Case 6:12-bk MJ Doc 2507 Filed 06/13/18 Entered 06/13/18 15:58:51 Desc Main Document Page 1 of 112

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1 Main Document Page 1 of PAUL R. GLASSMAN (State Bar No ) FRED NEUFELD (State Bar No ) STRADLING YOCCA CARLSON & RAUTH, P.C. 100 Wilshire Blvd., 4 th Floor Santa Monica, CA Telephone: (424) Facsimile: (424) pglassman@sycr.com fneufeld@sycr.com GARY D. SAENZ (State Bar No ) OFFICE OF THE CITY ATTORNEY 290 N. D STREET, Third Floor San Bernardino, CA Telephone: (909) Facsimile: (909) saenz_ga@sbcity.org Attorneys for City of San Bernardino, California In re CITY OF SAN BERNARDINO, CALIFORNIA, Debtor. UNITED STATES BANKRUPTCY COURT CENTRAL DIVISION OF CALIFORNIA RIVERSIDE DIVISION Case No. 6:12-bk MJ Chapter 9 AMENDED DECLARATION OF JEREMY ROTHSTEIN IN SUPPORT OF CITY OF SAN BERNARDINO S THIRD OMNIBUS OBJECTION TO CLAIMS WHEREIN (1) THE CITY HAS NO LIABILITY AND/OR (2) CLAIMANTS FAILED TO COMPLY WITH THE ADR PROCEDURES [Third Omnibus Objection filed May 11, 2018] Hearing Date: Date: June 14, 2018 Time: 1:30 p.m. Place: United States Bankruptcy Court 3420 Twelfth Street Courtroom 301 Riverside, CA Judge: Honorable Meredith A. Jury STRADLING YOCCA CARLSON & RAUTH LAWYERS S ANTA MONICA

2 Main Document Page 2 of AMENDED DECLARATION OF JEREMY ROTHSTEIN I, Jeremy Rothstein, declare as follows: 1. I am an attorney at law, duly licensed and entitled to practice in the State of California and am admitted to practice before this Court. I am an associate with the law firm of Stradling Yocca Carlson & Rauth, a Professional Corporation, counsel to the City of San Bernardino. 2. I make this Declaration in support of the City of San Bernardino s Third Omnibus Objection to Claims Wherein (1) the City Has No Liability and/or (2) Claimants Failed to Comply with the ADR Procedures (Dkt. 2467, the Objection ), filed May 11, Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Objection. 3. This Declaration is based on matters of my own personal knowledge or knowledge I have gained from a review of publicly available information, including the City s claims register, located at the electronic docket service maintained by the Superior Court of California, County of San Bernardino, and the Public Access to Court Electronic Records system maintained by Administrative Office of the U.S. Courts, or the files of 910 Claims obtained from Carl Warren & Company, the City s third party claims administrator (collectively, the Sources ). 4. Pursuant to Local Bankruptcy Rule (c)(2), attached hereto are the true and complete copies of the following documents as obtained from the Sources, with certain individualized information redacted: Exhibit Name of Claimant Document Asserting Claim 1 Mary Barnhill Claimant s complaint filed in Superior Court of California, County of San Bernardino (Case No. CIVDS ) 2 Daniel Brown Claimant s complaint filed in the United States District Court for the Central District of California (Case No. 5:13-cv JLS-JC) 3 Kathryn Frederick, individually and as successor-ininterest to Decedent Cody Jarrett Claimant s complaint filed in the United States District Court for the Central District of California (Case No. 5:17-cv JB-SP) STRADLING YOCCA CARLSON & RAUTH LAWYERS S ANTA MONICA 1

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5 Main Document Page 5 of 112 CIV CIV DS CASEEN Scanned Document Coversheet System Code CIV Case Number DS CaseType CIV THIS COVERSHEET IS FOR COURT ActionCode CASEEN PURPOSES ONLY AND THIS IS NOT Action Date A PART OF THE OFFICIAL RECORD ActionTime 9 00 Action Seq 0002 Printed by JJOAN YOU WILL NOT BE CHARGED FOR TH I S PAG E Complaint and Party information entered NEW FILE

6 Scanned Case 6:12-bk MJ Doc 2507 Filed 06/13/18 Entered 06/13/18 15:58:51 Desc Main Document Page 6 of Vickie Cartony ESq SBN ANO pgq O DDT pct ryq LAW OFFICES OF RIPLEY ASSOC APC Z 290 North D Street Suite 901 San Bernardino CA QN 3 Z i BY S ES 5 Attorneys for Plaintiff s 6 MARY BARNHILL toa IS pcpu Ty SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF SAN BERNARDINO CENTRAL DISTRICT 9 MARY BARNHILL an individual 10 CIVDS Plaintiff s CASE NO 11 v I CITY OF SAN BERNARDINO a public corporation and DOES 1 through inclusive COMPLAINT FOR DAMAGES 15 Defendants ZO 21 ZZ COMES NOW Plaintiff s MARY BARNHILL alleges as follows l That the events giving rise to this lawsuit occurred in the City of San Bernardino County of San Bernardino State of California 2 That the true names identities and capacities of those defendants designated as DOES 1 through 25 inclusive and each of them aze unknown to Plaintiff s who suit said defendants by such fictitiously designated names Plaintiff s is are informed and believe and on the basis thereof allege that each of the Defendants designated herein as a DOE was in some way legally responsible for the events herein alleged Plaintiff s will seek leave of court in order to set forth the true names identities and capacities of defendants designated as DOES 1 through 25 inclusive when same have been ascertained COMPLAINT FOR DAMAGES

