Abudiab v. City and County of San Francisco et al

Filing 169

ORDER re 96 Letter filed by Amjad Abudiab, 94 Letter filed by Antonio Parra, Elias Georgopoulos, City and County of San Francisco. Signed by Magistrate Judge Nandor J. Vadas on 11/14/2011. (njvlc2, COURT STAFF) (Filed on 11/14/2011)

1
2
3

NOT FOR CITATION

4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

EUREKA DIVISION

United States District Court
For the Northern District of California

10
11

No. CV 09-1778 JSW (NJV)

AMJAD ABUDIAD,
12

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO QUASH DEPOSITION
NOTICES

Plaintiff,
13
v.
14
15
16

CITY AND COUNTY OF SAN FRANCISCO,
et al.,
Defendants.

(Docket No. 94)

/

17
18

The district court referred all discovery matters to this Court for determination on September

19

12, 2011, including Defendants’ motion to quash two deposition notices Plaintiff issued in February

20

2011. Doc. No. 147 (order of referral); Doc. Nos. 94, 96 (motion to quash and response). In light of

21

the time that had elapsed since the parties first addressed the discovery issues, and in light of Judge

22

Patel’s order granting in part Defendants’ motion for summary judgment, this Court ordered further

23

briefing on the discovery disputes. See Doc. Nos. 158, 161, 162. The Court heard oral argument on

24

the motion to quash on October 19, 2011. The Court asked the parties to seek clarification from the

25

district court regarding the bifurcation order. Doc. Nos. 165 & 166. On November 9, 2011, the

26

district court provided that clarification. Doc. No. 168. Having carefully considered the arguments

27

of the parties and the papers submitted, and for the reasons provided below, the Court grants in part

28

and denies in part the motion to quash.

1

BACKGROUND
The factual background of this dispute has been fully described by Judge Patel. See Doc.

3

No. 135. In summary, plaintiff Amjad Abudiab (“Abudiab” or “Plaintiff”) alleges that defendant

4

Elias Georgopoulos (“Georgopoulos”), a parking control officer employed by defendant City and

5

County of San Francisco (the “City”), punched and pepper-sprayed him, thereby violating his

6

constitutional rights under the First, Fourth and Fourteenth Amendments of the United States

7

Constitution. Abudiab also alleges that the City is liable for Georgopoulos’ actions under Monell v.

8

Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Finally, Abudiab alleges that defendant Antonio

9

Parra (“Parra”), the former head of the Enforcement Division of the Department of Public Transit

10
United States District Court
For the Northern District of California

2

(“DPT”) (which employs Georgopoulos) is both directly liable for the constitutional violations as a

11

result of his actions or failures to act, and liable in his official capacity. Parra is now the

12

Commanding Officer of the SFPD’s Special Victims Division. Doc. No. 161 at 1.

13

Judge Patel sua sponte bifurcated discovery on Plaintiff’s Monell claims against the City on

14

August 9, 2010 (Doc. No. 56), before Plaintiff named Parra as a defendant in the case (Doc. No. 57).

15

Judge White recently denied Abudiab’s request to reconsider the bifurcation order. Doc. No. 157.

16

Plaintiff served deposition notices on the City and on Parra, which Defendants moved to quash on

17

the ground the depositions were premature in light of the bifurcation order.

18

Because neither Judge Patel nor Judge White had addressed whether discovery should be

19

bifurcated as to the claims Plaintiff asserts against Parra in his individual capacity, this Court asked

20

the parties to seek clarification regarding the bifurcation order. Judge White clarified that the

21

bifurcation order applied only to the Monell claims, and that “claims against Captain Parra shall be

22

heard with the claims against the other individual defendant in the first phase.” Doc. No. 168.

23
24
25

DISCUSSION
A.

