ORDER

LAWRENCE K. KARLTON, District Judge.

Plaintiffs Estate of Bobby S. Clifford (Estate) and Linda K. Clifford bring this § 1983 action for damages against defendants Placer County, the Placer County Sheriff's Department, and Placer County Sheriff's Deputy David Clark (Clark). The action arises from the shooting death of Bobby S. Clifford (Clifford) by defendant Clark. Plaintiffs raise seven claims under 42 U.S.C. § 1983 based on alleged violations of federal constitutional rights (First, Second, Third, Fifth, Sixth, Seventh and Eighth Causes of Action), one claim under 42 U.S.C. § 1985 for conspiracy to violate Clifford's constitutional rights (Fourth Cause of Action), and four pendent state law claims (Ninth through Twelfth Causes of Action). The action is proceeding on plaintiffs' second amended complaint, filed February 7, 2012 (ECF No. 15), and is before the court on defendants' motion for summary judgment and, in the alternative, for summary adjudication.1

Defendants contend that the Estate lacks capacity to sue and should be dismissed. Plaintiffs have not responded to this argument. Under California law, which controls the determination of capacity to sue and be sued in this § 1983 action, see Fed. R. Civ. P. 17(b)(3), defendants are correct. See Smith v. Cimmet, 199 Cal.App.4th 1381, 1390-91 (Cal.App. 1 Dist. 2011). The Estate will be dismissed.2

In opposition to the motion, plaintiff concedes that defendants are entitled to summary judgment on the Monell claims, medical claims, conspiracy claims, and claims against Placer County. See Pl.'s Opp. (ECF No. 38) at 18 n.3. Accordingly, defendants' motion for summary judgment will be granted as to plaintiff's third, fourth and seventh claims for relief. The claims remaining for resolution are those raised against defendant Clark.

I. FACTS

A. Undisputed Facts3

On August 1, 2011, at approximately 10:30 p.m. Clark was on duty and in a parking lot at Sierra College and Douglas Boulevard in Granite Bay, California. Resp. to Defs.' Proposed Statement of Undisputed Material Facts (ECF No. 39) at 1. Clark was aware of prior reports of a burglary and drug deals in this parking lot. Id. at 2.

"Clark observed a vehicle in the middle of the parking lot, not next to any particular business." Id. Clark went into a convenience store in the parking lot. Id. After he exited the store, he "parked his patrol car behind the parked vehicle, reported to dispatch that he was conducting a vehicle check, and activated his spotlight on the car." Id. at 3. Clifford was in the parked vehicle. Id. When Clark parked behind Clifford's car, there was nothing in front of the car blocking its path. Id.

There was a gun on the passenger seat of the vehicle an arm's length away from Clifford. Id. at 6. After Clark observed the gun, he requested back up and informed dispatch that he had a person at gunpoint. Id. at 7. Subsequently, Clark fired one series of four shots in rapid succession. Id. at 8. Clark estimates that not later than one minute after shooting Clifford he radioed that shots had been fired and a code 3 for an ambulance. Id. at 9. Clark also estimates that his entire encounter with Clifford lasted less than five minutes. Id.

Dispatch records show an initial report of a vehicle check by Clark at approximately 10:32 p.m. on August 1, 2011. Defs. Ex. C (ECF No. 21-6) at 39. About a minute later, at approximately 10:33 p.m. a 10-35 radio transmission is recorded. Id. Seventeen seconds later there is a transmission of "one at gunpoint." Id. At approximately 10:34 p.m. the dispatch record shows "Comment: Roseville PD enrt C/3." Id. At approximately 10:35 p.m., a transmission of "gun on the front seat and uncompliant person"4 is recorded. Id. Dispatch records include, at approximately 10:36 p.m. the comment "Units are Code 3." Id. Approximately thirty seconds later a transmission of "shots fired — start and ambulance code 3" is recorded. Id.

By 10:40 p.m., Roseville Police Department officers had started first aid on Clifford. Id. at 10. Clifford was pronounced dead at 10:59 p.m. at Sutter Roseville Medical Center. Id. at 11.

A toxicology report included with the Coroner's Report showed Clifford had a blood alcohol level of 0.223 and 8.0 ng/mL of methamphetamine. Defs. Ex. F (ECF No. 21-6) at 64, 70, 77. The report indicates that the specimens were collect at 9:15 a.m. on August 3, 2011, approximately 33 hours and 45 minutes after Clifford died. Id. at 56, 64.

