1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SUSAN SERNOFFSKY, et al., Case No. 23-cv-0039-MMA-MSB
12 Plaintiffs, ORDER: SUSTAINING RULE 72 13 v. OBJECTION; AND
14 MATT NOVAK, et al., [Doc. No. 35] 15 Defendants. DENYING DEFENDANTS’ MOTION 16 FOR SUMMARY JUDGMENT 17 WITHOUT PREJUDICE
18 [Doc. No. 24] 19 20 21 On January 9, 2023, Plaintiffs Susan Sernoffsky, Lauren Gaw, and Danielle 22 Richardson initiated this action against San Diego Police Captain Matt Novak, San Diego 23 Police Lieutenants Rick Aguilar and Scott, and Does 1 through 15. See Doc. No. 1. 24 (“Compl.”). Plaintiffs bring First, Fourth, and Fourteenth Amendment claims stemming 25 from the January 2021 protests in Pacific Beach. See id. Defendants filed their Answer 26 on April 5, 2023. See Doc. No. 8. 27 This case is substantially related to the case Lien et al. v. City of San Diego et al., 28 Case No. 21-cv-224-MMA-WVG, which was resolved at the summary judgment stage. 1 Plaintiffs’ attorney also represented the Lien plaintiffs in the related case, and Lien 2 involved overlapping defendants and claims. As a result, on June 16, 2023, the parties 3 agreed, and the Magistrate Judge ordered, that discovery would be stayed pending a 4 ruling on summary judgment in light of the extensive discovery taken in Lien. See Doc. 5 No. 19. The Magistrate Judge permitted only limited pre-summary judgment discovery 6 “pertaining to Defendant Novak’s decision to declare unlawful assembly” during the 7 protests. See id. He also ordered that it be completed by July 14, 2023, and directed the 8 parties to obtain a hearing date on any summary judgment motions from the 9 undersigned’s chambers by August 14, see id. at 2, which practically speaking set the 10 dispositive motions deadline for August 17, see Civ. Chambers R. III. 11 On August 3, 2023, the parties contacted the Magistrate Judge’s chambers, 12 informing him of a discovery dispute. See Doc. No. 22. On August 17, 2023, 13 Defendants filed a motion for summary judgment. See Doc. No. 24. Defendants’ 14 summary judgment motion was originally set for hearing on September 25, 2023, 15 meaning that Plaintiffs’ opposition was due by September 11 and Defendants’ reply was 16 due by September 18. On the deadline to file their opposition, Plaintiffs filed an ex parte 17 motion to continue the hearing and briefing on Defendants’ summary judgment motion. 18 See Doc. Nos. 29, 30. Plaintiffs explained that they were still awaiting a ruling on the 19 outstanding discovery dispute and believed that they needed the disputed documents to 20 oppose summary judgment. See id. Defendants opposed the ex parte motion. See Doc. 21 No. 31. 22 The Court granted Plaintiffs’ ex parte motion and vacated the hearing and 23 outstanding briefing on Defendants’ summary judgment motion. See Doc. No. 32. The 24 Court directed the parties to file a joint status report following the discovery ruling or any 25 resulting production, whichever was later. See id. On September 29, 2023, the 26 Magistrate Judge issued a Discovery Order. See Doc. No. 33. On October 11, 2023, the 27 parties filed a joint status report that reflected their disagreement regarding when to move 28 forward with the summary judgment motion. See Doc. No. 34. 1 On October 13, 2023, Plaintiffs filed a Rule 72 objection to the Discovery Order. 2 See Doc. No. 35. On October 17, 2023, the case was reassigned to Magistrate Judge 3 Michael S. Berg. See Doc. No. 7. Thereafter, the Court issued an interim order on the 4 summary judgment motion and Rule 72 objection. See Doc. No. 38. That Order set 5 briefing schedules for both Defendants’ summary judgment motion and Plaintiffs’ Rule 6 72 objection. Plaintiffs’ objection is now fully briefed, see Doc. Nos. 39, 41, while the 7 briefing on Defendants’ summary judgment motion remains outstanding. 8 RULE 72 OBJECTION 9 As noted above, on September 29, 2023, the then-assigned Magistrate Judge issued 10 a Discovery Order directing Defendants to disclose the names of certain individuals and 11 produce various documents with redactions. See Doc. No. 33. Plaintiffs object to the 12 denial of their motion to compel the production of unredacted versions of these 13 documents. See Doc. No. 35. 