UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 R. Rex Parris, Esq. (SBN: Jason P. Fowler, Esq. (SBN: Ryan K. Kahl, Esq. (SBN: Sean J. Lowe, Esq. (SBN: R. REX PARRIS LAW FIRM 0th Street West Lancaster, California Telephone: ( - Facsimile: ( - Attorneys for Plaintiffs UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION RICHARD VOS, individually and as successor-in-interest to Gerrit Vos; and JENELLE BERNACCHI, individually and as successor-in-interest to Gerrit Vos, v. Plaintiffs, CITY OF NEWPORT BEACH, a governmental entity; RICHARD HENRY, NATHAN FARRIS; DAVE KRESGE; and DOES through 0, inclusive, Defendants. Case No.: PLAINTIFFS COMPLAINT FOR DAMAGES. Excessive Force Violation of Decedent s Civil Rights ( U.S.C.,. Violation of Title II of the Americans with Disabilities Act of 0 ( U.S.C. et seq.. Violation of the Rehabilitation Act of ( U.S.C. 0 et seq.. Violation of Plaintiffs Civil Rights to a Familial Relationship ( U.S.C.,. Municipal and Supervisory Liability ( U.S.C.,. Wrongful Death Negligence. Wrongful Death - Negligent Hiring, Training and Retention. Battery. Assault 0. Violation of Civil Rights (Cal. Civ. Code.. Survivor Claims. Civil Conspiracy ( U.S.C., DEMAND FOR JURY TRIAL Plaintiffs RICHARD VOS, individually and as successor-in-interest to Gerrit Vos, and JENELLE BERNACCHI, individually and as successor-in-interest to Gerrit Vos,

2 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 complain against defendants CITY OF NEWPORT BEACH, a governmental entity, RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and DOES through 0, inclusive, and allege as follows: JURISDICTION. This Court has jurisdiction over Plaintiffs claims under U.S.C. and. Plaintiffs have a claim under federal law, and all of their claims share a common nucleus of facts, making supplemental jurisdiction appropriate for Plaintiffs state law claims.. Venue is proper within this judicial district under U.S.C. (b( and ( because, on information and belief, all defendants reside within this district, and all of the events giving rise to Plaintiffs claims occurred in this district. PARTIES. Plaintiffs are ignorant of the true names and capacities of defendants sued herein as DOES through 0, inclusive, and therefore sue these defendants by such fictitious names. Plaintiffs will amend this Complaint to allege said defendants true names and capacities when such are ascertained. Plaintiffs are informed and believe and thereon allege that each of the fictitiously named defendants are responsible in some manner for the occurrences herein alleged, and that plaintiff damages as herein alleged were proximately caused by the acts and/or omissions of said fictitiously name defendants.. At all times herein mentioned, the CITY OF NEWPORT BEACH, includes its agents, the CITY OF NEWPORT BEACH POLICE DEPARTMENT, and other departments that are public entities responsible for the safety in the CITY OF NEWPORT BEACH, where the incident that is the subject of this litigation occurred.. On or about November,, plaintiff RICHARD VOS submitted a written tort claim to the CITY OF NEWPORT BEACH, including its agents, the CITY OF NEWPORT BEACH POLICE DEPARTMENT. Those claims were impliedly or expressly denied on or about November,, and plaintiffs now have standing to

3 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 name said defendants in this action.. On or about November,, plaintiff JENELLE BERNACCHI submitted a written tort claim to the CITY OF NEWPORT BEACH, including its agents, the CITY OF NEWPORT BEACH POLICE DEPARTMENT. Those claims were impliedly or expressly denied on or about November,, and plaintiffs now have standing to name said defendants in this action.. At all times mentioned herein, defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and DOES through 0, inclusive, were individuals, acting within the course and scope of their employment as officers, Sergeants, Captains, Commanders, and/or agents, and/or employees of the CITY OF NEWPORT BEACH POLICE DEPARTMENT, and were authorized by the CITY OF NEWPORT BEACH and/or the CITY OF NEWPORT BEACH POLICE DEPARTMENT to perform their duties and responsibilities for the CITY OF NEWPORT BEACH, and all acts hereinafter complained of were performed by them within the course and scope of such agency and employment and under the color of law.. Plaintiff RICHARD VOS was and is an individual residing in La Mirada, County of Los Angeles, State of California. He is the lawful heir of decedent and has a wrongful death claim and survival claim for the loss of his son, Gerrit Vos. He is entitled to bring this action pursuant to California Code of Civil Procedure section.0 et seq.. Plaintiff JENELLE BERNACCHI was and is an individual residing in Rancho Santa Margarita, County of Orange, State of California. She is the lawful heir of decedent and has a wrongful death claim and survival claim for the loss of her son, Gerrit Vos. She is entitled to bring this action pursuant to California Code of Civil Procedure section.0 et seq.