Prior to approaching Clifford's vehicle on August 1, 2011, Clark did not know Clifford or his mother, plaintiff Linda Clifford. Id.

B. Clark's Assertions Concerning the Shooting5

The court has reviewed Clark's August 2, 2011 interview with investigators after the shooting (ECF No. 21-6) and his February 10, 2014 declaration filed in support of defendants' motion for summary judgment (ECF No. 21-4), both of which have been tendered by defendants. The court has also reviewed the transcript of Clark's March 17, 2014 videotaped deposition, tendered by plaintiff. In one or more of these documents, Clark reports the following:

Clark was aware of reports of an auto burglary in this parking lot and a report from the manager of the adjacent Walgreens who "suspected that cars were pulling up to each other in the parking lot and made [sic] hand to hand drug transactions." Clark Decl. at ¶ 3. At his deposition, he testified that he approached Clifford's car because the music was "very, very loud" and "it was not normal for cars to be blasting their music and drawing attention to themselves like that." Clark Dep. at 48:2-9. In view of the loud music and the prior reports, he believed he had to determine what was going on with Clifford's car. Clark Dep. at 46:22-48:9.7

After Clark shined his spotlight on Clifford's vehicle, Clifford turned down the music volume, "opened his driver's side door and stepped out with his left foot." Clark Decl. at ¶ 7. Clark approached the car and ordered Clifford to stay in his car or to get back in the vehicle. Clark Dep. at 68:2-9. He did not, at that point, verbally identify himself as a deputy sheriff. Defs. Ex. A (ECF No. 21-6) at 9. In addition to his gun, Clark had pepper spray and a taser on his belt. Clark Dep. at 54:14-55:1. Clark observed that Clifford "was real slow with his movements and was not alert, and . . . Clifford's eyes were bloodshot and glossy." Clark Decl. at ¶ 8. Clifford had no shirt on and "looked very disheveled." Id. Clifford did not comply with the command right away. Clark Dep. at 68:21. Clark testified at his deposition that Clifford

Id. at 68:25-69:6. Clark thought Clifford "seemed impaired." Id. at 69:8; Clark Decl. at ¶ 8. Clifford did not respond to Clark's verbal commands, and Clark estimates it took him 30 seconds or more to get back in the car. Clark Dep. at 71:5-17. Later in the deposition, Clark testified that Clifford was "very slow to comply" with the initial command, he "appeared very disheveled and, you know, his eyes were blood shot" and "his movement was real slow." Id. at 74:13-15. He "wasn't quick with his movements and he was swaying within the seat." Id. at 74:23-24.

Clifford did not respond to Clark's initial question about why he was playing the music so loud. Id. at 75:8-11. Clark repeated the question and got "some type of unintelligible response." Id. at 76:3-10. Clark then asked Clifford if he had identification and Clifford "said yeah." Id. at 76:12-13. Clifford reached toward the glove compartment of the vehicle and opened the glove compartment. Clark Decl. at ¶ 9; Defs. Ex. A (ECF No. 21-6) at 14. As he did, Clark observed a gun on the front passenger seat. Resp. to Defs.' Proposed Statement of Undisputed Material Facts (ECF No. 39) at 6. Clark drew his gun and ordered Clifford to keep his hands on the steering wheel. Id. at 7.

According to Clark, Clifford slowly brought his hands back in the "general direction of the steering wheel" and "briefly" placed his hands on the wheel. Clark Dep. at 84:1-4, 85:24-86:1. Clifford then kept taking his hands on and off the steering wheel, looking toward the gun, and "moving, swaying in the seat." Id. at 86:22-24. Clark continued to tell Clifford not to reach for the gun and that he would be shot if he did so. Id. at 87:1-3. Clifford kept taking his hands on and off the wheel and began to ask Clark who he was. Id. at 87:5-6. At that point, Clark verbally identified himself as a Placer County Sheriff's Deputy. Id. at 87:8-9; Defs. Ex. A (ECF No. 21-6) at 9. Although he believed Clifford knew he was a sheriff's deputy, he gave him the "benefit of the doubt" and shined his flashlight on his badge. Clark Dep. at 94:6; Defs. Ex. A (ECF No. 21-6) at 15.

