Zayas v. State of California et al

Filing 113

ORDER denying 108 Plaintiff's Request for Reconsideration. Signed by Judge Edward M. Chen on 10/22/2018. (emclc2, COURT STAFF) (Filed on 10/22/2018)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ESTRELLA LYSANDRA ZAYAS, Plaintiff, 8 9 10 ORDER DENYING PLAINTIFF’S REQUEST FOR RECONSIDERATION v. JOSE ORTEGA, et al., Docket No. 108 Defendants. 11 United States District Court Northern District of California Case No. 17-cv-02739-EMC 12 13 Plaintiff’s request for relief is denied. First, she has failed to show that she should be given 14 leave to file a motion for reconsideration. See Civ. L.R. 7-9(b). She is making an argument that 15 she never previously raised for the Court’s consideration. See Docket No. 84, at 46 (Plaintiff 16 arguing that the instruction should not be given because, “[c]learly, the Defendant is not a 17 professional”). 18 Second, even if the Court were to grant Plaintiff leave to file a motion for reconsideration, 19 her motion to reconsider lacks merit. The Directions for Use for CACI 602 do not limit the use of 20 the instruction to situations where the plaintiff has hired the defendant as a professional. 21 Furthermore, as the Court previously noted, California courts have evaluated negligence claims 22 against law enforcement officers as professional negligence cases. See, e.g., Harris v. Smith, 157 23 Cal. App. 3d 100 (1984) (in a case where plaintiff claimed that a deputy sheriff had an affirmative 24 duty to plaintiff, after he commenced an investigation, to exercise reasonable care in the 25 performance of his investigation, evaluating alleged negligence of deputy sheriff as a matter of 26 professional negligence). 27 28 The Court, however, shall retitle the instruction so that it no longer refers to “success.” This is consistent with the Court’s order at Docket No. 102, at 33 (striking the language “his 1 efforts are unsuccessful or” because “it could be confusing to the jury given the facts of this 2 case”). The new title for the instruction is: “NEGLIGENCE – REASONABLE LAW 3 ENFORCEMENT OFFICER.” 4 5 6 7 8 The Court also makes one correction to the instruction: the term “officer” should be used instead of “official” in the second sentence. Finally, the Court shall reorder the instructions so that the instruction at issue comes before the instruction on custom or practice. The Court shall forthwith issue the revised Final Jury Instructions to reflect the above. 9 10 IT IS SO ORDERED. United States District Court Northern District of California 11 12 Dated: October 22, 2018 13 14 15 ______________________________________ EDWARD M. CHEN United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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