articulating the same standard in the context of a directed verdict
How later courts described this case
- articulating the same standard in the context of a directed verdict
- ‘[T]he doctrine of qualified immunity does not shield defendants from state law claims.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:19-cv-05370-CAS(JCx) Date January 6, 2025
Title Paulette Smith v. City of Los Angeles et al
Present: The Honorable CHRISTINA A. SNYDER
Catherine Jeang Deborah Parker N/A
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Bran Dunn Kevin Gilbert
Proceedings: ZOOM HEARING RE: MOTION FOR JUDGMENT AS A
MATTER OF LAW (Dkt. 165, filed on October 25, 2024)
I. INTRODUCTION AND BACKGROUND
On June 16, 2019, plaintiff Paulette Smith (“plaintiff or “Smuth”), individually
and as successor in interest to decedent Albert Dorsey (“Dorsey” or “decedent’), filed a
complaint against defendants Officer Edward Agdeppa (“defendant” or “Agdeppa”) and
the City of Los Angeles (“City”). Dkt. 1 (“Compl.”). In her complaint, Smith alleged
four claims for relief: (1) violations of 42 U.S.C. § 1983 (“Section 1983”) against Officer
Agdeppa based on alleged unreasonable use of deadly force; (2) violations of Section
1983 based on an unconstitutional policy, practice or custom against the City; (3)
wrongful death against Agdeppa and the City based on alleged battery, pursuant to Cal.
Gov't Code §§ 815.2(a), 820(a) and Cal. Civ. Code § 43; and (4) wrongful death against
Agdeppa and the City based on alleged negligence, pursuant to Cal. Gov't Code §§
815.2(a), 820(a). See Compl.
On May 6, 2020, the parties stipulated to dismiss the City from the case, leaving
claims one, three and four as alleged against Agdeppa. See Dkts. 30, 31.
On June 30, 2020, Agdeppa, now the sole defendant, filed a motion for summary
judgment, or, in the alternative, partial summary judgment on each of plaintiff's claims.
Dkt. 37. On November 6, 2020, the Court denied the motion. Dkt. 59 (“MSJ Order’).
Specifically, the Court denied summary judgment on plaintiff's Section 1983 claim
because (1) “there is a genuine dispute over whether plaintiff posed an immediate threat
to the officers sufficient to warrant the use of deadly force”; and (2) “Agdeppa is not
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:19-cv-05370-CAS(JCx) Date January 6, 2025
Title "Paulette Smith v. City of Los Angeles et al _
entitled to qualified immunity as a matter of law” because a jury could find that
Agdeppa's use of deadly force violated clearly established law. Id. 16, 18. The Court
also denied summary judgment as to plaintiff's claims for wrongful death based on
battery and negligence, respectively, because the Court had “already concluded that there
is an issue of disputed fact regarding [defendant's] use of deadly force.” Id. at 19.
On November 25, 2020, Agdeppa appealed the Court's denial of his motion for
summary judgment on the basis of qualified immunity to the Ninth Circuit. Dkt. 62.
On December 30, 2022, the Ninth Circuit panel, consisting of Judge Morgan
Christen, Judge Daniel A. Bress, and District Judge Gary Feinerman (sitting by
designation), issued an opinion affirming the Court's denial of Agdeppa's motion, with
Judge Bress dissenting. Dkt. 75.
On May 4, 2023, the Ninth Circuit issued an order notifying the parties that Judge
Feinerman had resigned from judicial service and Judge Consuelo M. Callahan had been
drawn as a replacement judge. Dkt. 78. The new panel then voted sua sponte to grant
panel rehearing, with “Judge Callahan and Judge Bress vot[ing] in favor of rehearing, and
Judge Christen vot|ing] against rehearing.” Id. The original opinion and dissent were
accordingly withdrawn. Id.
On August 30, 2023, the new Ninth Circuit panel issued an opinion “revers|ing]
the district court's decision denying Agdeppa qualified immunity and remand|ing] for
proceedings consistent with [its] opinion.” Dkt. 80 (“Opinion”). On March 11, 2024, the
Ninth Circuit issued its mandate. Dkt. 82. Defendant was thus entitled to summary
judgment as to plaintiff's Section 1983 claim based on qualified immunity. Dkt. 89.
Plaintiff's remaining claims against Agdeppa are state law claims for (1) wrongful death
based on battery; and (2) wrongful death based on negligence. See Johnson v. Bay Area
Rapid Transit Dist., 724 F.3d 1159, 1171 (9th Cir. 2013) (‘[T]he doctrine of qualified
immunity does not shield defendants from state law claims.”).
On April 26, 2024, defendant filed a motion for reconsideration of the Court’s
order on defendant’s motion for summary judgment. Dkt. 85. On June 24, 2024, the
Court denied defendant’s motion for reconsideration. Dkt. 89.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:19-cv-05370-CAS(JCx) Date January 6, 2025
Title Paulette Smith v. City of Los Angeles et al
On August 9, 2024, defendant filed six motions in limine. Dkts. 91-96. On August
12, 2024, plaintiff filed three motions in Jimine. Dkts. 98-100. On September 9, 2024,
the Court issued an order on the nine motions in limine. Dkt. 120.
The Court held a jury trial from September 17, 2024, through September 25, 2024.