7 Main Document Page 7 of That at all times herein relevant Defendants and each of them were the agents 2 servants and employees of each of the remaining Defendants and were at all time herein 3 relevant acting within the course and scope of said agency or employment 4 4 That at all times herein relevant Plaintiff MARY BARNHILL was an adult who 5 at that time of the incident giving rise to this lawsuit lived in the City of San Bernardino within 6 the County of San Bernardino State of California 7 5 Plaintiff s is are informed and believes and on the basis thereof alleges that 8 Defendant City of San Bernardino and DOES 1 25 inclusive and each of them is a public 9 corporation and a political subdivision of the State of Califomia That prior to the filing of this 10 lawsuit and within six months of the accident giving rise to this action Plaintiff s complied with 11 the requirements of the government tort daims act by the filing of a claim with the City of San 12 Bernazdino That within six months prior to the filing of this action said claim was rejected by 13 the City of San Bernazdino Defendant is liable for negligence and dangerous condition under 14 Government Code Section 820 a a and That on September Duffy Street was and is a public street or highway 16 located in the City of San Bernardino within the County of San Bernardino State of California 17 7 That on or about September and prior thereto Defendants and DOES inclusive and each of them were the owners operators landlords renters lessors and or 19 lessees or were otherwise charged with the responsibility for the maintenance upkeep 20 inspection and repair of the roadway located at Duffy Street in the City of San Bernardino 21 within the County of San Bernardino State of California Said street was made available to and 22 for the use of inembers of the general public including Plaintiff s herein 23 8 That at all times herein relevant Defendants City of San Bernardino a public 24 corporation and a political subdivision of the State of California and DOES 1 25 inclusive and 25 each of them were employees and agents of each of the remaining defendants and were at all 26 times here alleged responsible for the control maintenance repair and inspection of the 27 roadway located Clark Street in the City of San Bernardino within the County of San 28 Bernardino State of California Z COMPLAINT FOR DAMAGES

8 Main Document Page 8 of That on September Plaintiff s MARY BARNHILL while walking 2 southbound on the right side of Duffy Street towards Kern Street suddenly fell forward and 3 landed on her left knee on the asphalt below 4 FIRST CAUSE OF ACTION 5 Negligence as to All Defendants 6 10 Plaintiff incorporates by reference and repeats and re alleges as fully set forth 7 herein in paragraphs 1 through 9 of Plaintiff s complaint 8 11 That on or about September Plaintiff s MARY BARNHILL while 9 walking southbound on the right side of Duffy Street towards Kern Street suddenly fell forward 10 and landed on her left knee on the asphalt below in the City of San Bernardino in a manner 11 reasonably anticipated by Defendants City of San Bernardino and DOES 1 25 inclusive and 12 each ofthem That on or about September said roadway within the County of San 14 Bernardino State of California was in a dangerous and unsafe condition Said dangerous or 15 unsafe condition was caused and created by the negligence of the Defendants and each of them 16 by allowing a raised piece of sidewalk to remain in an area heavily traveled by pedestrians and 17 that at the time of injury it had existed for such a time and in such a condition that same was 18 known or should have been known to Defendants and each of them Prior to September Defendants and each of them had the means and opportunity to correct or wam of such 20 condition Defendant is liable for negligence under Government Code Section 820 a a 21 and That as a direct and legal result of the dangerous and unsafe condition of Clark 23 Street Plaintiff s was were caused to fall violently onto the concrete and as a direct and legal 24 result thereof Plaintiff s was were injured and damaged That as a direct and legal result of such negligence and unlawfulness and such 26 dangerous condition ofpremises as alleged herein Defendant s owed a duty of care to the 27 Plaintiff that the Defendant s breached that duty and that as a result Plaintiff s was caused to 28 sustained injury and damage some or all of which is permanent in nature That as a direct and 3 COMPLAINT FOR DAMAGES

9 Main Document Page 9 of legal result thereof Plaintiff s is are entitled to compensatory and general damages for pain 2 suffering and emotional distress all in an amount to be determined at the time of trial herein 3 15 That as a further direct and legal result of the negligence and unlawfulness of 4 Defendants and each of them as aforesaid and of the dangerous condition of the property as 5 aforesaid Plaintiff s was were caused to and did secure the service of hospitals doctors and 6 other practitioners of the healing arts and Plaintiff s is aze informed and believes and on the 7 basis thereof alleges that Plaintiff s will be caused to seek such services in the future As a 8 direct and legal result thereof Plaintiff s has have incurred and will continue to incur medical 9 and other health related expenses and will in the future incur additiona medical and other 10 health related expenses all in an amount not presently ascertained Plaintiff s will seek leave of 11 court in order to set forth this amount when the same has been ascertained That as a further direct and legal result of the negligence and unlawfulness of 13 Defendants and each of them as aforesaid and the dangerous condition of the property as 14 aforesaid P1ainYiff s was were prevented from employment and Plaintiff s is are informed and 15 believes and on the basis thereof alleges that Plaintiff s will be prevented from such 16 employment in the future As a direct and legal result thereof Plaintiff s is are entitled to 17 damages for earnings and loss of earning capacity all in an amount not presently ascertained 18 Plaintiff s will seek leave of court in order to set forth said amounts when same has been 19 ascertained 20 SECOND CAUSE OF ACTION 21 Dangerous Conditions of Premises as to All Defendants Plaintiff s incorporates by reference and repeats and re alleges as fully set fort 23 herein in paragraphs 1 through 16 of Plaintiffls complaint That on or about September Plaintiff s Mary Barnhill was were on the 25 premises of the Defendant City of San Bernardino s roadway and DO S 1 25 inclusive and 26 each of them located at Clark Street in the City of San Bernardino within the County of San 27 Bernardino State of California with the consent and permission implied or express of each of 28 them so negligently and carelessly owned operated maintained controlled repaired inspected 4 COMPLAINT FOR DAMAGES

