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Justin Howard v. Byron Hibshman; Siavash Pazargadi; City of San

June 29, 2012


The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge


Before the Court is Defendants Officer Byron Hibshman, Siavash Pazargadi, and the City of San Diego's motion for summary judgment. Plaintiff Justin Howard filed an opposition on March 2, 2012. Defendants filed a reply on March 9, 2012. A hearing was held on June 22, 2012. Iwo Ostoja, Esq. appeared on behalf of Plaintiff and John Riley, Esq. appeared on behalf of Defendants. After a thorough review of the briefs, supporting documentation, applicable law, and hearing oral argument, the Court GRANTS in part and DENIES in part Defendants' motion for summary judgment.

Procedural Background

On December 10, 2010, Plaintiff Justin Howard filed a 42 U.S.C. § 1983 civil rights complaint against Defendants Officer Byron Hibshman, Senior Traffic Engineer Siavash Pazargadi and the City of San Diego. (Dkt. No. 1.) Defendants Hibshman and the City of San Diego filed an answer on March 4, 2011. (Dkt. No. 8.) On April 15, 2011, Defendant Pazargadi filed an answer. (Dkt. No. 13.) On August 4, 2011, the Court granted Plaintiff's motion for leave to file a first amended complaint. (Dkt. No. 22.) On August 23, 2011, Plaintiff filed a first amended complaint. (Dkt. No. 23.) Plaintiff asserts ten causes of action:

1. First Cause of Action -Violations of the First, Fifth and Fourteenth Amendments to the United States Constitution against all Defendants;

2. Second Cause of Action - Conspiracy to Violate Federal Rights against Defendants Hibshman and Pazargadi;

3. Third Cause of Action - False Imprisonment against Defendants Hibshman and the City of San Diego;

4. Fourth Cause of Action - Racial Discrimination against Defendants Hibshman and the City of San Diego;

5. Fifth Cause of Action - Slander against Defendant Hibshman;

6. Sixth Cause of Action - Violation of California Civil Code § 52.1 against Defendant Hibshman;

7. Seventh Cause of Action - Violation of California Civil Code § 52.1 against Defendant Pazargadi;

8. Eighth Cause of Action - Malicious Prosecution against Defendant Hibshman; 9 Ninth Cause of Action - Intentional Infliction of Emotional Distress against Defendants Hibshman and Pazargadi;

10. Tenth Cause of Action - Negligent Infliction of Emotional Distress Against Defendants Hibshman and Pazargadi.

On September 8, 2011, Defendants filed an answer to the first amended complaint. (Dkt. No. 24.) On January 12, 2012, Defendants filed a motion for summary judgment. (Dkt. No. 33.) Plaintiff filed an opposition on March 2, 2012. (Dkt. No. 40.) Defendants filed a reply on March 9, 2012. (Dkt. No. 49.) On April 25, 2012, the Court set a briefing schedule requiring the parties to address whether the amended Pedicab Ordinance that became effective on October 11, 2009 is retroactive or not. (Dkt. No. 51.) On May 5, 2012, Defendants filed a supplemental brief. (Dkt. No. 52.) On May 14, 2012, Plaintiff filed his response. (Dkt. No. 53.)

A. Defendants' Facts

1. March 18, 2010 Incident

On March 18, 2010, around 2:55 p.m., Defendant Officer Hibshman saw Plaintiff in a pedicab stopped in front of the train station on Kettner Boulevard in San Diego. (Dkt. No. 33-12, Ds' Exs., Hibshman Decl. ¶ 2.) Based on the yellow color of the permit, Hibshman determined that Plaintiff's permit had expired. (Id.) The 2009 permits were yellow and the 2010 permits were red. (Id.) Hibshman wrote a citation for violation of San Diego Municipal Code section 81.0103 - Permit Requirement to Operate Pedicab.*fn1 (Id. ¶ 3.) Hibshman noticed that Plaintiff was becoming upset and rather than exacerbate the situation, he did not confiscate the invalid permit. (Id. ¶ 4.) He told Plaintiff to return the leased pedicab to the owner's warehouse and not to drive a pedicab until he obtained a current permit. (Id.)

