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TODD P. EMANUEL (SBN 169301)
FILED
SAN MATEO COUNTY "
EMANUEL LAW GROUP
702 Marshall Street, Suite 400
Redwood City, CA 94063
Telephone: (650 369.8900
Facsimile: (650 369.4228
Attorneys for Plaintiff
(OCDVOU‘l-hmM—k
JOSE VERDUSCO - —
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO — UNLIMITED JURISDICTION
JOSE VERDUSCO Case No. CIV537740
Plaintiff,
DECLARATION OF COUNSEL TODD P.
vs. EMANUEL IN OPPOSITION TO SAN
MATEO COUNTY’S MOTION TO QUASH,
ANDY IVIAR, COUNTY OF SAN MATEO OR, IN THE ALTERNATIVE, FOR A
and DOES 1-20 mCIUS'Ve PROTECTIVE ORDER REGARDING
PLAINTIFF’S DEPOSITION OF SHERIFF
Defendants CARLOS BOLANOS
‘ —T—T
GIV537140 _WW
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i
DATE: JANUARY 8, 2017
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I
TIME: 9:00 AM.
I———+ LAWANDMOT'ON
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llllllllllllllllllllllllll l
l, Pamela E. Glazner, declare:
1. I am the principal attorney at the Emanuel Law Group, which represents
Plaintiff Jose Verdusco (“Plaintiff”), a party to this action. l have personal knowledge of the
facts stated in this declaration and if called, I could testify competently to them.
2. The operative complaint in this matter is the Second Amended Complaint, a
true and correct copy of which is attached as Exhibit 1.
3. Based on publically available records, at the time of the subject incident on
April 13, 2015, Bolanos had not yet been elevated to the position Sheriff and was serving
as undersheriff. Discovery and investigation had revealed that Bolanos had direct
1
EMANUEL DECLARATION IN OPPOSITION TO CSM MOTION TO QUASH — CASE NO. CIV537740
participation in the events that led to some of Plaintiff’s economic and non-economic
damages. Bolanos' participation included at least one conversation with two of his
subordinates, Sgt. Dwayne Earles (“Earles") and Lt. Kenneth Jones (“Jones"). Both Earles
and Jones were deposed on August 7, 2017 and September 28, 2017, reSpectively.
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Attached as Exhibits 2 and 3 are the relevant excerpts of the depositions of Earles and
Jones, respectively.
4. On October 4, 2017 I sent an email to Deputy County Counsel Sandra
Nierenberg, attorney of record for defendant County of San Mateo County (“CSM”)
requesting that she provide available deposition dates for Sheriff Carlos Bolanos
(“Bolanos").
5. Ms. Nierenberg refused to provide dates for the deposition, and personally
accused me in an email of noticing the deposition “solely to harass the county.” She then
further accused me of having “personal animus" against the Sheriff's Office, and recklessly
misquoted me as using the term “jackass" in reference to one or more deputies. I did
express disgust, off the record at the deposition of Lt. Jones, that the deputies were
covering each other’s asses, which, ironically, is one reason the deposition of Sheriff
Bolanos is needed to further discover admissible evidence in this matter. I have never had
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any “personal animus" toward the Sheriff’s Office. On the contrary, many members of the
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Sheriff's Office are my friends and former clients. I respect their work, and | reject the
notion that the misbehavior of a few (Earles and Jones) is any reflection on the rest.
6. Plaintiffs counsel has conducted exhaustive discovery by lesser intrusive
means before the noticed date the deposition of Sheriff Bolanos to learn as much
information as possible on areas of inquiry such as why the Sheriff's Office never took any
action to commence a criminal investigation, and why the Sheriff’s Office placed Deputy
Mar back on duty in the courthouse the day after the incident, thereby exposing Plaintiff to
even more significant emotional distress. Specifically, Plaintiff’s counsel did the following
discovery bearing on the topics about which Sheriff’s Bolanos is expected to have personal
knowledge:
2
EMANUEL DECLARATION IN OPPOSITION TO CSM MOTION TO QUASH — CASE NO. CIV537740
. Deposing Earles, relevant excerpts of which are attached as Exhibit 2.
b. Deposing. Jones, relevant excerpts of which are attached as Exhibit 3.
. Deposing the person Defendant CSM designated as most qualified to testify
on a number of topics, including, “The facts and circumstances regarding the
return of Defendant Andy Mar to work after the INCIDENT" (Topic No. 3); and
(OGJNOJO'ILOJNA
“The facts, circumstances and outcome of the investigation conducted by San
Mateo County Sheriff’s Office Undersheriff Carlos Bolanos, Lieutenant Ken
jones and Sergeant Dwayne Earles regarding the INCIDENT (Topic No. 4).
Attached as EXhibits 4 and 5, respectively, are true and correct copies of
Plaintiff's Notice of Deposition of Person Most. Qualified to Testify with
Production of Documents, and excerpts of the October 17, 2017 deposition of
that person most qualified, William Fogarty.
. Deposing the person Defendant CSM designated as most qualified to testify
on a number of other topics, including why the Sheriff’s Office failed to
conduct a criminal investigation (Topic Nos. 1-4), as well as a number of
topics related to Sheriff Bolanos’ involvement and decision—making regarding
the incident giving rise to this lawsuit and the lack of a criminal investigation
NMNNNNNNNAA—XAAA—X—X—x—x
(Topic Nos. 5-6). Attached as Exhibits 6 and 7, respectively, are true and
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correct copies of Plaintiff's Amended Notice of Deposition of Person Most
Qualified to Testify with Production of Documents, and excerpts of the
December 5, 2017 deposition of that person most qualified, Mark C. Robbins.
. Propounding requests for admission, Defendant CSM’s responses to which
are attached as Exhibit 8.
Propounding requests for production of documents, Defendant CSM's written
responses to which are attached as Exhibit 9. See, e.g., Request Nos. 6 and
7 to which Defendant CSM invoked to Penal Code sections 832.7 and 832.8
pertaining to peace officer personnel records.
//
3
EMANUEL DECLARATION IN OPPOSITION TO CSM MOTION TO QUASH — CASE NO. CIV537740
9. Filing a Pitchess motion, which was granted in part, to obtain documents from
Defendant Mar's personnel records. Attached as Exhibit 10 is a true and
correct copy of the court’s order on Plaintiff's Pitchess motion.
7. Despite this extensive discovery, the areas of inquiry about which Plaintiff
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seeks to depose Sheriff Bolanos are incomplete, in large part because Defendant CSM
produced deponents who were unqualified and unprepared to testify in key areas that are
set forth on the deposition notices attached as Exhibits 4 and 6. While Sheriff Bolanos was
the highest official in the chain of command, he had direct knowledge and decision-making
responsibility. Yet, he has not offered testimony within his personal knowledge. Therefore,
his deposition is necessary and appropriate.
