Conley v. City and County of San Francisco et al

Filing 192

ORDER by Judge Joseph C. Spero denying 185 Request for Leave to File Motion for Reconsideration (jcslc2, COURT STAFF) (Filed on 10/28/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CARAMAD CONLEY,

Case No. 12-cv-00454-JCS

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

Dkt. Nos. 185.

Defendants.

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United States District Court
Northern District of California

ORDER DENYING DEFENDANTS’
REQUEST FOR LEAVE TO FILE
MOTION FOR RECONSIDERATION

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I.

INTRODUCTION

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On September 4, 2013, this Court entered an order denying Defendants’ motion for

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summary judgment and granting in part and denying in part Plaintiff’s motion for partial summary

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judgment. Dkt. Nos. 177, 184 (“Order”). Defendants have filed a request for leave to file a

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motion for reconsideration relating to a portion of the Court’s order granting partial summary

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judgment in favor of Plaintiff. For the following reasons, the request for leave is DENIED.1

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II.

DISCUSSION

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A.

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In this district, parties are required to request leave prior to moving for reconsideration of

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Legal Standard

an interlocutory order. Civ. L.R. 7-9(a). Local Rule 7-9(b) specifies that a motion for leave to file
a motion for reconsideration must specifically show one of the following:
(1) That at the time of the motion for leave, a material difference in
fact or law exists from that which was presented to the Court before
entry of the interlocutory order for which reconsideration is sought.
The party also must show that in the exercise of reasonable diligence

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The parties have consented to the jurisdiction of the undersigned magistrate judge
pursuant to 28 U.S.C. § 636(c).

the party applying for reconsideration did not know such fact or law
at the time of the interlocutory order; or

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(2) The emergence of new material facts or a change of law
occurring after the time of such order; or

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(3) A manifest failure by the Court to consider material facts or
dispositive legal arguments which were presented to the Court
before such interlocutory order.

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United States District Court
Northern District of California

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Civ. L.R. 7-9(b). The Local Rule also prohibits parties from repeating “any oral or written
argument … which the party now seeks to have reconsidered[,]” and requires that sanctions be
imposed on parties not in compliance with this rule. See id.
Rule 60(b) of the Federal Rules of Civil Procedure “provides for reconsideration only upon
a showing of (1) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud;
(4) a void judgment; (5) a satisfied or discharged judgment; or (6) ‘extraordinary circumstances’

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which would justify relief.” Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991) (citing

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Fed.R.Civ.P. 60(b)).

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B.

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Defendants request reconsideration of a small part of the Court’s order relating to whether

Analysis

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Assistant District Attorney Al Giannini made certain disclosures to Plaintiff Caramad Conley’s

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defense counsel Donald Bergerson. With respect to this specific portion of Conley’s motion, the

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Court noted that Conley “fail[ed] to differentiate between the specific items of evidence allegedly

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withheld” during his trial. Order at 60:4-5. The Court then separately addressed whether a

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reasonable jury could find that Giannini disclosed each item of evidence that Conley alleged had

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been withheld. The Court found sufficient evidence, and thus denied Conley’s motion, relating to

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Giannini’s disclosures of the benefits (including cash and protective housing) provided to Polk.

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Order at 60-61. The Court also found that there was no evidence from which a reasonable jury

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could find that Giannini disclosed to Bergerson (1) the conjugal visits, (2) the IOUs, (3) the “I still

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love you” letter, and (4) “the manner in which Sanders provided payments to Polk.” Id.

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Defendants’ request for leave is expressly limited to the Court’s conclusion that no

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reasonable jury could find that Giannini disclosed to Bergerson “the manner in which Sanders

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provided payments to Polk.” Id. at 60:10. In the background section of the summary judgment
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order, there is a subsection in which the Court discussed “Manner of Payment.” See id. at 23-25.

