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Duran v. City of Porterville

United States District Court, E.D. California

September 22, 2014

JOHN DURAN, Plaintiff,
CITY OF PORTERVILLE, et al., Defendants

Decided Date: September 19, 2014

Page 1045

For John Duran, Plaintiff: James C Holland, Law Office of James C Holland, Visalia, CA.

For City of Porterville, John Lollis, Porterville Police Department, Chuck McMillan, Richard Standridge, Defendants: Ryan Thomas Nelson, LEAD ATTORNEY, Nelson and Rozier, Visalia, CA.

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Plaintiff John Duran (" Plaintiff" ) brings this case under 42 U.S.C. § 1983 (" § 1983" ) against Defendants City of Porterville, California (" the City" ), Porterville Police Department Sergeant Richard Standridge (" Standridge" ), Porterville Police Chief Chuck McMillian (" McMillian" ), and Porterville City Manager John Lollis (" Lollis" ) (collectively, " Defendants" ) for allegedly violating his constitutional rights. Doc. 36, Second Amended Complaint (" SAC" ), at ¶ 1. Plaintiff alleges Defendants violated his First Amendment rights, among others.

Currently before the Court is Defendants' motion for summary judgment. Doc. 38. The Court has reviewed the papers and has determined that the matter is suitable for decision without oral argument

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pursuant to Local Rule 230(g). For the reasons discussed below, the Court DENIES Defendants' motion for summary judgment.


A. Factual Background.[1]

On May 31, 2012, Plaintiff planned to hold a " get out the vote" event (" the event" or " Plaintiff's event" ) on June 2, 2012 at a public park (" the park" ) in the City. The purpose of the event was to encourage the public to exercise their right to vote and to participate in the City's then-upcoming City Council elections. Plaintiff planned to place some of the City Council candidates' temporary election signs at the event (" the signs" ). Plaintiff did not support any of the candidates whose signs he placed at the event and he did not own the signs.

Plaintiff contacted the City's Parks and Leisure department to obtain permission to hold the event and to place the signs at the event. The Parks and Leisure employee to whom Plaintiff spoke, Michelle,[2] approved Plaintiff's event, including the planned placement of the signs.

On June 2, 2012, Plaintiff set up his event and placed the signs against a park bench. Thereafter, Standridge, while on duty, approached Plaintiff and asked who was responsible for putting up the signs. Plaintiff stated that he had put up the signs.[3] Standridge then ordered Plaintiff to remove the signs because they violated a City ordinance. Standridge did not specify which City ordinance Plaintiff had allegedly violated.

Plaintiff then placed the signs on the lawn of the park approximately 20 feet from the bench. The signs were approximately one yard from the edge of a public sidewalk. Later that day, Standridge returned and ordered that Plaintiff remove the signs from the park entirely. Pursuant to Standridge's orders, Plaintiff and others in attendance removed the signs and, with Standridge's express approval, placed them on the windshields and bumpers of their vehicles parked approximately five to six feet away on a public street. The Court will refer to this series of events that transpired on June 2, 2012 between Plaintiff and Standridge as " the incident."

B. Procedural Background.

Plaintiff filed this suit against Defendants on July 30, 2012. Doc. 1. The Court granted Defendants' motion to dismiss the complaint in its entirety on January 16, 2013. Doc. 21. Plaintiff filed a first amended complaint on February 15, 2013 (Doc. 25), and the SAC--the operative complaint here--on August 1, 2013. Doc. 36. Plaintiff alleges five causes of action against Defendants for: (1) violation of the

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First Amendment[4]; (2) violation of the California State Constitution, Article 1 § 2 (" § 2" ); (3) violation of California Civil Code § 52.1 (" § 52.1" ); (4) " respondeat superior, California Government Code § 815.2" (" § 815.2" ); and (5) declaratory relief.

Aside from Defendants' answer to the SAC, filed on August 14, 2013, nothing transpired in this case until Defendants filed their motion for summary judgment on August 1, 2014. Doc. 38. Defendants move for summary judgment on all of Plaintiff's claims. Defendants assert that because all of Plaintiff's " causes of action are predicated on the first cause of action, it logically follows that if [the] first cause of action fails, the others must follow." Doc. 38-2 at 2. Defendants' motion for summary judgment therefore addresses only Plaintiff's first cause of action; it does not address Plaintiff's remaining causes of action.

Plaintiff's First Amendment claim is composed of three primary assertions.[5] First, Plaintiff challenges the constitutionality of Porterville Municipal Code § 305.10(b)[6] (" § 305.10(b)" ), which he argues is the legal authority on which Standridge relied during the incident. Second, Plaintiff asserts that " no Porterville Municipal Code provision prohibited Plaintiff's communicative activities" and therefore " Defendants' actions constituted un-cabined, unrestrained ad hoc assertion and abuse of Defendants' governmental authority, which assertion and abuse violated Plaintiff's First Amendment free speech rights." Id. at ¶ 21. Third, Plaintiff asserts the signs were for " political adversaries and rivals of Defendant [Lollis], and that Defendant Standridge, acting at the behest of Defendant Lollis, acted to deny Plaintiff's right to advocate for said political adversaries and rivals," and therefore " Defendants Lollis and Standridge acted in concert with the specific intent to infringe upon and deny Plaintiff's right to free speech." Id. at ¶ 22.

Defendants argue they are entitled to summary judgment on Plaintiff's first cause of action for four reasons. First, Defendants assert that Plaintiff lacks standing to bring this suit because he suffered no cognizable constitutional injury.

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Second, Defendants argue that, in any event, his lawsuit is moot because it is predicated on § 305.10(b), an ordinance that was repealed prior to June 2, 2012, when the incident took place, and replaced with Porterville Municipal Code § 305.11 (" § 305.11" ). Third, Defendants argue that, contrary to Plaintiff's assertions, § 305.11 is constitutional and validly provided Standridge with the legal authority to order Plaintiff to remove the signs from the park.[7] Fourth, Defendants argue that Standridge was further justified in his actions during the incident because Plaintiff was required to obtain the Porterville City Council's permission prior to placing the signs in the park under § 305.11, but he failed to do so.

In his opposition, Plaintiff argues that his suit is not moot; he has standing; his First Amendment claim is valid; and that various Porterville Municipal Codes, including § 305.11, violate the First Amendment. Plaintiff makes no argument concerning his remaining four causes of action.

Defendants failed to file a timely reply. On September 17, 2014, counsel for Defendants requested an extension of time to do so, but did not request any specific amount of time. See Doc. 41 at 3. The Court granted Defendants until ...

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