*1 Before the Court are Plaintiffs Demajay Williams, D.W., J.W., and Tammy Johnson Williams' (collectively, “Williams Plaintiffs”) motion to strike the answer and issue monetary sanctions for spoliation of evidence (“Motion for Sanctions” or “MFS,” Dkt. No. 148) and consolidated motion for summary judgment (“PMSJ,” Dkt. No. 180) pursuant to Federal Rule of Civil Procedure (“Rule”) 56.[1] Also before the Court is the County of Riverside (“County”), Deputy Seth Mannie, Deputy Gordon Mitchell, and Deputy Justin Tibbetts' (collectively, “County Defendants”) motion for summary judgment (“DMSJ,” Dkt. No. 157) pursuant to Rule 56. (Collectively, “Motions”.) The Court determines the Motions are appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the papers filed in support of and in opposition to the Motions, the Court GRANTS-IN-PART and DENIES-IN-PART the MFS and AWARDS Williams Plaintiffs attorneys' fees in the amount of $76,450.00. Furthermore, the Court GRANTS-IN-PART and DENIES-IN-PART the PMSJ and GRANTS-IN-PART and DENIES-IN-PART the DMSJ.

I. BACKGROUND

On January 15, 2019, Williams Plaintiffs filed a complaint in this matter against County Defendants, Kohl's Department Stores, Inc. (“Kohl's”), and Kohl's Illinois, Inc.[2] in Riverside County Superior Court. (See “Williams Complaint,” Dkt. No. 1.) On March 1, 2019, Kohl's removed the matter. (Id.) On March 4, 2019, County Defendants also removed, creating a second action in federal court (Case No. 5:19-cv-00405-JGB-SHK). (Id.)

On January 16, 2019, Plaintiff Washington filed a complaint in the Riverside Superior Court alleging various state law claims also arising from the death of Decedent. (“Washington Complaint,” Dkt. No. 1-1; “Washington Action,” Case No. 5:19-cv-00864-JGB-SHK.) Washington named Kohl's and Riverside as Defendants. (Washington Complaint at 1.) On April 11, 2019, Washington filed a first amended complaint in state court. (“Washington FAC,” Washington Dkt. No. 1-2.) On May 8, 2019, the County removed the Washington Action to this Court. (Washington Dkt. No. 1.)

On May 13, 2019, County Defendants filed a motion to consolidate the three actions. (“Motion to Consolidate,” Case No. 5:19-cv-00405-JGB-SHK, Dkt. No. 20.) On May 22, 2019, the Court granted the Motion to Consolidate and consolidated the three actions under Case No. 5:19-cv-00397-JGB-SHK. (Dkt. No. 12.)

After several amendments to the Complaint, Williams Plaintiffs filed a second amended complaint on September 23, 2019. (“Williams SAC,” Dkt. No. 82.)[3] The Williams SAC alleges eleven causes of action arising out of an altercation with Kohl's loss prevention officers that resulted in the death of Mr. Williams: (1) denial of medical care under 42 U.S.C § 1983; (2) denial of medical care and failure to properly train, supervise, and discipline under 42 U.S.C. § 1983; (3) municipal liability pursuant to a ratification theory under 42 U.S.C. § 1983; (4) wrongful death; (5) negligence; (6) battery; (7) negligent supervision, hiring, and retention; (8) discrimination and civil rights violations under of California Civil Code § 52.7; (9) civil rights violations under California Civil Code § 52.1(b)(h) (“Bane Act”); (10) unfair business practices (“UCL”); and (11) violations of the Unruh Civil Rights Act under California Civil Code §§ 51, 51.5. (Id.)

*2 On October 1, 2019, Plaintiff Washington filed the Washington TAC. (See Washington TAC.) The Washington TAC alleges nine causes of action: (1) denial of medical care under 42 U.S.C § 1983; (2) denial of medical care and failure to properly train, supervise, and discipline under 42 U.S.C. § 1983; (3) municipal liability pursuant to a ratification theory under 42 U.S.C. § 1983; (4) wrongful death; (5) negligence; (6) battery; (7) civil rights violations under California Civil Code § 52.1; (8) negligent supervision, hiring, and retention; and (9) interference with the familial relationship under 42 U.S.C. § 1983. (Id.)

On October 7, 2019 and October 22, 2019, County Defendants filed their answers. (Dkt. Nos. 85, 92.) On October 14, 2019 and October 25, 2019 Kohl's filed its answers. (“Kohl's Williams Answer,” Dkt. No. 89; Dkt. No. 94.) On October 15, 2019 and November 13, 2019, Ventura filed his answers. (Dkt. No. 90, 104.) On November 25, 2019, Blakeman did the same. (Dkt. Nos. 110, 111.)

On March 16, 2020, Williams Plaintiffs filed the MFS. (See MFS.) In support of the MFS, Williams Plaintiffs filed the declaration of Yana G. Henriks (“Henriks Declaration,” Dkt. No. 148-1), the declaration of Lauren I. Freidenberg (“Freidenberg Declaration,” Dkt. No. 148-2), the declaration of Samuel O. Ogbogu (“Ogbogu Declaration,” Dkt. No. 148-3), and 27 exhibits (See Dkt. Nos. 148-5–31 (attaching “MFS Exhibits 1–27”)). On March 23, 2020, Kohl's opposed the MFS. (“MFS Oppo.,” Dkt. No. 155.) On March 30, 2020, Williams Plaintiffs replied. (“MFS Reply,” Dkt. No. 159.) In support of the MFS Reply, Williams Plaintiffs filed the declaration of Yana G. Henriks (“2d Henriks Declaration,” Dkt. No. 159-1) and two exhibits (Dkt. Nos. 159-2–3).

On March 30, 2020, County Defendants filed the DMSJ. (See DMSJ.) In support of the DMSJ, County Defendants filed a statement of undisputed facts (“County DSUF,” Dkt. No. 157-6), multiple declarations, and 17 exhibits (See Dkt. No. 157-7 (attaching “Exhibits A–E”); Dkt. No. 157-8 (attaching “Exhibits F–Q”).) On April 6, 2020, all Plaintiffs opposed the DMSJ. (“DMSJ Opposition,” Dkt. No. 164.) In support of the DMSJ Opposition, Plaintiffs filed a response to the County's statement of undisputed facts, a declaration, 29 exhibits, and evidentiary objections (“Pl. Objections,” Dkt. No. 164-32). On April 13, 2020, County Defendants replied. (“DMSJ Reply,” Dkt. No. 172.) In support of the DMSJ Reply, County Defendants filed a declaration, a supplemental response to Plaintiffs' undisputed facts, and eight additional exhibits (“Exhibits R–Y,” Dkt. Nos. 172-4–11).

On April 20, 2020, Williams Plaintiffs filed the PMSJ. (See PMSJ.) In support of the PMSJ, Williams Plaintiffs filed a statement of undisputed facts (“PSUF,” Dkt. No. 180-1), a declaration, and 39 exhibits (“Exhibits 1–39,” Dkt. Nos. 180-4–36, 180-38–43).

On April 27, 2020, County Defendants opposed the PMSJ. (“County Opposition,” Dkt. No. 185.) In support of the County Opposition, County Defendants filed several declarations, a response to the PSUF, evidentiary objections, and 13 exhibits.

On April 27, 2020, Ventura opposed the PMSJ. (“Ventura Opposition,” Dkt. No. 188.) In support of the Ventura Opposition, Ventura filed evidentiary objections and a statement of undisputed facts.

On April 27, 2020, Blakeman opposed the PMSJ. (“Blakeman Opposition,” Dkt. No. 189.) In support of the Blakeman Opposition, Blakeman filed evidentiary objections (“Blakeman Objections,” Dkt. No. 189-1) and a statement of undisputed facts.

*3 On April 27, 2020, Kohl's opposed the PMSJ. (“Kohl's Opposition,” Dkt. No. 187.) In support of the Kohl's Opposition, Kohl's filed a statement of undisputed facts (“Kohl's Response to PSUF,” Dkt. No. 187-1), evidentiary objections, and a declaration.

On May 4, 2020, Williams Plaintiffs replied to the four oppositions. (“PMSJ Reply,” Dkt. No. 192.) In support of the PMSJ Reply, Williams Plaintiffs filed a declaration, a response to Kohl's statement of undisputed facts, evidentiary objections (“PMSJ Reply Objections,” Dkt. No. 192-8), and five exhibits (“Exhibits 40–44,” Dkt. Nos. 192-11–15).

II. LEGAL STANDARDS

A. Sanctions

District courts may impose sanctions under their inherent power “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” In re Napster, Inc. Copyright Litigation, 462 F. Supp. 2d 1060, 1066 (N.D. Cal. 2006) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)). Spoliation is “the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence, in pending or future litigation.” Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 649 (9th Cir. 2009); Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) (explaining that spoliation “refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.”). “Sanctions that a federal court may impose for spoliation include assessing attorney's fees and costs, giving the jury an adverse inference instruction, precluding evidence, or imposing the harsh, case-dispositive sanctions of dismissal or judgment.” Surowiec v. Capital Title Agency, Inc., 790 F. Supp. 2d 997, 1008 (D. Ariz. 2011) (quotation and citation omitted); Apple Inc. v. Samsung Electronics Co., Ltd., 881 F. Supp. 2d 1132, 1135 (N.D. Cal. 2012); In re Napster, 462 F. Supp. 2d at 1066 (citations omitted).

B. Rule 56

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party has the initial burden of identifying the elements of the claim or defense and evidence that it believes demonstrates the absence of an issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party must show that “under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

If the moving party has sustained its burden, the non-moving party must then show that there is a genuine issue of material fact that must be resolved at trial. Celotex, 477 U.S. at 324. The non-moving party must make an affirmative showing on all matters placed at issue by the motion as to which it has the burden of proof at trial. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. “This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Anderson, 477 U.S. at 252).

*4 A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. When deciding a motion for summary judgment, the court construes the evidence in the light most favorable to the non-moving party. Barlow v. Ground, 943 F.2d 1132, 1134 (9th Cir. 1991). Thus, summary judgment for the moving party is proper when a “rational trier of fact” would not be able to find for the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 599 (1986).

III. MOTION FOR SANCTIONS

A. Background Findings

Williams Plaintiffs move the Court to impose sanctions on Kohl's. (See MFS.) Williams Plaintiffs argue that Kohl's intentionally destroyed video surveillance footage of the altercation between Decedent and Security Defendants despite being on notice of Williams Plaintiffs' ongoing investigation of the incident. (Id. at 27.) Williams Plaintiffs contend that the Court should impose sanctions on Kohl's in the form of striking its answer to the Williams SAC, imposing liability, and issuing monetary sanctions. (Id. at 32–33.) For the reasons described below, the Court issues monetary sanctions but declines to impose liability on Kohl's.

This matter arises out of an altercation taking place on January 12, 2018 between Decedent and Security Defendants at a Kohl's Department Store (the “Kohl's Store”). (Henriks Declaration at ¶ 2.) The altercation allegedly resulted in injuries to Decedent that eventually led to his death on January 14, 2018. (Id.) Six days after the incident, and four days after Decedent's death, Kohl's was served with a preservation letter by Plaintiffs' counsel. (“MFS Exhibit 1,” Dkt. No. 148-5.) In particular, Plaintiffs' counsel advised Kohl's loss prevention division that:

(MFS Exhibit 1 at 2.) Four days later, an additional preservation letter was sent by counsel for Plaintiffs, and a third preservation letter was sent to Kohl's on March 8, 2018. (“MFS Exhibit 2,” Dkt. No. 148-6; “MFS Exhibit 3,” Dkt. No. 148-7.) Each letter emphasized the importance of preserving Kohl's video surveillance footage of the incident. (MFS Exhibit 2 at 2; MFS Exhibit 3 at 3.)

After Williams Plaintiffs filed this matter and discovery commenced, both Kohl's and County Defendants produced video surveillance footage of the incident. (Henriks Declaration ¶ 8.) The video includes footage from the interior and exterior of the Kohl's Store and depicts Decedent walking around the outside of the Store before entering through the front entrance. (Id.) The video does not depict the incident between Decedent and Security Defendants behind the Kohl's Store or County Defendants arriving and departing the scene of the incident. (Id. ¶ 9.) To date, no footage depicting either has been produced by Defendants and Kohl's represented at a hearing before Magistrate Judge Kewalramani that no additional footage of the incident exists. (Id.; Freidenberg Declaration ¶¶ 5-6.)

*5 On November 20, 2019, Williams Plaintiffs deposed Denny Jenner, Kohl's person most knowledgeable regarding their Store's video surveillance system. (“MFS Exhibit 12,” Dkt. No. 148-16.) Jenner testified that, to the best of his knowledge, there were no security cameras where the incident took place or, for that matter, anywhere on the exterior walls behind the Store. (“MFS Exhibit 8,” Dkt. No. 148-12 – Jenner Depo. at 199:1-19.) Jenner was then presented with photographs of a surveillance camera located in the rear of the Kohl's Store near the loading dock. (“MFS Exhibit 11,” Dkt. No. 148-15.) Jenner claimed he had never seen the camera before, did not know it existed, and speculated that it could be a “dummy” camera. (Exhibit 8 – Jenner Depo. at 203:1-204:10.) Jenner based his knowledge of existing cameras from a review of electronic surveillance and a construction map of the Kohl's Store's cameras. (Id. at 293:1-11.) After his first deposition, Jenner inspected the camera in-person and discovered that it was no longer plugged into the surveillance system at Kohl's. (Id. at 295:4-16.) Jenner stated that if the camera was ever operational, it would have been viewable from the loss prevention office. (Id. at 295:20-23.) Jenner did not know when the camera had become unplugged and inoperational. (Id.)

Eventually, the parties agreed to conduct an inspection of Kohl's on February 20, 2020. (“MFS Exhibit 14,” Dkt. No. 148-18.) In addition to a physical inspection of the premises, the inspection included a forensic inspection of the video surveillance system, server system, hard drive, and loss prevention management system. (Id. at 5–6.) Two days prior to the inspection, Robert Halliburton — the senior manager of security for the Kohl's Store — informed Williams Plaintiffs that Kohl's had conducted an upgrade of the server on February 21, 2018. (“MFS Exhibit 15,” Dkt. No. 148-19 at ¶ 7.) Halliburton explained that the upgrade was necessary because Kohl's surveillance servers and hard drives were a full year beyond their warranty and usable life. (Id. ¶ 4.) Halliburton represented that the upgrade had been previously scheduled in October of 2017 by Kohl's vendor for surveillance equipment and was planned to take place in the beginning of fiscal year 2018. (Id.) The upgrade prevented metadata recovery from the older server — metadata that would have permitted Williams Plaintiffs to determine the full extent of Kohl's Store surveillance footage of the incident — and the older server was recycled by Kohl's. (Id. ¶ 7.) After the upgrade, Williams Plaintiffs attempted to compel production of documents related to the installation, servicing, and maintenance of the video surveillance system. (Freidenberg Declaration ¶ 10.) In response, Kohl's failed to produce documents of the vendors and technicians that maintained the video surveillance system and otherwise produced unverified and unintelligible documents unrelated to the time frame of the incident. (Id. ¶ 12.)

