PEREZ, et al. vs COUNTY OF SACRAMENTO, et al.

23CV008456: PEREZ, et al. vs COUNTY OF SACRAMENTO, et al. 04/23/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

Tentative Ruling

NOTICE:

The Sacramento Superior Court has transitioned operations from the Gordon D. Schaber and Hall of Justice buildings to the new Tani G. Cantil-Sakauye Courthouse through a phased move plan beginning on April 13, 2026. Visit the court’s website at www.saccourt.ca.gov for the most current and up to date information regarding the transition. The physical and mailing address of the new downtown courthouse is:

Tani G. Cantil-Sakauye Courthouse 500 G Street Sacramento, CA 95814

Please take notice, effective April 13, 2026, Department 54 has moved to Department 16C at the Tani G. Cantil-Sakauye Courthouse. The Honorable Christopher E. Krueger remains presiding over all Home Court proceedings, including Case Management and Law & Motion. All hearings currently scheduled or reserved after the effective date shall remain in place and will be heard in Department 16C.

Hon. Christopher E. Krueger Department 16C 916-874-7848

Tentative Ruling

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of the Issues identified in the Notice of Motion and which of the Undisputed Material Facts offered by the moving defendant and/or the Additional Material Facts offered by plaintiffs will be addressed at the hearing and the parties should be prepared to point to specific evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Defendant County of Sacramento’s (“County”) motion for summary judgment, or in the alternative, partial summary adjudication is ruled upon as follows.

The County is admonished for failing to comply with California Rules of Court, rule 3.1110(f)(4), which provides, “Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” Failure to comply with these requirements in the future may result in papers not being considered, matters being continued so that papers may be submitted in the proper format, and/or

23CV008456: PEREZ, et al. vs COUNTY OF SACRAMENTO, et al. 04/23/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

the imposition of sanctions.

Overview

This action arises out of the death of Maurice Holley, Sr. (“Decedent” or “Holley”). Plaintiff Kimberly Perez (“Perez”) is alleged to be Decedent’s common law wife. (Complaint, ¶ 5.) Perez sues both in her individual capacity and as Decedent’s successor-in-interest. (Ibid.) Plaintiffs Maurice Holley Jr. (“Maurice”), Angel Holly (“Angel”) and Mitra Holley (“Mitra”) are alleged to be the Decedent’s biological children. (Complaint, ¶¶ 6-8.)[1]

Plaintiffs allege that on October 6, 2019, at approximately 2:36 p.m., on or near 13626 Bennett Road in the City of Herald, Deputy David Cuneo (“Cuneo”) initiated a wellness stop on Decedent who was asleep on the side of the road. Plaintiffs allege that Cuneo woke Decedent from his sleep, and proceeded to approach him. Cuneo was at a safe speaking distance from Decedent and began asking him questions. Decedent was cooperating with Cuneo’s commands and answering his questions. Decedent attempted to rise to his feet, but was instructed to remain seated.

Decedent complied. In an attempt to make himself comfortable Decedent sat on his butt and placed his hands near his hips. Cuneo saw a weapon and shouted “Gun!” Plaintiffs allege that rather than instructing Decedent with other commands Cuneo, acting under color of law and in the course and scope of his duties, fatally shot Decedent multiple times, thereby using excessive force against him. (Complaint, ¶ 21.)

Plaintiffs’ complaint asserts causes of action for: (1) false arrest/false imprisonment, (2) battery (wrongful death Code of Civil Procedure section 377.60); (3) negligence (wrongful death Code of Civil Procedure section 377.60); and (4) violation of the Tom Bane Civil Rights Act (Cal. Civil Code § 52.1).

Trial is currently scheduled for May 26, 2026.

The County moves for summary judgment, or in the alternative, partial summary adjudication, on the following grounds:

1. The first cause of action for false imprisonment fails.

2. Plaintiffs’ third cause of action for negligence fails because Cuneo’s use of lethal force was objectively reasonable.

