Johnson et al v. County of Alameda et al, No. 3:2010cv01437 - Document 66 (N.D. Cal. 2011)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT. Case Management Conference set for 8/4/2011 10:00 AM in Courtroom 3, 17th Floor, San Francisco. Signed by Judge Richard Seeborg on 7/1/11. (cl, COURT STAFF) (Filed on 7/1/2011)
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Johnson et al v. County of Alameda et al Doc. 66 1 *E-Filed 7/1/11* 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 SAN FRANCISCO DIVISION 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 No. C 10-01437 RS CYNTHIA JOHNSON and JAMONT JOHNSON, as individuals, Plaintiffs, ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT v. COUNTY OF ALAMEDA, a public entity, ALAMEDA COUNTY SHERIFF’S OFFICE, a department of the County of Alameda, ALAMEDA COUNTY SHERIFF’S OFFICE DETENTION AND CORRECTION DIVISION, a department of the County of Alameda, DEPUTY SHERIFF KEITH W. GILKERSON, an individual, and DOES 1-50, INCLUSIVE, Defendants. ____________________________________/ 20 21 22 23 I. INTRODUCTION Plaintiff Cynthia Johnson challenges the constitutionality of her custodial arrest for reckless 24 driving and attempting to elude a police officer’s motor vehicle with disregard for the safety of 25 persons or property. Alameda County Deputy Sheriff Keith Gilkerson initiated a traffic stop after 26 Johnson crossed a double yellow line in order to drive around a double parked vehicle. According 27 to Johnson, she initially drove for approximately 0.3 mile before she noticed Gilkerson and then 28 thought that he intended to pass her vehicle. She slowed and pulled to the curb, but after he pulled NO. C 10-01437 RS ORDER GRANTING IN PART MOTION FOR SUMMARY JUDGMENT Dockets.Justia.com 1 in behind her she drove a couple more blocks, making two right turns, in order to stop in front of her 2 mother’s house. Johnson was arrested and booked into Santa Rita Jail where she spent 3 approximately eighteen hours before being released on bail. Ultimately, Johnson pleaded no contest 4 to crossing a double line and all other charges were dismissed. Based on these events, Johnson’s first amended complaint (FAC) asserts ten claims: (1) false 5 6 arrest per 42 U.S.C. § 1983; (2) excessive force per 42 § U.S.C. 1983; (3) illegal search and seizure 7 per § U.S.C. 1983; (4) violation of the Bane Act, California Civil Code § 52.1; (5) state law false 8 arrest/false imprisonment; (6) assault; (7) battery; (8) intentional infliction of emotional distress 9 (IIED); (9) negligence; and (10) negligent infliction of emotional distress (NIED). Co-plaintiff For the Northern District of California United States District Court 10 Jamont Johnson,1 Johnson’s husband, brings an additional claim for loss of consortium. Defendants 11 County of Alameda, Alameda County Sheriff’s Office, Alameda County Detention and Correction 12 Division, and Gilkerson now move for summary judgment on the grounds that Gilkerson had 13 probable cause for the arrest. In addition to opposing defendants’ motion, Johnson moves for leave 14 to amend her complaint to add a claim for violation of the equal protection clause. Based on the 15 parties’ submission and oral argument, and for the reasons stated below, defendants’ motion for 16 summary judgment is granted in part and denied in part and plaintiffs’ motion for leave to file an 17 amended complaint is granted. 18 II. BACKGROUND 19 With respect to many facts regarding Johnson’s arrest, the accounts of Gilkerson and 20 Johnson cannot be reconciled.2 Nonetheless, defendants move for summary judgment based solely 21 on a subset of the facts consistent with Johnson’s version of events as follows. On August 13, 2009, 22 Johnson was driving her vehicle eastbound on Villareal Drive in Castro Valley. FAC, ¶¶ 13-14. 23 She was traveling to her mother’s house to drop off her daughter before going to a job interview. 24 1 25 26 27 28 Although Cynthia and Jamont Johnson are co-plaintiffs, all claims but one arise from Cynthia’s alleged injuries. Accordingly, the Order refers to “Johnson,” meaning Cynthia, for convenience. 