10 Main Document Page 10 of or otherwise exercised influence over the operations of the street aforesaid as to cause 2 Plaintiff s to be injured At the time of the injury Yhe premises were traveled by pedestrian 3 traffic 4 19 That as a direct and legal result of the dangerous condition of DefendanYs 5 roadway and DOES 1 25 inclusive and each of them created a dangerous condition of public 6 property that created a substantial risk of injury to pedestrians while traveling with due care in a 7 manner in which it is reasonably foreseeable that it would be used aforesaid further the raised 8 sidewalk created a hazardous trap and that the dangerous condition existed at the time of injury 9 and that Plaintiff s was were caused to sustained injury and damage some or all of which is 0 permanent in nature Tbat as a direct and legal result thereof Plaintiff s is are entitled to 11 general and compensatory damages for pain suffering and emotional distress in an amount to be 12 determined at the time of trial herein Defendant is liable for negligence and dangerous 13 condition under Government Code Section 820 a a and That as a direct and legal result of the dangerous and unsafe condition of the 15 roadway aforesaid there was a reasonable foreseeable risk that the kind of injury that the kind of 16 injury that occurred would result from such condition and that the condition could not be 17 regarded as trivial as a matter of law That as a further direct and legal result of the dangerous condition of the property 19 aforesaid Plaintiff s was were caused to and did secure the service of hospitals doctors and 20 other practitioners of the healing arts and Plaintiff s is are infornied and believes and on the 21 basis thereof alleges that Plaintiff s will be caused to seek such services in the future As a 22 direct and legal result thereof Plaintiff s has have incurred and will continue to incur medical 23 and other health related expenses and will in the future incur additional medical and other 24 health related expenses all in an amount not presently ascertained Plaintiff s will seek leave of 25 court in order to set forth this amount when the same has been ascertained That as a further direct and legal result of the dangerous condition of the property 27 as aforesaid Plaintiff s was were prevented from employment and Plaintiff s is are informed 28 and believes and on the basis thereof alleges that Plaintiff s will be prevented from such 5 COMPLAINT FOR DAMAGES

11 Main Document Page 11 of employment in the future As a direct and legal result thereof Plaintiff s is are entitled to 2 damages for earnings and loss of earning capacity all in an amount not presently ascertained 3 Plaintiff s will seek leave of court in order to set forth said amounts when same has been 4 ascertained 5 WHEREFORE Plaintiff s pray for judgment as follows 6 1 For general damages to be determined at the time of trial 7 2 For past and future medical specials to be determined at the time of trial 8 3 Loss of earnings and earning capacity to be determined at the time of trial 9 4 For property damage 10 5 For costs of suit incurred herein and 11 6 For such other and further relief as the court deems just and proper in the 12 premises 13 DATED G Zb o o S THE LAW OFFICES OF RIPLEY ASSOC APC 14 y Vickie Cartony Esq Attorney for Plaintiff s MARY BARNHILL COMPLAINT FOR DAMAGES

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13 Case 6:12-bk MJ 5:13-cv JLS-JC Doc 2507 Document Filed 6 06/13/18 Filed 09/12/13 Entered Page 06/13/18 1 of 815:58:51 Page ID #:21 Desc Main Document Page 13 of 112 FILED CLERK, U.S. DISTRICT COURT 09/12/2013 CENTRAL DISTRICT OF CALIFORNIA BY: AP DEPUTY JST N/S

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22 Case 5:17-cv JGB-SP Document 1 Filed 03/20/17 Page 1 of 16 Page ID #:1 Case 6:12-bk MJ Doc 2507 Filed 06/13/18 Entered 06/13/18 15:58:51 Desc Main Document Page 22 of JOHN L. BURRIS ESQ., SBN DEWITT LACY, ESQ., SBN LAW OFFICES OF JOHN L. BURRIS Airport Corporate Centre 7677 Oakport Street, Suite 1120 Oakland, California Telephone: (510) Facsimile: (510) john.burris@johnburrislaw.com dewitt.lacy@johnburrislaw.com Attorneys for Plaintiff KATHRYN FREDERICK UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA KATHRYN FREDERICK, individually and as successor-in-interest to Decedent CODY JARRETT, vs. Plaintiffs, CITY OF SAN BERNARDINO, a municipal corporation; and DOES 1-50, inclusive, individually and in their official capacity as police officers for the City of San Bernardino, Defendants. CASE NO.: 5:17-cv COMPLAINT FOR DAMAGES (42 U.S.C. Section 1983 and pendent tort claims) JURY TRIAL DEMANDED INTRODUCTION 1. This case arises out of the wrongful death of Cody Jarrett. On July 16, 2016, Mr. Jarrett was pulled over by an unidentified officer of the San Bernardino Police Department. After the traffic stop, the officer released Mr. Jarrett, who continued traveling down the road and into the parking lot of a local shopping market. The officer followed Mr. Jarrett into the parking lot where he COMPLAINT FOR DAMAGES - 1

23 Case 5:17-cv JGB-SP Document 1 Filed 03/20/17 Page 2 of 16 Page ID #:2 Case 6:12-bk MJ Doc 2507 Filed 06/13/18 Entered 06/13/18 15:58:51 Desc Main Document Page 23 of attempted to re-engage with him. The officer drew his taser and aimed it at Mr. Jarrett before delivering a powerful shock that caused Mr. Jarrett to collapse. Mr. Jarret stood up from the ground with his hands up. The unidentified officer still had his taser aimed at Mr. Jarrett. The officer attempted to tase Mr. Jarrett again, however, Mr. Jarrett fled on foot. The officer then drew his service weapon and pursued Mr. Jarrett. When Mr. Jarrett was in the officer's line of sight, without cause or legal justification, the officer began firing shots at Mr. Jarrett, striking him multiple times in the back and killing him. 2. This civil rights and wrongful death action seeks compensatory and punitive damages from Defendants for violating various rights under the United States Constitution and state law in connection with the fatal police shooting of the Decedent, Cody Jarrett JURISDICTION AND VENUE 3. This action arises under Title 42 of the United States Code, Title 28 of the United States Code, 1331 and 1343 confers jurisdiction upon this Court. The unlawful acts and practices alleged herein occurred in the City of San Bernardino, County of San Bernardino, California, which is within the judicial district of this Court. 4. The Supplemental Jurisdiction of this court is invoked pursuant to 28 U.S.C over the State law claims which are so related to federal claims in the action that they form part of the same case or controversy under Article III of the Constitution of the United States of America. 5. Venue is proper in this Court under 28 U.S.C. 1391(b) because Defendants are believed to reside in this district and all incidents, events, and occurrences giving rise to this action occurred in this district. PARTIES 6. Decedent CODY JARRETT (hereinafter "Decedent") was an individual residing in the State of California. Decedent died intestate. Decedent did not file any legal actions prior to his death. To the extent that this action seeks to recover damages for the violation of rights personal to Decedent, this action is maintained by his Successor-in-Interest KATHRYN FREDERICK. Said 28 COMPLAINT FOR DAMAGES - 2

