Opinion
No. 00-2337 MMC
June 27, 2001
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; DISMISSING REMAINING CLAIM
Before the Court is defendants' motion, filed February 6, 2001, for summary judgment, or, in the alternative, for partial summary judgment. After defendants filed the instant motion, no response by plaintiff was filed until March 12, 2001, when plaintiff filed an ex parte application seeking an order continuing hearing on the motion in order to allow plaintiff to pursue additional discovery and to file a request to withdraw plaintiffs' previous admissions to defendants' interrogatories. On March 19, 2001, the Court granted plaintiff's request for a continuance. Plaintiff undertook no additional discovery nor did plaintiff file a motion to withdraw the admissions. On May 11, 2001, plaintiff filed an opposition, to which defendants have filed a reply. Having reviewed the papers filed in support of and in opposition to the motion, the Court rules as follows.
BACKGROUND
This action arises out of a landlord-tenant dispute between plaintiff and her tenant, Shayna Dubbin ("Dubbin"), who lived in plaintiff's residence located at 1523 32nd Avenue, San Francisco, California. (See Merged Statement of Undisputed Facts in Support of Motion For Summary Judgment ("MSUF") ¶ 1; Plaintiff's Statement of Genuine Issues In Opposition To Motion For Summary Judgment ("SGI") at 1.) The following facts are not in dispute or read in the light most favorable to plaintiff.
Plaintiff's residence is a single family dwelling consisting of two bedrooms, one bath, a kitchen, living room and dining room, along with a garage and separate apartment occupied by plaintiff's in-laws. (See Decl. of Wa Sudderth ("Sudderth Decl.") ¶ 4.) In February, 1999, plaintiff and Dubbin agreed that Dubbin would rent one of the bedrooms in plaintiff's residence, and would have access to the rest of the home, with the exception of plaintiff's bedroom, garage, and the in-laws' apartment. (See id. ¶ 7.) Shortly thereafter, plaintiff left the country for an extended trip to China. (See MSUF ¶ 1.) When plaintiff returned to the United States in June 1999, she became concerned that Dubbin had stolen money from her and damaged her personal property. (See id. ¶ 2.)
A. Events of June 30, 1999
On June 30, 1999, plaintiff changed her locks at her residence to prevent Dubbin from entering the premises. (See id. ¶ 3.) Dubbin requested police assistance, and defendant Arkady Zlobinsky ("Zlobinsky"), a San Francisco Police Officer, met Dubbin at approximately 5:30 p.m. (See id. ¶ 4.) Dubbin informed Zlobinsky that her landlady would not let her back into her house and asked for his assistance. (See id.) Zlobinsky escorted Dubbin to plaintiff's residence. After he announced his presence, plaintiff invited Zlobinsky into the residence and Zlobinsky entered. (See id. ¶ 5; Decl. of Jeffrey Rabkin ("Rabkin Decl.") Ex. B, Zlobinsky's First Set of Requests For Admissions, Request No. 5.) Against plaintiff's wishes, Zlobinsky "demanded" that plaintiff allow Dubbin to enter as well. (See Id. ¶¶ 6, 8, 9; Sudderth Decl. ¶ 20)
Under Rule 36(a) of the Federal Rules of Civil Procedure, a "matter is admitted unless, within 30 days after service of the requests or within such shorter or longer time as the Court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter. . . ." A motion to establish the admissions is unnecessary; the rule is self executing. See Fed.R.Civ.P. 36(a). Plaintiff failed to timely respond to Zlobinsky's First Set of Requests For Admissions and the City and County of San Francisco's ("City") First Set of Requests for Admissions, both of which were filed on November 28, 2000. (See Rabkin Decl. ¶¶ 4-6.) Plaintiff's counsel never asked for an extension of time in which to respond to the requests, and defendants never granted one. (See id.) To date, plaintiff has not sought to withdraw her admissions, despite the fact that the Court continued the hearing on the instant motion in order to allow plaintiff to do so. Accordingly, pursuant to Rule 36(a) of the Federal Rules of Civil Procedure, the matters contained in the First Set of Requests For Admissions filed, respectively, by Zlobinsky and the City are deemed admitted.
