1 2
8 IN THE UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
11 MATTHEW ALAN HEARN, CASE NO. 1:22-cv-00668-CDB
12 Plaintiff, ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT 13 v. (Doc. 53) 14 CITY OF BAKERSFIELD, et al., ORDER GRANTING PLAINTIFF’S MOTION TO 15 Defendants. ALLOW FOR LATE FILED OPPOSITION
16 (Doc. 57)
17 ORDER DENYING AS MOOT EX PARTE APPLICATION TO SHORTEN NOTICE PERIOD 18 ON PLAINTIFF’S MOTION TO ALLOW FOR LATE FILED OPPOSITION 19 (Doc. 58) 20 21 22 Pending before the Court is the motion of Defendants City of Bakersfield, Christian Walter 23 Hernandez V, and Nathan A. Anderberg (“City Defendants”) for partial summary judgment, filed on 24 April 11, 2024. (Doc. 53), Plaintiff Matthew Alan Hearn’s motion to allow for late filed opposition and 25 an ex parte application for an order shortening time for notice on a motion to allow a late filed 26 opposition. (Docs. 57-58), and the parties’ oppositions thereto (Docs. 56, 60).1 For the reasons set forth 27
1 Following the parties’ expression of consent to the jurisdiction of a United States Magistrate 28 Judge for all purposes, this action was reassigned to Magistrate Judge Christopher D. Baker pursuant to 1 herein, City Defendants’ motion for partial summary judgment shall be GRANTED IN PART, 2 Plaintiff’s motion to allow for late filed opposition shall be GRANTED, and Plaintiff’s motion to 3 shorten time shall be DENIED AS MOOT. 4 Factual Background2 5 In or around September 7, 2020, the Bakersfield Police Department (“BPD”) gang unit, in 6 conjunction with the Kern County Probation Department, was engaged in a “sit op.” (Doc. 53-2, Joint 7 Statement of Undisputed Material Facts “JSUF” at ¶ 3). The sit op “essentially [looks] for gang 8 members that may have probation or parole status and [makes] sure they are in compliance and not in 9 possession of any type of contraband.” Id. As a result of these sit ops, BPD stopped numerous vehicles. 10 Id. 11 On September 7, 2020, at approximately 7:36 p.m., Defendant Christian Walter Hernandez V 12 (“Hernandez”), a BPD Detective, was driving a marked BPD patrol vehicle northbound on Chester, 13 approaching Columbus. Id. at ¶ 1. Defendant Samantha Jauch (“Jauch”), a Kern County Probation 14 Officer, was riding as the front seat passenger of the vehicle. Id. at ¶ 2. The area that Hernandez and 15 Jauch were in was “known for the East Side Crips criminal street gang.” (Doc. 53-3, City Defendants’ 16 Separate Statement of Material Facts, “DSMF” at ¶ 1; Doc. 53-8 at ¶ 2). 17 Hernandez and Jauch observed a black 2021 Camaro, driven by Plaintiff, traveling northbound 18 on Chester at an excessive speed, as much as 15 miles per hour over the speed limit. (JSUF at ¶¶ 4-6). 19 The Camaro was maneuvering around other vehicles and forcing vehicles to slam on their brakes. Id. at 20 ¶ 4. Hernandez activated his lights and sirens to initiate a traffic stop in light of Plaintiff’s reckless 21 driving, speeding, and failure to signal. Id. at ¶ 7. Hernandez attests he believed that the Camaro might 22 be trying to get away from a crime that the occupant had committed as the vehicle was traveling 23 erratically at a high rate of speed. (DSMF at ¶ 1; Doc. 53-8 at ¶ 2). Hernandez was unable to run the 24 plate of the Camaro because the vehicle had a temporary tag. (JSUF at ¶ 9). 25
26 28 U.S.C. § 636(c)(1). (Doc. 40). 27 2 As it must on a motion for summary judgment, the Court sets forth the material facts and draws all reasonable inferences in the light most favorable to Plaintiff, the non-moving party. See Scott v. 28 Harris, 550 U.S. 372, 387 (2007). 1 When Plaintiff pulled over, Hernandez and Jauch both exited the patrol vehicle. Id. at ¶ 8. 2 Hernandez and Jauch attest they could hear loud music coming from the Camaro. (DSMF at ¶¶ 2-3). 3 As Hernandez approached the driver’s side of the vehicle, he asked Plaintiff to turn the radio down to 4 facilitate easier communication and for officer safety purposes. (JSUF at ¶ 10). Plaintiff did not turn his 5 music down and instead used profanity to tell Hernandez that he could not tell him to turn his music 6 down. See id. at ¶¶ 11-12 (“[Plaintiff] admits that he had music playing ‘the way the f—k he wants to’ 7 and contends he did not have to turn his music down despite [Hernandez’s] request to do so.”). Plaintiff 8 asserts he responded appropriately to Hernandez’s communications with him. (Doc. 56-1, Plaintiff’s 9 Response to City Defendants’ Statement of Undisputed Facts, “PR” at ¶ 2). 10 Hernandez attests he believed it would be safer for him and Jauch for Plaintiff to exit the 11 vehicle based on Plaintiff’s “immediate hostility” and the fact that the vehicle had not been searched for 12 weapons. (DSMF at ¶ 4). Hernandez directed Plaintiff out of the vehicle. (JSUF at ¶ 13). Plaintiff 13 responded that he did not have to get out of the vehicle. Id. Hernandez attests he put Plaintiff in a 14 control hold and escorted him out of the vehicle. (DSMF at ¶ 5). Plaintiff contends Hernandez forced 15 him out of the vehicle without giving him sufficient time to unbuckle his seat belt or exit on his own. 16 (PR at ¶¶ 4-5). 17 Hernandez placed Plaintiff in handcuffs and escorted him to the backseat of the patrol vehicle. 18 (DSMF at ¶ 6). Plaintiff alleges he was told he was under arrest when he was originally handcuffed or 19 after being placed in the back seat of the patrol vehicle. (PR at ¶¶ 6, 9). Once Plaintiff was placed in the 20 back of the patrol vehicle, he continued to yell obscenities and began kicking the police door. (JSUF at 21 ¶ 14; DSMF at ¶ 7). Hernandez asserts that Plaintiff kicked the door that he was holding such that it hit 22 him and caused pain in his elbow. (DSMF at ¶ 7). Jauch claims when she got back in the patrol vehicle, 23 she felt Plaintiff spit on her. Id. at ¶ 8. Jauch left the vehicle and advised Hernandez and Defendant 24 Sergeant Nathan A. Anderberg (“Anderberg”) that Plaintiff had spit on her. (JSUF at ¶ 15). 