate time for discovery and upon motion, against a party who 18 fails to make a showing sufficient to establish the existence of an element essential to that party's 19 case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322 20 (explaining plaintiff's failure to produce proof to establish elements of cause of action upon which 21 he bears burden of proof at trial warrants summary judgment). As the Celotex court reasoned, 22 “[o]ne of the principal purposes of the summary judgment rule is to isolate and dispose of 23 factually unsupported claims or defenses, and . . . it should be interpreted in a way that allows it 24 to accomplish this purpose.” Id. at 323-24; See Cameron v. Craig, 713 F.3d 1012 (9th Cir. Jan.11, 25 2013) (“[Plaintiff] has not identified any custom or policy of the County.... The County is 26 therefore entitled to summary judgment on the § 1983 claim.”).. Therefore, the moving party is 27 not necessarily required to produce evidence showing the absence of a genuine issue of material 28 fact on an issue on which the nonmoving party bears the burden of proof. Id. at 324. Instead, “the 1 burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district 2 court—that there is an absence of evidence to support the nonmoving party's case.” Id.. 3 Here, the Court finds that Defendant has met its “initial responsibility of informing the 4 district court of the basis for its motion” and showing that there is an absence of evidence to 5 support Plaintiffs’ Monell claim. Celotex, 477 U.S. at 323. Defendant is therefore not required to 6 produce evidence showing the absence of a genuine issue of material fact on an issue which 7 Plaintiffs bear the burden of proof at trial. Id. at 324. Instead, the burden shifts to Plaintiffs to 8 provide evidence sufficient to establish that there is a genuine issue of material fact as to each 9 element essential to their case on which they will bear the burden of proof at trial. Id. at 322-25. 10 With respect to Plaintiffs’ Monell claim, it is Plaintiffs’ burden at trial to demonstrate an 11 unconstitutional policy, practice, or custom. Trevino, 99 F.3d at 918-20; Duran, 2015 WL 12 3794930, at *8. As discussed herein, Plaintiffs have failed to identify a governmental policy, 13 practice, or custom on which Monell liability might be premised. There are no material disputes 14 of fact on Plaintiffs’ Monell claim and Defendant is therefore entitled to summary judgment. 15 Trevino, 99 F.3d at 920 (“Normally, the question of whether a policy or custom exists would be a 16 jury question. However, when there are no genuine issues of material fact and the plaintiff has 17 failed to establish a prima facie case, disposition by summary judgment is appropriate.”). 18 2. Plaintiffs challenge a single occurrence of purported unconstitutional conduct 19 Plaintiffs do not challenge Defendant’s formal, written policies. Instead, Plaintiffs contend 20 that they are able to establish Monell liability on the basis of Ms. Gonzalez “unequivocal” 21 testimony that Defendant’s deputies were not permitted to enter her house.6 (Doc. No. 56 at 10- 22 6 Notably, Plaintiffs’ complaint appears to premise Monell liability on allegations of a pattern and practice of 23 using excessive force. (See Doc. No. 1-1 at Ex. A ⁋⁋ 19-22 (“The COUNTY OF FRESNO and its Sheriff’s Office has a long history of examples of its pattern and practice in the use of excessive force in handling issues with its 24 citizens.”)) The complaint does not specify that Defendant had a policy, practice, or custom of unlawful searches. See Fernandez v. McKnight, 2014 WL 352238, at *2, n.7 (E.D. Cal. Jan. 31, 2014) (“N]ew argument or allegations in a 25 summary judgment opposition do not raise triable issues of fact.”); Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006) (explaining that on summary judgment, the court will not consider new arguments or allegation raised outside of the operative pleadings); Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th 26 Cir. 2008) (“[O]ur precedents make clear that where, as here, the complaint does not include the necessary factual allegations to state a claim, raising such claim in a summary judgment motion is insufficient to present the claim to 27 the district court.”); see also AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (finding that Monell claims “may not simply recite the elements of a cause of action, but must contain sufficient allegations of 28 underlying facts to give fair notice and to enable the opposing party to defend itself effectively.”); J.M. by & Through 1 11.) According to Plaintiffs, “there is evidence that three different officers were told not to enter 2 the home, and . . . the Sergeant ratified this conduct by entering the home (apparently) based on 3 his officers’ word that consent was given while Plaintiffs were handcuffed and detained[.]” 