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GOEHRING v. WRIGHT

July 20, 1994

EDWIN CARL GOEHRING, Plaintiff,
v.
EDDY GENE WRIGHT, RUDY ROBLEDO, COUNTY OF SANTA CLARA, SCOTT JERDEN, KIM BISHOP, BETH KIRSCHNER, MARIA C. LIRA, PAULA PALONE, and MANUEL CUNHA, Defendants.



The opinion of the court was delivered by: EDWARD A. INFANTE

 Defendants Eddy Gene Wright, Rudy Robledo and the County of Santa Clara (the "County") have each moved for summary judgment on all claims asserted in plaintiff Edwin Carl Goehring's Third Amended Complaint. Having reviewed the motion papers filed by all parties and considered the oral arguments of counsel, and good cause appearing for the reasons set forth below, the County's motion for summary judgment is granted, the motions of Wright and Robledo for summary judgment are granted in part and denied in part, and the remaining state law claims are remanded to the Santa Clara County Superior Court.

 I. Procedural Background

 This lawsuit alleging, inter alia, federal civil rights law violations arises out of plaintiff's arrest, prosecution, and acquittal in state court for an alleged "hate crime". In June 1991, plaintiff filed this civil lawsuit in Santa Clara County Superior Court, asserting purely state common law tort claims against several individuals, including Wright and Robledo. Plaintiff served a Third Amended Complaint in November 1992, naming the County as an additional defendant and, for the first time, asserting federal civil rights claims. The Third Amended Complaint asserts seven causes of action against each of the defendants, in order: (1) negligence; (2) false imprisonment; (3) malicious prosecution; (4) defamation; (5) false light; (6) conspiracy; and (7) violation of civil rights. The specific allegations are convoluted and not easily summarized but appear to have all arisen out of the same series of events described below.

 In December 1992 the County noticed removal of the action to this Court under 28 U.S.C. § 1441(b), *fn1" and the parties stipulated to venue in San Jose. In December 1993, pursuant to 28 U.S.C. § 636(c) and F.R.C.P. 73(c), the parties formally consented to the conduct of all proceedings, including dispositive motions and trial, by a magistrate judge. *fn2" Trial is scheduled to commence on August 23, 1994, and the discovery deadline lapsed on June 1, 1994. Only defendants Wright, Robledo and the County remain in the action, *fn3" and each has presently moved for summary judgment.

 II. Factual Background4

 In August 1990, a warrant was issued for plaintiff's arrest in connection with a criminal complaint charging plaintiff with, inter alia, a misdemeanor violation of California Penal Code section 422.6 (the so-called "hate crimes" statute). *fn5" The arrest emanated from a telephone complaint to the County Sheriff's Department from one of plaintiff's neighbors in early June 1990.

 Deputy sheriff, Michael McDonald, attests that the neighbor (whom he recalls to be former defendant Kirshner) complained to him that plaintiff was "mistreating" her dogs and horses, and had verbally and physically abused Wright and Robledo, a neighboring gay couple. *fn6" McDonald further attests that, around the same time, Wright and Robledo also called him and complained that plaintiff had "threatened" them. *fn7" McDonald went to plaintiff's house in Gilroy to investigate, spoke with ten of plaintiff's neighbors, and prepared an "incident report". In keeping with "standard practice", he submitted the report to the Sheriff's Office. *fn8" McDonald attests that he believed plaintiff's neighbors and that he prepared the incident report on the basis of their statements with the intent "to enforce the law". *fn9"

 According to the incident report, dated June 10, 1990, plaintiff and his wife, Joy Gail Goehring, had during an indeterminate period allegedly victimized each of their neighbors (including two small children), all of whom lived in "close proximity" in a rural mountain pass in Gilroy. Plaintiff and his wife collected rents from four of the neighbors, including Wright and Robledo. *fn10" All of the victims were reportedly fearful for their safety and indeed their lives. According to the report:

 
"Both SUSPECTS [plaintiff and his wife] are heavy abusers of alcohol. They drink from early morning until well into the night. Their intoxication is constant and while intoxicated they become easily angered and violent, arguing with each other and the VICTIMS. While intoxicated, they very often discharge shotguns and rifles into the air across fields and over the roofs of VICTIMS['] homes.
 
