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granting summary judgment where plaintiff failed to address the issue in opposition brief
Summary of this case from D.E. v. Am. Airlines, Inc.Opinion
No. C 09-01944 MHP.
November 17, 2010.
Gilbert Whitney Leigh, Matt Gonzalez, Matthew Rutledge Schultz, Matthew Lowe Springman, Gonzalez Leigh, LLP, San Francisco, CA, for Plaintiff.
Kimberly E. Colwell, Kimberly M. Drake, Meyers Nave Riback Silver Wilson, Oakland, CA, Moira O'Neill, Meyers Nave Riback Silver Wilson, San Francisco, CA, for Defendants.
Plaintiff filed suit against various defendants alleging violations of civil rights under both federal and state law. Defendants are the City of Daly City ("City"), Daly City Police Chief McLane ("McLane") and Daly City Police Officer Kranz ("Kranz"). Before the court is defendants' motion for summary judgment, or in the alternative, for partial summary judgment. Plaintiff opposes the motion and has brought a motion to consolidate related action and for leave to file a first amended complaint. Defendants oppose both of plaintiff's motions. Having considered the parties' submissions and arguments, the court enters the following memoranda.
BACKGROUND
As is necessary in a motion for summary judgment, the facts are set forth in the light most favorable to the non-moving party, here, the plaintiff. Accordingly, unless otherwise noted, the following facts are taken from Deniz Bolbol's Declaration. Docket No. 42 (Bolbol Dec.).
The court takes time here to resolve defendants evidentiary objections. Docket No. 54. All but three Objections (Nos. 4, 5, and 6) are denied as moot because the court did not rely upon any of the objected — to evidence in reaching its decision. The remaining three objections refer to Docket No. 41 (Leigh Dec.), Exh. A (DVD Clips) 6-8. These are video clips taken by plaintiff on September 13, 2008. The defendants object to all three clips on the grounds that they lack foundation pursuant to Federal Rule of Evidence 602 and that they are hearsay pursuant to Federal Rule of Evidence 801(c). The court finds that the clips in question have been properly authenticated by the plaintiff's evidence. See Bolbol Dec. ¶ 52 for authentication of clip 6; Ennis Dec. ¶ 21, for authentication of clip 7; and Cuviello Dec. ¶ 13, for authentication of clip 8. The court finds that the three clips are not hearsay because defendants have not proffered an argument as to why these clips should be treated as an assertion within the meaning of Fed.R.Evid. 801(c). As to clip 8, which depicts images of Bolbol and Kranz, the court finds that this evidence is relevant to the factual inquiry as to whether Kranz used excessive force. Accordingly, defendants Objections are OVERRULED.
Plaintiff, Deniz Bolbol ("Bolbol"), is a member of Citizens for Cruelty-Free Entertainment ("CCFE"), a San Francisco Bay Area group dedicated to the humane treatment of animals and educating the public about the abuse and mistreatment of animals. As a member of this group, Bolbol holds signs and banners offering information to the general public about the treatment of animals used by circuses. Bolbol also videotapes the treatment of circus animals as a means of educating the public about the abuse and mistreatment of animals by the circus.
The Cow Palace is a performance facility owned by the State of California and operated by No. 1 — A District Agricultural Association ("the Association"). Docket No. 69 (Joint Statement of Undisputed Facts ("JSUF")) at 1. In September 2008, the Carson and Barnes Circus ("the Circus") rented out the Upper Parking Lot of the Cow Palace pursuant to a License Agreement ("License Agr."), Docket No. 35-3 (Drake Dec.), Exh. B (License Agr.), and First Amendment Policy ("Policy"), Docket No. 35-3 (Drake Dec.), Exh. C (Policy). According to the Policy in effect in 2008, an entire Cow Palace parking lot could be rented to a promoter or vendor to develop revenue. JSUF at 1. The Circus contracted to perform in the Cow Palace's Upper Parking Lot from September 12, 2008 through September 14, 2008. License Agr. ¶ 1. The Circus pitched its big top tent in the Upper Parking Lot of the Cow Palace itself as opposed to occupying the brick and mortar structure of the Cow Palace. License Agr. ¶ 2.
On September 12, 2008, Bolbol and Mark Ennis ("Ennis"), also a member of CCFE, went to the Cow Palace to distribute leaflets to the Circus' patrons and to videotape the animals at the Circus. Upon their arrival, Bolbol and Ennis proceeded to distribute their informational leaflets to patrons in and around the Circus' tent and to videotape some of the Circus' animals. At some point during the evening, Bolbol and Ennis were approached by employees of the Circus, who wanted to comment on Bolbol and Ennis' opposition to the use of animals in circus entertainment. The Circus' employees took Bolbol and Ennis to the back of the big top tent where Bolbol noticed the Circus' elephants within 15 feet of her. Bolbol also noticed that the area surrounding the tent was barricaded.
Pursuant to Bolbol and Ennis' interaction with the Circus' employees, the Daly City Police Department was summoned at some point, and an officer arrived upon the scene. Bolbol asked the officer if the barricades were legal because she wanted to access the area in order to videotape the condition and treatment of the animals used by the Circus. The officer summoned a supervisor to the scene and shortly thereafter, Officer Griggs of the DCPD arrived. After some discussion, Officer Griggs suggested that the barricade could be placed more appropriately in order to accommodate both sides. Docket No. 41 (Leigh Dec.), Exh. E (Griggs Depo.) at 121:5-8. Bolbol and Ennis walked away from the conversation with a belief that they could legally access the area surrounding the tent and behind the barricades in order to engage in their speech activity. For the remainder of the evening, Bolbol and Ennis went beyond the barricades and videotaped the animals.
On September 13, 2008, Bolbol and Ennis returned to the Cow Palace to continue to engage in their speech activity, including to videotape the Circus' handling and the condition of the animals. Bolbol once again noticed the barricades and concluded that the Circus had not placed them in accordance with her perception of Officer Griggs' directions from the previous night. Rather, the barricades cut off from public access more territory surrounding the Circus' tent than had been accorded the previous night pursuant to Officer Grigg's directions. Nonetheless, as they had done the night before without incident, Bolbol and Ennis went beyond the barricades, which cut off public access to a large swath of the Upper Parking Lot, in order to continue filming the animals. Once again, Bolbol and Ennis were confronted by some of the Circus' employees, who attempted to interrupt Bolbol and Ennis' attempts to videotape the animals.
On September 13, 2008, Officer Kranz was on patrol and responded to a call for assistance at the Cow Palace from Christine Hanley, Lead Humane Investigator. Docket No. 35-10 (Hanley Dec.) ¶ 11. When Kranz arrived at the Cow Palace, the Cow Palace Event Coordinator, Valery Ann Luxamana ("Luxamana"), informed him that there were animal rights protesters behind the Circus' tent in an area that was not open to the public. Docket No. 41 (Leigh Decl.), Exh. D (Kranz Depo.) 39-41. Luxamana also told Kranz that the protesters were not authorized to be there. Kranz Depo. at 41. The Cow Palace's Rentals Operations Officer, Diana Colvin, confirmed this information and escorted Kranz in a golf cart to the area in question behind the Circus' tent. Kranz Depo. at 40.
