United States District Court, E.D. California
JOSEPH P. CUVIELLO, Plaintiff,
CITY OF VALLEJO, et al. Defendants.
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
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.)
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.)
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.
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.)
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.)
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.)
STANDARDS GOVERNING MOTIONS FOR SUMMARY JUDGMENT
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). 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
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
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 ...