Filed 10/31/22 Villalobos v. City of Santa Maria CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
JAVIER GARCIA 2d Civil No. B318061
VILLALOBOS, etc. (Super. Ct. No. 20CV01151)
(Santa Barbara County)
Plaintiff and Appellant,
v.
CITY OF SANTA MARIA, et al.,
Defendants and Respondents.
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
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.)
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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 less-
than-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
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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 less-
lethal 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
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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
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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
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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
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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 less-
lethal projectiles and had “no plan”; (5) whether decedent posed a
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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
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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.
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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.)
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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.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
12
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.