I
foregoing is true and correct.
Date: December 21, 2017 @///’
declare under penalty of perjury under the laws of the State of California that the
TODD P. EMANUEL
TQM/2’
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CDKICDUI-bOON—tocomNOO'I-t—AO
4
EMANUEL DECLARATION IN OPPOSITION TO CSM MOTION TO QUASH — CASE NO. C|V537740
CASE NAME: Verdusco v. Mar, et al.
CASE NO.: San Mateo Superior Court Case No. CIV537740
(Transferred from San Francisco SC Case No. CGC-16-549709)
PROOF OF SERVICE
Iam employed in the City of Redwood City, County of San Mateo, State of
(OQNODCfl-t—F California. I am over the age of 18 years and not a party to the within action. My
business address is 702 Marshall Street, Suite 400, Redwood City, California 94063.
On the date set forth below, following ordinary business practice, I served a true
copy of the foregoing document(s) described as:
DECLARATION OF COUNSEL TODD P. EMANUEL IN OPPOSITION TO SAN MATEO
COUNTY’S MOTION TO QUASH, OR, IN THE ALTERNATIVE, FOR A PROTECTIVE
ORDER REGARDING PLAINTIFF’S DEPOSITION OF SHERIFF CARLOS BOLANOS
III (BY FAX) by transmitting via facsimile the document(s) listed above to the fax
number(s) set forth below, or as stated on the attached service list, on this date.
(BY MAIL) I caused such envelope(s) with postage thereon fully prepaid to be
placed in the United States mail at Redwood City, California. [WHERE NOTED]
(BY E-MAIL) by transmitting via electronic mail the document(s) listed above to
the email address(es) set forth below, or as stated on the attached service list,
on this date. [WHERE NOTED]
I:I (BY OVERNIGHT DELIVERY) I caused such envelope(s) to be delivered to an
overnight delivery carrier with delivery fees provided for, addressed to the
person(s) on whom it is to be served.
NMNNNNNNN—l—lA—X—A—XA—LA-A
[I (BY PERSONAL SERVICE)
to the addressee(s).
I caused such envelope(s) to be delivered by hand
CONOU'l-POONAOCOGJVODUIACON—‘O
SEE ATTACHED SERVICE LIST
[2' (State) I declare under penalty of perjury under the laws of the State of
California that the above is true and correct.
Executed on December 22, 2017 at Redwood City, Calif
PROOF OF SERVICE - CASE NO. CIV537740
Sandra Zuniga Nierenberg Attorney for Defendant
SAN MATEO COUNTY COUNSEL COUNTY OF SAN MATEO
400 County Center
Redwood City, CA 94063 VIA EMAIL
Telephone: (650) 363.4755
Facsimile: (650) 363.4034
Email: snierenberq@smcqov.orq
Grant A. Winter . Attorney for Defendant
(OWNODO'IAQJNA
MASTAGNI & HOLDSTEDT APC ANDY MAR
1912 | Street
Sacramento, CA 95811 VIA US MAIL
Telephone: (916) 446.4692
Direct: (916) 491.4252
Facsimile: (916) 447.4614
Email: qwinter@mastaqni.com
mNCDU‘l-hOJNAOCOCDNODO‘l-hOON—‘O
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-2-
PROOF OF SERVICE - CASE NO. CIV537740
¥
Exhibit 1
TODD P. EMANUEL (SBN 169301)
PAMELA E. GLAZNER (SBN 247007)
EMANUEL LAW GROUP ENDGRSEDFILEQ
702 Marshall Street, Suite 400 SAN MATEO
Redwood City, California 94063 COUNTY
Telephone: (650) 369.8900 OCT 3 4
Facsimile: (650) 369.4228 2016
Attorneys for Plaintiff
(OOJNOU'l-wA
JOSE VERDUSCO
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO - UNLIMITED JURISDICTION
10 Case No. ClV537740
11
JOSE VERDUSCO,
SECOND AMENDED COMPLAINT FOR
12 Plaintiff,
(1) ASSAULT
13 vs. (2) FALSE IMPRISONMENT
14 AN DY MAR, COUNTY OF SAN MATEO (3) INTENTIONAL INFLICTION OF
and DOES 1-20 inclusive EMOTIONAL DISTRESS
15 (4) NEGLIGENT INFLICTION OF
Defendants. EMOTIONAL DISTRESS
16 (5) FREEDOM FROM VIOLENCE
UNDER RALPH CIVIL RIGHTS ACT
17
(CIVIL CODE, § 51.7)
18 (6) NEGLIGENT HIRING, TRAINING,
SUPERVISION AND RETENTION
19
20 Plaintiff JOSE VERDUSCO alleges as follows: _
21 INTRODUCTION AND PARTIE
22 1. Plaintiff JOSE VERDUSCO is, and at all relevant times was, a resident of
23 the County of San Mateo.
24 2. Plaintiff is informed and believes and thereon alleges that defendant
25 ANDY MAR is, and at all relevant times was, a resident of the County of San Francisco
26 and was employed by defendant COUNTY OF SAN MATEO as a deputy of the San
27 Mateo County Sheriff’s Office.
28
Second Amended Complaint - Case No. ClV537740
1
3. Defendant COUNTY OF SAN MATEO (hereafter "CSM”) is, and at all
relevant times was, a public entity. Plaintiff is informed and believes and thereon
alleges that at all relevant times, Defendant MAR was the employee and agent of
Defendant CSM, and in doing the things hereinafter alleged, was acting within the
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course and scope of that employment and agency. Plaintiff is informed and believes
and thereon alleges that the San Mateo County Sheriff's Office (“SMCSO”) is an agency
within Defendant CSM.
4. The true names and capacities of the defendants named herein as DOES
1 through 20, inclusive, whether individual, corporate, associate or othenIvise, are
unknown to Plaintiff, who therefore sues such defendants by fictitious names pursuant
to California Code of Civil Procedure section 474. Plaintiff is informed and believes,
and thereon alleges that the fictitiously named defendants are subject to the jurisdiction
of this court and that each of said defendants is responsible in some manner for the
~
conduct alleged in each and every cause of action set forth herein and is therefore
responsible for the resulting injury and damages to Plaintiff. Plaintiff will amend this
I
Complaint to show such true names and capacities when they have been determined
5. Defendant MAR, Defendant CSM and defendants named as DOES herein
will be collectively referred to herein as “Defendants.”
mummswmsoomsmasas:s 6. Plaintiff is informed and believes, and upon such information and belief
alleges that at all relevant times herein mentioned, each of the Defendants was the
partner, joint venturer, aider and abettor, agent, employee and/or representative of each
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of the remaining Defendants and was acting at least in part Within the course and scope
of said relationship. Whenever a defendant is the subject of any charging allegation by
Plaintiff, it shall be deemed that the defendants named as DOES 1 through 20,
inclusive, and each of them, are likewise subject to this charging allegation.
