Savage v. City of Whittier

689 F.Supp.3d 781

Jolie SAVAGE, Plaintiff, v. CITY OF WHITTIER et al., Defendant(s).

Case No. 2:21-cv-08067-VAP-PDx

United States District Court, C.D. California

Signed August 30, 2023

Catherine Ellen Rogers, Law Office of Kath Rogers, Los Angeles, CA, Olu K. Orange, Orange Law Offices PC, Los Angeles, CA, Rebecca Brown, Dan Stormer, Hadsell Stormer Renick and Dai LLP, Pasadena, CA, Leslie Ivie, Restoration Law Center, Van Nuys, CA, for Plaintiff.

Nathan A. Oyster, John Russell Horstmann, Burke Williams and Sorensen LLP, Los Angeles, CA, for Defendants City of Whittier, Paul Segura, Mark Goodman, John Draper, Michael Przybyl, Jason Zuhlke, Jeffrey Robert.

Nathan A. Oyster, Burke Williams and Sorensen LLP, Los Angeles, CA, for Defendant Jeff Piper.

Order GRANTING in part and DENYING in part Defendants' Motion for Summary Judgment

VIRGINIA A. PHILLIPS, Senior United States District Judge

Before the Court is a Motion for Summary Judgment ("Motion") filed by Defendants City of Whittier ("the City"), Paul Segura, Mark Goodman, John Draper, Michael Przybyl, Jason Zuhlke, and Jeffrey Robert ("Individual Defendants") (collectively, "Defendants"). (Doc. No. 82.) Plaintiff Jolie Savage filed an Opposition on July 24, 2023. (Doc. No. 83.) Defendants filed a Reply on July 31, 2023. (Doc. No. 91.)

After considering all the papers filed in support of, and in opposition to, the Motion, the Court GRANTS IN PART and DENIES IN PART the Motion.

I. BACKGROUND

Savage filed this action on October 10, 2021, naming as Defendants City of Whitter, Jeff Piper, Paul Segura, Mark Goodman, John Draper, Michael Przybyl, Jason Zuhlke, Jeffrey Robert, and Does. (Compl., Doc. No. 1.) The Complaint alleges the following six claims under 42 U.S.C. § 1983: (1) violation of First Amendment free speech against all Defendants; (2) violation of Fourteenth Amendment due process and equal protection against all Defendants; (3) unlawful detention and excessive force in violation of the Fourth Amendment against all Defendants; (4) conspiracy to violate civil rights under § 1983 against all Defendants; (5) municipal liability for unconstitutional policy, custom, or procedure against the City; and (6) municipal and supervisory liability for failure to train, supervise, discipline, or correct against Piper and the City. (Compl. 10-16.) Savage has since dismissed Defendant Piper from the action. (Doc. No. 60.)

On July 17, 2023, Defendants filed a Motion for Summary Judgment (Doc. No. 82) as to all of Savage's claims, a Statement of Undisputed Facts ("Def. SUF," Doc. No. 82-12), a Compendium of Exhibits ("COE"), attaching Exhibits 1 through 10,¹ and the following nine declarations: Declaration of Nathan A. Oyster ("Oyster Decl.," Doc. No. 82-2), Declaration of Jason Zuhlke ("Zuhlke Decl.," Doc. No. 82-3), Declaration of Paul Segura ("Segura Decl.," Doc. No. 82-4), Declaration of Kevin Ramos ("Ramos Decl.," Doc. No. 82-5), Declaration of Jeffrey Robert ("Robert Decl.," Doc. No. 82-6), Declaration of Mark Goodman ("Goodman Decl.," Doc. No. 82-7), Declaration of Michael Przybyl ("Przybyl Decl.," Doc. No. 82-8), Declaration of John Draper ("Draper Decl.," Doc. No. 82-9), and Declaration of David Elizarraras ("Elizarraras Decl.," Doc. No. 82-10).