2 The parties differ in their accounts of Johnson’s driving. She claims she came to a complete stop before driving around the double parked car and at the stop sign on Villareal, drove the speed limit, and drove slowly from the point at which she knew Gilkerson was initiating a stop to her mother’s house. FAC, ¶¶ 15, 17, 20-21. In Gilkerson’s version, Johnson sped around the double parked car, continued to speed, and did not come to a complete stop at the stop sign on Villareal. Declaration of Probable Cause in Support of Arrest, Exh. E to Kazi Decl. in Support of Plaintiffs’ Opposition to MSJ. NO. C 10-01437 RS ORDER GRANTING IN PART MOTION FOR SUMMARY JUDGMENT 2 1 Johnson Depo. Vol. I, 27:15-20, Exh. B to Kazi Decl. in Support of Plaintiffs’ Opposition to MSJ 2 (Exh. B). She came to a block with a park on one side, a baseball field on the other, and a one lane 3 road in each direction divided by double yellow lines. A stopped vehicle with its hazard lights on 4 blocked the direction in which Johnson was travelling. FAC, ¶ 15. After coming to a complete 5 stop, she passed the vehicle on the left, crossing the yellow lines in the process. FAC, ¶¶ 15-16. 6 Deputy Sheriff Gilkerson, a uniformed motorcycle officer, was on his motorcycle near the park 7 entrance and saw Johnson cross the yellow lines. 8 9 Gilkerson pulled behind Johnson and, at some point, activated the red light and siren on his motorcycle. According to Johnson, she initially did not notice Gilkerson behind her. Exh. B, 72:24- For the Northern District of California United States District Court 10 73:19. She drove for approximately 0.3 mile on Villareal before reaching a stop sign at the 11 intersection with Greenville Place. FAC, ¶ 17. While at the stop sign, Johnson admitted seeing the 12 lights and hearing the siren. FAC, ¶ 18. She turned left at the intersection and passed parked cars 13 on the side of Greenville before slowing down and pulling over to the side, without stopping, mid- 14 way through the block. FAC, ¶¶ 18-19. She believed that Gilkerson just wanted to pass. When he 15 pulled in behind her car, Johnson realized he intended to stop her. Johnson, however, pulled away 16 from the curb and kept driving to the end of Greenville, where she turned right. She drove to the 17 end of that block and turned right again on Summerglen Place and then stopped in front of her 18 mother’s house. FAC, ¶ 21; Exh. B. 94:17-22. 19 Johnson exited her car and started walking toward the back of the vehicle. Exh. B., 96:22- 20 97:3; 102:17-103:10. Intending to explain why she stopped there, she told Gilkerson that they were 21 at her mother’s house. FAC, ¶ 22. He responded that she was under arrest for reckless driving and 22 evasion. FAC, ¶ 22. Johnson offered the further explanation that she thought Gilkerson wanted to 23 pass her and that once she realized he intended to pull her over, she drove to a safer location to stop. 24 Exh. B, 102:17-103:14. Gilkerson pushed her shoulder to turn her around, grabbed her hands, and 25 cuffed them behind her back. Exh. B., 105:13-18; 107:1-4. After Johnson complained that the cuffs 26 were too tight another officer eventually loosened them before she was placed in a patrol car. FAC, 27 ¶ 32. Although Johnson’s mother offered to take possession of the car, Gilkerson had it impounded 28 for thirty days. FAC, ¶ 34. According to Johnson, she was not informed that she had the right to NO. C 10-01437 RS ORDER GRANTING IN PART MOTION FOR SUMMARY JUDGMENT 3 1 request a tow hearing, even though she contacted the sheriff’s office to inquire about getting her car 2 back. Johnson Depo., Vol. II, 233:3-22, Exh. C. to Kazi Decl. in Support of Plaintiffs’ Opposition 3 to MSJ. 4 Gilkerson cited Johnson for reckless driving and for evading arrest accompanied by “willful 5 or wanton disregard for the safety of persons or property.” Cal. Veh. Code §§ 23103(a), 2800.2(a). 6 Johnson was taken to Santa Rita Jail at approximately 10 a.m. and went through the normal booking 7 process, which was not completed until almost 9:00 p.m. Johnson eventually posted bail and was 8 released at 3:45 a.m. She appeared at her arraignment the following morning where she was 9 charged with reckless driving and misdemeanor evasion. Johnson ultimately pleaded no contest to For the Northern District of California United States District Court 10 crossing a double yellow line and paid a $500 fine. III. LEGAL STANDARD 11 Under the Federal Rules of Civil Procedure, a court shall grant summary judgment “if the 12 13 pleadings, depositions, answers to interrogatories, and admissions on file, together with the 14 affidavits, if any, show that there is no genuine issue as to any material fact and that the moving 15 party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party bears 16 the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. 