4 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 COMMON ALLEGATIONS 0. This complaint arises out of a shooting involving police officers and a civilian, decedent Gerrit Vos that occurred on May,, at a - store on Superior Ave, in the City of Newport Beach, State of California.. Upon information and belief, in the time immediately preceding the shooting, RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and DOES through of the CITY OF NEWPORT BEACH POLICE DEPARTMENT entered the - store with only decedent Gerrit Vos inside. These Defendants spoke with decedent Gerrit Vos, and concluded that he was mentally unstable to the point of openly harboring suicidal tendencies. Decedent Gerrit Vos explicitly and repeatedly yelled at RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and DOES through of the CITY OF NEWPORT BEACH POLICE DEPARTMENT, pleading that they should kill him. With only decedent Gerrit Vos left inside the - store, defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and DOES through of the CITY OF NEWPORT BEACH POLICE DEPARTMENT, propped opened the doors to the - store and positioned their police cruisers immediately outside these doors.. Upon information and belief, defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and DOES through of the CITY OF NEWPORT BEACH POLICE DEPARTMENT readied a single non-lethal weapon to subdue the Decedent along with multiple lethal weapons. Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and DOES through of the CITY OF NEWPORT BEACH POLICE DEPARTMENT positioned their vehicles and the weapons toward weapon the exit to the store. These Defendants had plenty of time to prepare for the Decedent s exit from the store and to use non-deadly means to subdue him. Yet, when decedent Gerrit Vos exited the empty -, defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and DOES through of the CITY OF NEWPORT BEACH POLICE DEPARTMENT opened fire with multiple lethal weapons at nearly the same time the single non-lethal weapon was fired despite the fact

5 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 they could not have held an objectively reasonable belief that the Decedent posed an immediate threat to anyone, including police officers. As a result, Decedent suffered fatal injuries. This deadly use of force was unreasonable and unnecessary.. Prior to and on May,, and at all relevant times herein, Defendants CITY OF NEWPORT BEACH, including its agents, the CITY OF NEWPORT BEACH POLICE DEPARTMENT, and its employees, agents, supervisors, managers and/or representatives, DOES through 0, inclusive, were deliberately indifferent, reckless, negligent and/or careless with respect to the hiring, training, supervision, and discipline of Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and DOES through, inclusive. As an actual, legal and proximate result of said Defendants deliberate indifference, recklessness, negligence, and carelessness: (a Decedent was shot and killed; and (b Plaintiffs have suffered the injuries and damages alleged herein.. Prior to and on May,, and at all relevant times herein, Defendants and each of them, as well as their agents and employees acting within the course and scope of such agency and employment and under color of law, intentionally, deliberately, indifferently, recklessly, and/or negligently and unreasonably failed to: (a train and supervise their employees, agents, and subordinates, including Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and DOES through 0, inclusive, with respect to the appropriate manner for properly and safely detaining and/or taking into civil or criminal custody individuals, such as Decedent, who had mental disabilities including depression, schizophrenia, psychosis, bipolar disorder, auditory hallucinations, paranoid delusions, and/or other mental illnesses; (b provide services necessary to properly and safely detain such persons and/or take such persons into civil or criminal custody; and (c provide the services necessary when such persons had been detained and/or taken into civil or criminal custody. As an actual, legal and proximate result of said Defendants deliberate indifference, recklessness, negligence and carelessness: (a Decedent was and shot and killed; and (b Plaintiffs have suffered the injuries and damages alleged herein.

6 Case :-cv-00 Document Filed 0// Page of Page ID #: 0. Prior to and on May,, and at all relevant times herein, Defendants and each of them, as well as their agents and employees acting within the course and scope of such agency and employment and under color of law: a. Knew, or reasonably should have known, that Decedent suffered from depression, schizophrenia, psychosis, bipolar disorder, auditory hallucinations, paranoid delusions, and/or other mental illnesses, including at times (but NOT always violent behavior and illnesses accompanied by, or causing violent behavior; b. Knew, or reasonably should have known, that Decedent, on at least two prior occasions had interactions with Defendants and each of them, and/or their agents and employees acting within the course and scope of such agency and employment and under color of law, where Decedent was in fact transported by them and/or cared for when he was in need of mental healthcare including episodes where Decedent had engaged in violent, aggressive, threatening, or otherwise illegal behavior; and c. Knew, or reasonably should have known, that Plaintiff may have been subject to involuntary psychiatric hold pursuant to California Welfare & Institution Code 0 because as a result of a mental disorder he may have posed a danger others and/or himself; and d. As a result, at all relevant times herein there was a special relationship between Defendants, and each of them, and Decedent.. On May,, and at all relevant times herein, Defendant CITY OF NEWPORT BEACH, including its agent, the CITY OF NEWPORT BEACH POLICE DEPARTMENT: a. Received federal financial assistance within the meaning of U.S.C. (a;

7 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 b. Constituted and/or provided programs or activities within the meaning of U.S.C. (b in that said Defendants (i were instrumentalities of state or local government, and (ii provided the program and activity of taking a person, such as Decedent, who allegedly as a result of a mental disorder, was a danger to others, or to himself, or gravely disabled, into custody pursuant to California Welfare & Institutions Code 0; and c. Were public entities within the meaning of U.S.C. (.. On May,, and at all relevant times herein, Decedent: a. Was a person with a disability with the meaning of U.S.C. ((B because he suffered from physical and mental impairments, including, but not limited to, depression, schizophrenia, psychosis, bipolar disorder, auditory hallucinations, paranoid delusions, and/or other mental illnesses, that substantially limited one or more of his major life activities; b. Was an individual with a disability within the meaning of U.S.C. ((B because (i he suffered from physical and mental impairments, including, but not limited to, depression, schizophrenia, psychosis, bipolar disorder, auditory hallucinations, paranoid delusions, and/or other mental illnesses, that substantially limited one or more of his major life activities; (ii had a record of such impairment; and/or (iii was regarded as having such impairment; c. Was otherwise qualified, with or without reasonable accommodation, within the meaning of U.S.C. (a, to participate in the programs and activities of Defendant CITY OF NEWPORT BEACH, including its agent, the CITY OF NEWPORT BEACH POLICE DEPARTMENT to be safely and appropriately taken into custody pursuant to California Welfare & Institutions Code 0 if and