3. Plaintiffs’ negligence cause of action based on failure to furnish medical care fails.

4. The second cause of action for battery fails because Cuneo’s use of lethal force was objectively reasonable.

5. The fourth cause of action pursuant to the Bane Act fails because the use of lethal force was objectively reasonable.

6. Kimberley Perez lacks standing to pursue these claims.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV008456: PEREZ, et al. vs COUNTY OF SACRAMENTO, et al. 04/23/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

The Holley Plaintiffs and Perez have filed separate oppositions to the motion.

Legal Standard

In evaluating a motion for summary judgment and/or summary adjudication, the Court engages in a three-step process.

First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. The court cannot consider an unpleaded issue in ruling on a motion for summary judgment. (Roth v.

Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a defendant’s motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [quoting Code Civ. Proc., § 437c, subd. (p)(2)].)

Once the moving party has met its initial burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or affirmative defense claimed. (Code Civ. Proc., § 437c, subd. (p); see, generally, Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 326-327.)

Finally, in ruling on the motion, the Court must consider the evidence and inferences reasonably drawn therefrom in the light most favorable to the opposing party. (Aguilar, supra, at p. 843.) Summary judgment is properly granted only if the moving party’s evidence establishes that there is no issue of material fact to be tried. (Lipson v. Super. Ct. (1982) 31 Cal.3d 362, 374.)

False Arrest/False Imprisonment

“The tort of false imprisonment is the nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short. (1 Harper & James, Torts (1956) p. 226; Rest. 2d Torts, § 35.) False imprisonment ‘is the unlawful violation of the personal liberty of another.’” (City of Newport Beach v. Sasse (1970) 9 Cal.App.3d 803, 810.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV008456: PEREZ, et al. vs COUNTY OF SACRAMENTO, et al. 04/23/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

The County relies on the following UMFs:

 On October 6, 2019 at approximately 2:15 p.m., the Sacramento Sheriff’s Office (“SSO”) received a call for service regarding a suspicious subject. (UMFs 1, 43, 68.)  At approximately 2:35 p.m., Cuneo responded to the call for service, located on Bennett Road in the southern area of Sacramento County. (UMFs 2, 44, 69.)  Cuneo was typically assigned to the Crisis Intervention Team ('CIT'), but was working an overtime shift on October 6, 2019. (UMFs 3, 45, 70.)  The caller reported that the subject was known to neighbors to carry knives and machetes and was lying in a ditch. (UMFs 4, 46, 71.)  Though a second officer was also dispatched to the call, Cuneo proceeded to the scene because it was unknown if the subject was suffering from an urgent medical issue and the second officer was further away. (UMFs 5, 47, 72.)  Upon arriving at the scene, Cuneo observed the subject, later identified as Holley, lying in a ditch. (UMFs 6, 48, 73.)  Holley appeared to be sleeping. (UMFs 7, 49, 74.)  Cuneo tapped on the horn of the patrol vehicle twice in an attempt to rouse Holley, with Holley raising his hand in response to the second horn. (UMFs 8, 50, 75.)  Holley was approximately 15-20 feet from the patrol vehicle during the encounter. (UMFs 9, 51, 76.)  Cuneo approached Holley and asked for identifying information and if Holley needed medical attention, which Holley declined. (UMFs 10, 52, 77.)  As Cuneo was speaking with Holley, Holley began to crawl on his hands and knees up a slight embankment away from the ditch. (UMFs 11, 53. 78.)  Cuneo asked Holley to sit back down, which initially Holley did not comply with, but eventually sat back down with his back to the wooden fence. (UMFs 12, 54, 79.)  As Holley grabbed papers he had been carrying around with his left hand, Cuneo noticed what he believed to be a gun on the left side of Holley’s waistband. (UMFs 13, 55, 80.)  Cuneo saw the butt or pistol grip of the gun sticking out of Holley’s waistband and believed the gun to be either a Heckler & Kock USP or a Smith & Wesson M&P Shield. (UMFs 14, 56, 81.)

The County argues that the false imprisonment cause of action fails because Cuneo was entitled to briefly detain Decedent as part of his investigation into whether Decedent needed medical attention. It further argues that because Cuneo noticed what appeared to be a gun in Decedent’s waistband, he was entitled to continue the detention until his safety was no longer in jeopardy.

