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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ESTRELLA LYSANDRA ZAYAS,
Plaintiff,

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ORDER DENYING PLAINTIFF’S
REQUEST FOR RECONSIDERATION

v.
JOSE ORTEGA, et al.,

Docket No. 108

Defendants.

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United States District Court
Northern District of California

Case No. 17-cv-02739-EMC

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Plaintiff’s request for relief is denied. First, she has failed to show that she should be given

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leave to file a motion for reconsideration. See Civ. L.R. 7-9(b). She is making an argument that

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she never previously raised for the Court’s consideration. See Docket No. 84, at 46 (Plaintiff

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arguing that the instruction should not be given because, “[c]learly, the Defendant is not a

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professional”).

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Second, even if the Court were to grant Plaintiff leave to file a motion for reconsideration,

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her motion to reconsider lacks merit. The Directions for Use for CACI 602 do not limit the use of

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the instruction to situations where the plaintiff has hired the defendant as a professional.

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Furthermore, as the Court previously noted, California courts have evaluated negligence claims

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against law enforcement officers as professional negligence cases. See, e.g., Harris v. Smith, 157

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Cal. App. 3d 100 (1984) (in a case where plaintiff claimed that a deputy sheriff had an affirmative

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duty to plaintiff, after he commenced an investigation, to exercise reasonable care in the

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performance of his investigation, evaluating alleged negligence of deputy sheriff as a matter of

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professional negligence).

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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

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efforts are unsuccessful or” because “it could be confusing to the jury given the facts of this

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case”). The new title for the instruction is: “NEGLIGENCE – REASONABLE LAW

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ENFORCEMENT OFFICER.”

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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.

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IT IS SO ORDERED.

United States District Court
Northern District of California

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Dated: October 22, 2018

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______________________________________
EDWARD M. CHEN
United States District Judge

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