Bolbol and Ennis were still engaged with the Circus' employees when Bolbol noticed an electric vehicle drive behind a truck near to where she and Ennis stood. Officer Kranz stepped down from that vehicle. Officer Kranz was in full uniform, but he did not identify himself as a police officer. Kranz immediately advanced upon Ennis physically without first attempting to engage Ennis or Bolbol verbally. A tussle ensued between Ennis and Kranz during which time the two struggled with the unipod camera that Ennis carried. Ennis broke away from the struggle, and Kranz next advanced upon Bolbol. Subsequently, Kranz and Bolbol became engaged in a physical confrontation. The two ended up against the electric vehicle, at which time Kranz took hold of Bolbol's hand that held the camera and began to hit the hand against the vehicle. As a result, the battery fell out of Bolbol's camera. Kranz then held Bolbol's hand in a "pain-compliance" hold for approximately 15-20 minutes until additional DCPD officers arrived on the scene. Upon the arrival of the back-up officers, Bolbol was then handcuffed and placed in the back of a DCPD police car for approximately 45 minutes. Bolbol complained of injuries to her finger, and a paramedic was summoned to treat her hand. Incident to this detention, Officer Kranz seized Bolbol's belongings, including a video camera and battery, a video camera unipod, one unused videotape, one used videotape containing, inter alia, Bolbol's recordings from the day and one cell phone. Bolbol was taken to the DCPD and kept there for approximately 2-3 hours. When she was released, she was not given a receipt for the seized belongings.
Plaintiff filed a Complaint on May 4, 2009, alleging twelve causes of action and seeking compensatory damages, injunctive and declaratory relief, civil penalties and punitive damages. Docket No. 1 (Complaint). Specifically, the complaint alleges: (1) a violation of 42 U.S.C. § 1983 based on a violation of plaintiff's First Amendment right to free speech; (2) a violation of plaintiff's state Liberty of Speech rights pursuant to Art. 1, Section 2(a) of the California constitution; (3) a violation of 42 U.S.C. § 1983 based on a violation plaintiff's right against unlawful seizure under the Fourth Amendment; (4) a violation of plaintiff's right against unlawful seizure under
Art. 1, Section 13 of the California constitution; (5) a violation of plaintiff's right against false arrest/false imprisonment as defined by California Penal Code § 236; (6) a violation of 42 U.S.C. § 1983 based on a violation of the Equal Protection Clause of the 14th Amendment; (7) a violation of plaintiff's rights under California's Equal Protection Clause, Art. 1, Section 7(a); (8) a violation of California Penal Code § 4003; (9) a violation of 42 U.S.C. § 1983 based on a violation of plaintiff's rights against excessive force under the Fourth Amendment; (10) a violation of 42 U.S.C. § 1983 based on a violation of plaintiff's right against illegal seizure of property under the Fourth Amendment; (11) a violation of California Civil Code § 51.7; and (12) a violation of California Civil Code § 52.1. The defendants now move for summary judgment, or in the alternative, partial summary judgment as to all actions.
LEGAL STANDARD
DISCUSSION[fn2]
56see generally Anderson v. Liberty Lobby, Inc. 477 U.S. 242247-55Id. Id. Celotex Corp. v. Catrett 477 U.S. 31732356 see Anderson477 U.S. at 250 First Amendment Fourth Amendment 51.711323652.1
Lastly, the court considers plaintiff's motion to consolidate the related case and for leave to file a First Amended Complaint. The court orders that the cases in question be consolidated and grants plaintiff leave to file within 20 days of this order a Proposed First Amended Complaint consistent with the court's conclusions here, adding new City defendants and additional claims. Pending its review of the Proposed First Amended Complaint, the court will determine whether plaintiff may add new claims to this action.
I. Defendant's Motion for Summary Judgment
A. Federal Claims — Qualified Immunity
Defendants move for summary judgment as to plaintiff's federal constitutional claims against Kranz, the arresting officer. Specifically, defendants assert that Kranz is entitled to qualified immunity. "A finding of qualified immunity depends on a two-part inquiry by the court." Peng v. Mei Chin Penghu, 335 F.3d 970, 976 (9th Cir. 2003) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). The court must determine whether the facts alleged, "taken in the light most favorable to the party asserting the injury," show the violation of a constitutional right, and whether the right was clearly established at the time of the violation. Id; see Blankenhorn v. City of Orange, 485 F.3d 463, 471 (9th Cir. 2007) (citing Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004) ("Defendants are entitled to such relief only if the facts alleged and evidence submitted . . . show that their conduct did not violate a federal right; or, if it did, the scope of that right was not clearly established at the time.")) In analyzing the two-pronged qualified immunity standard, the court may consider either prong first, however "it is often beneficial" to determine whether a constitutional right was violated prior to considering whether the scope of the right was clearly established. Pearson v. Callahan, 129 S.Ct. 808, 818 (2009) ("The judges of the district courts and the courts of appeal should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand."). Accordingly, as to each of the five federal claims against which qualified immunity may be invoked the court considers firstly whether Kranz violated plaintiff's constitutional rights and secondly whether the scope of each right was clearly established.
1. Violation of Constitutional Right
a. Free Speech Claims
Plaintiff alleges that defendants violated her free speech rights pursuant to both the federal and state constitutions. Specifically, plaintiff asserts that the area surrounding the Circus' big top tent, which was pitched in the Upper Parking Lot of the Cow Palace, was improperly barricaded with respect to her free speech rights. Consequently, plaintiff alleges that in enforcing the barricade and arresting plaintiff for trespass as plaintiff attempted to videotape the animals, Kranz violated her free speech rights under section 1983 and under the state constitution. The court considers plaintiff's federal and state free speech claims together because the rights are largely coextensive, with California's Liberty of Speech Clause providing broader protections than the First Amendment. See Kuba v. 1-A Agr. Ass'n, 387 F.3d 850, 856 (9th Cir. 2004) (citing Los Angeles Alliance for Survival v. City of Los Angeles, 22 Cal.4th 352 (2000)).
Under Art. 1, Section 2(a) of the California constitution, protected speech may be limited in a public forum provided that the restriction is content-neutral, is narrowly-tailored to serve an important government interest and leaves open ample alternative channels for the communication of the message. Kuba, 387 F.3d at 856 (citing Galvin v. Hay, 374 F.3d 739, 746 (9th Cir. 2004)). Here, the parties do not dispute that videotaping the Circus' animals is protected speech. The parties do dispute whether the Upper Parking Lot, as used by the Circus to pitch its big top tent, and specifically the area of the Upper Parking Lot not physically occupied by the big top tent, constituted a public forum.
For the purposes of the state constitution, parking lots associated with public entertainment venues are generally considered public fora. Id. at 857-58 ("We hold that protest activity is not inherently incompatible with the activity to which the parking lots and walk-ways outside the Cow Palace are dedicated, and that those areas are therefore public fora for purposes of California Liberty of Speech Clause analysis."). The parties do not dispute that Kuba applies to the Upper Parking Lot when it is used as a traditional parking lot to the brick and mortar Cow Palace building. In this case, however, the Cow Palace rented the Upper Parking Lot to the Circus to pitch its big top tent. Thus the entertainment venue itself was located in the parking lot. Accordingly, the defendants argue that the Upper Parking Lot's general status as a public forum changed here because it was rented to house the entire traveling Circus. Docket No. 35 (Defendant's Motion ("Def. Memo.")) at 13. Plaintiff argues that notwithstanding this fact, the Upper Parking Lot remained a public forum per Kuba, and that the placement of the barricades was not narrowly tailored to accomplish the government's interest in promoting public safety. Docket No. 43 (Plaintiff's Opposition ("Opp. Memo.")) at 19-21. Thus the court first considers whether the Upper Parking Lot as used by the Circus in this case was a public forum.