8 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 when he was allegedly, as a result of a mental disorder, a danger to others, or to himself, or gravely disabled; and d. Was a qualified individual with a disability within the meaning of U.S.C. ( because, within the meaning of U.S.C. 0(, Decedent: (a suffered from physical and mental impairments, including, but not limited to, depression, schizophrenia, psychosis, bipolar disorder, auditory hallucinations, paranoid delusions, and/or other mental illnesses, that substantially limited one or more of his major life activities; (b had a record of such impairment; and/or (c was regarded as having such impairment;. Upon information and belief, on, or about, May,, at, or near, a - store on Superior Ave, in the City of Newport Beach, State of California: a. Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through 0, inclusive, appeared at the - store location; b. Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through 0, inclusive, confronted Decedent and intentionally and/or recklessly provoked an alleged violent confrontation with Decedent and caused Decedent to allegedly react in a violent manner; c. Thereafter, Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through 0, inclusive, decided to take Decedent into custody pursuant to California Welfare & Institutions Code 0 on the ground that Decedent, that Decedent, as a result of a mental disorder was a danger to others, or to himself, or to himself, or gravely disabled. d. Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through 0, inclusive: (i failed to take

9 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 non-reckless, reasonable, proper and accepted precautions and safeguards when detaining or taking into civil or criminal custody Decedent, a person who they knew or reasonably should have known suffered from the illnesses and disabilities of depression, schizophrenia, psychosis, bipolar disorder, auditory hallucinations, paranoid delusions, and/or other mental illnesses; and/or (ii escalated and/or exacerbated the situation between themselves and Decedent, causing Decedent to allegedly become agitated and/or act out. e. Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through 0, inclusive, intentionally, recklessly, deliberately, indifferently, and/or negligently and unreasonably shot, wounded, and eventually killed Decedent. Defendants did so despite the fact that they: (i did not have probable cause or reason to believe that either they, or anyone else, were in danger of being killed by Decedent or sustaining severe bodily harm caused by Decedent; (ii had previously not taken reasonable, proper and accepted precautions and safeguards when detaining or taking into civil or criminal custody Decedent, a person who they knew, or reasonably should have known, suffered from the illnesses and disabilities of depression, schizophrenia, psychosis, bipolar disorder, auditory hallucinations, paranoid delusions, and/or other mental illnesses; and/or (iii had previously escalated and/or exacerbated the situation between themselves and Decedent, causing Decedent to become agitated and/or act out, by committing the independent Fourth Amendment violation of the use of excessive force upon Decedent. f. Plaintiffs allege in the alternative pursuant to Rule (d of the Federal Rules of Civil Procedure that if Defendants assert and/or allege that

10 Case :-cv-00 Document Filed 0// Page 0 of Page ID #:0 0 Decedent attacked them and/or that they were acting in self-defense, then that the use of force used by said Defendants in response was unreasonably excessive and deliberately indifferent. g. Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through 0, inclusive, intentionally, recklessly, deliberately, indifferently, and/or negligently and unreasonably failed and refused to intervene or make any effort to stop or prevent Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through 0, inclusive, from shooting, wounding, and eventually killing Decedent.. In performing the acts and omissions alleged herein, Defendants, and each of them, as well as their agents and employees acting within the course and scope of such agency and employment and under color of law, discriminated against Decedent because of, and on account of, his disabilities and illnesses, including depression, schizophrenia, psychosis, bipolar disorder, auditory hallucinations, paranoid delusions, and/or other mental illnesses.. In addition, in performing the acts and omissions alleged herein, Defendants, and each of them, as well as their agents and employees acting within the course and scope of such agency and employment and under color of law, intentionally, recklessly, deliberately, indifferently, and/or negligently and unreasonably failed and refused to make the necessary reasonable accommodations for, and to reasonably accommodate, Decedent s disabilities and illnesses, including depression, schizophrenia, psychosis, bipolar disorder, auditory hallucinations, paranoid delusions, and/or other mental illnesses.. As an actual, legal and proximate result of the aforementioned intentional, reckless, deliberate, indifferent, and/or negligent and unreasonable acts and omissions of Defendants, and each of them: 0

11 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 a. Plaintiffs have incurred funeral and burial expenses for their Decedent, Gerrit Vos; b. Plaintiffs have suffered the loss of their son, Decedent, Gerrit Vos, and his love, society, affection, companionship, contributions and support; c. Decedent suffered and incurred damages, including but not limited to, medical expenses, and pain and suffering, which Plaintiffs may recover as Decedent s successors in interest; d. Decedent suffered and incurred damages, including but not limited to, medical expenses, and pain and suffering, as a result of Defendants violations of Decedent s rights under the Rehabilitation Act of, U.S.C. 0 et seq., and/or Title II of the Americans with Disabilities Act of 0, U.S.C. et seq.. Each reference in this Complaint to Defendant, Defendants or a specially named Defendant also refers to the DOE Defendants named in the same cause of action.. Plaintiffs are informed and believe, and on such information and belief allege, that at all times herein mentioned each of the Defendants was the agent, either actual or ostensible, and employee of each of the remaining Defendants, and in doing the things herein alleged, was acting within the purpose and scope of such agency and employment and with the advance knowledge, authorization or ratification of each of the remaining Defendants and at least one of the officers, directors or managing agents of each of the municipal Defendants.