As noted, plaintiff has admitted that she voluntarily invited Zlobinsky into the residence. (See SGI at 1; MSUF ¶¶ 5, 6; Rabkin Decl. Ex. B, Req. No. 5.) Additionally, plaintiff has admitted that Dubbin was a tenant in her home and had acquired legal rights of use and possession in her home. (See Rabkin Decl. Ex. D, Req. Nos. 2-5.) Thus, Dubbin also had the right to consent to Zlobinsky's entry.
Plaintiff told Zlobinsky that Dubbin had been renting and living in the residence at 1523 32nd Avenue for six months, and that she believed Dubbin had stolen from her and that the suspected thefts were under investigation by the police. (See id. ¶ 6.) Dubbin, in turn, denied stealing from plaintiff. (See id.)
Zlobinsky informed plaintiff that she was not permitted to exclude Dubbin from the house before going through a formal eviction process. (See id. ¶ 8.) He also advised her that Dubbin could not be denied access to the utilities or the telephone, and suggested that plaintiff hire an attorney to assist in legally evicting Dubbin. (See id.) Plaintiff indicated that she understood, and Zlobinsky left the residence. (See id.)
Approximately one hour later, at 6:11 p.m., police dispatch sent Zlobinsky back to plaintiff's residence to respond to an Emergency 911 battery call. (See id. ¶ 9.) Zlobinsky arrived and plaintiff once again invited him into her residence. (See id; Rabkin Decl. Ex. B, Req. Nos. 7-8.) Zlobinsky spoke to Dubbin and plaintiff, who gave differing accounts of what had happened. Dubbin told Zlobinsky that when Dubbin tried to make a phone call, plaintiff had grabbed the phone away from her and in the process scratched Dubbin's hand. (See id.) Plaintiff told him that Dubbin had burst into plaintiff's room and tried to grab the phone, and that Dubbin had also tried to scratch her while they struggled. (See id.) Both Dubbin and plaintiff signed citizen arrest forms and each told Officer Zlobinsky she wanted the other arrested. (See id.)
Zlobinsky, assisted by another police officer, unsuccessfully attempted to work out a compromise solution between Dubbin and plaintiff. Zlobinsky then cited both Dubbin and plaintiff for battery. (See id. ¶ 10.) Dubbin, upon being informed that she had an outstanding traffic warrant, stated that she felt faint and required medical assistance. (See Id. ¶ 11.) Zlobinsky called an ambulance and Dubbin was transported to a hospital where she was treated and released. (See id.)
At approximately 11:30 p.m., Zlobinsky returned to plaintiff's residence in response to calls to police dispatch describing a female yelling for help. (See id. ¶ 12.) When he arrived, he was informed that Dubbin had again been locked out of plaintiff's residence by plaintiff. (See id.) After speaking with Dubbin and plaintiff and unsuccessfully attempting to arrive at a compromise, Zlobinsky took Dubbin into custody on the outstanding warrant. Dubbin was then transported to the County Jail. (See id. ¶ 13.) Plaintiff was not arrested. (See id.)
After June 30, 1999, Zlobinsky had no further contact with plaintiff. (See id. ¶ 14.)
