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Cuviello v. City of Vallejo

United States District Court, E.D. California

June 29, 2017

JOSEPH P. CUVIELLO, Plaintiff,
v.
CITY OF VALLEJO, et al. Defendants.

          FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         This case asserting various federal and state law causes of action for alleged First Amendment violations was filed on October 31, 2016 by plaintiff Joseph P. Cuviello. (ECF No. 1.) On March 10, 2017, the court ordered that no pretrial scheduling order will issue until the resolution of defendant's motion regarding preclusion of plaintiff's claims by California state court action. (ECF No. 12.)

         Subsequently, on May 9, 2017, defendants filed a motion for partial summary judgment regarding the preclusion of plaintiff's claims. (ECF No. 25.) Plaintiff filed an opposition to the motion, and defendants filed a reply brief. (ECF Nos. 32, 37.) On the court's own motion, defendants' motion was taken under submission on the papers. (ECF No. 27.)

         After carefully considering the parties' written briefing, the court's record, and the applicable law, the undersigned recommends that defendants' motion for partial summary judgment be granted, judgment be entered in defendants' favor, and this case be closed.

         BACKGROUND

         Plaintiff engaged in a series of peaceful demonstrations concerning animal rights at the Six Flags Discovery Kingdom (“SFDK”) in Vallejo, California. (ECF No. 1) On October 31, 2015, plaintiff attended a demonstration located on a pedestrian island west of Fairgrounds Drive. (ECF No. 25.) During this demonstration, plaintiff used an electronic bullhorn to project his voice to direct attention to a television playing video and audio of people hitting elephants. (ECF Nos. 24, 25.) At all times relevant to this lawsuit, plaintiff demonstrated on the pedestrian island or on the sidewalk of a private side road that runs parallel to Fairgrounds Drive. (ECF No. 25.)

         At the October 31, 2015 demonstration, Officer Koutnik and an unnamed Vallejo Police Department officer approached plaintiff and asked if plaintiff had a permit to use his electronic bullhorn. (ECF Nos. 24, 25.) Plaintiff responded that he did not and Officer Koutnik responded by stating that plaintiff's bullhorn would be confiscated as evidence of a crime if plaintiff continued to use the device. (Id.) Plaintiff subsequently filed suit on October 31, 2016, alleging that Officer Koutnik's statement regarding confiscation of the bullhorn was a violation of plaintiff's right to freedom of speech. (ECF No. 1.)

         Plaintiff's October 31, 2016 complaint asserts the following claims: (1) Officer Koutnik's actions to enforce Vallejo Municipal Code Chapter 8.56 constitute an unconstitutional prior restraint on speech in violation of the First and Fourteenth Amendments of the United States Constitution; (2) defendants' actions violate the United States Constitution and Article 1, Section 2(a) of the California Constitution; (3) defendants' actions violate the California Constitution; (4) Vallejo Municipal Code Chapter 8.56 is unconstitutional on its face and as applied; and (5) defendants' deprivation of plaintiff's civil rights violates California Civil Code Section 52.1. (ECF No. 1.) Defendants' motion for partial summary judgment followed. (ECF No. 25.)

         LEGAL STANDARDS GOVERNING MOTIONS FOR SUMMARY JUDGMENT

         Federal Rule of Civil Procedure 56(a) provides that “[a] party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought.” It further provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).[1] A shifting burden of proof governs motions for summary judgment under Rule 56. Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010). Under summary judgment practice, the moving party:

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ” which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed.R.Civ.P. 56(c)). “Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 325); see also Fed.R.Civ.P. 56 advisory committee's notes to 2010 amendments (recognizing that “a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact”).

         If the moving party meets its initial responsibility, the opposing party must establish that a genuine dispute as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). To overcome summary judgment, the opposing party must demonstrate the existence of a factual dispute that is both material, i.e., it affects the outcome of the claim under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1031 (9th Cir. 2010), and genuine, i.e., “‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party, '” FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010) (quoting Anderson, 477 U.S. at 248). A party opposing summary judgment must support the assertion that a genuine dispute of material fact exists by: “(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a ...


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