On September 25, 2024, after extensive deliberations, the jury reported that it was unable
to reach a verdict, and after consultation with counsel, the Court declared a mistrial. Dkt.
162.
On October 25, 2024, Agdeppa filed a motion for judgment as a matter of law.
Dkt. 165 (“Mot.”). On November 25, 2024, Smith filed her opposition. Dkt. 168
(“Opp.”). On December 9, 2024, Agdeppa filed his reply. Dkt. 170 (“Reply”).
On January 6, 2025, the Court held a hearing. Having carefully reviewed the trial
record and considered the parties’ arguments and submissions, flagging the relevant
disputed facts in Section III below, the Court finds and concludes as follows.
II. LEGAL STANDARD
Judgment as a matter of law is appropriate when “a party has been fully heard on
an issue during a jury trial and the court finds that a reasonable jury would not have a
legally sufficient evidentiary basis to find for the party on that issue... .” Fed. R. Civ. P.
50(a)(1); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 139, 149 (2000).
If the court does not grant a motion for judgment as a matter of law pursuant to Rule
50(a), a party may file a renewed motion for judgment as a matter of law after the trial.
Fed. R. Civ. P. 50(b). It is well-settled that the standard for judgment as a matter of law
is the same as the standard for summary judgment. Reeves, 530 U.S. at 150 (citing
Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 250-52 (1986)).
Summary judgment is appropriate where “there 1s no genuine issue as to any
material fact” and “the moving party is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c). The moving party has the initial burden of identifying relevant portions
of the record that demonstrate the absence of a fact or facts necessary for one or more
essential elements of each cause of action upon which the moving party seeks judgment.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:19-cv-05370-CAS(JCx) Date January 6, 2025
Title Paulette Smith v. City of Los Angeles et al
If the moving party has sustained its burden, the nonmoving party must then
identify specific facts, drawn from materials on file, that demonstrate that there is a
dispute as to material facts on the elements that the moving party has contested. See Fed.
R. Civ. P. 56(c). The nonmoving party must not simply rely on the pleadings and must
do more than make “conclusory allegations [in] an affidavit.” Lujan v. Nat’] Wildlife
Fed’n, 497 U.S. 871, 888 (1990): see also Celotex Corp., 477 U.S. at 324. Summary
judgment must be granted for the moving party if the nonmoving party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Id. at 322; see also
Abromson v. Am. Pac. Corp., 114 F.3d 898, 902 (9" Cir. 1997).
In light of the facts presented by the nonmoving party, along with any undisputed
facts, the Court must decide whether the moving party is entitled to judgment as a matter
of law. See T.W. Elec. Serv.. Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 &
n.3 (9* Cir. 1987). When deciding a motion for summary judgment, “the inferences to be
drawn from the underlying facts . . . must be viewed in the light most favorable to the
party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (citation omitted); Valley Nat] Bank of Anz. v. A.E. Rouse & Co., 121
F.3d 1332, 1335 (9 Cir. 1997); see also Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir.
1994) (articulating the same standard in the context of a directed verdict). Summary
judgment for the moving party is proper when a rational trier of fact would not be able to
find for the nonmoving party on the claims at issue. See Matsushita, 475 U.S. at 587.
In a motion for summary judgment, a court must review the record “taken as a
whole.” Matsushita, 475 U.S. at 587. Similarly, in entertaining a motion for judgment as
a matter of law, the court should review all of the evidence in the record. Reeves, 530
U.S. at 150. In so doing, however, the court must draw all reasonable inferences 1n favor
of the nonmoving party, and it may not make credibility determinations or weigh the
evidence. Id. (citations omitted): see also Berry, 39 F.3d at 1057. “Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge.” Anderson, 447 U.S. at 255.
Thus, although the court should review the record as a whole, it must disregard all
evidence favorable to the moving party that the jury is not required to believe. Reeves,
530 US. at 151 (citing 9A C. Wright & A. Miller, Federal Practice and Procedure §
2529 at 299 (2d ed. 1995)). In other words, the court should give credence to the
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:19-cv-05370-CAS(JCx) Date January 6, 2025
Title Paulette Smith v. City of Los Angeles et al
evidence favoring the nonmovant as well as that “evidence supporting the moving party
that is uncontradicted and unimpeached, at least to the extent that that evidence comes
from disinterested witnesses.” Reeves, 530 U.S. at 151 (citing Wnght & Miller, supra, at
300).
Iii. DISCUSSION
Agdeppa notes that the claims for both battery and negligence are premised on the
use of unreasonable use of force, and thus discusses the two claims jointly. Mot. at 8-9.
Agdeppa argues that the evidence presented at trial “absolutely refutes” the allegation
that the use of force was unreasonable and confirms “that the use of force was objectively
reasonable and undertaken only in response to Dorsey’s imminent threat.” Id. at 9.
According to Agdeppa, Dorsey’s “clear resistance” 1n response to directives from
Agdeppa and Officer Perla Rodriguez (“Rodriguez”)! (collectively “the Officers”) and
their attempts to arrest him “unquestionably posed an imminent threat to Rodriguez’s
life,” thus there can be no dispute that Agdeppa’s actions were objectively reasonable.
Id.