B. Events of July 1, 1999
On July 1, 1999, defendants Tom Abrahamsen ("Abrahamsen") and Anne Hoke ("Hoke") both San Francisco Police Officers, were sent by police dispatch to plaintiff's residence on a report of a person abusing the Emergency 911 system. (See id. ¶ 17.) Upon their arrival, they saw Dubbin in an ambulance with a large bruise on her forehead. (See id. ¶¶ 17-18.) The officers spoke to Dubbin and plaintiff, who again gave conflicting accounts of what had happened. While in the ambulance, Dubbin told Hoke that she had been involved in a physical struggle inside of plaintiff's residence and that plaintiff had struck her. (See id. at 18.) Plaintiff told Abrahamsen that she and Dubbin had been in a physical altercation at approximately 4:00 p.m. that afternoon, in which Dubbin had swung a large, heavy purse at her and also tried to punch her, and plaintiff had grabbed a phone to ward off Dubbin's blows. (See id. ¶ 19.) Plaintiff was upset and angry, and could not promise that she and Dubbin would not get into another fight if they remained at the residence. (See id.) The officers placed plaintiff under arrest and took her to the police station. (See Sudderth Decl. ¶ 31.)
While defendants contend plaintiff was taken to the police station for "further questioning," (see MSUF ¶ 21), according to plaintiffs declaration, she was placed in handcuffs and informed that she was under arrest at the time she was taken to the station. (See Sudderth Decl. ¶ 31.)
Shortly thereafter, Hoke interviewed Dubbin at the hospital, at which time Dubbin stated that while she was asleep, plaintiff came home and began throwing objects at Dubbin and accusing her of stealing. (See Decl. of Anne Hoke ("Hoke Decl.") ¶ 5; MSUF ¶ 20.) Dubbin stated that plaintiff hit her with her left fist on the right side of her forehead, causing a bruise. Dubbin signed a form for a citizen's arrest of plaintiff on charges of battery. (See id. ¶¶ 20-21.)
Hoke then returned to the police station, informed plaintiff she was under arrest for battery, and transported plaintiff to the County Jail. (See id. ¶¶ 21, 22, 24.)
C. The Complaint
Plaintiff filed the instant action on June 30, 2000. Her First Cause of Action is brought under 42 U.S.C. § 1981 and alleges defendants deprived her of the right to protection of law enforcement and to legal process in excluding trespassers from her residence. Her Second Cause of Action is brought under 42 U.S.C. § 1983 and alleges defendants violated her due process rights and right to be free from unreasonable searches and seizures under the Fourth and Fourteenth Amendments. Her Third Cause of Action is brought under 42 U.S.C. § 1985 and alleges that defendants conspired to deprive plaintiff of her constitutional rights. Her Fourth Cause of Action alleges a claim for false arrest and imprisonment. Her Fifth Cause of Action alleges a claim for intentional infliction of emotional distress ("IIED"). Her Sixth Cause of Action is brought under California Civil Code § 51.7 and alleges disparate treatment, specifically, intimidation by threat of violence on the basis of race, sex, and national origin.
STANDARD OF REVIEW
Rule 56(c) of the Federal Rules of Civil Procedure provides that a court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
The Supreme Court's 1986 "trilogy" of Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), requires that a party seeking summary judgment show the absence of a genuine issue of material fact. The moving party need not produce admissible evidence showing the absence of a genuine issue of material fact when the non moving party has the burden of proof, but may discharge its burden simply by pointing out that there is an absence of evidence to support the non moving party's case. Celotex, 477 U.S. at 324-25. Once the moving party has done so, 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,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(c)). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted). When determining whether there is a genuine issue for trial, "inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita, 475 U.S. at 587, (citation omitted).
DISCUSSION
A. Unlawful Entry — § 1983
In her opposition, plaintiff argues that because she had a right to exclude Dubbin from her home, her right to be free from unreasonable searches and seizures and right to privacy and to "protect herself and her property" were violated when she was instructed to allow Dubbin to re-enter plaintiff's residence.
Plaintiff's opposition, which is only two pages in length, makes no reference to unreasonable search or seizure. Although, in her complaint, plaintiff does allege a Fourth Amendment violation based on "unreasonable searches and seizures," (see Compl. ¶ 26(c)), as noted above, plaintiff thereafter admitted that she voluntarily permitted Zlobinsky, Hoke and Abrahamsen to enter her residence.
Although plaintiff's Second Cause of Action refers to all defendants, there is no evidence that Hoke or Abrahamsen allowed Dubbin to enter plaintiff's home.
