ORDER RE: SUMMARY ADJUDICATION AND RECONSIDERATION
Defendants have made three motions for summary adjudication. Plaintiff has made a motion for reconsideration. All motions deal with related matters. The motion for reconsideration is denied and the motions for summary adjudication are granted in part and denied in part.
Gary Willis ("Plaintiff") was a registered occupant of the E-Z 8 Motel in Bakersfield, CA on March 27, 1996. Police received reports of heavy traffic from that room and were informed it was registered under Plaintiff's name. The Defendants are four law enforcement officers form different departments who were sent to investigate: Bakersfield Police Officer Joseph Mullins, Bakersfield Police Officer Silvius, Kern County Deputy Sheriff Hood, and California State Parole Officer Diane Mora.*fn1 Defendant Mullins consulted a list of parolees generated by the California Department of Corrections and distributed to local police departments on a roughly monthly basis ("Parole Roster"). He presented the Parole Roster to Defendant Mora; she confirmed the Parole Roster indicated that Plaintiff was on parole and subject to search. After announcing their presence and entering the motel room, Defendants found two individuals inside, Plaintiff and Kathleen Moye. Also visible were a knife, a syringe, and a briefcase. Defendants announced the commencement of a parole search. Plaintiff informed Defendant Mullins he was no longer on parole and provided his parole discharge card. Defendant Mora left to seek telephone confirmation of Plaintiff's parole status. In fact, Plaintiff had been discharged from parole nine months prior. While the call was taking place, Defendant Mullins detained Plaintiff outside the motel room while Defendants Silvius and Hood talked with Ms. Moye inside the room. Ms. Moye admitted to recently using methamphetamine, stated that she put a speed pipe in the briefcase, and consented to search of the briefcase. Defendant Mullins brought Plaintiff back into the room. Defendants Mullins, Silvius, and Hood opened the briefcase and found methamphetamine, speed pipes, syringes, set of scales, small plastic bags, spoons, and pay-owe sheets. At some point, Defendant Mora returned and informed Defendant Mullins that Plaintiff was not on parole. Defendants arrested Plaintiff and Ms. Moye.
Plaintiff made a motion to suppress evidence, which the California trial court denied. Based on evidence found within the motel room, Plaintiff was convicted of possession of methamphetamine for sale (Cal. Health & Safety Code § 11378) and possession of narcotics paraphernalia (Cal. Health & Safety Code § 11364). He ultimately served six years in state prison. On appeal, the Fifth District Court of Appeal found the entry unconstitutional and the good faith exception to the exclusionary rule inapplicable, but nonetheless affirmed the denial of suppression based on the finding that the officers had sufficient probable cause to search the briefcase based on Ms. Moye's statements to Defendant Silvius. The Fifth District's rationale was that the "freeze" in search was a reasonable response to the uncertainty concerning Plaintiff's parole status. People v. Willis, 71 Cal. App. 4th 530, 541 (Cal. Ct. App. 1999). On appeal, the attorney general conceded that the Fifth District's rationale for denying the motion to suppress was erroneous. People v. Willis, 28 Cal. 4th 22, 25 (Cal. 2002). The California Supreme Court overturned Plaintiff's conviction on June 3, 2002, finding that evidence from the search must be suppressed as the good faith exception did not apply. People v. Willis, 28 Cal. 4th 22, 38 (Cal. 2002). Plaintiff was released on August 31, 2002.
Thereafter, Plaintiff filed a civil suit based on a number of causes of action. At this point, the only cause of action that remains is 42 U.S.C. §1983 against all Defendants. When this suit was first brought, Plaintiff was unable to locate Defendant Hood; he was not brought into the case until a few years had passed. As a result, Defendant Hood was not involved when the original motions for summary judgment were made. Plaintiff first made a motion for summary adjudication, arguing that the California Supreme Court's decision in People v. Willis, 28 Cal. 4th 22 (Cal. 2002) had preclusive effect on the Defendants. Plaintiff's motion for summary adjudication was denied. Doc. 81, December 21, 2005 Order. The decision was certified for interlocutory appeal. Doc. 109, February 28, 2006 Order. Plaintiff's petition for appeal was denied by the Ninth Circuit. Doc. 124. Next, the Bakersfield Defendants and Defendant Mora made motions for summary judgment. The court granted in part and denied in part, finding:
1. Defendants' initial entry into the motel room violated Plaintiff's constitutional rights. Qualified immunity on this issue can not be determined at this time.
2. Defendant Mora's actions in confirming Plaintiff's parole status once he produced his parole discharge card did not violate Plaintiff's constitutional rights.
3. Bakersfield Defendants' search of the briefcase did not violate Plaintiff's constitutional rights.
Doc. 172, September 25, 2007 Order, at 39:7-12. Defendant Mora appealed the denial of qualified immunity for the initial entry as a matter of right. The Ninth Circuit affirmed the denial of qualified immunity. Willis v. Mora, 314 Fed. Appx. 68 (9th Cir. 2009).
The parties were given a chance to file additional dispositive motions in order to clarify the issues for trial. The Bakersfield Defendants, Defendant Mora, and Defendant Hood have made motions for summary adjudication. Plaintiff has made a motion for reconsideration. The four motions deal with overlapping issues. All motions are opposed. The matters were taken under submission without oral argument.
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008).
The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Juell v. Forest Pharms., Inc., 456 F.Supp.2d 1141, 1149 (E.D. Cal. 2006); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated ...by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003). If the non-moving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. See Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1103 (9th Cir. 2000).