Arguments of the parties
Plaintiff seeks to depose the City and Parra now on the ground that the depositions are not

26

related to the bifurcated Monell claims. He argues a person most knowledgeable deposition for the

27

City under Federal Rule of Civil Procedure 30(b)(6) is appropriate on three grounds. First, he

28

contends the City’s failure to discipline Georgopoulos may have led Georgopoulos to believe he
2

could harm others with impunity and “where a government official uses his government authority to

2

commit a wrongful act and get away with it, it may be a factor used to determine whether there was

3

color of law.” Doc. No. 162 at 2. Second, he seeks to depose the City regarding prior acts by

4

Georgopoulos, which could be admissible in this case under Federal Rule of Civil Procedure 404(b).

5

Id. Third, he contends he offered to forego the deposition if the City stipulated to the authentication

6

of certain documents, an offer the City refused. As to Parra, Plaintiff contends that Parra’s failure to

7

react to prior complaints about Georgopoulos allowed a dangerous and violent Georgopoulos to

8

patrol the streets of San Francisco in uniform and armed with pepper-spray, which lead to the

9

deprivation of Plaintiff’s rights. Id. at 3. Plaintiff contends that this is relevant to Plaintiff’s claim

10
United States District Court
For the Northern District of California

1

against Parra in his individual capacity, and not to his claim against Parra in his official capacity.

11

Defendants contend both depositions are premature. They argue that the discovery Plaintiff

12

seeks to support his vicarious liability claim against the City and Parra is identical to the Monell

13

discovery that has been bifurcated. Judge Patel reasoned that if Georgopoulos did not violate

14

Plaintiff’s right, then Monell discovery would be unnecessary. See Doc. No. 100 at 11:7-12:19.

15

Defendants contend the bifurcation order therefore should apply to all of Plaintiff’s vicarious

16

liability claims, regardless of the label or the defendant involved. Judge White, however, has

17

clarified that the claims against Parra will proceed in the first phase of the trial. Doc. No. 168. In

18

addition, Defendants contend that Parra should not be deposed because he is a high ranking

19

government official. Defendants did not anticipate Plaintiff’s argument that “prior acts” could be

20

admissible under Rule 404(b).

21

Both parties acknowledge that Plaintiff offered to withdraw the deposition notice addressed

22

to the City if the City stipulated to the authenticity of certain documents. Doc. No. 161 at 3 n.2;

23

Doc. No. 162 at 2. The parties disagree as to which of them decided not to proceed in this manner.

24

B.

Analysis

25

1. Deposition of the City

26

A 30(b)(6) deposition of the City is not relevant to establishing whether Georgopoulos acted

27

“under color of law.” Plaintiff contends that Parra’s failure to discipline Georgopoulos may have

28

led Georgopoulos to believe he could act with impunity due to his official position, and from there
3

Plaintiff reasons that the deposition testimony might be relevant to his color of law claim. Plaintiff’s

2

analysis is unsupported by any authority suggesting prior acts, even if similar, can be used to

3

establish color of law. In order to establish that Georgopoulos operated “under color of law,”

4

Plaintiff must establish that Georgopouloss “exercised power ‘possessed by virtue of state law and

5

made possible only because the wrongdoer is clothed with the authority of state law.’” Abudiab v.

6

City and County of San Francisco, 2010 U.S. Dist. LEXIS 57785, *7 (N.D. Cal. April 12, 2010)

7

(quoting United States v. Classic, 313 U.S. 299, 326 (1941)). Generally, a public employee acting in

8

his official capacity will be acting “under color of state law,” even if he abuses the position given to

9

him by the state. Id. (citing West v. Atkins, 487 U.S. 42, 49-50 (1988)). Although there is “no rigid

10
United States District Court
For the Northern District of California

1

formula for determining color of law for purposes of determining section 1983 liability, . . . a court

11

must examine the totality of the circumstances.” Id. Here, relevant details include whether

12

Georgopoulos wore his uniform when he interacted with Plaintiff, whether he purported to order

13

Plaintiff or others at the scene to act or refrain from acting based on his status as a city official, and

14

what Georgopoulos said to Plaintiff regarding his status as a city official. See id., at **11-12. Also

15

relevant is whether Georgopoulos’ wrongdoing was linked to the events that arose during the

16

conduct of his official duties. Id. at *16 (where animosity of accused off duty police officer towards