25 At some point, Hernandez contends he decided to place Plaintiff under arrest for violation of 26 Penal Code §§ 69 (resisting executive officers) and 148 (resisting public or peace officers or emergency 27 medical technicians in discharge of their duties). (DSMF at ¶ 9). Hernandez contacted Anderberg, his 28 direct supervisor, for approval to arrest Plaintiff and also because Plaintiff wanted to speak with a 1 supervisor. (JSUF at ¶ 17; DSMF at ¶ 20). Thereafter, Anderberg responded to the scene. (JSUF at ¶ 2 18). When Anderberg arrived, Plaintiff was still in the back seat of the patrol vehicle and Anderberg 3 could hear Plaintiff yelling from inside the vehicle. Id. Anderberg sought to conduct a use of force 4 interview. (DSMF at ¶ 20). Anderberg spoke with Hernandez regarding the nature of the stop and what 5 had taken place. (JSUF at ¶ 20). Anderberg also “attempted to speak with [Plaintiff] but found it 6 difficult due to [Plaintiff’s] refusal to listen to what [he] had to say.” Id. at ¶ 21. At some point, 7 Plaintiff’s vehicle was towed away from the scene. Id. at ¶ 16. Plaintiff alleges City Defendants 8 unlawfully searched, seized, and impounded his vehicle. (Doc. 32 at ¶¶ 117-20, 124-29). 9 In light of Plaintiff’s conduct, Hernandez and Anderberg determined Plaintiff should be 10 evaluated to assess whether he was under the influence. (JSUF at ¶ 22). Hernandez requested that 11 Officer Andrew Shive (“Shive”), a traffic officer, respond to the scene to perform a sobriety test. Id. at ¶ 12 23. When Shive arrived, he did not feel comfortable performing a field sobriety test given Plaintiff’s 13 “irrational behavior and the proximity to the road.” Id. at ¶ 24. Shive asked Plaintiff if he would be 14 willing to consent to a blood draw to determine if he was under the influence of a narcotic. (Doc. 53-10 15 at ¶ 2). Plaintiff consented to the request. Id. 16 Hernandez and Jauch transported Plaintiff to Kern Medical Center (“KMC”) so that Plaintiff 17 could be evaluated for being under the influence. (DSMF at ¶ 11). Upon Plaintiff’s arrival at KMC’s 18 parking lot, Shive observed Plaintiff and felt that he was simply irate and was not under the influence. 19 (DSMF at ¶ 12; Doc. 53-5 at 27). Hernandez and Jauch then transported Plaintiff to the Central 20 Receiving Facility to be booked. (JSUF at ¶ 25). Plaintiff “continued to be extremely irate cursing and 21 calling Hernandez foul names.” Id. at ¶ 26. Plaintiff refused to allow nurses at the facility to take his 22 vitals, “cursing incessantly,” and stating, “he would not calm down until he had a blood draw or 23 Breathalyzer test.” Id. at ¶ 27. Thereafter, Hernandez and Jauch transported Plaintiff back to KMC to 24 be medically cleared. Id. at ¶ 28. 25 At KMC, Plaintiff continued yelling profanities. Id. at ¶ 29. Hernandez escorted Plaintiff to 26 KMC’s Serenity Room so that other patients did not have to hear him yelling. Id. at ¶ 30. Inside the 27 Serenity Room, “[Plaintiff’s] head went toward [Hernandez] as though [Plaintiff] intended to head butt 28 [Hernandez].” (DSMF at ¶ 13). Hernandez managed to block Plaintiff and push him away. (JSUF at ¶ 1 31). Plaintiff fell on the ground on his stomach and Hernandez attempted to use his body weight to 2 restrain Plaintiff. (JSUF at ¶ 31; DSMF at ¶ 31; Doc. 53-5 at 34-35). BPD Officer Alex Romo 3 (“Romo”) came into the room and assisted Jauch in attempting to control Plaintiff’s legs because he was 4 kicking. (DSMF at ¶¶ 14-15). Plaintiff alleges at some point “[a]fter a chemical test, Hernandez pushed 5 him into a wall while moving him to another room. (Doc. 32 at ¶ 30). Later, Plaintiff was medically 6 cleared and was transported back to the Central Receiving Center where he was taken into custody. 7 (DSMF at ¶ 16). Plaintiff claims “[t]he arrest without probable cause, excessive force and the conduct 8 of [Hernandez] and others caused [him] to suffer a psychotic break and/or [post-traumatic stress 9 disorder] symptoms.” (PR at ¶ 12). 10 Plaintiff was charged in state court with (1) reckless driving in violation of Vehicle Code § 11 23101(A); (2) obstructing/resisting a police officer in violation of Penal Code § 148(a)(1); (3) battery on 12 a police officer in violation of Penal Code § 243(B); (4) battery on a peace officer in violation of Penal 13 Code § 243(B); (5) unsafe turn and/or without signaling in violation of Vehicle Code § 22107; and (6) 14 unsafe speed in violation of Vehicle Code § 22350. (DSMF at ¶ 17; Doc 56-1 at ¶ 17). Plaintiff was 15 acquitted of all charges. Id. 16 Procedural History 17 On December 14, 2021, Plaintiff filed a complaint for declaratory judgment, injunctive relief, 18 and monetary damages in the Superior Court of California, County of Kern. (Doc. 1 at 2, 5). Plaintiff 19 raised claims against the following Defendants: (1) the City of Bakersfield; (2) Greg Terry, the Police 20 Chief of BPD; (3) Hernandez; (4); Shive; (5) Romo; (6) T.R. Marickel, the Probation Chief of the 21 County of Kern; and (7) Jauch. Id. at 6. On June 2, 2022, Defendants removed the action to this Court. 22 Id. 23 On February 10, 2023, Plaintiff filed the operative first amended complaint for declaratory 24 judgment, injunctive relief, and monetary damages against the aforementioned Defendants and the 25 County of Kern. (Doc. 32).3 Plaintiff raises the following claims: (1) battery; (2) false arrest and/or 26 false imprisonment; (3) intentional infliction of emotional distress; (4) negligence; (5) Tom Bane Civil 27 3 Plaintiff’s First Amended Complaint omitted Greg Terry and T.R. Marickel as named 28 Defendants (Doc. 32). 1 Rights Act violation, Cal. Civ. Code § 52.1; (6) Fourth Amendment violation—excessive force; (7) 2 Fourth Amendment violation—municipal and supervisory liability; (8) First Amendment retaliation— 3 traffic stop; (9) Fourth Amendment—unreasonable search and seizure; and (10) Fifth Amendment— 4 unreasonable search and seizure. Id. at 7-21. On April 3, 2024, the parties stipulated to the dismissal of 5 Defendants Shive and Romo with prejudice. (Docs. 51, 52). 6 On April 11, 2024, City Defendants filed the instant motion for partial summary judgment. 7 (Doc. 53). City Defendants seek judgment as a matter of law on Plaintiff’s second, sixth (as to 8 Defendants Anderberg and the City of Bakersfield), seventh, eighth, ninth, and tenth causes of action. 9 Id. In connection with their motion, City Defendants also filed the JSUF, DSMF, a notice of lodging 10 video exhibits, and six declarations. Id. 11 On April 30, 2024, City Defendants filed a statement regarding Plaintiff’s failure to timely file 12 an opposition to their motion for partial summary judgment and requested that the Court grant their 13 motion in its entirety in light of the lack of opposition. (Doc. 54). On May 3, 2024, the Court deemed 14 the motion submitted and suitable for disposition without hearing and oral argument. (Doc. 55). 