In the summary judgment order, the court stated "Based on the consent of Ms. Moye, the searching of the briefcase did not violate Plaintiff's constitutional rights." Doc. 172, Sept. 25, 2007 Order, at 36:22-23. Plaintiff now seeks reconsideration, arguing that (1) Ms. Moye's consent was tainted by Defendants' prior actions and (2) Ms. Moye lacked the authority to consent to the search of the briefcase. These are legal arguments Plaintiff did not raise in opposing summary judgment.*fn2 Defendants object to reconsideration on the grounds that Plaintiff fails to meet the applicable standard under Fed. Rule Civ. Proc. 60. See Docs. 252 and 253. Plaintiff argues that "in applying to the court for permission to make his motion for reconsideration on the issue of the search of plaintiff's briefcase, plaintiff thoroughly briefed the Court on why reconsideration of that issue was necessary in Plaintiff's Pretrial Memorandum of Points and Authorities With Respect to the Issues Remaining in this Action (Doc. #230), and, based upon that briefing, and oral argument, on October 4, 2010, the Court orally granted plaintiff permission to file the instant motion for reconsideration as to the briefcase issue." Doc. 258, Reply, at 3:12-19. It is not clear, but Plaintiff may have misconstrued this court's purpose in permitting a motion for reconsideration. There were outstanding legal issues in this case that were best dealt with before trial. The court set out a briefing schedule to allow additional motions for summary judgment to resolve those issues. In order to give Plaintiff's request for reconsideration a full and fair hearing, Plaintiff was orally granted permission to file a formal motion on the same briefing schedule. That permission does not waive the applicable legal standard.
Defendants argue Plaintiff has not met the requirements of Fed. Rule Civ. Proc 59, 60, or Local Rule 230. Plaintiff responds that the applicable standard is encapsulated in Fed. Rule Civ. Proc. 54. Local Rule 230(j) states:
Whenever any motion has been granted or denied in whole or in part, and a subsequent motion for reconsideration is made upon the same or any alleged different set of facts, counsel shall present to the Judge or Magistrate Judge to whom such subsequent motion is made an affidavit or brief, as appropriate, setting forth the material facts and circumstances surrounding each motion for which reconsideration is sought, including:
(1) when and to what Judge or Magistrate Judge the prior motion was made; (2) what ruling, decision, or order was made thereon; (3) what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion; and (4) why facts or circumstances were not shown at the time of the prior motion.
Plaintiff has not followed Local Rule 230's prescriptions in that there is no explanation for why the legal arguments advanced were not included in the original briefing on the summary judgment motion. However, the filing does provide enough information for a ruling. Similarly, the disagreement regarding which rule governs the motion is not important as the legal standards advanced by the parties are congruent.
With respect to non-final orders, such as the Partial Judgment, the Ninth Circuit has recognized that as long as a district court has jurisdiction over the case, then it possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient. This inherent power is grounded in the common law and is not abridged by the Federal Rules of Civil Procedure. In addition to the inherent power to modify a non- final order, Rule 54(b) authorizes a district court to revise a non-final order at any time before entry of a judgment adjudicating all the claims....As to inherent authority, a district court may reconsider and modify an interlocutory decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of controlling law. But a court should generally leave a previous decision undisturbed absent a showing that it either represented clear error or would work a manifest injustice. Rule 54(b) does not address the standards which a court should apply when assessing a motion to modify an interlocutory order; however, courts look to the standards under Rule 59(e) and Rule 60(b) for guidance.
Jadwin v. County of Kern, 2010 U.S. Dist. LEXIS 30949, *25-27 (E.D. Cal. Mar. 31, 2010), citations and quotations omitted. "A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999).
Plaintiff specifies that "the prior order may be clearly erroneous and hence result in an 'useless trial.'" Doc. 258, Reply, at 4:19-20. Plaintiff does not appear to make any argument that the controlling law has changed or that special circumstances in this case would work a manifest injustice. Regarding clear error, "the standards for review embodied in Rules 54(b) and 60(b) are complementary." Labastida v. McNeil Techs., Inc., 2011 U.S. Dist. LEXIS 18605, *5 (S.D. Cal. Feb. 25, 2011). Review of law under the clear error standard is not de novo. See McDowell v. Calderon, 197 F.3d 1253, 1255-56 (9th Cir. 1999) ("The question being a debatable one, the district court did not commit clear error"). "Although the definition of clear error we have employed in differing contexts varies to some extent, it generally allows for reversal only where the court of appeals is left with a 'definite and firm conviction' that an error has been committed." Tuan Van Tran v. Lindsey, 212 F.3d 1143, 1153 (9th Cir. 2000), citations omitted. The Ninth Circuit has warned that "The meaning of the 'clearly erroneous as a matter of law' standard of review is elusive at best." In re Cement Antitrust Litigation, 688 F.2d 1297, 1305 (9th Cir. 1982).
As a general matter, a motion to reconsider is not a vehicle for parties to make new arguments that could have been raised in their original briefs. See Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). However, when refusal to consider an argument results in clear legal error, courts should exercise their discretion to consider the matter. See United States v. Navarro, 972 F. Supp. 1296, 1300 (E.D. Cal. 1997) ("While the court has discretion to consider a waived Teague defense, the standards applicable to a motion for reconsideration articulated above counsel restraint in the entertaining of arguments which the government could have raised earlier, unless the refusal to reconsider would result in clear legal error"). Similarly, another court stated, "A change in a litigant's legal position is not one of the extraordinary circumstances justifying a motion to reconsider and suggests why such motions are generally discouraged" while analyzing the new legal argument under the clear error standard anyway. Winnemucca Farms, Inc. v. Eckersell, 2009 ...