Bui v. City and County of San Francisco et al, No. 3:2011cv04189 - Document 162 (N.D. Cal. 2014)
Court Description: ORDER DENYING 159 PLAINTIFFS' MOTION TO VACATE THE STAY PENDING APPEAL. The court DENIES Plaintiffs' motion. In light of Defendants' appeal, the court vacates all remaining dates and deadlines currently set by this court. Signed by Magistrate Judge Laurel Beeler on 10/9/2014.(lblc2, COURT STAFF) (Filed on 10/9/2014)
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Bui v. City and County of San Francisco et al Doc. 162 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division CHIEN VAN BUI, et al., 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 No. C 11-04189 LB Plaintiffs, ORDER DENYING PLAINTIFFS’ MOTION TO VACATE THE STAY PENDING APPEAL v. CITY AND COUNTY OF SAN FRANCISCO, et al., [Re: ECF No. 159] 15 16 Defendants. _____________________________________/ 17 18 INTRODUCTION Defendants have appealed this court’s July 25, 2014 Amended Order Granting in Part and 19 Denying in Part Defendants’ Motion for Summary Judgment to the Ninth Circuit Court of Appeals. 20 Normally, an appeal divests the district court of jurisdiction over all but tangential matters, 21 effectively staying the case. Plaintiffs have filed the instant motion that asks the court to declare 22 Defendants’ appeal frivolous so that the court may retain jurisdiction over the case and proceed to 23 trial. Pursuant to Civil Local Rule 7-1(b), the court finds this matter suitable for determination 24 without oral argument and vacates the October 16, 2014 hearing. Upon consideration of the papers 25 submitted and the applicable authority, the court DENIES Plaintiffs’ motion. 26 27 28 STATEMENT In this civil rights action, Chien Van Bui and Ai Huynh (collectively, “Plaintiffs”), the parents of decedent Vinh Van Bui, known as Tony Bui (“Bui), sued San Francisco Police Officers Austin C 11-04189 LB ORDER Dockets.Justia.com 1 Wilson (“Officer Wilson”) and Timothy Ortiz (“Officer Ortiz”), and the City and County of San 2 Francisco (“CCSF”) (collectively, “Defendants”) for the death of their son. Complaint, ECF No. 1. 3 They brought the following claims: (1) as successors in interest to Bui's estate and pursuant to 42 4 U.S.C. § 1983, a claim against Officers Ortiz and Wilson for violation of Bui's Fourth Amendment 5 right to be free from excessive force; (2) on their own behalf and pursuant to 42 U.S.C. § 1983, a 6 claim against Officers Ortiz and Wilson for interference with their Fourteenth Amendment due 7 process liberty interest in their parental relationship with Bui; (3) as successors in interest to Bui's 8 estate and pursuant to 42 U.S.C. § 1983 and Monell v. Department of Social Services, 436 U.S. 658 9 (1978), a claim against The CCSF for failure to train; and (4) on their own behalf and pursuant to California Civil Procedure Code § 377.60, a claim against The CCSF (under a theory of respondeat 11 superior) for wrongful death. Id. ¶¶ 29-53. 12 For the Northern District of California UNITED STATES DISTRICT COURT 10 Defendants moved for summary judgment on all four claims. Summary Judgment Motion, ECF 13 No. 81. Plaintiffs opposed the motion, except as to the Monell claim. Summary Judgment 14 Opposition, ECF No. 120. Defendants argued in their summary judgment motion that (1) Officers 15 Ortiz and Wilson acted reasonably as a matter of law and in any event were entitled to qualified 16 immunity as to Plaintiffs' claim that the officers violated Bui's Fourth Amendment right to be free 17 from excessive force, (2) Officers Ortiz and Wilson did not violate Plaintiffs' Fourteenth 18 Amendment rights to familial relationship and in any event were entitled to qualified immunity, and 19 (3) the claim for negligence against the CCSF failed because the officers were protected by certain 20 statutory privileges (and were immune) and did not act negligently. See Summary Judgment 21 Motion, ECF No. 81. The court denied Defendants' summary judgment motion on all grounds as to 22 these three claims (and granted Defendants summary judgment on the Monell claim). See 6/27/14 23 Order, ECF No. 137. Following Defendants' motion for leave to file a motion for reconsideration, 24 the court issued an amended order, which did not change the holdings, primarily to clarify certain 25 citations to the record, the evidence the court considered when making its decisions, and the court’s 26 reasoning regarding its denial of qualified immunity. See 7/25/14 Amended Order, ECF No. 146 at 27 1 n.1. 