4 (Doc. No. 56 at 11.) (Emphasis in original). Plaintiffs contend that there is a question of fact 5 whether “such warrantless entries were indeed ‘a traditional method of carrying out policy’” and 6 these entries evidence “a pattern and practice of executing warrantless searches throughout the 7 Department.” (Id.) On reply, Defendant asserts that Plaintiffs have not submitted any evidence of 8 an unconstitutional policy, practice, or custom as three different officers entering Ms. Gonzalez’ 9 home is an isolated incident insufficient to establish Monell liability. (Doc. No. 57 at 6-7.) 10 Absent a formal governmental policy, Plaintiffs must show a “longstanding practice or 11 custom which constitutes the standard operating procedure of the local government entity.” 12 Trevino, 99 F.3d at 918 (quoting Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992)). 13 The custom must be so “persistent and widespread” that it constitutes a “permanent and well 14 settled city policy.” Id. (quoting Monell, 436 U.S. at 691). Liability for improper custom may not 15 be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient 16 duration, frequency and consistency that the conduct has become a traditional method of carrying 17 out policy. Id. (citations omitted). A single occurrence of unconstitutional action by a non- 18 policymaking employee is insufficient to establish the existence of an actionable municipal policy 19 or custom. Davis v. City of Ellensburg, 869 F.2d 1230, 1233–34 (9th Cir. 1989). “Only if a 20 plaintiff shows that his injury resulted from a ‘permanent and well settled’ practice may liability 21 attach for injury resulting from a local government custom.” Thompson v. City of Los Angeles, 22 885 F.2d 1439, 1444 (9th Cir. 1989). 23 “Cases which have found triable issues of fact involve specific evidence of actions from 24 which a broad policy, practice, or custom—evidence that extends beyond the individual officer 25 defendant's actions—can be inferred.” Jarbo v. County of Orange, 2010 WL 3584440, at *10 26 Rodriguez v. Cty. of Stanislaus, 2018 WL 5879725, at *4 (E.D. Cal. Nov. 7, 2018) (holding that plaintiffs may meet 27 the pleading standard for Monell liability by specifying “the content of the policies, customs, or practices the execution of which gave rise to [the plaintiff’s] constitutional injuries.”). 28 1 (C.D. Cal. Aug. 30, 2010); see also Sanchez v. City of Fresno, 914 F. Supp. 2d 1079, 1096 (E.D. 2 Cal. 2012) (“The line between ‘isolated or sporadic incidents’ and ‘persistent and widespread 3 conduct’ is not clearly delineated, although where more than a few incidents are alleged, the 4 determination appears to require a fully-developed factual record.”) “In contrast, no triable issues 5 of fact have been found where the evidence is limited to the facts presented in the case before the 6 court, or where there is a lack of specificity in the evidence.” Jarbo, 2010 WL 3584440, at *12; 7 compare Davis, 869 F.2d at 1233–34 (single incident of excessive force inadequate to establish 8 liability); Meehan v. County of Los Angeles, 856 F.2d 102, 107 (9th Cir. 1988) (two incidents 9 insufficient to establish custom); with Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 10 2005) (triable issue of fact existed as to whether five incidents of suppression of political speech 11 amounted to an unconstitutional policy or custom); see also Jarbo, 2010 WL 3584440, at *9–13 12 (reviewing circumstances in which Monell custom/practice claims were permitted past summary 13 judgment). 14 Viewing Plaintiffs’ evidence in the light most favorable to them, the undisputed evidence 15 falls far short of establishing a “persistent and widespread” practice such that it constitutes 16 “permanent and well settled” policy. Trevino, 99 F.3d at 919. Plaintiffs provide evidence of Ms. 17 Gonzalez’ statements to Deputy Bush, Deputy Morse, and an unknown deputy that they could not 18 search her home on June 3, 2018, while Ms. Gonzalez detained for approximately ninety (90) 19 minutes. (PDMF 20-22, 39.) According to Plaintiffs’ evidence, Deputy Bush, Deputy Morse, and 20 Sergeant Dunn then entered and searched the residence together. (PDMF 27.) Ms. Gonzalez’ 21 three refusals all occurred in the context of a single incident consisting of the same allegedly 22 unlawful search. Even when viewing the three refusals separately, the conduct at issue was 23 contemporaneous and therefore cannot support a finding that Defendant’s practices were of 24 sufficient duration, frequency, and consistency that they may be construed as a traditional method 25 of carrying out policy. See Connick v. Thompson, 563 U.S. 51, 63 n. 7 (2011) 26 (“[C]ontemporaneous or subsequent conduct cannot establish a pattern of violations that would 27 provide notice to the [municipality] and the opportunity to conform to constitutional dictates.”) 