7. Plaintiff filed a government tort claim pursuant to Government Code
section 900 et seq. on June 15, 2015. By letter dated July 22, 2015, Defendant CSM
Second Amended Complaint - Case No. ClV537740
2
notified Plaintiff that Defendant CSM’s Board of Supervisors rejected Plaintiff's claim on
July 21, 2015. Plaintiff has timely filed this action pursuant to Government Code section
945.6.
FACTS COMMON To AACAUSES OF ACTION
QmNODCD-t-i
AS INCORPORATED BY REFERENCE
8. At the time of the events alleged herein, the Superior Court of California,
County of San Mateo (the “Court”) contracted with Defendant CSM, by and through the
SMCSO, to "provide security services to the Court.” Attached as Exhibit A to this
complaint and incorporated by reference is the Service Level Agreement between the
Court, Defendant CSM and SMCSO in effect at the time of the events alleged herein.
The contract specifically provides for the use of SMCSO officers'as bailiffs who “are
responsible for the security of the courtroom,” among other responsibilities. (Exhibit A,
Section 1.2.C.) Plaintiff is informed and believes and thereon alleges that bailiffs have
the responsibility to protect everyone who is in the courtroom, including custodians.
9. Plaintiff is informed and believes and thereon alleges the following:
SMCSO requires, trains and encourages its officers, including those assigned as
bailiffs, to practice with the firearms issued to them by the SMCSO on an ongoing basis.
Part of that practice includes officers unholstering the firearms, and “dry-firing" the
firearms. Dry—firing a firearm includes taking an appropriate stance, aiming the weapon
and looking through a sight picture. it is acceptable for SMCSO officers to dry-fire
weapons outside of a firing range, including by dry-firing at a wall, as long as it is done
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in a safe manner. The SMCSO trains and expects its officers to practice with their
weapons to obtain muscle memory, which takes approximately 1,000 repetitions. The
SMCSO also encourages its officers to practice with their firearms to maintain their
proficiency.
10. Plaintiff is informed and believes and thereon alleges the "following:
SMCSO encourages its officers to practice with their firearms and holsters while on
Second Amended Complaint - Case No. ClV537740
3
duty. However, SMCSO does not specifically delineate how and when SMCSO officers
are to complete this practice. There are no documents issued by the SMCSO
prohibiting SMCSO officers assigned as bailiffs from completing the necessary practice,
including unholstering firearms and dry-firing them, in a courtroom.
(OmflQO'I-hOONA
11. Plaintiff is informed and believes and thereon alleges the following: In
addition to practicing with firearms, the SMCSO trains its officers to check their
equipment, including firearms, before their shifts and permits them to check their
equipment during their shifts. Checking a firearm includes taking the firearm out of its
holster, making a visual inspection, looking through the sights, and aiming it. The
SMCSO permits its officers stationed as bailiffs to check their equipment, including
firearms, in a courtroom so long as it is safe. SMCSO deputies commonly check their
firearms before and during their shifts in and around the courthouse at which the events
on April 13, 2015 alleged herein took place. Indeed, Defendant MAR testified under
oath that in the approximately five to six years that he was assigned as an officer in the
transportation unit (which includes courthouse security and acting as a bailiff), plus the
approximately 120 shifts he worked in the transportation unit when he was not regularly
assigned to it (e.g., on overtime or as needed), he personally observed other SMCSO
officers check their firearms by removing them from their holsters, looking through the
sights and/or aiming them, between 80 and over 130 times. Defendant MAR personally
observed officers checking their equipment in this manner in courtrooms, in the
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hallways behind the courtrooms, in the conference room/lunchroom/restroom areas
behind the courtrooms, in the holding cells, and in the locker room. Checking one’s
equipment in this manner on duty and in and around the courthouse was a common,
usual occurrence that was not criticized, reprimanded or disciplined by the SMCSO.
12. Plaintiff is informed and believes and thereon alleges the following: The
SMCSO issued new firearms and holsters to officers, including Defendant MAR, in or
about March 2015. These weapons required SMCSO officers to develop different
Second Amended Complaint - Case No. CIV537740
4
muscle memory than they had with their previous weapons because the holster was
more difficult to use and required additional steps. SMCSO officers, including
Defendant MAR received a four-hour training on the newly-issued weapons during
which they completed approximately 100 repetitions of unholstering and dry—firing their
weapons. Following this four-hour training, SMCSO officers were supposed to practice
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with their firearms in order to optimize their accuracy in shooting, optimize their muscle
memory and for public safety.
Agril 13: 2015
13. At the time of the incident alleged herein, Plaintiff was employed by the
Superior Court of California as a lead custodian assigned to clean various courtrooms,
workstations of court personnel, and private judge’s chambers — of the Superior Court of
California, County of San Mateo, located at 400 County Center, Redwood City,
California 94063. Plaintiff had been, employed in the courthouse as a custodian for
nearly ten years, was in good standing, enjoyed and took pride in his work, and was
well liked by court personnel.
.
14. On or about the morning of April 13, 2015, Defendant MAR was on duty
and temporarily stationed as a bailiff in courtroom 7B. Plaintiff is informed and believes
and thereon alleges that on or about that date, Defendant MAR was the employee and
agent of Defendant CSM. and in doing the acts herein alleged,‘was acting within the
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course and scope of that agency.
15. On or about the morning of April 13, 2015, Plaintiff entered courtroom 78
to speak with the court clerk, Alma DeLaRosa, and the court reporter, Tracy Wood.
After Plaintiff had been in the courtroom with Ms. DeLaRosa and Ms. Wood for a few
minutes, Defendant MAR entered the courtroom. Defendant MAR was wearing his San
Mateo County Sheriff's uniform, and was in possession of a firearm issued to him by
CSM.