28 Defendants timely appealed the court’s amended order. See Notice of Appeal, ECF No. 150. C 11-04189 LB ORDER 2 1 Defendants asserted: “Jurisdiction exists for the Court of Appeal to review legal questions pertinent 2 to Appellants’ claims of qualified immunity and state law immunity, including but not limited to, 3 whether a reasonable officer would have been aware that he was violating plaintiff’s constitutional 4 rights, and whether the law prohibiting such was ‘clearly established,’ such that no reasonable 5 officer could conclude that lethal force was unnecessary against a suspect who had committed a 6 crime of violence when he stabbed a young woman inside his house, where the officers, who had 7 been summoned to the house where the stabbing occurred, and who had probable cause to arrest 8 [the] suspect for that crime, while attempting to effect an arrest of the suspect for that violent crime, 9 located the suspect, who was still armed with that knife and inside the house where other innocent knife, advanced slowly down a narrow 20 foot hallway toward the officers to within 5-7 feet of 12 For the Northern District of California people were present, and who instead of complying with officers[’] repeated orders to drop the 11 UNITED STATES DISTRICT COURT 10 them, while the officers retreated, and where the officers had only second to react.” Id. at 2-3. 13 Plaintiffs now move for a written order certifying Defendants' appeal as frivolous, so that the 14 court can proceed with trial. See Motion, ECF No. 159. Defendants oppose Plaintiffs’ motion. See 15 Opposition, ECF No. 160. 16 ANALYSIS 17 In Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992), the Ninth Circuit “recognized an 18 exception to the general rule that a valid notice of appeal divests the district court of jurisdiction 19 over all but tangential matters.” Marks v. Clarke, 102 F.3d 1012, 1017 n.8 (9th Cir. 1996). This 20 exception applies in cases in which the district court certifies in writing that the defendant’s 21 interlocutory appeal is “frivolous” or has been “waived.” Chuman, 960 F.2d at 105. “‘An appeal is 22 frivolous is the results are obvious, or the arguments of error are wholly without merit.’” In re 23 George, 322 F.3d 586, 591 (9th Cir. 2002) (quoting Maisano v. United States, 908 F.2d 408, 411 24 (9th Cir. 1990)). An appeal that is wholly without merit is one that is “‘so baseless that it does not 25 invoke appellate jurisdiction,’ such as when ‘the disposition is so plainly correct that nothing can be 26 said on the other side.’” Schering Corp. v. First DataBank Inc., No. C 07-01142 WHA, 2007 WL 27 1747115, at *3 (N.D. Cal. June 18, 2007) (quoting Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir. 28 1989)). In the absence of such written certification, the district court is automatically divested of C 11-04189 LB ORDER 3 1 jurisdiction to proceed with trial. Chuman, 960 F.2d at 105. immunity defense “‘shield[s] [government agents] from liability for civil damages insofar as their 4 conduct does not violate clearly established statutory or constitutional rights of which a reasonable 5 person would have known.’” Behrens v. Pelletier, 516 U.S. 299, 305 (1996) (quoting Harlow v. 6 Fitzgerald, 457 U.S. 800, 818 (1982)). The Ninth Circuit has “distilled the following rule for 7 interlocutory appeals from the denial of qualified immunity: We do not have jurisdiction over 8 interlocutory appeals from district court orders that decide only whether there exists sufficient 9 evidence to sustain the material facts shown by the plaintiff. However, we are instructed that we do 10 have jurisdiction from district court orders that decide not only that material facts are in dispute, but 11 also that the defendant’s alleged conduct violated the plaintiff’s clearly established constitutional 12 For the Northern District of California Defendants appeal the court’s denial of their assertion of qualified immunity. The qualified 3 UNITED STATES DISTRICT COURT 2 rights. When exercising jurisdiction over the latter type of order, we resolve all factual disputes in 13 favor of the plaintiff and look at the purely legal question of whether the defendant’s alleged 14 conduct violated the plaintiff’s clearly established constitutional rights.” Cunningham v. City of 15 Wenatchee, 345 F.3d 802, 807-08 (9th Cir. 2003) (citations omitted). 