Nevertheless, Williams Plaintiffs' counsel conducted a physical inspection of the Kohl's Store. (Freidenberg Declaration ¶ 7.) While there, Williams Plaintiffs' counsel discovered that the emergency exit that Decedent used to exit the Kohl's Store the day of the incident was located near the loading dock. (Id.) Williams Plaintiffs' counsel also observed the unplugged video camera and noted that it was located near the scene of the incident. (Id.)

B. Spoliation

The Court finds that Williams Plaintiffs have established that Kohl's is responsible for the spoliation and destruction of at least some evidence it was under an obligation to preserve. As an initial matter, the Court notes that while it is extremely suspicious of Kohl's litigation conduct, Williams Plaintiffs have not established the existence of the allegedly destroyed surveillance footage. See Putscher v. Smith's Food & Drug Centers, Inc., 2014 WL 2835315, at *6 (D. Nev. June 20, 2014) (“When determining whether to impose discovery sanctions for spoliation, the threshold question that the court must decide is whether relevant evidence existed.”). While a close call, “[t]he case law on [spoliation] is clear that the burden for showing [spoliation] occurred requires more than a mere suggestion or implication.” Galicia v. Nat'l R.R. Passenger Corp., 2018 WL 6314191, at *4 (C.D. Cal. July 20, 2018). Here, Williams Plaintiffs have submitted some evidence which suggests or implies that allegedly destroyed surveillance footage of the incident existed. But much of Williams Plaintiffs evidence “can be consistently interpreted as indicating that no relevant surveillance footage ever existed.” Putscher, 2014 WL 2835315, at *6.

*6 For example, Williams Plaintiffs point to the existence of three photographs of decedent produced by Kohl's in discovery and suggest that the photographs are stills from surveillance footage. (MFS at 14.) In support of this proposition, Williams Plaintiffs observe that the photographs list a “loss prevention management system” reference number, appear to be magnified, and appear to be taken from an “aerial angle.” (Id.) However, Williams Plaintiffs provide little more than lay analysis of the photos to establish that they are stills of surveillance footage.[4] Moreover, as Kohl's notes in the MFS Opposition, Williams Plaintiffs cannot rebut video evidence and discovery responses from Kohl's appearing to depict Ventura taking the photos of Decedent on his cell phone. (MFS Opposition at 9 (citing MFS Exhibit 8).) Decedent is either prone, laying down, or reclined in each of the photos — meaning that photographs taken by someone standing would easily produce the “aerial angle” described by Williams Plaintiffs. (See “MFS Exhibit 10,” Dkt. No. 148-14.) Williams Plaintiffs similarly provide no evidence that reference numbers on the photos submitted by Kohl's are unique to Kohl's surveillance footage. Last, and perhaps most importantly, Williams Plaintiffs fail to provide any reason why Kohl's would withhold or destroy surveillance video evidence yet risk discovery of their misconduct by willfully producing stills of the video.[5]

Likewise, Williams Plaintiffs imply that Ventura observed Decedent on a camera in the rear of the Kohl's Store because Ventura “told Deputy Tibbetts that he and [D]efendant Blakemen were in the loss prevention office when they saw Mr. Williams park his car in the back of Kohl's... [but t]he loss prevention office has no windows.” (MFS at 25.) Williams Plaintiffs rely on Deputy Tibbetts' deposition testimony, taken roughly a year after the incident, in which he recalls his conversation with Ventura after the incident. The Court is unconvinced that Deputy Tibbett's post-facto recollection of hearsay is sufficiently reliable to impose the harsh sanction of default. Lakes v. Bath & Body Works, LLC, 2019 WL 2124523, at *4 (E.D. Cal. May 15, 2019) (“From [ ] vague hearsay testimony, plaintiff asks the court to conclude that... [defendant] is withholding evidence. Once again, the court finds this evidence too speculative to support [ ] harsh sanction[s.]”).

Finally, perhaps the weightiest evidence Williams Plaintiffs produce are photographs of a camera in the loading dock behind the Kohl's Store near where the incident took place. (See MFS Exhibit 11.) However, Williams Plaintiffs have not produced evidence that the camera (1) existed two years earlier on the date of the incident; (2) was ever operational; and (3) would have captured the incident even if operational. Because the Court cannot ascertain what the camera would have captured — even if existing and operational at the time of the incident — and whether that footage would have been beneficial to Williams Plaintiffs, it cannot impose sanctions on Kohl's for the possible destruction of such footage. Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 631 (C.D. Cal. 2013) (“Mere speculation that [ ] deleted [evidence] may exist that might be helpful to a party's case is [ ] an insufficient basis for a finding of spoliation.”); see also Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 222 (S.D.N.Y. 2003) (“Perhaps more importantly, Plaintiffs cannot establish that the lost evidence would have supported [their] claims.”) (internal quotations omitted).

While Williams Plaintiffs fail to sufficiently establish the existence of surveillance footage of the incident, they have undisputedly established that Kohl's spoliated evidence when it upgraded its surveillance servers and destroyed server hardware and metadata shortly after the incident. Indeed, Kohl's senior manager of security admitted to the destruction and recycling of servers containing metadata of Kohl's surveillance footage. (MFS Exhibit 15 at ¶¶ 4, 7.) Accordingly, the Court examines whether sanctions are appropriate for the spoliation of such evidence and if so what sanctions should be issued.

C. Applicability of Sanctions

*7 Williams Plaintiffs have established the spoliation of evidence by Kohl's. In order for sanctions to apply to the spoliation of evidence, Williams Plaintiffs must also show that: “(1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a culpable state of mind; and (3) the evidence that was destroyed or altered was relevant to the claims or defenses of the party that sought the discovery of the spoliated evidence[.]” Montoya v. Orange Cty. Sheriff's Dep't, 2013 WL 6705992, at *7 (C.D. Cal. Dec. 18, 2013) (internal quotations omitted).

Here, the Court easily finds that sanctions should apply to Kohl's spoliation of evidence. First, Kohl's had an obligation to preserve the metadata and stored footage it destroyed. “As soon as a potential claim is identified, a litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action.” In re Napster, 462 F. Supp. 2d at 1067; see also Putscher, 2014 WL 2835315, at *5 (“A party must preserve evidence it knows or should know is relevant to a claim or defense of any party, or that may lead to the discovery of relevant evidence.”). Williams Plaintiffs' counsel sent two preservation letters to Kohl's prior to the upgrade of Kohl's surveillance servers. (Compare MFS Exhibits 1-2 (preservation letters dated January 20, 2018 and January 22, 2018 respectively), with MFS Exhibit 15 at ¶¶ 4, 7 (describing upgrade and recycling of servers on February 20, 2018).) The letters identified the incident leading to Decedent's death, explained counsel's belief that Kohl's was liable for his death, and stated that Kohl's was responsible for the preservation of evidence related to a potentially forthcoming lawsuit. (MFS Exhibit 1 at 2.) The letters specifically asked Kohl's to preserve “all... video surveillance footage from inside and outside the Store” and “[a]ll evidence regarding, referring, and/or relating to the abovementioned incident.” (MFS Exhibit 2 at 3.) Thus, Kohl's was under a duty to preserve the spoliated evidence.

Williams Plaintiffs have also established that the destruction was “accompanied by a culpable state of mind.” Montoya, 2013 WL 6705992, at *7 (internal quotations omitted). “[M]any courts in this Circuit have... [ ] instructed that [a] ‘culpable state of mind’ includes negligence.” Reinsdorf, 296 F.R.D. at 628 (internal quotations omitted); see also Zubulake, 220 F.R.D. at 220 (“[A] culpable state of mind for purposes of a spoliation inference includes ordinary negligence.”) (internal quotations omitted). In the instant matter, Kohl's had been reminded to preserve surveillance evidence via two separate letters less than a month prior to the spoliation. Furthermore, although Kohl's blames the upgrade on routine server maintenance, their duty to preserve required them to suspend existing policies related to the deletion and destruction of footage. In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d at 1070. Thus, Williams Plaintiffs have established Kohl's negligence in permitting their surveillance vendor to recycle pertinent evidence they were under a duty to preserve.

Finally, the evidence destroyed was clearly relevant to Williams Plaintiffs' claims. Although the exact contents of the footage and metadata on the recycled servers will never be determined, it is undisputed that the surveillance footage on the server contained original backups of footage from the day of the incident. (MFS Exhibit 15 at ¶¶ 4, 7.) Additionally, the surveillance metadata was essential to Williams Plaintiffs determining whether footage of the altercation behind Kohl's existed — information relevant to both the MFS and PMSJ. See In re Napster, 462 F. Supp. 2d at 1066 (“District courts may impose sanctions against a party that merely had notice that the destroyed evidence was potentially relevant to litigation.”). Consequently, the Court finds that Williams Plaintiffs have established the applicability of sanctions.

D. Form of Sanctions

*8 Once a court finds that sanctions are warranted, it must address what form the sanctions should take. Montoya, 2013 WL 6705992, at *7. Here, Kohl's is responsible for the negligent destruction of server metadata and hard drives containing surveillance footage relevant to this matter. “Monetary sanctions may be imposed where one party has wrongfully destroyed evidence.” Id. at *15 (citing In re Napster, 462 F. Supp. 2d at 1078) (internal quotations omitted). As a result, the Court finds Williams Plaintiffs are entitled to an award of reasonable attorneys' fees. The MFS is therefore GRANTED-IN-PART and DENIED-IN-PART and Williams Plaintiffs' are AWARDED attorneys' fees related to the MFS in the amount of $76,450.00.[6] (See, e.g., Henriks Declaration ¶ 27; Freidenberg Declaration ¶ 13; Ogbogu Declaration ¶ 28); see also Realnetworks, Inc. v. DVD Copy Control Ass'n, Inc., 264 F.R.D. 517, 530 (N.D. Cal. 2009) (imposing monetary sanctions for negligent failure to preserve evidence relevant to litigation). Finally, the Court ADMONISHES Kohl's and its counsel for their failure to preserve relevant evidence and for their cynical litigation conduct throughout these proceedings.[7] The Court will consider whether to impose additional sanctions at the time of trial.

IV. FACTS[8]

The material facts set forth below are sufficiently supported by admissible evidence and are uncontroverted. They are “admitted to exist without controversy” for purposes of the motions for summary judgment. The Court deems facts undisputed when the parties' “disputes” of that fact are merely restatements of the same fact, do not actually contradict the substance of a fact, or argue the relevancy and materiality of an otherwise undisputed fact. See Fed. R. Civ. P. 56(e)(2); L.R. 56-3. To the extent any evidentiary objections are unaddressed in this Order, they are OVERRULED.[9] Capitol Records, LLC v. BlueBeat, Inc., 765 F. Supp. 2d 1198 n.1 (C.D. Cal. 2010).

*9 This dispute centers on an altercation involving Security Defendants and Mr. Williams at a Kohl's department store located at 30252 Haun Road in Menifee, California. (See Williams SAC.) The altercation resulted in the death of Mr. Williams. (Id.) This matter consists of consolidated actions brought by Plaintiff D.W. (his daughter), Plaintiff J.W. (his son), Plaintiff Tammy Johnson Williams (his mother), Plaintiff Demajay Williams (his son), and Plaintiff Larisa Washington (his spouse and representative of his estate) in the wake of his death. (See Williams SAC; PSUF ¶¶ 131-133.)

A. Mr. Williams Arrives at the Kohl's Store and an Altercation Ensues

On January 12, 2018, Mr. Williams traveled to the subject Kohl's Store. (PSUF ¶ 1.) At approximately 12:01 p.m., Mr. Williams attempted to depart the Kohl's Store through an emergency exit at the back of the Store while carrying two vacuums that he did not pay for. (Id. ¶¶ 2-3.) Kohl's loss prevention officers Ventura and Blakeman chased Mr. Williams outside of the Kohl's Store and an altercation ensued. (Id. ¶ 3.) At the time of the altercation, the Kohl's Store had “hands off,” “no touch,” and “no pursuit” policies prohibiting loss prevention officers from physical contact with or pursuit of suspected shoplifters. (Id. ¶¶ 115-120.)

At the conclusion of the altercation, Ventura called 911 to request law enforcement and medical assistance. (Id. ¶ 10.) On the audio recording of the call, Ventura can be heard telling Blakeman to place all of his weight on Mr. Williams and telling Mr. Williams to stay on his stomach. (Id. ¶¶ 13-14.) In the background of the call, Mr. Williams can be heard saying “I can't breathe.” (See “Exhibit 6,” Dkt. No. 180-6.) At the time of the altercation, Ventura weighed approximately 170 pounds, Blakeman weighed approximately 250 to 300 pounds, and Mr. Williams weighed about 248 pounds. (Id. ¶¶ 17-18; Kohl's Response to PSUF ¶ 1.)

B. Deputy Tibbetts Arrives

At 12:07 p.m., Riverside County Sheriff Deputy Tibbetts arrived at the scene and saw Ventura and Blakeman holding Mr. Williams down to the ground near the rear exterior of the Kohl's Store.[10] (PSUF ¶ 20.) Deputy Tibbetts activated his body camera as he arrived. (Id. ¶ 21.) In the footage from the body camera, Mr. Williams is seen moving back and forth on the ground as Security Defendants hold him down and Deputy Tibbetts arrives. (Id. ¶ 22.)

Deputy Tibbetts then placed Mr. Williams in handcuffs and radioed for medical response. (Id. ¶ 23; County DSUF ¶ 8.) Deputy Tibbetts searched Mr. Williams and found a closed folding knife clipped on his waistband under his belt. (County DSUF ¶ 10.) Deputy Tibbetts later reported that he observed that Mr. Williams had “severe body trauma[ and] bruising” as well as a laceration over his left eyebrow.[11] (“Exhibit 7,” Dkt. No. 180-7 – Tibbetts Depo. at 53:7-15, 184:23-185:10.)[12] Deputy Tibbetts testified that he could not understand Mr. Williams during the encounter but was unsure if it was because Mr. Williams had an “accent” or because he was unintelligible for some other reason. (Id. at 56:22-57:1.)

C. Other First Responders Arrive

*10 At 12:10 p.m., medical first responders arrived. (PSUF ¶ 24.) Five minutes later, emergency medical technicians (“EMTs”) arrived. (Id. ¶ 25.) Around this time, Deputy Mannie also arrived at the scene of the altercation. (Id. ¶ 26.) Upon arriving at the scene, Paramedic Daniel Hauer began a medical evaluation of Mr. Williams while other first responders attended to Security Defendants. (Id. ¶ 27.) When Hauer arrived, Mr. Williams was groaning, complained of chest pain, stated that he could not breathe, repeatedly asked for assistance, and stated that he wished to go to the hospital.[13] (Exhibit 7 – Tibbetts Depo. at 57:20-25, 108:18-20, 140:18-25; PSUF ¶ 42.) Hauer was initially unable to place an EKG on Mr. Williams' chest because he would not sit still. (Id. ¶ 28.) Hauer eventually took Mr. Williams' blood pressure, checked his breathing, and ensured that Mr. Williams' chest wall was stable. (“Exhibit D,” Dkt. No. 157-7 – Hauer Depo. at 59:15-60:5.) Hauer testified that at this point Mr. Williams' breathing was stable and that otherwise his physical examination did not reveal anything “alarming.” (Id. at 41:12-42:7, 60:6-8.) Hauer asked Mr. Williams for his name several times but Mr. Williams did not respond. (“Exhibit 11,” Dkt. No. 180-11 – Hauer Depo. at 240:18-24.) EMT Jorel Sales testified that Mr. Williams was “busted up pretty badly,” had several bruises, and sported a black eye.[14] (Id. ¶ 41.)

