MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT

WILLIAM SHUBB, District Judge

Plaintiff Alfredo Kuba filed this lawsuit pursuant to 42 U.S.C. § 1983, alleging that defendants violated his civil rights by arresting him while he was engaged in a peaceful protest. Presently before this court is the motion of defendants Police Assistant Joe Thompson, Officer Jerome Bautista, Officer William Hamrick, Officer Douglas Wilcox, Sergeant Kelly Schroeder, Lieutenant Joel Salinas, and City of Vallejo ("Vallejo Defendants") for summary judgment.

I. Factual and Procedural Background

In 1997, defendant Six Flags, Inc. contracted to manage a portion of Six Flags Marine World ("Marine World") with the Marine World Joint Powers Authority ("MWJPA"), a public agency created by agreement between the City of Vallejo and the Redevelopment Agency of the City of Vallejo. (Defs.' Mot. for Summ. J., Oiler Decl. Ex. A (Joint Exercise of Powers Agreement).) MWJPA's purpose is to accept conveyance of the assets, assume the liabilities, and protect the City of Vallejo's interests related to Marine World. (Id. at 5.) Moreover, MWJPA bears the "overall responsibility for all activities and facilities at Marine World." (Pl.'s Opp'n, Evans Decl. Ex. D (Amended and Restated 1997 Management Agreement Relating to Marine World).)

Defendant Six Flags, Inc. operates the park pursuant to a long-term lease, paying nominal rent in the amount of one dollar per year per forty acres of land (Id. Ex. I (Parcel Lease) at 5), and receiving a management fee and 80% of the net cash flow generated by the combined operations of the park. (Id. Ex. F (U.S. Securities and Exchange Commission Form 10-K) at 2.) Defendant MWJPA receives the remaining 20% of the net revenue. (Id. Ex. D (Revenue Sharing Agreement) at 9.)

The land at Marine World is divided into two categories: a public parcel and a private parcel. (Id. Ex. D at 3.) The private parcel is leased by Six Flags, Inc., but the public parcel is, as its name suggests, public land. (Id.) The public parcel includes parking facilities, the front entrance, the entry area including ticket sales and admission facilities, public walkways, paths, restrooms, dining facilities, and other areas intended for use by patrons. (Id. Ex. J (Reciprocal Easement Agreement) at 6.)

Plaintiff has been arrested twice for protesting at Marine World in the "public parcel" section. On March 20, 2004, plaintiff went to Marine World for the purposes of engaging in a protest. (Pl.'s Resp. To Defs.' Statement of Undisputed Facts ¶ 1.) While on a sidewalk outside of the Marine World gates, Marine World employee defendant Ron Cervantez placed plaintiff under citizen's arrest for trespass and battery. (Id. ¶ 2.) Defendant Officer Bautista, of the Vallejo Police Department, was dispatched to Marine World to respond to a report of protesters causing a disturbance. (Id. ¶ 3.) Upon arriving at Marine World, Sergeant Kelly Schroeder instructed Bautista to accept Cervantez's citizen's arrest, issue the plaintiff a citation for trespass and battery, and release him at the scene, which Bautista subsequently dId. (Id. ¶ 5-6.) Also at Marine World at that time were defendants Hamrick and Thompson, who had no involvement in the arrest. (Id. ¶¶ 7-13.)

On May 31, 2004, plaintiff again went to Marine World to engage in protest. (Id. ¶ 14). While on a grassy area abutting a sidewalk outside of Marine World gates, Marine World employee defendant Dale Arnold placed plaintiff under citizen's arrest for trespass. (Id.) Defendant Officer Wilcox subsequently accepted Arnold's citizen arrest, in the presence of his ranking officer, defendant Lieutenant Salinas. (Id. ¶¶ 14-15.) Based on these two incidents, plaintiff was charged with trespass under California Penal Code § 602(o). (Evans Decl. Ex. L.) The Superior Court found that the entire park, including the land on which plaintiff had been protesting, was open to the general public. (Id.) Accordingly, the case was dismissed on February 15, 2005. (Id.)

