White v. City of Laguna Beach, Case No. SACV 08-1109 JVS (RNBx).

• Decision Date: 12 January 2010
• Docket Number: Case No. SACV 08-1109 JVS (RNBx).
• Court: U.S. District Court — Central District of California
• Parties: Jeffrey WHITE, Plaintiffs, v. CITY OF LAGUNA BEACH, et al., Defendants.

679 F.Supp.2d 1143

Jeffrey WHITE, Plaintiffs,
v.
CITY OF LAGUNA BEACH, et al., Defendants.

Case No. SACV 08-1109 JVS (RNBx).

United States District Court, C.D. California.

January 12, 2010.

679 F. Supp.2d 1147

Allison Kristine Aranda, Life Legal Defense Foundation, Temecula, CA, Michael Millen, Michael Millen Law Offices, Los Gatos, CA, for Plaintiff.

Jennifer J. Farrell, Mark Jason Austin, Philip D. Kohn Esq., Robert S. Bower, Rutan and Tucker LLP, Costa Mesa, CA, for Defendants.

ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT

JAMES V. SELNA, District Judge.

Plaintiff Jeffrey White ("White") moves for summary judgment pursuant to Federal

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Rule of Civil Procedure 56. Defendants City of Laguna Beach, City of Laguna Beach Police Department, and Officer A. Peck (collectively, "Defendants") cross-move for summary judgment.

I. Background

The basic factual details in this case are undisputed. Mr. White is the founder and president of an organization called Survivors of the Abortion Holocaust ("Survivors")(White Depo. 132:5-10, 133:8-9.) Around fifty members of the Survivors, including Mr. White, participated in a demonstration at Main Beach Park in Laguna Beach, California on Saturday, July 7, 2007 at approximately 3:30 pm. (Id. 197:3-6; Nov. 20 Peck Decl. ¶¶ 3-4.) This date was in the middle of the Fourth of July weekend.¹ The demonstrators, including Mr. White, stood on the sidewalk and held signs that measured approximately four-feet wide by five-feet tall at an angle that was perpendicular to the street. (Nov. 20 Peck Decl. ¶ 4; Complaint ¶¶ 2, 14.) Officer Peck approached some of the individual demonstrators and was directed to speak with White, who was overseeing the demonstration. (Nov. 20 Peck Decl. ¶ 7.) Officer Peck, along with two other officers, then approached White to discuss the blocking of the sidewalk. (Id. ¶¶ 8-9; Defs.' Mot. Br., Ex. D.) Officer Peck suggested to White that the group move to a grassy area next to the sidewalk approximately three to five feet away from where they were currently standing alongside the street curb. (Nov. 20 Peck Decl. ¶ 9.) White declined to cooperate with Officer Peck's suggestion. (Id. ¶ 11.) Officer Peck took White's driver's license and issued him a citation for violating Laguna Beach Municipal Code ("L.B.M.C.") section 10.10.060.² (White Depo. 261:24-25; Nov. 20 Peck Decl. ¶ 11.)

II. Legal Standard

Summary judgment is appropriate only where the record, read in the light most favorable to the nonmoving party, indicates that "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c): see also Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary adjudication, or partial summary judgment "upon all or any part of a claim," is appropriate where there is no genuine issue of material fact as to that portion of the claim. Fed.R.Civ.P. 56(a), (b); see also Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n. 3 (9th Cir.1981) ("Rule 56 authorizes a summary adjudication that will often fall short of a final determination, even of a single claim ...." (internal quotation marks omitted)).

Material facts are those necessary to the proof or defense of a claim, and are determined by reference to substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all

679 F. Supp.2d 1149

other facts immaterial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. A fact issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson. 477 U.S. at 248, 106 S.Ct. 2505. To demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... The nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks and citations omitted). In deciding a motion for summary judgment, "the evidence of he nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D.Cal.1985), aff'd, 810 F.2d 898, 902 (9th Cir.1987).