In California, the test for determining whether a place is a public forum is whether "the communicative activity [at issue] is basically incompatible with the normal activity of a particular place at a particular time." Kuba, 387 F.3d at 857. Accordingly, the court addresses whether plaintiff's videotaping was incompatible with the normal activity occurring within the barricaded area of the Upper Parking Lot as used by the Circus on this occasion.
Defendants argue that the entire area within the barricades was restricted to the public per the mandate of the fire marshal and in light of "other public safety and privacy considerations." Def. Memo. at 3. Defendants refer to the presence of electrical wiring, Circus performers and animals, Circus equipment, vehicles and other Circus property within the barricaded area to suggest that the normal activity within the barricaded area created a hazard for the public. However, plaintiff's documentary evidence does not support the defendants' contention that the normal activity in the barricaded portion of the Upper Parking Lot surrounding the Circus' tent was incompatible with the plaintiff's exercise of her speech rights. The evidence shows that the area in question constituted a relatively large open space, populated, as defendants assert, by Circus performers, Circus animals, other unidentified persons and some parked vehicles. Docket No. 41 (Leigh Dec.), Exh. A. (DVD Clips) 6-8. There is no indication, however, that the presence of two individuals videotaping the activity of the animals was incompatible with what appeared to be occurring. Plaintiff's supplemental evidence reiterates that the area in question was somewhat sparsely populated by Circus equipment, vehicles, animals, etc., as well as populated by various persons who may or may not have been associated with the Circus. Docket No. 80 (Plaintiff's Supplemental Evidence). Defendant's supplemental evidence includes nighttime photos in which it is very difficult to discern the normal activity in the barricaded portion of the Upper Parking Lot surrounding the Circus' tent, but at least one photo reveals a baby stroller within the barricaded area. Docket No. 84 (Defendants' Supplemental Evidence), Exh. 2 at 15. Defendants' evidence does not show or explain why the plaintiff's speech activity was in fact incompatible with the Circus' normal use of the barricaded area in question. Accordingly, viewing the evidence in the light most favorable to the plaintiff, the court finds that the presence of two animal-rights activists videotaping the Circus' animals was not incompatible with the normal activity within the barricaded portion of the Upper Parking Lot surrounding the Circus' tent, and the area in question is a public forum for free speech purposes. Consequently, any restrictions in the barricaded area must pass "constitutional muster." Kuba, 387 F.3d at 857.
Restrictions pass constitutional muster "provided [they] `are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.'" Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)). Plaintiff suggests that the restriction in question, i.e., the placement of the barricades, was not in fact content-neutral but rather was effected and enforced as a means of preventing her from exercising her free speech right to videotape the Circus' animals. Defendants counter that the Circus placed the barricades in order to create a fire lane encircling the big top tent in accordance with the mandate of the fire marshal, and that all members of the public were restricted. Plaintiff does not dispute this assertion nor does plaintiff present any other evidence from which the trier of fact could reasonably infer that either the restriction or Officer Kranz's enforcement of it was content-based. Accordingly, the court concludes that the restriction was content-neutral.
Defendants bear the burden of showing that a content-neutral restriction is narrowly tailored to serve an important government interest. See Edwards v. City of Coeur d'Alene, 262 F.3d 856, 863 (9th Cir. 2001). In referencing the fire marshal's alleged mandate as the Circus' primary reasoning for the placement and enforcement of the barricades, defendants implicitly identify public safety as the important government interest, and plaintiff does not dispute this point. The parties do dispute whether the placement of the barricades, and the restriction on speech behind the barricades, was narrowly tailored to achieve the government's interest in public safety. Specifically, plaintiff presents evidence that on the day prior to the incident in question, at least one Daly City Police Officer questioned the legality of the Circus' placement of the barricades and suggested that the Circus reposition them in order to comport with the law. Griggs Depo. at 121:5-8. Apart from asserting, without any documentation, that the fire marshal mandated the specific placement of the restrictions, defendants do not offer any evidence that the government's interest in safety could not have been accomplished less restrictively. Neither have defendants presented evidence that the restriction left open ample alternatives for the plaintiff to engage in the specific form of speech
The court notes that defendants have not proffered any evidence from the state fire marshal's office reflecting the fire marshal's alleged instruction as to the placement of the barricades on this occasion.
namely, videotaping the animals at close range. Accordingly, the court concludes that for state Liberty of Speech purposes, the evidence presented does not call into question plaintiff's assertion that the restriction here was not narrowly tailored to achieve the government's interest in public safety.
Under First Amendment analysis, the nature of the forum as either a traditional public forum, a designated public forum or a nonpublic forum dictates the degree to which the government may restrict speech. Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788, 802 (1985). A place is considered a traditional public forum if "by long tradition or by government fiat [a place has] been devoted to assembly and debate . . ." Perry Educ. Ass'n. v. Perry Local Educator's Ass'n., 460 U.S. 37, 45 (1983). Neither party contends that the Upper Parking Lot of the Cow Palace as used here is a traditional public forum, however the parties dispute whether the Upper Parking Lot as rented to the Circus was a designated public forum.
A designated public forum is a place not traditionally public but designated by the government as public. Int'l Soc. for Krishna Consciousness, Inc. v Lee, 505 U.S. 672, 678-79 (1992). In identifying a place as a designated public forum, the court must consider whether: (1) it is the practice and policy of the government to open a non-traditionally public place to assembly and debate; and (2) the nature of the place and whether the place is compatible with expressive activity. Cornelius, 473 U.S. at 802. Defendants assert that the Upper Parking Lot was not a designated public forum because it was rented in its entirety to a private Circus, subject to the Cow Palace's License Agreement and First Amendment Expression Policy. Def. Memo. at 13. By this assertion, however, defendants appear to concede that the Upper Parking Lot was in fact a designated public forum. The application of the Policy to the License Agr. works to show that the government, here the Association, intended that the Upper Parking Lot remain open to assembly and expression. Indeed, in renting the Upper Parking Lot to the Circus subject to the Policy, the Association manifested its intent that the Upper Parking lot remain open to speech. The second prong of the analysis — the nature of the place and whether the place is compatible with expressive activity — is coextensive with the California constitutional test for compatibility. Consequently, given the court's conclusion above that the proffered evidence does not support a finding that plaintiff's videotaping activity was incompatible with the normal activity in the restricted area, the court finds that as to plaintiff's federal constitutional claim the barricaded portion of the Upper Parking Lot surrounding the Circus' tent contained a designated public forum.