15 On May 8, 2024, Plaintiff filed a belated opposition to City Defendants’ motion for partial 16 summary judgment. (Doc. 56). Plaintiff argued his “causes of action should survive because lack of 17 probable cause for the arrest cannot justify or excuse later actions.” Id. at 3. Plaintiff argues his “eighth 18 cause of action supports a claim as [his] speech [] was protected and the arrest was without probable 19 cause.” Id. Plaintiff concedes that his sixth cause of action as to Defendants Anderberg and the City of 20 Bakersfield, as well as his seventh and tenth causes of action, are defective. Id. Plaintiff also filed a 21 response to City Defendants’ statement of undisputed material facts. (Doc. 56-1). Plaintiff did not file 22 his own separate statement of material facts. See (Doc. 56). 23 That same day, Plaintiff filed a motion for leave to file his belated opposition to Defendants’ 24 motion for partial summary judgment and an ex parte application for an order shortening time for notice 25 on a motion to allow the late filed opposition. (Docs. 57-58). Plaintiff attached a declaration from his 26 counsel, Phillip W. Gillet, Jr., in support of his motion and application. (Docs. 57-2; 58-1). Later that 27 day, Defendants filed an opposition to Plaintiff’s motion to allow for a late filed opposition. (Doc. 60). 28 1 On May 16, 2024, the Court issued an order deeming the motion to allow for a late filed opposition 2 suitable for disposition without hearing and oral argument. (Doc. 61). 3 Plaintiff’s Motion to Allow for Late Filed Opposition (Doc. 57) 4 Because City Defendants’ motion for partial summary judgment was filed on April 11, 2024, 5 (Doc. 53), Plaintiff was required to file his opposition or statement of non-opposition no later than April 6 25, 2024. Fed. R. Civ. P. 78; Local Rule 230(c). Plaintiff’s Counsel, Mr. Gillet, asserts he believed that 7 the opposition was “due 21 days prior to the hearing on May 21, 2024.” (Doc. 57-2 at ¶ 4).4 Mr. Gillet 8 claims he committed a clerical error and mis-calendared the due date for the opposition to May 6, 2024. 9 Id. at ¶ 5. He further asserts he attempted to gain City Defendants’ consent to allow for a late-filed 10 opposition. Id. at ¶¶ 7-8, 14. Plaintiff argues his counsel’s error amounted to excusable neglect. (Doc. 11 57-1). Plaintiff contends “[g]iven the fact that the court has not yet issued its ruling, the length of delay 12 is short, the potential impact on the plaintiff’s claims is significant, and that the movant acted in good 13 faith, all the Pioneer factors weigh in favor of allowing the late-filed opposition.” Id. at 2-3 (citing 14 Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). 15 In response, City Defendants contend Plaintiff has not offered a plausible excuse for his failure 16 to timely file an opposition and has demonstrated a prior disregard for court rules and procedures. Id. at 17 2-4.5 City Defendants also argue Plaintiff has failed to comply with Local Rule 233 and has failed to 18 demonstrate good faith and, by extension, excusable neglect. Id. at 4-7. 19 Under Federal Rule of Civil Procedure 6(b), when a party fails to timely file a brief, “the court 20 may, for good cause, extend the time” to file such brief “if the party failed to act because of excusable 21 neglect.” Fed. R. Civ, P. 6(b). “Excusable neglect ‘encompasses situations in which the failure to 22 comply with a filing deadline is attributable to negligence,’” and may include “omissions caused by 23 4 Defendants’ motion for partial summary judgment was originally set for hearing before this 24 Court on May 20, 2024. (Doc. 53). 5 The Court takes notice of the following events: (1) on January 23, 2023, the Court issued an 25 order requiring Plaintiff to show cause why sanctions should not be imposed for failing to follow a Court order requiring Plaintiff to file a document memorializing Defendants’ consent to the filing of a 26 first amended complaint as required pursuant to Rule 15(a)(2) (Docs. 22-23); and (2) on September 15, 2023, the Court issued orders to show cause and for sanctions for Plaintiff’s failure to contribute to the 27 parties’ joint status report. (Docs. 45-46). 28 1 carelessness.” Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009) (quoting Pioneer, 507 U.S. 2 at 388, 394). “The determination of whether neglect is excusable ‘is at bottom an equitable one, taking 3 account of all relevant circumstances surrounding the party’s omission.’” Id. (quoting Pioneer, 507 U.S. 4 at 395). In determining whether the neglect was excusable, the Court considers: “(1) the danger of 5 prejudice to the opposing party; (2) the length of delay and its potential impact on the proceedings; (3) 6 the reason for the delay; and (4) whether the movant acted in good faith.” Bateman v. United States 7 Postal Serv., 231 F.3d 1220, 1223 (9th Cir. 2000) (citing Pioneer, 507 U.S. at 395). These factors are 8 not an exclusive list; instead, the Court must consider all relevant circumstances. Briones v. Riviera 9 Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997); Pioneer, 507 U.S. at 395. 10 Plaintiff unquestionably has demonstrated nothing short of carelessness in connection with 11 opposing City Defendants’ motion for summary judgment. Plaintiff’s counsel offers no explanation as 12 to how or why he determined his opposition was due 21 days before the motion hearing date. See Doc. 13 (57-2 at ¶ 4). The applicable local and federal rules set forth the requirements when oppositions are due. 14 Fed. R. Civ. P. 78; Local Rule 230(c). The Court advised Plaintiff’s counsel at the outset of the case to 15 familiarize himself with the Local Rules of the Eastern District of California and to abide by all 16 applicable rules of procedure. (Doc. 42 at 7). Thus, Plaintiff’s failure to adhere to the Court’s rules 17 does not demonstrate good faith. 