Clark states that he radioed one, two, or three times for immediate back up. Clark Dep. at 89:6-15, 92:7-8; Defs. Ex. A (ECF No. 21-6) at 15. He was not sure whether his transmissions were received. Id.

At his deposition, Clark testified that the "majority of the time" Clifford's hands were hovering in front of the steering wheel, but he was "clearly not following the simple directions of keep the hands on the steering wheel." Clark Dep. at 92:10-93:1. Clark felt Clifford "was testing to see how far he could get and what kind of reaction [Clark] was going to have based on him taking his hands off and on the steering wheel." Id. at 92:12-15. Clark reported that at some point during the exchange, Clifford's "demeanor changed" and he started to yell, become hostile, and "more aggressive in his movements." Id. at 96:14-18.

Clifford continued to question Clark and twice demanded to see his badge. Clark Dep. at 95:23-96:6. At some point, perhaps between these inquiries, Clark radioed that had "one in gunpoint, gun in the car, and that he was not compliant." Id. at 99:23-100:2. Clark testified that he was shining his flashlight in Clifford's eyes so that Clifford couldn't have good vision. Id. at 100:7-9. Clifford tried to lift himself above the door frame to get the flashlight out of his eyes. Id. at 100:9-10. Clifford was "looking and . . . moving forward and he makes a reach towards the gun." Id. at 100:11-12. Clark avers in his declaration that this was a "controlled — full arm's reach for the gun" whereupon Clark fired his gun, shooting Clifford. Clark Decl. at ¶ 13.8

C. Plaintiff's Expert Declarations

Defendants filed their motion for summary judgment on February 14, 2014. The court heard oral argument on May 5, 2014. On the same day, the United States Supreme Court issued Tolan v. Cotton, 572 U.S. ___, 134 S.Ct. 1861 (2014) (per curiam). By order filed May 7, 2014, the parties were granted an additional period of fifteen days in which to file supplemental briefs addressing the application, if any, of Tolan to the motion at bar.

On May 13, 2014, defendants filed a supplemental brief. On May 22, 2014, plaintiff filed a supplemental brief accompanied by two expert declarations. On the same day, defendants filed a response to plaintiff's supplemental brief, requesting that the two expert declarations be stricken or, in the alternative, that defendants be granted an opportunity to respond to the evidence and argument thereon. Plaintiff responded to defendants' request the day it was filed. By order filed May 23, 2014, the court denied defendants' request to strike the expert declarations and granted defendants fifteen days to respond thereto. Defendants filed their response on June 6, 2014. Defendants argue that the expert evidence does not create a triable issue of material fact and that the conclusions of one of the experts are inadmissible.

The court has reviewed the two expert declarations. For the reasons discussed below, the court finds that inconsistencies in Clark's description of Clifford's appearance and behavior create a credibility question that must be resolved by a jury. While one of plaintiff's experts also recognizes and relies on those inconsistencies in his report, see Ex. A to Streed Decl. at 18, expert testimony is not necessary on that precise question. Even if the court were to consider the expert opinions at this stage of these proceedings, they do not materially affect the disposition of this motion. The court makes no findings at this time on their admissibility at a subsequent stage of these proceedings.

III. STANDARDS FOR A MOTION FOR SUMMARY JUDGMENT

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (it is the movant's burden "to demonstrate that there is `no genuine issue as to any material fact' and that the movant is `entitled to judgment as a matter of law'"); Walls v. Cent. Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (per curiam) (same).

Consequently, "[s]ummary judgment must be denied" if the court "determines that a `genuine dispute as to [a] material fact' precludes immediate entry of judgment as a matter of law." Ortiz v. Jordan, 562 U.S. ___, 131 S.Ct. 884, 891 (2011) (quoting Fed. R. Civ. P. 56(a)); Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (en banc) (same), cert. denied, 132 S.Ct. 1566 (2012).

Under summary judgment practice, the moving party bears the initial responsibility of informing the district court of the basis for its motion, and "citing to particular parts of the materials in the record," Fed. R. Civ. P. 56(c)(1)(A), that show "that a fact cannot be . . . disputed." Fed. R. Civ. P. 56(c)(1); Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Securities Litigation), 627 F.3d 376, 387 (9th Cir. 2010) ("The moving party initially bears the burden of proving the absence of a genuine issue of material fact") (citing Celotex v. Catrett, 477 U.S. 317, 323 (1986)).