Second Amended Complaint - Case No. CIV537740
5
16. Without cause or provocation, Defendant MAR unholstered his duty
firearm and aimed it directly at Plaintiff. Defendant MAR’s finger was on the trigger, and
the firearm was loaded. Defendant MAR tracked Plaintiff by continuously pointing his
firearm at Plaintiff as Plaintiff ducked and moved to avoid being within the sights of the
firearm. Plaintiff pleaded with Defendant MAR to put his firearm away, to which
(DODVCDU‘IAODNA
Defendant MAR responded to Plaintiff, “You want some South Carolina justice,"
referring to recent events of unprovoked law enforcement shootings of minority civilians.
Alarmed and scared, Plaintiff escaped courtroom 73 through the back employee
entrance. Ms. DeLaRosa was a percipient witness to the event.
10 17. Plaintiff is informed and believes and thereon alleges the following: Shortly
11 after Defendant MAR assaulted and threatened Plaintiff, the matter was reported to the
12 SMCSO. Two of Defendant MAR's fellow SMCSO deputies, Lieutenant Ken Jones and
13 Sergeant Dwayne Earles, went Courtroom 7B and to address the situation with
14 Defendant MAR. However, the SMCSO had no intention of making Defendant MAR the
15 subject of a criminal investigation or referring the matter to a different law enforcement
16 agency. in fact, Sergeant Earles attempted to protect Defendant MAR from making any
17 incriminating statements by forcefully telling him to be quiet. Despite those efforts,
18 Defendant MAR told Sergeant Earles that he knew why they had come to see him.
19 MAR admitted to Sergeant Earles that he “did it.” Thereafter, Sergeant Earles
20 equivocally stated to the investigator from the San Mateo County District Attorney’s
21 Office who was investigating the incident on April 15, 2015, two days after the incident,
22 that Defendant Mar either said, “I did it” or “I didn't do it,” but he was so forcefully telling
23 Defendant Mar to be quiet that he could not be certain. On April 21, 2015, Sergeant
24 Earles changed his statement to the San Mateo County District Attorney’s Office to
25 state that Defendant Mar had in fact said, “I did it.”
26 18. Plaintiff is informed and believes and thereon alleges the following: On the
27 day of the incident, Lieutenant Jones and Sergeant Earles stated to Court Human
28
Second Amended Complaint - Case No. C|V537740
6
Resources Director Ron Mortenson that the matter was going to be referred to the
SMCSO’s Internal Affairs Department and further stated to Mortenson that Defendant
MAR would be immediately reassigned so that he would not be present in the courts.
Plaintiff was assured that Defendant MAR would not be present in the courthouse.
Defendant Mar’s Position on the April 13, 2016 Incident
19. Defendant MAR provided a recorded statement to investigators with the
San Mateo County District Attorney's-Office, testified in his criminal trial on August 26,
2016, and was deposed by_Plaintifl’s counsel in this civil lawsuit on October 14, 2014.
20. Plaintiff is informed and believes and thereon alleges that Defendant
lVlAR’s position is as follows: On April 13, 2015, Defendant pulled his loaded gun from
his holster and aimed it at the wall approximately four to four and half feet from the floor
and approximately four feet to left of where Plaintiff was positioned at the time.
Defendant MAR claims he did not point his duty weapon directly at Plaintiff. instead,
Defendant MAR claims he was practicing with and checking the sights of his newly-
issued service firearm. Defendant MAR characterizes his conduct as “dumb” and
“incredibly stupid.” Defendant MAR failed to advise or forewarn Plaintiff or the other
occupants of the courtroom that he intended to remove his firearm from his holster
and/or aim it in the general direction of Plaintiff.
April 14I 2015
21. Having been assured on April 13, 2015 that Defendant MAR would not be
on the premises of the courthouse on the day following the incident, Plaintiff went to the
San Mateo County District Attorney’s Office to report the incident on April 14. 2015.
Plaintiff also intended to try to attend to his duties because he expected to be safe from
harm. However, while Plaintiff was eating in the cafe in the basement of the courthouse,
Plaintiff saw Defendant MAR, in full uniform and with his hand on service weapon, making
menacing eye contact with Plaintiff. As a result of being subjected to this encounter,
Plaintiff suffered even further emotional distress.
Second Amended Complaint - Case No. ClV537740
7
22. Plaintiff is informed and believes and thereon alleges that on or about
April 14, 2015, employees of Defendant CSM and named as DOE defendants herein,
having knowledge of the details of the events alleged herein to have occurred,
permitted Defendant MAR to return to his duties as a SMCSO deputy the very next day
(OQNQO'IAOON—e
with his duty firearm, even after Defendant MAR admitted he unholstered and pointed
his firearm in the courtroom.
23. Plaintiff is informed and believes and thereon alleges the following: The
SMCSO has a protocol for addressing its officers’ inappropriate use of a firearm, which
{includes the SMCSO issuing a notice to the officer that he is under investigation and
which describes what the officer is permitted to do. Following the events on April 14,
2015, Defendant CSM and officers within the SMCSO, named as DOE Defendants
herein, delayed in the ministerial administration of this protocol, which was at least one
of the reasons Defendant MAR was permitted to return to duty on April 14, 2016, in the
courthouse, in full uniform and with his duty weapon. Defendant MAR did not receive
his notice of investigation until April 14, 2015. Defendant MAR was not placed on
administrative leave until after approximately 2 or 2:30 in the afternoon of April 14,
2015.
24. As a result of the events of April 13, 2016 and April 14, 2016, Plaintiff has
suffered, and continues to suffer, severe emotional distress. Plaintiff has been
diagnosed with Post—Traumatic Stress Disorder.
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FIRST CAUSE OF ACTION
ASSAULT
(Plaintiff against Defendants MAR, CSM and DOES 1 through 20)
25. Plaintiff incorporates herein by reference, as though set forth in full,
Paragraphs 1-20 and 24 of this complaint.
26. Plaintiff is informed and believes and thereon alleges that at all relevant
times, Defendant MAR was the employee and agent of Defendant CSM, and in doing
Second Amended Complaint - Case No. CIV537740
8
the things alleged herein, was acting within the course and scope of that employment
and agency.
27. In so doing the acts as alleged in the paragraphs incorporated by
reference in this cause of action, Defendant MAR intended to cause or to place Plaintiff
in apprehension of a harmful contact, specifically great bodily harm, with Plaintiff’s
(DOONQU‘ILWNA
person.
28. In so doing the acts as alleged in the Paragraphs incorporated by
reference in this cause of action, Plaintiff in fact was placed in great apprehension of
harmful contact with Plaintiff’s person, specifically great bodily harm.
'
29. At no time did Plaintiff consent to any of the acts of Defendant MAR.
30. As a proximate result of such intentional conduct of Defendant MAR,
Plaintiff was harmed. Plaintiff experienced extreme fear, anxiety, stress, and severe
emotional distress. Plaintiff was diagnosed with Post-Traumatic Stress Disorder caused
by this traumatic incident.