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That subsection discussed a number of disputed facts regarding the “manner” in which Sanders

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provided money to Polk. When the Court held, in the section granting Conley’s motion in part,

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that no reasonable jury could find that Giannini disclosed to Bergerson “the manner in which

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Sanders provided payments to Polk,” the Court did not intend to include all of the facts discussed

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in the “Manner of Payment” subsection.

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The evidence Defendants cite in their request for leave to file a motion for reconsideration

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demonstrates that Defendants believed the Court’s holding was broader than the Court intended.

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The Court recognizes this was not entirely clear, and takes this opportunity to elaborate. There is

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United States District Court
Northern District of California

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no evidence from which a reasonable jury could conclude that Giannini disclosed to Bergerson the
fact that Polk would page Sanders, and then the two would arrange a time for Polk to pick up cash
from Sanders at the Hall of Justice. There is also no evidence from which a reasonable jury could
conclude that Giannini disclosed to Bergerson the fact that Sanders placed no controls on the
payments Sanders provided to Polk.
Having expressly narrowed the Court’s holding, none of the five items of evidence cited by
Defendants suggests that the Court should grant Defendants leave to file a motion for
reconsideration. First, Defendants point to Sanders’s testimony that he would tell Giannini when
Polk “came by,” but this testimony does not permit a reasonable jury to conclude that Giannini

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told Bergerson that Polk would “come by” the Hall of Justice after paging Sanders, and then
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received cash without any additional controls. See Chhabria Decl. Ex. EE at 178:2-14.
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Second, Defendants cite testimony from Giannini. In response to the question of whether
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Giannini knew that Polk would page Sanders and that Sanders gave Polk a weekly amount of cash,
Giannini testified: “If it existed and if I knew about it, I would have told Mr. Bergerson that
Clifford Polk is still getting money from Inspector Sanders, and I would have put it that way.”
Purcell Decl. Ex. 4 at 184:16-25. By expressly qualifying his answer with the phrase “I would
have put it that way,” Giannini admitted to not disclosing certain details to Bergerson, including
the fact that Polk would page Sanders.
Third, Defendants cite a memorandum written by a defense investigator for Paul Green

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3

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(wh Bergers received that stated Polk receiv $40 from Sanders ev
hich
son
d)
ved
m
very Friday. See

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Ch
hhabria Decl. Ex. P. This is not, how
.
s
wever, suffici
ient evidenc that Giann disclosed to
ce
nini

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Ber
rgerson the facts that Po would rec
f
olk
ceive money after pagin Sanders an that Sand placed
y
ng
nd
ders

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no control on th money.
he

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Fourth, Defendants cite the Oct
s
tober 3, 1994 sidebar, w
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where Giannin stated tha he
ni
at

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exp
pected Berge
erson to say that Polk wa receiving “money” fro Sanders. Chhabria D Ex. H
as
om
.
Dec.

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at 759-760. Th comment is irrelevan to the Cou
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his
t
nt
urt’s holding regarding th “manner” of payment
he
”
t,

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and rather spea to the “fa that San
d
aks
act”
nders gave C
Conley cash p
payments. T Court de
The
enied

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Conley’s motio regarding the fact tha Sanders ga Conley c
on
g
at
ave
cash paymen See Ord at 60-61.
nts.
der
Finally, Defendants suggest tha there is ev
,
s
at
vidence from which a rea
m
asonable jury could
y

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United States District Court
Northern District of California

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con
nclude that Polk was relo
P
ocated prior to October 11, 1994. T was not an issue brie
This
efed by the
par
rties, was no reached by the Court, and has noth
ot
y
a
hing to do w the “man
with
nner” in whic Sanders
ch
gav money to Polk.
ve
III
I.

CONCLUSION
For the foregoing re
easons, the Court denies Defendants request for leave to fil a motion
C
s
s’
r
le

for reconsidera
r
ation.
IT IS SO ORDER
S
RED.
Da
ated: October 28, 2013
r
___
__________
___________
__________
________
JO
OSEPH C. SP
PERO
Un
nited States M
Magistrate Ju
udge

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