17 Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party to “set forth 18 specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). The nonmoving 19 party must identify factual disputes that “might affect the outcome of the suit under governing law.” 20 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Irrelevant or unnecessary factual 21 disputes do not raise any genuine issue for trial. Id. To preclude entry of summary judgment, the 22 nonmoving party must present sufficient evidence such that a jury could return a verdict in his or her 23 favor. Id. IV. DISCUSSION 24 25 26 A. Fourth Amendment Johnson brings three claims for violation of her Fourth Amendment rights: false arrest, 27 excessive force, and illegal search and seizure of her vehicle. Defendants move for summary 28 judgment on the grounds that Gilkerson had probable cause as a matter of law to arrest Johnson for NO. C 10-01437 RS ORDER GRANTING IN PART MOTION FOR SUMMARY JUDGMENT 4 2800.1. A warrantless arrest for a misdemeanor traffic offense committed in an officer’s presence 3 does not constitute a Fourth Amendment violation so long as it is supported by probable cause. See 4 Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (holding that officer was authorized to 5 make custodial arrest for seat belt violation “without balancing costs and benefits or determining 6 whether or not [plaintiff’s] arrest was in some sense necessary”); Maryland v. Pringle, 540 U.S. 7 366, 370 (U.S. 2003). Probable cause exists where, “under the totality of circumstances known to 8 the arresting officers, a prudent person would have concluded that there was a fair probability” that 9 a crime was committed. United States v. Smith, 790 F.2d 789, 792 (9th Cir. 1986). Generally, an 10 For the Northern District of California flight from a police officer, also referred to as evading arrest or evasion. See Cal. Veh. Code § 2 United States District Court 1 officer does not need to have probable cause for every element of the offense. See United States v. 11 Thornton, 710 F.2d 513, 515 (9th Cir. 1983). When specific intent is such an element, the officer 12 must have probable cause to believe it is present in order to sustain a reasonable belief that a crime 13 has occurred. Blankenhorn v. City of Orange, 485 F.3d 463, 472 (9th Cir. Cal. 2007) (quoting 14 Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994)). As a threshold matter, Gilkerson had probable cause to initiate the traffic stop after he 15 16 witnessed Johnson commit a traffic infraction by crossing over the double yellow lines. See Cal. 17 Veh. Code § 21460(a) (“When double parallel solid lines are in place, no person driving a vehicle 18 shall drive to the left thereof, except as permitted in this section.”). Johnson does not concede the 19 issue of probable cause for the traffic stop. Instead, she argues that she came to a complete stop 20 behind a car that was blocking her lane and drove around it when it was safe to do so. She therefore 21 asserts that, at most, she committed only a “highly technical violation.”3 Even if the violation 22 arguably could be “excused,” as Johnson contends in her Opposition, the commission of even a 23 minor traffic infraction renders a vehicle stop reasonable under the Fourth Amendment. See, e.g., 24 Whren v. United States, 517 U.S. 806, 819 (U.S. 1996). Thus, no Fourth Amendment claim arises 25 from Gilkerson’s initial decision to stop Johnson’s car. 26 27 28 3 Johnson cites to provisions of California Vehicle Code sections 21460(b)-(d) detailing exceptions to the prohibition against crossing parallel solid line. None of the exceptions applies to her circumstance. She further raises California Vehicle Code section 21751, which is applicable to passing on a two lane highway, but is not incorporated by section 21460. NO. C 10-01437 RS ORDER GRANTING IN PART MOTION FOR SUMMARY JUDGMENT 5 1 The more vexing issue is whether Gilkerson had probable cause to arrest Johnson for 2 evading arrest. California Vehicle Code section 2800.1 makes it a misdemeanor punishable by 3 imprisonment of not more than one year for “[a]ny person who, while operating a motor vehicle and 4 with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s 5 motor vehicle.” The following four conditions must exist: (1) the officer’s motor vehicle exhibits at 6 least one lighted red lamp visible from the front and the person sees or reasonably should have seen 7 the red lamp; (2) the vehicle is sounding a siren as reasonably necessary; (3) the vehicle is 8 distinctively marked; and (4) the vehicle is operated by an officer wearing a distinctive uniform. Id. 9 Despite the fact that Gilkerson cited Johnson for reckless driving and violation of California Vehicle For the Northern District of California United States District Court 10 Code section 2800.2, which incorporates section 2800.1 and further requires willful or wanton 11 disregard for the safety of persons or property, defendants need not demonstrate that probable cause 12 existed to arrest Johnson for those offenses. “Probable cause need only exist as to any offense that 13 could be charged under the circumstances.” Blankenhorn v. City of Orange, 485 F.3d 463, 473 (9th 14 Cir. 2007). 