Preview
”/6; 9,7 TODD P. EMANUEL (SBN 169301) FILED SAN MATEO COUNTY " EMANUEL LAW GROUP 702 Marshall Street, Suite 400 Redwood City, CA 94063 Telephone: (650 369.8900 Facsimile: (650 369.4228 Attorneys for Plaintiff (OCDVOU‘l-hmM—k JOSE VERDUSCO - — SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO — UNLIMITED JURISDICTION JOSE VERDUSCO Case No. CIV537740 Plaintiff, DECLARATION OF COUNSEL TODD P. vs. EMANUEL IN OPPOSITION TO SAN MATEO COUNTY’S MOTION TO QUASH, ANDY IVIAR, COUNTY OF SAN MATEO OR, IN THE ALTERNATIVE, FOR A and DOES 1-20 mCIUS'Ve PROTECTIVE ORDER REGARDING PLAINTIFF’S DEPOSITION OF SHERIFF Defendants CARLOS BOLANOS ‘ —T—T GIV537140 _WW DEGL Egggggation i DATE: JANUARY 8, 2017 NNNNNNNNMA—A—A—k—l—A—l-XAA I TIME: 9:00 AM. I———+ LAWANDMOT'ON mNODU'l-bODN—‘OCDGJNOO‘IAOJN—‘O llllllllllllllllllllllllll l l, Pamela E. Glazner, declare: 1. I am the principal attorney at the Emanuel Law Group, which represents Plaintiff Jose Verdusco (“Plaintiff”), a party to this action. l have personal knowledge of the facts stated in this declaration and if called, I could testify competently to them. 2. The operative complaint in this matter is the Second Amended Complaint, a true and correct copy of which is attached as Exhibit 1. 3. Based on publically available records, at the time of the subject incident on April 13, 2015, Bolanos had not yet been elevated to the position Sheriff and was serving as undersheriff. Discovery and investigation had revealed that Bolanos had direct 1 EMANUEL DECLARATION IN OPPOSITION TO CSM MOTION TO QUASH — CASE NO. CIV537740 participation in the events that led to some of Plaintiff’s economic and non-economic damages. Bolanos' participation included at least one conversation with two of his subordinates, Sgt. Dwayne Earles (“Earles") and Lt. Kenneth Jones (“Jones"). Both Earles and Jones were deposed on August 7, 2017 and September 28, 2017, reSpectively. (om’xlCDU'l-P-OON-i Attached as Exhibits 2 and 3 are the relevant excerpts of the depositions of Earles and Jones, respectively. 4. On October 4, 2017 I sent an email to Deputy County Counsel Sandra Nierenberg, attorney of record for defendant County of San Mateo County (“CSM”) requesting that she provide available deposition dates for Sheriff Carlos Bolanos (“Bolanos"). 5. Ms. Nierenberg refused to provide dates for the deposition, and personally accused me in an email of noticing the deposition “solely to harass the county.” She then further accused me of having “personal animus" against the Sheriff's Office, and recklessly misquoted me as using the term “jackass" in reference to one or more deputies. I did express disgust, off the record at the deposition of Lt. Jones, that the deputies were covering each other’s asses, which, ironically, is one reason the deposition of Sheriff Bolanos is needed to further discover admissible evidence in this matter. I have never had mflmm-kmN—‘OCOCOVODO‘IAOJN—‘O any “personal animus" toward the Sheriff’s Office. On the contrary, many members of the NNNNNNNNNAAAAAAAAAA Sheriff's Office are my friends and former clients. I respect their work, and | reject the notion that the misbehavior of a few (Earles and Jones) is any reflection on the rest. 6. Plaintiffs counsel has conducted exhaustive discovery by lesser intrusive means before the noticed date the deposition of Sheriff Bolanos to learn as much information as possible on areas of inquiry such as why the Sheriff's Office never took any action to commence a criminal investigation, and why the Sheriff’s Office placed Deputy Mar back on duty in the courthouse the day after the incident, thereby exposing Plaintiff to even more significant emotional distress. Specifically, Plaintiff’s counsel did the following discovery bearing on the topics about which Sheriff’s Bolanos is expected to have personal knowledge: 2 EMANUEL DECLARATION IN OPPOSITION TO CSM MOTION TO QUASH — CASE NO. CIV537740 . Deposing Earles, relevant excerpts of which are attached as Exhibit 2. b. Deposing. Jones, relevant excerpts of which are attached as Exhibit 3. . Deposing the person Defendant CSM designated as most qualified to testify on a number of topics, including, “The facts and circumstances regarding the return of Defendant Andy Mar to work after the INCIDENT" (Topic No. 3); and (OGJNOJO'ILOJNA “The facts, circumstances and outcome of the investigation conducted by San Mateo County Sheriff’s Office Undersheriff Carlos Bolanos, Lieutenant Ken jones and Sergeant Dwayne Earles regarding the INCIDENT (Topic No. 4). Attached as EXhibits 4 and 5, respectively, are true and correct copies of Plaintiff's Notice of Deposition of Person Most. Qualified to Testify with Production of Documents, and excerpts of the October 17, 2017 deposition of that person most qualified, William Fogarty. . Deposing the person Defendant CSM designated as most qualified to testify on a number of other topics, including why the Sheriff’s Office failed to conduct a criminal investigation (Topic Nos. 1-4), as well as a number of topics related to Sheriff Bolanos’ involvement and decision—making regarding the incident giving rise to this lawsuit and the lack of a criminal investigation NMNNNNNNNAA—XAAA—X—X—x—x (Topic Nos. 5-6). Attached as Exhibits 6 and 7, respectively, are true and mm-fimN—XOOODVCDUI-bWN—‘O correct copies of Plaintiff's Amended Notice of Deposition of Person Most Qualified to Testify with Production of Documents, and excerpts of the December 5, 2017 deposition of that person most qualified, Mark C. Robbins. . Propounding requests for admission, Defendant CSM’s responses to which are attached as Exhibit 8. Propounding requests for production of documents, Defendant CSM's written responses to which are attached as Exhibit 9. See, e.g., Request Nos. 6 and 7 to which Defendant CSM invoked to Penal Code sections 832.7 and 832.8 pertaining to peace officer personnel records. // 3 EMANUEL DECLARATION IN OPPOSITION TO CSM MOTION TO QUASH — CASE NO. CIV537740 9. Filing a Pitchess motion, which was granted in part, to obtain documents from Defendant Mar's personnel records. Attached as Exhibit 10 is a true and correct copy of the court’s order on Plaintiff's Pitchess motion. 7. Despite this extensive discovery, the areas of inquiry about which Plaintiff (0C1!)