24 Case 5:17-cv JGB-SP Document 1 Filed 03/20/17 Page 3 of 16 Page ID #:3 Case 6:12-bk MJ Doc 2507 Filed 06/13/18 Entered 06/13/18 15:58:51 Desc Main Document Page 24 of Plaintiff is the person with standing to bring this action as Decedent was unmarried at the time of his 2 3 death. 7. Plaintiff KATHRYN FREDERICK (hereinafter Plaintiff KATHRYN FREDERICK ), is and was at all times herein mentioned the biological mother of Decedent. Plaintiff KATHRYN FREDERICK sues in her individual capacity and as Successor-in-Interest to Decedent. 8. Defendant CITY OF SAN BERNARDINO (hereinafter City ) is an incorporated public entity duly authorized and existing as such in and under the laws of the State of California; and at all times herein mentioned, Defendant City has possessed the power and authority to adopt policies and prescribe rules, regulations and practices affecting the operation of the San Bernardino Police Department and its tactics, methods, practices, customs and usage. At all relevant times, Defendant City was the employer of DOES Defendants, individually and as a peace officers. 9. Plaintiff is ignorant of the true names and capacities of Defendants DOES 1 through 25, inclusive, and therefore sues these defendants by such fictitious names. Plaintiff alleges Defendants DOES 1 through 25 violated Decedent's civil rights, wrongfully caused his death, and/or encouraged, directed, enabled and/or ordered other defendants to engage in such conduct. Plaintiff further alleges that the DOE Defendants violated Plaintiff s Fourteenth Amendment rights to familial association and companionship and caused the wrongful death of Decedent. Plaintiff will amend this Complaint to state the names and capacities of DOES 1 through 25, inclusive, when they have been ascertained. 10. Plaintiff is ignorant of the true names and capacities of Defendants DOES 26 through 50, inclusive, and therefore sues these defendants by such fictitious names. Plaintiff is informed and believes and thereon alleges that each Defendant so named was employed by Defendant City at the time of the conduct alleged herein. Plaintiff alleges that each of Defendants DOES were responsible for the training, supervision and/or conduct of the police officers and/or agents involved in the conduct alleged herein. Plaintiff alleges that each of Defendants DOES 26 through 50 was also responsible for and caused the acts and injuries alleged herein. Plaintiff will amend this Complaint to state the names and capacities of DOES 26 through 50, inclusive, when they have been ascertained. 28 COMPLAINT FOR DAMAGES - 3

25 Case 5:17-cv JGB-SP Document 1 Filed 03/20/17 Page 4 of 16 Page ID #:4 Case 6:12-bk MJ Doc 2507 Filed 06/13/18 Entered 06/13/18 15:58:51 Desc Main Document Page 25 of ADMINISTRATIVE PREREQUISITES 11. Plaintiff is required to comply with an administrative tort claim requirement under California law. Plaintiff filed a claim against the City of San Bernardino on September 13, On September 20, 2016, Plaintiff received notice that the City of San Bernardino rejected her claim. Plaintiff has exhausted all administrative remedies pursuant to California Government Code Section 910. PRELIMINARY ALLEGATIONS 12. The City of San Bernardino is a public entity and is being sued under Title 42 U.S.C for violations of the Fourteenth Amendments of the United States Constitution, California state law, the California Tort Claims Act, and the Government Code for the acts and omissions of Defendants DOES 1-25, and each of them, who at the time they caused Plaintiff s and Decedent's injuries, damages and death were duly appointed, qualified and acting officers, employees, and/or agents of City and acting within the course and scope of their employment and/or agency. 13. Plaintiff alleges that the conduct of each defendant deprived Decedent of his constitutional right to life and caused Decedent to suffer grievous harm prior to his death. 14. Each of the Defendants caused and is responsible for the unlawful conduct and resulting harm by, inter alia, personally participating in the conduct, or acting jointly and in concert with others who did so, by authorizing, acquiescing, condoning, acting, omitting or failing to take action to prevent the unlawful conduct, by promulgating or failing to promulgate policies and procedures pursuant to which the unlawful conduct occurred, by failing and refusing to initiate and maintain proper and adequate policies, procedures and protocols, and by ratifying and condoning the unlawful conduct performed by agents and officers under their direction and control. 15. Whenever and wherever reference is made in this Complaint to any act by Defendants DOES 1-50, such allegations and references shall also be deemed to mean the acts and failures to act of each DOE Defendants individually, jointly or severally. MONELL ALLEGATIONS COMPLAINT FOR DAMAGES - 4