Agdeppa argues that he is entitled to judgment as a matter of law because Dorsey
“posed an imminent threat to both Officers and ... lethal force was both reasonable and
necessary to protect against Dorsey’s violent and uncontrolled attack.” Id. Agdeppa
points to Judicial Council of California Civil Jury Instruction No. (“CACT’) 441, which
was given at trial as Instruction 27 and CACI 1305, given at trial as Instruction 26, for the
proposition that “the critical issue is whether Agdeppa’s ‘use of deadly force was not
necessary to defend human life,’” and whether the use of force was reasonable. Id.
Agdeppa argues that CACI 441 deems an officer’s use of force necessary only if, given
the totality of the circumstances, a reasonable officer in the same situation would have
believed that “‘deadly force was necessary to defend against an imminent threat of death
or serious bodily injury.”” Id. (quoting CACI 441). Agdeppa contends that CACI 1305
reflects the same inquiry, looking at ““the amount of force that would have appeared
reasonable to an officer in defendant’s position under the same or similar
circumstances.’” Id. (quoting CACI 1305). Agdeppa argues that California courts have
confirmed that the instant battery and negligence claims rely on the same reasonableness
' Officer Rodriguez has since changed her name to Perla Aceves. The Court uses
Rodriguez, as the parties do, for the sake of clarity.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:19-cv-05370-CAS(JCx) Date January 6, 2025
Title Paulette Smith v. City of Los Angeles et al
analysis. Id. Penal Code section 196, defining justified homicide by a peace officer,
Agdeppa contends, confirms that “aside from the tactical consideration under the
negligence claim ... there is no difference in the evaluation of [plaintiff's battery or
negligence claims.” Id. at 10.
Agdeppa argues that the battery and negligence claims pursuant to California law
mirror the federal analysis of excessive force established in Graham v. Connor, 490 U.S.
386 (1989), with the exception that California law permits pre-shooting tactics to be
considered as a part of the totality of the circumstances for the two remaining claims. Id.
at 11. Based on Graham, Agdeppa argues “the critical issues for determination for both
claims are whether Dorsey was actively resisting arrest, whether Dorsey posed an
imminent threat, and ultimately whether Agdeppa’s actions were objectively reasonable.”
Id.
First, Agdeppa argues that there is “no question whatsoever that Dorsey resisted
arrest,” detailing the interaction between Dorsey and the Officers prior to the shooting.
Id. at 11-12. Agdeppa contends that “Dorsey never once complied with any of the
Officers’ lawful directives,” that he resisted when the Officers attempted to handcuff him,
that he continued resisting when told that if he did not comply they would use their
tasers, and that he “increase[ed] his attack by delivering further punches and strikes” after
being tased. Id. Agdeppa alleges that Dorsey knocked Agdeppa into the wall, dazing
him. Id, at 12. While Agdeppa was dazed, he claims, Dorsey began hitting Rodriguez,
knocking her to the ground and causing her to lose her taser, which he then retrieved and
“began tasing her while simultaneously punching and beating her in the head ....” Id.
(citing dkt. 166 (“Transcript Day 2”) at 39:10-15). Agdeppa claims that he regained
awareness, saw this scene, and “|b]elieving that the next punch from Dorsey would kill
[Rodriguez], Agdeppa yelled something and fired five shots at Dorsey within roughly 1.5
seconds to stop his brutal attack.” Id. Agdeppa argues that plaintiff presented no
evidence to refute the facts at issue and that plaintiff's attempts to cast doubt on the
Officers’ credibility was based on “mere speculation” that Dorsey was not presenting an
imminent threat. Id.
Second, according to Agdeppa, plaintiff offered no evidence to refute the notion
that Dorsey posed an imminent threat to officers. Id. The fact that plaintiff tried to cast
doubt on the injuries the Officers suffered, Agdeppa argues is “irrelevant to whether
Dorsey posed an imminent threat” because neither California nor federal law requires
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:19-cv-05370-CAS(JCx) Date January 6, 2025
Title Paulette Smith v. City of Los Angeles et al
injury before lethal force can be used in the defense of life. Id. at 13. Agdeppa argues
that nothing in CACI 441 requires proof of a certain quantum of injury to justify the use
of deadly force and that California law only requires imminent threat of death or serious
bodily injury. This, Agdeppa argues, is a question of whether, based on the totality of the
circumstances, ““‘a reasonable officer in the same situation would believe that a person
has the present ability, opportunity, and apparent intent to immediately cause death or
serious bodily injury to the peace officer or another person.’” Id. (quoting Penal Code §
835a(e)(2)). Agdeppa argues that he believed that Dorsey had Rodriguez cornered and
that he “would kill her with his next blow,” which qualifies as an imminent threat. Id. at
14. Agdeppa contends that plaintiff presented no evidence from any other reasonable
officer facing the same situation to refute the Officers’ testimony, which 1s required for
plaintiff's clarms. Id. Third, Agdeppa argues that his actions were objectively reasonable
given Dorsey’s resistance and the fact that he posed an imminent threat to Rodriguez’s
life. Id. Agdeppa contends that plaintiff offered no evidence to demonstrate what a
reasonable officer would have done differently. Id. at 15. Here, Agdeppa argues, he had
been dazed by Dorsey’s hit and “had little time to decide what to do” when he regained
awareness and saw his partner being attacked by Dorsey. Id. It was objectively
reasonable, he argues, to respond as he did in these circumstances: “yelling something to
the effect of ‘stop’ before firing 5 shots within 1.5 seconds to confront the threat that
Dorsey posed.” Id.
