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Bashkin v. San Diego County

August 13, 2010

PAUL BASHKIN, PLAINTIFF,
v.
SAN DIEGO COUNTY; HOWARD KLUGE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; BRET GARRETT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is the Motion for Reconsideration of Order Partially Granting Summary Judgment ("Motion for Reconsideration"), filed by Plaintiff Paul Bashkin. (Doc. # 56, 57).

I. Background

On May 20, 2010, the Court issued an Order which granted in part and denied in part the motion for summary judgment filed by Defendants. (Doc. # 53). In the Order, the Court granted the motion for summary judgment as to the Complaint's unlawful detention claim and the second cause of action, "conspiracy to interfere with civil rights" pursuant to 42 U.S.C. § 1985 (Doc. # 1 at 5), and denied the motion for summary judgment as to the Complaint's excessive force claim and unlawful search claim.

On June 9, 2010, Plaintiff filed the Motion for Reconsideration. (Doc. # 56, 57).

Plaintiff contends:

That portion of the Order granting summary judgment on Bashkin's unlawful-detention claim had no basis in law or fact. ... [R]econsideration and reversal are mandated because there was no evidence to support a finding that defendants could reasonably conclude that Bashkin had trespassed under either statute [i.e., Cal. Penal Code §§ 602(o), 602.1]. The Order completely misstated the facts, misapplied the law and failed to utilize the proper standard of review, all to defendant's advantage. Assuming Bashkin's version of the facts to be correct and viewing the evidence in the light most favorable to him, this Court was required to find that: (1) the 'ban letter' did not require Bashkin to immediately leave Barona; (2) Bashkin did not refuse to leave Barona; (3) Bashkin did not intentionally interfere with Barona's business; and (4) defendants did not suspect Bashkin of having trespassed.

Moreover, inexplicably missing from the Order is any admonishment or discussion of defendants', their counsel's and their witnesses' destruction and falsification of evidence, perjury and the subordination thereof. It was clear error for this Court to give credence to [Defendant] Kluge's deposition testimony regarding Bashkin's alleged trespassing, since it was: (1) impeached by Kluge's earlier statements; and (2) based on evidence that had been falsified (the Barona 'ban letter') and destroyed (the tapes made by Barona), so as to conceal the truth. (Doc. # 56-1 at 1-2). Plaintiff also contends:

[G]ood cause exists for reconsideration of the grant of summary judgment on my Second Cause of Action pursuant to 42 U.S.C. § 1985, because the ruling was clear error. This Court should have provided me with the opportunity to amend my Complaint to conform to its ruling. In my Opposition to the Motion, I established that I could sufficiently amend my Complaint to comply with that ruling. If given the opportunity, in addition to my existing allegations, I would amend my Second Cause of Action to add the following allegations:

The conspiracy was racially motivated. Its purpose was to prevent Bashkin and other non-native American patrons of Barona Casino, through force, violence and intimidation, from seeking and enforcing their right to the equal protection of the laws. The conspirators believed that they could get away with it because Barona and its representatives were immune from liability due to their status as a sovereign nation. (Bashkin Decl. ¶ 6, Doc. # 56-2 (citations omitted)).

On June 25, 2010, Defendants filed an opposition to the Motion for Reconsideration. (Doc. # 60).

On July 2, 2010, Plaintiff filed a reply in support of the Motion for Reconsideration. (Doc. # 61).

II. Discussion

A. Standard of ...


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