26 Case 5:17-cv JGB-SP Document 1 Filed 03/20/17 Page 5 of 16 Page ID #:5 Case 6:12-bk MJ Doc 2507 Filed 06/13/18 Entered 06/13/18 15:58:51 Desc Main Document Page 26 of Based upon the principles set forth in Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), City is liable for all injuries sustained by Plaintiff as set forth herein. City bears liability because its policies, practices and/or customs were a cause of Decedent's death and Plaintiff s injuries. City and its officials maintained or permitted one or more of the following official policies or customs: a) Failure to provide adequate training and supervision to police officers with respect to constitutional limits on the use of deadly force; b) Failure to provide adequate training and supervision to police officers with respect to constitutional limits on use of force, arrest, search, and detention; c) Failure to adequately discipline or retrain officers involved in misconduct; d) Selection, retention, and assignation of officers with demonstrable propensities for excessive force, violence, dishonesty, and other misconduct; e) Encouragement of officers in the belief that they can violate the rights of persons, such as Plaintiff, with impunity, and that such conduct will not adversely affect their opportunities for promotion and other employment benefits.; f) Ratification by the highest levels of authority of the specific unconstitutional acts alleged in this complaint and, in particular, the ratification of the unjustified shooting of Decedent FACTUAL ALLEGATIONS 17. On July 16, 2016, at or about 7:00 p.m., Decedent was driving down a city street near the intersection of Highland Avenue and Mountain View Avenue in San Bernardino, California. While driving, an unidentified officer of the San Bernardino Police Department stopped Decedent. 18. Decedent pulled over and had verbal exchange with the officer. Shortly after, the officer released Decedent, who continued traveling down the road and into the parking lot of a local shopping market. The officer also drove away from the area of the traffic stop, however, he followed Decedent into the parking lot where he attempted to re-engage with Decedent. 28 COMPLAINT FOR DAMAGES - 5

27 Case 5:17-cv JGB-SP Document 1 Filed 03/20/17 Page 6 of 16 Page ID #:6 Case 6:12-bk MJ Doc 2507 Filed 06/13/18 Entered 06/13/18 15:58:51 Desc Main Document Page 27 of The officer stopped his car several feet from where Decedent was parked and motioned with his hand for Decedent to come over to the police car. When Decedent did not immediately comply with the officer's request, the officer approached Decedent, grabbed his arm and began to forcibly pull Decedent towards the police car. As the two men reached the police car, Decedent was able to escape the grip of the officer. The two men were face to face on opposite sides of the patrol car. The officer attempted to grab Decedent but was not able to do so. He continued to stalk Decedent in a circular motion around the car with increasing speed. Suddenly, the officer drew his taser and aimed it at Decedent before delivering a powerful shock that caused Decedent to collapse. Moments later, Decedent stood up from the ground with his hands up. The unidentified officer still had his taser aimed at Decedent. The officer attempted to deliver a second shock, however, Decedent prevented this by fleeing on foot. The officer then drew his service weapon and pursued Decedent. When Decedent was in the officer's line of sight, without cause or legal justification, the officer began firing shots at Decedent, striking him multiple times in the back. Decedent died as a result of his injuries. 20. Decedent's death was proximately caused by the injuries he suffered at the hands of the Defendant City of San Bernardino Police Officer. 21. Plaintiff alleges that a reasonable officer in Defendants position would have clearly been on notice that Decedent did not pose a threat of harm to anyone at the time that he was needlessly shot to death. 22. The actions and omissions of City and the DOE Defendant San Bernardino Police Department Officers were objectively unreasonable under the circumstances, without legal justification or other legal right, done under color of law, within the course and scope of their employment as law enforcement officers and/or public officials, and pursuant to unconstitutional customs, policies and procedures of City and/or other jurisdictions. 23. Plaintiff is informed and believes and thereon alleges that City and DOES 26-50, inclusive, breached their duty of care to the public in that they have failed to discipline DOES Their failure to discipline DOES 1-25 inclusive, demonstrates the existence of an entrenched culture, policy or practice of promoting, tolerating and/or ratifying with deliberate indifference the making of COMPLAINT FOR DAMAGES - 6

28 Case 5:17-cv JGB-SP Document 1 Filed 03/20/17 Page 7 of 16 Page ID #:7 Case 6:12-bk MJ Doc 2507 Filed 06/13/18 Entered 06/13/18 15:58:51 Desc Main Document Page 28 of improper detentions and arrests, the use of excessive and/or deadly force and the fabrication of official reports to cover up DOES 1-25 s inclusive, misconduct. 24. Plaintiff is informed and believes and thereon alleges that members of the San Bernardino Police Department, including, but not limited to DOES 1-25 and/or each of them, have individually and/or while acting in concert with one another, engaged in a repeated pattern and practice of using excessive, arbitrary and/or unreasonable force against individuals, including, but not limited to Decedent. 25. Plaintiff is informed, believes and therein alleges that City knew or had reason to know by way of actual or constructive notice of the aforementioned policy, culture, pattern and/or practice and the complained of conduct and resultant injuries/violations. 26. At all material times, and alternatively, the actions and omissions of each Defendant were conscience-shocking, reckless, deliberately indifferent to Decedent s and Plaintiff s rights, negligent, and objectively unreasonable. DAMAGES 27. As a consequence of Defendants violation of Plaintiff s federal civil rights under 42 U.S.C and the Fourth and Fourteenth Amendments, Plaintiff was mentally, and emotionally injured and damaged as a proximate result of Decedent s wrongful death, including but not limited to: Plaintiff s loss of familial relations, Decedent s society, comfort, protection, companionship, love, affection, solace, and moral support and financial support. 28. Plaintiff seeks both survival and wrongful death damages, pursuant to C.C.P. Sections and and Probate Code Section 6402(b), for the violation of both Decedent s and her rights. Additionally, Plaintiff is entitled to the reasonable value of funeral and burial expenses pursuant to C.C.P and and loss of financial support. 29. Plaintiff is further entitled to recover damages incurred by Decedent before he died as a result of being deprived without due process of his right to life, and to any penalties or punitive damages to which Decedent would have been entitled to recover had he lived, including damages incurred by Decedent consisting of pain and suffering he endured as a result of the violation of his civil rights. COMPLAINT FOR DAMAGES - 7