Next, Agdeppa argues that pre-shooting tactical conduct can be considered as a
part of the totality of the circumstances pursuant to California law, but cannot give rise to
an independent claim for negligence. Id. Even assuming that the Officers were negligent
in their pre-shooting conduct, Agdeppa argues, they would still be entitled to
discretionary immunity for their tactical decisions and thus “any alleged tactical
negligence by the officers is a non-issue.” Id. Agdeppa argues that pursuant to Hayes v.
County of San Diego, plaintiff must prove a causal connection between the pre-shooting
tactical conduct and the ultimate harm. Id. at 17 (citing 57 Cal. 4th 622 (2013)).
Agdeppa contends that plaintiff presented no such evidence and did not show what a
reasonable officer in his position would have done differently. Id. Agdeppa argues that
even if the pre-shooting decisions could be independently negligent, “police officers are
vested with discretion with respect to their decision to detain an individual they believe
may have violated the law in their presence.” Id. at 17-18. An officer’s tactical
decisions, Agdeppa contends, are also entitled to discretionary immunity pursuant to
Government Code section 820.2. Id. at 18. Agdeppa argues that the decisions the
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:19-cv-05370-CAS(JCx) Date January 6, 2025
Title Paulette Smith v. City of Los Angeles et al
Officers made regarding how to approach Dorsey and whether to detain him for certain
penal code violations are entirely discretionary and entitled to immunity. Id. at 18-19.
In opposition, plaintiff argues that Agdeppa, in his motion, ignores the evidence
presented by plaintiff, which must be viewed in the light most favorable to plaintiff as the
non-movant on a motion for judgment as a matter of law. Opp. at 3. Plaintiff contends
that it is undisputed that Agdeppa fired in defense of Rodriguez. Id. Agdeppa testified,
plaintiff argues, that he had been trained that “deadly force may only be used if he was
confronted with a situation involving an imminent threat of death or serious bodily
injury.” Id. According to plaintiff, Agdeppa acknowledged the text of the Los Angeles
Police Department (“LAPD”) training bulletin which detailed the kind of serious bodily
injury that would warrant the use of lethal force, listing “‘loss of consciousness,
concussion, bone fracture, protracted loss or impairment of function of any bodily
member or organ, a wound requiring extensive suturing, and serious disfigurement.’” Id.
at 3-4. Plaintiff argues that Exhibit 116-16, which she presented at trial, is a photo of
Officer Rodriguez “depict{ing] no discernable injuries to any part of Officer Rodriguez’s
face,” and that Rodriguez confirmed that she suffered no serious bodily injuries and that
she did not miss any work. Id. at 4. Plaintiff contends that Agdeppa confirmed at trial
that Rodriguez suffered no serious bodily myjuries and that he also did not suffer any
serious bodily injury. Id. at 4-5. The fact that neither of the Officers suffered any serious
injuries, plaintiff contends, is sufficient to demonstrate a genuine dispute of fact for the
purposes of a Rule 50 motion “as the officers’ reports of being viciously pummeled by
Dorsey, a 250 pound man, are flatly contradicted by the fact that neither officer suffered
any injuries consistent with any kind of a severe beating.” Id. at 5.
Plaintiff argues that Agdeppa’s claim that Dorsey struck Rodriguez with a taser is
contradicted by Agdeppa’s trial testimony, and thus this claim cannot support judgment
as a matter of law in Agdeppa’s favor. Id. at 5-6. Plaintiff also argues that the Officer’s
body worn camera footage creates a dispute of material fact because it shows pre-
shooting tactical negligence on behalf of the Officers consisting of “impatient demeanor,
impatient and harsh tonality, aggressive use of profanity,” and escalation of the situation
without call for backup. Id. at 6. Plaintiff argues that this behavior was
“a substantial departure from tactical training favoring deescalation.” Id.
Finally, plaintiff argues that the fact that Agdeppa’s motion for summary judgment
and motion for reconsideration were denied demonstrates that the instant motion should
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:19-cv-05370-CAS(JCx) Date January 6, 2025
Title Paulette Smith v. City of Los Angeles et al
also be denied because there are issues of fact properly resolved by a jury in this case. Id.
at 6-7.
In reply, Agdeppa first argues that plaintiff concedes that “the use of lethal force
on Dorsey was ‘in defense of the life of Agdeppa’s partner.’” Reply at 1 (quoting Opp. at
3). Agdeppa argues that plaintiff's arguments about severity of injury and about second
guessing discretionary decisions “that had no causal relationship to the ultimate use of
force” are irrelevant distractions. Id. Agdeppa contends that in her opposition, plaintiff
never argues that Agdeppa’s use of force was unreasonable or excessive. Id. Agdeppa
argues that the Officers were not required to wait until they had suffered serious injury
because the threat of such injury is all that is required by law to permit the use of force.
Id. at 2. Agdeppa argues that because plaintiff did not respond to whether Dorsey
presented an imminent threat and whether the Officers’ use of force was objectively
reasonable, plaintiff should be considered to have conceded these issues. Id.
Agdeppa reiterates his argument that his use of force was reasonable given the
totality of the circumstances, and contends that pre-shooting conduct needs only to be in
the range of reasonableness, rather than be the most reasonable response. Id. at 3-4.