On July 24, 2023, Plaintiff Savage filed an Opposition to the Motion (Doc. No. 83), a Statement of Genuine Issues ("Pl. SGI," Doc. No. 83-1 at 1-16), and her own Statement of Undisputed Facts ("Pl. SUF," Doc No. 83-1 at 16-20).² Savage also filed Evidentiary Objections to Defendants' Evidence ("Pl. Objs.," Doc. No. 84) and a Declaration of Rebecca Brown ("Brown Decl.," Doc. No. 85), attaching Exhibits 1 through 18.³

On July 31, 2023, Defendants filed a Reply (Doc. No. 91), their own Statement of Genuine Issues ("Def. SGI," Doc. No. 91-1), a Response to Plaintiff's Statement of Genuine Issues ("Def. Resp.," Doc No. 91-2), and Evidentiary Objections ("Def. Objs.," Doc. No. 91-3).

II. LEGAL STANDARD

A motion for summary judgment or partial summary judgment shall be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998). "The moving party may produce evidence negating an essential element of the non-moving party's case, or . . . show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1106 (9th Cir. 2000) (reconciling Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The nonmoving party must then "do more than simply show that there is some metaphysical doubt as to the material facts" but must show specific facts which raise a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A genuine issue of material fact will exist "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

In ruling on a motion for summary judgment, a court construes the evidence in the light most favorable to the nonmoving party. Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991). "[T]he judge's function is not [ ] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505.

III. EVIDENTARY RULINGS

A. Plaintiff Savage's Evidentiary Objections

Plaintiff Savage objects to various statements in all six Individual Defendants' declarations asserting that Whittier Police Department ("WPD"; "the Department") trained them on the Department's policies regarding First Amendment assemblies, prohibition on the use of excessive force, use of handcuffs, and prohibition on bias-based policing. (See Def. Resp. ¶¶ 60, 63, 65, 67.) Savage argues that all of these statements contradict the Individual Defendants' corresponding deposition testimony and thus should be disregarded under the "sham affidavit" rule. (See, e.g., id. ¶¶ 23, 60.)

"A party cannot create a genuine issue of material fact to survive summary judgment by contradicting his earlier version of the facts." Block v. City of Los Angeles, 253 F.3d 410, 419 n.2 (9th Cir. 2001). This is because "if a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009) (quoting Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991)).

The sham affidavit rule, however, "should be applied with caution," Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1264 (9th Cir. 1993), because "[the] rule is in tension with the principle that a court's role in deciding a summary judgment motion is not to make credibility determinations or weigh conflicting evidence," Van Asdale, 577 F.3d at 998. The Ninth Circuit thus "ha[s] fashioned two important limitations on a district court's discretion to invoke the sham affidavit rule." Id. First, the rule "does not automatically dispose of every case in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony," Kennedy, 952 F.2d at 266-67; rather, "the district court must make a factual determination that the contradiction was actually a 'sham,' " i.e., "testimony that flatly contradicts earlier testimony in an attempt to 'create' an issue of fact and avoid summary judgment," id. at 267. Second, the Ninth Circuit "ha[s] emphasized that the inconsistency between a party's deposition testimony and subsequent affidavit must be clear and unambiguous to justify striking the affidavit." Van Asdale, 577 F.3d at 998-99.

Here, Individual Defendants' declarations do not raise the specter of "creating" a genuine issue of material fact to avoid summary judgment because the declarations were submitted to demonstrate that no genuine issues of material fact exist to procure summary judgment in Defendants' favor. (See Mot. 17.) Savage, moreover, has not provided sufficient information for the Court to make a factual determination that the declarations present sham evidence. Savage has not cited any specific deposition excerpts that purportedly contradict the declaration statements she objects to. She instead argues that the declarations contradict prior testimony "by adding information" on topics that Individual Defendants had "made no statement about" at deposition. (See, e.g., Pl. Objs. ¶ 23.) It is unclear, however, how merely providing additional information via declaration creates "clear and unambiguous" inconsistencies that "flatly contradict" Individual Defendants' prior deposition testimony such that the sham affidavit rule would apply. See Van Asdale, 577 F.3d at 999 (concluding the sham affidavit rule did not apply where a declaration provided additional information clarifying the declarant's prior deposition testimony). To the extent Savage failed to question or obtain information from Individual Defendants on these topics at their depositions, she cannot now preclude Defendants from presenting more detailed information in connection with their Motion by asserting that the new statements are a "sham."

The Court accordingly OVERRULES Plaintiff Savage's objections to Individual Defendants' signed declarations.

B. Defendants' Evidentiary Objections

1. Rule 401 and 403 Objections

Defendants'...