The Holley Plaintiffs insist that triable issues of material fact exist because “the encounter escalated from a welfare check into an unlawful detention without reasonable suspicion.” (Opposition, 10:7-9.) They contend that “Cuneo blocked Decedent’s path, asserted authority, and restricted his freedom of movement before articulable facts existed to reasonably suspect

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV008456: PEREZ, et al. vs COUNTY OF SACRAMENTO, et al. 04/23/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

criminal activity or any immediate safety threat.” (Opposition, 10:17-19.) The Holley Plaintiffs dispute UMF 12, and clarify that:

Cuneo stated to Holley: “Sit back down on your butt for me.” However, Holley was never not seated on the ground as he was always either seated on his butt or on his knees or a combination of both. Holley was never not on the ground and he was never on his feet. After being told by Cuneo to “sit back down” Holley then crawled on his hands and knees up a small embankment approximately 2-3’ and then sat on his butt as he was instructed to do. Cuneo then stated: “Maurice, you’re not listening to me very well.”

(Holley Plaintiffs’ Response to UMF 12.)

The Holley Plaintiffs add that at no time did Decedent ever do anything that made Cuneo feel as though his safety was in jeopardy nor did Decedent ever physically approach Cuneo in any way. (AMFs 6-7.) All of Decedent’s responses to Cuneo’s identifying questions were clear, concise and appropriate. (AMF 1.)

They explain that when Decedent responded that he no longer needed medical attention:

Cuneo’s caretaker role concluded as he had concluded identifying who Holley was and that he did not need any medical attention plus there was no indicated [sic] that Holley was engaged in any criminal activity. At this moment, Cuneo should have concluded his conversation with Holley as he had now discharged his caretaking responsibilities (Ex. B to Comp. of Evidence; Clark Deposition 37: 15- 24) Moreover, Cuneo should never have been positioned where he was as he should have fulfilled his caretaker responsibilities from a position of safety as opposed to leaving the cover of his vehicle and physically approaching Holley.

(Opposition, 10:3-10.)

The Holley Plaintiffs disagree with the County’s claim that Cuneo was entitled to continue to detain Decedent when he observed what he thought was a gun in Decedent’s waistband. They explain that “Cuneo never should have been in the position to see the Air Gun in Holley’s waistband as the encounter with Holley should have already concluded. However, upon seeing the Air Gun in Holley’s waistband, Cuneo should have repositioned himself and taken cover rather than standing in the open.” (Opposition, 11:12-15.)

The Holley Plaintiffs conclude that their evidence “supports an inference that, before any alleged observation of a weapon, Cuneo had already transformed the encounter into a detention without sufficient legal basis, and that the supposed ‘appearance’ of a gun was ambiguous and could be

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV008456: PEREZ, et al. vs COUNTY OF SACRAMENTO, et al. 04/23/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

viewed by a reasonable jury as a post hoc justification rather than an objective, articulable safety threat.” (Opposition, 11:17-20.)

Perez’s opposition does not address this cause of action.

The County responds in reply that the initial contact was consensual, and that Decedent voluntarily interacted with Cuneo and was free to leave until the moment the firearm became visible. Once the firearm became visible, Cuneo had reasonable suspicion to detain Decedent. The County adds that Cuneo was permitted to detain Decedent based Decedent’s violation of various code sections, such as Penal Code section 602 (trespass), Penal Code section 647 (in public place, under the influence of a controlled substance and in a condition where he is unable to exercise care for his own safety).

Having reviewed the video, the Court agrees with the County that no triable issue of material fact exists on this cause of action. Cuneo did not detain Decedent until he saw the butt of the gun in Decedent’s waistband. At that moment, Cuneo lawfully detained Decedent.

The motion for summary adjudication of the false arrest/false imprisonment cause of action is GRANTED.