Agdeppa again argues that the plaintiff is required to “show a causal link between the
allegedly negligent pre-shooting tactics and the ultimate use of force in order to support
the existence of any negligence liability.” Id. at 4. Agdeppa contends that plaintiff's
alternatives to how the Officers handled the situation do not suffice because she has not
offered evidence in the form of expert testimony, legal standards, or caselaw, that the
Officers acted improperly and “contributed to Dorsey’s assault of the Officers.” Id. at 5.
Agdeppa argues that even if there was such a legal standard prohibiting the Officers from
using the verbal directives they used, there is no causal link between Dorsey’s
noncompliance with these directives and his “eventual decision to attack the Officers.”
Id.
Agdeppa argues that plaintiff's arguments conflict with precedent established in
Brown v. Ransweiler, 171 Cal. App. 4th 516, 528 (2009), which deems an officer’s use
of lethal force reasonable if the officer has probable cause to believe there is a significant
threat of death or serious injury to the officer or others. Id. at 6. Here, Agdeppa argues,
it was reasonable for the offers to conclude that Dorsey posed an imminent threat. Id. at
6.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:19-cv-05370-CAS(JCx) Date January 6, 2025
Title Paulette Smith v. City of Los Angeles et al
Agdeppa next argues that he 1s entitled to “several immunities, which prohibit
[plaintiff from arguing that any of the immunized decisions somehow constituted
‘tactical negligence.’” Id. at 7. Agdeppa argues that plaintiff does not dispute that
Government Code section 820.2 immunizes tactical decisions besides the use of
unreasonable force, and that all decisions by the Officers here involved the exercise of
discretion. Id. Agdeppa also argues that the Officers’ tactical decisions are shielded by
Government Code section 821.6 “which immunizes public employees from liability for
an injury caused by the “instituting or prosecuting any judicial or administrative
proceeding ... even if he acts maliciously or without probable cause.’” Id. at 7. Agdeppa
contends that because the undisputed evidence is that the Officers’ actions were
reasonable, Government Code section 820.4 also provides immunity. Id. Agdeppa
argues that these immunities suffice for judgment as a matter of law to be granted, but
that Agdeppa 1s also entitled to immunity pursuant to Government Code section 845.8,
which provides immunity when injury is caused by a person resisting arrest. Id.
Agdeppa also argues that pursuant to Penal Code section 196, homicide by a peace
officer is justified when “‘the homicide results from a peace officer’s use of force that is
in compliance with Penal Code Section 835a,’” which allows use of deadly force to
defend against imminent threat of serious bodily injury. Id. at 7-8. Because there is no
dispute that Dorsey was posing an imminent threat and that Agdeppa acted in an
objectively reasonable manner, Agdeppa argues, all of these immunities are applicable.
Id. at 9.
The Court concludes that judgment as a matter of law 1s not appropriate in this
case. The Court agrees with Agdeppa that both the battery and negligence claims are
predicated on whether the use of force was reasonable, and thus the Court treats the
analysis jointly, as Agdeppa does in his motion. Mot. at 8-9; CACI 1305B; CACI 441.
First, based on the evidence presented at trial, the Court finds that whether Dorsey
posed an imminent threat and whether Agdeppa’s use of force in response to Dorsey was
objectively reasonable is disputed.* In order to state a claim for battery or negligence
? The Court analyzes the imminence of the threat posed by Dorsey and the reasonableness
of force used by the Officers in response together because the question of whether the
force used was reasonable is dependent upon the imminence of the threat the Officers
faced. See CACI 1305B; CACI 441. At oral argument, counsel for Agdeppa suggested
that the Ninth Circuit had made factual findings that were binding on this Court with
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:19-cv-05370-CAS(JCx) Date January 6, 2025
Title Paulette Smith v. City of Los Angeles et al
based on a police officer’s use of deadly force pursuant to California law, one element a
plaintiff must prove is that the “use of deadly force was not necessary to defend human
life.” CACI 1305B: CACI 441. The use of such force 1s necessary “only if a reasonable
officer in the same situation would have believed, based on the totality of the
circumstances known to or perceived by [him] at the time, that deadly force was
necessary.” Id. The touchstone pursuant to California law for both claims is
reasonableness, as California courts have “long recognized that peace officers have a
duty to act reasonably when using deadly force.” Hayes, 57 Cal. 4th at 629.
Plaintiff contends that the assertion that Dorsey posed an imminent threat to the
Officers and that Agdeppa’s use of force was reasonable are contradicted by the lack of
injury to either Officer. Opp. at 3-5. The Court agrees with Agdeppa that the proper
inquiry 1s not whether injury to the Officers occurred, an assessment made with the
benefit of hindsight, but whether the Officers reasonably perceived an imminent threat
from Dorsey and responded to any threat with objectively reasonable force. Hayes, 57
Cal. 4th at 632 (citing Graham, 490 U.S. at 396). However, the Court concludes that the
Officers’ lack of injury creates a dispute of fact as to how the events to which Officers
Agdeppa and Rodriguez testified unfolded. Plaintiff argues that the lack of injury to
either Officer “is sufficient to demonstrate genuine factual disputes for Rule 50 purposes,
as the [O]fficers’ reports of being viciously pummeled by Dorsey, a 250 pound man, are
flatly contradicted by the fact that neither officer suffered any injuries consistent with any
kind of a severe beating.” Opp. at 5.