Fire engineer Roy Garcia testified that Blakeman was vomiting when he arrived at the scene but declined medical assistance. (“Exhibit 5,” Dkt. No. 180-6 – Garcia Depo. at 31:14-20.) Ventura had a bloody nose and several scuff marks on his body. (Id.) Garcia testified that Ventura told him that “[him and Blakeman] pulled [Mr. Williams] out of his vehicle and just started beating him up, or they went [to] fight[ ] after they pulled him out of his vehicle.” (Id. at 31:20-24.) Ventura also told Garcia that at some point in the altercation he had “kicked Mr. Williams in the chest[.]”[15] (Id. at 81:23-82:1.) Garcia later observed bruises on Mr. Williams' chest when his shirt was lifted to place an EKG. (“Exhibit F,” Dkt. No. 157-8 – Garcia Depo. at 134:7-13.)

D. County Defendants Decide to Transport Mr. Williams to the Hospital in the Patrol Car

Hauer recommended that — consistent with regular procedure — Mr. Williams be transported to the hospital via ambulance. (Exhibit 11 – Hauer Depo. at 213:16-24.) Garcia testified that this procedure existed for individuals reporting chest pains because “if the person goes into cardiac arrest... [i]t would be addressed immediately [by] paramedics [in] the ambulance[.]” (“Exhibit 5,” Dkt. No. 180-6 – Garcia Depo. at 53:2-10.) Mr. Williams was placed on a gurney for further medical evaluation and in preparation to transport him to the hospital in the ambulance. (PSUF ¶ 44.) Hauer took Mr. Williams' pulse and noted that he had a heart rate of 110 beats per minute (“BPM”) and a blood pressure of 148 over 80. (Exhibit 11 – Hauer Depo. at 170:4-14.) Hauer testified that these vital signs were “normal” given that Mr. Williams had just physically exerted himself in an altercation. (Id.) Hauer communicated the vital signs to Deputy Mannie and informed him that “[e]verything seems to be stable. [Mr. Williams' vital signs] don't seem to be getting any worse.” (Id. at 163:19-25.) Deputy Mannie described Mr. Williams as “calm” while he was on the gurney. (PSUF ¶ 71.)

*11 After an ambulance arrived, Hauer began to walk Mr. Williams to the ambulance to transport him; however, before loading Mr. Williams into the ambulance, he suggested that an officer accompany Mr. Williams for the safety of the ambulance crew. (Exhibit D – Hauer Depo. at 213:25-214:5.) Instead, Deputy Tibbetts asked if Mr. Williams could be taken to the hospital by squad car in order to relieve the paramedics and obtain an “okay to book” for Mr. Williams.[16] (“Exhibit B,” Dkt. No. 157-7 – Tibbetts Depo. at 123:15; Exhibit 7 – Tibbetts Depo. at 113:8-11; Exhibit 11 – Hauer Depo. at 213:25-214:5.) Hauer and the County paramedics discussed the offer. (Exhibit D - Hauer Depo. at 44:7-11.) Hauer and the paramedics observed that Mr. Williams' vital signs were “all stable,” that he did not need further treatment of any kind, and that the only additional value an ambulance would offer was the ability to monitor his vital signs and “maybe re-evaluate” him on the way to the hospital. (Id. at 44:11-45:22.)

The paramedics and Hauer decided that so long as “officer[s felt] comfortable,” transporting Mr. Williams, an ambulance was not necessary and the Deputies could transport Mr. Williams in a squad car with his consent. (Exhibit 11 – Hauer Depo. at 214:13-22; “Exhibit G,” Dkt. No. 157-8 – Mannie Depo. at 94:19-95:1.) While everyone waited for the arrival of a squad car to transport Mr. Williams, one of the Deputies asked, “have you found anything that stands out, does [Mr. Williams] look stable?” (Exhibit D - Hauer Depo. at 68:1-6.) Hauer responded, “[y]es, as of right now everything looks stable... [I]f you guys need anything you can always pull over, or the hospital is only two exits away.” (Id. at 68:7-10.)

At some point, Hauer asked Mr. Williams whether he wanted to be transported by patrol car or ambulance, but Mr. Williams dismissed the question and asked for water. (Id. at 48:4-17.) Hauer then told Mr. Williams as he was wheeled by gurney to the squad car, “the officers want to transport you to the hospital instead of the ambulance. Is that okay with you? Is that something you want?” (Id. at 49:5-9.) Mr. Williams responded, “[y]eah, that's fine” and again stated “I don't care... I'll just go here” as he entered the squad car. (Id. at 49:10-11, 107:12-24.)

Before entering the squad car, and because Mr. Williams' transportation by squad car was contrary to Hauer's initial advice, it was decided that Mr. Williams should sign an against medical advice (“AMA”) form. (Exhibit 11 – Hauer Depo. at 242:2-17.) Hauer explained the AMA to Mr. Williams and what it required. (Exhibit D - Hauer Depo. at 108:11-17.) Hauer told Mr. Williams that Deputy Mannie would have to sign for him because he was handcuffed. (Id. at 108:18-109:1.) Mr. Williams gave no verbal response. (Exhibit 11 – Hauer Depo. at 246:2-14.) Ultimately, Deputy Mannie signed the AMA for Mr. Williams. (Id. at 246:20-22.) Mr. Williams was then carefully guided into the squad car. (Exhibit D – Hauer Depo. at 75:22-76:9.) The fire department and paramedics dispersed at approximately 12:34 p.m. (PSUF ¶ 73.)

E. Deputy Tibbetts Interrogates Mr. Williams and Speaks to Deputy McCullum

Once Mr. Williams was helped into the back of the squad car, Deputy Tibbetts provided him with water and loosened his handcuffs. (Exhibit B – Tibbetts Depo. at 116:18-117:1.) Deputy Tibbetts read him his Miranda rights and asked him if he understood them. (Exhibit 11 –Tibbetts Depo. at 55-18-20.) Mr. Williams responded affirmatively and coherently. (Id.) Deputy Tibbetts then attempted to interrogate Mr. Williams. (PSUF ¶ 75.) Deputy Tibbetts later testified that he felt comfortable interrogating Mr. Williams because he had already been assessed by medical staff and because he did not believe Mr. Williams was in immediate or life-threatening danger. (Exhibit 11 – Tibbetts Depo. at 59:5-15.) Mr. Williams did not respond coherently to Deputy Tibbett's questions and instead began moaning, stated that his hands hurt, and requested help. (Exhibit B – Tibbetts Depo. at 116:2-13.) When asked at his deposition why he did not cease his interrogation and drive Mr. Williams to the hospital Deputy Tibbetts replied:

(Id. at 116:18-117:1.)

After failing to obtain responses to his questions, Deputy Tibbetts turned off his body camera to speak to Deputy McCullum outside of the squad car. (Id. at 117:19-21.) Mr. Williams remained in the car with the doors closed while Deputies Tibbetts and McCullum spoke for at most “20... or 25 minutes.” (Id. at 118:10-21, 121:23-24.) Deputy Tibbetts observed through the car window that Mr. Williams was conscious and his overall demeanor remained unchanged. (Id. at 120:15-120:24.) However, he testified that he could hear Mr. Williams moan or groan in pain throughout his conversation with Deputy McCullum. (Id. at 120:25-121:1.)

F. Deputy Tibbetts Drives Mr. Williams to the Hospital and Mr. Williams is Discovered Unresponsive

At 12:55 p.m., after his conversation with Deputy McCullum, Deputy Tibbetts reentered the vehicle and began to drive Mr. Williams to the hospital. (Id.) He did not speak to Mr. Williams other than to inform him where they were going. (Exhibit 11 – Tibbetts Depo. at 127:9-14.) He did not attempt to interrogate Mr. Williams and the two did not conversate during the drive. (Id. at 127:9-16.) The car encountered light traffic and Deputy Tibbetts did not turn on his squad car's siren or lights during the drive. (Exhibit B – Tibbetts Depo. at 125:22-126:10.) Deputy Tibbetts recalled that Mr. Williams “complain[ed] about his hands” and that he felt some movement and a “bump” in the back of his chair during the drive. (Id. at 126:11-17, 129:6-13, 243:5-11.)

Deputy Tibbetts arrived at the hospital at 1:05 p.m. (PSUF ¶ 85.) When Deputy Tibbetts arrived at the hospital entrance, he exited the squad car and opened the rear door to remove Mr. Williams. (Id. at 127:23-128:3.) When Deputy Tibbetts opened the door, Mr. Williams was laying down and unresponsive to commands. (Id. at 128:4-10.) Deputy Tibbetts did not know that Mr. Williams was unresponsive until he arrived at the hospital. (PSUF ¶ 86.) Deputy Tibbetts checked Mr. Williams' pulse but registered no heartbeat. (Id. at 128:6-13.) He noticed that Mr. Williams' chest was not rising and falling. (Id.) Deputy Tibbetts quickly ran inside the hospital and obtained help from the first nurse or doctor he could find. (Id. at 128:14-19.) A group of hospital employees rushed to the squad car to render medical attention to Mr. Williams. (Id. at 128:20-24.) He died two days later. (PSUF ¶ 90.)

G. Mr. Williams' Cause of Death

After Mr. Williams' death, his body was examined by Dr. M. Scott McCormick, the forensic pathologist for Riverside County Sherriff Coroner's office. (“Exhibit 26,” Dkt. No. 191-1 – McCormick Depo. at 8:12-15; see also “Exhibit 16,” Dkt. No. 180-15.) Dr. McCormick observed blunt impact injuries to the forehead, abrasions over the body, and lacerations on Mr. Williams' face from his altercation. (Exhibit 26 – McCormick Depo. at 42:8-14.) Dr. McCormick found that Mr. Williams' heart was enlarged and his arteries almost completely blocked. (“Exhibit L,” Dkt. No. 157-8 – McCormick Depo. at 38:8-39:14.) Finally, Dr. McCormick interpreted Mr. Williams' toxicology report to exhibit fatal levels of methamphetamine intoxication. (Id. at 37:3-9.)

*13 Ultimately, Dr. McCormick ruled Mr. Williams' manner of death a homicide. (Exhibit 26 – McCormick Depo. at 52:8-10.) On Mr. Williams' death certificate, Dr. McCormick listed the following causes of death: (1) acute methamphetamine intoxication; (2) arteriosclerotic and hypertensive cardiovascular disease with subacute myocardial infarction; and (3) the physical altercation with Security Defendants. (See Exhibit 16.) McCormick testified that the altercation with Security Defendants minorly contributed to Mr. Williams' death because it “excite[d his] central nervous system and the cardiac system” and required physical exertion. (Id. at 42:15-19.)

Defense expert Dr. Frank Sheridan opined that Mr. Williams suffered his infarction and entered cardiac arrest at some point in the back of Deputy Tibbetts' patrol car. (“Exhibit 27,” Dkt. No. 180-24 – Sheridan Depo. at 38:12-19.) Dr. Sheridan testified that Mr. Williams' coronary artery disease and hypertension combined with the exertion from the altercation and his methamphetamine use to cause his infarction. (Id. at 44:12-45:3.) Dr. Sheridan described Mr. Williams' preexisting heart condition as a “ticking time bomb” that was “triggered” by his methamphetamine use and the physical altercation. (Id. at 48:2-10.) One of Williams Plaintiffs' experts opined that delayed medical treatment, waiver of medical treatment and transport, acute amphetamine intoxication, and heart disease were contributory factors to Mr. Williams' death. (PSUF ¶ 110.) One expert surmised that if Mr. Williams had been transported by ambulance, he had a greater than 50% chance of survival; another expert projected only a 20% to 24% survival rate if Mr. Williams had a defibrillator available. (“Exhibit 24,” Dkt. No. 180-21 – Talan Depo. at 26:8-22; “Exhibit 41,” Dkt. No. 192-12 – Friedman Depo. at 79:15-22.)

H. The Aftermath

After Riverside County Sheriff's Investigator Jose Vasquez concluded his investigation of Mr. Williams' death, he recommended manslaughter charges to the Riverside County District Attorney (“DA”) against Blakeman and Ventura. (PSUF ¶ 112.) The DA rejected Vasquez's recommendation and declined to prosecute Security Defendants. (Kohl's Response to PSUF ¶ 12.) Ventura and Blakeman were permitted to resign as Kohl's loss prevention officers on July 29 and July 30, 2019. (PSUF ¶¶ 113-114.) The Williams Plaintiffs were deprived of material, emotional, and pecuniary support as a result of Mr. Williams' death. (PSUF ¶¶ 134-138.)

V. MOTIONS FOR SUMMARY JUDGMENT

Williams Plaintiffs move the Court to enter summary judgment on most of their claims against Defendants. (See PMSJ.) Likewise, County Defendants move the Court to enter summary judgment on all claims alleged against them. (See DMSJ.) The Court addresses both motions in turn.

A. Security Defendants

1. Application of Adverse Inference from Invocation of Fifth Amendment

Williams Plaintiffs argue that there is no genuine dispute of material fact as to any claim against Security Defendants. (See PMSJ.) As a preliminary matter, much of the parties' debate centers around the significance (or lack of significance) of Security Defendants' invocation of the Fifth Amendment during discovery. “When a party asserts the privilege against self-incrimination in a civil case, the district court has discretion to draw an adverse inference from such assertion.” Nationwide Life Ins. Co. v. Richards, 541 F.3d 903, 911 (9th Cir. 2008). “A decision not to draw the inference poses substantial problems for an adverse party who is deprived of a source of information that might conceivably be determinative in a search for the truth.” Id. (internal quotations and citations omitted).

*14 However, “under certain circumstances... an adverse inference from an assertion of one's privilege not to reveal information is too high a price to pay.” Id. at 912. Rather than simply draw an adverse inference in all situations the Fifth Amendment is invoked, district courts must analyze each invocation and proceed “on a case-by-case basis under the microscope of the circumstances of that particular civil litigation.” Id. The district court should not draw the inference unless “there is a substantial need for the information and there is not another less burdensome way of obtaining that information.” Id. The district court must also determine whether the value of presenting the underlying evidence would be substantially outweighed by its danger of unfair prejudice to the party asserting the privilege. Id. Finally, an adverse inference can only be drawn when silence is complemented with independent evidence of the fact being questioned. Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000); see also Richards, 541 F.3d at 912 (“[T]he inference may be drawn only when there is independent evidence of the fact about which the party refuses to testify.”).