Negligence

In the complaint, Plaintiffs allege that the County breached its duty of care by:

a) the failure to properly and adequately assess the need to detain, arrest, and use of force or deadly force against DECEDENT; b) the negligent tactics and handling of the situation with DECEDENT, including pre- shooting negligence; c) the negligent detention, arrest, and use of force, including deadly force, against DECEDENT; d) the failure to provide prompt medical care to DECEDENT; e) the failure to properly train and supervise employees, both professional and non- professional, including DAVID CUNEO; f) the failure to ensure that adequate numbers of employees with appropriate education and training were available to meet the needs of and protect the rights of DECEDENT; g) the negligent handling of evidence and witnesses; and h) the negligent communication of information during the incident.

(Complaint, ¶ 46.)

The County moves for summary adjudication on the grounds that: (1) Cuneo’s use of lethal force was objectively reasonable, and (2) failure to furnish medical care claim fails.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV008456: PEREZ, et al. vs COUNTY OF SACRAMENTO, et al. 04/23/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

With respect to the use of lethal force argument, the County suggests that “[t]he majority of Plaintiffs’ theory under the negligence cause of action rise and fall with a determination that the force at issue was reasonable under the circumstances.” (County’s Memorandum of Points and Authorities (“MPAs”), 6:19-21 citing Complaint at ¶ 46(a)-(c), (e)-(h).) In a footnote, the County adds that “[i]n addition, a negligence cause of action based on negligent training and supervision fails against Defendant County because no such theory may be maintained. (See de Villers v. Cnty. of San Diego (2007) 156 Cal.App.4th 238, 256.)” (MPAs 6:27-28, fn 1.)

The Court is not persuaded by the County that all of the alleged breaches, except for the failure to furnish medical care, “rise and fall with a determination that the force at issue was reasonable under the circumstances.” For example, Plaintiffs allege that the County failed to ensure that adequate numbers of employees with appropriate education and training were available to meet the needs of and protect the rights of Decedent (Complaint, ¶ 46(f)), that the County negligently handled evidence and witnesses (Complaint, ¶ 46(g)), and that the County negligently communicated information during the incident (Complaint, ¶ 46(h).) The Court fails to see how these alleged breaches are related to excessive force.

Furthermore, the County’s notice of motion and motion fail to include the ground for summary adjudication that “a negligence cause of action based on negligent training and supervision fails against Defendant County because no such theory may be maintained.” (MPAs 6:27-28, fn 1.) As a result, the County failed to provide notice of this ground to Plaintiffs.

Accordingly, the motion for summary adjudication is DENIED because the County’s argument fails to dispose of the entire cause of action.

Battery

“‘The elements of civil battery are: (1) defendant intentionally performed an act that resulted in a harmful or offensive contact with the plaintiff’s person; (2) plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused injury, damage, loss or harm to plaintiff.’ [citation]” (A.B. v. County of San Diego (“A.B.”) (2025) 112 Cal.App.5th 404, 416, as modified on denial of reh’g (July 18, 2025).)

Plaintiffs’ battery cause of action is based on unreasonable and excessive force. As explained in A.B. v. County of San Diego:

Our Supreme Court “has long recognized that peace officers have a duty to act reasonably when using deadly force. [Citations.] The reasonableness of an officer’s conduct is determined in light of the totality of circumstances.” (Hayes, supra, 57 Cal.4th at p. 629, 160 Cal.Rptr.3d 684, 305 P.3d 252.) Under the Fourth

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV008456: PEREZ, et al. vs COUNTY OF SACRAMENTO, et al. 04/23/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

Amendment, claims that police officers used excessive force in the course of an arrest, investigatory stop or other seizure of a free citizen are analyzed under a reasonableness standard: “police officers may use force to the extent that it is objectively reasonable under the circumstances.” (Murchison v. County of Tehama (2021) 69 Cal.App.5th 867, 887, 284 Cal.Rptr.3d 742 (Murchison), citing Graham v. Connor (1989) 490 U.S. 386, 395, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (Graham).) The “Graham factors” that federal courts use to determine whether force was excessive or unreasonable under the Fourth Amendment include: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” (Graham, at p. 396, 109 S.Ct. 1865.)