15 Based on the undisputed facts, defendants have established the four conditions related to 16 Gilkerson’s appearance as a peace officer making a traffic stop. When she was stopped at the 17 intersection of Villareal and Greenville, Johnson admits that Gilkerson pulled behind her, flashed 18 his lights, and sounded his siren. She does not dispute defendants’ statement that the light was red 19 as required, or that Gilkerson was dressed in his uniform and riding a marked police motorcycle. 20 What defendants do not adequately address, however, is the element of the offense that transforms a 21 failure immediately to comply with a traffic stop into a willful attempt to flee from a pursuing 22 officer. Specifically, a violation of section 2800.1 requires that a driver act “with the intent to 23 evade.” At the motion for summary judgment stage, the only facts on which defendants rely are that 24 Johnson pulled to the curb on Greenville Place, pulled back out into the road after Gilkerson pulled 25 behind her, then continued driving slowly with Gilkerson following as she made two turns before 26 stopping on Summerglen Place. Johnson immediately exited her car, walked toward Gilkerson, and 27 stated that they were stopped at her mother’s house. She also attempted to explain that she initially 28 thought he wanted to pass her, but when she realized he wanted her to stop she wanted to drive to a NO. C 10-01437 RS ORDER GRANTING IN PART MOTION FOR SUMMARY JUDGMENT 6 1 safer location. According to defendants, under these circumstances, Gilkerson reasonably could 2 have believed Johnson intended to evade him. Their contention, however, is insufficient to obtain 3 judgment as a matter of law. Based on the manner in which Johnson states she drove, the distance 4 she drove after she first started to pull over, and the explanation she offered to Gilkerson, this is not 5 a case where no reasonable jury could find absence of probable cause. Accordingly, defendants’ 6 motion for summary judgment must be denied. 7 B. 8 9 Qualified Immunity In the alternative, defendants contend that Gilkerson is entitled to qualified immunity for the Fourth Amendment claims. Qualified immunity serves to shield a defendant from litigation and trial For the Northern District of California United States District Court 10 “only if the facts alleged and evidence submitted, resolved in [the plaintiff’s] favor and viewed in 11 the light most favorable to [her], show that [the defendant’s] conduct did not violate a federal right; 12 or, if it did, the scope of that right was not clearly established at the time.” Blankenhorn, 485 F.3d 13 at 471 (citation omitted). Thus, the first question is whether Gilkerson violated Johnson’s Fourth 14 Amendment rights. If no violation is found, then he is entitled to qualified immunity. If there was a 15 violation, or if a triable question of fact remains, then the second question is whether the 16 constitutional violation was clearly established. 17 In their motion, defendants proceed directly to the second inquiry and argue that even if 18 Gilkerson violated Johnson’s constitutional rights, he is entitled to qualified immunity because “a 19 reasonable officer in his position could have believed” that her arrest and the amount of force he 20 used were lawful. In support, they argue that Johnson has no clearly established right to be free 21 from arrest where she crossed a double yellow line and “reasonably appeared to be evading the 22 stop.” Offering that Johnson “reasonably appeared” to be evading arrest, however, merely reargues 23 the existence of probable cause. If Johnson reasonably appeared to be evading arrest, there would 24 be no constitutional violation. Defendants fail to point out any ambiguity in the scope of Johnson’s 25 right to be free from unreasonable seizure under the circumstances established by the few 26 uncontested facts on which they rely. In other words, they do not explain why Gilkerson could 27 reasonably believe probable cause existed, even if it did not. Therefore, defendants’ motion for 28 summary judgment that Gilkerson is entitled to qualified immunity is denied. NO. C 10-01437 RS ORDER GRANTING IN PART MOTION FOR SUMMARY JUDGMENT 7 1 C. Monell Claims Johnson also seeks to hold the County of Alameda and the Sheriff’s Office liable for the 2 3 alleged Fourth Amendment violations under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). 