In the instant matter, Security Defendants invoked the Fifth Amendment to multiple questions during their depositions regarding the altercation with Decedent. Ventura invoked the Fifth Amendment when he was asked whether he: (1) chased Decedent out of the store; (2) punched Decedent in the head; (3) punched Decedent before Decedent ever touched him; (4) pulled Decedent from his vehicle seat; (5) stomped and kicked Decedent on the chest and head while he was on the ground; (6) pinned Decedent down on the ground until police arrived; and (7) continued to hold Decedent down even when he said he could not breathe. (“Exhibit 3,” Dkt. No. 180-4 – Ventura Depo. at 60:16-61:23, 88:6-8, 89:15-18, 122:5-15.) Similarly, Blakeman invoked the Fifth Amendment when asked whether he: (1) pinned Decedent to the ground and placed his body weight on him; (2) grabbed Decedent while he was in his vehicle and smash him against the vehicle door; (3) slammed Decedent on the ground while he was attempting to enter his vehicle; and (4) did not act in self-defense when he confronted Mr. Williams. (“Exhibit 4,” Dkt. No. 180-5 – Blakeman Depo. at 51:3-19, 92:6-21.)

The Court finds that Security Defendants' invocations of their Fifth Amendment rights warrant adverse inferences because there is both a need for the information and sufficient independent evidence to draw the inference. As a general matter, with regard to the exact circumstances of the altercation, there is undoubtedly “a substantial need for [ ] information and... [no] less burdensome way of obtaining that information.” Richards, 541 F.3d at 912. As detailed in the Court's analysis of the MFS, no surveillance footage of the altercation exists. Because the altercation took place in the loading dock behind the Kohl's Store, no customers witnessed the altercation. Mr. Williams, the only other first-hand witness of the altercation, is dead. While ample evidence of the aftermath of the altercation exists, evidence of the exact circumstances of the altercation is only circumstantial and indirect. As a result, the Court finds a substantial need for information regarding the altercation and no less burdensome way to obtain it.

Moreover, while the Court lacks direct testimonial evidence of the altercation, sufficient independent evidence exists to draw the adverse inference. Glanzer, 232 F.3d at 1264. It is undisputed that Security Defendants pursued Decedent as he fled from the Store. (PSUF ¶ 3.) On the 911 call after the altercation, Ventura can be heard instructing Blakeman to place all of his weight on Decedent and Decedent can be heard telling Security Defendants that he cannot breathe. (Id. ¶¶ 13–14; Exhibit 6.) Deputy Tibbetts arrived at the scene and observed that Security Defendants had pinned Decedent to the ground. (PSUF ¶ 20.) Ventura admitted to Garcia in the aftermath of the altercation that he and Blakeman “pulled [Decedent] out of his vehicle and just started beating him up” or that the three fought “after they pulled [Decedent] out of his vehicle.” (Exhibit 5 – Garcia Depo. at 31:20-24.) Ventura also told Garcia that at some point in the altercation he “kicked Mr. Williams in the chest.” (Id. at 81:23-82:1.) Both testimony and Decedent's autopsy revealed significant bruising on Decedent's body —including on Decedent's chest — and Deputy Tibbetts and other first responders testified that Decedent was covered in dirt from the altercation. (Exhibit 26 – McCormick Depo. at 42:8-14; Exhibit 7 — Tibbetts Depo. at 184:23-185:10, 232:11-16.) Decedent had a laceration over his left eye and a contusion on his forehead in addition to his extensive bruising. (Exhibit 26 – McCormick Depo. at 42:8-14.) In all, the independent evidence available to the Court is sufficient to permit an adverse inference to the questions posed to Security Defendants in their deposition.[17]

*15 Security Defendants advance several arguments to dissuade the Court from drawing an adverse inference. None are convincing. First, Security Defendants contend that application of an adverse inference is inappropriate because Williams Plaintiffs lack independent corroborating evidence to draw an adverse inference. (Ventura Opposition at 11–12.) On this point, the Court finds S.E.C. v. Colello, 139 F.3d 674 (9th Cir. 1998) instructive. In Colello, the Securities Exchange Commission (“SEC”) sought to establish that defendant had received payments from money fraudulently-obtained from public investors. Id. at 675. Although the district court could not identify whether defendant still possessed the illicit funds or whether he had some legitimate claim to them, it ordered disgorgement after drawing adverse inferences from his assertions of the Fifth Amendment privilege. Id. The Ninth Circuit upheld the adverse inferences based solely on the “SEC's proof of [defendant's] receipt of the funds of the victims” and the absence of evidence supporting defendant's legitimate claim to the funds. Id. at 678.

As detailed above, Williams Plaintiffs have submitted several independent items of evidence to corroborate that Security Defendants chased Decedent, pulled him out of his vehicle, kicked him in his chest, punched him, and otherwise “beat[ ] him up” even as he tried to escape. (Exhibit 5 – Garcia Depo. at 31:20-24; Exhibit F – Garcia Depo. at 134:7-13; Exhibit 26 – McCormick Depo. at 42:8-14.) Like with the defendant's receipt of funds in Colello, this is sufficient to draw an adverse inference and shift the burden to Security Defendants to cite evidence that justifies and legitimizes their use of force. While Security Defendants insist that the Court cannot draw an adverse inference without more evidence, expecting Williams Plaintiffs to submit insurmountable evidence prior to drawing an adverse inference would run contrary to the purpose of the adverse inference doctrine. After all, the inference can only be drawn when there is a “substantial need” for it. Richards, 541 F.3d at 912. Williams Plaintiffs have submitted sufficient independent evidence of Security Defendants' aggression and culpability in provoking and escalating the altercation with Decedent. Security Defendants have not meaningfully rebutted that evidence. As a result, the adverse inference is warranted.

Second, Security Defendants argue that the Court need not draw an adverse inference from their assertions of privilege because sufficient alternative evidence exists to render their would-be testimony unnecessary. (Ventura Opposition at 12–15.) This is obviously wrong. The altercation at issue resulted in the death of Decedent. There is no video surveillance of the altercation and Security Defendants are the sole-remaining witnesses. Without Security Defendants' first-hand account of the altercation, Williams Plaintiffs are deprived of the only available direct evidence of the circumstances of the altercation, Security Defendants' conduct, and their culpability. Alternate evidence cited by Security Defendants — the coroner reports, medical records, and testimony of first responders — offers only circumstantial evidence of the altercation. Indeed, Security Defendants' account of events is precisely the “source of information that might conceivably be determinative in a search for the truth” that warrants an adverse inference. Richards, 541 F.3d at 911–12 (internal quotations omitted); see also Garvin v. Tran, 2011 WL 846096, at *2 (N.D. Cal. Mar. 8, 2011) (drawing adverse inference when defendant was only party who could provide unique information about home purchases central to plaintiffs' claims).[18]

*16 Finally, Security Defendants contend that drawing an adverse inference would unfairly relieve Williams Plaintiffs of the burden imposed on plaintiffs moving for summary judgment. (Ventura Opposition at 12–13.) Security Defendants' argument holds little weight: the Ninth Circuit has explicitly held that a district court is permitted to exercise its discretion to burden-shift in response to an assertion of the Fifth Amendment privilege. See Colello, 139 F.3d at 677 (holding that district court did not abuse its discretion by shifting burden to defendant to produce evidence that he had legitimate claim to illicit funds). Burden-shifting is as warranted here as it was in Colello, particularly because Security Defendants are best positioned to offer evidence to meet that burden.

Having determined that an adverse inference is appropriate, the Court may still only apply the inference to specific questions asked but not answered by Security Defendants. Gonzales v. City of San Jose, 2015 WL 7878121, at *6 (N.D. Cal. Dec. 4, 2015) (“[T]he scope of an adverse inference instruction cannot be limitless; rather, it must be tethered to the specific questions asked but not answered.”). As noted above, the Court has identified seven questions asked to Ventura and four questions asked to Blakeman during their depositions. In its analysis of each claim against Security Defendants, the Court draws adverse evidentiary inferences from their failure to answer those questions.[19]

2. Claim Five: Negligence

Williams Plaintiffs move the Court to enter summary judgment against Security Defendants on Claim Five for negligence. (PMSJ at 27.) “The elements of a negligence cause of action are: (1) a legal duty to use due care; (2) a breach of that duty; (3) the breach was the proximate or legal cause of the resulting injury; and (4) actual loss or damage resulting from the breach of the duty of care.” Brown v. Ransweiler, 171 Cal. App. 4th 516, 534 (2009). “Under general negligence principles... a person ordinarily is obligated to exercise due care in his or her own actions so as to not to create an unreasonable risk of injury to others, and this legal duty generally is owed to the class of persons who it is reasonably foreseeable may be injured as the result of the actor's conduct.” Lugtu v. California Highway Patrol, 26 Cal. 4th 703, 716 (2001) (citing Cal. Civ. Code § 1714); see also Jackson v. Ryder Truck Rental, Inc., 16 Cal. App. 4th 1830, 1837–38 (1993) (“[E]very case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being injured as the result of their conduct.”).

Where a security guard's alleged negligence is at issue, the security guard breaches his duty of care when he “fails to act as would a reasonable security guard under similar circumstances[.]” Balard v. Bassman Event Sec., Inc., 210 Cal. App. 3d 243, 249 (1989) (citing Marois v. Royal Investigation & Patrol, Inc., 162 Cal. App. 3d 193, 199 (1984)). While a private security guard is entitled to detain an individual he reasonably suspects committed a felony, he may only “use a reasonable amount of force to do so.” Stone v. Paragon Sys., Inc., 2017 WL 6520604, at *5 (C.D. Cal. Sept. 13, 2017) (citing People v. Crowder, 136 Cal. App. 3d 841, 844 (1982)). A plaintiff can establish that a security guard's unreasonable use of force was the cause of their injuries if the evidence demonstrates that the conduct was a substantial factor in causing those injuries. Trujillo v. G.A. Enterprises, Inc., 36 Cal. App. 4th 1105, 1108 (1995).

*17 Here, the Court finds no genuine dispute of fact as to most elements of negligence. Security Defendants owed Decedent a duty of reasonable care. Balard, 210 Cal. App. 3d at 249. While Security Defendants were each entitled to use force to detain Decedent, their use of force in detaining him was unreasonable as a matter of law. The evidence establishes that Security Defendants chased Decedent and pulled him from his vehicle to begin “beating him up.” (Exhibit 5 – Garcia Depo. at 31:20-24.) Blakeman smashed Decedent against his vehicle door when he pulled him out of the vehicle and subsequently slammed him to the ground. (Blakeman Depo. at 51:3-19, 92:6-21.) Ventura stomped and kicked Decedent in the head and chest while he was on the ground. (Exhibit 5 – Garcia Depo. at 81:23-82:1; Exhibit 3 – Ventura Depo. at 60:16-61:23.) Both Blakeman and Ventura pinned Decedent and Blakeman continued to place their weight on him even when Decedent stated that he could not breathe. (Exhibit 4 – Blakeman Depo. at 51:3-19; Exhibit 3 – Ventura Depo. at 60:16-61:23.) Decedent passed away after the altercation and Williams Plaintiffs sustained a loss of material and pecuniary support as a result. (PSUF ¶¶ 134-138.) Thus, Williams Plaintiffs have sufficiently established duty, breach, and damages as to their negligence claim.

To argue that the element of breach should be left for the jury, Ventura and Kohl's rely heavily on Ventura's bloody nose and post-altercation interview with Deputy Tibbetts as evidence that he acted in self-defense and otherwise used reasonable force. (Kohl's Opposition at 21–22.) To be sure, there is some superficial appeal to that argument: in the post-altercation interview, Ventura appears to allege that Decedent attacked him with a knife. (See “Exhibit 12,” Dkt. No. 180-41.) However, as Williams Plaintiffs point out, Ventura's assertion of his Fifth Amendment privilege immunizes his self-serving interview with Deputy Tibbetts from scrutiny. Since the interview, Ventura has refused to testify regarding any matter relating to the altercation and Williams Plaintiffs have been unable to cross-examine Ventura to challenge his version of the altercation. As a result, relying on Ventura's unquestioned, undeveloped, and unscrutinized account of events to Deputy Tibbetts would be intolerably prejudicial to Williams Plaintiffs.

In similar situations, courts have exercised their discretion to preclude consideration of a witness's testimonial evidence. Indeed, the inverse situation of these circumstances has been addressed by the Ninth Circuit and found to warrant the preclusion of testimony. For example, the Ninth Circuit in Richards held that “[t]rial courts generally will not permit a party to invoke the privilege against self-incrimination with respect to deposition questions and then later testify about the same subject matter at trial.” Richards, 541 F.3d at 910 (collecting cases); cf. Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 577 (1st Cir. 1989) (“A defendant may not use the fifth amendment to shield herself from the opposition's inquiries during discovery only to impale her accusers with surprise testimony at trial.”). The Richards court explained that this general rule exists because “[t]he Federal Rules of Civil Procedure contemplate... full and equal discovery... so as to prevent surprise, prejudice and perjury during trial.” Richards, 541 F.3d at 910 (internal quotations omitted).

While the element of surprise here is absent, the situation nonetheless disadvantages Williams Plaintiffs like the plaintiff in Richards and raises similar concerns over prejudice and inaccurate testimony. Indeed, Richards specifically highlighted the unacceptable prejudice caused by a witness who initially offered self-serving statements to the officers investigating the aftermath of a murder, but then invoked her Fifth Amendment privilege to avoid further inquiry at her deposition. Richards, 541 F.3d at 910. The Court held that years of discovery and new revelations since the initial statements

*18 Id. at 911.

The Court thus finds that Ventura's later assertion of his Fifth Amendment privilege warrants preclusion of his initial statements to Deputy Tibbetts. See Colello, 139 F.3d at 677 (holding that “a district court has discretion in its response to a party's invocation of the Fifth,” and citing approvingly the proposition that a court has “discretion in determining the appropriate means of dealing with a claimant's invocation of the privilege”); see also Jackson v. Cty. of San Bernardino, 2016 WL 7495816, at *1, 3 (C.D. Cal. Apr. 21, 2016) (striking plaintiff's deposition testimony in which plaintiff offered “self-serving” statements as to his intent and motive but otherwise invoked the Fifth Amendment to any other question). In light of the preclusion of Ventura's initial statements, the adverse inferences drawn against Security Defendants, and the burden-shifting caused by those inferences, some evidence that Decedent possessed a knife is insufficient to establish a genuine dispute as to the reasonability of Security Defendants' use of force — especially when there is an absence of evidence that Decedent used the knife and when Security Defendants' depositions serve as admissions that they used force on Decedent while he was neutralized on the ground.

