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)

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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

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