On May 11, 2005, plaintiff filed a First Amended Complaint ("Complaint") alleging the following twelve causes of action relating to his two arrests: (1) violation of the First Amendment of the United States Constitution (free speech and abuse of process); (2) violation of the California Liberty of Speech Clause, Article I, Section 2(a) of the California Constitution and California Civil Code §§ 52.1 and 1708 (free speech and abuse of process); (3) violation of the Fourth Amendment of the United States Constitution (unlawful seizure); (4) violation of Article I, Sections 1 and 13 of the California Constitution (unlawful seizure); (5) violation of California Penal Code Sections 602.1, 837 and 847 (false arrest); (6)-(7) violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; (8) conspiracy; (9) assault and battery; (10) abuse of process; (11) false imprisonment; and (12) violations of California Civil Code Sections 51.7 and 52.1 (interference with constitutional rights through coercion).

On May 17, 2006, this court granted plaintiff's motion for a preliminary injunction, enjoining defendants from enforcing their Public Assembly Policy as it pertained to plaintiff's planned protests on the following Memorial Day Weekend. Vallejo Defendants now move for summary judgment, contending that defendants Hamrick and Thompson were not involved in the arrests, that defendants Bautista, Schroeder, Wilcox, and Salinas are entitled to qualified immunity, and that defendant City of Vallejo has no official policy in place that caused a violation of plaintiff's rights.

II. Discussion

A. Legal Standard

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case.Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the movant can demonstrate that the non-moving party cannot provide evidence to support an essential element upon which it will bear the burden of proof at trial. Id.

Once the moving party meets its initial burden, the non-moving party must "go beyond the pleadings and by her own affidavits, or by `the depositions, answers to interrogatories, and admissions on file,' [and] designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed.R.Civ.P. 56(e)). The non-movant "may not rest upon the mere allegations or denials of the adverse party's pleading." Fed.R.Civ.P. 56(e); Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). However, any inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

B. Timely Filing of Opposition

Defendants, in their motion for summary judgment, argue that because plaintiff filed his opposition on October 3, 2006, one day later than the October 2 deadline, the court should not consider the opposition. "When a party opposing summary judgment fails to comply with the formalities of Rule 56, a court may choose to be somewhat lenient in the exercise of its discretion to deal with the deficiency." School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1261 (9th Cir. 1993) (citing Scharf v. United States Att'y Gen., 597 F.2d 1240, 1243 (9th Cir. 1979)). The Ninth Circuit has "repeatedly held that a motion for summary judgment cannot be granted simply because the non-moving party violated a local rule." Couveau v. Am. Airlines, Inc., 218 F.3d 1078, 1081-82 (9th Cir. 2000). "Cases should be decided on their merits whenever reasonably possible."Jones v. Tozzi, 2006 WL 355175, *4 (E.D. Cal. Feb. 15, 2006) (citing Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985)). It is true that plaintiff's motion was indeed filed at 2:17am on the morning of October 3, 2006. However, as inJones, defendant has shown no actual prejudice or inconvenience resulting from the two hour delay, and this court thinks it unlikely that any exists. Id. (overlooking a two day delay in filing an opposition, due to a finding of no prejudice or inconvenience). Therefore, the court will consider plaintiff's opposition.

C. Defendants Hamrick and Thompson

Plaintiff concedes that defendants Hamrick and Thompson had no involvement in either of plaintiff's arrests. (Pl.'s Resp. To Defs.' Statement of Undisputed Facts 8), and has therefore stipulated to the granting of defendants Hamrick and Thompson's motions for summary judgment on all claims. (Pl.'s Opp'n 5.)

D. Defendants Bautista, Schroeder, Wilcox and Salinas

1. Qualified Immunity

As an affirmative defense, defendants Bautista, Wilcox, Salinas and Schroeder assert that they are entitled to qualified immunity. Qualified immunity protects "government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitution rights of which a reasonable person should have known." Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (internal quotations omitted). The test for qualified immunity thus "necessitates three inquires: 1) the identification of the specific right violated; 2) the determination of whether that right was so `clearly established' as to alert a reasonable officer to its constitutional parameters; and 3) the ultimate determination of whether a reasonable officer could have believed lawful the particular conduct at issue." Id.

