concurring in part and dissenting in part:
I agree with the majority that the Plaintiff failed to adequately support her substantive due process claim. I also agree that the district court properly granted summary judgment in favor of the County of San Diego on that claim. I therefore join Section II.B. of the majority opinion. However, I disagree with the balance of the majority opinion, primarily because the record does not raise a material issue of fact regarding the amount of force used in this case.
Before resolving the legal issues in this case, it is appropriate to focus on the facts and the circumstances the officers encountered upon arrival. The impetus for the officers’ response was a call from a neighbor who reported hearing screaming from the house where the decedent Shane Hayes resided. Hayes’ girlfriend advised Deputy King that she and Hayes had been arguing. When the two officers entered the residence, it was so dimly lit that Deputy King was forced to use his flashlight. Hayes was located approximately eight feet from Deputy King. When Deputy King ordered Hayes to show his hands, Hayes revealed a large knife in his raised right hand, with the tip pointed downward. At the same time, Hayes was steadily advancing toward Deputy King. Only four seconds elapsed between the time Deputy King ordered Hayes to show his hands and the shooting. It is undisputed that Hayes continued to advance toward Deputy King with the knife raised. Hayes’ girlfriend described Hayes as having a “clueless” expression on his face as he continued to advance. Indeed, Deputy King testified that he shot Hayes “[bjecause [Hayes] wasn’t stopping.” At the hearing on the summary judgment motion filed by the County, the Plaintiff did not challenge the officers’ testimony regarding the sequence of events. Her only challenge was to the location of the knife once Hayes fell to the floor upon being shot, which challenge did not raise a material issue of fact.
This case is similar to Reynolds v. County of San Diego, 84 F.3d 1162, 1170 (9th Cir.1996), overruled on a different ground in Acri v. Varian Associates, 114 F.3d 999, 1000 (9th Cir.1997). As in this case, the deceased in Reynolds “was behaving in a strange manner and wielded a knife ...” Id. In Reynolds, we reiterated the United States Supreme Court’s holding that the use of deadly force by a police officer is reasonable so long as the officer “has probable cause to believe that the [person against whom the force is used] poses a significant threat of death or serious physical injury to the officer ...” Id. at 1167. We also noted the Supreme Court cautioned that in making that determination, we must be ever mindful that what we view at our leisure with the perspective of 20-20 hindsight often occurs in rapid sequence. See id.
As commonly happens in deadly force cases, the events in this case unfolded rapidly within a dimly lit, confined space. By Hayes’ girlfriend’s account, Hayes kept coming toward Deputy King with an expression on his face “like nothing’s working upstairs.” Faced with a steadily advancing Hayes wielding a large knife, the officer had probable cause to believe that his life was in danger.
The majority opinion remands the case to the district court for a determination of whether the Plaintiff may maintain a sur*702vivorship action. However, in my view, regardless of whether Plaintiff may maintain an action, no excessive force was used by Deputy King. Rather than remanding the case to the district court, I would affirm the district court’s ruling that no excessive force was used.1
As to the Plaintiffs negligence claim, the majority interprets Hernandez v. City of Pomona, 46 Cal.4th 501, 94 Cal.Rptr.3d 1, 207 P.3d 506 (2009) to support its conclusion that Plaintiff had a viable negligence claim. Preliminarily, I note that the issue of the viability of a negligence action was not the focus of the Supreme Court’s decision. In the words of the California Supreme Court, review was granted:
to consider the following question: When a federal court enters judgment in favor of the defendants on a civil rights claim brought under 42 United States Code section 1983 (section 1983), in which the plaintiffs seek damages for police use of deadly and constitutionally excessive force in pursuing a suspect, and the court then dismisses a supplemental state law wrongful death claim arising out of the same incident, what, if any preclusive effect does the judgment have in a subsequent state court wrongful death action?
Id. at 505, 94 Cal.Rptr.3d 1, 207 P.3d 506. Absolutely no mention was made of opining on the viability of negligence claims predicated on pre-shooting conduct. In fact, the California Supreme Court expressly declined to address whether a negligence cause of action was available in theory. See id. at 521 n. 18, 94 Cal. Rptr.3d 1, 207 P.3d 506 (“In light of our analysis and conclusion, we do not address defendants’ claims that they owed no duty of care regarding their preshooting conduct ... ”).
The issue that the Supreme Court declined to address is the very issue the Courts of Appeal addressed in Munoz v. City of Union City, 120 Cal.App.4th 1077, 1093-99, 16 Cal.Rptr.3d 521 (2004) and Adams v. City of Fremont, 68 Cal.App.4th 243, 264-65, 80 Cal.Rptr.2d 196 (1999), the cases relied on by the district court to hold that there was no tort duty owed to Hayes for the officers’ pre-shooting actions.
It would stand to reason that if the California Supreme Court was inclined to overrule the holdings of Munoz and Adams, it would have done so. Instead, the California Supreme Court expressly reserved that question for another day. The majority disregards the resulting continuing vitality of Munoz and Adams when it declares that Plaintiff may pursue a claim for preshooting negligence against Deputy King. I disagree with that approach. Instead, I agree with the district court that no duty of care was owed to Hayes for any pre-shooting conduct.
In summary, because I agree with the district court that no deadly force was used, I would affirm the entry of summary judgment in favor of Defendants.
. Because I would conclude that the use of force was reasonable, I also disagree with the deadly force discussion included as part of the majority’s analysis of the negligence issue. See Majority Opinion, pp. 697-700. The majority focuses on dissecting the factors and minimizes the most salient fact — that Deputy King was unexpectedly confronted with a knife-wielding individual advancing steadily toward him. As our precedent makes clear, an officer need not wait for the assailant to strike a blow before acting to ensure his safety and the safety of others. See Smith v. City of Hemet, 394 F.3d 689, 704 (9th Cir.2005) (en banc) (''[Wjhere a suspect threatens an officer with a weapon such as a gun or a knife, the officer is justified in using deadly force.”) (citations omitted); see also Blanford v. Sacramento County, 406 F.3d 1110, 1115—16 (9th Cir.2005).