A wrinkle arises when the non-moving party will bear the burden of proof at trial. In that case, "the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Oracle Corp., 627 F.3d at 387.

If the moving party meets its initial responsibility, the burden then shifts to the non-moving party to establish the existence of a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); Oracle Corp., 627 F.3d at 387 (where the moving party meets its burden, "the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial"). In doing so, the non-moving party may not rely upon the denials of its pleadings, but must tender evidence of specific facts in the form of affidavits and/or other admissible materials in support of its contention that the dispute exists. Fed. R. Civ. P. 56(c)(1)(A).

The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

"In evaluating the evidence to determine whether there is a genuine issue of fact," the court draws "all reasonable inferences supported by the evidence in favor of the non-moving party." Walls, 653 F.3d at 966. Because the court only considers inferences "supported by the evidence," it is the non-moving party's obligation to produce a factual predicate as a basis for such inferences. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). The opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 586-87 (citations omitted).

IV. ANALYSIS

A. Qualified Immunity

Defendants seek summary judgment on plaintiff's first, second, and eighth causes of action on the grounds of qualified immunity. The first and second causes of action allege violations of Clifford's Fourth Amendment rights. The first cause of action claims unlawful seizure/detention of Clifford; the second cause of action claims unlawful use of excessive and deadly force. The eighth cause of action is a survival action for pain and suffering incurred by Clifford before he died.

The doctrine of qualified immunity protects a government official from liability for civil damages except where the official violates a constitutional right that "`was "clearly established" at the time of the challenged conduct.'" Wood v. Moss, 134 S.Ct. 2056 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S. ___, 131 S.Ct. 2074, 2080 (2011)). The qualified immunity inquiry has two prongs: (1) whether the officer's conduct violated a constitutional right and (2) whether "the right at issue was clearly established at the time of the incident such that a reasonable officer would have understood her conduct to be unlawful in the situation." Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011) (quoting Saucier v. Katz, 533 U.S. 194, 201-02 (2001)). The court has discretion to consider the two factors in either order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). At summary judgment, resolution of the qualified immunity defense turns whether the undisputed facts and the inferences to be drawn therefrom, viewed in the light most favorable to the non-moving party, show a violation of clearly established federal constitutional rights. See Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014). In Tolan, the United States Supreme Court reminded us that their

Tolan v. Cotton, id.

1. First Cause of Action

Clark contends that neither his initial approach to Clifford nor his subsequent detention of Clifford violated the Fourth Amendment's limits on detention. He also contends that at the time of the events at bar it was not clearly established that a peace officer would violate the Fourth Amendment by questioning an occupant of a parked vehicle and detaining a person "reasonably suspected of playing loud music and subsequently suspected of driving under the influence." Defs.' Mem. of Points and Authorities (ECF No. 21-1) at 27.

Plaintiff contends Clark's testimony that there was loud music coming from the car and that he suspected Clifford was under the influence of drugs or alcohol because of Clifford's behavior is uncorroborated and therefore, pursuant to Scott v. Henrich, insufficient to establish either fact. This contention without merit. As discussed above, under Scott the court is required to "carefully examine all the evidence in the record, such as medical reports, contemporaneous statements by the officer and the available physical evidence, as well as any expert testimony proferred by the plaintiff, to determine whether the officer's story is internally consistent and consistent with other known facts." Scott, 39 F.3d at 915.

Here, Clark was interviewed the day after the shooting and told the interviewer that Clifford's car

Defs.' Ex. A (ECF No. 21-6) at 12. In addition, the toxicology report on Clifford included findings of a blood alcohol level of 0.223 and 8.0 ng/ml of methamphetamine. Defs.' Ex. F (ECF No. 21-6) at 65; Streed Exp. Rep. (ECF No. 48-1) at 15. Clark's stated reasons for approaching the car and detaining Clifford are "internally consistent and consistent with other known facts." Scott, 39 F.3d at 915.