29 Case 5:17-cv JGB-SP Document 1 Filed 03/20/17 Page 8 of 16 Page ID #:8 Case 6:12-bk MJ Doc 2507 Filed 06/13/18 Entered 06/13/18 15:58:51 Desc Main Document Page 29 of Plaintiff found it necessary to engage the services of private counsel to vindicate the rights of Decedent and Plaintiff s rights under the law. Plaintiff is therefore entitled to an award of attorneys fees and/or costs pursuant to statute(s) in the event that he is the prevailing party in this action under 42 U.S.C. 1983, and FIRST CAUSE OF ACTION (42 U.S.C. section 1983) (Survival Action: Excessive Force) (Plaintiff KATHRYN FREDERICK, Successor-in-Interest to Decedent Cody Jarrett against Defendants DOES 1-25) 31. Plaintiff hereby re-alleges and incorporates by reference herein paragraphs 1 through 30 of this Complaint. 32. The foregoing claim for relief arose in Decedent s favor and Decedent would have been the Plaintiff with respect to this claim if he had lived. 33. Defendant(s) unjustified shooting deprived Decedent of his right to be secure in his person against unreasonable searches and seizures as guaranteed to Decedent under the Fourth Amendment to the United States Constitution and applied to state actors by the Fourteenth Amendment. 34. As a result, Decedent suffered extreme pain and suffering and eventually suffered a loss of life and of earning capacity. Plaintiff has also been deprived of the life-long love, companionship, comfort, support, society, care, and sustenance of Decedent, and will continue to be so deprived for the remainder of their natural lives. 35. This use of deadly force was excessive and unreasonable under the circumstances, especially since Decedent never injured or attempted to injure any officer or any other person. Moreover, the gunshots were to Decedent's back while he posed no threat of harm. Defendants' actions thus deprived Decedent of his right to be free from unreasonable searches and seizures under the Fourth Amendment and applied to state actors by the Fourteenth Amendment. 36. The conduct of Defendants was willful, wanton, malicious, and done with reckless disregard for the rights and safety of Decedent. WHEREFORE, Plaintiff prays for relief as hereinafter set forth. COMPLAINT FOR DAMAGES - 8

30 Case 5:17-cv JGB-SP Document 1 Filed 03/20/17 Page 9 of 16 Page ID #:9 Case 6:12-bk MJ Doc 2507 Filed 06/13/18 Entered 06/13/18 15:58:51 Desc Main Document Page 30 of SECOND CAUSE OF ACTION (42 U.S.C. section 1983) (Survival Action: Denial of Medical Care) (Plaintiff KATHRYN FREDERICK, Successor-in-Interest to Decedent Cody Jarrett against Defendants DOES 1-25) 37. Plaintiff hereby re-alleges and incorporates by reference herein paragraphs 1 through 36 of this Complaint. 38. The foregoing claim for relief arose in Decedent s favor and Decedent would have been the Plaintiff with respect to this claim if he had lived. 39. The denial of medical care by Defendants deprived Decedent of his right to be secure in his person against unreasonable searches and seizures as guaranteed to Decedent under the Fourth Amendment to the United States Constitution and applied to state actors by the Fourteenth Amendment. 40. As a result, Decedent suffered extreme pain and suffering and eventually suffered a loss of life and earning capacity. Plaintiff has also been deprived of the life-long love, companionship, comfort, support, society, care, and sustenance of Decedent, and will continue to be so deprived for the remainder of their natural lives. 41. Defendants knew that failure to provide timely medical treatment to Decedent could result in further significant injury or the unnecessary and wanton infliction of pain, but disregarded that serious medical need, causing Decedent great bodily harm and death. 42. The conduct of Defendants was willful, wanton, malicious, and done with reckless disregard for the rights and safety of Decedent. WHEREFORE, Plaintiff prays for relief as hereinafter set forth. THIRD CAUSE OF ACTION (42 U.S.C. 1983) (Violation of Plaintiffs 14 th Amendment Rights/Right to Familial Relationship) (Plaintiff KATHRYN FREDERICK, Successor-in-Interest to Decedent Cody Jarrett against Defendants DOES 1-25) COMPLAINT FOR DAMAGES - 9

31 Case 5:17-cv JGB-SP Document 1 Filed 03/20/17 Page 10 of 16 Page ID #:10 Case 6:12-bk MJ Doc 2507 Filed 06/13/18 Entered 06/13/18 15:58:51 Desc Main Document Page 31 of Plaintiff hereby re-alleges and incorporates by reference herein paragraphs 1 through 42 of this Complaint. 44. Plaintiff KATHRYN FREDERICK had a cognizable interest under the Due Process Clause of the Fourteenth Amendment of the United States Constitution to be free from state actions that deprive her of life, liberty, or property in such a manner as to shock the conscience, including but not limited to, unwarranted state interference in Plaintiff's familial relationship with her son, Decedent. 45. Decedent had a cognizable interest under the Due Process Clause of the Fourteenth Amendment of the United States Constitution to be free from state actions that deprive him of his right to life, liberty, or property in such a manner as to shock the conscience. 46. As a result of the excessive force by Defendants, Decedent died. Plaintiff was thereby deprived of her constitutional right of familial relationship with her son, Decedent. 47. Defendants, acting under color of state law, thus violated the Fourteenth Amendment rights of Plaintiff to be free from unwarranted interference with her familial relationship with Decedent. 48. The aforementioned actions of Defendants, along with other undiscovered conduct, shock the conscience, in that they acted with deliberate indifference to the constitutional rights of Decedent, Plaintiff KATHRYN FREDERICK, and with purpose to harm unrelated to any legitimate law enforcement objective. 49. Defendants, acting under color of state law, thus violated the Fourteenth Amendment rights of Decedent and Plaintiff. 50. As a direct and proximate cause of the acts of Defendants, Decedent experienced severe pain and suffering and lost his life and earning capacity. Plaintiff suffered extreme and severe mental anguish and pain and has been injured in mind and body. Plaintiff has also been deprived of the life-long love, companionship, comfort, support, society, care and sustenance of Decedent, and will continue to be so deprived for the remainder of her natural life. 51. As a result of the conduct of Defendants, they are liable for Decedent's injuries, either because they were integral participants in the denial of due process, or because they failed to intervene to prevent these violations. COMPLAINT FOR DAMAGES - 10