14 Pursuant to Rule 72(a), a party may object to a non-dispositive pretrial order of a 15 magistrate judge within fourteen days of service of the order. Fed. R. Civ. P. 72(a). 16 District court review of magistrate judge orders on non-dispositive motions is limited. A 17 district judge may reconsider a magistrate judge’s ruling on a non-dispositive motion 18 only “where it has been shown that the magistrate [judge]’s order is clearly erroneous or 19 contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a); Grimes v. City 20 and Cnty. Of San Francisco, 951 F.2d 236, 240 (9th Cir. 1991). “Under this standard of 21 review, a magistrate [judge]’s order is ‘clearly erroneous’ if, after considering all of the 22 evidence, the district court is left with the definite and firm conviction that a mistake has 23 been committed, and the order is ‘contrary to law’ when it fails to apply or misapplies 24 relevant statutes, case law or rules of procedure.” Yent v. Baca, No. CV-01-10672 25 PA(VBKX), 2002 WL 32810316, at *2 (C.D. Cal. Dec. 16, 2002). 26 The threshold of the “clearly erroneous” test is high and significantly deferential. 27 “The reviewing court may not simply substitute its judgment for that of the deciding 28 court.” Grimes, 951 F.2d at 241. “A finding is ‘clearly erroneous’ when although there 1 is evidence to support it, the reviewing court on the entire evidence is left with the 2 definite and firm conviction that a mistake has been committed.” United States v. U.S. 3 Gypsum Co., 333 U.S. 364, 395 (1948); Mathews v. Chevron Corp., 362 F.3d 1172, 1180 4 (9th Cir. 2004). In comparison, a magistrate judge’s order is contrary to law if the judge 5 applies an incorrect legal standard or fails to consider an element of the applicable 6 standard. See Hunt v. Nat’l Broad Co., 872 F.2d 289, 292 (9th Cir. 1989) (noting that 7 such failures constitute abuse of discretion.) 8 Having conducted an in camera review of the subject documents and upon review 9 of the entire record, including the Discovery Order and the parties’ briefs, the Court 10 SUSTAINS Plaintiffs’ objection. 11 Generally speaking, Defendants asserted the official information privilege and law 12 enforcement investigatory privilege when they withheld unredacted versions of the 13 subject documents. These privileges are virtually synonymous, see, e.g., Lien v. City of 14 San Diego, No. 21-CV-224-MMA(WVG), 2021 U.S. Dist. LEXIS 200221, at *3 (S.D. 15 Cal. Oct. 18, 2021); Dousa v. United States Dep’t of Homeland Sec., No. 19cv1255- 16 LAB(KSC), 2019 U.S. Dist. LEXIS 204449, at *5 (S.D. Cal. Nov. 22, 2019); Al Otro 17 Lado, Inc. v. Wolf, No. 3:17-cv-2366-BAS-KSC, 2020 U.S. Dist. LEXIS 112345, at *8 18 (S.D. Cal.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SUSAN SERNOFFSKY, et al., Case No. 23-cv-0039-MMA-MSB
12 Plaintiffs, ORDER: SUSTAINING RULE 72 13 v. OBJECTION; AND
14 MATT NOVAK, et al., [Doc. No. 35] 15 Defendants. DENYING DEFENDANTS’ MOTION 16 FOR SUMMARY JUDGMENT 17 WITHOUT PREJUDICE
18 [Doc. No. 24] 19 20 21 On January 9, 2023, Plaintiffs Susan Sernoffsky, Lauren Gaw, and Danielle 22 Richardson initiated this action against San Diego Police Captain Matt Novak, San Diego 23 Police Lieutenants Rick Aguilar and Scott, and Does 1 through 15. See Doc. No. 1. 24 (“Compl.”). Plaintiffs bring First, Fourth, and Fourteenth Amendment claims stemming 25 from the January 2021 protests in Pacific Beach. See id. Defendants filed their Answer 26 on April 5, 2023. See Doc. No. 8. 27 This case is substantially related to the case Lien et al. v. City of San Diego et al., 28 Case No. 21-cv-224-MMA-WVG, which was resolved at the summary judgment stage. 