Bolbol v. City of Daly City

• Decision Date: 17 November 2010
• Docket Number: No. C 09–01944 MHP.,C 09–01944 MHP.
• Citation: 754 F.Supp.2d 1095
• Parties: Deniz BOLBOL, Plaintiff,v.CITY OF DALY CITY, et al., Defendants.
• Court: U.S. District Court — Northern District of California

754 F.Supp.2d 1095

Deniz BOLBOL, Plaintiff,

v.CITY OF DALY CITY, et al., Defendants.

No. C 09–01944 MHP.

United States District Court, N.D. California.

Nov. 17, 2010.

Gilbert Whitney Leigh, Matt Gonzalez, Matthew Rutledge Schultz, Matthew Lowe Springman, Gonzalez & Leigh, LLP, San Francisco, CA, for Plaintiff.Kimberly E. Colwell, Kimberly M. Drake, Meyers Nave Riback Silver & Wilson, Oakland, CA, Moira O'Neill, Meyers Nave Riback Silver & Wilson, San Francisco, CA, for Defendants.

MEMORANDUM & ORDER

MARILYN HALL PATEL, District Judge.

Plaintiff filed suit against various defendants alleging violations of civil rights under both federal and state law. Defendants are the City of Daly City (“City”), Daly City Police Chief McLane (“McLane”) and Daly City Police Officer Kranz (“Kranz”). Before the court is defendants' motion for summary judgment, or in the alternative, for partial summary judgment. Plaintiff opposes the motion and has brought a motion to consolidate related action and for leave to file a first amended complaint. Defendants oppose both of plaintiff's motions. Having considered the parties' submissions and arguments, the court enters the following memoranda.

BACKGROUND

As is necessary in a motion for summary judgment, the facts are set forth in the light most favorable to the non-moving party, here, the plaintiff. Accordingly, unless otherwise noted, the following facts are taken from Deniz Bolbol's Declaration. Docket No. 42 (Bolbol Dec.).¹

Plaintiff, Deniz Bolbol (“Bolbol”), is a member of Citizens for Cruelty–Free Entertainment (“CCFE”), a San Francisco Bay Area group dedicated to the humane treatment of animals and educating the public about the abuse and mistreatment of animals. As a member of this group, Bolbol holds signs and banners offering information to the general public about the treatment of animals used by circuses. Bolbol also videotapes the treatment of circus animals as a means of educating the public about the abuse and mistreatment of animals by the circus.

The Cow Palace is a performance facility owned by the State of California and operated by No. 1–A District Agricultural Association (“the Association”). Docket No. 69 (Joint Statement of Undisputed Facts (“JSUF”)) at 1. In September 2008, the Carson and Barnes Circus (“the Circus”) rented out the Upper Parking Lot of the Cow Palace pursuant to a License Agreement (“License Agr.”), Docket No. 35–3 (Drake Dec.), Exh. B (License Agr.), and First Amendment Policy (“Policy”), Docket No. 35–3 (Drake Dec.), Exh. C (Policy). According to the Policy in effect in 2008, an entire Cow Palace parking lot could be rented to a promoter or vendor to develop revenue. JSUF at 1. The Circus contracted to perform in the Cow Palace's Upper Parking Lot from September 12, 2008 through September 14, 2008. License Agr. ¶ 1. The Circus pitched its big top tent in the Upper Parking Lot of the Cow Palace itself as opposed to occupying the brick and mortar structure of the Cow Palace. License Agr. ¶ 2.

On September 12, 2008, Bolbol and Mark Ennis (“Ennis”), also a member of CCFE, went to the Cow Palace to distribute leaflets to the Circus' patrons and to videotape the animals at the Circus. Upon their arrival, Bolbol and Ennis proceeded to distribute their informational leaflets to patrons in and around the Circus' tent and to videotape some of the Circus' animals. At some point during the evening, Bolbol and Ennis were approached by employees of the Circus, who wanted to comment on Bolbol and Ennis' opposition to the use of animals in circus entertainment. The Circus' employees took Bolbol and Ennis to the back of the big top tent where Bolbol noticed the Circus' elephants within 15 feet of her. Bolbol also noticed that the area surrounding the tent was barricaded.

Pursuant to Bolbol and Ennis' interaction with the Circus' employees, the Daly City Police Department was summoned at some point, and an officer arrived upon the scene. Bolbol asked the officer if the barricades were legal because she wanted to access the area in order to videotape the condition and treatment of the animals used by the Circus. The officer summoned a supervisor to the scene and shortly thereafter, Officer Griggs of the DCPD arrived. After some discussion, Officer Griggs suggested that the barricade could be placed more appropriately in order to accommodate both sides. Docket No. 41 (Leigh Dec.), Exh. E (Griggs Depo.) at 121:5–8. Bolbol and Ennis walked away from the conversation with a belief that they could legally access the area surrounding the tent and behind the barricades in order to engage in their speech activity. For the remainder of the evening, Bolbol and Ennis went beyond the barricades and videotaped the animals.