Our Supreme Court has held that “[t]he same consideration of the totality of the circumstances,” including the Graham factors, is required in determining reasonableness under California negligence law. (Hernandez, supra, 46 Cal.4th at p. 514, 94 Cal.Rptr.3d 1, 207 P.3d 506; see CACI Nos. 1305A & 3020 [incorporating the Graham factors into instructions on how to determine whether force is unreasonable].)

Analyzing whether an officer’s actions are reasonable requires balancing the nature of the intrusion on the individual’s Fourth Amendment interests against the government’s interests. (Murchison, supra, 69 Cal.App.5th at p. 887, 284 Cal.Rptr.3d 742, citing Graham, supra, 490 U.S. at p. 396, 109 S.Ct. 1865.) The force applied must be balanced against the need for that force, and the need for force “ ‘is at the heart of the Graham factors.’” (Murchison, at p. 887, 284 Cal.Rptr.3d 742, quoting Liston v.

County of Riverside (1997) 120 F.3d 965, 976.) We judge the reasonableness of a particular use of force “from the perspective of a reasonable officer on the scene, rather [than] with the 20/20 vision of hindsight.” (Graham, at p. 396, 109 S.Ct. 1865.) “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” (Ibid.) “The ‘inherently fact-specific determination whether the force used to effect an arrest was reasonable under the Fourth Amendment should only be taken from the jury in rare cases.’” (Murchison, at p. 887, 284 Cal.Rptr.3d 742.)

(A.B, supra, 112 Cal.App.5th at 417-418.)

The County relies on the same UMFs as in the false arrest/false imprisonment cause of action, as well as the following UMFs:

 Upon seeing the gun in Holley’s waistband, Cuneo took two steps back and drew his handgun, a Glock semiautomatic. (UMFs 57, 82.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV008456: PEREZ, et al. vs COUNTY OF SACRAMENTO, et al. 04/23/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

 Cuneo ordered Holley to “Get on the fucking ground,” directing Holley to lie on the ground in a prone position. (UMFs 58, 83.)  Holley did not lie on the ground and instead extended his arms forward at shoulder height while holding the papers in his left hand. (UMFs 59, 84.)  Holley then transferred the papers from his left hand (the gun-side hand) to his right hand while his arms were still extended at shoulder height. (UMFs 60, 85.)  After clearing his gun-hand, Holley lowered his left hand from shoulder height toward the gun in his waistband. (UMFs 61, 86.)[2]  Seeing Holley move his left hand toward the gun, and fearing that Holley was retrieving the gun, Cuneo believed his life was in imminent danger and fired his duty weapon at Holley, striking and killing him. (UMFs 62, 87.)  Cuneo immediately radioed that shots had been fired and requested code three cover and code three fire, signaling that emergency responders should respond as quickly as possible. (UMFs 63, 88.)  Approximately five seconds passed between the time Cuneo drew his weapon upon seeing Holley’s gun and when shots were fired. (UMFs 64, 89.)  Cuneo checked Holley for a pulse and moved him further away from the weapon. (UMFs 65, 90.)  Cuneo could not find a pulse and determined Holley was not breathing. (UMFs 66, 91.)  Cuneo did not know the gun carried by Holley was a BB gun rather than a firearm at the time shots were fired. (UMFs 67, 92.)

According to the County, Cuneo’s use of lethal force was objectively reasonable. It explains that Cuneo was entitled to approach Decedent in responding to the call for service, and that he was entitled to approach Decedent to determine whether he needed medical attention or was potentially suffering from a mental health emergency, and whether he was trespassing on a neighbor’s property. Cuneo asked Decedent for identifying information, and during that exchange, Cuneo noticed what appeared to be a gun in Decedent’s waistband.

The County advances that “in light of this fact, the threat to Cuneo was high. He was alone, with back-up several minutes away, facing an armed individual. . . . it was reasonable for Cuneo to draw his firearm when he first saw the gun in Holley’s waistband.” (MPAs, 8:19-21 citing to UMF 29 (see UMF 56 for Issue No. 4).)[3] The County adds that “Holley’s change in position of the papers in his hands and obvious movement toward the gun only served to raise the severity of the threat to Cuneo’s safety to the highest level and it was not until this time that Cuneo fired. . . .