32 Case 5:17-cv JGB-SP Document 1 Filed 03/20/17 Page 11 of 16 Page ID #:11 Case 6:12-bk MJ Doc 2507 Filed 06/13/18 Entered 06/13/18 15:58:51 Desc Main Document Page 32 of The conduct of Defendants was willful, wanton, malicious, and done with reckless disregard for the rights and safety of Decedent and Plaintiff. WHEREFORE, Plaintiff prays for relief as hereinafter set forth. FOURTH CAUSE OF ACTION (42 U.S.C. Section 1983) (Monell - Municipal Liability for Unconstitutional Custom or Policy) (Plaintiff KATHRYN FREDERICK, Successor-in-Interest to Decedent Cody Jarrett against Defendants City and DOES 26-50) 53. Plaintiff hereby re-alleges and incorporates by reference herein paragraphs 1 through 52 of this Complaint. 54. On information and belief Defendants DOES 1-25 conduct, individually and as peace officers was ratified by City s police department supervisorial officers DOES Decedent. 55. On information and belief, Defendants were not disciplined for the killing of 56. On and for some time prior to July 16, 2016, (and continuing to the present day) Defendants, individually and as peace officers, deprived Plaintiff and Decedent of the rights and liberties secured to them by the Fourth and Fourteenth Amendment to the United States Constitution, in that said defendants and their supervising and managerial employees, agents, and representatives, acting with gross negligence and with reckless and deliberate indifference to the rights and liberties of the public in general, and of Plaintiff and Decedent, and of persons in their class, situation and comparable position in particular, knowingly maintained, enforced and applied an official recognized custom, policy, and practice of: a) Employing and retaining as police officers and other personnel, including Defendants, individually and as peace officers; who at all times material herein knew or reasonably should have known had dangerous propensities for abusing their authority and for mistreating citizens by failing to follow written City Police Department policies, including the use of excessive and deadly force; b) Of inadequately supervising, training, controlling, assigning, and disciplining City Police officers, and other personnel, including Defendants who City knew or in the COMPLAINT FOR DAMAGES - 11

33 Case 5:17-cv JGB-SP Document 1 Filed 03/20/17 Page 12 of 16 Page ID #:12 Case 6:12-bk MJ Doc 2507 Filed 06/13/18 Entered 06/13/18 15:58:51 Desc Main Document Page 33 of exercise of reasonable care should have known had the aforementioned propensities and character traits, including the propensity for violence and the use of excessive force; c) Of inadequately supervising, training, controlling, assigning, and disciplining City Police officers, and other personnel, including Defendants in responding to individuals who were mentally impaired or disabled; d) By maintaining grossly inadequate procedures for reporting, supervising, investigating, reviewing, disciplining and controlling the intentional misconduct by Defendants who are Police Officers of City; e) By failing to discipline City Police Officers conduct, including but not limited to, unlawful detention and excessive and deadly force; f) By ratifying the intentional misconduct of Defendants and other officers who are Police Officers of City; g) By having and maintaining an unconstitutional policy, custom and practice of detaining and arresting individuals without probable cause or reasonable suspicion, and using excessive force, including deadly force, which also is demonstrated by inadequate training regarding these subjects. The policies, customs and practices of Defendants were done with a deliberate indifference to individuals safety and rights; and h) By failing to properly investigate claims of unlawful detention and excessive force by City Police Officers. 57. By reason of the aforementioned policies and practices of Defendants, individually and as peace officers, Decedent was severely injured and subjected to pain and suffering and lost his life and earning capacity for which Plaintiff is entitled to recover damages. 58. Defendants, individually and as peace officers, together with various other officials, whether named or unnamed, had either actual or constructive knowledge of the deficient policies, practices and customs alleged in the paragraphs above. Despite having knowledge as stated above these defendants condoned, tolerated and through actions and inactions thereby ratified such policies. COMPLAINT FOR DAMAGES - 12

34 Case 5:17-cv JGB-SP Document 1 Filed 03/20/17 Page 13 of 16 Page ID #:13 Case 6:12-bk MJ Doc 2507 Filed 06/13/18 Entered 06/13/18 15:58:51 Desc Main Document Page 34 of Said defendants also acted with deliberate indifference to the foreseeable effects and consequences of these policies with respect to the constitutional rights of Decedent, Plaintiff, and other individuals similarly situated. 59. By perpetrating, sanctioning, tolerating and ratifying the outrageous conduct and other wrongful acts, Defendants, individually and as peace officers; acted with an intentional, reckless, and callous disregard for the life of Decedent. Each of their actions were willful, wanton, oppressive, malicious, fraudulent, and extremely offensive and unconscionable to any person of normal sensibilities. 60. Furthermore, the policies practices, and customs implemented and maintained and still tolerated by Defendants, individually and as peace officers; were affirmatively linked to and were significantly influential force behind the injuries of Decedent and Plaintiff. 61. By reason of the aforementioned acts and omissions of Defendants, individually and as peace officers, Plaintiff was caused to incur funeral and related burial expenses, loss of gifts and benefits and loss of financial support. 62. By reason of the aforementioned acts and omissions of Defendants, individually and as peace officers, Plaintiff has suffered loss of love, companionship, affection, comfort, care, society, and future support. 63. Accordingly, Defendants, individually and as peace officers, each are liable to Plaintiffs for compensatory damages under 42 U.S.C WHEREFORE, Plaintiff prays for relief as hereinafter set forth. FIFTH CAUSE OF ACTION (C.C.P. Section and ) (Wrongful Death- Negligence) (Plaintiff KATHRYN FREDERICK, Successor-in-Interest to Decedent Cody Jarrett against Defendants DOES 1-25) 64. Plaintiff re-alleges and incorporates by reference herein paragraphs 1 through 63 of this Complaint, except for any and all allegations of intentional, malicious, extreme, outrageous, wanton, and oppressive conduct by defendants, and any and all allegations requesting punitive damages. COMPLAINT FOR DAMAGES - 13