Plaintiff has admitted, however, that after she rented her home to Dubbin, she was not permitted by law to lock Dubbin out of her home or exclude Dubbin from her residence until plaintiff regained right of possession through formal legal process. (See Rabkin Decl. Ex. D at 3, Requests Nos. 3-7.) Indeed, irrespective of plaintiff's admissions, under California law, residential tenants such as Dubbin have a non-waivable right to a three-day notice to terminate their tenancy. See Friedman et al., Cal. Practice Guide: Landlord-Tenant (The Rutter Group 2000) § 7:98.5, p. 7-25; Cal. Civ. Code § 791; Cal. Civil Proc. Code §§ 1161 and 1953. Under the San Francisco Administrative Code, plaintiff, prior to endeavoring to recover possession of the rental unit occupied by Dubbin, was required not only to give Dubbin notice to vacate the premises but to inform her in writing of both the grounds for her eviction and that advice regarding the eviction was available from the San Francisco Residential Rent Stabilization and Arbitration Board. See San Francisco Administrative Code § 37.9(c). There is no evidence that at the time she attempted to lock Dubbin out of her home, plaintiff had taken any of these steps to regain possession.
"Rule 36(a) permits requests for admission addressing questions of mixed law and fact." Marchand v. Mercy Med. Ctr., 22 F.3rd 933, 937 fn. 4 (9th Cir. 1994).
Moreover, even if such notice had been given, plaintiff did not have the right to exclude Dubbin from the residence by summarily changing her locks. See People v. Thompson, 43 Cal.App.4th 1265, 1270 (1996) ("Unless a tenant voluntarily vacates, a landlord must have a valid writ of execution or possession to reacquire possession of the premises in the eviction context."); Four Seas Inv. Corp. v. International Hotel Tenants' Assn., 81 Cal.App.3d 604, 612 (1978) (holding "a tenant is entitled to peaceful possession until the detainer action culminates in a judgment of forfeiture."); Friedman et al., Cal. Practice Guide: Landlord-Tenant (The Rutter Group 2000) § 7:1, p. 7-1 (noting dispossession of real property tenants "must be effected by statutorily authorized eviction procedures").
Accordingly, to the extent plaintiff's Second Cause of Action is based on unlawful entry into her home, defendants' motion for summary judgment is hereby GRANTED.
B. False Arrest and Imprisonment — § 1983
Hoke and Abrahamsen arrested plaintiff on the ground that plaintiff had committed a battery against Dubbin. A battery is defined under California law as "any willful and unlawful use of force or violence upon the person of another." See Cal. Penal Code § 242 (West 1999). Under California law, simple battery, the crime for which plaintiff was arrested, is a misdemeanor. See Cal. Penal Code § 243(a). An officer may make a warrantless misdemeanor arrest under California law only if he has reasonable cause to believe that the person committed a misdemeanor in his presence. See Cal. Penal Code § 836(1).
See Decl. of Tom Abrahamsen ("Abrahamsen Decl.") ¶ 9 and Ex. A at 4.
Here, it is undisputed that the officers were not present when the battery for which plaintiff was arrested occurred. Violation of the "presence" requirement for misdemeanors, however, does not support a finding of liability under § 1983 unless probable cause to make the arrest is lacking. See Allen v. City of Portland, 73 F.3d 232, 236 n. 2 (9th Cir. 1995) ("A warrantless misdemeanor arrest which violates state law does not implicate the Fourth Amendment unless there is no probable cause."); Barry v. Fowler, 902 F.2d 770 772 (9th Cir. 1990) (same).
