Abudiab v. City and County of San Francisco et al

Filing 174

ORDER REGARDING MOTIONS FOR CONSIDERATION. Signed by Judge Jeffrey S. White on 12/8/11. (jjoS, COURT STAFF) (Filed on 12/8/2011)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9

AMJAD ABUDIAB,

11
For the Northern District of California

United States District Court

10

12

Plaintiff,

No. C 09-01778 JSW

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

ORDER REGARDING MOTIONS
FOR RECONSIDERATION

13
Defendants.
14

/

15
16

Now before the Court are the motions for reconsideration filed by Plaintiff Amjad

17

Abudiab (“Plaintiff”) and by Defendants the City and County of San Francisco (the “City”),

18

Elias Georgopoulos (“Georgopoulos”) and Antonio Para (collectively, “Defendants”) regarding

19

the Court’s order on Defendants’ motion for summary judgment. This matter is now fully

20

briefed and ripe for decision. The Court finds that this matter is appropriate for disposition

21

without oral argument and is deemed submitted. See N.D. Civ. L.R. 7-1(b). Accordingly, the

22

hearing set for December 16, 2011 is VACATED.

23

Under local rule 7-9, a party may seek leave to file a motion for reconsideration any

24

time before judgment. N.D. Civ. L.R. 7-9(a). A motion for reconsideration may be made on

25

one of three grounds: (1) a material difference in fact or law exists from that which was

26

presented to the Court, which, in the exercise of reasonable diligence, the party applying for

27

reconsideration did not know at the time of the order; (2) the emergence of new material facts or

28

a change of law; or (3) a manifest failure by the Court to consider material facts or dispositive

1

legal arguments presented before entry of judgment. N.D. Civ. L.R. 7-9(b)(1)-(3). The moving

2

party may not reargue any written or oral argument previously asserted to the Court. Id., 7-9(c).

reconsider its conclusion that Georgopoulos was entitled to qualified immunity on Plaintiff’s

5

excessive force Fourth Amendment claim. The Court finds that Plaintiff fails to demonstrate

6

that its conclusion was incorrect and, thus, declines to reconsider this ruling. Moreover, upon

7

further consideration of Defendants’ authority regarding the seizure requirement for Fourth

8

Amendment claims, the Court notes that it is not clear whether Georgopoulos’ alleged excessive

9

force should have been analyzed under the Fourth Amendment, as opposed to the Fourteenth

10

Amendment. Regardless, the Court affirms its ruling that the law was not clearly established

11
For the Northern District of California

Plaintiff moves for reconsideration on three points. First, Plaintiff moves the Court to

4

United States District Court

3

that a parking control officer in Georgopoulos’ position using unreasonable force violates the

12

Fourth Amendment. Accordingly, the Court DENIES Plaintiff’s motion for reconsideration of

13

qualified immunity on his Fourth Amendment excessive force claim.

14

Second, Plaintiff moves the Court to reconsider its holding that his claim against the

15

City, based on an alleged First Amendment violation under California Civil Code § 52.1, failed

16

as a matter of law. Plaintiff argues that the Court failed to consider that Plaintiff filed a proper

17

government claim. However, Plaintiff made the same argument in opposition to Defendants’

18

summary judgment. The Court considered and rejected his argument. Upon examination of

19

Plaintiff’s claim, he merely states that after Georgepoulus shouted “F- - k you” and “you don’t

20

know how to drive,” Plaintiff yelled back. Plaintiff does not give any indication that Plaintiff

21

criticized how Georgopoulus was conducting his job. Nor does Plaintiff’s statement of facts in

22

his claim provide any indication that later that day, when the two saw each other at a restaurant

23

and Georgopoulos sprayed him with pepper spray, that Georgopoulos was retaliating against

24

Plaintiff for his criticisms earlier that day. From reading Plaintiff’s claim, the City would not be

25

on notice of Plaintiff’s First Amendment retaliation claim under § 52.1. Accordingly, the Court

26

DENIES Plaintiff’s motion for reconsideration of this claim.

27
28

Third, Plaintiff moves for reconsideration of Plaintiff’s Monell claims. Defendants had
moved for summary judgment on Plaintiff’s Monell claims on the grounds that Plaintiff’s
2

1

constitutional claims all failed. Because the Court did not grant summary judgment on all of

2

Plaintiff’s constitutional claims against Georgopoulos, Defendants do not oppose Plaintiff’s

3

motion for reconsideration on this point. The Court concurs that summary judgment should not

4

have been granted on Plaintiff’s Monell claims against the City. Accordingly, the Court

5

GRANTS Plaintiff’s motion for reconsideration on this point and reverses its ruling on

6

Plaintiff’s Monell claims.

7

The Court only permitted Defendants to file a motion for reconsideration on one point,

Amendment violation should have been granted against the individual defendants as well. It is

10

undisputed that, under California law, the claims requirement applies to individual defendants

11
For the Northern District of California

that summary judgment on Plaintiff’s § 52.1 claim predicated on Defendants’ alleged First

9

United States District Court

8

as well as the public entity. Accordingly, the Court GRANTS Defendants’ motion for

12

reconsideration and reverses its ruling on Plaintiff’s § 52.1 claim against Georgopoulos

13

predicated on Defendants’ alleged First Amendment violation.

14

IT IS SO ORDERED.

15
16

Dated: December 8, 2011
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
3