12 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 FIRST CAUSE OF ACTION Excessive Force Violation of Decedent s Civil Rights Under U.S.C., [Against defendants CITY OF NEWPORT BEACH, RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and DOES through 0, inclusive]. As and for a separate and distinct First Cause of Action, Plaintiffs complain against defendants CITY OF NEWPORT BEACH, a governmental entity, RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, DOES through 0, inclusive:. Plaintiffs hereby re-allege and incorporate by reference all paragraphs herein above as if fully set forth in detail below.. Plaintiffs assert this Cause of Action for the violation by Defendants of Decedent s rights secured by Title U.S.C.,, and the Fourth, and Fourteenth Amendments of the United States Constitution, and pursuant to the general laws of the United States and of the State of California.. On, or about, May,, at, or near, a - store on Superior Ave, in the City of Newport Beach, State of California, Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through 0, inclusive, intentionally, recklessly, deliberately indifferently, and/or negligently and unreasonably shot, wounded and eventually killed Decedent. Defendants did so, Plaintiffs are informed, believe, and therefore allege, despite the fact that they: (i did not have probable cause or reason to believe that either they, or anyone else, were in danger of being killed by Decedent or sustaining severe bodily harm caused by Decedent; (ii had previously not taken reasonable, proper and accepted precautions and safeguards when detaining or taking into civil or criminal custody Decedent, a person who they knew or reasonably should have known suffered from the illnesses and disabilities of depression, schizophrenia, psychosis, bipolar disorder, auditory hallucinations, paranoid delusions, and/or other mental illnesses; and/or (iii had previously escalated and/or exacerbated

13 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 the situation between themselves and Decedent, causing Decedent to become agitated and/or act out.. Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through 0, inclusive, intentionally, deliberately indifferently, recklessly, negligently and unreasonably failed and refused to intervene or make any effort to stop or prevent RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through 0, inclusive, from shooting, wounding, and eventually killing Decedent... As an actual, legal and proximate result of the intentional, deliberately indifferent, reckless, unreasonable, negligent and otherwise wrongful conduct of Defendants, and each of them, Decedent was shot and killed. 0. In engaging in the conduct alleged above, RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through 0, inclusive, used excessive and unreasonable force against Decedent without: (a any reason or justification; or (b probable cause to believe, or a reasonable belief, that said Defendants or anyone else were in danger of sustaining any injury, much less serious bodily injury or death.. Defendants CITY OF NEWPORT BEACH and Does through 0, inclusive, are responsible for implementing, maintaining, sanctioning and/or condoning policies, customs, practices, training and supervision with respect to the use of force against suspects such as Decedent.. The above-alleged conduct of Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through, inclusive, was consistent with the training, polices, customs and practices set forth by Defendant CITY OF NEWPORT BEACH and Defendants Does through 0, inclusive, concerning the use of force against suspects such as Decedent, and/or that the use of force against Decedent by Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through, inclusive, was ratified by Defendant CITY OF NEWPORT BEACH and Defendants DOES through 0, inclusive.

14 Case :-cv-00 Document Filed 0// Page of Page ID #: 0. Defendant CITY OF NEWPORT BEACH and Defendants DOES through 0, inclusive, inclusive, and each of them, knew or should have known that Defendants training, policies, customs, and practices regarding concerning the use of force against suspects such as Decedent were so inadequate that it was obvious that a failure to correct them would result in future incidents of such use of force.. At all relevant times, Defendant CITY OF NEWPORT BEACH and Defendants DOES through 0, inclusive, authorized and/or acquiesced in the aforementioned policies, customs, practices, training and supervision and the commission of the type of acts by its officers similar to those which are alleged herein to have caused the injuries to Decedent. Furthermore, said Defendants were deliberately indifferent to the probability of the occurrence of such acts and failed to correct said policies, customs, practices, training and supervision, thereby causing the damages alleged herein.. Defendant CITY OF NEWPORT BEACH and Defendants DOES through 0, inclusive, maintained or permitted an official policy, custom or practice of knowingly permitting the occurrence of the type of wrongs set forth above and, based upon the principles set forth in Monell v. New York City Department of Social Services, U.S., S.Ct., L.Ed.d (, and City of Canton, Ohio v. Harris, U.S., 0 S.Ct., 0 L.Ed.d (, are liable for all injuries sustained by Decedent as set forth herein.. Defendant CITY OF NEWPORT BEACH and Defendants DOES through 0, inclusive, were objectively deliberately indifferent to the practice of subordinates, officers, employees and/or agents of the NEWPORT BEACH POLICE DEPARTMENT of unreasonably using force against persons such as Decedent.. Defendants CITY OF NEWPORT BEACH, and DOES through 0, inclusive, had actual and/or constructive knowledge that it was the practice of subordinates, officers, employees and/or agents of Defendant CITY OF NEWPORT BEACH to unreasonably use force against persons such as Decedent.