1 Plaintiffs’ attorney also represented the Lien plaintiffs in the related case, and Lien 2 involved overlapping defendants and claims. As a result, on June 16, 2023, the parties 3 agreed, and the Magistrate Judge ordered, that discovery would be stayed pending a 4 ruling on summary judgment in light of the extensive discovery taken in Lien. See Doc. 5 No. 19. The Magistrate Judge permitted only limited pre-summary judgment discovery 6 “pertaining to Defendant Novak’s decision to declare unlawful assembly” during the 7 protests. See id. He also ordered that it be completed by July 14, 2023, and directed the 8 parties to obtain a hearing date on any summary judgment motions from the 9 undersigned’s chambers by August 14, see id. at 2, which practically speaking set the 10 dispositive motions deadline for August 17, see Civ. Chambers R. III. 11 On August 3, 2023, the parties contacted the Magistrate Judge’s chambers, 12 informing him of a discovery dispute. See Doc. No. 22. On August 17, 2023, 13 Defendants filed a motion for summary judgment. See Doc. No. 24. Defendants’ 14 summary judgment motion was originally set for hearing on September 25, 2023, 15 meaning that Plaintiffs’ opposition was due by September 11 and Defendants’ reply was 16 due by September 18. On the deadline to file their opposition, Plaintiffs filed an ex parte 17 motion to continue the hearing and briefing on Defendants’ summary judgment motion. 18 See Doc. Nos. 29, 30. Plaintiffs explained that they were still awaiting a ruling on the 19 outstanding discovery dispute and believed that they needed the disputed documents to 20 oppose summary judgment. See id. Defendants opposed the ex parte motion. See Doc. 21 No. 31. 22 The Court granted Plaintiffs’ ex parte motion and vacated the hearing and 23 outstanding briefing on Defendants’ summary judgment motion. See Doc. No. 32. The 24 Court directed the parties to file a joint status report following the discovery ruling or any 25 resulting production, whichever was later. See id. On September 29, 2023, the 26 Magistrate Judge issued a Discovery Order. See Doc. No. 33. On October 11, 2023, the 27 parties filed a joint status report that reflected their disagreement regarding when to move 28 forward with the summary judgment motion. See Doc. No. 34. 1 On October 13, 2023, Plaintiffs filed a Rule 72 objection to the Discovery Order. 2 See Doc. No. 35. On October 17, 2023, the case was reassigned to Magistrate Judge 3 Michael S. Berg. See Doc. No. 7. Thereafter, the Court issued an interim order on the 4 summary judgment motion and Rule 72 objection. See Doc. No. 38. That Order set 5 briefing schedules for both Defendants’ summary judgment motion and Plaintiffs’ Rule 6 72 objection. Plaintiffs’ objection is now fully briefed, see Doc. Nos. 39, 41, while the 7 briefing on Defendants’ summary judgment motion remains outstanding. 8 RULE 72 OBJECTION 9 As noted above, on September 29, 2023, the then-assigned Magistrate Judge issued 10 a Discovery Order directing Defendants to disclose the names of certain individuals and 11 produce various documents with redactions. See Doc. No. 33. Plaintiffs object to the 12 denial of their motion to compel the production of unredacted versions of these 13 documents. See Doc. No. 35. 14 Pursuant to Rule 72(a), a party may object to a non-dispositive pretrial order of a 15 magistrate judge within fourteen days of service of the order. Fed. R. Civ. P. 72(a). 16 District court review of magistrate judge orders on non-dispositive motions is limited. A 17 district judge may reconsider a magistrate judge’s ruling on a non-dispositive motion 18 only “where it has been shown that the magistrate [judge]’s order is clearly erroneous or 19 contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a); Grimes v. City 20 and Cnty. Of San Francisco, 951 F.2d 236, 240 (9th Cir. 1991). “Under this standard of 21 review, a magistrate [judge]’s order is ‘clearly erroneous’ if, after considering all of the 22 evidence, the district court is left with the definite and firm conviction that a mistake has 23 been committed, and the order is ‘contrary to law’ when it fails to apply or misapplies 24 relevant statutes, case law or rules of procedure.” Yent v. Baca, No. CV-01-10672 25 PA(VBKX), 2002 WL 32810316, at *2 (C.D. Cal. Dec. 16, 2002). 26 The threshold of the “clearly erroneous” test is high and significantly deferential. 