The burden initially is on the moving party to demonstrate an absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. If the moving party meets its burden, then the nonmoving party must produce enough evidence to rebut the moving party's claim and create a genuine issue of material fact. See id. at 322-23, 106 S.Ct. 2548. If the nonmoving party meets this burden, then the motion will be denied. Nissan Fire & Marine Ins. Co. v. Fritz Co., Inc., 210 F.3d 1099, 1103 (9th Cir.2000). Where the parties have made cross-motions for summary judgment, the Court must consider each motion on its own merits. Fair Hous. Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The Court will consider each party's evidentiary showing, regardless of which motion the evidence was tendered under. See id. at 1137.

III. Discussion

White has brought claims under 42 U.S.C. § 1983 and California Civil Code section 52.1, alleging that Defendants violated his First Amendment and Fourth Amendment rights, as well as the analog rights under the California Constitution. White has also brought a false arrest/imprisonment claim. The Court considers each claim below.

A. First Amendment

The parties dispute the nature of White's First Amendment claim. Defendants primarily characterize it as a claim that Officer Peck retaliated against White by citing him under L.B.M.C. section 10.10.060. White suggests that he is not bringing a retaliation claim at all: "This was not `retaliation' but rather a direct violation of plaintiffs First Amendment activity." (Pl.'s Opp'n Br. 15.) White, however, goes on to argue that there is evidence of retaliation. (Id. 15-16.) White's Complaint does not clarify the matter. The Court interprets White's suggestion that Defendants' actions were a "direct violation" of the First Amendment to indicate that he is bringing either a facial or as-applied challenge to L.B.M.C. section 10.10.060. The Court will also address retaliation, despite White's contradictory stance.

1. Retaliation

"To demonstrate retaliation in violation of the First Amendment, White must ultimately prove first that Officer Peck took action that `would chill or silence a person of ordinary firmness from future First Amendment activities.'" Skoog v. County of Clackamas, 469 F.3d 1221, 1231-32 (9th Cir.2006) (quoting Mendocino

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Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir.1999)). "The second requirement is that ... White must ultimately prove that Officer Peck's desire to cause the chilling effect was a but-for cause of Officer Peck's action." Id. at 1232. Defendants argue that White cannot establish a retaliation claim because there is no evidence that Officer Peck had a desire to chill White's First Amendment activities. The Court agrees.

Officer Peck's behavior at the scene of the demonstration does not indicate any intent to chill White's First Amendment activities. On the contrary, Officer Peck explained to those people complaining about the content of the Survivors' signs that the demonstrators had a First Amendment right to express their views, as long as they did so without blocking pedestrian traffic. (Nov. 20 Peck Decl. ¶ 6.) He also told White that he had no problem with the Survivors expressing their First Amendment rights and that he personally agreed with their anti-abortion views. (Defs.' Mot. Br., Ex. D.) Additionally, Officer Peck suggested to White that the demonstrators would be free to continue their First Amendment activities if they moved a few feet off the sidewalk to an area where they would not be blocking pedestrian traffic. (Id.; Nov. 20 Peck Decl. ¶ 9.) White has not presented any evidence that would suggest that Officer Peck was actually motivated by a desire to chill White's First Amendment activities when he issued the citation. Moreover, White admitted at his deposition that he did not know what motivated Officer Peck to issue the citation (White Depo. 296:11-19), and that he did not believe that Officer Peck issued the citation because he harbored any disagreement with White's message (id. 333:8-12).

The only evidence of retaliatory motive cited by White is a statement by Officer Peck's superior, Sergeant Calvert, who told White that police response would be slow because of the limited resources of Laguna Beach in the event violence was directed at the Survivors. (Supp. White Decl. ¶ 17.) White argues that this statement is evidence of a retaliatory motive: "Given that the police department was less than 2200 feet away from plaintiff's location, the threat strongly suggested that Calvert would cause the response to be slow because of his distaste for plaintiffs message." (Pl.'s Opp'n Br. 16.) This evidence does not show any motive on the part of Officer Peck, Sergeant Calvert is not a named Defendant in this case, and there is no claim that a slow response to violence against demonstrators was an official policy or custom of the municipal entity Defendants. See Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Additionally, the Court disagrees with White's assertion that Sergeant Calvert's statement strongly suggests that Calvert had...