15 Case :-cv-00 Document Filed 0// Page of Page ID #: 0. The above described policies, customs, practices, training and supervision of Defendant CITY OF NEWPORT BEACH and Defendants DOES through 0, inclusive, demonstrate a deliberate indifference on the part of policymakers of Defendant CITY OF NEWPORT BEACH to the constitutional rights of persons within the City, including Decedent, and were the cause of the violations of Decedent s rights alleged herein.. By reason of the conduct of the Defendants, and each of them, as alleged herein, Decedent was deprived, under color of law, of his right guaranteed by the Fourth Amendment to the United States Constitution to be free from the excessive use of force. 0. As a direct and proximate result of the acts of Defendants, Decedent suffered, and thus Plaintiffs seek and are entitled to recover, general and special damages, including but not limited to medical expenses and physical, mental and emotional pain, shock, agony and suffering, in an amount according to proof at trial.. The aforementioned conduct of Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through 0, inclusive, was done maliciously, oppressively and in conscious disregard for the rights and safety of Decent, such that an award of exemplary and punitive damages should be imposed against Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through 0, inclusive, in an amount to be proven at trial.. Plaintiffs are entitled to recover for said injuries and damages in their capacities as Decedent s successors in interest pursuant to U.S.C. and California Code of Civil Procedure.0 et seq.. Plaintiffs are entitled to recover their attorneys fees pursuant to U.S.C.,.

16 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 SECOND CAUSE OF ACTION Violation of Title II of the Americans with Disabilities Act of 0, U.S.C. et seq. [Against defendants CITY OF NEWPORT BEACH, and DOES through 0, inclusive]. As and for a separate and distinct Second Cause of Action, Plaintiffs complain against defendants CITY OF NEWPORT BEACH, a governmental entity, and DOES through 0, inclusive:. Plaintiffs hereby re-allege and incorporate by reference all paragraphs herein above as if fully set forth in detail below.. Plaintiffs assert this Second Cause of Action for Violation of Title II of the Americans with Disabilities Act of 0, U.S.C. et seq., pursuant U.S.C. and California Code of Civil Procedure. et seq. in their capacities as Decedent s successors in interest.. At all relevant times herein, Defendants CITY OF NEWPORT BEACH, and DOES through 0, inclusive, were public entities within the meaning of U.S.C. (.. At all relevant times herein, Decedent was a qualified individual with a disability within the meaning of U.S.C. ( because, within the meaning of U.S.C. 0(, Decedent: (a suffered from physical and mental impairments, including but not limited to dementia, that substantially limited one or more of his major life activities; (b had a record of such impairment; and/or (c was regarded as having such an impairment.. At all relevant times herein, in engaging in the conduct alleged above CITY OF NEWPORT BEACH, and DOES through 0, inclusive, and each of them, discriminated against Decedent within the meaning of U.S.C., with regard to their services, programs, and activities. Such programs and activities included safely and appropriately taking a person, such as Decedent, who allegedly, as a result of a mental

17 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 disorder, was a danger to others, or to herself, or gravely disabled, into custody pursuant to California Welfare & Institutions Code More specifically, Defendants violated Decedent s federally guaranteed right to be free from discrimination on the basis of disability by: (a failing to make reasonable modifications to their policies, practices and procedure to ensure that her needs as an individual with a disability would be met; and (b failing to train the individual defendants, Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through, inclusive, with respect to safely and appropriately taking a person, such as Decedent, who was allegedly a danger to himself and/or others, into custody pursuant to California Welfare & Institutions Code 0. Said discrimination: (a was by reason of Decedent s disability; and (b consisted of being deliberately indifferent to Decedent s rights in that Defendants knew that harm to Decedent s federally protected rights was substantially likely, and failed to act upon that likelihood.. As a direct and proximate result of the acts of Defendants, Decedent suffered, and thus Plaintiffs seek and are entitled to recover, general and special damages, including but not limited to medical expenses and physical, mental and emotional pain, shock, agony and suffering, in an amount according to proof at trial.. Plaintiffs are entitled to recover for said injuries and damages in their capacities as Decedent s successors in interest pursuant to U.S.C. and California Code of Civil Procedure.0 et seq.. Plaintiffs are entitled to recover their attorneys fees pursuant to U.S.C.,.

18 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 THIRD CAUSE OF ACTION Violation of the Rehabilitation Act of, U.S.C. 0 et seq. [Against defendants CITY OF NEWPORT BEACH, and DOES through 0, inclusive]. As and for a separate and distinct Third Cause of Action, Plaintiffs complain against defendants CITY OF NEWPORT BEACH, a governmental entity, and DOES through 0, inclusive:. Plaintiffs hereby re-allege and incorporate by reference all paragraphs herein above as if fully set forth in detail below.. Plaintiffs assert this Third Cause of Action for the Violation of the Rehabilitation Act of, U.S.C. 0 et seq., pursuant to U.S.C. and California Code of Civil Procedure. et seq. in their capacities as Decedent s successors in interest.. At all relevant times herein, Defendants CITY OF NEWPORT BEACH, and DOES through 0, inclusive, received federal financial assistance within the meaning of U.S.C. (a.. At all relevant times herein, Decedent was a person with a disability within the meaning of U.S.C. 0((B because he suffered from physical and mental impairments, including but not limited to depression, schizophrenia, psychosis, bipolar disorder, auditory hallucinations, paranoid delusions, and/or other mental illnesses, that substantially limited one or more of his major life activities.. At all relevant times herein, Decedent was a person with an individual with a disability within the meaning of U.S.C. 0((B because: (a she suffered from physical and mental impairments, including but not limited to depression, schizophrenia, psychosis, bipolar disorder, auditory hallucinations, paranoid delusions, and/or other mental illnesses, that substantially limited one or more of his major life activities; (b had a record of such impairment; and/or (c was regarded as having such