Under the First Amendment, the government may limit content-neutral speech in a designated public forum as long as the restriction is narrowly tailored to serve a significant government interest and leaves open ample alternative channels of communication. Perry, 460 U.S. at 45. Because the standard is identical to the standard applied above in the context of the state constitution, the court finds that under federal law the placement of the barricades on September 13, 2008 was not narrowly tailored to achieve the government's interest in public safety.
b. Unlawful Seizure-False Arrest
Plaintiff was arrested for trespass pursuant to a citizen's arrest. Plaintiff alleges that defendants violated her Fourth Amendment right against unlawful seizure because Officer Kranz did not have independent probable cause to arrest her pursuant to a citizen's arrest. Under the federal constitution, a law enforcement officer must have probable cause to make a warrantless arrest. Tennessee v. Garner, 471 U.S. 1, 7 (1985). "The test [under federal law] for whether probable cause exists is whether `at the moment of arrest the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the petitioner had committed or was committing an offense.'" United States v. Jensen, 425 F.3d 698, 704 (9th Cir. 2005) (citing United States v. Bernard, 623 F.2d 551, 559 (9th Cir. 1980). Where the officer makes an arrest pursuant to a citizen's arrest, however, "the federal Constitution requires police officers to have independent probable cause when effectuating a citizen's arrest." Hopkins v. Bonvicino, 573 F.3d 752, 774 (9th Cir. 2009); Arpin v. Santa Clara Valley Trans. Agcy., 261 F.3d. 912, 925 (9th Cir. 2003) ("In establishing probable cause, officers may not solely rely on the claim of a citizen witness that he was a victim of a crime, but must independently investigate the basis of the witness' knowledge or interview other witnesses."). Moreover, "[a] sufficient basis of knowledge is established if the victim provides `facts sufficiently detailed to cause a reasonable person to believe a crime had been committed and the named suspect was the perpetrator.'" See Peng, 335 F.3d at 978 (quoting Fuller v. MG. Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991)). The court now addresses whether Kranz had independent probable cause to take Bolbol into custody pursuant to a citizen's arrest.
Officer Kranz was on duty the evening of September 13, 2008 and responded to a trespass call from Humane Investigator Hanley indicating that two individuals were trespassing at the Circus. Upon arriving at the Cow Palace and after briefly conferring with Circus officials, Kranz was driven to the location behind the tent where Bolbol and Ennis were engaged by some the Circus' employees. He saw Bolbol and Ennis behind the barricades in the restricted area and approached them. The facts hereafter are in great dispute, but for the purposes of this motion they must be resolved in a manner favorable to the plaintiff. The plaintiff asserts that Kranz merely accepted the Circus employees' account that she and Ennis were trespassing, and that he failed to investigate the matter independently on the scene. Plaintiff alleges that upon his arrival in the area behind the tent, Kranz immediately and physically confronted Ennis, attempting to wrest Ennis's camera from his hand before turning his sights on Bolbol and her camera. Plaintiff's evidence suggests that Kranz did not investigate the matter of the alleged trespass until after he had arrested Bolbol. Kranz Depo. at 50-53. Thus, plaintiff asserts that Kranz did not have probable cause to arrest her for trespass because he made no effort to investigate independently upon his arrival on the scene whether probable cause existed as to the Circus' trespass charge and request that he effectuate a citizen's arrest. See Hopkins, 573 F.3d at 774.
Plaintiff further asserts that had Kranz independently investigated the issue of probable cause, he could only have reasonably concluded that there was no basis for a citizen's arrest in light of the state trespass statute. Plaintiff points to California's trespass statute codified at Cal. Pen. Code § 602. Specifically, Section 602(m) prohibits the "[e]ntering and occupying [of] real property or structures of any kind without the consent of the owner, the owner's agent, or the person in lawful possession," and requires that the occupation reflect the party's intent to "remain permanently, or until ousted" or "to dispossess anyone from the property." People v. Wilkinson, 248 Cal.App.2d Supp. 906, 908 (1967). Defendants argue that the Circus employees' statements as to Ennis and Bolbol's alleged trespass as well as Bolbol and Ennis' mere presence behind the barricades were enough to provide Kranz with independent probable cause that a citizen's arrest pursuant to a violation of 602(m) was reasonable. Plaintiff, however, highlights the case law to assert that given the plain meaning of 602(m), it was clear to the reasonable observer, and certainly to the reasonable peace officer, that Bolbol and Ennis had no intention to remain permanently or until ousted. The court finds that given the language and case law interpreting Cal. Pen. Code § 602(m), Officer Kranz could not have had probable cause to believe that Bolbol and Ennis intended to violate that specific provision of the trespass statute. See Edgerly v. City and County of San Francisco, 599 F.3d 946, 955 (9th Cir. 2010) (finding that a reasonable officer would not have had probable cause to believe that the defendant had committed a trespass per section 602(m) because there was no evidence that his presence was "nontransient" or "continuous."). Indeed, plaintiff contends that any effort on Kranz's part to conduct an independent investigation would have revealed that the plaintiff's alleged actions could not have satisfied the plain meaning of the statute. Plaintiff's documentary evidence shows that Kranz did not in fact stop to take stock of the situation at the scene of the alleged trespass or to investigate the Circus employees trespass claims once he reached the site. Rather, he immediately advanced physically on Bolbol and Ennis. DVD Clips at 6.
Viewing the facts in the light most favorable to plaintiff, the court concludes that there is sufficient evidence to raise a material question of fact whether Officer Kranz conducted any independent investigation of the scene prior to effectuating the citizen's arrest. Accordingly, the court declines to determine the issue of probable cause, and summary judgment as to this claim is denied.
c. Illegal Seizure of Property
Plaintiff alleges that Officer Kranz's seizure of her personal belongings, including her video camera and cellular phone, incident to her arrest was a civil rights violation. "The simple language of the [ Fourth] Amendment applies equally to seizures of persons and to seizures of property." Payton v. New York, 445 U.S. 573, 585 (1980). "The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." Id. at 586. Where, however, the arrest is illegal for lack of probable cause, the seizure of personal belongings incident to that arrest is patently unreasonable and a constitutional violation. Given the discussion above regarding Kranz's potential lack of probable cause to arrest plaintiff pursuant to a citizen's arrest, the court concludes that summary judgment as to this claim is inappropriate at this point.
d. Excessive Force
Plaintiff alleges that defendant Kranz used excessive force in his attempt to subdue her while he waited for additional DCPD officers to arrive. Bolbol alleges that Kranz placed her finger in a "pain-compliance" hold for approximately 15-20 minutes. Bolbol Dec. ¶ 31. This resulted in Bolbol experiencing enough pain to believe that Kranz had broken her finger. After Bolbol was placed in the DCPD squad car, a medic was summoned to treat her hand. See Defendants' Supplemental Evidence, Exh. 2 at 3.
"A claim against law enforcement officers for excessive force is analyzed under the Fourth Amendment's `objective reasonableness' standard." Arpin, 261 F.3d at 921 (citing Graham v. Connor, 490 U.S. 386, 388 (1989)). Under the Fourth Amendment, a police officer may "use only an amount of force that is objectively reasonable in light of the circumstances facing [the officer]." Blankenhorn, 485 F.3d at 477 (citing Tennessee v. Garner, 471 U.S. 1, 7-8 (1985)). "The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Arpin, 261 F.3d at 921 (quoting Graham, 490 U.S. at 396)). Moreover, "an excessive force analysis requires evaluating `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.'" Id. "The absence of probable cause does not grant an individual the right to offer resistance." Id. (citing United States v. Span, 970 F.2d 573, 580 (9th Cir. 1992)). "An individual's limited right to offer reasonable resistance is only triggered by an officer's bad faith or provocative conduct." Id.