16 Here, Plaintiffs contend that Defendants’ appeal is frivolous because “it involves issues of fact 17 that Defendants[’] actions violated clearly established rights of which a reasonable police officer 18 would have known.” Motion, ECF No. 159 at 12. They list numerous factual disputes about what 19 happened the day that Bui was killed and contend that Defendants do not accept all of their facts as 20 true in their appeal. See id. at 13-17. In response, Defendants say that Plaintiffs mischaracterize 21 their appeal. See Opposition, ECF No. 160 at 6. They say that they “intend to raise issues of law as 22 to whether the officers violated a clearly established right given the undisputed facts and also issues 23 of whether there is a genuine dispute about the underlying facts to the extent that such facts are 24 inextricably intertwined with determining whether a right was violated.” Id. They also say that they 25 also will argue that the stipulated record (i.e., the undisputed facts) alone warrant a finding of 26 qualified immunity. Id. 27 To declare the appeal frivolous, the court must find that it is “wholly without merit.” United 28 States v. Kitsap Physicians Serv., 314 F.3d 995, 1003 n.3 (9th Cir. 2002); see Piping Rock Partners, C 11-04189 LB ORDER 4 2013) (noting that "the standard for a frivolous appeal ‘is quite high,’ and frivolity should be found 3 in cases where the appeal is either ‘wholly without merit' or the outcome is ‘obvious’”) (citations 4 omitted). Here, the court cannot say that it is. Despite the general wording of their notice of appeal, 5 and as the court recalls from the summary judgment papers and oral argument, Defendants say the 6 court made erred for two reasons: (1) the record does not support Plaintiffs’ version of the facts, so 7 there is no genuine dispute of material fact; and (2) even assuming Plaintiffs’ version of the facts, 8 Officers Ortiz and Wilson are nevertheless entitled to qualified immunity. See Opposition, ECF No. 9 160 at 6; see also Transcript of June 26, 2014 Hearing, ECF No. 158 at 6 (Mr. Connolly: “And we 10 submitted a joint statement [of material facts] and it’s on that joint statement of stipulated facts that 11 we’re relying. In fact, most of the immaterial facts are not in dispute; but importantly, from an 12 For the Northern District of California Inc. v. David Lerner Assocs., Inc., No. C 12-04634 SI, 2013 WL 3458215, at *1 (N.D. Cal. July 9, 2 UNITED STATES DISTRICT COURT 1 officer’s perspective, the analysis that we’re engaging in in this particular motion, the material facts 13 are not in dispute.”), 16 (Mr. Connolly: “I don’t think it matters what position the knife is in as long 14 as Bui has the knife in his hand and as long as he continues to advance at the officers, it’s immaterial 15 whether or not the knife was at his side or above his head.”), 18 (Mr. Connolly: “[I]t doesn’t matter 16 how fast or slow someone with a knife advances at you.”; Mr. Connolly: “What I’m saying is that 17 it’s legally irrelevant to whether or not how fast he was advancing under the case or exactly what 18 position the knife was [in].”), 22 (Mr. Connolly: “The other thing I was going to mention was there 19 was some attempt by plaintiffs to argue that Bui was merely trying to leave through the front door 20 and he wasn’t — because he was trying to do that, he wasn’t a threat to the police officers. I want to 21 make sure that it’s understood that the testimony does not support that argument.”), 27-28 (Mr. 22 Connolly: “[T]he only thing they court really needs to read is the stipulated — the joint stipulated 23 statement because that in itself . . . is enough.”), 29 (“[E]very case that comes before you is going to 24 have some degree of disputed fact. What’s important here is the material facts that are not in 25 dispute.”), 30 (The Court: “I understand your argument perfectly, which is that the fact discrepancies 26 I’m pointing to[,] you think are immaterial to what the officers reasonably thought at the time.”). It 27 appears that Defendants do accept Plaintiffs’ version of the allegedly material facts as true for 28 purposes of their appeal. On this record, then, the court will not certify Defendants’ appeal as C 11-04189 LB ORDER 5 1 frivolous. 2 CONCLUSION 3 Based on the foregoing, the court DENIES Plaintiffs’ motion. In light of Defendants’ appeal, 4 5 6 the court vacates all remaining dates and deadlines currently set by this court. IT IS SO ORDERED. Dated: October 9, 2014 _______________________________ LAUREL BEELER United States Magistrate Judge 7 8 9 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C 11-04189 LB ORDER 6
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