18 However, the Court is bound to consider all relevant circumstances to determine whether neglect 19 is excusable. The Court finds that Plaintiff did proffer a reasonable basis for failing to file an opposition 20 until May 8, 2024. As Plaintiff mis-calendared his due date (Doc. 57-2 at ¶ 5), he was only notified of 21 his error when City Defendants filed their statement regarding Plaintiff’s failure to timely file an 22 opposition (id. at ¶ 6). The following day, Plaintiff attempted to secure a stipulated agreement to file a 23 late filed opposition. Id. at ¶¶ 7-8, 14. Although counsel for City Defendants acknowledged receipt of 24 Plaintiff’s request, City Defendants did not answer either affirmatively or negatively. See (Doc. 60-1). 25 Shortly after a follow-up communication to counsel for City Defendants, Plaintiff filed his opposition on 26 May 8, 2024. (Doc. 57). 27 As the opposition was filed thirteen days after it was due, the Court finds the length of delay was 28 not substantial. Cf. Linder v. Golden Gate Bridge, Highway & Transp. Dist., No. 14-cv-03861 SC, 2015 1 WL 1778608, at *4 (N.D. Cal. Apr. 17, 2015) (finding a delay of eight days was fairly minor). 2 Additionally, City Defendants do not identify any material prejudice they would suffer were the Court to 3 permit the late-filed opposition, and the Court finds they will not be prejudiced. See (Doc. 60). 4 The Court finds that on balance the Pioneer factors weigh in favor of finding that Plaintiff’s 5 failure to timely file an opposition to City Defendants’ motion for partial summary judgment resulted 6 from excusable neglect. 7 City Defendants’ Motion for Partial Summary Judgment (Doc. 53) 8 A. Legal Standard 9 The “purpose of summary judgment is to pierce the pleadings and to assess the proof in order to 10 see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 11 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is appropriate when there are “no 12 genuine issues as to any material fact and … the moving party is entitled to judgment as a matter of 13 law.” Fed. R. Civ. P. 56(c). A court may grant summary adjudication or partial summary when there is 14 no genuine issue of material fact as to a particular claim or portion of a claim. Id.; see also Lies v. 15 Farell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981). The standards that apply for summary 16 adjudication or partial summary judgment are the same as those for summary judgment. See Fed. R. 17 Civ. P. 56(a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998). 18 The movant has the initial burden of demonstrating that there is no genuine issue as to any 19 material fact and the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 20 U.S. 317, 323 (1986); Washington Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). A 21 genuine issue of material fact exists if the record contains some probative evidence that a reasonable fact 22 finder would return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 23 248 (1986); Wool v. Tandem Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 1987). In ruling on a 24 motion for summary judgment, the court must view the facts and draw reasonable inferences in the light 25 most favorable to the nonmoving party. Scott, 550 U.S. at 378. 26 Once the moving party satisfies its burden, the burden shifts to the non-moving party to show 27 that there are genuine factual issues that properly can be resolved only by a finder of fact. Cal. 28 Architectural Bldg. Prods. Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1446, 1468 (9th Cir. 1987) 1 (citing Anderson, 477 U.S. at 250). The non-moving party cannot “rest upon the mere allegations or 2 denials of [its] pleading but must instead produce evidence that sets forth specific facts showing that 3 there is a genuine issue for trial.” Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 4 2008) (internal citations omitted); Fed. R. Civ. P. 56(c)(1); Matsushita Elec., 475 U.S. at 586 n.11. The 5 non-moving party must “show more than the mere existence of a scintilla of evidence.” In re Oracle 6 Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Anderson, 477 U.S. at 252); Addisu v. Fed 7 Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). However, the non-moving party is not required to 8 establish a material issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute 9 to be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. 10 Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 11 In deciding a motion for summary judgment, the court may consider other materials in the record 12 not cited by the parties, but it is not required to do so. See Fed. R. Civ. P. 56(c)(3); Carmen v. San 13 Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (on summary judgment, “the court 14 has discretion in appropriate circumstances to consider other materials, [but] it need not do so”). 15 B. Discussion 16 City Defendants contend they are entitled to judgment as a matter of law on Plaintiff’s second 17 cause of action for false arrest/false imprisonment, eighth cause of action for violation of the First 18 Amendment – retaliatory traffic stop, and ninth cause of action for violation of the Fourth Amendment – 19 unreasonable search and seizure, as there was probable cause for the traffic stop, detainment, and arrest 20 of Plaintiff. (Doc. 53).6 In opposition, Plaintiff argues Defendants did not have sufficient cause to 21 justify a stop of his vehicle, his playing of music and use of profanity are not crimes, Hernandez had no 22 specific articulable reason to search and seize his vehicle, and he was arrested without probable cause. 23 (Doc. 56 at 2-3). The Court will review Plaintiff’s second, eighth, and ninth claims below in turn. 24 / / / 25 / / / 26