Once again, there is considerable dispute between the parties as to the facts underlying this issue. However, the facts must be viewed in the light most favorable to the non-moving party, here the plaintiff. Plaintiff's documentary evidence shows Officer Kranz initiating the struggle between himself and Ennis and subsequently between himself and Bolbol. DVD Clips 6-8. Notwithstanding Kranz's claims to the contrary, the evidence shows that neither Ennis nor Bolbol swung their cameras at Kranz, and consequently it does not support defendants' contention that Bolbol and Ennis created an atmosphere in which Kranz could have reasonably determined that it was necessary to use the level of force that he used to subdue and detain Bolbol. Kranz Depo. 69-70. Rather, plaintiff's documentary evidence undermines the defendants' claim that Kranz felt justifiably threatened in the situation and applied the "pain compliance" hold in order to subdue a hostile Bolbol. Kranz Depo. 69-70.
Furthermore, plaintiff's evidence undermines Kranz's claims that Bolbol resisted arrest, requiring him to engage her violently against the side of the electric cart and subsequently place her in the pain-compliance hold. Bolbol asserts, and her evidence supports, that she did not resist arrest making Kranz's application of the "pain-compliance" hold on her finger for 15 to 20 minutes unreasonable in light of the circumstances. Bolbol's Dec. ¶ 32. Accordingly, summary judgment is denied as to the claim of excessive force.
e. Equal Protection Claims
Notwithstanding submitting an oversized opposition brief without seeking leave from the court to do so, plaintiff does not challenge defendants' assertion that she cannot demonstrate a violation of her equal protection rights under either federal or state law. Neither has plaintiff submitted any evidence from which a jury could reasonably find that Kranz discriminated against her on the basis of her protected speech. Thus, the defendants are granted summary judgment with respect to plaintiff's sixth and seventh causes of action.
2. Clearly Established Law
In sum, viewing the evidence in the light most favorable to plaintiff, the court finds evidence from which the trier of fact could reasonably find constitutional violations of plaintiff's federal free speech right, and Fourth Amendment rights against unlawful seizure/false arrest, seizure of property and use of excessive force. Continuing the qualified immunity analysis, the court next determines whether the rights violated were clearly established at the time of the incident. "`[I]f a [constitutional] violation could be made out on a favorable view of the parties' submissions, the next sequential step is to ask whether the right was clearly established' at the time of the arrest. Blankenhorn, 485 F.3d at 480-481 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202. "[P]olice officers `can still be on notice that their conduct violates established law even in novel factual circumstances.'" Blankenhorn, 485 F.3d at 481 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). "The key inquiry is whether a reasonable person could have believed his actions lawful at the time they were undertaken." Bull v. City and County of San Francisco, 595 F.3d 964, 1003 (9th Cir. 2010) (citing Anderson v. Creighton, 483 U.S. 635, 646 (1987)).
a. First Amendment Claim
Plaintiff argues that Kranz is not entitled to qualified immunity because the law after Kuba was clearly established as to the public forum status of an entertainment venue's parking lot. Kuba, 397 F.3d at 857-58 (9th Cir. 2004); Opp. Memo. at 19. The holding in Kuba, however, did not clearly address whether the public forum status of a parking lot associated with an entertainment venue would change if the parking lot itself functions as the entertainment venue. In coming to its decision in Kuba, the Ninth Circuit considered whether the public was "`free to come and go' in the parking lot[]" and the degree to which the public could "`travel[] over the parking lot . . . to attend . . . events or exhibitions.'" Kuba, 387 F.3d at 857 (quoting Carreras v. City of Anaheim, 768 F.2d 1039, 1042 (9th Cir. 1985)). In this case, the Circus was located in the Upper Parking Lot and the public was not completely free to come and go, nor completely free to travel across the area in question to attend the Circus. In addition, a search of case law suggests that the law as to a parking lot used in this manner was not clearly established at the time of the incident. Accordingly, the court concludes that Kranz could reasonably have believed that his enforcement of the Circus' barricades as against the animal-rights activists was not a violation of plaintiff's free speech rights given the state of the law at the time of the incident, and the court finds that as to plaintiff's federal free speech claim, Kranz is entitled to qualified immunity.
b. Fourth Amendment Seizure Claims
Defendants argue that Kranz is entitled to qualified immunity as to plaintiff's Fourth Amendment seizure claims because Kranz had probable cause to detain and arrest Bolbol pursuant to the citizen's arrest, and the seizure of her belongings was reasonable as a seizure incident to a lawful arrest. In determining whether Kranz lacked probable cause to effectuate Bolbol's arrest pursuant to a citizen's arrest, the court considers whether Arpin's rule (that "the federal Constitution requires police officers to have independent probable cause when effectuating a citizen's arrest," Hopkins, 573 F.3d at 774) was clearly established at the time of the arrest. The 9th Circuit has held that as of 2003, Arpin's rule was not clearly established law. Id. at 775. In coming to this conclusion, the Hopkins panel looked to case law as of 2003, the date of the incident in question there, and determined that few courts had applied Arpin's rule. As of 2008, the relevant date here, several courts have cited to Arpin for the proposition that federal law requires law enforcement officers to have independent probable cause before effectuating a citizen's arrest. Id. at 775-76 (stating additionally that discussion in unpublished opinions was relevant to the clearly established right prong where the opinions are issued prior to the underlying conduct.) Accordingly, the court concludes that Arpin's rule was clearly established at the time of Bolbol's arrest. With respect to the illegal seizure of Bolbol's property, it necessarily follows then that if the law as to Kranz's lack of probable cause to arrest pursuant to a citizen's arrest was clearly established, then the law proscribing seizure of property incident to such an arrest was also clearly established. Payton, 445 U.S. 573, 586 (1980) ("The simple language of the [ Fourth] Amendment applies equally to seizures of persons and to seizures of property."). Moreover, even if the evidence supported an inference that Kranz had investigated the citizen's arrest prior to seizing Bolbol, as discussed above, the evidence does not support an inference that Bolbol had violated state trespass law. Given the language and interpretation of section 602(m), there was no basis upon which Kranz could have believed that Bolbol and Ennis intended to remain permanently in the area of the alleged trespass. See Wilkinson, 248 Cal.App.2d Supp. at 908. Because an issue of material fact remains in regard to the issue of probable cause to effectuate a citizen's arrest, and because even if the issue of probable cause was resolved in Kranz's favor there was no basis to believe that plaintiff committed a violation of 602(m), the court finds that Kranz is not entitled to qualified immunity as to Bolbol's Fourth Amendment seizure claims.