"Both SUSPECTS have threatened to kill, steel-trap, or poison the dogs and horses of those VICTIMS owning such animals if they were not kept quiet and/or chained up.
 
"While all but the child victims have been verbally threatened with death during arguments, it appears the SUSPECTS have especially picked out VICTIMS #1 and #2 [Wright and Robledo] on which to vent their hatred. VICTIM #1 and #2 are housemates, and both admittedly homosexual, quite secure in their style of life. Both VICTIMS have been threatened with death by the SUSPECTS, and VICTIM #1 accosted by SUSPECT #2 [plaintiff's wife] with a rifle or shotgun when she was so drunk she kept dropping the bullets on the ground.
 
"VICTIMS #1 and #2 have been told by SUSPECT #1 [plaintiff] that he would kill them because they were homosexuals and bury them at the back of the property in the field.
 
* * * * *
 
". . . SUSPECT #1 has constantly harassed [his neighbors], threatening to evict VICTIM #1 and #2 due to their sexual preferences, and [two others] because they are friends of VICTIMS # 1 and #2."
 
* * * * *
 
"The SUSPECTS have blatantly commited acts that are injurious, indecent, and offensive to the senses and obstruct the VICTIMS' ability to the free use of the property they rent. This offensive activity interferes with almost the entire little neighborhood's enjoyment of life, keeping them in constant fear, a violation of Section 370/372 P.C.
 
"They have additionally singled out two homosexual men due to their sexual preferences with threats of death and the loss of their home, a violation of Section 422.6(a) P.C.
 
"The SUSPECTS through their constant intoxication and threats, as well as their constant carrying and discharging of firearms to reinforce their threats, have kept their victims in a constant state of fear, bordering on terrorism (422 P.C.).
 
"This situation has a strong potential for the wounding or death of one or more of the participants. The SUSPECTS' guns were seized a week ago when SUSPECT #2 was arrested for shooting across . . . a heavily traveled state highway, and it is recommended a complaint be filed immediately." (Incident Report by Santa Clara County Deputy Sheriff Michael McDonald, dated June 10, 1990).

 Plaintiff denies any animus toward gays, and indeed attests that he has "always been sensitive to the rights of homosexuals". *fn11" He also declares that he has "conquered" his "drinking problem". *fn12" Plaintiff says he tried to speak with officials in the District Attorney's office but that they "did not listen" to his version of events. *fn13" His troubles with Wright and Robledo, plaintiff contends, derived from his discovery of "a smell like ether" coming from the gay couple's residence: "They might be involved in a drug lab of sorts." *fn14" Plaintiff says he threatened to give them notice to quit their rental unit, and Wright and Robledo made bias charges in retaliation. *fn15" Deputy district attorney Anastasia Steinberg prosecuted plaintiff for his alleged hate crimes, People v. Goehring, No. F9045790 (Santa Clara Co.). *fn16" Apparently, plaintiff was acquitted of all charges following trial. *fn17"

 III. Discussion

 A. Standard for Evaluating Summary Judgment Motions

 Summary judgment "shall be rendered forthwith" where the evidence shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). "Material" facts are those which "might affect the outcome of the suit under the governing law". Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).

 A properly supported summary judgment motion "cannot be defeated by relying solely on conclusory allegations unsupported by factual data." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Nor is the "mere existence of a scintilla of evidence" sufficient to save the day if the non-moving party would bear the burden of proof at trial. Anderson, supra, 106 S. Ct. at 2512. The party opposing the motion "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added). This means that the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts". Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). Rather, "there must be evidence on which the jury could reasonably find for the [non-movant]". Anderson, supra, 106 S. Ct. at 2512.