35 Case 5:17-cv JGB-SP Document 1 Filed 03/20/17 Page 14 of 16 Page ID #:14 Case 6:12-bk MJ Doc 2507 Filed 06/13/18 Entered 06/13/18 15:58:51 Desc Main Document Page 35 of Defendants shot and killed Decedent despite the absence of a threat to a defendant officer or any other person. Because Decedent died intestate, unmarried, and without issue, Plaintiffs are the proper persons to sue for his wrongful death under California state law. 66. Defendants negligent actions and/or negligent failure to act within the scope and course of their employment with Defendant City, as set forth herein-above proximately caused the death of Decedent. 67. As an actual and proximate result of said Defendants negligence, and the death of Decedent, Plaintiff has sustained pecuniary loss resulting from the loss of comfort, society, attention, services, and support of her son, Decedent, in an amount according to proof at trial. 68. As a further actual and proximate result of said Defendants negligence, Plaintiff has incurred funeral and burial expenses, in an amount according to proof at trial. 69. Pursuant to California C.C.P. Sections and , Plaintiff has brought this action, and claim damages from said Defendants for the wrongful death of Decedent, and the resulting injuries and damages. WHEREFORE, Plaintiff prays for relief as hereinafter set forth. SIXTH CAUSE OF ACTION (Violation of California Civil Code 52.1) (Plaintiff KATHRYN FREDERICK, Successor-in-Interest to Decedent Cody Jarrett against Defendants DOES 1-25) 70. Plaintiff hereby re-alleges and incorporates by reference herein paragraphs 1 through 69 of this Complaint. 71. Defendants above-described conduct constituted interference, and attempted interference, by threats, intimidation and coercion, with the Decedent's peaceable exercise and enjoyment of rights secured by the Constitution and laws of the United States and the State of California, in violation of California Civil Code As a direct and proximate result of Defendant's violation of Civil Code 52.1, Decedent suffered violations of his constitutional rights, and suffered damages as set forth herein. 73. Plaintiff is entitled to injunctive relief and an award of their reasonable attorney s fees pursuant to Civil Code 52.1(h). COMPLAINT FOR DAMAGES - 14

36 Case 5:17-cv JGB-SP Document 1 Filed 03/20/17 Page 15 of 16 Page ID #:15 Case 6:12-bk MJ Doc 2507 Filed 06/13/18 Entered 06/13/18 15:58:51 Desc Main Document Page 36 of Plaintiff is entitled to treble damages, but in no case less than $4, and an award of his reasonable attorney s fees pursuant to Civil Code 52(a). 75. Under the provisions of California Civil Code 52(b), Defendant is liable for punitive damages for each violation of Civil Code 52.1, reasonable attorney s fees and an additional $25, WHEREFORE, Plaintiff prays for relief as hereinafter set forth. SEVENTH CAUSE OF ACTION (Survival Action: Assault and Battery) (Plaintiff KATHRYN FREDERICK, Successor-in-Interest to Decedent Cody Jarrett against Defendants DOES 1-25) 76. Plaintiff hereby re-alleges and incorporates by reference herein paragraphs 1 through 75 of this Complaint. 77. Defendants shot Decedent without cause. Defendants' conduct was neither privileged nor justified under statute or common law. WHEREFORE, Plaintiff prays for relief as hereinafter set forth. EIGHT CAUSE OF ACTION (Survival Action: Intentional Infliction of Emotional Distress) (Plaintiff KATHRYN FREDERICK, Successor-in-Interest to Decedent Cody Jarrett against Defendants DOES 1-25) 78. Plaintiff hereby re-alleges and incorporates by reference herein paragraphs 1 through 77 of this Complaint. 79. Defendants above-described conduct was extreme, unreasonable and outrageous. 80. In engaging in the above-described conduct, defendant intentionally ignored or recklessly disregarded the foreseeable risk that Decedent would suffer extreme emotional distress as a result of defendants conduct. WHEREFORE, Plaintiff prays for relief as hereinafter set forth. JURY DEMAND 81. Plaintiff hereby demands a jury trial in this action. 28 COMPLAINT FOR DAMAGES - 15

37 Case 5:17-cv JGB-SP Document 1 Filed 03/20/17 Page 16 of 16 Page ID #:16 Case 6:12-bk MJ Doc 2507 Filed 06/13/18 Entered 06/13/18 15:58:51 Desc Main Document Page 37 of PRAYER WHEREFORE, Plaintiff prays for relief, as follows: 1. For general damages in a sum according to proof; 2. For special damages in a sum according to proof; 3. For punitive damages in a sum according to proof; 4. For reasonable attorney s fees pursuant to 42 U.S.C. Section 1988; 5. For any and all statutory damages allowed by law; 6. For cost of suit herein incurred; and 7. For such other and further relief as the Court deems just and proper Dated: March 20, 2017 LAW OFFICES OF JOHN L. BURRIS /s/ John L. Burris John L. Burris Attorney for Plaintiff _ Dated: March 20, 2017 /s/ DeWitt M. Lacy DeWitt M. Lacy Attorney for Plaintiff _ COMPLAINT FOR DAMAGES - 16

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57 Case Case 6:12-bk MJ 5:16-cv R-JC Doc Document 2507 Filed 1 06/13/18 Filed 05/31/16 Entered Page 06/13/181 of 9 15:58:51 Page ID #:1 Desc Main Document Page 57 of 112 FILED CLERK, U.S. DISTRICT COURT MAY CENTRAL DISTRICT OF CALIFORNIA BY: DEPUTY RS 5:16-CV R-JC RECEIVED CLERK, U.S. DISTRICT COURT MAY CENTRAL DISTRICT OF CALIFORNIA BY: DEPUTY

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