Examples of additional case law citations to Arpin's rule include John v. City of El Monte, 515 F.3d 936, 941 (9th Cir. 2008); Peng v. Mei Chin Penghu, 335 F.3d 978 (9th Cir. 2003); Sin v. Crystal Park Hotel Casino, 77 Fed.Appx. 433, 434 (9th Cir. 2003); Salisbury v. Ward, 2006 WL 3742226 at 4 (N.D. Cal., 2006) (Chesney, J.); Durante v. City of Reno, 2006 WL 240797 at *8 (D.Nev., 2006).
c. Fourth Amendment — Excessive Force
"In assessing the state of the law at the time of [Bolbol's] arrest, we need look no further than Graham's holding that force is only justified when there is a need for force." Blankenhorn, 485 F.3d at 481 (concluding that the state of the law as to the reasonable use of excessive force by a police officer was clearly established at the time of the incident in question.) In Blankenhorn, the court found that the police officers' use of force, specifically gang-tackling and punching, was excessive where the "relatively calm" trespass suspect was "not actively resisting arrest." Id. In this case, plaintiff has met her burden of presenting evidence to controvert defendants' assertion that Kranz acted pursuant to his belief that Bolbol and Ennis posed a physical threat to him, and that Bolbol resisted his attempt to arrest her or otherwise interfered in his investigation. Plaintiff's documentary evidence provides compelling evidence that Kranz was in fact the aggressor, that Bolbol was not a physical threat to him, that she did not interfere with Kranz's alleged attempt to investigate the trespass at the scene, and that she merely resisted Kranz's physical engagement of her by asking him not to touch her. DVD Clips 6-8. For these reasons, plaintiff asserts that it was unreasonable for Kranz to apply the pain-compliance hold on her for 15 to 20 minutes. While placing a finger in a pain-compliance hold does not constitute the same level of force as gang-tackling or punching, it was unreasonable in light of the circumstances in which Officer Kranz found himself. Considering these facts and the state of the law, Bolbol's Fourth Amendment right against the use of excessive force was clearly established, and the court finds that as to the charge of
excessive force, Kranz is not entitled to qualified immunity. Kranz had "sufficiently clear notice that [his] conduct could have been unconstitutional." Blankenhorn, 485 F.3d at 481.
B. Claims Against McLane
Plaintiff seeks to hold Police Chief McLane liable, in his official and individual capacities, for Kranz's violation of her federal civil rights. However, "government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948 (2009). "`[T]he term supervisory liability is a misnomer,' since `each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.'" Simmons v. Navajo County, Arizona, 609 F.3d 1011, 1020 (9th Cir. 2010) (citing Iqbal, 129 S.Ct. at 1948)). "To survive summary judgment, [plaintiff] must adduce evidence that [defendants] themselves acted or failed to act unconstitutionally, not merely that a subordinate did." Id. at 1020-21. Thus, McLane may only be held individually liable "for his own culpable action or inaction in the training, supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation[;] or for conduct that showed a reckless or callous indifference to the rights of others.'" Blankenhorn, 485 F.3d at 485 (citing Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998) (quoting Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991))).
Plaintiff proffers evidence of a single telephone conversation she had with McLane on the day after her arrest. During the conversation, McLane allegedly condoned Kranz's actions on the previous day and told Bolbol that if she returned to the site she would be arrested again. Bolbol Dec. ¶ 41. Plaintiff claims that the latter action interfered with her speech, causing her "irreparable harm." The evidence presented, however, does not appear to support Bolbol's assertions as to McLane's liability. McLane was not present at the Circus, did not participate in any of the events leading up to the incident and spoke with Bolbol only after the incident and without the benefit of a detailed report as to what happened. Leigh Dec., Exh. B (McLane Depo) at 15-20; see Edgerly v. City and County of San Francisco, 599 F.3d 946, 961 (9th Cir. 2010) ("No reasonable trier of fact could find that [defendant] had any personal involvement in the incident because he was not aware of the arrest or search until after they were completed, when he authorized the Officers to cite and
release Edgerly.") Accordingly, there is insufficient evidence to support a claim of McLane's culpability here.
In terms of McLane's endorsement of unconstitutional policies, plaintiff refers once again to the brief conversation she had with McLane as evidence that his policies as chief tended to encourage DCPD officers to disregard civil rights law. McLane Depo. 15-20. Defendants admit that McLane as police chief had policy-making authority, but plaintiff adduces no evidence that shows that McLane endorsed a policy that led to the routine violation of constitutional rights. Plaintiff's evidence merely shows that McLane testified that he received an incomplete briefing of the events of September 13, 2008. McLane Depo. at 15-20. Then, on September 14, 2008, McLane, under the impression that plaintiff was lawfully arrested for trespass, spoke with plaintiff and told her that if she committed a trespass again, she would be arrested again. Id. Plaintiff offers no other evidence from which the trier of fact could reasonably conclude that Chief McLane himself acted unconstitutionally or induced his subordinates to act unconstitutionally. Accordingly, summary judgement as to all claims against McLane is granted in favor of defendant McLane.
C. Claims Against the City of Daly City
Plaintiff seeks to hold the City liable for the alleged civil rights violations committed by Kranz. Specifically, plaintiff cites City's alleged failure to train and the policies established by McLane as direct causes of her alleged injury. Defendants move for summary judgment as to all of plaintiff's federal claims against the City.
"The City may he held liable under section 1983 if its deliberate policy caused the violation alleged." Blankenhorn, 485 F.3d at 483 (citing Monell v. Dep't of Social Services of New York, 436 U.S. 658, 694 (1978)). In order to establish a failure to train against a municipality, the plaintiff "must show that (1) he was deprived of a constitutional right, (2) the City had a training policy that amounts to deliberate indifference to the [constitutional] rights of the person with whom [its police officers] are likely to come into contact; and (3) his constitutional injury would have been avoided had the City properly trained those officers." Id. at 484 (citing Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001) (internal quotation marks omitted). Plaintiff proffers evidence only as to the unconstitutional behavior of Kranz in order to substantiate her failure to train claims. However, "[f]ailure to train a single officer is insufficient to establish a municipality's deliberate policy." Blankenhorn, 485 F.3d at 485. "`[A]bsent evidence of a program-wide inadequacy in training,' any short-fall in a single officer's training `can only be classified as negligence on the part of the municipal defendant — a much lower standard of fault than deliberate indifference.'". Id. (quoting Alexander v. City and County of San Francisco, 29 F.3d 1355, 1367 (9th Cir. 1994)). Plaintiff has not met her burden as to this claim.
Rather, Bolbol relies heavily on Kranz's actions (Kranz Depo. at 87-88; 123-5; 127-33; 143-45; 231-35); on DCPD's several years' worth of experience dealing with free speech issues as they related to the Cow Palace; and on the fact that Kranz did not uphold her rights several years after the Kuba decision as being indicative of a general failure to train. In apparent contradiction to her claim, however, she also proffers evidence which tends to show that several officers were trained in free speech considerations in relation to the Cow Palace. Specifically, plaintiff refers to Officers Griggs and Gamez's attempts to ensure that the Circus complied with Bolbol and Ennis' constitutional speech rights. Bolbol Decl. ¶¶ 9, 13, 16-17. This evidence undermines plaintiff's contention that the City systemically failed to train its officers as to the protection of free speech rights at the Cow Palace. The court finds that more is required here to substantiate plaintiff's claim of municipal liability. Accordingly, summary judgment is granted in favor of defendants as to plaintiff's federal claims against the City.
D. State Law Claims
1. California Penal Code Section 4003
Plaintiff does not challenge defendants' assertion that she has no cause of action regarding California Penal Code Section 4003. As noted above in regard to plaintiff's federal and state equal protection claims, plaintiff fails to address this issue in her opposition brief and apparently concedes that she may not proceed on this claim. Accordingly, the court grants summary judgment in favor of defendants as to this claim.