In the context of a motion for judgment as a matter of law, the Court is prohibited
from making credibility determinations or weighing the evidence. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 150 (2000). Indeed, the Court “must disregard all
evidence favorable to the moving party that the jury is not required to believe” while
crediting evidence favoring the nonmovant and evidence favoring the movant that “is
uncontradicted and unimpeached.” Id. at 151. Plaintiff cites the post-incident
photograph of Rodriguez “which depicted no discernable injuries to any part of [her]
face,” as well as her testimony that she did not break any bones, suffer any injury
consistent with skill facture, and did not miss work as a result of her injury. Dkt. 169,
regard to the imminence of the threat posed by Dorsey. To the contrary, the Ninth Circuit
analyzed the facts in assessing the legal question of whether qualified immunity applied
and expressly stated that it did “not resolve any factual disputes ....”. Dkt. 79 at 18.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:19-cv-05370-CAS(JCx) Date January 6, 2025
Title Paulette Smith v. City of Los Angeles et al
Exh. 116-6; Transcript Day 2 at 65:2, 126:8-10, 126:12. Agdeppa also testified that
Rodriguez did not suffer any life-threatening injuries and that he did not suffer any
broken bones or miss work as a result of his injuries. Transcript Day 2 at 74:23-25,
126:8-127:3. The Court finds that the evidence submitted by plaintiff supporting lack of
injury to the Officers, and to Rodriguez in particular, serves to create a dispute of fact
with regard Agdeppa’s testimony that he saw Dorsey pummeling Rodriguez and saw her
head bouncing on the tile floor at the time he fired his weapon. Transcript Day 2 at
34:21-35:4.
The Court also concludes that Agdeppa’s conflicting testimony regarding whether
he saw a taser in Dorsey’s hand creates a dispute of fact regarding the imminence of the
threat posed by Dorsey and the reasonableness of the force Adgeppa used in response.
Plaintiff points to Agdeppa’s testimony on the first day of trial wherein he responded
sir’” both when he was asked, ““‘[d]id you ever see Mr. Dorsey obtain a Taser
from Officer Rodriguez?’” and when he was asked, “‘[a]t any time prior to the shooting,
did you ever see Mr. Dorsey in possession of a Taser in his hand?’” Opp. at 5-6. On the
second day of trial, during defense counsel’s direct examination of Agdeppa, Agdeppa
testified that he saw Dorsey obtain Rodriguez’s taser and saw him point it at her head.
Transcript Day 2 at 34:21-35:4. On cross examination, plaintiff's counsel asked Agdeppa
whether he had mentioned Dorsey having the taser at any point during his post-incident
statement, to which Adgeppa replied he could not recall whether he had. Transcript Day
2 at 51:25-52:5. In response to the same line of questioning, Agdeppa testified that he
did not recall saying he had never seen a taser in Dorsey’s hand during his testimony the
day before. Id. at 52:6-11. Agdeppa also testified that he did not recall whether or not he
had mentioned Dorsey obtaining the taser and pointing it at Rodriguez in his deposition
testimony. Id. at 52:14-52:24. The Court finds that this testimony serves to create a
dispute of fact as to whether Dorsey obtained Rodriguez’s taser and whether he was
pointing at Rodriguez’s head, and creates an issue of credibility regarding the Officers’
testimony about how the events prior to Agdeppa’s shooting of Dorsey unfolded.
Additionally, the Court concludes that there is a dispute of fact as to whether pre-
shooting tactical negligence led to an ultimately unreasonable use of force. Pre-shooting
tactical negligence can be considered as part of the totality of circumstances pursuant to
California law in assessing the reasonableness of the ultimate use of force, explained
further below. At trial, plaintiff's counsel asked Agdeppa about the concept of tactical
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:19-cv-05370-CAS(JCx) Date January 6, 2025
Title Paulette Smith v. City of Los Angeles et al
deescalation and his training in the area. Dkt. 135 (“Transcript Day 1”)? at 150:16-
152:18. Plaintiff's counsel asked Agdeppa whether he was trained that as a police officer
he could diffuse a situation by being patient, and whether in the past he had “been able to
diffuse situations with people who are suffering from mental illness by spending as much
as 30 minutes talking to them.” Id. at 151:4-7. Plaintiff's counsel inquired about
whether the deescalation training Agdeppa received would counsel against the use of
profanity, to which Agdeppa replied that using profanity can be considered deescalation
because it can prevent a situation from becoming more extreme. Id. at 154:21-15.
Plaintiff's counsel asked Agdeppa whether the LAPD bulletin on what to do when a
person 1s exhibiting bizarre behavior “said [to] avoid expressing anger [im]patience or
irritation” and to avoid touching the person, to which Agdeppa replied it did. Id. at
157:11-19.