27 6 As Plaintiff concedes that his sixth (as to Defendants Anderberg and the City of Bakersfield), seventh, and tenth causes of action are deficient (Doc. 56 at 3), the Court shall grant City Defendants’ 28 motion for summary judgment as to all three claims without further discussion. 1 1. False Arrest/False Imprisonment 2 The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, 3 papers, and effects, against unreasonable searches and seizures[.]” U.S. Const. Amend. IV. The 4 “[t]emporary detention of individuals during the stop of an automobile by the police, even if only for a 5 brief period and for a limited purpose, constitutes a ‘seizure’” within the meaning of the Fourth 6 Amendment. Whren v. United States, 517 U.S. 806, 809-10 (1996); see Brendlin v. California, 551 U.S. 7 249, 255 (2007) (“The law is settled that in Fourth Amendment terms a traffic stop entails a seizure of 8 the driver.”). Thus, an automobile stop is “subject to the constitutional imperative that it not be 9 ‘unreasonable’ under the circumstances.” Whren, 517 U.S. at 810. 10 To satisfy the Fourth Amendment, an officer must have “reasonable suspicion” of criminal 11 activity to initiate a traffic stop. Price v. Kramer, 200 F.3d 1237, 1248 (9th Cir. 2000); see United 12 States v. Lopez-Soto, 205 F.3d 1101, 1104 (9th Cir. 2000) (finding the standard is lower than “probable 13 cause” and analogous to the one set forth in Terry v. Ohio, 392 U.S. 1 (1968)). “Reasonable suspicion 14 supported by articulable facts that criminal activity ‘may be afoot’ will sustain an investigative stop.” 15 Haynie v. Cnty. of Los Angeles, 339 F.3d 1071, 1075 (9th Cir. 2003) (citing United States v. Sokolow, 16 490 U.S. 1, 7 (1989)). Courts look to the totality of the circumstances to “see whether the officer had a 17 ‘particularized and objective basis’ for suspecting criminal activity.” United States v. Colin, 314 F.3d 18 439, 442 (9th Cir. 2002). Typically, the decision to stop an automobile is reasonable “where the police 19 have probable cause to believe that a traffic violation has occurred.” Whren, 517 U.S. at 810. “The fact 20 that the alleged traffic violation is a pretext for the stop is irrelevant, so long as the objective 21 circumstances justify the stop.” United States v. Fowlkes, 804 F.3d 954, 971 (9th Cir. 2015) (citation 22 omitted). 23 Plaintiff argues “[t]he fact that [he] was legally using dealer plates or paper plates on his vehicle” 24 was not a sufficient reason to justify a stop of his vehicle. (Doc. 56 at 3). However, the record reflects 25 Plaintiff was not stopped for using dealer plates or paper plates, but rather, for a host of other reasons. 26 Perhaps most importantly, it is undisputed that Hernandez observed Plaintiff engaging in reckless 27 driving, speeding, and failing to signal. (JSUF at ¶¶ 4, 7). Plaintiff concedes he was speeding well over 28 the posted speed limit. See id. at ¶ 5 (“The Camaro was speeding and driving as much as 15 miles over 1 the speed limit.”); see also (Doc. 56 at 2) (“The stop was simply for speeding 10-15 miles per hour over 2 the speed limit.”). As such, Hernandez possessed at least reasonable suspicion to stop Plaintiff’s vehicle 3 for a traffic violation. E.g., United States v. Lawson, 731 Fed. Appx. 663, 664 (9th Cir. 2018) (“Based 4 upon his observations of Lawson’s speeding and missing license plates, the arresting officer [] had valid 5 grounds to perform the traffic stop. The district court did not clearly err in finding that Williams 6 reasonably perceived Lawson’s traffic infractions …”); United States v. Choudhry, 461 F.3d 1097, 1100 7 (9th Cir. 2006) (“A traffic violation alone is sufficient to establish reasonable suspicion.”). 8 Next, Plaintiff asserts he was forced out of his vehicle and arrested without probable cause. 9 (Doc. 56 at 2-3). Plaintiff brings this claim under California Government Code sections 815.2, and 820, 10 not 42 U.S.C. § 1983. (Doc. 32 at 9-10). Under California law, false imprisonment is the “unlawful 11 violation of the personal liberty of another.” Asgari v. City of Los Angeles, 15 Cal. 4th 744, 757 (1997). 12 “False arrest is but one way of committing a false imprisonment.” Collins v. City & Cnty. of San 13 Francisco, 50 Cal. App. 3d 671, 673 (1975); see Watts v. Cnty. of Sacramento, 256 F.3d 886, 891 (9th 14 Cir. 2001) (under California law, false arrest and false imprisonment are not separate torts; instead, a 15 false arrest is considered a way to commit false imprisonment). 16 To state a claim of false arrest or false imprisonment, a plaintiff must show: “(1) the 17 nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an 18 appreciable period of time, however brief.” Young v. Cnty. of Los Angeles, 655 F.3d 1156, 1169 (9th 19 Cir. 2011) (quoting Easton v. Sutter Coast Hosp., 80 Cal. App. 4th 485, 496 (2000)). Similar to a claim 20 under § 1983, California state law bars civil liability for false arrest where an arresting officer had 21 probable cause to effect the arrest. See Garcia v. Cnty. of Merced, 639 F.3d 1206, 1213 (9th Cir. 2011) 22 (reversing denial of summary judgment on state law false arrest claim where officer defendants had 23 probable cause to arrest plaintiff); see also Jaramillo v. City of San Mateo, 76 F. Supp. 3d 905, 928 24 (N.D. Cal. 2014) (“Courts analyze state false arrest and false imprisonment claims under the same rubric 25 as § 1983 claims based on false arrest under the Fourth Amendment.”). 26 Probable cause is measured by an objective standard based on the information known to the 27 arresting officer. United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) (citing Beck v. Ohio, 379 28 U.S. 89, 91 (1964)); see Hill v. Scott, 349 F.3d 1068, 1072 (8th Cir. 2003) (“[S]ufficient probability, not 1 certainty, is the touchstone of reasonableness under the Fourth Amendment...”). To determine whether 2 an officer had probable cause for an arrest, courts “examine the events leading up to the arrest, and then 3 decide whether these historical facts, viewed from the standpoint of an objectively reasonable police 4 officer, amount to probable cause.” O'Doan v. Sanford, 991 F.3d 1027, 1039 (9th Cir. 2021) (quoting 5 D.C. v. Wesby, 583 U.S. 48, 56-57 (2018) (internal citations and quotation omitted)). 6 The parties disagree as to the precise moment Plaintiff’s arrest took place. City Defendants 7 assert “Hernandez decided to place [Plaintiff] under arrest for assaulting him and [Jauch] in violation of 8 Penal Code 69 and 148.” (Doc. 53-1; DSMF at ¶ 9). Plaintiff claims he was told he was under arrest by 9 Hernandez when originally handcuffed and first placed in the back of the patrol vehicle. (PR at ¶¶ 6, 9); 10 Cf. United States v. Juvenile (RRA-A), 229 F.3d 737, 743 (9th Cir. 2000) (“[W]e conclude that [her] 11 handcuffing was the clearest indication that she was no longer free to leave and therefore find it to be the 12 point of arrest.”). But viewing the evidence in the light most favorable to Plaintiff and drawing all 13 reasonable inferences in his favor, a reasonable jury could not find that Hernandez lacked probable 14 cause to arrest Plaintiff when he handcuffed him. 15 First, Hernandez had probable cause to arrest Plaintiff based on his observation of Plaintiff’s 16 numerous traffic violations. In Atwater v. City of Lago Vista, the Court held that “if an officer has 17 probable cause to believe that an individual has committed even a very minor criminal offense in his 18 presence, he may, without violating the Fourth Amendment, arrest the offender.” 