After receiving the citation, Plaintiff pulled away from the curb on Kettner Boulevard. (Id. ¶ 5.) Hibshman noticed that Plaintiff had a red signal light for his direction of travel but he did not stop at the limit line but instead pedaled across the limit line as he approached the trolley tracks where a nearby trolley was approaching from the southwest direction. (Id.) Plaintiff continued pedaling his pedicab towards the trolley tracks and the trolley driver had to slow the trolley because of Plaintiff's approach to the tracks. (Id.) The trolley driver sounded the horn at Plaintiff to gain his attention. (Id.) During this time, Plaintiff was agitated and continued yelling something to the effect that the law did not apply to him. (Id.)

After the trolley passed, Plaintiff crossed through a red signal light, proceeded through the intersection turning right, heading west on Broadway toward Harbor Drive. (Id. ¶ 6.) Because of his vehicle code violation, Hibshman proceeded to follow Plaintiff in his motorcycle intending to stop Plaintiff and cite him for violating the traffic law. (Id.) Hibshman called for backup because of Plaintiff's continued agitation and yelling. (Id.)

Hibshman yelled and signaled at Plaintiff to stop his pedicab but he refused. (Id. ¶ 7.) While on West Broadway, between Kettner and Harbor Drive, Hibshman tried three times to put his marked police motorcycle in front of Plaintiff in order to force him to stop. (Id.) On each attempt, Plaintiff swerved around his motorcycle and avoided stopping. (Id.) On the same stretch of West Broadway, Hibshman saw a marked San Diego Police car try two times to pull over Plaintiff. (Id.) Plaintiff swerved around the patrol car both times and at one point crossed the double yellow line and cones that delineate the east and west bound traffic on West Broadway. (Id.) He crossed into oncoming traffic traveling east and then crossed back into the westbound traffic to continue towards Harbor Drive. (Id.)

The SDPD officers in the car activated their lights and siren and followed Plaintiff through the intersection of West Broadway and Harbor Drive onto the west of Harbor Drive where Plaintiff struck a stopped patrol car. (Id. ¶ 8.) Police officers used minimal force to overcome Plaintiff's resistance lowering him to the ground to handcuff him. (Id.) Hibshman never touched Plaintiff during the initial stop for the invalid permit and did not touch him during the arrest after the stop on West Broadway and Harbor Drive. (Id.)

Upon information and belief, Plaintiff was arrested for reckless driving and failure to obey a traffic officer. (Id. ¶ 9.) In addition to the citation for operating a pedicab without a valid permit, Plaintiff was charged with resisting arrest in violation of California Penal Code section 148(a)(1); unlicensed driving in violation of California Vehicle Code section 12500(a) and reckless driving in violation of California Vehicle Code section 23103(a). (Id.; Dkt. No. 33-14, Ds' Ex. 4.)

On May 5, 2010, the citation of operating a pedicab without a valid permit was dismissed as part of a negotiated settlement whereby nine sets of charges, representing a long history of outstanding violations, were "packaged" and civil assessments were imposed totaling over $1050.00. (Dkt. No. 33-15, Ds' Ex. 5.) On January 14, 2011, a negotiated plea and settlement resulted in a dismissal of the remaining charges against Plaintiff in exchange for two days of public service work. (Dkt. No. 33-14, Ds' Ex. 4.)

2. Permit Revocation and Administrative Hearing

On April 1, 2010, thirteen days after his arrest, Plaintiff applied for a new operating permit at the City's Transportation Engineering Division, Engineering and Capital Projects Department ("TED"). (Dkt. No. 33-16, Ds' Ex. 6.) When he applied, Plaintiff failed to state that there were pending Vehicle Code violations against him. (Id.)

On the next day, April 2, 2010, TED became aware of the Vehicle Code violations and sent a letter of suspension by Certified Mail, signed by Defendant Sivash Pazargadi to Plaintiff. (Dkt. No. 33-17, Ds' Ex. 7, Pazargadi Decl. ¶¶ 3, 10, ) The letter advised Plaintiff that his pedicab permit was suspended and that he had 10 days to appeal the suspension. (Id.) The letter was returned "not deliverable" to TED. (Id., Ds' Ex. 8.) Pazargadi states that had Plaintiff fully and truthfully disclosed the material fact that he had Vehicle Code violations related to the unsafe operation of a pedicab pending at the time of his application, it would have been denied. (Dkt. No. 33-17, Ds. Ex. 7, Pazargadi Decl. ¶ 6.)