27 “The reviewing court may not simply substitute its judgment for that of the deciding 28 court.” Grimes, 951 F.2d at 241. “A finding is ‘clearly erroneous’ when although there 1 is evidence to support it, the reviewing court on the entire evidence is left with the 2 definite and firm conviction that a mistake has been committed.” United States v. U.S. 3 Gypsum Co., 333 U.S. 364, 395 (1948); Mathews v. Chevron Corp., 362 F.3d 1172, 1180 4 (9th Cir. 2004). In comparison, a magistrate judge’s order is contrary to law if the judge 5 applies an incorrect legal standard or fails to consider an element of the applicable 6 standard. See Hunt v. Nat’l Broad Co., 872 F.2d 289, 292 (9th Cir. 1989) (noting that 7 such failures constitute abuse of discretion.) 8 Having conducted an in camera review of the subject documents and upon review 9 of the entire record, including the Discovery Order and the parties’ briefs, the Court 10 SUSTAINS Plaintiffs’ objection. 11 Generally speaking, Defendants asserted the official information privilege and law 12 enforcement investigatory privilege when they withheld unredacted versions of the 13 subject documents. These privileges are virtually synonymous, see, e.g., Lien v. City of 14 San Diego, No. 21-CV-224-MMA(WVG), 2021 U.S. Dist. LEXIS 200221, at *3 (S.D. 15 Cal. Oct. 18, 2021); Dousa v. United States Dep’t of Homeland Sec., No. 19cv1255- 16 LAB(KSC), 2019 U.S. Dist. LEXIS 204449, at *5 (S.D. Cal. Nov. 22, 2019); Al Otro 17 Lado, Inc. v. Wolf, No. 3:17-cv-2366-BAS-KSC, 2020 U.S. Dist. LEXIS 112345, at *8 18 (S.D. Cal. June 26, 2020), and serve to “prevent disclosure of law enforcement 19 techniques and procedures, preserve the confidentiality of sources, protect witnesses and 20 law enforcement personnel, safeguard the privacy of individuals involved in an 21 investigation, and otherwise prevent interference with the investigation.” Lien, 2021 U.S. 22 Dist. LEXIS 200221, at *4. When a withholding party makes the threshold showing that 23 the privilege applies, the Court must “weigh the government’s interests in ensuring the 24 secrecy of the documents in question against the need of the adverse party to obtain 25 discovery.” Al Otro Lado, 2020 U.S. Dist. LEXIS 112345, at *9 (internal citations and 26 quotation marks omitted). The balancing test is “moderately pre-weighted in favor of 27 disclosure” and includes the consideration of numerous factors, including whether the 28 existence of a protective order could ameliorate the asserted harm. Kelly v. City of San 1 Jose, 114 F.R.D. 653, 662 (N.D. Cal. 1987). 2 On this record, it appears that this legal standard was not correctly applied, and the 3 Court is left with the definite and firm conviction that a mistake has been committed. 4 Additionally, at least one of Plaintiffs’ requests appears to remain outstanding. For these 5 reasons, the Court SUSTAINS Plaintiffs’ Rule 72 objection to the Discovery Order in its 6 entirety. The parties are DIRECTED to meet and confer and jointly contact Judge 7 Berg’s chambers to schedule a discovery conference at his convenience. 8 MOTION FOR SUMMARY JUDGMENT 9 Having reviewed the entire record of this case, including the briefing on the 10 matters presently before the Court, and in light of the foregoing, it is clear that 11 Defendants’ summary judgment motion is premature. The Court recognizes that parties 12 are permitted to file summary judgment motions “at any time until 30 days after the close 13 of all discovery.” Fed. R. Civ. P. 56(b). Rule 56 also provides that the Court may deny a 14 summary judgment motion “[i]f a nonmovant shows by affidavit or declaration that, for 15 specified reasons, it cannot present facts essential to justify its opposition.” Fed. R. Civ. 16 P. 56(d)(1). As Defendants preemptively argued in opposition to Plaintiffs’ ex parte 17 motion, Plaintiffs have not met that burden here. While Plaintiffs’ attorney submitted a 18 declaration in connection with the request, he did not provide any specific reasons why 19 Plaintiffs cannot oppose the summary judgment motion. See Doc. No. 30. Nor did 20 Plaintiffs expressly seek relief under Rule 56(d). 