Probable cause exists where an officer has "reasonably trustworthy information sufficient to warrant a prudent person in believing that plaintiff had committed a crime." United States v. Butler, 74 F.3d 916, 920 (9th Cir. 1996) (quoting United States v. Del Vizo, 918 F.2d 821, 825 (9th Cir. 1990)). Defendants seek summary judgment on the grounds that probable cause existed to believe plaintiff committed a battery. "Probable cause is generally a question for the jury," unless "no reasonable jury could determine that there was a lack of probable cause." See Barry, 902 F.2d at 772-73 (citing McKenzie v. Lamb, 738 F.2d 1005, 1007 (9th Cir. 1984)).
On July 1, 1999, when Hoke and Abrahamsen arrived at 1523 32nd Avenue, they first encountered Dubbin, who had a bruise on her forehead and was being taken to the hospital in an ambulance. Dubbin told Hoke and Abrahamsen that plaintiff had struck her during an altercation in plaintiff's residence. Plaintiff admitted that a physical altercation had taken place and to using force against Dubbin, albeit defensively, and that afterwards, Dubbin had "fallen down and had a seizure." (See Abrahamsen Decl. Ex. A at 4; Sudderth Decl. at ¶ 29.) Plaintiff told the officers that she and Dubbin first began pushing one another, at which point Dubbin began striking plaintiff with a large purse while plaintiff used a phone to ward off Dubbin's blows. (See Abrahamsen Decl. Ex. A at 4; MSUF ¶ 19.)
Plaintiff was also injured — she had a bruise on her right arm, a cut on her right thumb, and scrapes on her neck and right thigh, all of which plaintiff told the officers she received during the altercation with Dubbin. (See Abrahamsen Decl. Ex. A at 4.)
Thus, plaintiff confirmed that she had used force against Dubbin during their altercation. Although self defense is considered a legal justification for battery under California law, see People v. Mayes, 262 Cal.App.2d 195, 198 (1968); California Jury Instructions, Criminal § 16.140 (6th ed. 1996), plaintiff's allegations that Dubbin was also striking her and that she was defending herself did not conclusively establish a justification for the battery, especially in light of her admission that she "pushed" Dubbin at the onset of the altercation. (See Abrahamsen Decl. Ex. A at 4.) Moreover, the possible existence of a defense to the offense does not prevent a finding of probable cause. See Simmons v. Pryor, 26 F.3d 650, 654 (7th Cir. 1993) (holding lack of legal justification for battery not an element of the offense, but rather defense to be raised by defendant); Moscoso v. City of New York, 92 F. Supp.2d 310, 314 (S.D.N.Y. 2000) (holding probable cause for arrest for assault existed where one man was severely injured, the injured man claimed that the plaintiff had assaulted him, and plaintiff admitted as much, albeit with an explanation that suggested a defense).
Additionally, Hoke and Abrahamsen were aware that plaintiff and Dubbin had been in an altercation the day before, which resulted in both being cited for battery. At that time, plaintiff repeatedly accused Dubbin of stealing from her, appeared angry, and could not promise that another altercation would not occur if Dubbin returned. Under the circumstances, Hoke and Abrahamsen had "reasonably trustworthy information sufficient to warrant a prudent person in believing that plaintiff had committed a crime." Butler, 74 F.3d at 920. See Rohde v. City of Roseburg, 137 F.3d 1142, 1144 (9th Cir. 1998) (holding courts look to totality of the circumstances known to the officers at the time to determine whether probable cause existed).
Consequently, plaintiff's claims for false arrest fail as a matter of law. See Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) ("To prevail on § 1983 claim for false arrest and imprisonment, plaintiff would have to demonstrate that there was no probable cause to arrest him."); Schertz v. Waupaca County, 875 F.2d 578, 582 (7th Cir. 1989) ("[T]he existence of probable cause for arrest is an absolute bar to a Section 1983 claim for unlawful arrest, false imprisonment, or malicious prosecution.")
Accordingly, to the extent plaintiff's Second Cause of Action is based on false arrest and imprisonment, defendants' motion for summary judgment is hereby GRANTED.