4 Pursuant to the FAC, she contends that defendants were acting in accordance with a custom, policy, 5 and practice of the County and the Sheriff’s Office in violating her constitutional rights. In 6 particular, she alleges that the County and the Sheriff’s Office have “failed adequately to train” the 7 sheriffs on their Fourth Amendment obligations when arresting suspects and conducing searches 8 and seizures. Defendants argue that Johnson has not offered any evidence of training that was so 9 inadequate as to demonstrate a deliberate indifference to likely constitutional violations. See, e.g., For the Northern District of California United States District Court 10 City of Canton v. Harris, 489 U.S. 378, 390 (1989). They therefore move for summary judgment on 11 the issue of municipal liability. In response, Johnson argues that the Court should defer ruling on the Monell claims to allow 12 13 further discovery pursuant to Federal Rule of Civil Procedure 56(d). Under that Rule, a court may 14 defer ruling on a motion for summary judgment where the nonmovant “shows by affidavit or 15 declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” 16 Johnson’s Opposition cites to paragraph 14 of the Kazi Declaration where plaintiffs’ counsel states 17 that she anticipates “information relevant to plaintiffs’ equal protection claims will be produced” in 18 response to outstanding discovery requests. In other words, Johnson offers no declaration stating 19 that it anticipates developing facts essential to opposing defendants’ motion for summary judgment 20 regarding the Fourth Amendment claims. Accordingly, deferring judgment is not warranted and 21 defendants’ motion for summary judgment on the Fourth Amendment Monell claims is granted. 22 D. 23 State Law Claims Johnson also asserts a number of claims based on violations of state law including: the Bane 24 Act, false arrest/false imprisonment, assault, battery, IIED, negligence, and NIED. With respect to 25 each of these claims, defendants move for summary judgment on the grounds that Johnson’s arrest 26 was lawful. Moreover, defendants argue that Jamont Johnson’s loss of consortium claim cannot be 27 maintained because Johnson herself does not possess a viable state law claim. As defendants have 28 NO. C 10-01437 RS ORDER GRANTING IN PART MOTION FOR SUMMARY JUDGMENT 8 1 not established that Gilkerson had probable cause as a matter of law, their motion for summary 2 judgment on these claims is denied. 3 E. 4 Plaintiffs’ Motion for Leave to Amend On May 13, 2011, plaintiffs filed a motion for leave to add a claim stating an equal 5 protection clause violation. The deadline for hearing non-dispositive pretrial motions passed on 6 April 14, 2011. Defendants oppose the motion to amend and insist that Johnson is obligated to 7 show good cause for departing from the scheduling Order. See Fed. R. Civ. P. 16(b) (providing that 8 the scheduling order “shall not be modified except upon a showing of good cause”). In other words, 9 leave to amend is not granted at this point with the same liberality that applies to motions for leave For the Northern District of California United States District Court 10 to amend under Rule 15(a). See Johnson v. Mammoth Recreations, 975 F.2d 604, 609 (9th Cir. 11 1992). Instead, the court must consider whether a plaintiff seeking leave to amend has acted with 12 sufficient diligence. Id. (upholding denial of leave to name a new defendant where plaintiffs 13 “[failed] to heed clear and repeated signals that not all the necessary parties had been named in the 14 complaint”). Johnson does not dispute that Rule 16(b) applies, but requests that the Court consider 15 her motion for leave to amend also as a motion to revise the scheduling Order. 