2. Article 1, Section 13 — Unlawful Seizure/California Penal Code Section 236 — False Arrest
Plaintiff asserts that defendant Kranz unlawfully seized her in violation of Art. 1, Section 13 of the California Constitution and that Kranz committed the tort of false imprisonment as defined by Cal. Pen. Code § 236. Art. 1, Section 13 states: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated . . ." Section 236 defines false imprisonment as "the unlawful violation of the personal liberty of another." The pertinent inquiry in regard to both an unlawful seizure as proscribed in Art. 1, Section 13 of the state constitution and to a civil false imprisonment charge as defined by section 236 and as applied to police officers in arrest situations, is the Fourth Amendment reasonableness standard as determined by probable cause. "In California, an officer has probable cause for a warrantless arrest `if the facts known to him would lead a [person] of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.'" Peng, 335 F.3d at 976 (citing People v. Adams, 175 Cal.App.3d 855 (1985)) (citation and internal quotation marks omitted); see Knapps v. City of Oakland, 647 F.Supp.2d 1149, 1165-66) (N.D.Ca. 2009) (James, Mag. J.) (finding that defendant officers were not liable for a section 236 violation because the seizure was reasonable under the circumstances and not effectuated without "lawful privilege."))
Where a citizen's arrest is at issue, however, the federal and state requirements for probable cause, and therefore reasonableness, diverge. "The federal Constitution requires police officers to have independent probable cause when effectuating a citizen's arrest." Hopkins, 573 F.3d at 774. Under state law, however, "[a] peace officer who accepts custody of a person following a citizen['s] arrest is not required to correctly determine whether the arrest was justified." Kesmodel v. Rand, 119 Cal.App.4th 1128, 1137 (2004) (citing Kinney v. County of Contra Costa, 8 Cal.App.3d 761, 768 (1970)); Arpin, 261 F.3d at 920-921. Rather, in California, where the citizen's arrest is valid under state law, the officer effectuating the citizen's arrest may not be held liable. Id. (citing Cal. Govt. C. § 847(b)). Accordingly, for the purposes of determining both a state constitutional unlawful seizure
and a state section 236 false imprisonment/false arrest claim, the court addresses whether the underlying citizen's arrest on its own was reasonable, and thus lawful.
In California, "[a]ny person, though not an officer, may arrest another for committing or attempting to commit a public offense in his presence." People v. Bloom, 185 Cal.App.4th 1496, 1501 (2010) (citing Cal. Pen. Code § 837; People v. Score, 48 Cal.App.2d 495, 498 (1941)). "The `presence' requirement is found in both sections 836 and 837, and has been liberally construed." Id. (citing People v. Sjosten, 262 Cal.App.2d 539, 543-544 (1968)). "The `presence' element relates only to commission of the offense, and not to the proximity of the citizen arrestor at the time of the arrest." Id. Although Gustavo Parra Bello, a Circus official, signed the citizen's arrest form, plaintiff contends that her arrest was in fact initiated by Kranz and Officer O'Rourke without probable cause. Plaintiff alleges that Kranz first seized and detained Bolbol, then discussed her fate with Officer O'Rourke for 15-20 minutes before deciding between himself and Officer O'Rourke to arrest her pursuant to a citizen's arrest. Kranz Depo. at 147-149. Plaintiff asserts that Parra Bello's citizen's arrest of her was illegitimate because he did not witness the trespass, he did not report the offense to DCPD or Officer Kranz, and he did not point out Bolbol to Kranz on the scene. Plaintiff contends that Parra Bello never at any time placed Bolbol under a citizen's arrest nor requested that Kranz arrest Bolbol. Viewing the facts in the light most favorable to the plaintiff, the citizen's arrest then was not legitimate per state law, and accordingly, Kranz's arrest pursuant to the purported citizen's arrest was not reasonable. Defendant has proffered evidence to the contrary. Docket No. 35-11 (Parra Bello Dec.). In his declaration, Parra Bello asserts: "I told the officers that I wanted her arrested for trespassing and I signed the paper in order for that to happen." Parra Bello Dec. at 2. Because the facts here are in dispute, the court finds that whether Kranz arrested Bolbol pursuant to a lawful citizen's arrest under state law, and thus whether Kranz unlawfully seized and falsely imprisoned Bolbol as a matter of state law, is a genuine issue of material fact. As with the issue of probable cause in relation to plaintiff's federal claims, the court declines to make a determination here pending further consideration of the facts, and summary judgment as to these claims is denied.
Moreover, because whether Kranz is entitled to immunity under Cal. Pen. Code § 847(b)(1) rests on whether he had probable cause to believe his seizure/detention was lawful, the court finds that Kranz is not entitled to a finding of immunity under 847(b)(1) at this time. See Blankenhorn, 485 F.3d at 487 (finding that the defendant officers were entitled to invoke state law-based immunity where "the officers had probable cause to believe [the plaintiff] was trespassing" at the time of arrest.)
Cal. Pen. Code § 847(b) states:
There shall be no civil liability on the part of, and no cause of action shall arise against, any peace officer or federal criminal investigator or law enforcement officer described in subdivision (a) or (d) of Section 830.8, acting within the scope of his or her authority, for false arrest or false imprisonment arising out of any arrest under any of the following circumstances:
(1) The arrest was lawful, or the peace officer, at the time of the arrest, had reasonable cause to believe the arrest was lawful.
(2) The arrest was made pursuant to a charge made, upon reasonable cause, of the commission of a felony by the person to be arrested.
(3) The arrest was made pursuant to the requirements of Section 142, 837, 838, or 839.
3. California Civil Code Section 51.7
Section 51.7 states in relevant part that "[a]ll persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation . . ." Plaintiff asserts that Kranz has a history of harassing animal-rights activists at the Cow Palace, Opp. Memo. at 36, yet she has proffered little evidence as to the truth of this assertion. On the contrary, plaintiff points to a statement by Kranz which supports the notion that Kranz's enforcement of the barricade was not speech-based. Opp. Memo. at 6. ("Thus, Officer Kranz admitted that the only factor he considered when determining whether [Bolbol] was trespassing was where the Circus had put the barricades and whether the general public was allowed past them."). Plaintiff does reassert evidence that Kranz failed to independently find probable cause as to the citizen's arrest prior to detaining and arresting Bolbol, however the trier of fact could not reasonably determine from this evidence alone that animus toward Bolbol's political affiliation motivated the alleged unconstitutional behavior. Accordingly, the court grants summary judgment in favor of defendants as to this claim.
4. California Civil Code Section 52.1
Plaintiff claims that defendants have violated Cal. Civ. Code § 52.1, which provides for damages if a person "interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, or any district attorney or city attorney . . ." Cal. Civ. Code § 52.1(a). As previously discussed, plaintiff's evidence supports a finding that Kranz violated plaintiff's federal First Amendment and state Liberty of Speech rights and presents an issue of material fact whether he violated her civil rights pursuant to the Fourth Amendment, state unlawful seizure law and Cal. Pen. Code § 236. Because a violation of each of these rights supports a violation of section 52.1, summary judgment as to plaintiff's section 52.1 claim is denied.
Additionally, as to the question of damages available under section 52.1, this court has recently held that "[s]ection 52 damages include actual damages, treble damages and exemplary damages. Moreover, actual damages include both special damages and general damages. Cal. Civ. Code § 52(h) . . . [however] section 52(b)(2) civil penalties are not available under section 52.1(b)." See Cuviello v. City of Oakland, 2010 WL 3063199 (N.D.Cal., 2010).