On August 12, 2010, Plaintiff appeared at an administrative hearing, waiving any notice defects in the newly scheduled hearing. (Dkt. No. 33-19, Ds' Ex. 9.) The hearing officer determined that pursuant to San Diego Municipal Code section 83.0127(a)(5), the City's April 2, 2010 suspension of Plaintiff's permit was proper. (Id.) Plaintiff did not appeal the administrative ruling.

Sometime after the revocation of Plaintiff's pedicab permit, Officer Thompson seized Plaintiff's revoked permit issued on April 1, 2010. (Dkt. No. 33-10, Howard Depo., 192:25-194:25.)

B. Plaintiff's Facts

1. Background to March 18, 2010 Incident

According to Plaintiff, from 2004 to April 2010, he has been operating pedicabs in downtown San Diego with valid permits. (Dkt. No. 47, Howard Decl. ¶ 1.) He has known Defendant Byron Hibshman and Officer Scott Thompson, Hibshman's partner, since 2004. (Id.) He has rented his pedicab from Alley Cabs since 2007. (Id.)

Since 2006, Plaintiff has been active on pedicab issues before the City Council. (Id. ¶ 2.) He considers himself a "bicycle rights activist." (Id.) He has spoken on pedicab issues during at least fourteen City Council meetings. (Id.) He has also contacted City Council members and City bureaucrats about illegal and arbitrary stops by police officers, selective enforcement of laws against operators from other pedicab companies, and amendments to the municipal code that would not help the pedicab industry. (Id.) He has also distributed leaflets under the pen name, Triple Wagon Express. (Id.) Plaintiff's proposals were contrary to the amendments restricting pedicabs proposed by Defendant Hibshman and Scott Thompson. (Id.) Hisbhman and Thompson were involved in drafting the 2010 pedicab ordinance amendments. (Id.)

Plaintiff claims that as a result of Plaintiff's involvement on these pedicab issues, Officers Hibshman, Thompson and other officers would harass Plaintiff, stop him for no reason, and scare off customers. (Id.) In 2008, his permit was stolen by cops for three months. (Id.)

On January 13, 2010, Plaintiff submitted a complaint with the Citizen's Review Board on Police Practice against Officer Thompson for harassing pedicab operators. (Id. ¶ 3.) Plaintiff states that the complaint angered Thompson. (Id.) As a result, Defendant Hibshman and other officers retaliated against him on March 18, 2010. (Id.)

2. March 18, 2010 Incident

Plaintiff states that on March 18, 2010, around 2:45 p.m., he was operating a pedicab southbound on Kettner Boulevard by the train station. (Id. ¶ 3.) He had his operating permit #115, which was valid until April 30, 2010, properly displayed. (Id.) At that time, about 60% of pedicab operators were using the yellow permits. (Id.) Defendant Hibshman drove up right in front of Plaintiff and gave him a citation for not having a valid operating permit. (Id.) After Plaintiff signed the citation, Hibshman asked to see Plaintiff's permit and requested that he call the owner of his pedicab. (Id.) Plaintiff told Hibshman he had a valid permit and business tax certificate and that he will operate the pedicab himself. (Id.) Hibshman did not respond. (Id.)