16 Johnson, who is African-American, originally included a race-based equal protection claim 17 in her complaint. Defendants argue that they informed her of their contention that the claim was 18 deficient and requested that she eliminate it to avoid a motion to dismiss. On May 14, 2010, 19 Johnson voluntarily filed the FAC that dropped the claim. Johnson, however, contends that she has 20 recently learned of additional facts that now supports reasserting it. Jamont Johnson, Cynthia’s 21 husband, declares that sometime in October 2010 he was followed for no apparent reason by an 22 Alameda County deputy sheriff for approximately 1.8 miles while he drove in Castro Valley. In 23 March 2011, Johnson learned from her bail agent, Sparkle Kelley, that she believes racial profiling 24 is prevalent in Castro Valley. According to Johnson, Kelley informed her that she has had other 25 African-American clients who were arrested and placed in jail for minor traffic violations. Johnson 26 explains that Kelley recently lost her files due to a flood and could not provide further information, 27 but recalled at least two clients stopped in Castro Valley, a professor and a school principal. 28 Finally, Johnson contends that on April 27, 2011, she read an article about a suit filed by Kwixuan NO. C 10-01437 RS ORDER GRANTING IN PART MOTION FOR SUMMARY JUDGMENT 9 1 Maloof, also African-American, against the County of Alameda for claims arising out of a traffic 2 stop by deputy sheriffs in Castro Valley. 3 Defendants argue that the basic theory of Johnson’s equal protection claim was known to her Johnson contends that Gilkerson’s treatment of her gives rise to an inference that African American 6 drivers are singled out for mistreatment. Jamont Johnson states that he was suspiciously followed, 7 but that event also occurred several months ago. Johnson counters that, prior to learning more 8 recently of information from Kelly and of the incident involving Maloof, she lacked information 9 connecting Gilkerson’s conduct to the County’s practices. Although Johnson voluntarily dismissed 10 For the Northern District of California for a long time and therefore she has not acted diligently in seeking to amend. In particular, 5 United States District Court 4 an earlier equal protection claim, she provides a good faith explanation for seeking to amend at this 11 point. Accordingly, her motion to amend is not barred by lack of diligence. 12 Defendants also oppose leave to amend on the grounds that they would suffer undue 13 prejudice. Prejudice to the opposing party may be considered when determining whether to allow 14 modification of the scheduling order; it also carries the greatest weight in the court’s Rule 15(a) 15 analysis. See Johnson, 975 F.2d at 609; Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 16 1052 (9th Cir. 2003). In this case, defendants complain that amendment would delay this 17 proceeding, involve reopening discovery, and potentially involve additional motion practice. 18 Having to engage in activities now, rather than at an earlier time in the case, in and of itself, does 19 not constitute prejudice to defendants. In other words, they have not identified any detriment to the 20 merits of their case. Although they suggest such prejudice would occur if the Court delayed in 21 ruling on their present motion for summary judgment by permitting plaintiffs to “preview” their 22 legal position no such deferral is involved. Under Federal Rule of Civil Procedure 15(a), the court 23 should freely grant leave to amend “when justice so requires.” Accordingly, plaintiffs’ motion for 24 leave to file an amended complaint is granted. 25 V. CONCLUSION 26 Defendants’ motion for summary judgment on the Fourth Amendment claims is denied as to 27 Gilkerson, denied on the issue of qualified immunity, and granted with respect to municipal liability. 28 NO. C 10-01437 RS ORDER GRANTING IN PART MOTION FOR SUMMARY JUDGMENT 10 1 The motion for summary judgment on all state law claims is denied. Plaintiffs’ motion for leave to 2 file an amended complaint to add a claim for violation of the equal protection clause is granted. 3 Based on the foregoing, the Pretrial Conference on August 4, 2011 and the trial presently 4 scheduled to begin on August 15, 2011 are vacated. The parties shall instead appear at a Case 5 Management Conference on August 4, 2011 at 10:00 a.m. Parties or counsel may appear 6 personally or file a request to appear by telephone. If any party files such a request, all parties shall 7 appear telephonically and must contact Court Conference at 866/582-6878 at least one week prior to 8 the Conference. 9 For the Northern District of California United States District Court 10 IT IS SO ORDERED. 11 12 13 Dated: 7/1/11 RICHARD SEEBORG UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NO. C 10-01437 RS ORDER GRANTING IN PART MOTION FOR SUMMARY JUDGMENT 11
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