28 (internal quotations and citation omitted); Gonzalez v. County of Merced, 289 F.Supp.3d 1094, 1 1100 (E.D. Cal. 2017) (finding that three events of a defendant groping the plaintiff and two 2 coworkers on the same day were contemporaneous conduct that could not amount to a pattern or 3 custom). 4 Plaintiffs cite to Parish v. Lansdale, 2019 WL 4849612 (D. Ariz. Sept. 30, 2019) in 5 support of their contention that Ms. Gonzalez’ three refusals amount to a pattern and practice of 6 executing warrantless searches. (Doc. No. 56 at 11.) In Parish, the court found that there was a 7 material issue of fact as to whether the defendant police department had a policy authorizing 8 officers to enter residences, without exigent circumstances and probable cause or consent, by 9 placing a foot on the threshold of the door to the residence to prevent a resident from closing the 10 door. Parish, 2019 WL 4849612, at *14. In reaching this conclusion, the court relied on officer 11 testimony that he acted in accordance with his training when he placed his foot on the threshold, 12 that there was a “common consensus” between officers in the department that the threshold is not 13 part of the premises, that officers “had been trained . . . for a very long time” to put a foot in the 14 doorway and this practice was “a common place [] practice.” Id. 15 In contrast, there is no evidence before the Court indicating that the deputies here were 16 acting in accordance with any training or a common consensus when they searched Ms. 17 Gonzalez’ home. Unlike the plaintiffs in Parish, Plaintiffs have not presented evidence that the 18 deputies here were trained to conduct unconstitutional searches or that such searches were 19 common practice. 20 To establish a policy or custom of unconstitutional searches, Plaintiffs must show a 21 pattern through the similarity of incidents, their timing, and subsequent actions by Defendant, if 22 any. Valdez v. Leeds, 2019 WL 4138945, at *13 (E.D. Cal. Aug. 30, 2019). They have failed to 23 do so. Even assuming that the June 3, 2018 search was unconstitutional, the evidence Plaintiffs 24 have presented is limited to the facts of this case and, at best, involved an isolated incident. The 25 evidence does not raise an inference that the deputies’ conduct was “not an aberration or 26 deviation from standard operating procedure but was instead in conformity with it.” Jarbo, 2010 27 WL 3584440, at *12 (internal quotation marks and citation omitted). Thus, Plaintiffs cannot meet 28 their burden of showing a genuine dispute of material fact as to the existence of a practice or 1 custom supporting Monell liability. 2 3. Sergeant Dunn cannot ratify the allegedly unconstitutional conduct 3 Alternatively, Plaintiffs argue that there is a question of fact regarding whether Ms. 4 Gonzalez had capacity to consent while handcuffed and crying, and Sergeant Dunn’s “blind 5 acceptance of the claimed ‘consent’” in these circumstances “creates a question of fact regarding 6 the ratification of conduct clearly in violation of the Fourth Amendment.” (Doc. No. 56 at 11-12.) 7 Defendant counters that there is no basis to assert Sergeant Dunn was an authorized 8 decisionmaker or individual with final policymaking authority. (Doc. No. 57 at 8-9.) 9 A municipality is generally not charged with the unconstitutional discretionary actions of 10 municipal employees. Gillette, 979 F.2d at 1348. However, a municipality may be liable under 11 section 1983 where “an official with final policy-making authority ratified a subordinate’s 12 unconstitutional decision or action and the basis for it.” Id. at 1346-47; see also Sheehan v. City & 13 Cty. of San Francisco, 743 F.3d 1211, 1231 (9th Cir. 2014), rev'd in part, cert. dismissed in part 14 sub nom. City & Cty. of San Francisco, Calif. v. Sheehan, 575 U.S. 600 (2015) (“Ratification . . . 15 generally requires more than acquiescence.”). “Whether a particular official has final policy- 16 making authority is a question of state law.” Gillette, 979 F.2d at 1346 (citing Jett v. Dallas 17 Indep. Sch. Dist., 491 U.S. 801, 737 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 123-24 18 (1988) (plurality opinion)). 