Clark is entitled to qualified immunity on this claim. When he approached the car, Clark had a reasonable suspicion that loud music was coming from the car, and once he observed Clifford, he had a reasonable suspicion that Clifford was under the influence of drugs or alcohol. Even though "it is difficult to imagine a less threatening offense than playing one's car stereo at an excessive volume", U.S. v. Grigg, 498 F.3d 1070, 1077 (9th Cir. 2007), it is nonetheless an infraction under the Placer County noise ordinance. Once Clark observed Clifford, he had a reasonable suspicion that plaintiff was under the influence of drugs or alcohol. He is therefore entitled to qualified immunity on this claim. See Ramirez v. City of Buena Park, 560 F.3d 1012, 1020-21 (9th Cir. 2009) (officer entitled to qualified immunity for detaining individual suspected of being under influence of controlled substance).

2. Second and Eighth Causes of Action

Plaintiff's second claim is that his rights under the Fourth Amendment were violated by use of excessive and deadly force. Clark seeks summary judgment on this claim on the ground of qualified immunity, and contends the same analysis applies to plaintiff's eighth cause of action. The court turns first to whether the evidence, viewed in the light most favorable to plaintiff, could, if proved, establish a violation of the Fourth Amendment by use of excessive and unnecessary deadly force.

Torres, 648 F.3d at 1123-24; see also Gonzalez v. City of Anaheim, 747 F.3d 789, 793-94 (9th Cir. 2014) (en banc).

"The immediacy of the threat posed by the suspect is the most important factor." Gonzalez, 747 F.3d at 793 (citing Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir.2011) (en banc)). In addition, "the `alternative methods of capturing or subduing a suspect' available to the officers" are "also relevant to reasonableness." Gonzalez, 747 F.3d at 794 (quoting Smith v. City of Hemet, 394 F.3d at 703).

The reasonableness test outlined in Graham applies equally to the use of deadly force. See Price v. Sery, 513 F.3d 962, 968 (9th Cir. 2008) (discussing Scott v. Harris, 550 U.S. 372 (2007)). Moreover,

Hayes v. County of San Diego, 736 F.3d 1223, 1233 (9th Cir. 2013).

"`Because [the excessive force inquiry] nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, . . . summary judgment should be granted sparingly in excessive force cases.'" Glenn v. Washington County, 673 F.3d 864, 871 (9th Cir. 2011) (quoting Smith v. City of Hemet, 394 F.3d at 701). "This principle applies with particular force where the only witness other than the officers was killed during the encounter." Gonzalez, 747 F.3d at 795 (citing Glenn v. Washington County, 673 F.3d at 871); see also Torres v. City of Madera, 648 F.3d 1119, 1125 (9th Cir. 2011)(summary judgment should be granted sparingly in excessive force cases).

Clark approached Clifford's car because loud music was coming from the car. At most, this was an alleged violation of a Placer County noise ordinance, a very minor infraction. Clark described Clifford as "real slow . . . with his movements," not "real alert," "very disheveled" with "real glossy" eyes, non-responsive to initial directives from Clark, almost incapable of getting himself back into the car, and then "incoherent" and "unintelligible" in responses he did make. Clark's observations of Clifford gave rise to a suspicion that Clifford was under the influence of drugs or alcohol and, in fact, toxicology reports showed that Clifford's blood alcohol level was 0.223 after his death.

Clark's description of events also raises conflicting questions about whether Clifford knew Clark was a police officer. Clark's marked patrol car was parked behind Clifford's car with the spotlight shining directly on Clifford's car. Clark Decl. (ECF No. 21-4) at ¶ 5. Clark states that Clifford did appear to respond to an order to produce identification, compare id. at ¶ 9 with Defs. Ex. A (ECF No. 21-6) at 14, which leads to an inference Clifford knew Clark was a police officer. However, Clark did not verbally identify himself as a police officer when he initially approached the car, and did not do so until Clifford asked who Clark was after Clark had pulled his gun and was pointing it at Clifford. Defs. Ex. A (ECF No. 21-6) at 9. Clark reported that Clifford repeatedly asked who Clark was and to see his badge and Clark acknowledged he had thought it was possible Clifford had not seen his full uniform. Id. at 15. Clark also testified that he was shining his flashlight directly in Clifford's eyes to adversely affect his vision, thus raising at least an inference that Clifford could not see well and was in fact confused about who Clark was and what was occurring.