Plaintiff's counsel then played Agdeppa’s and Rodriguez’s body worn camera
footage for the jury. Id. at 158:23-24:; 162:16-17. Based on the video, plaintiff's counsel
asked whether Agdeppa had told Dorsey he was losing his patience with him and whether
he thought that would deescalate the situation. Id. at 164:4-8. Plaintiff's counsel and
Agdeppa further discussed whether this was a proper deescalation technique. Id. at
164:23-165:8. Plaintiff's counsel flagged that Agdeppa could be heard on the body-worn
camera asking Dorsey, who was undressed at the time “[alre you going to get dressed or
are we going to have to drag you out of here?” a question Agdeppa testified was intended
as a deescalation technique. Id. at 166:14-20. Plaintiff's counsel noted that Agdeppa
could be heard on the body-worn camera asking Dorsey “what is wrong with you?” and
asked whether this was a deescalation tactic, to which Agdeppa replied it was not. Id. at
167:20-22. Plaintiff's counsel suggested that Dorsey’s noncompliance was making
Agdeppa angry. Id. at 171:3-8. Plaintiff's counsel asked whether the Officers called for
backup at any point. Id. at 171:25-172:9. Plaintiff's counsel inquired as to whether
Agdeppa saying “I swear to God, if you fucking tense up, buddy” was a deescalation
technique, to which Agdeppa replied it was. Id. at 172:13-24. Plaintiff's counsel asked
Agdeppa whether he was taught that “time ... distance, and communication and access to
> Though neither party submitted the transcript from the first day of trial as an exhibit in
connection with this motion, the Court finds that it is properly the subject of judicial
notice pursuant to Federal Rule of Evidence 201. Accordingly, the Court takes judicial
notice of the transcript from the first day of trial on September 17, 2024, at docket 135,
and relies on it here.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:19-cv-05370-CAS(JCx) Date January 6, 2025
Title Paulette Smith v. City of Los Angeles et al
available resources are things [officers] should consider when considering how to diffuse
a potentially volatile situation.” Id. at 174:2-5. Plaintiff's counsel elicited testimony and
certain admissions that are inconsistent with the claim of deescalation. The Court
concludes that this testimony combined with the body worn camera footage is sufficient
to create a dispute of fact as to whether the Officers were negligent with regard to the
tactics they employed such that, looking to the totality of the circumstances, a jury could
conclude that the ultimate use of deadly force was unreasonable.
Based on the lack of injury to the Officers, the contradictory testimony about
Rodriguez’s taser, and the argument that Officers’ failure to deescalate the situation or
call for backup before using deadly force amounted to tactical negligence, the Court
concludes there is a genuine dispute of fact as to the imminence of the threat posed by
Dorsey and the reasonableness of force the Officers used in response, such that judgment
as a matter of law is inappropriate on this basis.
Agdeppa also argues that pursuant to California law, there is no independent claim
for pre-shooting tactical negligence, and that pre-shooting negligence can only be
considered as a part of the totality of circumstances considered in determining whether
the ultimate use of force was reasonable. Mot. at 15. The Court agrees with this
interpretation of California law, but finds that plaintiff is not attempting to assert a
separate claim for pre-shooting negligence. Pursuant to Hayes, negligent tactical conduct
by officers leading up to a use of force can be considered as a part of the totality of the
circumstances in the assessment of the reasonableness of that force, but cannot be the
basis for a separate negligence claim against the officers involved, so long as it does not
give rise to separate injury. Hayes, 57 Cal. 4th at 631-32. Though plaintiffs counsel at
the outset of trial, during a dispute regarding the statement of the case, stated that he did
not “want to foreclose the preshooting tactical negligence claim,” the later briefing
plaintiff submitted with regard to disputed jury instructions demonstrates that plaintiff
acquiesces in this interpretation of the law. Transcript Day 1 at 8:23-8:25; Letter Brief
(not docketed). In her brief submitted to the Court during trial regarding jury
instructions, plaintiff argued that the tactical conduct and decisions of law enforcement
officers preceding the use of deadly force can give rise to negligence liability, “for
example, if the tactical conduct and decisions show, as part of the totality of
circumstances, that the use of deadly force was unreasonable.” Letter Brief at 1. Plaintiff
does not therein argue that pre-shooting tactical conduct can be the basis for a separate
claim for negligence, nor does plaintiff oppose defendant’s interpretation of the law in
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:19-cv-05370-CAS(JCx) Date January 6, 2025
Title Paulette Smith v. City of Los Angeles et al
her opposition to the instant motion. See generally Letter Brief; Opp. Accordingly, the
Court agrees that plaintiff cannot make a separate claim based on pre-shooting tactical
negligence, but the Court finds that plaintiff is not attempting to do so in this case.
Agdeppa argues that he is entitled to immunity on several state law bases. The
Court determines that judgment as a matter of law is not appropriate on the basis of any
of these immunities.* In his motion, Agdeppa contends that he is entitled to discretionary
immunity pursuant to Government Code section 820.2. Mot. at 18. This section says
that “[e]xcept as otherwise provided by statute, a public employee is not liable for an
injury resulting from his act or omission where the act or omission was the result of the
exercise of the discretion vested in him, whether or not such discretion be abused.” Cal.
Gov’t Code § 820.2. In his reply, Agdeppa contends that “[p]laintiff does not dispute that
Government Code section 820.2 immunizes a police officer’s tactical decisions, except
when using unreasonable force.” Reply at 7. Accordingly, Agdeppa seemingly concedes
that if the use of force is not reasonable, discretionary immunity pursuant to this section
does not apply. The Court concludes that, as discussed above, a question of fact remains
as to whether Agdeppa’s use of force was reasonable, and thus the Court cannot grant
judgment as a matter of law on the basis of Government Code section 820.2.