On September 13, 2008, Bolbol and Ennis returned to the Cow Palace to continue to engage in their speech activity, including to videotape the Circus' handling and the condition of the animals. Bolbol once again noticed the barricades and concluded that the Circus had not placed them in accordance with her perception of Officer Griggs' directions from the previous night. Rather, the barricades cut off from public access more territory surrounding the Circus' tent than had been accorded the previous night pursuant to Officer Grigg's directions. Nonetheless, as they had done the night before without incident, Bolbol and Ennis went beyond the barricades, which cut off public access to a large swath of the Upper Parking Lot, in order to continue filming the animals. Once again, Bolbol and Ennis were confronted by some of the Circus' employees, who attempted to interrupt Bolbol and Ennis' attempts to videotape the animals.

On September 13, 2008, Officer Kranz was on patrol and responded to a call for assistance at the Cow Palace from Christine Hanley, Lead Humane Investigator. Docket No. 35–10 (Hanley Dec.) ¶ 11. When Kranz arrived at the Cow Palace, the Cow Palace Event Coordinator, Valery Ann Luxamana (“Luxamana”), informed him that there were animal rights protesters behind the Circus' tent in an area that was not open to the public. Docket No. 41 (Leigh Decl.), Exh. D (Kranz Depo.) 39–41. Luxamana also told Kranz that the protesters were not authorized to be there. Kranz Depo. at 41. The Cow Palace's Rentals & Operations Officer, Diana Colvin, confirmed this information and escorted Kranz in a golf cart to the area in question behind the Circus' tent. Kranz Depo. at 40.

Bolbol and Ennis were still engaged with the Circus' employees when Bolbol noticed an electric vehicle drive behind a truck near to where she and Ennis stood. Officer Kranz stepped down from that vehicle. Officer Kranz was in full uniform, but he did not identify himself as a police officer. Kranz immediately advanced upon Ennis physically without first attempting to engage Ennis or Bolbol verbally. A tussle ensued between Ennis and Kranz during which time the two struggled with the unipod camera that Ennis carried. Ennis broke away from the struggle, and Kranz next advanced upon Bolbol. Subsequently, Kranz and Bolbol became engaged in a physical confrontation. The two ended up against the electric vehicle, at which time Kranz took hold of Bolbol's hand that held the camera and began to hit the hand against the vehicle. As a result, the battery fell out of Bolbol's camera. Kranz then held Bolbol's hand in a “pain-compliance” hold for approximately 15–20 minutes until additional DCPD officers arrived on the scene. Upon the arrival of the back-up officers, Bolbol was then handcuffed and placed in the back of a DCPD police car for approximately 45 minutes. Bolbol complained of injuries to her finger, and a paramedic was summoned to treat her hand. Incident to this detention, Officer Kranz seized Bolbol's belongings, including a video camera and battery, a video camera unipod, one unused videotape, one used videotape containing, inter alia, Bolbol's recordings from the day and one cell phone. Bolbol was taken to the DCPD and kept there for approximately 2–3 hours. When she was released, she was not given a receipt for the seized belongings.

Plaintiff filed a Complaint on May 4, 2009, alleging twelve causes of action and seeking compensatory damages, injunctive and declaratory relief, civil penalties and punitive damages. Docket No. 1 (Complaint). Specifically, the complaint alleges: (1) a violation of 42 U.S.C. § 1983 based on a violation of plaintiff's First Amendment right to free speech; (2) a violation of plaintiff's state Liberty of Speech rights pursuant to Art. 1, Section 2(a) of the California constitution; (3) a violation of 42 U.S.C. § 1983 based on a violation plaintiff's right against unlawful seizure under the Fourth Amendment; (4) a violation of plaintiff's right against unlawful seizure under Art. 1, Section 13 of the California constitution; (5) a violation of plaintiff's right against false arrest/false imprisonment as defined by California Penal Code § 236; (6) a violation of 42 U.S.C. § 1983 based on a violation of the Equal Protection Clause of the 14th Amendment; (7) a violation of plaintiff's rights under California's Equal Protection Clause, Art. 1, Section 7(a); (8) a violation of California Penal Code § 4003; (9) a violation of 42 U.S.C. § 1983 based on a violation of plaintiff's rights against excessive force under the Fourth Amendment; (10) a violation of 42 U.S.C. § 1983 based on a violation of plaintiff's right against illegal seizure of property under the Fourth Amendment; (11) a violation of California Civil Code § 51.7; and (12) a violation of California Civil Code § 52.1. The defendants now move for summary judgment, or in the alternative, partial summary judgment as to all actions.

LEGAL STANDARD

Summary judgment may be granted only when, drawing all inferences and resolving all doubts in favor of the non-moving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P....