The foregoing gives rise to a reasonable inference that Clifford was too impaired and confused to make a controlled reach for the gun on the passenger seat. The mere fact that Clifford had a gun in the car, without more, did not justify the use of deadly force. See Hayes v. County of San Diego, 736 F.3d at 1233.

The key question here is "whether a reasonable jury would necessarily find that" Clark "perceived an immediate threat of death or serious physical injury at the time he shot" Clifford such that the use of deadly force was reasonable. Gonzalez, 747 F.3d at 794. Clark's description of events, if believed, is of a "tense, uncertain, and rapidly evolving" situation during which Clifford refused to comply with orders to keep his hands on the steering wheel and became more hostile and aggressive before deliberately and in a controlled manner reaching for the gun. Clark avers that Clifford made a controlled full arm's length reach for the gun after failing to comply with repeated orders to keep his hands on the steering wheel and not reach for the gun. If this is true, no reasonable jury would conclude that Clark violated Clifford's Fourth Amendment rights and, in any event, this court would find Clark entitled to qualified immunity.

Clark's description of Clifford as significantly impaired, moving slowly, and confused about what was going on, together with the toxicology report showing Clifford's blood alcohol level at .223, however, raise serious questions about whether Clifford was capable of making a controlled reach for the gun. These questions, in turn, give rise to a question about Clark's credibility which must be resolved by a jury. If a jury believes that Clifford was too impaired to make a controlled reach for the gun it could disbelieve Clark's asserted reason for shooting Clifford. And if the jury disbelieved Clark's testimony that Clifford made a controlled reach for the gun, it could disbelieve some or all of Clark's testimony concerning events leading up to the shooting. See Enying Li v. Holder, 738 F.3d 1160, 1164 (9th Cir. 2013) (it is the "general law of the Ninth Circuit" that "a witness `deemed unbelievable as to one material fact may be disbelieved in all other respects.'")(internal citation omitted).

Viewed in the light most favorable to plaintiff and drawing all reasonable inferences therefrom, a reasonable jury could conclude that Clifford was too impaired to make a controlled reach for the gun and that Clark's asserted reason for shooting Clifford is not credible. If it so concluded, the jury could also find that Clark's used of deadly force was unreasonable and excessive and violated the Fourth Amendment.

The second prong of the qualified immunity analysis requires the court to decide whether it would have been clear to a reasonable officer in Clark's position that his use of deadly force was unlawful in the situation he faced. The question of whether a defendant is entitled to qualified immunity is a question of law for the court. Torres, 548 F.3d at 1210. However, the court only resolves that question of law if all material facts are undisputed and, taken in the light most favorable to the plaintiff, the facts show the defendant did not violate clearly established federal constitutional rights. Id.

At all times relevant to this action, it was clearly established that the use of deadly force was reasonable only if an officer "`has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.'" Long v. City and County of Honolulu, 511 F.3d 901, 906 (9th Cir. 2007)(quoting Scott v. Henrich, 39 F.3d at 194, in turn quoting Tennessee v. Garner, 471 U.S. at 3 (1985)). The same credibility question that precludes summary judgment on the merits of plaintiff's second and eighth claims preclude a finding that Clark is entitled to qualified immunity on these claims.

For all of the foregoing reasons, defendants' motion for summary judgment will be denied as to plaintiff's second and eighth causes of action.

B. Fifth Cause of Action

Plaintiff's fifth cause of action is a wrongful death claim under § 1983 that by shooting and killing Clifford defendant deprived "plaintiffs and the decedent of certain constitutionally protected rights" including but not limited to freedom from unlawful searches and seizures, deprivation of life and liberty without due process, and freedom from excessive force. Defendant seeks summary judgment on this claim on the ground that a wrongful death action under § 1983 is not the appropriate vehicle for recovery for violation of the decedent's constitutional rights. Plaintiff does not oppose this part of the motion. Plaintiff's fifth claim will therefore be dismissed.

C. Sixth Cause of Action

Plaintiff's sixth cause of action is for loss of familial relationship. The claim is governed by the substantive due process clause of the Fourteenth Amendment. Defendants seek summary judgment on this claim on the ground that "Such a claim requires the plaintiffs to prove that the officers' use of force `shock[ed] the conscience.' Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir.2008)." Gonzalez, 747 F.3d at 797. Deliberate indifference may shock the conscious if the actor has time to deliberate before committing the conscious-shocking action. See County of Sacramento v. Lewis, 523 U.S. 833, 849-50 (1998). To determine whether this standard applies "the `critical consideration [is] whether the circumstances are such that `actual deliberation is practical.'" Porter, 546 F.3d at 1137 (internal citations omitted). Otherwise liability only lies when the officer acts with a "purpose to harm." Porter, id.