The Court reaches the same conclusion with regard to the additional immunities
Agdeppa raises in reply (which have been raised previously in this action, though not
raised in the instant motion). Agdeppa contends that he is entitled to immunity pursuant
to Government Code section 820.4, which provides that “[a] public employee 1s not liable
for his act or omission, exercising due care, in the execution or enforcement of any law.
Nothing in this section exonerates a public employee from liability for false arrest or false
imprisonment.” Id. at 7; Cal. Gov’t Code § 820.4. Adgeppa argues that “since the
undisputed evidence is that the Officers’ actions were reasonable, the Officers are
immune from liability under Government Code section 820.4.” Reply at 7. Because the
4 At oral argument, counsel for Agdeppa clarified that his argument was that the
discretionary immunities cited immunized the Officers’ pre-shooting tactical conduct
from being considered as a part of the totality of the circumstances in determining
whether the ultimate use of force was reasonable. The Court finds that this does not
change its conclusion that the immunities are not applicable based on the record. The
cited immunities either depend on the reasonableness of tactics used, a matter in dispute
here, or are inapplicable based on the kind of claim at issue.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:19-cv-05370-CAS(JCx) Date January 6, 2025
Title Paulette Smith v. City of Los Angeles et al
Court has concluded that the reasonableness of the Officers’ actions is disputed, the Court
finds that immunity pursuant to Government Code section 820.4 does not warrant
judgment as a matter of law.
Agdeppa also argues that he is entitled to immunity pursuant to Penal Code
sections 196 and 835a. Id. Penal Code section 196 provides that “[h]omicide is
justifiable when committed by peace officers ... [w]hen the homicide results from a
peace officer’s use of force that is in compliance with Section 835a.” Penal Code § 196.
Penal Code section 835a provides that deadly force may be used “|t]o defend against an
imminent threat of death or serious bodily injury to the officer or to another person.”
Penal Code §835a. As discussed, the Court concludes that the immuinence of the threat of
death or serious bodily injury posed by Dorsey is a matter that remains in dispute.
Accordingly, the Court finds that judgment as a matter of law is not appropriate on this
basis.
Agdeppa argues that he is entitled to immunity pursuant to Government Code
section 845.8. Reply at 7. This section provides that “[n]either a public entity nor a
public employee is liable for ... [a]ny injury caused by ... [a] person resisting arrest.”
Cal. Gov’t Code § 845.8. The Court finds that the applicability of this immunity is belied
by the plain language of the statute. In this case, the injury to Dorsey was not “caused
by” Dorsey, the “person resisting arrest.” The injury here was caused by Agdeppa
shooting Dorsey. In Estate of Garcia Toribio, the case relied upon by Agdeppa to support
the applicability of this immunity, the court determined that Government Code section
845.8 applied when the undisputed facts showed that prior to the officer involved
shooting, the decedent was acting erratically, was asked repeatedly by officers to drop a
knife he had in his hand, refused to comply with this instruction, and instead emerged
from the room toward the officers holding the knife, at which point one of the two
officers shot the decedent. Est. of Garcia Toribio v. City of Santa Rosa, 381 F. Supp. 3d
1179, 1182-86 (N.D. Cal. 2019). The court there concluded that “two forms of state
statutory immunity preclude the claims against an officer under these circumstances:
immunity for all injuries caused by a person resisting arrest (Cal. Gov’t Code § 845.8)
and peace officer immunity for a killing that ‘was necessarily committed in overcoming
actual resistance to the execution of some legal process, or in the discharge of any other
legal duty’ (Cal. Penal Code § 196).” Id. at 1191. The court provides no citation or
explanation for this interpretation of the statute. See generally id. The Court finds that
even if this interpretation of the statute is correct, and an officer shooting a decedent who
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:19-cv-05370-CAS(JCx) Date January 6, 2025
Title "Paulette Smith v. City of Los Angeles et al _
resists can be deemed an injury “caused by a person resisting arrest,” the Court concludes
that the circumstances in Estate of Toribio, wherein it was undisputed that the decedent
came toward officers with a knife is distinct from the instant situation, wherein the extent
of Dorsey’s resistance is disputed. Therefore, the Court concludes that immunity giving
rise to judgment as a matter of law is not appropriate here.
Finally, Agdeppa argues that he is immune from lability pursuant to Government
Code section 821.6, which provides that “[a] public employee is not liable for injury
caused by his instituting or prosecuting any judicial or administrative proceeding within
the scope of his employment, even if he acts maliciously and without probable cause.”
Cal. Gov’t Code § 821.6. While California courts have held that a police officer can be
covered by this provision, the Supreme Court of California recently determined that □□□□□
enacting section 821.6, the Legislature conferred absolute immunity against claims based
on injuries caused by wrongful prosecutions, but not other types of injuries inflicted in
the course of law enforcement investigations.” Leon v. Cnty. of Riverside, 14 Cal. Sth
910, 918, 928 (2023). The claims at issue here are not claims of wrongful prosecution—
plaintiff does not challenge that the Officers may have had cause to arrest Dorsey, rather
she challenges the manner in which the Officers pursued this goal. The Court concludes
that immunity pursuant to Government Code section 821.6 does not apply, and that
judgment as a matter of law is also inappropriate on this basis.
IV. CONCLUSION
In accordance with the foregoing, the Court DENIES Agdeppa’s motion for
judgment as a matter of law.
IT IS SO ORDERED.
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