\ICDO‘Il-AQJIQAL seeks to depose Sheriff Bolanos are incomplete, in large part because Defendant CSM produced deponents who were unqualified and unprepared to testify in key areas that are set forth on the deposition notices attached as Exhibits 4 and 6. While Sheriff Bolanos was the highest official in the chain of command, he had direct knowledge and decision-making responsibility. Yet, he has not offered testimony within his personal knowledge. Therefore, his deposition is necessary and appropriate. I foregoing is true and correct. Date: December 21, 2017 @///’ declare under penalty of perjury under the laws of the State of California that the TODD P. EMANUEL TQM/2’ NNNNNNNNNA—X—A—AA—LAAAA CDKICDUI-bOON—tocomNOO'I-t—AO 4 EMANUEL DECLARATION IN OPPOSITION TO CSM MOTION TO QUASH — CASE NO. C|V537740 CASE NAME: Verdusco v. Mar, et al. CASE NO.: San Mateo Superior Court Case No. CIV537740 (Transferred from San Francisco SC Case No. CGC-16-549709) PROOF OF SERVICE Iam employed in the City of Redwood City, County of San Mateo, State of (OQNODCfl-t—F California. I am over the age of 18 years and not a party to the within action. My business address is 702 Marshall Street, Suite 400, Redwood City, California 94063. On the date set forth below, following ordinary business practice, I served a true copy of the foregoing document(s) described as: DECLARATION OF COUNSEL TODD P. EMANUEL IN OPPOSITION TO SAN MATEO COUNTY’S MOTION TO QUASH, OR, IN THE ALTERNATIVE, FOR A PROTECTIVE ORDER REGARDING PLAINTIFF’S DEPOSITION OF SHERIFF CARLOS BOLANOS III (BY FAX) by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below, or as stated on the attached service list, on this date. (BY MAIL) I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail at Redwood City, California. [WHERE NOTED] (BY E-MAIL) by transmitting via electronic mail the document(s) listed above to the email address(es) set forth below, or as stated on the attached service list, on this date. [WHERE NOTED] I:I (BY OVERNIGHT DELIVERY) I caused such envelope(s) to be delivered to an overnight delivery carrier with delivery fees provided for, addressed to the person(s) on whom it is to be served. NMNNNNNNN—l—lA—X—A—XA—LA-A [I (BY PERSONAL SERVICE) to the addressee(s). I caused such envelope(s) to be delivered by hand CONOU'l-POONAOCOGJVODUIACON—‘O SEE ATTACHED SERVICE LIST [2' (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on December 22, 2017 at Redwood City, Calif PROOF OF SERVICE - CASE NO. CIV537740 Sandra Zuniga Nierenberg Attorney for Defendant SAN MATEO COUNTY COUNSEL COUNTY OF SAN MATEO 400 County Center Redwood City, CA 94063 VIA EMAIL Telephone: (650) 363.4755 Facsimile: (650) 363.4034 Email: snierenberq@smcqov.orq Grant A. Winter . Attorney for Defendant (OWNODO'IAQJNA MASTAGNI & HOLDSTEDT APC ANDY MAR 1912 | Street Sacramento, CA 95811 VIA US MAIL Telephone: (916) 446.4692 Direct: (916) 491.4252 Facsimile: (916) 447.4614 Email: qwinter@mastaqni.com mNCDU‘l-hOJNAOCOCDNODO‘l-hOON—‘O NNNNNNNNN—x—x—x-x-xggg“ -2- PROOF OF SERVICE - CASE NO. CIV537740 ¥ Exhibit 1 TODD P. EMANUEL (SBN 169301) PAMELA E. GLAZNER (SBN 247007) EMANUEL LAW GROUP ENDGRSEDFILEQ 702 Marshall Street, Suite 400 SAN MATEO Redwood City, California 94063 COUNTY Telephone: (650) 369.8900 OCT 3 4 Facsimile: (650) 369.4228 2016 Attorneys for Plaintiff (OOJNOU'l-wA JOSE VERDUSCO SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO - UNLIMITED JURISDICTION 10 Case No. ClV537740 11 JOSE VERDUSCO, SECOND AMENDED COMPLAINT FOR 12 Plaintiff, (1) ASSAULT 13 vs. (2) FALSE IMPRISONMENT 14 AN DY MAR, COUNTY OF SAN MATEO (3) INTENTIONAL INFLICTION OF and DOES 1-20 inclusive EMOTIONAL DISTRESS 15 (4) NEGLIGENT INFLICTION OF Defendants. EMOTIONAL DISTRESS 16 (5) FREEDOM FROM VIOLENCE UNDER RALPH CIVIL RIGHTS ACT 17 (CIVIL CODE, § 51.7) 18 (6) NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION 19 20 Plaintiff JOSE VERDUSCO alleges as follows: _ 21 INTRODUCTION AND PARTIE 22 1. Plaintiff JOSE VERDUSCO is, and at all relevant times was, a resident of 23 the County of San Mateo. 24 2. Plaintiff is informed and believes and thereon alleges that defendant 25 ANDY MAR is, and at all relevant times was, a resident of the County of San Francisco 26 and was employed by defendant COUNTY OF SAN MATEO as a deputy of the San 27 Mateo County Sheriff’s Office. 28 Second Amended Complaint - Case No. ClV537740 1 3. Defendant COUNTY OF SAN MATEO (hereafter "CSM”) is, and at all relevant times was, a public entity. Plaintiff is informed and believes and thereon alleges that at all relevant times, Defendant MAR was the employee and agent of Defendant CSM, and in doing the things hereinafter alleged, was acting within the (OmNCDO'l-XSOONA course and scope of that employment and agency. Plaintiff is informed and believes and thereon alleges that the San Mateo County Sheriff's Office (“SMCSO”) is an agency within Defendant CSM. 4. The true names and capacities of the defendants named herein as DOES 1 through 20, inclusive, whether individual, corporate, associate or othenIvise, are unknown to Plaintiff, who therefore sues such defendants by fictitious names pursuant to California Code of Civil Procedure section 474. Plaintiff is informed and believes, and thereon alleges that the fictitiously named defendants are subject to the jurisdiction of this court and that each of said defendants is responsible in some manner for the ~ conduct alleged in each and every cause of action set forth herein and is therefore responsible for the resulting injury and damages to Plaintiff. Plaintiff will amend this I Complaint to show such true names and capacities when they have been determined 5. Defendant MAR, Defendant CSM and defendants named as DOES herein will be collectively referred to herein as “Defendants.” mummswmsoomsmasas:s 6. Plaintiff is informed and believes, and upon such information and belief alleges that at all relevant times herein mentioned, each of the Defendants was the partner, joint venturer, aider and abettor, agent, employee and/or representative of each NNNNNNNNNA—xag of the remaining Defendants and was acting at least in part Within the course and scope of said relationship. Whenever a defendant is the subject of any charging allegation by Plaintiff, it shall be deemed that the defendants named as DOES 1 through 20, inclusive, and each of them, are likewise subject to this charging allegation. 