United States District Court, S.D. California
ORDER DENYING DEFENDANT'S EX PARTE MOTION TO HAVE
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT TAKEN OFF
CALENDAR [ECF NO. 25]
CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE
John Doe #1 and John Doe #2 have filed a motion for partial
summary judgment. (ECF No. 24.) Plaintiffs seek summary
judgment on the first claim in their complaint: their state
law preemption claim. Defendant City of San Diego filed an ex
parte motion requesting the Court take Plaintiffs' motion
for summary judgment (“MSJ”) off calendar.
(“Ex Parte Mot., ” ECF No. 25.) Defendant argues
that pending legislation, State Bill 145 or SB145, will
render Plaintiffs' MSJ moot. Plaintiffs oppose the ex
parte motion. (“Opp'n, ” ECF No. 26.) For the
foregoing reasons, the Court DENIES
Defendant's Ex Parte Motion.
John Doe #1 and John Doe #2 are two California residents who
are required to register as sex offenders
(“Registrants”) pursuant to California Penal Code
Section 290, et seq. (ECF No. 1, ¶ 6-7.) John
Doe #1 resides in the City of San Diego and John Doe #2
intends to establish a new lawful permanent or temporary
residence in the City of San Diego. (Id.) Therefore,
John Doe #1 alleges he is subject to San Diego Municipal
Code, Chapter 5, Article 8, Division 6, Sections 58.0601-
58.0607 (the “Ordinance”). (Id.) John
Doe #2 alleges the Ordinance precludes him from establishing
a residence in the City of San Diego. (Id.)
Plaintiffs challenge the constitutionality of the Ordinance
on two grounds. As relevant here, Plaintiffs' MSJ argues
preemption-that “California state law preempts local
governments from imposing residency restrictions on
Registrants who are not serving terms of parole.” (ECF
No. 24-1, at 1.) Specifically, California Penal Code section
3003.5 restricts Registrants released on parole from residing
with other Registrants in a single family dwelling and makes
it unlawful “for any person for whom registration is
required pursuant to [California Penal Code] Section 290 to
reside within 2000 feet of any public or private school, or
park where children regularly gather.” Subsection (c)
provides that “nothing in this section shall prohibit
municipal jurisdictions from enacting local ordinances that
further restrict the residency of any person for whom
registration is required pursuant to Section 290.” Cal.
Penal Code § 3003.5(c).
Ordinance mandates additional residency restrictions for
Registrants in the City of San Diego. Plaintiffs argue Penal
Code section 3003.5(c) provides that while municipalities can
adopt stricter laws, like the Ordinance, the laws may apply
only to parolees. Defendant disagrees and states that if
pending legislation SB145 is passed, it “would make it
clear that the right to adopt stricter legislation found in
3003.5(c) applies not only to parolees but to ‘anyone
convicted of an offense requiring registration pursuant to
Penal Code section 290.'” (Ex Parte Mot. at 2.)
Thus Defendant asks the Court to defer ruling on
Plaintifs' MSJ while SB145 is considered.
asks the Court to defer ruling on Plaintiffs' MSJ, which
is the same as asking the Court to stay the Motion.
Court has inherent power to control its docket, including the
discretion to stay proceedings or parts of proceedings.
See Landis v. N. Am. Co., 299 U.S. 248, 254-55
(1936). The determination of whether to stay proceedings is
best determined by weighing the competing interests of the
parties and of the Court. Id.
“Among those competing interests are the possible
damage which may result from the granting of a stay, the
hardship or inequity which a party may suffer in being
required to go forward, and the orderly course of justice
measured in terms of the simplifying or complicating of
issues, proof, and questions of law which could be expected
to result from a stay.”
Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th
Cir. 2005) (citing Landis, 299 U.S. at 268).
stands now, Plaintiffs' MSJ contests current legislation.
This legislation may or may not change in the future. The
issue therefore is whether the Court should stay or defer
ruling on Plaintiffs' MSJ while SB145 is considered. The
problem with doing so is that the stay would be indefinite,
as no party can point to a set date on which the fate of
SB145 will be determined. See Yong v. I.N.S., 208
F.3d 1116, 1119 (9th Cir. 2000) (“If a stay is
especially long or its term is indefinite, we require a
greater showing to justify it.”). Defendant estimates
SB145 will “be on the floor later this month” but
of course, this could be delayed, and further, the date of
the bill's passage or rejection cannot be determined.
Plaintiff argues that even if SB145 proceeds forward, and
even if the Governor signs SB145 into law after it is passed,
the law would not take effect until January 1, 2020.
(Opp'n at 2.) Indeed, whether the bill will be passed,
whether any changes will be made to it, and exactly when all
of this will occur is speculative.
reasoning behind its request, Defendant argues if the Court
defers ruling on the MSJ, this could “mitigate costs to
the parties.” (Ex Parte Mot. at 3.) The Court agrees it
is a burden on Defendant, or on any party in a lawsuit, to
prepare a responsive brief to an MSJ. Defendant argues it
will be burdened by responding to Plaintiffs' MSJ which
it believes will soon be mooted. But beyond the hardship in
preparing a brief, Defendant will not be prejudiced if the
Court denies the present ex parte motion. See Mendez v.
Optio Sols., LLC, 239 F.Supp.3d 1229, 1234 (S.D. Cal.
2017) (denying stay where the only hardship identified by the
defendant was the possibility the parties may engage in
unnecessary discovery and/or motion practice). On the other
hand, Plaintiffs face potential prejudice if the Court grants
the present ex parte motion. If the Court defers ruling on
the MSJ, and then SB145 is not adopted or is adopted
differently than Defendant anticipates, Plaintiffs will be
prejudiced by the unnecessary delay. This speculative
prejudice, on both sides, does not weigh in favor of a stay.
The Court also notes that Plaintiffs filed their MSJ prior to
the scheduled Early Neutral Evaluation (“ENE”)
conference. Plaintiffs state they hope the Court could
resolve the issue in their MSJ before the ENE so that the
parties will know whether the issues in the case have been
narrowed by the time they sit down with the magistrate judge
to discuss the case. (Opp'n at 1.) The Court agrees that
leaving this issue hanging in limbo would likely make the
settlement discussions at the ENE less productive.
considering the competing interests, the Court finds the
equities do not support staying or deferring ruling on