In Porter, the Ninth Circuit held that the "purpose to harm" standard applied to a claim against a police officer who shot and killed an individual during a "rapidly escalating confrontation" that began when officers "were responding to a call about an apparently abandoned vehicle." Porter, 546 F.3d at 1133. In contrast, the deliberate indifference standard applies in "situations that evolve in a time frame that permits the officer to deliberate before acting and those that escalate so quickly that the officer must make a snap judgment." Id. at 1137.

Here, the "purpose to harm" standard and the "deliberate indifference" standard focus on the officer's state of mind. While there are questions that require trial over the reasonableness of Clark's actions, the evidence, even viewed in the light most favorable to plaintiff, does not support a finding that Clark had a sufficiently culpable state of mind under either standard to support plaintiff's Fourteenth Amendment claim. Defendant Clark is entitled to summary judgment on this claim.

D. State Law Claims

1. Wrongful Death — Negligence

Defendants seek summary judgment on plaintiff's negligence claim on the ground that Clark acted reasonably in using deadly force. The reasonableness standard that applies to this claim is the same as the reasonableness standard that applies to plaintiff's Fourth Amendment excessive force claim. See Hernandez v. City of Pomona, 46 Cal.4th 501, 513-14 (2009). The credibility question that precludes summary judgment for Clark on plaintiffs' Fourth Amendment excessive force claim precludes summary judgment on this claim.9

2. Intentional Infliction of Emotional Distress

Clark seeks summary judgment on plaintiff's claim for intentional infliction of emotional distress on the grounds that (1) Clark's conduct was not directed to plaintiff; (2) the conduct was privileged; and (3) the conduct was not extreme or outrageous. Plaintiff only challenges that portion of the argument that contends the conduct was privileged under California Penal Code § 196, which protects reasonable use of force.

California law "`limits claims of intentional infliction of emotional distress to egregious conduct toward plaintiff proximately caused by defendant.'" Christensen v. Superior Court, 54 Cal.3d 868, 905 (1991) (internal citation omitted). "The only exception to this rule is that recognized when the defendant is aware, but acts with reckless disregard, of the plaintiff and the probability that his or her conduct will cause severe emotional distress to that plaintiff." Id. There is no evidence that Clark was aware of Clifford's mother, and she was not present at the shooting. For this reason, Clark is entitled to summary judgment on this claim.

3. Assault and Battery

Clark seeks summary judgment on plaintiff's eleventh and twelfth causes of action on the grounds that his use of force was reasonable and that both claims "are disposed of in light of the Fourth Amendment excessive force analysis."10,11 As with the negligence claim, the state law battery claim "is a counterpart to a federal claim of excessive use of force. In both, a plaintiff must prove that the peace officer's use of force was unreasonable." Brown v. Ransweiler, 171 Cal.App.4th 516, 527 (2009). The credibility question that precludes summary judgment for Clark on plaintiffs' Fourth Amendment excessive force claim precludes summary judgment on plaintiff's battery claim.

Clark's contention that he is entitled to immunity under California Penal Code § 196 is governed by "whether the circumstances `reasonably create[d] a fear of death or serious bodily harm to the officer or to another.'" Brown, 171 Cal.App.4th at 816 (quoting Martinez v. County of Los Angeles, 47 Cal.App.4th 334, 349 (1996)). Again, the same credibility question precludes summary judgment on this claim on the ground of state law immunity.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Defendants' motion for summary judgment is granted in part and denied in part, as follows:

a. Summary judgment is granted for defendants on plaintiffs' first, third, fourth, fifth, sixth, seventh, and tenth causes of action;

b. Summary judgment is granted in favor of defendants Placer County and Placer County Sheriff's Office;

c. The Estate of Robert (Bobby) S. Clifford is dismissed as a plaintiff; and

d. Summary judgment is denied for defendant Clark on plaintiff's second, eighth, ninth, eleventh and twelfth causes of action.