7. Plaintiff filed a government tort claim pursuant to Government Code section 900 et seq. on June 15, 2015. By letter dated July 22, 2015, Defendant CSM Second Amended Complaint - Case No. ClV537740 2 notified Plaintiff that Defendant CSM’s Board of Supervisors rejected Plaintiff's claim on July 21, 2015. Plaintiff has timely filed this action pursuant to Government Code section 945.6. FACTS COMMON To AACAUSES OF ACTION QmNODCD-t-i AS INCORPORATED BY REFERENCE 8. At the time of the events alleged herein, the Superior Court of California, County of San Mateo (the “Court”) contracted with Defendant CSM, by and through the SMCSO, to "provide security services to the Court.” Attached as Exhibit A to this complaint and incorporated by reference is the Service Level Agreement between the Court, Defendant CSM and SMCSO in effect at the time of the events alleged herein. The contract specifically provides for the use of SMCSO officers'as bailiffs who “are responsible for the security of the courtroom,” among other responsibilities. (Exhibit A, Section 1.2.C.) Plaintiff is informed and believes and thereon alleges that bailiffs have the responsibility to protect everyone who is in the courtroom, including custodians. 9. Plaintiff is informed and believes and thereon alleges the following: SMCSO requires, trains and encourages its officers, including those assigned as bailiffs, to practice with the firearms issued to them by the SMCSO on an ongoing basis. Part of that practice includes officers unholstering the firearms, and “dry-firing" the firearms. Dry—firing a firearm includes taking an appropriate stance, aiming the weapon and looking through a sight picture. it is acceptable for SMCSO officers to dry-fire weapons outside of a firing range, including by dry-firing at a wall, as long as it is done NNNNNMNNN—x—LAA in a safe manner. The SMCSO trains and expects its officers to practice with their weapons to obtain muscle memory, which takes approximately 1,000 repetitions. The SMCSO also encourages its officers to practice with their firearms to maintain their proficiency. 10. Plaintiff is informed and believes and thereon alleges the "following: SMCSO encourages its officers to practice with their firearms and holsters while on Second Amended Complaint - Case No. ClV537740 3 duty. However, SMCSO does not specifically delineate how and when SMCSO officers are to complete this practice. There are no documents issued by the SMCSO prohibiting SMCSO officers assigned as bailiffs from completing the necessary practice, including unholstering firearms and dry-firing them, in a courtroom. (OmflQO'I-hOONA 11. Plaintiff is informed and believes and thereon alleges the following: In addition to practicing with firearms, the SMCSO trains its officers to check their equipment, including firearms, before their shifts and permits them to check their equipment during their shifts. Checking a firearm includes taking the firearm out of its holster, making a visual inspection, looking through the sights, and aiming it. The SMCSO permits its officers stationed as bailiffs to check their equipment, including firearms, in a courtroom so long as it is safe. SMCSO deputies commonly check their firearms before and during their shifts in and around the courthouse at which the events on April 13, 2015 alleged herein took place. Indeed, Defendant MAR testified under oath that in the approximately five to six years that he was assigned as an officer in the transportation unit (which includes courthouse security and acting as a bailiff), plus the approximately 120 shifts he worked in the transportation unit when he was not regularly assigned to it (e.g., on overtime or as needed), he personally observed other SMCSO officers check their firearms by removing them from their holsters, looking through the sights and/or aiming them, between 80 and over 130 times. Defendant MAR personally observed officers checking their equipment in this manner in courtrooms, in the NNNNNNNNN—‘A—l—t hallways behind the courtrooms, in the conference room/lunchroom/restroom areas behind the courtrooms, in the holding cells, and in the locker room. Checking one’s equipment in this manner on duty and in and around the courthouse was a common, usual occurrence that was not criticized, reprimanded or disciplined by the SMCSO. 12. Plaintiff is informed and believes and thereon alleges the following: The SMCSO issued new firearms and holsters to officers, including Defendant MAR, in or about March 2015. These weapons required SMCSO officers to develop different Second Amended Complaint - Case No. CIV537740 4 muscle memory than they had with their previous weapons because the holster was more difficult to use and required additional steps. SMCSO officers, including Defendant MAR received a four-hour training on the newly-issued weapons during which they completed approximately 100 repetitions of unholstering and dry—firing their weapons. Following this four-hour training, SMCSO officers were supposed to practice cooowoaoqN—x with their firearms in order to optimize their accuracy in shooting, optimize their muscle memory and for public safety. Agril 13: 2015 13. At the time of the incident alleged herein, Plaintiff was employed by the Superior Court of California as a lead custodian assigned to clean various courtrooms, workstations of court personnel, and private judge’s chambers — of the Superior Court of California, County of San Mateo, located at 400 County Center, Redwood City, California 94063. Plaintiff had been, employed in the courthouse as a custodian for nearly ten years, was in good standing, enjoyed and took pride in his work, and was well liked by court personnel. . 14. On or about the morning of April 13, 2015, Defendant MAR was on duty and temporarily stationed as a bailiff in courtroom 7B. Plaintiff is informed and believes and thereon alleges that on or about that date, Defendant MAR was the employee and agent of Defendant CSM. and in doing the acts herein alleged,‘was acting within the NNNNNNNNNA—‘A—k—K—K course and scope of that agency. 15. On or about the morning of April 13, 2015, Plaintiff entered courtroom 78 to speak with the court clerk, Alma DeLaRosa, and the court reporter, Tracy Wood. After Plaintiff had been in the courtroom with Ms. DeLaRosa and Ms. Wood for a few minutes, Defendant MAR entered the courtroom. Defendant MAR was wearing his San Mateo County Sheriff's uniform, and was in possession of a firearm issued to him by CSM. Second Amended Complaint - Case No. CIV537740 5 16. Without cause or provocation, Defendant MAR unholstered his duty firearm and aimed it directly at Plaintiff. Defendant MAR’s finger was on the trigger, and the firearm was loaded. Defendant MAR tracked Plaintiff by continuously pointing his firearm at Plaintiff as Plaintiff ducked and moved to avoid being within the sights of the firearm. Plaintiff pleaded with Defendant MAR to put his firearm away, to which (DODVCDU‘IAODNA Defendant MAR responded to Plaintiff, “You want some South Carolina justice," referring to recent events of unprovoked law enforcement shootings of minority civilians. Alarmed and scared, Plaintiff escaped courtroom 73 through the back employee entrance. Ms. DeLaRosa was a percipient witness to the event. 