19 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 an impairment. 0. At all relevant times herein, Defendants CITY OF NEWPORT BEACH, and DOES through 0, Inclusive, constituted programs or activities within the meaning of U.S.C. (b in that said Defendants (i were instrumentalities of state or local government, and (ii provided the program and activity of taking a person, such as Decedent, who allegedly as a result of a mental disorder, was a danger to others, or to himself, or gravely disabled, into custody pursuant to California Welfare & Institutions Code 0.. At all relevant times herein, Decedent was otherwise qualified, with or without reasonable accommodation, within the meaning of U.S.C. (a, to participate in the programs and activities of Defendants CITY OF NEWPORT BEACH, and DOES through 0, inclusive. Such programs and activities included being safely and appropriately taken into custody pursuant to California Welfare & Institutions Code 0 if and when she, as a result of a mental disorder, was allegedly a danger to others, or to himself, or gravely disabled.. At all relevant times herein, in engaging in the conduct alleged above Defendants CITY OF NEWPORT BEACH, and DOES through 0, inclusive, and each of them, discriminated against Decedent within the meaning of U.S.C. (a, with regard to their services, programs, and activities. Defendants violated Decedent s federally guaranteed right to be free from discrimination on the basis of disability by: (a failing to make reasonable modifications to their policies, practices and procedure to ensure that his needs as an individual with a disability would be met; and (b failing to train the individual defendants, Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through, inclusive, with respect to safely and appropriately taking a person, such as Decedent, who was allegedly a danger to herself and/or others, into custody pursuant to California Welfare & Institutions Code 0. Said discrimination: (a solely because of Decedent s disability; and (b consisted of being deliberately indifferent to Decedent s rights in that Defendants knew that harm to

20 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 Decedent s federally protected rights was substantially likely, and failed to act upon that likelihood.. As a direct and proximate result of the acts of Defendants, Decedent suffered, and thus Plaintiffs seek and are entitled to recover, general and special damages, including but not limited to medical expenses and physical, mental and emotional pain, shock, agony and suffering, in an amount according to proof at trial.. Plaintiffs are entitled to recover for said injuries and damages in their capacities as Decedent s successors in interest pursuant to U.S.C. and California Code of Civil Procedure.0 et seq.. Plaintiffs are entitled to recover their attorneys fees pursuant to U.S.C.,. FOURTH CAUSE OF ACTION Violation of Plaintiffs Civil Rights to a Familial Relationship Under U.S.C., [Against defendants CITY OF NEWPORT BEACH, RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and DOES through 0, inclusive]. As and for a separate and distinct Fourth Cause of Action, Plaintiffs complain against defendants CITY OF NEWPORT BEACH, a governmental entity, RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, DOES through 0, inclusive:. Plaintiffs hereby re-allege and incorporate by reference all paragraphs herein above as if fully set forth in detail below.. Plaintiffs assert this Fourth Cause of Action for the violation by Defendants of their own rights under the First and Fourteenth Amendments to the United States Constitution to a familial relationship and companionship with Decedent pursuant to U.S.C., in their individual capacities.

21 Case :-cv-00 Document Filed 0// Page of Page ID #: 0. In engaging in the actions alleged above, Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through, inclusive, were deliberately indifferent to, or acted with reckless disregard of Plaintiffs rights under the First and Fourteenth Amendments to the United States Constitution to a familial relationship and companionship with Decedent by unlawfully using excessive and deadly force against the Deceased, resulting in the death of Decedent and the termination of said relationship. 0. In addition and/or in the alternative to the allegations of paragraphs above, Plaintiff is informed, believes and therefore alleges that, in performing the actions alleged above, Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through, inclusive, acted with a purpose to cause harm unrelated to legitimate use of force necessary to protect the public and themselves.. Defendants CITY OF NEWPORT BEACH and Defendants Does through 0, inclusive, were objectively deliberately indifferent to the practice of members, employees and/or agents of Defendant CITY OF NEWPORT BEACH of depriving the family members of suspects of their substantive due process rights under the First and Fourteenth Amendments to a familial relationship with said suspects by unlawfully using excessive and/or deadly force against said suspects, resulting in injury to, and/or the death of, such suspects, and the subsequent substantial impairment and/or termination of said familial relationships.. Defendants CITY OF NEWPORT BEACH and Defendants Does through 0, inclusive, had actual and/or constructive knowledge that it was the practice of members, employees and/or agents of Defendant CITY OF NEWPORT BEACH to deprive the family members of suspects of their substantive due process rights under the First and Fourteenth Amendments to a familial relationship with said suspects by unlawfully using excessive and/or deadly force against said suspects, resulting in injury to, and/or the death of, such suspects, and the subsequent substantial impairment and/or termination of said familial relationships.