 B. Ripeness of Summary Judgment Motion

 Plaintiff contends that the motions for summary judgment are "premature" because he has not had an adequate opportunity to conduct discovery. *fn18" Purportedly, he could not conduct discovery "in earnest" until after receiving certain files from the office of the County's District Attorney this past February, and that other such files were not produced until just prior to the discovery deadline.

 "Should it appear from the affidavits of a party oppoing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just." Fed.R.Civ.P. 56(f) (emphasis added).

 Here, plaintiff has not supported his argument for additional discovery with the requisite sworn statement from his counsel attesting to the specific discovery still needed and why it could not have been conducted already.

 Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986). Plaintiff has not even supplied unsworn arguments proposing particular avenues of discovery.

 Moreover, it appears from the record which is before the Court that plaintiff has had ample opportunity for discovery and that the motions are not premature. As mentioned, the lawsuit was first filed more than three years ago (in June 1991), trial is scheduled to commence next month (in August 1994) and, significantly, the discovery deadline lapsed (on June 1, 1994) before any of the motions were even filed. Although the County was named a defendant and the lawsuit was removed to this Court only within the past year (in December 1993), this did not prevent plaintiff from discovering evidence during the more than two years the case was pending in state court. *fn19" The motions are ripe for determination.

 C. Civil Rights Cause of Action

 Plaintiff asserts in his seventh cause of action that each of the defendants violated his civil rights under 42 U.S.C. §§ 1983 and 1985. *fn20"

 1. Section 1983

 Section 1983 states:

 
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . ."

 42 U.S.C. § 1983. The statute "creates no substantive rights" but instead "merely provides remedies for deprivations of rights established elsewhere." City of Oklahoma v. Tuttle, 471 U.S. 808, 105 S. Ct. 2427, 2432, 85 L. Ed. 2d 791 (1985).

 a. The County

 Local governments cannot be sued under section 1983 except for injuries resulting from an official policy or custom. Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 2037-2038, 56 L. Ed. 2d 611 (1978).

 Here, plaintiff has not identified the official policy or custom which he claims infringes his rights. The County specifically inquired regarding this matter in an interrogatory to plaintiff, as follows:

 
"INTERROGATORY NO. 18: Do you contend that your constitutional rights were violated by defendant COUNTY OF SANTA CLARA pursuant to a custom, policy, ordinance or regulation of the COUNTY OF SANTA CLARA? If so, state with specificity the custom, policy, ordinance or regulation pursuant to which your constitutional rights were violated."

 Plaintiff's response is unilluminating: "Yes." *fn21" However, he argues in his opposition papers that the County's prosecution of the hate crimes statute amounts to "undo attention . . . given to every new case involving homosexuals", resulting in a form of "reverse discrimination" toward Germans and/or German sur-named persons, whom he contends are imputed in the public consciousness with Nazism. *fn22" At the hearing on the motion, his counsel argued further that the plaintiff was also the victim of reverse discrimination toward "non-gays". *fn23" Thus, plaintiff apparently contends that the hate crimes statute was selectively enforced against him because of his ethnicity (or perceived ethnicity) and/or his sexual orientation (or perceived sexual orientation) in violation of his right to equal protection. *fn24"

 The County's policy regarding charging hate crimes is contained in an internal memorandum, dated April 3, 1991, from the District Attorney to his "Issuing Team". *fn25" The memorandum states in part:

 
"In response to a growing concern about hate crimes, traditional offenses which appear motivated (in part or in full) by the offender's bias are to be charged additionally as have [sic] crimes . . .
 
"Because of the difficulty of ascertaining the offender's subjective motivation, hate crimes are only to be additionally charged if investigation reveals sufficient objective facts to lead a reasonable person to conclude that the offender's actions were so motivated. The types of bias are limited ...

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