21 Nonetheless, courts have found pre-discovery summary judgment motions 22 premature and have denied such premature summary judgment motions in the absence of 23 a formal request under Rule 56(d) or seemingly without a sufficient declaration under 24 that rule. See Knuth v. CAP Patrol, LLC Ohio, No. 23-cv-1676-BAS-DEB, 2023 U.S. 25 Dist. LEXIS 186598, at *1 (S.D. Cal. Oct. 17, 2023); Hammler v. Hernandez, No. 1:19- 26 cv-00616-SKO (PC), 2022 U.S. Dist. LEXIS 200136, at *5 (E.D. Cal. Nov. 2, 2022); 27 Howell v. Liddell, No. 2:19-cv-0578 TLN KJN P, 2020 U.S. Dist. LEXIS 33914, at *5 28 (E.D. Cal. Feb. 27, 2020); Aaron & Andrew, Inc. v. Sears Holdings Mgmt. Corp., No. CV 1 14-1196 SS, 2017 U.S. Dist. LEXIS 180622, at *8 (C.D. Cal. Apr. 14, 2017); Street v. 2 ACC Enters., LLC, No. 2:17-cv-00083-GMN-VCF, 2017 U.S. Dist. LEXIS 158412, at *3 3 (D. Nev. Sep. 26, 2017); see also Tex. Partners v. Conrock Co., 685 F.2d 1116, 1119 (9th 4 Cir. 1982) (discussing former Rule 56(e) and noting that parties “should be afforded 5 reasonable access to potentially favorable information prior to the granting of summary 6 judgment, because on summary judgment all inferences to be drawn from the underlying 7 facts must be viewed in the light most favorable to the party opposing the summary 8 judgment motion”) (internal citations omitted); United States v. 2366 San Pablo Ave., 9 No. 13-cv-02027-JST, 2014 U.S. Dist. LEXIS 101520, at *8–9 (N.D. Cal. July 24, 2014) 10 (denying a Rule 56(d) motion where discovery remained outstanding and noting that “the 11 Court would be spinning its wheels by considering a summary judgment motion when the 12 parties have not had time to develop an adequate factual record”); Aliff v. Vervent Inc., 13 No. 20-cv-697-DMS-AHG, 2022 U.S. Dist. LEXIS 150672, at *12 (S.D. Cal. Aug. 22, 14 2022) (“Even where a party does not make a separate motion under 56(d), substantially 15 complying with the requirements of the rule by showing how particular discovery would 16 defeat summary judgment and why specific facts are not yet available is enough for a 17 party to successfully demonstrate that summary judgment is precluded.”) (citing TMJ 18 Inc., v. Nippon Tr. Bank, 16 F. App’x 795, 797 (9th Cir. 2001) (finding the district court 19 abused its discretion in granting summary judgment where a party had “adequately 20 complied with the requirements of Rule [56(d)].”)). 21 This case has been pending for less than a year, largely due to the parties’ 22 agreement regarding the overlap between discovery in this case and the Lien case. But 23 while discovery generally was stayed in light of the Lien case, limited discovery was 24 permitted. Put simply, that limited discovery has not completed, as outstanding 25 discovery disputes remain. Ninth Circuit precedent suggests that a pending discovery 26 dispute may be sufficient to raise Rule 56(d) consideration. See Garrett v. San 27 Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987) (discussing former Rule 56(f)) 28 (collecting cases). l Further, having reviewed Defendants’ summary judgment motion, expressing no 2 || opinion on the merits of Plaintiffs’ claims, the Court finds it would be inconsistent with 3 || the purpose of Rule 56 to allow Defendants to proceed with their motion until Plaintiffs 4 || have been afforded the opportunity to complete the discovery they were authorized to 5 |}undertake. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986) (noting 6 || regarding prior Rule 56(f)’s provision providing “summary judgment be refused where 7 nonmoving party has not had the opportunity to discover information that is essential 8 his opposition’). As the Advisory Committee’s notes to Rule 56 explain: “Although 9 || the rule allows a motion for summary judgment to be filed at the commencement of an 10 |} action, in many cases the motion will be premature until the nonmovant has had time to 11 || file a responsive pleading or other pretrial proceedings have been had.” Fed. R. Civ. P. 12 Advisory Committee’s Notes (2010 Amendments, Note to Subdivision (b)). 13 Therefore, upon due consideration, the Court DENIES Defendants’ summary 14 ||judgment without prejudice. Within seven (7) calendar days of the conclusion of 15 || discovery, including all disputes, Defendants must file a statement of position indicating 16 || whether they intend to revive the presently filed summary judgment motion or if they 17 || wish to file a new motion. 18 IT IS SO ORDERED. 19 Dated: December 4, 2023 20 BMiihel M —{ hillr 21 HON. MICHAEL M. ANELLO 22 United States District Judge 23 24 25 26 27 28