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Gabrielle Rodriguez v. City of Fresno

December 3, 2010



Document # 36

In this action, plaintiff Gabrielle Rodriguez ("Plaintiff") alleges civil rights violations under federal and state law against defendants City of Fresno, Jerry Dyer and Robert Chavez (collectively, "Defendants") based on injuries she sustained as a bystander during a police response to an incident at her home in the City of Fresno. During discovery, Plaintiff moved to compel disclosure of certain personnel records pertaining to Defendants Dyer and Chavez and pertaining to non-defendant Fresno Police Officer, Derek Avila ("Avila"). On September 1, 2010, the Magistrate Judge issued an order granting in part and denying in part Plaintiff's motion to compel (hereinafter, the "September 1 Order").

In the instant motion, Defendants seek reconsideration of the Magistrate Judge's September 1 Order to the extent it granted Plaintiff's motion to compel disclosure of records that pertain to the personnel and internal affairs records of Avila. For the reasons that follow, the court will deny Defendants' motion for reconsideration.


The factual allegations set forth in the complaint differ sharply from those alleged by Defendants in their motion for reconsideration. Defendants allege Fresno Police Department dispatched defendant Chavez and officer Avila in response to a telephone report of a disturbance at a residence located at 964 E. Princeton, Fresno. The caller reported a person brandishing a gun and identified the person as Danny Hernandez, a Bulldog gang member, and gave a description of him. The two officers approached the residence and parked about 300 feet away. As they approached on foot, Defendants allege they saw a person fitting the description of the person who called in the report in the backyard and saw a person walking out the front door of the apartment who was later identified as Hernandez. Defendants allege they approached Hernandez with guns drawn and identified themselves whereupon Hernandez turned and ran back to the apartment, opened the door and went inside. The officers pursued Hernandez to the apartment and kicked the door open as Hernandez was attempting to shut it. Defendants then allege as follows:

Officer Chavez continually ordered Hernandez to stop and show his hands. Hernandez grabbed for his waistband [where a weapon was reportedly concealed] and looked over his shoulder towards Officer Chavez, as if to size him up. With his hand on his waistband, Hernandez' upper body started to rotate toward Office Chavez. Officer Chavez believed his life was in danger and feared for the safety of the others in the room. He [Chavez] then fired two shots. Officer Chavez saw Hernandez either grab a female standing to the right of him, or run into her causing her to turn and come between Officer Chavez and Hernandez. Hernandez went down and a gun landed on the ground. Officer Chavez kicked the gun away from Hernandez. The gun, later determined to be loaded, matched the description provided by the original reporting party.

Doc. # 36 at 3:9-17.

In contrast, Plaintiff's complaint alleges the following with regard to the same events leading up to the point Plaintiff suffered the wound now complained of:

On January 1, 2009, [Plaintiff] was attending a New Years's Eve party at the real property located at 964 E. Princeton Ave., Apt. A, Fresno, California (the "Subject Premises") with her boyfriend Danny Hernandez ("Mr. Hernandez"). After engaging in a verbal argument with another guest inside the Subject Premises, Mr. Hernandez went outside. While outside the Subject Premises, Mr. Hernandez heard a noise, which caused him to inspect the area near the gate. Mr. Hernandez was startled by men dressed in dark clothing, who pointed their guns toward Mr. Hernandez's face. The men, who Mr. Hernandez later learned were City of Fresno Police Officers, failed to identify themselves, and carried guns with flashlights attached on top, identical to those used by gang members in the area.

Accordingly, Mr. Hernandez, in fear that he was under attack by gang members, fled into the Subject Premises for safety. Mr. Hernandez was not carrying a weapon and did not otherwise pose a threat to the City of Fresno Police Officers or any other persons. Having failed to identify themselves and having no cause to follow a private citizen into a residence, shortly after Mr. Hernandez entered the Subject Premises, the City of Fresno Police Officers forcibly entered into the Subject Premises through the front door absent a warrant and absent exigent circumstances. [¶ . . .¶] [Plaintiff] was in the house at the time the police officers entered the dwelling without consent. [Plaintiff] was simply standing in the house when the officers entered and did not have any weapons on her person. Without provocation or probable cause, Defendant Chavez intentionally, recklessly, and/or negligently fired two rounds and shot [Plaintiff] and Mr. Hernandez. Mr. Hernandez was struck in the back while [Plaintiff] was struck in the abdomen.

Doc. # 1 at 2:25 - 3:28 (Paragraph numbers omitted).

Plaintiff's complaint was filed on July 2, 2009. The complaint alleges eight claims for relief. The first alleges violation of Plaintiff rights under the Fourth and Fourteenth Amendments in violation of 28 U.S.C. § 1983 against Defendant Chavez. Plaintiff's second claim for relief alleges Monell claims against Defendants Dyer and City of Fresno. Plaintiff's third and fourth claims for relief allege negligence and battery claims respectively against Defendants Chavez and City of Fresno. Plaintiff's fifth claim for relief alleges unlawful use of violence based on race or gender in violation of California Civil Code section 51.7 against Defendants Chavez and City of Fresno. Plaintiff's sixth claim for relief alleges violation of California Civil Code, section 52.1 against all Defendants. Plaintiff's seventh claim for relief alleges negligent hiring, training and supervision against Defendants Dyer and City of Fresno and Plaintiff's eighth claim alleges vicarious liability against City of Fresno.

Plaintiff's motion to compel which was the subject of the Magistrate Judge's September 1 Order was filed on June 24, 2010. The parties filed a joint statement of discovery disagreement on July 28, 2010. On August 6, 2010, following hearing on the discovery dispute, the parties filed a stipulated order resolving certain issues and filed an amended statement of discovery disagreement. The September 1, Order resolved the remaining disputed discovery issues.

At issue in the instant motion for reconsideration is the Magistrate Judge's grant of Plaintiff's motion to compel with ...

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