17

victim grew as result of the performance of the officer’s official duties, the trier of fact can find that

18

the officer acted under color of state law although he was off duty at time of the incident and

19

shooting victim was not related to the performance of his duties). Georgopoulos’ use of City-issued

20

uniforms and pepper-spray could be relevant, but is not dispositive. Id. at *19. The Court must

21

examine all the circumstances surrounding Georgopoulos’ interaction(s) with Plaintiff -- not the

22

circumstances surrounding the City’s reaction to Georgopoulos’ interactions with other persons on

23

different occasions. Defendants’ motion to quash the 30(b)(6) deposition of the City on this ground

24

is granted.

25

A 30(b)(6) deposition of the City regarding “the details of some of the prior acts of violence

26

that Plaintiff believes Georgopoulos may have committed while on duty” (Doc. No. 162 at 2) is also

27

premature. First, Plaintiff’s notice of deposition goes far beyond this relatively narrow topic. See

28

Doc. No. 94, Ex. A at 2 (seeking testimony regarding training of officers and discipline of
4

1

Georgopoulos). Second, the “other complaints” topics squarely fall in the Monell discovery the

2

district court bifurcated. Should the jury conclude Plaintiff’s rights were violated, the City will be

3

deposed in connection with Plaintiff’s Monell claims. Judge Patel found “no point in going through

4

a lot of Monell discovery” until defendant was found to have violated Plaintiff’s right. Doc. No. 100

5

at 11:16-18. In light of the District Court’s stated interest in bifurcating Monell discovery, and in

6

light of the fact that Plaintiff already has obtained document discovery on other complaints

7

involving Georgopoulos, a deposition at this stage is inappropriate.

8
9

However, if the City will not stipulate to the authenticity of documents it produced, the Court
will order a limited deposition of a 30(b)(6) deponent for that purpose alone.

United States District Court
For the Northern District of California

10

2. Deposition of Parra

11

Plaintiff alleges that Parra directly violated his rights by failing to act to prevent

12

Georgopoulos from harming Plaintiff. See Doc. No. 162 at 1, 3; see also Larez v. City of Los

13

Angeles, 946 F.2d 630, 645-46 (9th Cir. 1991). A supervisor’s liability under this theory is premised

14

on his participation in the deprivation of a plaintiff’s civil rights. Larez, 946 F.2d at 646.

15

Defendants therefore argue that the discovery Plaintiff seeks relating to his “direct liability” claim

16

against Parra is identical to the discovery he will seek relating to the Monell and supervisory liability

17

claims in Phase II. However, Judge White has clarified that the claims against Parra will be heard in

18

Phase I. Doc. No. 168. Plaintiff accordingly is entitled to depose Parra at this point.
Parra’s position in the SFPD does not preclude him from being deposed. Indeed, Plaintiff

19
20

points out that if a police chief can be deposed, so can Parra. Defendants argue that Parra was not a

21

direct supervisor of Georgopoulos and has no personal knowledge about this case (Doc. No. 161 at

22

1), but Plaintiff suggests he has evidence that at least some complaints regarding Georgopoulos were

23

addressed to Parra (Doc. No. 162 at 2). That Plaintiff seeks to depose Parra regarding his personal

24

knowledge of other complaints involving Georgopoulos distinguishes the authorities cited by

25

Defendants. See Doc. No. 161 at 2. Plaintiff accordingly may depose Parra regarding his personal

26

knowledge of facts relevant to this case; Plaintiff may not depose Parra as a 30(b)(6) witness for the

27

City.

28
5

1
2

CONCLUSION
For the reasons stated above, and for good cause shown, the Court grants Defendants’ motion

3

to quash the notice of deposition to the City and denies Defendants’ motion to quash the notice of

4

deposition to Parra. If the City will not stipulate to the authenticity of documents produced, the

5

Court orders the City to provide a 30(b)(6) deponent on this topic within the next 10 days.

6

IT IS SO ORDERED.

7
8

Dated: November 14, 2011

NANDOR J. VADAS
United States Magistrate Judge

9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6