19 In California, a county sheriff department’s final policymaker is the sheriff. Johnson v. 20 Cty. of Riverside, 2015 WL 13649444, at *13 (C.D. Cal. Feb. 17, 2015); see also Cal. Gov’t Code 21 § 26600 (“The sheriff shall preserve peace, and to accomplish this object may sponsor, supervise, 22 or participate in any project of crime prevention.”); Fresno County Ordinance 2.43.090 (“[T]he 23 duties of [the sheriff-coroner-public administrator of the county], including those performed in ex 24 officio capacity, shall be performed by one person elected to such office in the manner prescribed 25 by law.”); see also Collins v. City of San Diego, 841 F. 2d 337, 341 (9th Cir. 1988) (“Although a 26 police sergeant may have discretion to recommend hiring, firing, and discipline of employees, he 27 or she is not the city official responsible for establishing final department policy in [the 28 employment] area.”). There is no evidence Sergeant Dunn was responsible for establishing any of 1 Defendant’s policies. Plaintiffs’ suggestion that Sergeant Dunn was a “final policymaking 2 authority” for Defendant whose actions can give rise to municipal liability is therefore 3 unpersuasive. 4 Defendant does not bear the burden of proof on Monell liability at trial and thus need only 5 point to the insufficiency of Plaintiffs’ evidence to meet their burden at the summary judgment 6 stage of this litigation. Celotex, 477 U.S. at 325. They have done so. Because Plaintiffs have 7 failed to produce evidence supporting their allegations of municipal liability in opposition to the 8 motion, the Court finds that Defendant is entitled to summary judgment on Plaintiffs’ First, 9 Second, and Third Causes of Action. 10 B. Remand 11 Plaintiffs’ opposition requests that the Court decline to exercise supplemental jurisdiction 12 over the state law claims in the event it dismisses Plaintiffs’ federal claims. (Doc. No. 56 at 20.) 13 At oral argument, counsel for Defendant likewise requested that the Court exercise its discretion 14 to remand Plaintiffs’ state law claims. 15 This action was removed from the Superior Court of California for the County of Fresno 16 on the basis of federal question jurisdiction. (See Doc. No. 1.) The Court has supplemental 17 jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. A district court may decline to 18 exercise jurisdiction over supplemental state law claims if “the district court has dismissed all 19 claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when federal 20 claims are dismissed before trial . . . pendent state claims should also be dismissed.” Religious 21 Tech. Ctr. v. Wollersheim, 971 F.2d 364, 367–68 (9th Cir. 1992). “When removal is based on the 22 presence of a federal cause of action, a district court may remand pendent or supplemental state 23 law claims to the state court once the federal claims have been eliminated.” Castro ex rel. Castro 24 v. City of Mendota, 2012 WL 4468419, at *11–12 (E.D. Cal. Sept. 26, 2012) (citation omitted). In 25 fact, “it is generally preferable for a district court to remand remaining pendent claims to state 26 court.” Id. 27 Considering judicial economy, convenience, fairness, and comity, and because summary 28 judgment has been granted on all of Plaintiffs' federal claims, the Court will decline to exercise 1 supplemental jurisdiction over the remaining state law claims. See Carnegie–Mellon Univ. v. 2 Cohill, 484 U.S. 343, 350 n. 7 (1988); City of Colton v. Am. Promotional Events, Inc.-West, 614 3 F.3d 998, 1008 (9th Cir. 2010) (“Because the district court did not err in granting summary 4 judgment on the federal claims, it did not abuse its discretion in dismissing the state-law 5 claims.”); Religious Tech., 971 F.2d at 367–68. 6 V. CONCLUSION AND ORDER 7 Based on the foregoing, IT IS HEREBY ORDERED that: 8 1. Defendant’s motion for summary judgment is GRANTED as to Plaintiffs’ First 9 Cause of Action pursuant to 42 U.S.C. § 1983 for Use of Excessive Force in Violation of the 10 Fourth Amendment, Second Cause of Action pursuant to 42 U.S.C. § 1983 for Use of Excessive 11 Force in Violation of the Fourteenth Amendment, and Third Causes of Action for Municipal 12 Liability for Unconstitutional Custom, Practice, or Policy, Failure to Train, and Supervisory 13 Liability (Monell); and 14 2. The remainder of this action, consisting of Plaintiffs’ Fourth Cause of Action for 15 Battery, Fifth Cause of Action for Negligence, Sixth Cause of Action for Intentional Infliction of 16 Emotional Distress, Seventh Cause of Action for Negligent Infliction of Emotional Distress, 17 Eighth Cause of Action for California Civil Code § 52.1—Bane Act, Ninth Cause of Action for 18 Trespass to Chattels, Tenth Cause of Action for Conversion, and Eleventh Cause of Action for 19 False Imprisonment, is hereby REMANDED to the Superior Court of California for the County of 20 Fresno. 21 IT IS SO ORDERED. 22 23 Dated: July 20, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28