532 U.S. 318, 354 19 (2001). Likewise, under California law, “[a] warrantless arrest by a peace officer for a misdemeanor is 20 lawful only if the officer has reasonable cause to believe the misdemeanor was committed in the 21 officer’s presence.” Johanson v. Dep't of Motor Vehicles, 36 Cal. App. 4th 1209, 1216 (1995) (citing 22 Cal. Penal Code § 836(a)(1)). As discussed above, Hernandez observed Plaintiff engage in reckless 23 driving, speeding, and failure to signal. (JSUF at ¶ 7). Thus, Hernandez had reasonable cause to arrest 24 Plaintiff for violations of California Vehicle Code § 23103 (reckless driving), § 22108 (duration of 25 signal), and § 22350 (basic speed law). 26 Although a closer call and not essential to the Court’s determination that officers had probable 27 cause to compel Hernandez to exit his vehicle and arrest him for the traffic violations, Hernandez also 28 had probable cause to arrest Plaintiff based on Plaintiff’s violation of California Penal Code § 148. The 1 crime of obstructing a police officer, Cal. Penal Code § 148(a)(1), permits fines and imprisonment of a 2 person who “willfully resists, delays, or obstructs” a police officer “in the discharge or attempt to 3 discharge any duty of his or her office or employment.” Cal. Penal Code § 148(a)(1). An arrest under § 4 148(a)(1) requires probable cause to believe the following: (1) the defendant willfully resisted, delayed, 5 or obstructed a peace officer, (2) when the officer was engaged in the lawful performance of his or her 6 duties, and (3) the defendant knew or reasonably should have known that the other person was a peace 7 officer engaged in the performance of his or her duties. People v. Simons, 42 Cal. App. 4th 1100, 1108- 8 09 (1996); Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005). 9 City Defendants argue there was probable cause to arrest Plaintiff for violating § 148(a)(1) as he 10 refused to step out of his vehicle. (Doc. 53-1 at 21). The record demonstrates Hernandez attempted to 11 engage with Plaintiff and asked him to turn the radio down to facilitate easier communication and for 12 officer safety purposes. (JSUF at ¶ 10). In response, Plaintiff “used profanity” and refused Hernandez’s 13 request. Id. at ¶¶ 11-12. “Based on [Plaintiff’s] immediate hostility and the fact that the vehicle had not 14 been searched for weapons, [Hernandez] believed it would be safer for him and for [Jauch] for 15 [Plaintiff] to get out of the vehicle.” (DSMF at ¶ 4). Hernandez then directed Plaintiff out of the 16 vehicle, but Plaintiff responded he did not have to get out of the vehicle. (JSUF at ¶ 13). Thereafter, 17 Plaintiff claims he was arrested after he was removed from the vehicle. (PR at ¶¶ 6, 9). 18 Ninth Circuit case law is clear that “[e]ven [] crass and inarticulate, verbal challenges to the 19 police are protected” and alone cannot support an arrest under § 148. Mackinney v. Nielsen, 69 F.3d 20 1002, 1007 (9th Cir. 1995) (citing Duran v. Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990)); see Johnson 21 v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1174 (9th Cir. 2013) (“[E]ven though the police may 22 dislike being the object of abusive language, section 148 does not allow them to use the awesome power 23 which they possess to punish individuals for conduct that is not only lawful, but which is protected by 24 the First Amendment.”) (internal quotation marks omitted). It is also clear that § 148 does not 25 criminalize a person’s failure to respond with alacrity to police orders. People v. Quiroga, 16 Cal. App. 26 4th 961, 966 (1993). By contrast, § 148 does criminalize complete failure to comply with police orders. 27 See Davis v. Cnty. of San Bernardino, No. EDCV 08-1262 SVW (SSx), 2009 WL 3838287, at *6 (C.D. 28 Cal. Nov. 13, 2009), aff’d, 442 Fed. Appx. 300 (9th Cir. 2011) (emphasis added). 1 Plaintiff claims Hernandez forced him out of the vehicle without giving him sufficient time to 2 unbuckle his seat belt or exit on his own. (PR at ¶¶4-5; Doc. 56 at 3). A mere delay coupled with 3 eventual compliance of the order cannot amount to a violation of § 148. See Mackinney, 69 F.3d at 1006 4 (no violation of section 148 when plaintiff refused to comply for a few seconds); Kantz v. Brantingham, 5 No. 3:16-cv-00352-LRH-VPC, 2017 WL 3079844, at *4 (D. Nev. July 19, 2017) (no violation of statute 6 “materially identical” to Cal. Pen. Code § 148 even when plaintiff took approximately 30 seconds to go 7 to the bumper of her car); In re Chase C., 243 Cal. App. 4th 107, 118 (2015) (finding no violation of § 8 148 where a minor argued with officers and did not initially, but eventually, complied with police); cf. 9 Davis, 2009 WL 3838287, at *6 (“[W]hile mere delay is not criminalized under § 148, outright refusal 10 to comply with police orders falls within the scope of the statute if it impedes the officer in the conduct 11 of his duties.”). 12 The question is whether Plaintiff’s conduct, under all of the facts and circumstances known to 13 Hernandez, would prompt a prudent person to believe it was fairly probable that Plaintiff was attempting 14 to wilfully delay or obstruct officers in their performance of duties – to wit, to complete investigation of 15 Plaintiff’s traffic offenses while providing for their own safety. See United States v. Smith, 790 F.2d 16 789, 792 (9th Cir. 1986) (defining probable cause as “under the totality of circumstances known to the 17 arresting officers, a prudent person would have concluded that there was a fair probability that [the 18 defendant] had committed a crime.”). See also Allen v. City of Los Angeles, 66 F.3d 1052, 1056 (9th 19 Cir. 1995) (“Police officers are entitled to employ reasonable methods to protect themselves and others 20 in potentially dangerous situations.”). 