Davis et al v. Zimmerman et al

Filing 162

ORDER Denying Plaintiffs' Ex Parte Application to Supplement Record for Summary Judgment Motion (ECF No. 157 ). Signed by Judge Cynthia Bashant on 4/7/20. (jmo)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAIRO CERVANTES, et al.,

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Plaintiffs,
v.
SAN DIEGO POLICE CHIEF
SHELLEY ZIMMERMAN, et al.,
Defendants.

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Case No. 17-cv-1230-BAS-AHG
Case No. 18-cv-1062-BAS-AHG
ORDER DENYING PLAINTIFFS’
EX PARTE APPLICATION TO
SUPPLEMENT RECORD FOR
SUMMARY JUDGMENT MOTION
[ECF No. 157]

BRYAN PEASE,

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CONSOLIDATED ACTIONS:

Plaintiff,
v.
SAN DIEGO COUNTY SHERIFF
WILLIAM GORE, et al.,
Defendants.

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Before the Court is Plaintiffs’ Ex Parte Application to supplement the record on

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summary judgment with the bodyworn camera (BWC) footage of three officers. (ECF No.

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157.) The City opposes. (ECF No. 160.)

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“The ‘opportunities for legitimate ex parte applications are extremely limited.’”

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Horne v. Wells Fargo Bank, N.A., 969 F. Supp. 2d 1203, 1205 (C.D. Cal. 2013) (quoting

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In re Intermagnetics America, Inc., 101 B.R. 191, 193 (C.D. Cal. 1989)). To warrant relief,

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an ex parte application must demonstrate good cause to allow the moving party “to go to
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the head of the line in front of all other litigants and receive special treatment.” Mission

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Power Eng’r Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). To warrant

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ex parte relief, the moving party must show that it will suffer irreparable harm if the motion

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is not heard on an expedited schedule and that it either did not create the circumstances

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warranting ex parte relief or that the circumstances occurred as a result of excusable

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neglect. Id. at 492.

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Plaintiffs have failed to make either showing in their Application. First, in a lengthy

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declaration, Plaintiffs’ counsel recites a chronology of events beginning in May 2016,

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during which Defendant City of San Diego (“City”) allegedly delayed production of almost

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600 BWC videos until June 2019 and prevented him from downloading the videos himself.

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(Decl. of Bryan Pease (“Pease Decl.”) ¶¶ 7–11, ECF No. 157-1.) However, Plaintiffs offer

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no specific argument explaining the harm that will result from the omission of these videos,

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including by reference to any specific merits of their Cross Motion for Summary Judgment.

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See Mission Power, 883 F. Supp. at 492 (“A showing of irreparable prejudice usually

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requires reference to the merits of the underlying motion.”). Mr. Pease only states that the

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videos “would show without question that Defendants conspired to violate Plaintiffs’ civil

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rights[.]” (Pease Decl. ¶ 10.) This conclusory statement is not sufficient to satisfy

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Plaintiffs’ burden for ex parte relief.

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Second, this appears to be a rehashing of a discovery dispute that was raised before

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the Court in August 2018. At that time, the parties jointly requested an extension of time

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to file a discovery dispute regarding the release of BWC footage of the underlying

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incidents. (ECF No. 48.) Noting noncompliance with chambers’ rules, Magistrate Judge

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Stormes allowed Plaintiffs to supplement the joint motion to demonstrate the timeliness of

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the request for the extension. (ECF No. 49.) After two weeks during which Plaintiffs

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failed to file a supplemental response, Magistrate Judge Stormes denied the joint motion.

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(ECF No. 50.) Thus, it appears that Plaintiffs had the opportunity to address this dispute

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over a year before their deadline to file their Cross Motion for Summary Judgment, and yet

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failed to do so. Thus, Plaintiffs have not shown that the circumstances allegedly warranting

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this Application were not of Plaintiffs’ own making or the result of excusable neglect.

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Accordingly, Plaintiffs’ Ex Parte Application (ECF No. 157) is DENIED.

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IT IS SO ORDERED.

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DATED: April 7, 2020

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