Finally, despite sufficient evidence of the other three elements of negligence, there is a triable issue of fact as to actual and proximate causation for Decedent's death.[20] Security Defendants can only be found liable for Decedent's death if Williams Plaintiffs establish that the altercation was a “substantial factor” in Decedent's death. Trujillo, 36 Cal. App. 4th at 1108. “[C]onduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.” Yanez v. Plummer, 221 Cal. App. 4th 180, 187 (2013). While evidence exists that the altercation with Security Defendants played a role in Decedent's death, other evidence could permit a reasonable trier of fact to conclude that Decedent would have passed away in the absence of the altercation. As one example, the County coroner who conducted Decedent's autopsy listed methamphetamine intoxication and preexisting coronary issues as two of Decedent's primary causes of death. (See Exhibit 16.) Williams Plaintiffs' and Defendants' experts disagree over the extent to which Decedent's preexisting conditions, drug use, and the altercation contributed to his death — but all experts appear to acknowledge that each of the three causes played some role in his death. Additionally, Security Defendants cannot be found liable “if another cause intervenes and supersedes [their] liability for the subsequent events.” White v. Roper, 901 F.2d 1501, 1506 (9th Cir. 1990). As shown throughout Williams Plaintiffs' own PMSJ, a reasonable trier of fact could find that County Defendants alleged delay in administering medical treatment to Decedent was his superseding cause of death.[21] Accordingly, the Court finds that while Williams Plaintiffs have established three of the four elements of negligence, they have not established that causation is beyond dispute.[22] The Court thus GRANTS the PMSJ as to duty, breach, and damages, but leaves the issue of causation for the trier of fact.[23]

3. Claim Four: Wrongful Death

*19 Williams Plaintiffs seek summary judgment on their wrongful death claim against Security Defendants. (PMSJ at 34.) “The elements of a wrongful death claim are: (1) a wrongful act or neglect on the part of one or more persons, (2) the resulting death of another person, and (3) pecuniary losses suffered by the heirs.” Quiroz v. Seventh Ave. Ctr., 140 Cal. App. 4th 1256, 1264 (2006). When a plaintiff's wrongful death claim is premised on a defendant's negligence, the plaintiff must establish the standard elements of negligence to prevail on their wrongful death claim. Gaylor v. Morin, 2018 WL 6133405, at *6 (C.D. Cal. Jan. 3, 2018). Here, Williams Plaintiffs have established both the death of Decedent and pecuniary loss due to his passing away.[24] (See Exhibit 16 (depicting death certificate of Decedent); PSUF ¶¶ 134-138.) However, as discussed in the context of Claim Five, there is a genuine dispute as to what and who caused Decedent's death. As a result, Williams Plaintiffs are entitled to summary judgment as to only the second and third elements of wrongful death. The Court therefore GRANTS-IN-PART and DENIES-IN-PART the PMSJ as to Claim Four.

4. Claim Six: Battery

Williams Plaintiffs move the Court to enter summary judgment as to their battery claim against Security Defendants. (PMSJ at 30.) A civil battery claim requires Williams Plaintiffs to establish that: (1) Security Defendants touched Decedent with the intent to harm or offend Decedent; (2) Decedent did not consent to the touching; (3) Decedent was harmed by Security Defendants' conduct; and (4) a reasonable person in the Decedent's position would have been offended by the touching. See Carlsen v. Koivumaki, 227 Cal. App. 4th 879, 890 (2014)

Here, Williams Plaintiffs have met their burden as to each element of battery. As detailed above, with the benefit of adverse inferences, Williams Plaintiffs have established that Decedent was pulled from his vehicle as he fled Security Defendants and subsequently thrown, slammed, punched, stomped, and kicked in the chest and head. (Exhibit 5 – Garcia Depo. at 81:23-82:1; Exhibit 3 – Ventura Depo. at 60:16-61:23; Blakeman Depo. at 51:3-19, 92:6-21). Security Defendants' battery on Decedent left him with abrasions, bruises, and a laceration. (Exhibit 26 – McCormick Depo. at 42:8-14.) No party seriously contests that Decedent consented to the offensive touching or that a reasonable person in Decedent's position would have been unoffended by the touching. Moreover, to whatever extent Security Defendants contend that they were entitled to use reasonable force to apprehend Decedent, as discussed in Claim Five, their actions constituted unreasonable force as a matter of law. Thus, Williams Plaintiffs have established that there is no genuine dispute of material fact as to each element of battery. The Court therefore GRANTS the PMSJ as to Claim Six.

5. Claim Nine: Bane Act

*20 Williams Plaintiffs seek summary judgment against Security Defendants on their Bane Act claim.[25] (PMSJ at 34.) The Bane Act allows an aggrieved individual to bring a civil action for damages when that person's constitutional or statutory rights have been “interfered with... by threats, intimidation, or coercion” or by attempts to threaten, intimidate, or coerce. Cal. Civ. Code § 52.1(a)-(b). “[T]he Bane Act does not require the ‘threat, intimidation or coercion’ element of the claim to be transactionally independent from the constitutional violation alleged.” Reese v. County of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018) (citing Cornell v. City and County of San Francisco, 17 Cal. App. 5th 766, 799-800). However, the Bane Act does require specific intent to violate the right at issue. Id. (citing Cornell, 17 Cal. App. 5th at 801). Specific intent can be established with evidence of a defendant's “reckless disregard for a person's [ ] rights[.]” Id. at 1045. Moreover, “an individual acting privately can violate, and hence interfere with” the rights secured by the Bane Act. Jones v. Kmart Corp., 17 Cal. 4th 329, 338 (1998). Lastly, in California, “every person has... the [statutory] right of protection from bodily restraint or harm[.]” Cal. Civ. Code § 43; People v. Lashley, 1 Cal. App. 4th 938, 951 (1991) (“[T]he phrase ‘right of protection from bodily restraint or harm’ refers simply to an individual's right to be free from physical attack or the threat thereof.”).

Summary judgment is warranted as to Claim Nine. Decedent had a statutory “right of protection from bodily restraint or harm[.]” Cal. Civ. Code § 43. That right was violated when, as detailed extensively above, Security Defendants pulled him from his vehicle and unjustifiably and unreasonably battered him behind the Kohl's Store. Furthermore, evidence of Decedent's severe injuries, in addition to evidence that Security Defendants slammed him and kicked him while he was on the ground, establish evidence of a “reckless disregard” for Decedent's right to be protected from bodily restraint or harm. Reese, 888 F.3d at 1045. As a result, Williams Plaintiffs have established a violation of statutory rights through coercion and the requisite specific intent to violate those rights. Id. at 1043, 1045. The Court GRANTS the PMSJ as to Claim Nine.

B. Kohl's

1. Imputation of Adverse Inference from Co-Parties

Williams Plaintiffs seek summary judgment on all claims alleged against Kohl's. (See PMSJ.) As a preliminary matter, Kohl's and Williams Plaintiffs dispute whether the adverse inferences drawn by the Court against Security Defendants can be imputed to Kohl's. For its part, the Ninth Circuit has never addressed whether an adverse inference from a non-party or co-party's invocation of the Fifth Amendment can be imputed to another party. Other circuits, however, have overwhelmingly found it constitutionally permissible to impute an adverse inference from a non-party to a party in a civil proceeding. See State Farm Mut. Auto. Ins. Co. v. Abrams, 2000 WL 574466, at *6 (N.D. Ill. May 11, 2000) (collecting cases from the Second, Third, Fifth, and Eighth Circuits). When determining whether to impute an adverse inference, those courts “have rejected bright-line rules, and instead [ ] concluded that the party urging the use of the inference must show that the circumstances of the particular case justify the imputation of the negative inference.” Id. In the Second Circuit, courts have developed a factorial test to determine whether imputation of an adverse inference from a non-party to a party is warranted (hereinafter the “LiButti factors”). See LiButti v. United States, 107 F.3d 110, 122 (2d Cir. 1997); see Cotton v. City of Eureka, 2010 WL 2889498, at *4 (N.D. Cal. July 22, 2010) (utilizing the LiButti factors to determine whether imputation of adverse inference from non-party to party was warranted).

*21 District courts within the Second Circuit have used the LiButti factors to determine the propriety of imputation in the related situation where a co-party invokes the Fifth Amendment. See John Paul Mitchell Sys. v. Quality King Distributors, Inc., 106 F. Supp. 2d 462, 471 (S.D.N.Y. 2000) (citing and applying LiButti and holding that “[Defendant's] first claim — that no adverse inference may be drawn against a party by another party's invocation of the Fifth Amendment privilege — is incorrect.”); see also Willingham v. Cty. of Albany, 593 F. Supp. 2d 446, 453 (N.D.N.Y. 2006) (“[T]he rationale and analysis of LiButti have equal application to a case, as here, where a party invokes the privilege and the question presented is whether the party's invocation merits application of an adverse inference against other parties[.]”). In light of the weight of persuasive authority, the lack of other guidance, and the Court's inherent “discretion in its response to a party's invocation of the Fifth,” the Court applies the LiButti factors to determine whether the adverse inference from Security Defendants assertion of privilege may be imputed to Kohl's. Colello, 139 F.3d at 677; see also id. (citing approvingly Wehling v. Columbia Broadcasting System, 608 F.2d 1084, 1089 (5th Cir. 1979) for the proposition that “[i]f invocation of privilege prejudiced the other party, the district court would be free to fashion whatever remedy is required to prevent unfairness”) (internal quotations omitted).

LiButti requires courts gauging the propriety of imputation to weigh four distinct factors: (1) the nature of the relevant relationship between the party invoking the Fifth Amendment and the co-party; (2) the degree of control the co-party has over the party invoking the Fifth Amendment; (3) the compatibility of interests between the party invoking the Fifth Amendment and the co-party; and (4) the role of the party invoking the Fifth Amendment in the litigation. LiButti, 107 F.3d at 123–24. The Court examines each factor in turn.

a. Nature of the Relevant Relationship

First, the Court finds the former employer-employee relationship between Security Defendants and Kohl's slightly weighs in favor of imputation of an adverse inference. While Security Defendants resigned from their roles as loss-prevention officers for Kohl's, courts have still found a relevant relationship between former employers and employees. See Coquina Investments v. TD Bank, N.A., 760 F.3d 1300 (11th Cir. 2014); Data Gen. Corp. v. Grumman Sys. Support Corp., 825 F.Supp. 340 (D. Mass. 1993). Finding a relevant relationship between a former employee and its employer is especially appropriate when there is reason to believe the former employee retains some loyalty to their former employer. Coquina Investments, 760 F.3d at 1311; see also LiButti, 107 F.3d at 123 (“It should be examined[ ] from the perspective of a non-party witness' loyalty to the plaintiff or defendant... The closer the bond, whether by reason of blood, friendship or business, the less likely the non-party witness would be to render testimony in order to damage the relationship.”).

Here, the former business relationship between Kohl's and Security Defendants weighs slightly in favor of imputing the adverse inference. Emerson v. Wembley USA Inc., 433 F. Supp. 2d 1200, 1212 (D. Colo. 2006) (“[The employee] formerly had a business relationship with [the employers], potentially making it less likely that he would testify negatively against them.”). While other evidence of loyalty between Kohl's and Security Defendants is sparse, Kohl's did permit Security Defendants to amicably resign from their positions rather than terminating them. (PSUF ¶¶ 113-114.) The delicate resolution of Kohl's internal investigation into Security Defendants' conduct suggests some degree of cordiality between the three parties. Thus, evidence exists that Security Defendants might have been reluctant to testify against Kohl's at their depositions, which took place shortly after they were permitted to resign. See Coquina Investments, 760 F.3d at 1311 (holding that cooperative internal investigation weighed in favor of finding of loyalty). The Court finds this factor slightly weighs in favor of imputation.

b. Kohl's Degree of Control

*22 The second LiButti factor is the “degree of control which [Kohl's] has vested in [Security Defendants] in regard to the key facts and general subject matter of the litigation.” LiButti, 107 F.3d at 123. In this matter, it is not apparent whether and how much Kohl's directly exercised control over Security Defendants the day of the incident. While Security Defendants altercation with Decedent took place while they were working for Kohl's, there is no evidence that Kohl's directed their actions. The Court thus finds the second factor weighs slightly against the imputation of an adverse inference.

c. Compatibility of Interests

The third LiButti factor requires the Court to examine the compatibility of interests in this matter between Security Defendants and Kohl's. LiButti, 107 F.3d at 123. It is undisputed that Security Defendants committed their tortious acts within the course and scope of their employment with Kohl's. (PSUF ¶¶ 127-130.) As a result, Kohl's and Security Defendants have an almost identical compatibility of interests in this matter because Kohl's can be held vicariously liable for findings of wrongdoing by Security Defendants. Similarly, exculpation of wrongdoing by Security Defendants could result in Kohl's non-liability. Put simply, Kohl's liability in this matter almost entirely rises and falls with the liability of Security Defendants. See Coquina Investments, 760 F.3d at 1312 (finding compatibility of interests where fraudulent conduct occurred during the existence of employer-employee relationship); see also John Paul Mitchell Sys., 106 F. Supp. 2d at 471 (finding compatibility of interests because finding of fraud for one party would have been to the detriment of the other). The third LiButti factor therefore weighs in favor of imputation.

d. Security Defendants' Role in the Litigation

The last LiButti factor is the extent of Security Defendants' role in this litigation. As parties to this matter, Security Defendants' role in this litigation is undisputedly significant. Moreover, Security Defendants have more than an ancillary role in the facts giving rise to Williams Plaintiffs' claims. Security Defendants' conduct while acting as employees on behalf of Kohl's gave rise to the altercation resulting in Decedent's death and is central to the claims alleged in the Williams SAC. See LiButti, 107 F.3d at 123–24 (explaining that the fourth factor must weigh whether the invoking party “was a key figure in the litigation and played a controlling role in respect to any of its underlying aspects”). Thus, the final factor weighs in favor of imputing an adverse inference to Kohl's. See Abrams, 2000 WL 574466, at *7 (weighing final factor in favor of imputation because “all of the invoking Defendants have a significant role in the litigation: they are parties to the suit”).

In sum, three of the four LiButti factors weigh in favor of imputing Security Defendants' adverse inferences to Kohl's. While there is no evidence that Kohl's exerted control over Security Defendants, the three parties have significantly overlapping — perhaps even virtually identical — interests in this matter. Likewise, Security Defendants' significant role in the altercation in addition to their status as former employees with Kohl's weighs in favor of an imputation of the adverse interest. As a result, the LiButti factors favor imputation of the adverse inferences from Security Defendants to Kohl's.[26] The Court thus considers Williams Plaintiffs' claims against Kohl's in light of those adverse inferences.

2. Claims Four, Five, Six, Nine: Wrongful Death, Negligence, Battery, Bane Act

*23 Williams Plaintiffs seek summary judgment on their wrongful death, negligence, battery, and Bane Act claims against Kohl's. (PMSJ at 33, 35-36.) Williams Plaintiffs argue that Kohl's is vicariously liable for the acts of Ventura and Blakeman because both committed their tortious conduct in the scope and course of employment. (Id.) “The doctrine of respondeat superior imposes vicarious liability on an employer for the torts of an employee acting within the scope of his or her employment, whether or not the employer is negligent or has control over the employee.” Jeewarat v. Warner Bros. Entm't Inc., 177 Cal. App. 4th 427, 434 (2009). Under California law, an employer is broadly “subject to vicarious liability for injuries caused by an employee's tortious actions resulting or arising from pursuit of the employer's interests.” Farmers Ins. Grp. v. Cty. of Santa Clara, 11 Cal. 4th 992, 1005 (1995). Indeed, so long as the “tortious actions are engendered by events or conditions relating to the employment,” the employer can be held vicariously liable. Id. at 1006.