10 17. Plaintiff is informed and believes and thereon alleges the following: Shortly 11 after Defendant MAR assaulted and threatened Plaintiff, the matter was reported to the 12 SMCSO. Two of Defendant MAR's fellow SMCSO deputies, Lieutenant Ken Jones and 13 Sergeant Dwayne Earles, went Courtroom 7B and to address the situation with 14 Defendant MAR. However, the SMCSO had no intention of making Defendant MAR the 15 subject of a criminal investigation or referring the matter to a different law enforcement 16 agency. in fact, Sergeant Earles attempted to protect Defendant MAR from making any 17 incriminating statements by forcefully telling him to be quiet. Despite those efforts, 18 Defendant MAR told Sergeant Earles that he knew why they had come to see him. 19 MAR admitted to Sergeant Earles that he “did it.” Thereafter, Sergeant Earles 20 equivocally stated to the investigator from the San Mateo County District Attorney’s 21 Office who was investigating the incident on April 15, 2015, two days after the incident, 22 that Defendant Mar either said, “I did it” or “I didn't do it,” but he was so forcefully telling 23 Defendant Mar to be quiet that he could not be certain. On April 21, 2015, Sergeant 24 Earles changed his statement to the San Mateo County District Attorney’s Office to 25 state that Defendant Mar had in fact said, “I did it.” 26 18. Plaintiff is informed and believes and thereon alleges the following: On the 27 day of the incident, Lieutenant Jones and Sergeant Earles stated to Court Human 28 Second Amended Complaint - Case No. C|V537740 6 Resources Director Ron Mortenson that the matter was going to be referred to the SMCSO’s Internal Affairs Department and further stated to Mortenson that Defendant MAR would be immediately reassigned so that he would not be present in the courts. Plaintiff was assured that Defendant MAR would not be present in the courthouse. Defendant Mar’s Position on the April 13, 2016 Incident 19. Defendant MAR provided a recorded statement to investigators with the San Mateo County District Attorney's-Office, testified in his criminal trial on August 26, 2016, and was deposed by_Plaintifl’s counsel in this civil lawsuit on October 14, 2014. 20. Plaintiff is informed and believes and thereon alleges that Defendant lVlAR’s position is as follows: On April 13, 2015, Defendant pulled his loaded gun from his holster and aimed it at the wall approximately four to four and half feet from the floor and approximately four feet to left of where Plaintiff was positioned at the time. Defendant MAR claims he did not point his duty weapon directly at Plaintiff. instead, Defendant MAR claims he was practicing with and checking the sights of his newly- issued service firearm. Defendant MAR characterizes his conduct as “dumb” and “incredibly stupid.” Defendant MAR failed to advise or forewarn Plaintiff or the other occupants of the courtroom that he intended to remove his firearm from his holster and/or aim it in the general direction of Plaintiff. April 14I 2015 21. Having been assured on April 13, 2015 that Defendant MAR would not be on the premises of the courthouse on the day following the incident, Plaintiff went to the San Mateo County District Attorney’s Office to report the incident on April 14. 2015. Plaintiff also intended to try to attend to his duties because he expected to be safe from harm. However, while Plaintiff was eating in the cafe in the basement of the courthouse, Plaintiff saw Defendant MAR, in full uniform and with his hand on service weapon, making menacing eye contact with Plaintiff. As a result of being subjected to this encounter, Plaintiff suffered even further emotional distress. Second Amended Complaint - Case No. ClV537740 7 22. Plaintiff is informed and believes and thereon alleges that on or about April 14, 2015, employees of Defendant CSM and named as DOE defendants herein, having knowledge of the details of the events alleged herein to have occurred, permitted Defendant MAR to return to his duties as a SMCSO deputy the very next day (OQNQO'IAOON—e with his duty firearm, even after Defendant MAR admitted he unholstered and pointed his firearm in the courtroom. 23. Plaintiff is informed and believes and thereon alleges the following: The SMCSO has a protocol for addressing its officers’ inappropriate use of a firearm, which {includes the SMCSO issuing a notice to the officer that he is under investigation and which describes what the officer is permitted to do. Following the events on April 14, 2015, Defendant CSM and officers within the SMCSO, named as DOE Defendants herein, delayed in the ministerial administration of this protocol, which was at least one of the reasons Defendant MAR was permitted to return to duty on April 14, 2016, in the courthouse, in full uniform and with his duty weapon. Defendant MAR did not receive his notice of investigation until April 14, 2015. Defendant MAR was not placed on administrative leave until after approximately 2 or 2:30 in the afternoon of April 14, 2015. 24. As a result of the events of April 13, 2016 and April 14, 2016, Plaintiff has suffered, and continues to suffer, severe emotional distress. Plaintiff has been diagnosed with Post—Traumatic Stress Disorder. NNNNNMNNN—X—k—x—x—L FIRST CAUSE OF ACTION ASSAULT (Plaintiff against Defendants MAR, CSM and DOES 1 through 20) 25. Plaintiff incorporates herein by reference, as though set forth in full, Paragraphs 1-20 and 24 of this complaint. 26. Plaintiff is informed and believes and thereon alleges that at all relevant times, Defendant MAR was the employee and agent of Defendant CSM, and in doing Second Amended Complaint - Case No. CIV537740 8 the things alleged herein, was acting within the course and scope of that employment and agency. 27. In so doing the acts as alleged in the paragraphs incorporated by reference in this cause of action, Defendant MAR intended to cause or to place Plaintiff in apprehension of a harmful contact, specifically great bodily harm, with Plaintiff’s (DOONQU‘ILWNA person. 28. In so doing the acts as alleged in the Paragraphs incorporated by reference in this cause of action, Plaintiff in fact was placed in great apprehension of harmful contact with Plaintiff’s person, specifically great bodily harm. ' 29. At no time did Plaintiff consent to any of the acts of Defendant MAR. 30. As a proximate result of such intentional conduct of Defendant MAR, Plaintiff was harmed. Plaintiff experienced extreme fear, anxiety, stress, and severe emotional distress. Plaintiff was diagnosed with Post-Traumatic Stress Disorder caused by this traumatic incident.