5. Immunity Under California Law
Defendants cite various state provisions that purportedly entitle the defendants to immunity from prosecution. The court first considers whether Kranz is immunized from prosecution per Cal. Gov. Code § 820.2 which states: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of discretion vested in him, whether or not such discretion be abused." The California Supreme Court explained that "there is no basis for immunizing lower-level, or `ministerial,' decisions . . . [and] immunity applies only to deliberate and considered policy decisions, in which a `[conscious] balancing [of] risks and advantages . . . took place. The fact that an employee normally engages in discretionary activity is irrelevant if, in a given case, the employee did not render a considered decision." Caldwell v. Montoya, 10 Cal.4th 972, 981 (1995) (internal quotations omitted) (quoting Johnson v. State of California, 69 Cal.2d 782 (1968); see also Gillan v. City of Marino, 147 Cal.App.4th 1033, 1051 (2007)) (finding that an officer's decision to arrest a plaintiff was "operational" and not subject to immunity under section 820.2.) Thus, section 820.2 does not immunize Officer Kranz here.
Neither does Cal. Gov. Code § 820.4 nor Cal. Gov. Code § 821.6 immunize Kranz. Section 820.4 provides: "A public employee is not liable for his act or omission, exercising due care, in the execution or enforcement of any law. Nothing in this section exonerates a public employee from liability for false arrest or false imprisonment." Because as discussed above, the court now declines to make a determination of probable cause pending its further review of the disputed facts, Kranz may not raise this defense.
Section 821.6 provides: "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause." "Section 821.6, however, provides no immunity from liability for false arrest or false imprisonment." Gillan, 147 Cal.App. 4th at 1048 (citing Sullivan v. County of Los Angeles 12 Cal.3d 710, 719-722 (1974)). "The California Supreme Court has read [s]ections 820.4 and 821.6 together to shield officers from `liability for . . . a suspect's incarceration after the institution of lawful process' but not `when a police officer causes a suspect to be confined unlawfully' or without process." Drakeford v. County of Orange, 213 Fed.Appx. 542, 546 (2006) (quoting Asgari v. City of Los Angeles, 15 Cal.4th 744, 758 (1997)). The applicability of section 821.6 then turns on whether Kranz's detention and arrest of Bolbol were lawful or constituted false arrest. Because the court declines to determine the issue of probable cause at this time for reasons stated above, Kranz may not raise section 821.6 as a defense. Moreover, defendants concede that to the extent that Kranz is found liable for violations of Bolbol's state civil rights, Cal. Govt. Code § 815.2(a) imposes respondeat superior liability on the City. Consequently, the court finds that the City may be liable for Kranz's violations under state law of plaintiff's civil rights, and summary judgment as to the City's liability on plaintiff's state law-based claims is denied.
E. Summary
Summary judgment as to plaintiff's first, sixth, seventh, eighth, and eleventh claims is GRANTED in favor of defendants. Summary judgment as to all claims against defendant McLane is GRANTED in favor of defendants. Summary judgment as to all federal claims against the City is GRANTED in favor of defendants. Summary judgment as to plaintiff's second, third, fourth, fifth, ninth, tenth, and twelfth claims is DENIED. Summary judgment as to plaintiff's remaining state law claims against the City is DENIED.
II. Consolidation
On November 9, 2009 Mark Ennis filed Case No: C 09-05318. Plaintiff and Mark Ennis now move to consolidate their actions pursuant to Federal Rule of Civil Procedure 42(a). See Docket No. 59 (Plaintiff's Notice of Joinder). Federal Rule of Civil Procedure 42(a) permits a trial court, at its discretion, to consolidate actions that involve "a common question of law or fact pending before the court." Fed.R.Civ.P. 42(a). Here, each action asserts substantially the same claims against the same defendants and raises substantially the same questions of law and fact. Thus, all of the prerequisites for consolidation under rule 42(a) are present, and the court orders that the two actions be consolidated.
III. Leave to File First Amended Complaint
Plaintiff's complaint identifies as defendants, "Does 1 — 20," providing notice that she intended to amend her complaint upon discovery of the true names of the unknown defendants. Complaint ¶ 10. Plaintiff now seeks leave to amend her complaint to add new defendants and refine her claims based on additional discovery.
A party may amend a pleading once as a matter of course and thereafter only by consent of the opposing party or by leave of the court. Fed.R.Civ.P. 15(a)(2). Leave should be freely given when justice so requires. Fed.R.Civ.P. 15(a)(2). In determining whether to grant leave to amend, the court considers five factors: (1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether the plaintiff has previously amended his complaint. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). Not all of the factors merit equal consideration; prejudice is the "touchstone of the inquiry under rule 15(a)" and "carries the greatest weight." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003); Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). The Ninth Circuit has construed Rule 15(a) broadly, requiring that leave to amend be granted with "extraordinary liberality." Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990); Poling v. Morgan, 829 F.2d 882, 886 (9th Cir. 1987).
Defendants oppose plaintiff's motion to amend on the grounds that the addition of new defendants and new claims against existing defendants and proposed defendants would be unduly prejudicial at this stage of the action. Specifically as to Kranz, defendants assert concerns that subjecting Kranz to additional discovery and any new defense strategy that must arise in light of additional claims would be especially costly and prejudicial to his defense. Plaintiff argues that delays in the discovery process prompted her delay in bringing this motion, and the interests of justice require that the court grant her permission to amend her complaint in light of recent revelations.
Defendants note that plaintiff filed her initial complaint over a year prior to the date of plaintiff's motion to amend, and suggest that at this stage of the litigation, her motion is proffered in bad faith and calculated to delay the proceeding.
Balancing the interests here involved, the court finds that the addition of new names to the action would not be unduly prejudicial to the extant defendants. The parties have already conducted significant discovery, including the deposition of Officer Kranz, and at hearing the parties agreed that the addition of new defendants will not require significant new discovery. While some delay is certain to follow from the addition of new defendants, the court does not find this prospect of resulting prejudice sufficient to deny plaintiff's motion. The court, however, declines to decide at this time whether plaintiff may amend her complaint to add additional claims. Rather, the court orders the plaintiff to submit, within 20 days of this order, a Proposed First Amended Complaint consistent with the court's conclusions here and inclusive of all new claims that plaintiff hopes to bring. At that time the court will make its determination as to whether plaintiff may proceed with additional claims against the defendants.
CONCLUSION
The court orders that defendants motion for summary judgment is GRANTED in part and DENIED in part as set forth above.
The court orders the present action CONSOLIDATED with Ennis v. City of Daly City, et. al., Case No. 09-5318.
The court orders that plaintiffs motion for leave to amend is GRANTED to permit the addition of new defendants. The court orders plaintiff to submit a Proposed First Amended Complaint, consistent with the court's conclusions here, within 20 days of the date of this order. After review of plaintiff's Proposed First Amended Complaint, the court will rule as to plaintiff's request for leave to amend the complaint in regard to the addition of new claims.
At the hearing held on September 13, 2010, the court noted that plaintiff had failed to file a Proposed First Amended Complaint with her motion for leave to amend the Complaint. It light of this oversight, the court ordered plaintiff to file a Proposed First Amended Complaint no later than September 17, 2010. Plaintiff filed an First Amended Complaint on September 17, 2010 instead of a Proposed First Amended Complaint, as ordered by the court. Consequently, defendants filed an Answer on October 7, 2010. The court now emphasizes that plaintiff should file aProposed First Amended Complaint consistent with the court's conclusion in this order within 20 days of the date of this order. The court orders defendants to file their answer within 20 days of the date that plaintiff files her Proposed First Amended Complaint.
IT IS SO ORDERED.