In the split second that Cuneo had to make a decision, he fired at Holley so that Holley could not shoot him first.” (MPAs, 9:7-9, 9:13-14.) The County relies upon Cruz v. City of Anaheim (9th Cir. 2014) 765 F.3d 1076, 1078, in which the Ninth Circuit stated that “[i]t would be unquestionably reasonable for police to shoot a suspect in [the plaintiff’s] position if he reaches for a gun in his waistband, or even if he reaches there for some other reason.” The court explained that “[g]iven Cruz’s dangerous and erratic behavior up to that point, the police would doubtless be justified in responding to such a threatening gesture by opening fire.” (Ibid.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV008456: PEREZ, et al. vs COUNTY OF SACRAMENTO, et al. 04/23/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

The Holley Plaintiffs contend “the reasonableness of Cuneo’s use of force turns on disputed facts and competing inferences about Holley’s actions [and] the imminence of any threat” should be left for the jury to decide. (Holley Plaintiffs’ Opposition, 19:16-18.) The Holley Plaintiffs’ AMFs show that at no point in Cuneo’s conversation with Holley did Holley get off the ground. (Holley Plaintiffs’ AMF 5.) At no point during the conversation with Holley did Holley physically approach Cuneo in any way. (Holley Plaintiffs’ AMF 7.)

When Cuneo stated “Get on the fucking ground,” Holley was still seated on the ground. (Holley Plaintiffs’ AMF 9.) Cuneo’s intention was for Holley to lay on the ground in a prone position, but he never asked Holley to lay down on the ground. (Holley Plaintiffs’ AMF 10.) Prior to shooting Holley, Cuneo stated “Give me the air.” (Holley Plaintiffs’ AMF 14.) Cuneo does not believe that his statement of “Give me the air” was longer than 3 seconds before he shot Holley. (Holley Plaintiffs’ AMF 15.)

They explain that:

[a] reasonable jury could find that: Holley was seated on the ground at a limited distance, with both hands outstretched in front of his chest; he did not make any aggressive bodily motion; he did not verbalize any aggression; he did not touch or even grab any kind of weapon; he was confronted by a drawn, pointed firearm and conflicting commands; and he made, at most, ambiguous movements and had appropriately responded to all questions and commands, and that he did not make a conscious decision to shoot an officer with Air Gun while a real gun was pointed at him.

(Holley Plaintiffs’ Opposition, 15:5-11.)

Perez also contends that a reasonable jury could conclude that Cuneo “did not have an objectively reasonable belief, because Mr. Holley had not uttered any threated, never removed the alleged gun from his waistband and Deputy Cuneo had plenty of room to retreat and/or fall behind cover; therefore, Deputy Cuneo’s use of lethal force was excessive, and violated policy, his training and law.” (Perez’s Opposition, 6:16-20.) Perez submits the expert declaration of Roger Clark (“Clark”). Clark opines in relevant part:

20. Opinion 1: No Imminent Threat - Deputy Cuneo could not have reasonably believed that Mr. Holley posed an imminent lethal threat at the time deadly force was used. - Mr. Holley had just awakened from sleep, was disoriented, and had not made any threats. - Mr. Holley never pointed a weapon at Deputy Cuneo.

21. Opinion 2: Tactical Errors Created the Encounter - Deputy Cuneo failed to follow fundamental police tactics by: - Falling to wait for backup

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV008456: PEREZ, et al. vs COUNTY OF SACRAMENTO, et al. 04/23/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

- Closing distance unnecessarily - Failing to use cover - Escalating the encounter

22. Opinion 3: Failure to Reevaluate -Deputy Cuneo failed to continuously reassess the situation as required by POST training. The rapid escalation to deadly force reflects a failure to transition to appropriate force options.

23. Opinion 4: Less-Lethal Options Available - Reasonable alternatives existed, including: - Disengagement - Taking cover - Waiting for backup - Use of less-lethal force - Had these tactics been used, the shooting would have been avoided.