The Court finds that Williams Plaintiffs have established Kohl's vicarious liability. Security Defendants committed their tortious conduct while they were working as loss prevention officers for Kohl's at the Kohl's Store. The altercation at issue arose from Security Defendants' attempt to stop Decedent from shoplifting. Security Defendants' tortious actions therefore “result[ed] or ar[ose] from pursuit of the[ir] employer's interests.” Farmers Ins. Grp., 11 Cal. 4th at 1005. Furthermore, neither Kohl's nor Security Defendants dispute that the altercation occurred in the scope and course of Security Defendants' employment with Kohl's. (PSUF ¶¶ 127-130.) Williams Plaintiffs have thus undisputedly established that Kohl's is vicariously liable for the tortious conduct of Security Defendants.

While causation remains an issue of triable fact for the negligence and wrongful death claims against Security Defendants and Kohl's, Williams Plaintiffs have established every element of their battery and Bane Act claims. Accordingly, the Court GRANTS the PMSJ as to Claims Six and Nine against Kohl's.

3. Claim Seven: Negligent Hiring, Supervision, and Retention

Williams Plaintiffs briefly argue for entry of summary judgment on Claim Seven for negligent hiring, supervision, and retention. (PMSJ at 15 (“Williams Plaintiffs will present extensive unrebutted documentary and testimonial evidence as to... negligent supervision, hiring, [and] retention[.]”).) However, Williams Plaintiffs fail to address Claim Seven in any of their briefs or cite any facts supporting a claim for negligent hiring, supervision, and retention. As a result, the Court DENIES the PMSJ to the extent it seeks summary judgment on Claim Seven.

C. County Defendants

County Defendants move the Court to enter summary judgment as to each claim in the Williams SAC. (See DMSJ.) Williams Plaintiffs move the Court to enter summary judgment on solely Claim One against County Defendants. (See PMSJ.) The Court analyzes both motions below and finds that many of the claims against the County warrant dismissal.

1. Claim One: Denial of Medical Care Under 42 U.S.C. § 1983[27]

*24 Williams Plaintiffs and County Defendants move the Court to enter judgment with respect to Claim One. Claim One alleges an unconstitutional denial of medical care against Deputies Mitchell, Tibbetts, and Mannie. (See Williams SAC.) Claims for denial of medical care during and immediately following an arrest are analyzed under the Fourth Amendment. Estate of Adomako v. City of Fremont, 2018 WL 587146, at *5 (N.D. Cal. Jan. 29, 2018). Claims for denial of medical care for individuals injured in police custody are analyzed under the Fourteenth Amendment. Bailey v. Oakdale Police Dep't, 2008 WL 298864, at *11 (E.D. Cal. Feb. 1, 2008). The Court addresses Claim One under the standard provided by each Amendment.

a. Fourth Amendment

“Claims of denial of medical care during and immediately following an arrest are analyzed under the Fourth Amendment and its ‘objective reasonableness’ standard.” Estate of Adomako, 2018 WL 587146, at *5 (citing Borges v. City of Eureka, 2017 WL 363212, at *6 (N.D. Cal. Jan. 25, 2017)); see also Holcomb v. Ramar, 2013 WL 5947621, at *4 (E.D. Cal. Nov. 4, 2013) (“[C]laims regarding deficient medical care during and immediately following an arrest are governed by the Fourth Amendment.”). While the Ninth Circuit has not specified the exact contours of objectively reasonable post-arrest care to a suspect, they have held that “[a]n officer fulfills this [Fourth Amendment] obligation by promptly summoning the necessary medical help or taking the injured detainee to a hospital.” Bordegaray v. Cty. of Santa Barbara, 2016 WL 7223254, at *8 (C.D. Cal. Dec. 12, 2016) (emphasis added); see also B.P. v. Cty. of San Bernardino, 2019 WL 7865177, at *3 (C.D. Cal. Nov. 14, 2019) (“The Fourth Amendment requires the arresting officer to ‘promptly summon[ ] the necessary medical assistance’ — whether that is promptly bringing the arrestee to the hospital or promptly summoning some other type of care.”) (quoting Tatum v. City & Cty. of San Francisco, 441 F.3d 1090, 1099 (9th Cir. 2006)) (emphasis removed). Whether an officer behaved reasonably and sufficiently promptly in rendering or summoning medical care for a detainee depends partly “on the length of the delay and the seriousness of the need for medical care.” Holcomb, 2013 WL 5947621, at *4. “Just as the Fourth Amendment does not require a police officer to use the least intrusive method of arrest, [ ] neither does it require an officer to provide what hindsight reveals to be the most effective medical care for an arrested suspect.” Tatum, 441 F.3d at 1098 (internal citations omitted). “Courts in the Ninth Circuit have often held that the reasonableness inquiry under the Fourth Amendment is ordinarily a question of fact for the jury.” Henriquez v. City of Bell, 2015 WL 13357606, at *7 (C.D. Cal. Apr. 16, 2015).

As a preliminary matter, the Court notes that there is no basis for liability against Deputies Mannie and Mitchell. Deputy Mitchell does not appear to have been involved in the decision to transport Decedent by squad car and was not present when Deputy Tibbetts delayed Decedent's transportation to the hospital. Moreover, the same is true of Deputy Mannie, whose involvement in the incident is limited to signing the AMA form on behalf of Decedent.[28] See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“Liability under § 1983 must be based on the personal involvement of the defendant.”). Accordingly, the Court GRANTS the DMSJ as to both Deputies Mannie and Mitchell. Because the remainder of Williams Plaintiffs' section 1983 and state law claims similarly lack sufficient evidence of Deputy Mannie and Deputy Mitchell's involvement, the Court DISMISSES all claims against both Deputies WITH PREJUDICE.

*25 As to Deputy Tibbetts, the Court finds that there is a genuine dispute as to whether he provided reasonable post-arrest medical care. On the one hand, some evidence establishes sufficient grounds for a reasonable trier of fact to find that Deputy Tibbetts rendered reasonable medical care to Decedent. Deputy Tibbetts summoned medical care almost immediately after encountering Decedent and permitted paramedics to evaluate him as soon as they arrived on the scene. (County DSUF ¶ 8.) Paramedics measured Decedent's vitals and observed nothing alarming. (Exhibit D – Hauer Depo. at 41:12-42:7.) Deputy Tibbetts obtained the verbal consent of Decedent and approval of paramedics prior to transporting Decedent by squad car. (Exhibit 11 – Hauer Depo. at 214:13-22; Exhibit D – Hauer Depo. at 49:10-11, 107:12-24.) Furthermore, Deputy Tibbetts was informed that Decedent's vital signs were “stable” and could have reasonably believed he was not in imminent danger when he took custody of Decedent. (Exhibit D – Hauer Depo. at 68:7-10.) Finally, while Decedent groaned, asked for help, and responded unintelligibly to interrogation in the back of the squad car, a reasonable juror could conclude that Decedent had exhibited similar behaviors throughout the encounter, and had nonetheless been deemed medically stable by paramedics. See Borges, 2017 WL 363212, at *7 (finding that detainee who was stable and otherwise competent at time of arrest was not denied medical care by officer who drove him to jail instead of the hospital); see also Henriquez, 2015 WL 13357606, at *7 (finding officer acted reasonably when detainee was not “obviously in need of immediate medical treatment”).

On the other hand, the evidence could lead a reasonable trier of fact to find that Deputy Tibbetts unreasonably delayed medical care for Decedent after his condition began deteriorating. From the time he arrived on the scene, Deputy Tibbetts heard Decedent complain of chest pains and the inability to breathe. (Exhibit 7 – Tibbetts Depo. at 108:18-20, 143:2-9.) Without intervention, Decedent could have been transported in the ambulance in about five minutes. (PSUF ¶ 66.) Instead, Deputy Tibbetts suggested Decedent ride to the hospital in a squad car. (Exhibit 7 – Tibbetts Depo. at 113:8-11.) Deputy Tibbetts did not inform paramedics that Decedent would be held for questioning and processed before transport to the hospital. (Id. at 63:1-10.) When Deputy Tibbetts began questioning Decedent in the squad car, Decedent gave unintelligible answers, groaned in pain, and asked for help. (Exhibit B – Tibbetts Depo. at 116:2-13.) Instead of taking Decedent to the hospital or asking him what was wrong, Deputy Tibbetts proceeded to speak to Deputy McCullum outside of the squad car for approximately twenty minutes. (Id. at 117:19-21.) Deputy Tibbetts heard Decedent groaning in pain from inside the vehicle but continued speaking to Deputy McCullum. (Id. at 118:10-21, 121:23-24.) When Deputy Tibbetts reentered the vehicle to drive to the hospital, he did not turn on the siren or lights and did not check to see if Decedent was still conscious — even after he heard a “bump” and noticed that Decedent was unusually silent. (Id. at 125:22-126:10, 126:11-17, 129:6-13, 243:5-11.) Viewing the facts in the light most favorable to Williams Plaintiffs, a reasonable trier of fact could find that Deputy Tibbetts unreasonably delayed medical treatment to a detainee whose condition had observably deteriorated. See Borges, 2017 WL 363212, at *10 (finding triable issue of fact as to reasonableness of officer's provided medical care because a jury could find that “a reasonable officer... would have contacted [plaintiff] to ascertain that he was alright” in light of plaintiff's deteriorating condition in jail cell); see also Fonseca v. City of Fresno, 2012 WL 44041, at *9 (E.D. Cal. Jan. 9, 2012) (“[A]n officer... [must] reasonably respond if and when he becomes aware of a suspect's deteriorating medical condition.”).

Moreover, qualified immunity does not shield Deputy Tibbetts from liability. “Qualified immunity protects government officers from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Hernandez v. City of San Jose, 897 F.3d 1125, 1132 (9th Cir. 2018). “To determine whether an officer is entitled to qualified immunity, [the Court] ask[s], in the order [it] choose[s], (1) whether the alleged misconduct violated a [constitutional] right and (2) whether the right was clearly established at the time of the alleged misconduct.” Id. Because Williams Plaintiffs have established a genuine dispute as to the first prong of qualified immunity, only the “clearly established” prong is at issue. To determine whether a right was clearly established, courts ask whether “it would be clear to a reasonable officer that his conduct was unlawful” given the state of the law when the conduct occurred. Garcia v. Cty. of Merced, 639 F.3d 1206, 1208 (9th Cir. 2011).

*26 County Defendants contend that “decedent did not have a clearly established right to be transported to the hospital by ambulance after decedent was medically cleared by Paramedic Hauer for transport by patrol car.” (DMSJ at 26.) County Defendants, however, mischaracterize the right at issue. The right at issue is not whether Decedent had a right to be transported the hospital by ambulance. Rather, the right at issue is whether a detainee is entitled to prompt medical care or prompt transportation to the hospital once he or she exhibits deteriorating health. On that issue, both the Supreme Court and the Ninth Circuit have spoken and answered in the affirmative. Revere v. Massachusetts General Hospital, 463 U.S. 239, 245 (1983) (“Whatever the standard may be [for adequate provision of medical care], [the City] fulfilled its constitutional obligation by seeing that [the injured plaintiff] was taken promptly to a hospital that provided the treatment necessary for his injury.”) (emphasis added); see also Tatum, 441 F.3d at 1099 (requiring officers to obtain prompt medical care or transport decedent to the hospital after his breathing became labored, his eyes bulged, and his breathing became heavy). As this Court has previously held, in light of well-established authority, “evidence ‘that the officers ignored [an arrestee's] deteriorating medical condition is reason to deny qualified immunity.’ ” B.P., 2019 WL 7865177, at *3 (quoting Tatum, 441 F.3d at 1098).[29] In light of the clearly established right at issue, qualified immunity does not apply to Deputy Tibbett's conduct.

Finally, as explained above, causation for Decedent's death remains heavily disputed and must be left for the trier of fact. The Court therefore DENIES both motions for summary judgment as to Claim One's Fourth Amendment theory.

b. Fourteenth Amendment

Next, the Court examines Williams Plaintiffs' denial of medical care claim under the Fourteenth Amendment. Initially, the Court notes that the weight of authority suggests that a denial of medical care violates the Fourteenth Amendment only when an individual is injured by law enforcement during apprehension. See, e.g., Tatum v. City and County of San Francisco, 441 F.3d 1090, 1098–99 (9th Cir.2006) (explaining that the Fourth Amendment rather than Fourteenth Amendment appears to be the proper mode of analysis for denial of medical care claims during and immediately after arrest); Maddox v. Los Angeles, 792 F.2d 1408, 1414-15 (9th Cir. 1986) (“The due process clause requires responsible governments and their agents to secure medical care for persons who have been injured while in police custody... We have found no authority suggesting that the due process clause establishes an affirmative duty on the part of police officers to render CPR in any and all circumstances.”) (internal citations omitted); Hernandez v. Dickey, 2018 WL 5906031, at *10 (C.D. Cal. May 10, 2018) (finding Fourth Amendment and not Fourteenth Amendment is violated by a denial of medical care during and immediately following arrest). Here, Decedent's injuries were not caused by County Defendants in the course of apprehension or while in custody. Thus, the Fourteenth Amendment does not appear to apply to Williams Plaintiffs' denial of medical care claim.

*27 Even if the Fourteenth Amendment applied to Claim One, Williams Plaintiffs' claim fails as a matter of law. To establish a denial of medical care under the Fourteenth Amendment, Williams Plaintiffs must show “a serious medical need.... [and that] the defendant's response to the need was deliberately indifferent.” Conn v. City of Reno, 572 F.3d 1047, 1055 (9th Cir. 2009) (internal quotations omitted). “[Decedent] must provide evidence that the Officers actually knew of and disregarded a substantial risk of serious harm to his health and safety.” Bailey, 2008 WL 298864, at *11. “[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.... [N]egligence, whether gross or simple, is insufficient to prove a constitutional violation.” Chavez v. San Bernardino Cty., 2008 WL 638150, at *2 (C.D. Cal. Feb. 27, 2008) (internal quotations and citations omitted).

While Williams Plaintiffs do establish a genuine dispute as to whether Deputy Tibbetts behaved as a reasonable officer would in light of Decedent's deteriorating condition, they cannot establish that Deputy Tibbetts was subjectively aware that there was a substantial risk of serious harm to Decedent's health or safety. Before departing the scene, paramedics informed Deputies that Decedent was stable. (Exhibit D - Hauer Depo. at 68:1-6.) Deputy Tibbetts testified that he did not think Decedent was in imminent danger because paramedics had stated that he was stable. (Exhibit B – Tibbetts Depo. at 116:18-117:1.) Deputy Tibbetts did not know that Decedent was unconscious in the squad car until the two arrived at the hospital. (PSUF ¶ 86.) No evidence exists to suggest the Deputy Tibbetts had actual subjective knowledge that Decedent was experiencing a heart attack, but chose to ignore it rather than render medical aid. Consequently, Williams Plaintiffs have not raised a triable question that Deputy Tibbetts was deliberately indifferent to Decedent's medical needs, and the Court GRANTS the DMSJ and DENIES the PMSJ as to the Fourteenth Amendment theory of Claim One. Rosales v. Cty. of Los Angeles, 650 F. App'x 546, 550 (9th Cir. 2016) (affirming dismissal of claim for deliberately indifferent medical care because “[a]lthough there is evidence officials should have known to check [the detainee] for more injuries, a negligent failure to provide medical care is insufficient”).