21 Here, the undisputed material facts establish that Plaintiff did not “merely delay” and eventually 22 comply with Hernandez’s order. To the contrary, Plaintiff admits he refused officers’ initial requests 23 that he lower the volume of his music to facilitate their investigatory efforts and swore at officers. 24 (JSUF at ¶¶ 11, 12). Plaintiff also concedes he thereafter refused Hernandez’s directions to get out of 25 the vehicle. Id. at ¶ 13. Plaintiff does not challenge the propriety of the officers’ justification to demand 26 he exit his vehicle – that Plaintiff was hostile at the outset of the traffic stop and it was unknown whether 27 his vehicle harbored weapons – instead, he argues he was not given sufficient time to exit on his own 28 1 accord before being removed from the vehicle. (DSMF at ¶ 4). But where Plaintiff twice affirmatively 2 refused officers’ directions to facilitate their investigation, presented hostility throughout and never 3 signaled any intent of eventually complying with officers’ orders they issued in the discharge of their 4 employment, he cannot now seek relief in arguing that he just needed more time. See Sorgen v. City and 5 Cnty. of San Francisco, No. C 05-03172 TEH, 2006 WL 2583683, at *5 (N.D. Cal. Sep. 7, 2006) 6 (granting summary judgment where the plaintiff “explicitly expressed at all times that had no intention 7 of complying because he believed that he had a right to be where he was. Accordingly, the ‘slow to 8 comply’ doctrine does not apply to this case.”). 9 Accordingly, summary judgment is warranted in favor of City Defendants on Plaintiff’s false 10 arrest/false imprisonment claim because Hernandez had probable cause to effect the arrest. 11 2. First Amendment Retaliation 12 The First Amendment forbids government officials from retaliating against individuals for 13 speaking out. Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010). To state a claim for First 14 Amendment retaliation against a government official, the plaintiff must demonstrate that “(1) he 15 engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the 16 defendant that would chill a person of ordinary firmness from continuing to engage in the protected 17 activity; and (3) there was a substantial causal relationship between the constitutionally protected 18 activity and the adverse action.” Mulligan v. Nichols, 835 F.3d 983, 988 (9th Cir. 2016). 19 A plaintiff raising a First Amendment retaliation claim “must generally ‘plead and prove the 20 absence of probable cause,’ because the presence of probable cause generally ‘speaks to the objective 21 reasonableness of an arrest’ and suggests that the ‘officer’s animus’ is not what caused the arrest.” 22 Ballentine v. Tucker, 28 F.4th 54, 62 (9th Cir, 2022) (quoting Nieves v. Bartlett, 587 U.S. 391, 400-01 23 (2019)). If the plaintiff establishes the absence of probable cause, he also must show that the retaliation 24
25 7 For the assertion he did not have enough time to exit his vehicle, Plaintiff cites video footage of the traffic stop, lodged with the Court and provided by City Defendants to Plaintiff via email as Exhibits 26 A-C. (Doc. 53-4, Ex. A). However, the videos do not present a disputed issue of fact as to whether Hernandez gave Plaintiff sufficient time to voluntarily exit his vehicle. Following the initial exchange 27 between Hernandez and Plaintiff, instead of unbuckling his seatbelt and exiting, Plaintiff looked back toward Hernandez, removed his glasses, pointed them aggressively outside the vehicle window toward 28 Hernandez and accused him of “driving with an attitude.” 1 was a substantial or motivating factor behind the arrest, and, if that showing is made, the defendant can 2 prevail only by showing that the arrest would have been initiated without respect to retaliation. Id. at 63 3 (citing Nieves, at 587 U.S. at 403-04).8 4 Because the Court finds that there was probable cause to arrest Plaintiff based on Hernandez’s 5 observation of Plaintiff’s numerous traffic violations and violation of Cal. Penal Code § 148(a)(1) 6 (supra 13-16), Plaintiff cannot show based on the undisputed facts that his speech was the “but for” 7 cause of his arrest, and therefore, his First Amendment claim cannot succeed as a matter of law. 8 Accordingly, City Defendants are entitled to summary judgment on Plaintiff’s First Amendment claim. 9 3. Fourth Amendment Unreasonable Search and Seizure 10 Plaintiff also raises a Fourth Amendment claim for unreasonable search and seizure. (Doc. 32 at 11 19-20). Specifically, Plaintiff alleges City Defendants unlawfully searched him and searched, seized 12 and impounded his vehicle without a warrant, valid consent, or exigent circumstances. Id. at ¶¶ 117-19. 13 City Defendants assert Plaintiff’s unreasonable search and seizure claim should fail as a matter of law 14 because there was probable cause to arrest Plaintiff. See (Doc. 53-1 at 18-22). In opposition, Plaintiff 15 asserts Hernandez had no “specific articulable reason to need to search the vehicle.” (Doc. 56 at 2). 16 While Plaintiff claims City Defendants unlawfully searched his person, the factual record is 17 devoid of any such search taking place. See generally (JSUF; DSMF; PR). Even if City Defendants had 18 searched Plaintiff’s person, as Plaintiff alleges, such search would be constitutionally permissible. 19 When a lawful arrest is made, it is reasonable for the arresting officers to search “the arrestee’s person 20 and the area within his immediate control.” Davis v. United States, 565 U.S. 229, 232 (2011) (citation 21 and internal quotations omitted); see United States v. Smith, 389 F.3d 944, 950-51 (9th Cir. 2004) (“The 22 search incident-to-arrest exception permits law enforcement officers to conduct a warrantless search of a 23 person who is arrested, and of his surrounding area, when the search is incident to the arrest.”). Thus, 24 25 8 Although a finding of probable cause generally defeats a retaliation claim, a “narrow” 26 exception applies where “officers have probable cause to make arrests, but typically exercise their discretion not to do so.” Nieves, 587 U.S. at 406. This exception applies only “when a plaintiff presents 27 objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Id. Here, Plaintiff has not raised this argument or 28 presented any such evidence to demonstrate the narrow exception applies. 