22 Case :-cv-00 Document Filed 0// Page of Page ID #: 0. As a direct and proximate result of the wrongful acts and omissions of Defendants and each of them, as alleged hereinabove, defendants have deprived Plaintiffs of the life of Decedent, and of his love, comfort, affection, society and support, all to their general damage in an amount to be established at the time of trial.. The aforementioned conduct of the individual Defendants was done maliciously, oppressively and with an intent to deprive Plaintiffs of their right to a familial relationship with the Decedent, such that an award of exemplary and punitive damages should be imposed against said individual Defendants in an amount to be proven at trial. FIFTH CAUSE OF ACTION Municipal and Supervisory Liability Under U.S.C., [Against defendants CITY OF NEWPORT BEACH, and DOES through 0, inclusive]. As and for a separate and distinct Fifth Cause of Action, Plaintiffs complain against defendants CITY OF NEWPORT BEACH, a governmental entity, and DOES through 0, inclusive:. Plaintiffs hereby re-allege and incorporate by reference all paragraphs herein above as if fully set forth in detail below.. Plaintiffs assert this Fifth Cause of Action for the violation of their own rights and for the violation of Decedent s rights in their capacities as Decedent s successors in interest pursuant to California Code of Civil Procedure. et seq.. On and for some time prior to May, (and continuing to the present date Defendants, CITY OF NEWPORT BEACH, and DOES through 0, deprived Decedent and Plaintiffs of the rights and liberties secured to them by the Fourth and Fourteenth Amendments to the United States Constitution, in that said defendants and their supervising and managerial employees, agents, and representatives, acted with gross negligence and with reckless and deliberate indifference to the safety, rights, and

23 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 liberties of the public in general, and of Decedent and Plaintiffs, and of persons in their class, situation and comparable position, in particular, by knowingly maintaining, hiring, condoning, ratifying and/or authorizing: a. a custom, policy, and practice of allowing unreasonable use of excessive force; or, to use investigative tactics designed to cover up or exonerate misconduct by officers in use of force incidents, against individuals, such as Decedent, in contravention of the Fourth Amendment; b. failing to prohibit the practice of unreasonable use of excessive force; or, to use investigative tactics designed to cover up or exonerate misconduct by officers in use of force incidents, against individuals, such as Decedent; c. failing to institute appropriate policies, regarding constitutional procedures and practices for the seizure of individuals, such as Decedent; d. employment and retention as law enforcement officers and other personnel, including Defendants, RICHARD HENRY, NATHAN FARRIS, and DAVE KRESGE, who Defendants CITY OF NEWPORT BEACH through its supervising and managerial employees, agents, and representatives, and DOES through 0, inclusive, at all times material herein, knew or reasonably should have known had propensities for abusing their authority and for mistreating citizens by failing to follow written Newport Beach Police Department policies; e. inadequately supervising, training, controlling, assigning, and/or disciplining Newport Police Department police officers and other personnel, including Defendants, RICHARD HENRY, NATHAN FARRIS, and DAVE KRESGE, who Defendants CITY OF

24 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 NEWPORT BEACH through its supervising and managerial employees, agents, and representatives, and DOES through 0, inclusive, each knew or in the exercise of reasonable care should have known had the aforementioned propensities and character traits; and/or f. maintaining grossly inadequate procedures for reporting, supervising, investigating, reviewing, disciplining and/or controlling the intentional misconduct by Defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and/or DOES through, inclusive, who are Newport Police Department peace officers and/or employees.. Defendants CITY OF NEWPORT BEACH through its supervising and managerial employees, agents, and representatives, and DOES through 0, inclusive, together with various other officials, whether named or unnamed, had either actual or constructive knowledge of the propensities, character and conduct of Defendants, RICHARD HENRY, NATHAN FARRIS, and DAVE KRESGE, alleged in the paragraphs above. Despite having knowledge as stated above, these Defendants condoned, tolerated and/or, through actions and inactions, thereby ratified such policies, customs and/or practices. Said defendants also acted with deliberate indifference to the foreseeable effects and consequences of these actions or inactions with respect to the constitutional rights of Decedent and Plaintiffs and other individuals similarly situated. 0. By perpetrating, sanctioning, tolerating and/or ratifying the outrageous conduct and other wrongful acts, Defendants CITY OF NEWPORT BEACH through its supervising and managerial employees, agents, and representatives, and DOES through 0, inclusive, acted with an intentional, reckless, and callous disregard for the safety and constitutional rights of Decedent and Plaintiffs. Defendants CITY OF NEWPORT BEACH through its supervising and managerial employees, agents, and representatives, and DOES through 0, inclusive, and each of their actions or inactions

25 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 were willful, wanton, oppressive, malicious, fraudulent, and extremely offensive and unconscionable to any person of normal sensibilities.. Plaintiffs are informed and believe, and on such information and belief allege that this unconstitutional policy, practice or custom of allowing the use of excess force against individuals, such as Decedent, is evidenced by prior citizen complaints, claims, and/or lawsuits.. Despite having knowledge of the unlawful custom, policy, and/or practice of deputies providing false allegations to manufacture probable cause to substantiate an unlawful seizure against individuals, Defendants condoned, tolerated and/or through actions and inactions thereby ratified such conduct against individuals, including Decedent and Plaintiffs. Said Defendants also acted with deliberate indifference to the foreseeable effects and consequences of these policies with respect to the constitutional rights of Decedent and Plaintiffs and other individuals similarly situated.. By perpetrating, sanctioning, tolerating and/or ratifying the outrageous conduct and other wrongful acts, Defendants COUNTY OF NEWPORT BEACH, and DOES through 0, inclusive, acted with an intentional, reckless, and callous disregard for the safety and constitutional rights of Plaintiff. Defendants CITY OF NEWPORT BEACH through its supervising and managerial employees, agents, and representatives, and DOES through 0, inclusive, and each of their actions were willful, wanton, oppressive, malicious, fraudulent, and extremely offensive and unconscionable to any person of normal sensibilities.. By reason of the aforementioned deficient policies and practices of Defendants, Sheriff Baca and DOES through 0, inclusive, Plaintiff suffered extensive damages and other harm.. The policies, practices, and/or customs implemented and maintained and still tolerated by Defendants, CITY OF NEWPORT BEACH and DOES through 0, inclusive, were affirmatively linked to and were a significantly influential driving force behind the damages incurred by Decedent and Plaintiffs.