As a result, the Court DENIES the PMSJ and GRANTS-IN-PART and DENIES-IN-PART the DMSJ as to Claim One. Claim One is DISMISSED WITH PREJUDICE to the extent it relies on a Fourteenth Amendment theory of denial of medical care.

2. Claim Two: Denial of Medical Care and Failure to Properly Train, Supervise, and Discipline Under 42 U.S.C. § 1983

County Defendants move the Court to enter summary judgment on Williams Plaintiffs' Monell[30] claim for denial of medical care. A municipality can be liable under section1983 “if the governmental body itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such deprivation.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting Monell, 436 U.S. at 690). It cannot, however, be held vicariously liable for its employees' actions on a respondeat superior theory. Monell, 436 U.S. at 691; see also AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (“Section 1983 suits against local governments alleging constitutional rights violations by government officials cannot rely solely on respondeat superior liability.”) (citing Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007)). In limited circumstances, a municipality's failure to train employees to avoid violating citizens' constitutional rights can rise to the level of an unconstitutional policy or custom under section 1983. Connick, 563 U.S. at 61. This failure to train must amount to a deliberate indifference of the rights of persons the untrained employees contact. Id. Only when municipal policymakers are on “actual or constructive notice” that a particular omission in a training program causes constitutional violations can they be deemed to be “deliberately indifferent[.]” Id.

*28 County Defendants have submitted undisputed evidence that Deputy Tibbetts was properly trained to summon medical care for arrestees that required medical attention. (DSUF ¶ 9.) Because Deputy Tibbetts is the only Deputy remaining in this matter, a showing that he was properly trained is sufficient to defeat Williams Plaintiffs' Monell claim for failure to properly train. Moreover, the DMSJ Opposition makes no effort to cite relevant evidence or defend Claim Two to the extent it is premised on a failure to supervise and discipline.[31] Instead, Williams Plaintiffs argue that there is a genuine dispute of material fact as to whether the County had an unofficial custom of permitting law enforcement to sign AMA releases for detainees. (DMSJ Opposition at 29.) In support of this unofficial custom, Williams Plaintiffs cite the testimony of De La Hoya — a County firefighter — who testified that he had seen deputies sign AMAs for detainees anywhere between 40 and 100 times. (“Exhibit 13,” Dkt. No. 180-12 – De La Hoya Depo. at 84:8-85:22.) However, even if his testimony were sufficient to establish a genuine issue of fact, De La Hoya never testified that the singing of the AMAs was followed by unconstitutionally delayed treatment — a critical omission because the signing of an AMA form alone does not establish a constitutional violation. Williams Plaintiffs provide no other evidence of “widespread” or “pervasive” unconstitutional conduct on the part of the County.[32] Hunter v. Cty. of Sacramento, 652 F.3d 1225, 1233 (9th Cir. 2011). Accordingly, the Court GRANTS the DMSJ and DISMISSES Claim Two WITH PREJUDICE.

3. Claim Three: Ratification of Unconstitutional Conduct Under 42 U.S.C. § 1983

County Defendants move for summary judgment on Williams Plaintiffs' claim for ratification of unconstitutional conduct. (DMSJ at 30.) “A municipality... can be liable for an isolated constitutional violation if the final policymaker ‘ratified’ a subordinate's actions.” Christie v. Iopa, 176 F.3d 1231, 1238 (9th Cir. 1999). To show ratification, a plaintiff must prove that “authorized policymakers approved a subordinate's decision and the basis for it.” Id. at 1231. Because a policymaker must actually approve of a subordinate's decision, “[the] mere failure to overrule a subordinate's actions, without more, is insufficient” to allege municipal liability under section 1983. Sheehan v. City and County of San Francisco, 743 F.3d 1211, 1231 (9th Cir. 2014) (reversed, in part, on other grounds, City & Cty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765 (2015)). The Ninth Circuit has also held that the mere failure to discipline employees, without more, is insufficient to establish municipal liability under a ratification theory. See Clouthier v. County of Contra Costa, 591 F.3d 1232, 1253 (9th Cir. 2010) (holding that to establish municipal liability there must be a “conscious, affirmative choice on the part of [an] authorized policymaker” to approve a subordinate's actions, rather than a mere failure to impose discipline) (reversed on other grounds in Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016)); Jarreau-Griffin v. City of Vallejo, 2013 WL 6423379, at *7 (E.D. Cal. Dec. 9, 2013) (“[A] policymaker's knowledge of an unconstitutional act does not, by itself, constitute ratification.... [R]atification requires an authorized policymaker to make a ‘conscious, affirmative choice.’ ”) (quoting Clouthier, 591 F.3d at 1250).

Williams Plaintiffs' ratification claim fails as a matter of law. Williams Plaintiffs premise their ratification claim on Professional Standards Bureau Investigator Martha Rodriguez's failure to adequately investigate and discipline Deputies. (DMSJ Opposition at 29.) Even assuming that Investigator Rodriguez is a “final policymaker” for purposes of their ratification claim, a mere failure to discipline a subordinate is insufficient to establish a ratification claim. Clouthier, 591 F.3d at 1253; see also Rabinovitz v. City of Los Angeles, 287 F. Supp. 3d 933, 967 (C.D. Cal. 2018) (“Neither a policymaker's mere knowledge of, nor the policymaker's mere refusal to overrule or discipline, a subordinate's unconstitutional act suffices to show ratification.”). Instead, Williams Plaintiffs must provide evidence of a “conscious, affirmative choice” to approve of a subordinate's conduct to raise a triable issue. Id. Williams Plaintiffs have not done so. Consequently, the Court GRANTS the DMSJ and DISMISSES Claim Three WITH PREJUDICE.

4. Claims Four, Five, and Seven: Wrongful Death, Negligence, Bane Act

*29 County Defendants move the Court to enter summary judgment on Williams Plaintiffs' state law claims for wrongful death, negligence, and violations of the Bane Act. (DMSJ at 32.) In so moving, County Defendants invoke the sovereign immunity outlined in California Health and Safety Code §§ 1788.106–107. Under both statutes, a standard of gross negligence applies to the conduct of emergency personnel who render medical treatment or rescue transportation to an individual. Cal. Health & Safety Code § 1788.106(a) (“[A]... police officer or other law enforcement officer.... who renders emergency medical services at the scene of an emergency or during an emergency air or ground ambulance transport shall only be liable in civil damages for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.”); id. § 1788.107(b) (“[N]either a public entity nor emergency rescue personnel shall be liable for any injury caused by an action taken by the emergency rescue personnel acting within the scope of their employment to provide emergency services, unless the action taken was performed in bad faith or in a grossly negligent manner.”). Both statutes expressly extend to law enforcement officers who render emergency medical services. Id. § 1788.106(a); id. § 1788.107(d)–(e) (“ ‘[E]mergency rescue personnel’ means any person who is an officer, employee, or member of a... county[.] ‘[E]mergency services’ includes, but is not limited to, first aid and medical services, rescue procedures and transportation, or other related activities necessary to insure the health or safety of a person in imminent peril.”).

In total, the statutes “create[ ] a presumption that emergency care is rendered in good faith and without gross negligence” and shift the burden to the plaintiff to establish conduct below the relevant standard of care. Maxwell v. Cty. of San Diego, 2013 WL 12064474, at *4 (S.D. Cal. Oct. 25, 2013), aff'd, 714 F. App'x 641 (9th Cir. 2017); see also Cal. Health & Safety Code § 1799.107(b)–(c) (“For purposes of this section, it shall be presumed that the action taken when providing emergency services was performed in good faith and without gross negligence. This presumption shall be one affecting the burden of proof.”). In order to establish gross negligence under either statute, a plaintiff must show “the lack of even scant care or an extreme departure from the ordinary standard of conduct.” Sanchez v. Kern Emergency Med. Transportation Corp., 8 Cal. App. 5th 146, 153 (2017), as modified (Feb. 16, 2017). “To avoid a finding of gross negligence, it is not required that a public entity must pursue all possible options. It is [only] required only that they exercise some care[.]” Decker v. City of Imperial Beach, 209 Cal. App. 3d 349, 361 (1989).

The Court finds that County Defendants are entitled to statutory immunity. While some evidence suggests that Deputy Tibbetts made an unreasonable decision to delay medical care, Williams Plaintiffs have not met their burden to raise a triable question that Deputy Tibbetts failed to provide “even scant care” or engaged in an “extreme departure from the ordinary standard of conduct.” Sanchez, 8 Cal. App. 5th at 153. Instead, the evidence is undisputed that Deputy Tibbetts summoned paramedics for Decedent when he first arrived at the Kohl's Store. (County DSUF ¶ 8.) Deputy Tibbetts permitted paramedics to evaluate Decedent and transported Decedent by squad car only after paramedics agreed and informed him Decedent was stable. (Exhibit 11 – Hauer Depo. at 214:13-22; Exhibit G – Mannie Depo. at 94:19-95:1.) Further, Deputy Tibbetts unbuttoned Decedent's shirt when he complained of chest pain, offered him water in his squad car, and loosened his handcuffs when asked. (Exhibit B – Tibbetts Depo. at 116:18-117:1.)

While Deputy Tibbetts delayed transportation of Decedent to the hospital for approximately twenty minutes, that alone is insufficient to raise a genuine dispute of material fact as to bad faith or gross negligence — particularly when the Court must presume that he behaved in good faith and without gross negligence. Cf. Wright v. City of Los Angeles, 219 Cal. App. 3d 318, 347 (1990) (affirming finding of gross negligence where paramedic did not question why he had been called to examine patient, did not check patient's pulse or blood pressure, and only performed a visual examination of patient's injuries); see also City of Santa Cruz v. Superior Court, 198 Cal. App. 3d 999, 1007 (1988) (“The allegation here is that the lifeguard assigned to the area where the injury occurred did not respond and offer aid for 20 minutes. This is insufficient to raise a triable issue of gross negligence or bad faith.”). The Court therefore GRANTS the DMSJ as to Claims Four, Five, and Seven and DISMISSES the three claims WITH PREJUDICE.

D. Plaintiff Washington

*30 Last, County Defendants move for summary judgment on Plaintiff Washington's claim for unconstitutional interference with the familial relationship. (DMSJ at 19.) Family members and spouses of an individual killed by law enforcement officers may assert a substantive due process claim based on the related deprivation of their liberty interest arising out of their relationship with the decedent. Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 371 (9th Cir. 1998), as amended (Nov. 24, 1998). In order to establish a claim for interference with the familial relationship, a plaintiff must establish that an officer's behavior “shocks the conscience.” Id. at 372. When, like here, an officer has time for “actual deliberation” in his conduct, a plaintiff must show that an officer was deliberately indifferent to the decedent's rights to establish behavior that “shocks the conscience.” Tatum v. Moody, 768 F.3d 806, 821 (9th Cir. 2014).

As discussed above in the context of Williams Plaintiffs' denial of medical care claim, there is insufficient evidence to raise a triable issue that Deputy Tibbetts was deliberately indifferent to Decedent's medical needs. While a reasonable trier of fact may find that his behavior was objectively unreasonable, his testimony and conduct reflect that he subjectively and genuinely believed that Decedent did not require additional and immediate medical care. The evidence simply does not suggest that Deputy Tibbetts subjectively “recognize[d] [an] unreasonable risk and actually intend[ed] to expose the plaintiff to such risks without regard to the consequences to the plaintiff.” Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011). Accordingly, the Court GRANTS the DMSJ as to Plaintiff Washington's claim for intentional interference with the familial relationship. Claim Nine in the Washington TAC is DISMISSED WITH PREJUDICE.

VI. CONCLUSION

For the reasons described above, the Court GRANTS-IN-PART and DENIES-IN-PART the MFS and AWARDS Williams Plaintiffs $76,450.00 in attorneys' fees. Furthermore, the Court GRANTS-IN-PART and DENIES-IN-PART the PMSJ and DMSJ:

IT IS SO ORDERED.

Plaintiff Larisa Washington (“Plaintiff Washington”) brings her claims individually and as successor-in-interest on behalf of the estate of Roderick D. Williams, Jr. (“Mr. Williams” or “Decedent”). She alleges her claims in a separate complaint as the Williams Plaintiffs. (“Washington TAC,” Dkt. No. 84.) Plaintiff Washington filed a notice of joinder in the PMSJ on April 20, 2020. (Dkt. No. 180.)

Kohl's Illinois, Inc. was dismissed from this matter on June 3, 2019. (Dkt. No. 17.)

In addition to Kohl's and County Defendants, the Williams SAC names Erick Ventura-Iraheta (“Ventura”) and John Blakemen (collectively, “Security Defendants”) as Defendants. (See TAC.) The Court refers collectively to Kohl's, County Defendants, and Security Defendants as “Defendants” throughout this Order.

Williams Plaintiffs reference the retention of a forensic expert throughout the MFS, but do not submit a declaration or report from the forensic expert opining on the significance of the visible reference number, “aerial” angles of the photos, or the apparent magnification of the photos.

Williams Plaintiffs also cite to the findings of their forensic expert opining that the surveillance video produced by Kohl's contained “a slight but material difference between the video produced by Kohl's and the video produced by County [D]efendants.” (MFS at 26.) Williams Plaintiffs do not explain what these differences were, why they were material, and whether Kohl's or the County were responsible for the differences.

The Court notes that the extraordinary sanction of default or striking the Kohl's Williams Answer is unwarranted where, like here, the circumstances only establish Kohl's negligence in destroying relevant evidence. Compass Bank v. Morris Cerullo World Evangelism, 104 F. Supp. 3d 1040, 1053 (S.D. Cal. 2015) (“Dismissal and default are appropriate only when circumstances evidence willful disobedience of court orders or bad faith conduct.”). As a result, Williams Plaintiffs' request that the Court strike the Kohl's Williams Answer and impose liability for their litigation conduct is DENIED.

Kohl's is further on notice that future misconduct or failure to abide by the Federal Rules or this Court's rules will result in the swift imposition of sanctions. If Williams Plaintiffs uncover new evidence of the existence of the allegedly destroyed surveillance footage, the Court will revisit the imposition of additional sanctions, up to and including the imposition of liability and striking both Kohl's answers.

All parties make evidentiary objections on the bases of relevancy, misstatements of evidence, speculation, and other redundant grounds. “[O]bjections to evidence on the ground that it is irrelevant, speculative, and/or argumentative, or that it constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself” and are thus redundant and need not be considered. Burch v. Regents of Univ. of California, 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Factual disputes that are irrelevant or unnecessary will not be counted.”). The Court therefore OVERRULES all such objections by the parties.