23. [sic] Opinion 5: Excessive and Unreasonable Force. The use of deadly force in this case was: -Unreasonable - Excessive - Inconsistent with POST training - Contrary to accepted police practice

24. Opinion 6: Pre-Shooting Conduct (Critical) -Under California law, an officer’s pre-shooting conduct must be considered in evaluating reasonableness. -Deputy Cuneo’s tactical decisions directly contributed to the need (or perceived need) to use deadly force.

(Declaration of Roger Clark (“Clark Decl.”), ¶¶ 20-24; Perez’s Response to UMFs 62, 87.)

In light of the totality of circumstances, and the Court’s review of the video, the Court agrees with Plaintiffs that the issue should be left for the trier of fact. In the case at bar, Cuneo was called to check on Holley, who was asleep in a ditch. Holley appeared disoriented, having just woken up. In contrast to the suspect in Cruz, Decedent was not acting dangerously or erratic. He was not committing a serious/dangerous crime, he was not actively resisting arrest or attempting to evade arrest by flight. Holley appears to have attempted to comply with Cuneo’s verbal instructions. Clark’s declaration also creates triable issues of material fact such that the jury should decide whether Cuneo’s use of lethal force was objectionably reasonable.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV008456: PEREZ, et al. vs COUNTY OF SACRAMENTO, et al. 04/23/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

Further, Code of Civil Procedure section 437c(e) states, in part that, “summary judgment may be denied in the discretion of the court . . . if a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.” In the case at bar, Cuneo states that he believed his life was in imminent danger. (See UMFs 62 and 87.) This statement concerns Cuneo’s state of mind and is supported only by his affirmation thereof.

Accordingly, the County’s motion for summary adjudication is DENIED.

Bane Act

The County moves for summary adjudication of the Bane Act cause of action on the ground that the use of lethal force was objectively reasonable. The motion is DENIED for the same reasons set forth in the battery cause of action.

Perez’s Standing

The County and Perez both agree that California does not accept the doctrine of common law marriage. However, California recognizes common law marriages that are entered into in states where such marriages are valid.

Perez contends that she and Decedent were common law spouses in Texas. As explained in People v. Badgett (1995) 10 Cal.4th 330:

Texas recognizes common law marriages, requiring a showing that the parties agreed to become husband and wife, that they were living together in Texas pursuant to the agreement, and that they held each other out to the public as husband and wife in Texas. (Tex. Fam. Code Ann., § 1.91(a)(2); Hightower v. State (Tex.Crim. 1981) 629 S.W.2d 920, 924.) The agreement to become husband and wife need not be express, but may be proved circumstantially from evidence the parties lived together as husband and wife and represented to others that they were married. (Tompkins v.

State (Tex.Crim. 1987) 774 S.W.2d 195, 208-209.) Nonetheless, the agreement must be specific and mutual. (Gary v. Gary (Tex.Civ.App. 1973) 490 S.W.2d 929, 932.) A claim of common law marriage is closely scrutinized by the courts (Hightower v. State, supra, 629 S.W.2d at p. 924), and “‘[i]f the conduct of such contracting parties does not show clearly an honorable abiding by such agreement before the eyes of their world of associates and contacts, then it should not receive judicial sanction.’” (Gary v.

Gary, supra, 490 S.W.2d at p. 935.)

(Id., at 363-364.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV008456: PEREZ, et al. vs COUNTY OF SACRAMENTO, et al. 04/23/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

Texas Family Code section 2.401(a) states, “(a) [i]n a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that: (1) a declaration of their marriage has been signed as provided by this subchapter; or (2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.”

The County insists that Perez cannot demonstrate that she and Decedent were common law spouses in Texas. The County relies on the following UMFs:

 During an interview with investigators after the incident, Plaintiff Kimberly Perez identified Holley as her boyfriend. (UMF 93.)  In 2011, Holley was arrested for assaulting his live-in girlfriend, who was not Kimberly Perez. (UMF 94.)  In 2012, Holley was arrested for possession of crack cocaine and indicated that a bank card in his possession belonged to his girlfriend, not his wife. (UMF 95.)  Holley was identified as divorced and Kimberly Perez was not identified as a relative on the coroner’s report for Holley. (UMF 96.)

