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December 2, 2005.

DOMINGO ALVAREZ, et al., Plaintiffs,
CITY OF LOS ALTOS, et al., Defendants.

The opinion of the court was delivered by: JEREMY FOGEL, District Judge


Defendants City of Los Altos ("City"), Police Officer Scott McCrossin ("McCrossin"), and Police Captain Tom Connelly ("Connelly") (collectively "Defendants") move for an order of summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. The Court has read the moving and responding papers and has considered the arguments of counsel presented on October 14, 2005, as well as supplemental briefing submitted after the hearing. For the reasons set forth below, the Court will grant Defendants' motion for summary judgment. I. BACKGROUND

On July 3, 2003, Los Altos Police Officers McCrossin and Connelly*fn2 arrested, cited and released Domingo Alvarez, Cruz Arenas, Willy Escobar, Joaquin Chavez, Miguel Estrada, Juan Florez, Hector Ortiz, and Jose Rodriguez (collectively "Plaintiffs") for trespassing on private property pursuant to former California Penal Code § 602(1).*fn3 Connelly Dec., ¶ 3; Opp. at 2. It is undisputed that the arrests were preceded by the following events: At approximately 8:56 a.m. on July 3, 2003, Connelly observed Plaintiffs "loitering" on private commercial property located at 4898 El Camino Real (the "Gundunas property"), on the corner of Jordan Avenue, in the City of Los Altos.*fn4 Connelly Dec., ¶¶ 2, 3. Plaintiffs, who are day laborers, were awaiting opportunities for employment. Connelly Dec., ¶ 3; Opp. at 2. Upon initiating contact with Plaintiffs, Connelly recorded their specific locations, noting that two of the Plaintiffs were seated on a porch which accessed the building and six of the Plaintiffs were standing on an asphalt driveway near the rear of the building. Connelly Dec., ¶ 9, Exs. C1-C4. Connelly also noted that Plaintiffs were not near one of the surrounding public sidewalks, which were located at the front and rear of the Gundunas property. Id. For purposes of the present motion, Plaintiffs do not dispute that McCrossin and Connelly reasonably believed that Plaintiffs were standing or sitting on private property at the time the citations were issued.*fn5 Opp. at 3. At the time Connelly observed Plaintiffs on July 3, 2003, he was aware that Louis Gundunas, the property owner at 4898 El Camino Real, had complained to the City regarding prior trespasses on his property on at least seven occasions during the first half of 2003. Connelly Dec., ¶ 4. Mr. Gundunas previously had informed the City that trespassers had caused damage to the building and landscaping, had discarded trash on the property, and had scared away customers. Id. On several occasions prior to July 3, 2003, Mr. Gundunas had spoken personally with Connelly and Officer Brent Butler regarding the ongoing trespassing issues at his property. Id., ¶ 5. Connelly advised Mr. Gundunas to post "No Trespassing" signs on the property and to contact the police when individuals were loitering or causing problems on the property. Id. On July 3, 2003, the Gundunas property was posted with four "No Trespassing" or "Private Property" signs. Connelly Dec., ¶ 5, Exs. C5-C6.

  Connelly previously had encountered Plaintiff Juan Florez on the Gundunas property and had issued him a warning about trespassing. Connelly Dec., ¶ 6. In addition, Connelly had observed at least three of the Plaintiffs "loitering" on the Gundunas property in the past. Id., ¶ 8. On June 17, 2003, Los Altos Police Officers Sweezy and Corkern encountered Plaintiff Cruz Arenas on the Gundunas property and had issued him a warning about trespassing. Id.

  Based on the July 3, 2003 incident, Plaintiffs filed suit against the City, McCrossin, and Connelly under 42 U.S.C. § 1983 ("Section 1983") for violation of Plaintiffs' rights under the First, Fourth, and Fourteenth Amendments to the U.S. Constitution. Plaintiffs contend that it was unreasonable for McCrossin and Connelly to arrest and cite them for criminal trespass under the facts presented. Opp. at 5. Defendants now move for summary judgment.


  A motion for summary judgment should be granted if 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the initial burden of informing the Court of the basis for the motion and identifying the portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

  "When the nonmoving party has the burden of proof at trial, the moving party need only point out `that there is an absence of evidence to support the nonmoving party's case.'" Devereaux v. Abbey, 263 F.3d 1070, (9th Cir. 2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once the moving party meets this burden, the nonmoving party may not rest upon mere allegations or denials, but must present evidence sufficient to demonstrate that there is a genuine issue for trial. Id. A genuine issue for trial exists if the non-moving party presents evidence from which a reasonable jury, viewing the evidence in the light most favorable to that party, could resolve the material issue in his or her favor. Anderson, 477 U.S. 242, 248-49; Barlow v. Ground, 943 F.2d 1132, 1134-36 (9th Cir. 1991).


  Defendants move for summary judgment on two grounds. First, McCrossin and Connelly contend that they are insulated from liability under the doctrine of qualified immunity. Second, the City argues that it is not liable under 42 U.S.C. § 1983 for the individual actions of McCrossin and Connelly because the officers were not acting pursuant to any City policy or custom when they arrested Plaintiffs.

  A. Entitlement to Qualified Immunity

  The defense of qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).*fn6 The rule of qualified immunity "`provides ample protection to all but the plainly incompetent or those who knowingly violate the law.'" Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). "Therefore, regardless of whether the constitutional violation occurred, the [official] should prevail if the right asserted by the plaintiff was not `clearly established' or the [official] could have reasonably believed that his particular conduct was lawful." Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991).

  A court considering a claim of qualified immunity first must determine whether the facts as alleged, taken in the light most favorable to the party asserting the injury, show that the officer's conduct violated a constitutional right. See Saucier, 533 U.S. at 201; Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201. On the other hand, if a violation could be made out on the allegations, the next sequential step is to ask whether the right was "clearly established."*fn7 Saucier, 533 U.S. at 202; Sorrels, 290 F.3d at 969. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202. "If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Id. Moreover, even if the violated right is clearly established, the officer is entitled to the qualified immunity defense if "the officer's mistake as to what the law requires [was] reasonable."*fn8 Id. at 205.

  In the instant action, Plaintiffs argue that it was not objectively reasonable for McCrossin and Connelly to arrest and cite them under former California Penal Code § 602(1). Under that statute, the following conduct is unlawful: "Entering and occupying real property or structures of any kind without the consent of the owner, the owner's agent, or the person in lawful possession." Plaintiffs argue correctly that Section 602(1) requires the occupation of real property, construed as a "non-transient, continuous type of possession." See People v. Harper, 269 Cal. App. 2d 221, 222 (1969) (holding that a burglar establishes only transient possession and therefore does not commit criminal trespass under Section 602(1)); People v. Wilkinson, 248 Cal. App. 2d Supp. 906, 909-910 (1967) (holding that an unauthorized overnight stay on a private beach by a group of campers did not amount to a criminal trespass under Section 602(1)). Applying this principle to the facts at hand, ...

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