A right is clearly established when "the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir. 1993) (citing Anderson v. Creighton, 483 U.S. 635 (1987)) (internal quotations omitted). In making that assessment, the plaintiff must offer more than general conclusory allegations that the defendants violated a constitutional right. Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1389 (9th Cir. 1997). He must show "that theparticular facts of his case support the claim of a clearly established right." Id. (citing Backlund v. Barnhart, 778 F.2d 1386, 1389 (9th Cir. 1985)). However, a plaintiff need not show that the exact action challenged was previously held unlawful, but merely that "in light of pre-existing law the unlawfulness [is] apparent." Mendoza v. Block, 27 F.3d 1357, 1360 (9th Cir. 1994) (quoting Anderson, 483 U.S. at 640); see also Sweaney, 119 F.3d at 1389 ("The absence of any authority directly on point is not fatal to a section 1983 claim. A right is clearly established `[i]f the only reasonable conclusion from binding authority were that the disputed right existed.'") (citing Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997)).

The basic right that plaintiff asserts in this case is his right to peacefully protest on specific public parcels of land near the Marine World property without being subject to arrest. This is couched in terms of both First and Fourth Amendment violations. Under federal law "[p]ublic property, depending on its character, falls within one of three main categories for purposes of First Amendment analysis." Preminger v. Principi, 422 F.3d 815, 823 (9th Cir. 2005) (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983)) (discussing the categories of traditional public fora, designated public fora, and nonpublic fora). In this instance, the videotape submitted by plaintiff clearly shows members of the public walking through both the sidewalk and the grassy area, the two sites where plaintiff was arrested. (Kuba Decl. B. (Video).) Moreover, there do not appear to be any signs or fences marking off these areas or indicating that the land was not generally open to the public. Thus, these two areas appear to be, in the very least, designated public fora, i.e., property "which the state has opened for use by the public."

For a designated public forum, as long as the state holds the property open to the public, "it is bound by the same standards as apply in a traditional public forum." Perry Educ. Ass'n, 460 U.S. at 45. It is beyond dispute that "public sidewalks, streets, and ways . . . are `quintessential' public forums for free speech." Hill v. Colorado, 530 U.S. 703 (2000); see also Schenck v. Pro-Choice Network, 519 U.S. 357 (1997). Nonetheless, the state may enforce "regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Id. Thus, plaintiff's right to protest is "clearly established" in law so as to satisfy the second step of the Romero analysis.

The final step in analyzing qualified immunity requires an objective analysis of whether the officers' conduct in this instance was reasonable. Anderson v. Creighton, 483 U.S. 635, 641 (1987). The relevant inquiry is whether a "reasonable officer" in the defendant's position could have believed that the conduct at issue was lawful. Id. Indeed, while the first two inquiries in Romero present pure questions of law, the third may require factual determinations. Romero, 931 F.2d at 628 (citing Gooden v. Howard, 917 F.2d 1355, 1361 (4th Cir. 1990)). Thus, once plaintiff has established that his right is clearly established, the burden of production shifts to the officers to prove that their conduct was reasonable. DeNieva v. Reyes, 966 F.2d 480, 486 (9th Cir. 1992) (citing Romero, 931 F.2d at 627).

Defendants claim that they "did not arrest the Plaintiff for trespass. They simply accepted the citizen's arrest, in compliance with the law, and are therefore entitled to qualified immunity." (Defs.' Mot. for Summ. J. at 9:15-16.) A police officer, however, is not entitled to hide behind a citizen's arrest in place of making a determination of whether probable cause exists. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 924 (9th Cir. 2001) (noting that a warrantless misdemeanor arrest "must be supported by probable cause to believe that the arrestee has committed a crime.") (citing Allen v. City of Portland, 73 F.3d 232, 236 (9th Cir. 1995)).

Prior to and during both arrests of plaintiff, plaintiff repeatedly pointed out to the police officers that the land he was on was open to the public, the truth of which was clearly observable in plaintiff's video. (Kuba Decl. B.) People can be seen freely coming and going both on the sidewalk and the grassy area, and there is not anything indicating that the apparently public land was in fact private. (Id.) Defendants have not put forth any evidence, nor referred to any facts, to demonstrate probable cause for either arrest. To the contrary, under some intense interrogation by the court at oral argument, defendants' counsel was unable to identify a single provision of the California Penal Code which had reason to believe was violated by plaintiff's conduct.