Both parties request judicial notice of a number of items of evidence unnecessary to decide the Motions. Because the Court need not rely on the items to resolve the Motions, all requests for judicial notice are DENIED AS MOOT. Moreover, Williams Plaintiffs move the Court to strike portions of Defendants' evidence. (Dkt. Nos. 164-33, 192-4, 192-9.) Even assuming a motion to strike under Rule 12(f) is the proper vehicle to object to improper evidence, the Court need not rely on the underlying evidence in order to resolve the Motions. Accordingly, the motions to strike are DENIED AS MOOT.

Williams Plaintiffs object on hearsay grounds to a declaration introduced by County Defendants from Deputy Tibbetts stating that dispatch told him that Mr. Williams may be carrying a knife. (PMSJ Reply Objections at 74.) To the extent the declaration is relied on to prove the truth of the matter asserted, Williams Plaintiffs are correct and the objection is SUSTAINED. See Fed. R. Evid. 801(c). However, the statement is admissible to establish Deputy Tibbetts' belief and state of mind, if relevant. Id.

County Defendants cite Deputy Tibbetts' deposition and claim that he “was not sure if [the bruises] were, in fact, bruises or dirt as [Mr. Williams] was very dirty from rolling around on the ground.” (County DSUF ¶ 38.) But Deputy Tibbetts clearly testified that Mr. Williams had both severe bruising and dirt from the altercation on his body. (Exhibit 7 – Tibbetts Depo. at 184:23-185:10, 232:11-16.) The testimony cited by County Defendants only suggests that Deputy Tibbetts could not always distinguish between Mr. Williams's bruises and the dirt — not that he lacked any bruising. (Id. at 232:11-16.)

Kohl's and Security Defendants object to several of Williams Plaintiffs' depositions on grounds of lack of authentication. Although the Ninth Circuit has required documents to be properly authenticated on a motion for summary judgment, “[w]hether the authentication requirement should be applied to bar evidence when its authenticity is not actually disputed is... questionable.” Burch v. Regents of Univ. of California, 433 F. Supp. 2d 1110, 1120 (E.D. Cal. 2006). Significantly, the Ninth Circuit has held that a district court's consideration of unauthenticated evidence in conjunction with a motion for summary judgment is harmless error when a competent witness with personal knowledge could have authenticated the document. Hal Roach Studios, Inc. v. Feiner & Co., 896 F.2d 1542, 1552 (9th Cir.1990). Because neither Kohl's nor Security Defendants actually dispute the authenticity of the deposition transcripts and because the deponent or any other party present at the deposition will be able to authenticate it at trial, their objections are OVERRULED.

Security Defendants object to several of Mr. Williams' statements to first responders as hearsay. Some of the statements — such as Decedent asking for water — are not hearsay because they are not submitted for the truth of the matter asserted. (Blakeman Objections ¶¶ 34, 37). Other objected to statements — like Decedent stating that he could not breathe (Blakeman Objections ¶ 35) or that his chest hurt (id. ¶ 36) — are admissible as “statement[s] of the declarant's.... physical condition (such as mental feeling, pain, or bodily health)[.]” Fed. R. Evid. 803(3). All of Security Defendants' hearsay objections to Mr. Williams' statements are OVERRULED.

Both Williams Plaintiffs and Security Defendants object to several first responders' testimony of the scene of the incident and observations of Mr. Williams as hearsay. (See, e.g., Blakeman Objections ¶¶ 21-23; Pl. Objections ¶¶ 24, 37-38.) However, “at summary judgment a district court may consider hearsay evidence submitted in an inadmissible form, so long as the underlying evidence could be provided in an admissible form at trial, such as by live testimony.” JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016). Because neither party has established that any of the first responders would be unavailable to testify at trial, any of the aforementioned objections are OVERRULED.

Security Defendants object to the 911 audio recording of Ventura and Ventura's comments to Garcia as inadmissible hearsay. (Blakeman Objections ¶¶ 6-7, 8, 11-16.) Security Defendants are mistaken. Statements offered against an opposing party that were made by the party in an individual or representative capacity are excluded from the Federal Rules of Evidence's (“FRE”) definition of hearsay. See Fed. R. Evid. 801(d)(2)(A) (specifying that an opposing party's statement made by the party and offered against the party is not hearsay).

An “okay to book” is a colloquial term for permission or clearance from a doctor to discharge a patient suspected of a crime and transfer them from the hospital to jail. (Exhibit B – Tibbetts Depo. at 58:17-23.) Deputy Tibbetts testified that any suspect involved in an altercation or accident requires an “okay to book” before they can be transferred to jail. (Id. at 59:16-60:1.)

While the parties debate whether Ventura and Blakeman's adverse inferences should be imputed to one another, the Court need not decide whether their adverse inferences are imputed to resolve the PMSJ.

The Court further notes how logically untenable Security Defendants' position is: on the one hand, they contend that Williams Plaintiffs have failed to introduce any corroborating evidence of their claims to warrant an adverse inference. On the other, they argue that ample evidence establishes Williams Plaintiffs' claims in the absence of an adverse inference. The Court is unconvinced by Security Defendants' contradictory arguments.

While Security Defendants do not raise the issue in their oppositions, the Court also notes that drawing the adverse inference poses no issue under FRE 403. See Richards, 541 F.3d 903, 912 (9th Cir. 2008) (explaining that when drawing an adverse inference the “district court must determine whether the value of presenting [the underlying] evidence [is] substantially outweighed by the danger of unfair prejudice to the party asserting the privilege”). There is no evident danger of unfair prejudice from the potential answers to the deposition questions cited above, and what danger of unfair prejudice does exist is easily outweighed by the significant probative value of Security Defendants' would-be testimony.

Williams Plaintiffs do not bring their negligence claim as successors-in-interest, and instead seek personal damages for the harm to them resulting from Decedent's death. (Williams SAC ¶¶ 135–136.) Thus, the only relevant causational inquiry is whether Security Defendants caused Decedent's death, as opposed to the other physical injuries he sustained.

Importantly, the Court notes that an affirmative defense like superseding causation “is generally waived where... it was not asserted in the answer to a complaint.” UL LLC v. Space Chariot Inc., 250 F. Supp. 3d 596, 612 (C.D. Cal. 2017) (citing In re Cellular 101, Inc., 539 F.3d 1150, 1155 (9th Cir. 2008)) (internal quotations omitted). Nonetheless, despite failing to assert any affirmative defenses in their answers, Security Defendants “may raise an affirmative defense for the first time in a motion for summary judgment [ ] if the delay does not prejudice the plaintiff.” Magana v. Com. of the N. Mariana Islands, 107 F.3d 1436, 1446 (9th Cir. 1997), as amended (May 1, 1997). Because the Court finds a possible intervening cause based only on evidence submitted by Williams Plaintiffs against County Defendants, Williams Plaintiffs have not been unfairly prejudiced by Security Defendants' delayed contention. The Court therefore considers Security Defendants' superseding causation argument solely for the purpose of resolving the PMSJ.

While the Court agrees with Security Defendants that causation must be determined by the trier of fact, it disagrees that it will be Williams Plaintiffs' burden to establish which of Ventura or Blakeman caused which of Decedent's injuries. As Williams Plaintiffs point out, when multiple negligent actors combine to cause an indivisible harm, the burden shifts to Defendants to establish that they are not responsible for causing the established harm. See Summers v. Tice, 33 Cal. 2d 80, 86 (1948) (seminal case holding the same).

Security Defendants fleetingly contend that summary judgment on Claim Five is not appropriate because Williams Plaintiffs have not “offered evidence to allow the Court to determine Mr. Williams' comparative negligence[.]” (Ventura Opposition at 20.) That argument is unavailing. It is Security Defendants' burden, not Williams Plaintiffs', to submit evidence that Decedent was comparatively negligent. Flight Int'l, Inc. v. Allied Signal, Inc., 59 F.3d 175 (9th Cir. 1995) (“Comparative negligence and superseding causation are[ ] affirmative defenses on which the defendant has the burden of proof; they form no part of the plaintiff's prima facie case.”). Moreover, under California's “pure” comparative negligence regime, a plaintiff's comparative negligence only reduces the amount of damages recoverable — it does not act as an absolute bar to recovery. Id. at 175 n.1.

Blakeman appears to contest that Tammy Williams has standing for her wrongful death claim. (Blakeman Opposition at 9.) Blakeman is incorrect. California Code of Civil Procedure § 377.60(b) confers standing on a decedent's parents to bring a wrongful death claim “if they were dependent on the decedent.” Cal. Civ. Proc. § 377.60(b). Here, Tammy Williams testified in her deposition that Decedent helped her pay substantial portions of her bills, her mortgage, her groceries, and her utilities. (See “Exhibit 32,” Dkt. No. 180-29 – T. Williams Depo. at 287:16-25, 289:10-13, 291:23-292:7, 292:18-25.) The deposition testimony thus establishes that Tammy Williams was dependent on Decedent and has standing to bring her wrongful death claim.

Kohl's argues that Williams Plaintiffs cannot seek summary judgment on their Bane Act claim because they did not allege facts implicating Security Defendants or Kohl's for a Bane Act violation in the Williams SAC. (Kohl's Opposition at 27.) It is true that “parties generally cannot assert unpled theories for the first time at the summary judgment stage.” Corona v. Time Warner Cable, Inc., 2014 WL 11456535, at *3 (C.D. Cal. Oct. 16, 2014). However, “Plaintiff[s] can avoid this bar by arguing that Defendants had sufficient notice of the theories prior to the close of discovery, either through the pleadings or otherwise[.]” Id. Williams Plaintiffs' Bane Act claim was alleged against “[a]ll Defendants” in the Williams SAC. (Williams SAC at 39.) Moreover, Plaintiff Washington's TAC makes allegations against all three defendants that should have put Kohl's and Security Defendants on notice that they could be liable for violations of the Bane Act. (Washington TAC at 45.) The Court thus finds that Kohl's and Security Defendants have had sufficient notice of Williams Plaintiffs' Bane Act claim, which is premised on identical facts as Plaintiff Washington's claim.

LiButti also appeared to suggest that “the overarching concern” in cases involving an adverse interest and invocation of the Fifth Amendment “is fundamentally whether the adverse inference is trustworthy under all of the circumstances and will advance the search for the truth.” LiButti, 107 F.3d at 124. It is unclear if such a finding is needed to warrant imputation of an adverse inference, but in any event, the Court easily concludes that the adverse inferences at issue are “trustworthy under all of the circumstances and will advance the search for the truth.” Id. As the Court noted above, sufficient independent evidence corroborates the adverse inferences and ensure their trustworthiness. Additionally, drawing the inferences advances the search for truth because of the lack of similar direct evidence of the altercation. Therefore, drawing an adverse inference against Kohl's satisfies LiButti's “overarching concern” for trustworthiness and the pursuit of truth.

County Defendants contend that Williams Plaintiffs lack standing to bring their section 1983 claims individually and must instead allege them as successors-in-interest. (DMSJ at 18.) But as the Court explained in a previous order, Williams Plaintiffs' section 1983 claims are construable as successor-in-interest claims because the allegations in the Williams SAC pertain to violations of Decedent's personal rights. (Williams SAC ¶¶ 74, 77.) To whatever extent Williams Plaintiffs do bring section 1983 claims in their individual capacity, the DMSJ is GRANTED and the claims are DISMISSED WITH PREJUDICE. Herd v. County of San Bernardino, 311 F. Supp. 3d 1157, 1165 (C.D. Cal. April 27, 2018) (“[O]nly survivor actions may be brought pursuant to 42 U.S.C. § 1983.”).

Williams Plaintiffs argue at length that Deputy Mannie's signing of the AMA had “legally binding and preclusive impact” on his liability for Decedent's death. (DMSJ Opposition at 8.) Williams Plaintiffs fail to cite even one case for the proposition that liability for a constitutional tort can be transferred by contract. While the Court agrees that knowledge of transporting Decedent against medical advice is one fact that goes towards the reasonableness of rendered medical care, the Court declines to find that signing the AMA alone conferred constitutional liability to Deputy Mannie for Decedent's subsequent harms. This is especially true because Deputy Mannie appeared to sign the AMA on behalf of Decedent in good faith: Decedent had already verbally consented to transport by squad car and was incapable of signing the AMA because he was handcuffed. (Exhibit D - Hauer Depo. at 49:10-11, 107:12-24; Exhibit 11 – Hauer Depo. at 108:18-109:1.) Even if Williams Plaintiffs' theory of liability was valid, basic principles of California agency law dictate that Deputy Mannie could not have been personally liable for Decedent's death. See Cal. Civ. Code § 2343 (conferring liability to third parties only when an agent signs a written contract without good faith belief that they have authority to do so). Moreover, in the absence of any other evidence that Deputy Mannie was responsible for delaying Decedent's transportation to the hospital or ignoring his renewed pleas for help, evidence that he signed an AMA fails to equate to more than a “mere... scintilla of evidence” that he provided unreasonable medical care. In re Oracle Corp. Sec. Litig., 627 F.3d at 387.

County Defendants also appear to argue that Decedent's right was not clearly established because there is no case that has established a denial of medical care when an officer initially summons medical care, but later delays or denies it when the detainee's condition deteriorates. The Court disagrees. “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.... [T]he salient question that the Court... [should] ask[ ] is whether the state of the law... gave [Deputy Tibbetts] fair warning that [his] alleged treatment of [Decedent] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). It has been well-established since Tatum that detainees have a Fourth Amendment right to objectively reasonable post-arrest medical care until the conclusion of a seizure. See Tatum, 441 F.3d at 1099; see also Estate of Cornejo ex rel. Solis v. City of Los Angeles, 618 F. App'x 917, 920 (9th Cir. 2015) (“In Tatum v. City & County of San Francisco, we found that suspects have a Fourth Amendment right to objectively reasonable post-arrest [medical] care until the end of the seizure.”). Given the broad obligation imposed on officers by Tatum, Deputy Tibbetts had “fair warning” that his constitutional duty to provide reasonable medical care continued so long as Decedent was in his custody. Hope, 536 U.S. at 741. Any reasonable officer in Deputy Tibbetts' position would have known that by continuing Decedent's seizure, they were constitutionally compelled to render care to Decedent if the need for medical care arose again — regardless of whether medical care had been previously summoned.

Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978).

Indeed, Williams Plaintiffs' failure to discipline theory appears to be duplicative of their ratification theory. In any event, as explained below, both theories warrant dismissal.

Williams Plaintiffs also submit an excerpt of the deposition testimony of Sergeant Richard Fransik — the County's person most knowledgeable on its medical care policies — in which he admits that “[i]n some instances,” County Deputies Mirandize suspects and interrogate them before transporting them to the hospital. (“Exhibit 15,” Dkt. No. 164-15 – Fransik Depo. at 68:19-22.) Once again, however, Williams Plaintiffs fail to make any showing that the officers mentioned by Fransik violated an individual's Fourth Amendment rights by unreasonably delaying their transportation to the hospital or depriving them of necessary medical treatment to interrogate them. Put simply, Williams Plaintiffs cannot establish an unconstitutional custom without evidence of unconstitutional conduct.