C. False Arrest and Imprisonment — § 1985
For the reasons expressed above, the existence of probable cause bars plaintiff's claims under § 1985 as well. The Third Cause of Action, titled "False Arrest and Imprisonment", alleges a conspiracy to violate plaintiff's constitutional rights under § 1985(3). However, "the absence of an underlying § 1983 deprivation of rights precludes a § 1985 conspiracy claim predicated on the same allegations." Zimmerman v. City of San Francisco, 2000 WL 1071830, *11 (N.D.Cal. Jul 27, 2000) (citing Caldeira v. County of Kauai, 866 F.2d 1175, 1181-82 (9th Cir. 1989)).
Accordingly, defendants' motion for summary judgment is hereby GRANTED as to plaintiff's Third Cause of Action.
D. Violation of the Equal Protection Clause — §§ 1981 and 1983
Plaintiff's First and Second Causes of Action allege defendants intentionally withheld "the protection of law enforcement" and "the right to legal process in excluding trespassers from [plaintiff's] residence" because of plaintiff's race or national origin, and seek damages under 42 U.S.C. § 1981 and 1983 for violation of the Equal Protection Clause. Both claims require that plaintiff prove intentional discrimination on the part of defendants. See General Building Contractors Assoc., Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982) (holding § 1981 violated "only by purposeful discrimination"); Federal Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 471 (9th Cir. 1991) ("The plaintiff in a § 1983 claim alleging a violation of equal protection must prove that the defendant acted in a discriminatory manner and that the discrimination was intentional."). Thus, in order to survive summary judgment, a plaintiff must produce evidence sufficient to establish a genuine issue of fact as to the individual officer's motivations. See Federal Deposit Ins. Corp., 940 F.2d at 471.
Title 42 U.S.C. § 1981 provides: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
To survive summary judgment, plaintiffs must satisfy the test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Federal Deposit Ins. Corp., 940 F.2d at 471-72 ("While it may be true that, in some class of cases, a plaintiff who does not satisfy the McDonnell Douglas test may nonetheless state a claim for intentional racial discrimination under the equal protection clause, our cases indicate that there is a very close relationship between [Title VII and equal protection] claims."); Gay v. Waiters and Dairy Lunchmen's Union, 694 F.2d 531, 538-39 (9th Cir. 1982) (holding that despite its status as a distinct statutory remedy, a prima facie showing of a § 1981 violation may be made out by tracking the "order and allocation of proof" prescribed for Title VII disparate treatment claims.)
In McDonnell-Douglas, the Court established the appropriate "order and allocation of proof" in disparate treatment lawsuits. See McDonnell Douglas, 411 U.S. at 800. The plaintiff has the initial burden to come forward with evidence to show that the actions taken by the defendant, if otherwise unexplained, create an inference that it was "more likely than not" that the action was based on race or another impermissible criteria. Gay, 694 F.2d at 538. The burden of production then shifts to the defendant to "articulate some legitimate, nondiscriminatory reason" for the defendant's actions. McDonnell Douglas, 411 U.S. at 802. The plaintiff must then show that the defendant's stated reasons are pretextual for unstated discriminatory purposes Id., at 804. This order of proof is designed to "progressively sharpen the inquiry into the elusive factual question of intentional discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 8 (1981).
The ultimate burden of persuading the trier of fact that the defendant was motivated by a racially discriminatory animus does not shift with the burden of production but remains at all times with the plaintiff. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981) (Burdine); Gay, 694 F.2d at 538.
Here, the only evidence cited by plaintiff as evidence of discriminatory intent on the part of defendants is that defendants and Dubbin are Caucasian, plaintiff is Chinese-American, and defendants prevented plaintiff from locking Dubbin out of the residence until an eviction proceeding was undertaken. (See Rabkin Decl. Ex. G at 3, Plaintiff's Response To Anne Hoke's Special Interrogatory No. 11; Pl.'s Opp. at 2.) Plaintiff cites no authority to suggest this minimal showing is sufficient to establish a prima facie case of discrimination.