Plaintiff continued to slowly operate the pedicab southbound on Kettner. (Id. ¶ 4.) His pedicab rolled past the limit line but stopped at a distance 323 feet from the trolley tracks crossing Kettner. (Id.) When he stopped, a trolley was crossing Broadway and honked like it frequently does when approaching this busy area. (Id.) After the trolley passed, seeing a green light, and Hibshman not saying anything, Plaintiff made a right turn onto Broadway. (Id.) Hibshman then drove up to Plaintiff and on three occasions, he drove into the front wheel of the pedicab in order to cause a collision. (Id.) Each time, Plaintiff swerved to the side to avoid a collision. (Id.) Hibshman never told Plaintiff to stop and Plaintiff was afraid for his safety, so he kept pedaling to the ferry landing where there would be witnesses who would deter Hibshman from trying to hurt him. (Id.) Two patrol cars also tried to crash into Plaintiff's pedicab but he managed to avoid them by making sharp swerves. (Id.) During this time, nobody told him to stop. (Id.) When he got to the ferry landing, he got off the pedicab, raised his hand and said jokingly to some passersby "Folks, how about a ride?" (Id.) The police ran to him, tackled him to the ground and handcuffed him face down. (Id.) Hibsman approached Plaintiff and took off his permit and said, "Now we got you. Your pedicab career is over. You're done pedicabbing. You'll never pedicab here in San Diego again." (Id.) Plaintiff responded, "You never know . . . ." (Id.) Hibshman then held the permit in the air as a trophy piece, in order to brag to the other pedicab riders and bike owners that Plaintiff was done pedicabbing. (Id.)

Plaintiff was taken to county jail and not given a bed until 3:00 a.m. (Id.) He was in jail from March 18, 2010 until March 22, 2010 without a hearing or attorney. (Id.) Around March 23, 2010, Plaintiff complained about Hibshman's conduct to the Citizen's Review Board on Police Practice who referred him to Internal Affairs. (Id. ¶ 5.)

After the police took his permit, Plaintiff decided to apply for another one since his permit would expire in another month. (Id.) On April 1, 2010, Plaintiff went to Transportation and Engineering Division, paid money and got a new permit. (Id.) He went back to operating pedicabs. (Id.) On April 2, 2010, he went to speak at a City Council meeting. (Id.) The next day, Thompson asked to see his permit and after seeing his permit, he said, "I can't believe they gave the permit back to you." (Id.) On April 24, 2010, Hibshman and Thompson approached Plaintiff and stole the new operating permit without giving him a citation. (Id. ¶ 6.)

3. Criminal Proceedings

Two criminal proceedings were initiated against Plaintiff. One was a May 5, 2010 arraignment hearing on the citation for an invalid permit. When he appeared and showed the judge his citation, a copy of his permit and receipts, the judge said "this doesn't make any sense" and ordered dismissal of the case. (Id. ¶ 7*fn2 .) The judge then looked up his court records and noticed there were 10 pedicab citations over 6 years given to him where he failed to appear. (Id.)

Therefore, the judge ordered civil assessments to be imposed but Plaintiff has not paid any of the assessments. (Id.)

As to the misdemeanor case charging him with violations of three statutory provisions, Plaintiff states that the City offered to dismiss the case for two days of public work and no fines; however, Plaintiff refused the deal and appeared for a trial readiness hearing on January 14, 2011. (Id.) Trial was set for February 23, 2011. (Id.) He appeared on the trial date and the City Attorney discussed a new plea bargain offer to some minor infraction. (Id.) While he was considering the offer, the judge informed him that the case had been dismissed by the City. (Id.) Plaintiff states there was never any settlement or compromise entered by him. (Id.)

According to other pedicab operators, Officer Thompson refers to Plaintiff as "The Angry Black Man." (Id. ¶ 8.) During 2010, there were only about 6 black pedicab operators out of about 600 pedicab operators and all have had problems with the San Diego Police. (Id.) Mr. Cedric Torain, Mr. Stacy Walker, Mr. Andrew Marshall and Plaintiff had their permits either suspended or denied. (Id.) Plaintiff is not sure what happened with one other black operator. (Id.) Mr. Roy is the only black pedicab operator who continued operating. (Id.)


A. Requests for Judicial Notice

Defendants filed a request for judicial notice as to their exhibits numbered 4, 5, 11, 12, 13, 14. (Dkt No. 33-3.) These documents concern records from the Superior Court of California and California Civil Jury Instructions Nos. 1602, 1603, 1500 and 1600. (Id.) Defendants filed another request for judicial notice as to the Certified Copy of City of San Diego Ordinance No. O-19898. (Dkt. No. 52-1.) The Court may take judicial notice of facts that are "not subject to reasonable dispute that is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Plaintiff has not ...

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