Southern v. City of Sacramento

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA JIMMY SOUTHERN, individually and No. 2:20-cv-01765-MCE-AC as successor-in-interest to Decedent JEREMY SOUTHERN, 13 Plaintiff, ORDER 14 v. CITY OF SACRAMENTO, a municipal corporation; DRAKE WALKER, individually and in his capacity as a City of Sacramento Police Officer; and DOES 1–50, inclusive, 18 Defendants.

20 Plaintiff Jimmy Southern (“Plaintiff”) brings this civil rights action pursuant to 42 21 U.S.C. § 1983 against Defendants City of Sacramento (the “City”) and police officer Drake Walker (“Walker”) (collectively, “Defendants”) based on the fatal shooting of Plaintiff’s brother, Jeremy Southern (“Decedent”). Second Am. Compl., ECF No. 15 (“SAC”). The Court previously granted a Motion for Judgment on the Pleadings brought by Defendants and entered judgment in their favor on Plaintiff’s second, third, and fifth claims for relief. ECF Nos. 33, 38. Defendants have now filed a Motion for Summary Judgment as to Plaintiff’s remaining claims for excessive force, negligence, and battery.

1 ECF No. 50. For the following reasons, that Motion is GRANTED.1 3 STANDARD 5 The Federal Rules of Civil Procedure provide for summary judgment when “the 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325.

10 Rule 56 also allows a court to grant summary judgment on part of a claim or defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v. Madan, 889 F. Supp. 374, 378–79 (C.D. Cal. 1995). The standard that applies to a motion for partial summary judgment is the same as that which applies to a motion for summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep’t of Toxic Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary judgment standard to motion for summary adjudication).

19 In a summary judgment motion, the moving party always bears the initial responsibility of informing the court of the basis for the motion and identifying the portions in the record “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 288–89 (1968).

27 1 Because oral argument would not have been of material assistance, the Court ordered this matter submitted on the briefs. E.D. Local Rule 230(g).

1 In attempting to establish the existence or non-existence of a genuine factual dispute, the party must support its assertion by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits[,] or declarations . . . or other materials; or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251–52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992). The opposing party must also demonstrate that the dispute about a material fact “is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In other words, the judge needs to answer the preliminary question before the evidence is left to the jury of “not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) (emphasis in original).

18 As the Supreme Court explained, “[w]hen the moving party has carried its burden under Rule [56(a)], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Therefore, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Id. at 587.

23 In resolving a summary judgment motion, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 26 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from which the inference may be drawn.

28 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 (9th Cir. 1987).

3 ANALYSIS 5 As is relevant here, Defendants move for summary judgment on the basis that Plaintiff lacks standing to pursue claims on behalf of Decedent, who died on July 21, 2020. Under California law, Decedent’s claims may be pursued by either a personal representative of his estate or, if there is no such representative, by his successor in interest. Cal. Code Civ. Pro. § 377.30. There is currently no representative of Decedent’s estate, and because Decedent died intestate, his successors are determined by statute: 12 Except as provided in Section 6402.5, the part of the intestate estate not passing to the surviving spouse, under Section 13 6401, or the entire intestate estate if there is no surviving spouse, passes as follows: (a) To the issue of the decedent, the issue taking equally if they 15 are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the 16 manner provided in Section 240.

17 (b) If there is no surviving issue, to the decedent's parent or parents equally. (c) If there is no surviving issue or parent, to the issue of the parents or either of them, the issue taking equally if they are 20 all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the 21 manner provided in Section 240.

22 Cal. Probate Code § 6402. Plaintiff is Decedent’s brother, but Defendants have offered evidence that Decedent was adopted in 1999, that his adoptive mother, Ina Southern, is still living, and that she is thus Decedent’s rightful successor in interest. Defendants’ arguments are well taken.

26 In fact, Plaintiff does not contest these facts, but instead argues that Plaintiff and Decedent’s sister, Ida Southern, testified at her deposition in May 2023 that she believed that Ina2 had either lost custody or surrendered custody of Decedent prior to him reaching the age of majority. Decl. of Patrick Buelna, Ex. 12. In addition, at the end of November 2023, Plaintiff filed a petition to be appointed as the estate representative.

4 Id., Ex. 14.

5 Ultimately, it is undisputed that Ina Southern adopted Decedent, and it is speculative at best that she ever surrendered her parental rights. Ida’s vague recollections are insufficient to create a triable issue of fact, and Plaintiff has been on notice for months that it would be necessary to locate actual evidence that Ina’s parental rights were terminated, if that was actually the case. The evidence before the Court establishes that Ina, and not Plaintiff, has standing to pursue this action. Moreover, Plaintiff’s eleventh-hour attempt to establish himself as representative of the estate, especially since he admits in his probate application that Ina was his adoptive mother, is unhelpful.3 Plaintiff has been on notice for months that standing was an issue in this action. In fact, in April 2023, at Plaintiff’s deposition, counsel advised that they were planning to substitute Plaintiff as the personal representative of the estate. Decl. of Ricardo Baca, ECF No. 50-3, Ex. C. No effort was timely made, however, to establish Plaintiff as Decedent’s representative, and it is far from clear that he is entitled to be so appointed in any event. Accordingly, on this record, Defendants have shown they are entitled to judgment as a matter of law.

21 CONCLUSION 23 Defendants’ Motion for Summary Judgment (ECF No. 50) is GRANTED. The 25 2 Given the identical surnames, the Court uses Ina and Ida’s first names going forward.

3 Plaintiff filed an incomplete copy of the Petition with this Court, omitting the pages where Plaintiff discusses Decedent’s relatives and lists both Ina and Ida as Decedent’s next of kin. Decl. of Richard Baca, ECF No. 58-1, Ex. K. It is rather damning that Plaintiff listed Ina as Decedent’s adoptive mother in one court filing at the same time he is arguing before this Court that her rights were terminated. Had Plaintiff provided the entire document in the first place, the optics would likely not be as bad. As it stands, it appears that Plaintiff was attempting to mislead this Court.

1 | Clerk of the Court is directed to enter judgment in the defendants favor and close this | case.

3 IT IS SO ORDERED.

5 | Dated: December 13, 2023 Matar LEK: tip { AX X - ’ SENIOR UNITED STATES URTRICT JUDGE