Even assuming that plaintiff has made out a prima facie case, defendants have come forward with a "legitimate, nondiscriminatory reason" for the officers' actions, specifically, that they reasonably believed they were required by law to assist Dubbin in regaining access to the residence. Plaintiff has admitted that she had no right under the law to lock Dubbin out of the residence at the time, and that it was reasonable for the officers to believe they were required to assist Dubbin in regaining access to her home. (See Rabkin Decl. Ex. D at 3, Req. Nos. 5 and 8.) Under the McDonnell Douglas burden-shifting scheme, plaintiff then has the burden of producing evidence to show the officers' stated reason for their conduct was a pretext for racial discrimination. Plaintiff has offered no such evidence.
Accordingly, as to plaintiff's First Cause of Action and to the extent plaintiff's Second Cause of Action is based on denial of equal protection and racial or national origin discrimination, defendants' motion for summary judgment is hereby GRANTED.
E. Violation of the Equal Protection Clause — § 1985
For the reasons discussed above, to the extent plaintiff's Third Cause of Action under 42 U.S.C. § 1985(3), titled "False Arrest and Imprisonment", includes a claim for violation of the Equal Protection Clause, such claim is also barred by plaintiff's failure to establish a genuine issue of material fact as to a required element of her § 1985 conspiracy claim: that the defendants were motivated by "invidiously discriminatory animus behind the conspirators' action." Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (internal quotation and citation omitted). See Zimmerman v. City of San Francisco, 2000 WL 1071830, *11 (N.D.Cal. Jul 27, 2000) (granting summary judgment on § 1985(3) claims on grounds that plaintiff failed to produce any evidence of required animus); Keenan v. Allan, 889 F. Supp. 1320, 1364-65 (E.D.Wash. 1995) (same).
Accordingly, to the extent plaintiff's Third Cause of Action includes a claim for violation of the Equal Protection Clause, defendants' motion for summary judgment is hereby GRANTED.
F. California Civil Code § 51.7
California Civil Code § 51.7(a) provides in relevant part:
All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, disability, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics.
As noted, plaintiff has offered insufficient evidence to create a triable issue of fact that defendants' actions were due to plaintiff's membership in one of the specified classifications set forth in Civil Code § 51.7.
Accordingly, defendants' motion for summary judgment on plaintiff's Sixth Cause of Action is hereby GRANTED.
G. IIED
In order to prevail on a claim for IIED, plaintiff must establish (1) extreme and outrageous conduct by the defendants with the intention of causing, or reckless disregard for the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. See Miller v. National Broadcasting Co., 187 Cal.App.3d 1463, 1487 (1986) (quotations omitted). In the instant case, plaintiff's IIED claim is derivative of plaintiff's other claims. Accordingly, to the extent plaintiff's Fifth Cause of Action is based on plaintiff's federal law claims or claim under California Civil Code § 51.7, defendants' motion for summary judgment on plaintiff's Fifth Cause of Action is hereby GRANTED.
H. Claims against City and County of San Francisco
Defendants move for summary judgment on plaintiff's federal law claims against the City and County of San Francisco, on the separate ground that plaintiff's complaint does not contain any allegations that, if proven to be true, would expose the City and County of San Francisco to liability.
There is no respondeat superior liability for § 1983 or § 1981 claims. See Monell v. New York City Dept. of Soc. Services, 436 U.S. 658, 691 (1978) ("[A] municipality cannot be held liable under § 1983 on a respondeat superior theory.); Federation of African American Contractors v. City of Oakland, 96 F.3d 1204, 1214-15 (9th Cir. 1996) (holding § 1981 does not impose municipal respondeat superior liability on state actors). Rather, a municipality may only be held liable for such claims if the plaintiff alleges and proves that her injury resulted from a municipal policy, practice, or custom. See Monell, 436 U.S. at 691; Federation of African American Contractors, 96 F.3d at 1215. Plaintiff's complaint does not contain any allegations that plaintiff's rights were violated as the result of a "policy, practice or custom" of the City and County of San Francisco, nor has plaintiff offered any evidence of such.