From a review of the video it appears that defendants were attempting to justify their actions on the ground that they were required to accept a citizen's arrest. Such an attempt to delegate to a private citizen the officers' own duty to investigate probable cause is contrary to clearly established Ninth Circuit law. Arpin, 261 F.3d at 924. On the evidence currently before it, taken in the light most favorable to the plaintiff, Saucier v. Katz, 533 U.S. 194, 201 (2001), the evidence before the court fails to show why it was objectively reasonable for defendants officers to arrest plaintiff while he was on the public land and not violating any criminal statutes. Qualified immunity is an affirmative defense, and defendants have failed to meet their requisite burden. DeNieva, 966 at 486. At this point the defense must fail, and defendants motion for summary judgement on plaintiff's federal claims based on qualified immunity must be denied.

2. State Law Claims

Plaintiff has stipulated that his state law claims against the Vallejo Defendants should be dismissed. The second, fourth, fifth, eighth, ninth, tenth, eleventh, and twelfth causes of action will therefore be dismissed as against defendants Bautista, Schroeder, Wilcox and Salinas.

E. Defendant City of Vallejo

A city may only be sued under 42 U.S.C. § 1983 when "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell v. Dept. of Social Servs. of New York, 436 U.S. 658, 690 (1978). Such a policy can either be an official city policy or merely a pervasive custom. Los Angeles Police Protective League v. Gates, 907 F.2d 879, 889 (9th Cir. 1990). In the alternative, the city may be liable if it "made a `deliberate' or `conscious' choice to fail to train its employees adequately." Boyd v. Benton County, 374 F.3d 773, 784 (9th Cir. 2004) (citingMackinney v. Nielsen, 69 F.3d 1002, 1010 (9th Cir. 1995)).

Plaintiff argues that there "is evidence that the Vallejo Police Department had a policy of mandating the taking of citizen's arrests when requested by a citizen, without regard to whether there was probable cause. . . ." (Pl.'s Opp. 24). Indeed, in depositions taken of Officers Bautista and Wilcox, both defendants admit that at the time of the arrest, it was their understanding that they were obligated to accept a citizen's arrest. (Bautista Dep. 20:2-21:9; Wilcox Dep. 12:7-11.) This evidence is corroborated by statements made by defendants Salinas and Bautista on the video tape, to the same effect. (Kuba Decl. B.)

To impute liability at the city level, however, the practice in question must go beyond mere "random acts or isolated events," but must be the result of "a permanent and well settled practice." Thompson v. City of Los Angeles, 888 F.2d 1439, 1444 (9th Cir. 1989) (internal quotations omitted). Here, defendants have submitted Vallejo Police Department Special Order 2003-1, an internal memo sent to all police officers on January 1, 2003, informing them that going forward, they were required to assess probable cause before accepting citizen's arrests. (Decl. of Robert Nichelini Ex. B.)

This evidence does not resolve the question, however, for it is still entirely possible that despite this memo, police practice continued to consist of accepting citizen's arrests without assessing probable cause. Indeed, the two incidents at issue in this case at the very least raise an inference that such a custom might have continued to exist. If in fact there was such a custom, pervasive throughout the police department, obviating the officers' obligation to make an independent determination of probable cause for an arrest, then that custom would be improper.Arpin, 261 F.2d at 925 ("In establishing probable cause, officers may not solely rely on the claim of a citizen witness that he was the victim of a crime, but must independently investigate the basis of the witness' knowledge or interview other witnesses."); see also Corcoran, 160 F. Supp. at 1091-92 (holding that a policy permitting officers to arrest persons pursuant to a citizen's arrest without probable cause was unconstitutional).

Further, from the officers' statements on the video tape, they did not appear to have a clear and consistent understanding of the rights of individuals on public property, such as that on which plaintiff was arrested. Thus, although certainly not dispositive of the question, the evidence before the court demonstrates genuinely disputed issues of material fact as to whether the officers' lack of knowledge was the result of deliberate indifference on the part of the City of Vallejo. The City's motion for summary judgment on plaintiff's federal claims must accordingly be denied. Fed.R.Civ.P. 56(c).

IT IS THEREFORE ORDERED that:

(1) defendants Hamrick and Thompson's motion for summary judgment on all causes of action be, and the same hereby is, GRANTED;

(2) defendants Bautista, Schroeder, Wilcox, Salinas, City of Vallejo and Vallejo Police Department's motion for summary judgment on the second, fourth, fifth, eighth, ninth, tenth, eleventh, and twelfth causes of action be, and the same hereby is, GRANTED; and

(3) with respect to all other defendants and claims, defendants' motion for summary judgment be, and the same hereby is, DENIED.