26 Case :-cv-00 Document Filed 0// Page of Page ID #: 0. Plaintiffs are entitled to recover their attorneys fees pursuant to U.S.C.,. SIXTH CAUSE OF ACTION Wrongful Death Negligence [Against DEFENDANTS CITY OF NEWPORT BEACH, a governmental entity; RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and DOES through 0, inclusive]. As and for a separate and distinct Sixth Cause of Action, plaintiffs complain against defendants CITY OF NEWPORT BEACH, a governmental entity, RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and DOES through 0, inclusive:. Plaintiffs hereby re-allege and incorporate by reference all paragraphs herein above as if fully set forth in detail below.. Plaintiffs assert this Sixth Cause of Action in their individual capacity and in their capacities as Decedent s successors in interest pursuant to California Code of Civil Procedure. et seq. 0. Plaintiffs are informed and believe, and on such information and belief allege, that on or about May,, and at all times mentioned herein, Decedent was subject to the use of deadly force by Defendants CITY OF NEWPORT BEACH, RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and DOES through 0, inclusive. Defendants CITY OF NEWPORT BEACH, RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and DOES through 0, inclusive, possessed a legal duty to act at all times herein with reasonable care so as to avoid creating foreseeable risks of harm to decedent Gerrit Vos. Each defendant was negligent in the performance of their police tactics and duties and this negligence caused decedent s death. Defendants failed to comply with proper police tactics and duties and their conduct was at all times mentioned herein, below the standard of care for reasonable peace officers, and this negligence caused the injuries and damages alleged herein.

27 Case :-cv-00 Document Filed 0// Page of Page ID #: 0. The negligence and wrongful actions of Defendants CITY OF NEWPORT BEACH, RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and DOES through 0, were a substantial factor in causing the death of decedent Gerrit Vos.. As a direct and legal result of the aforesaid negligence, and carelessness of defendants, and each of them, decedent was killed and each Plaintiff has suffered damages, as alleged above. SEVENTH CAUSE OF ACTION Wrongful Death - Negligent Hiring, Training and Retention [Against CITY OF NEWPORT BEACH, a governmental entity; and DOES through 0, inclusive]. As and for a separate and distinct Seventh Cause of Action, plaintiffs complain against defendants CITY OF NEWPORT BEACH, a governmental entity, and DOES through 0, inclusive:. Plaintiffs hereby re-allege and incorporate by reference all paragraphs herein above as if fully set forth in detail below.. Plaintiffs assert this Seventh Cause of Action in their individual capacity and in their capacities as Decedent s successors in interest pursuant to California Code of Civil Procedure. et seq.. At all times herein mentioned, defendants, the CITY OF NEWPORT BEACH, and DOES through 0, inclusive, and each of them, owed a duty of due care to Plaintiffs to act in a reasonable, prudent, and careful manner in the selection, hiring, retention, and training of defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, and DOES through, so as to avoid causing harm or creating a foreseeable risk of harm to others, including decedent Gerrit Vos.. Plaintiffs are informed and believe and thereon allege that the defendants, the CITY OF NEWPORT BEACH, and DOES through 0, inclusive, and each of them, participated in, encouraged, condoned and ratified the conduct of defendants RICHARD HENRY, NATHAN FARRIS, DAVE KRESGE, DOES through, in

28 Case :-cv-00 Document Filed 0// Page of Page ID #: 0 approaching, contacting, seizing, and shooting the Decedent.. Plaintiffs are informed and believe and thereon allege that defendants, the CITY OF NEWPORT BEACH, and DOES through 0, inclusive, and each of them, knew, or in the exercise of reasonable care, should have known of a history, propensity and pattern, prior to and after the time of decedent s death, for officers of the CITY OF NEWPORT BEACH, to use excessive force; to use unreasonable police tactics which lead to the unnecessary and unreasonable use of excessive force; or, to use investigative tactics designed to cover up or exonerate misconduct by officers in use of force incidents.. Plaintiffs are informed and believe, and on such information and belief allege, that the CITY OF NEWPORT BEACH, and DOES through 0, knew, or in the exercise of reasonable care, should have known that CITY OF NEWPORT POLICE DEPARTMENT officers were responsible for unnecessary and unreasonable shootings and shooting deaths. Plaintiffs allege on information and belief that prior to the death of decedent, there were other incidents where CITY OF NEWPORT POLICE DEPARTMENT officers used excessive force, or used unreasonable police tactics which lead to the unnecessary and unreasonable use of force, or used unreasonable, investigative tactics to cover up officer misconduct during use of force incidents. Plaintiffs alleged that other CITY OF NEWPORT POLICE DEPARTMENT officers were the subject of prior complaints of allegations of similar conduct in the scope of their capacities as CITY OF NEWPORT POLICE DEPARTMENT officers. 00. Plaintiffs are informed and believe, and on such information and belief allege, that notwithstanding this information and history of CITY OF NEWPORT POLICE DEPARTMENT officers, the CITY OF NEWPORT BEACH, and DOES through 0, failed to train, supervise or discipline the CITY OF NEWPORT POLICE DEPARTMENT officers that used excessive force, used unreasonable tactics which lead to the unnecessary and unreasonable use of excessive force, or used unreasonable, investigative tactics designed to cover up officer misconduct during use of force