Accordingly, City's motion for summary judgment on plaintiff's federal law claims against the City and County of San Francisco is hereby GRANTED.
I. False Arrest and Imprisonment — State Claim
Plaintiff's remaining claim alleges false arrest and imprisonment under state law. As noted, under California state law an officer may not make a warrantless arrest for a misdemeanor offense unless the offense was committed in the officer's presence. Here, a triable issue of fact exists as to whether plaintiff was placed under arrest for a period of time prior to Dubbin's signing the citizen's arrest form. See infra, fn. 3. Thus, defendants are not entitled to summary judgment on plaintiff's state law claim for false arrest and imprisonment.
28 U.S.C. § 1367 provides that a district court may decline to exercise supplemental jurisdiction over a claim where the court has dismissed all claims over which it has original jurisdiction. See 28 U.S.C. § 1367(c)(3). In doing so, the court must consider whether the exercise of jurisdiction advances the values of "economy, convenience, fairness, and comity." Columbia Pictures Indus. Inc. v. Professional Real Estate Investors, Inc., 944 F.2d 1525, 1533 (9th Cir. 1991) (quoting United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966)); Executive Software v. U.S. District Court, 24 F.3d 1545, 1557 (9th Cir. 1994).
The Ninth Circuit has indicated that a district court ordinarily should not exercise supplemental jurisdiction over a plaintiffs state law claims when the court has dismissed the plaintiffs federal claims before trial. See Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) ("The Supreme Court has stated, and we have often repeated, that `in the usual case in which all federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state-law claims.'") (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988)).
In the instant case, the Court finds no reason to deviate from the general rule. The Court is mindful that the trial date for this case is less than two months away, and that, under certain circumstances, grounds of judicial economy and fairness weigh in favor of retaining jurisdiction over state law claims where plaintiff's federal claims are dismissed close to the time of trial. See Batiste v. Island Records, Inc., 179 F.3d 217, 227-28 (5th Cir. 1999) (holding district court's dismissal of state law claims one month before trial improper where case had "produced more than sixteen volumes of record over the course of three years, numerous depositions and discovery disputes, and . . . multiple motions to dismiss claims or grant summary judgment."). Defendants' motion for summary judgment, however, was filed well over four months ago, and almost five months before the trial date. Hearing on the motion was continued at the request of plaintiff in order to allow plaintiff the opportunity to file additional motions and take discovery, neither of which occurred. In Batiste, both the district court and the parties had invested a significant amount of time and expense prior to the dismissal. See Batiste, 179 F.3d at 227-28. Here, by contrast, plaintiff's claims have been pending in the district court for less than a year; little discovery has taken place, and only one substantive motion has been filed. Under the circumstances, considerations of economy, convenience and fairness do not weigh in favor of the exercise of jurisdiction. See Columbia Pictures, 944 F.2d at 1533 (affirming dismissal of state law counterclaims following summary judgment on federal counterclaim despite fact dismissed counterclaims had been pending for six years and refiling would likely result in further delay).
Moreover, plaintiff's remaining claim is brought under state law against a state law enforcement agency and its officers. As the Court noted in Gibbs, "[n]eedless decisions of state law should be avoided both as a matter of comity" and to promote "a surer-footed reading of applicable law." Gibbs, 383 U.S. at 726.
For all of the above reasons, plaintiff's Fourth Cause of Action is DISMISSED without prejudice to refiling in state court.
CONCLUSION
For the foregoing reasons:
1. Defendant's motion for summary judgment is hereby GRANTED as to plaintiff's First, Second, Third, Fifth, and Sixth Causes of Action and DENIED as to plaintiff's Fourth Cause of Action.
2. Plaintiff's Fourth Cause of Action is hereby DISMISSED pursuant to 28 U.S.C. § 1367(c)(3).
The clerk shall close the file and terminate any pending motions.
IT IS SO ORDERED.