1 because there was probable cause to arrest Plaintiff, a search of Plaintiff’s person would not have 2 violated the Fourth Amendment. 3 Separately, Plaintiff alleges City Defendants searched and impounded his vehicle in violation of 4 the Fourth Amendment. (Docs. 32 at ¶¶ 117-19; 53-5 at 86). Warrantless vehicle searches are 5 presumptively unreasonable unless the search falls within an exception to the warrant requirement. 6 United States v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001); accord Sandoval v. County of Sonoma, 912 7 F.3d 509, 515 (9th Cir. 2018) (citing Brewster v. Beck, 859 F.3d 1194, 1196 (2017)). Likewise, “[t]he 8 impoundment of a vehicle is a seizure within the meaning of the Fourth Amendment” and the burden is 9 on the government to demonstrate that a warrantless seizure falls under one of the “few specifically 10 established exceptions to the warrant requirement.” Miranda v. City of Cornelius, 429 F.3d 858, 862 11 (9th Cir. 2005) (internal quotation marks omitted). 12 City Defendants fail to identify any exception to the Fourth Amendment’s warrant requirement 13 that applies to the search and seizure (impoundment) of Plaintiff’s vehicle. Instead, City Defendants 14 summarily argue that “there was probable cause to arrest [Plaintiff] and as such… [Plaintiff’s] …ninth 15 cause[] of action must be adjudicated.” (Doc. 53-1 at 22). But mere probable cause to arrest the driver 16 of a vehicle does not authorize law enforcement to conduct a search of the vehicle unless, as articulated 17 above, an exception to the warrant requirement applies. 18 Hernandez searched the passenger compartment and trunk of Plaintiff’s vehicle shortly after he 19 handcuffed Plaintiff and secured him in the back of Hernandez’s patrol vehicle. See (Doc. 53-4, Ex. A); 20 see also (JSUF at ¶ 16) (“[Plaintiff] continued to yell while he was inside the patrol vehicle pending the 21 towing of his vehicle.”). Thus, because Plaintiff already was secured in a patrol vehicle before 22 Hernandez searched Plaintiff’s vehicle, the search-incident-to-arrest exception to the warrant 23 requirement does not apply. See United States v. Ruckes, 586 F.3d 713, 718 (9th Cir. 2009) (“Officers 24 are only permitted to search the passenger compartment of an arrestee’s automobile if the search is 25 required for officer safety or is necessary to prevent destruction of evidence of the crime for which the 26 recent occupant was arrested”) (citing Arizona v. Gant, 556 U.S. 332, 341-42 (2009)). 27 28 1 Nor does the automobile exception to the warrant requirement apply because City Defendants 2 failed to present any argument or evidence that there was probable cause to believe that Plaintiff’s 3 vehicle contained evidence of a crime. See United States v. Scott, 705 F.3d 410, 417 (9th Cir. 2012). 4 City Defendants similarly fail to address Plaintiff’s Fourth Amendment claim as it relates to the 5 seizure and impoundment of his vehicle. One exception to the warrant requirement that might apply 6 under the circumstances presented in this case is law enforcement’s authority to seize property when 7 acting in their role as a “community caretaker.” Miranda, 429 F.3d at 863. “In their ‘community 8 caretaking’ function, police officers may impound vehicles that ‘jeopardize public safety and the 9 efficient movement of vehicular traffic.’” Id. at 864 (citing South Dakota v. Opperman, 428 U.S. 364, 10 371, n. 5 (1976)); see Hallstrom v. Garden City, 991 F.2d 1473, 1477, n.4 (9th Cir. 1993) (upholding the 11 towing of a car from a public parking lot following the driver’s arrest pursuant to the community 12 caretaking exception). This exception “does not categorically permit government officials to impound 13 private property simply because state law does.” Sandoval, 912 F.3d at 516. Instead, whether an 14 impoundment is warranted under the community caretaking doctrine depends on the location of the 15 vehicle and the police officer’s duty to prevent it from creating a hazard to other drivers or being a target 16 for vandalism or theft. United States v. Caseres, 533 F.3d 1064, 1075 (9th Cir. 2008). 17 In Miranda, the Ninth Circuit observed that the police’s authority to search and seize property 18 when acting in its role as “community caretaker” has a different source than its authority to search and 19 seize property to investigate criminal activity. 429 F.3d at 863. The reasonableness of a seizure under 20 the “caretaker” function “differs from the bright-line rule concerning probable cause in the criminal 21 context.” Id. Thus, “[a] driver’s arrest, or citation for a non-criminal traffic violation as in this case, is 22 not relevant except insofar as it affects the driver’s ability to remove the vehicle from a location at which 23 it jeopardizes the public safety or is at risk of loss.” Id. 24 The Court declines to manufacture an argument not raised by City Defendants and scour the 25 record to determine whether sufficient undisputed facts exist to conclude as a matter of law that the 26 warrantless seizure and impoundment of Plaintiff’s vehicle was permissible under the community 27 caretaking exception. Accordingly, City Defendants are not entitled to summary judgment on Plaintiff’s 28 Fourth Amendment unreasonable search and seizure claim. 1 || Conclusion 2 For the reasons set forth above, IT IS HEREBY ORDERED: 3 1. Plaintiff's motion to allow a late filed opposition to City Defendants’ motion for partial 4 summary (Doc. 57) is GRANTED; 5 2. Plaintiff's ex parte application for an order shortening time for notice on a motion to 6 allow a late filed opposition to City Defendants’ motion for partial summary judgment 7 (Doc. 58) is DENIED AS MOOT; 8 3. City Defendants’ motion for partial summary judgment (Doc. 53) is GRANTED IN 9 PART to the following extent: 10 i. The motion is GRANTED to the extent of dismissing counts two, seven, eight, 11 and ten with prejudice, and count six with prejudice as to Defendants Anderberg 12 and the City of Bakersfield; 13 ii. The motion is DENIED as to count nine (Fourth Amendment — search and seizure 14 of vehicle). 15 4. A pretrial scheduling order shall enter forthwith. 16 | IT IS SO ORDERED. Dated: _ June 13, 2024 | Wr bo 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28