Perez argues that triable issues of material fact exist. Perez submits her declaration averring, in pertinent part:

2. I and Maurice Holley, Sr. began our relationship in or about 2008.

3. During our relationship, Maurice Holley, Sr. and I lived together in the State of Texas.

4. While living in Texas, we agreed to be married.

5. From that point forward, we lived together as husband and wife.

6. We held ourselves out to others as married, including referring to each other as husband and wife in our daily lives.

7. Friends, family members, and members of our community understood us to be married.

8. Our relationship was continuous, committed, and long-term from approximately 2008 until Mr. Holley’s death.

9. We shared a household and lived together as a family unit.

10. We also shared responsibilities typical of a married couple, including financial and

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV008456: PEREZ, et al. vs COUNTY OF SACRAMENTO, et al. 04/23/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

personal responsibilities.

11. Throughout our relationship, we presented ourselves publicly as a married couple.

12. At times, including during an interview with investigators following Mr. Holley’s death, I may have referred to him as my “boyfriend” as well as my husband. This does not change the nature of our relationship. We were in a long-term committed relationship and held ourselves out as married.

(Declaration of Kimberly Perez, Perez’s AMFs 1-11.)

With respect to the death certificate, Perez also explains that “[w]hile Holley was identified as divorced on the coroner's face sheet, the Coroner’s face sheet does NOT indicate from whom he was divorced.” (Perez’s Opposition, 9:17-18.)

The County’s reply does not respond to Perez’s opposition that a triable issue of material fact exists.

The Court finds Perez has satisfied her burden to demonstrate a triable issue of material fact.

The motion for summary adjudication regarding Perez’s standing is DENIED.

Disposition

The motion for summary adjudication of the false arrest/false imprisonment cause of action is GRANTED.

The motion for summary adjudication of the negligence, battery, and Bane Act causes of action is DENIED.

The motion for summary adjudication regarding Perez’s standing is DENIED.

The motion for summary judgment is DENIED.

The Court declines to rule on Perez’s objections to evidence as she fails to comply with CRC Rule 3.1354. Additionally, Perez’s objections are to the County’s UMFs. UMFs are not evidence.

This minute order is effective immediately. The Holley Plaintiffs shall prepare a formal order pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure section 437c(g).

[1] Maurice, Angel and Mitra are collectively referred to herein as the “Holley Plaintiffs.” Perez,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV008456: PEREZ, et al. vs COUNTY OF SACRAMENTO, et al. 04/23/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

Maurice, Angel and Mitra are collectively referred to herein as “Plaintiffs. [2] The County recognizes that “whether or not Holley grabbed the gun from his waistband and

drew it is unclear upon review of the video.” (MPAs, 9:18-19.) [3] The County also cites the deposition testimony of Plaintiffs’ expert, Roger Clark. Mr. Clark

was Plaintiffs’ expert in their prior federal case. Although the County cites to Mr. Clark’s deposition testimony throughout its memorandum of points and authorities, the County’s separate statement only cites to Mr. Clark’s deposition testimony in connection with UMFs 39, 67, and 92. As a result, the Court only considered Mr. Clark’s deposition testimony where it was relied upon in support of UMFs 39, 67, and 92.

Likewise, the Holley Plaintiffs cite to Mr. Clark’s deposition testimony in their opposition, but not in their response to the County’s UMFs or AMFs. Thus, the Court did not consider Mr. Clark’s deposition testimony in connection with the Holley Plaintiffs’ opposition.

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings.

The Department 16C Zoom Link is https://saccourt-ca-gov.zoomgov.com/j/16030877014 To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID 16030877014. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV008456: PEREZ, et al. vs COUNTY OF SACRAMENTO, et al. 04/23/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf.

Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/courtreporters/docs/crtrp-13.pdf.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.