Case 3:14-cv L-AGS Document 45 Filed 02/23/17 PageID.923 Page 1 of 7

Size: px

Start display at page:

Download "Case 3:14-cv L-AGS Document 45 Filed 02/23/17 PageID.923 Page 1 of 7"

Debra Arnold
5 years ago
Views:

1 Case :-cv-0-l-ags Document Filed 0// PageID. Page of MARA W. ELLIOTT, City Attorney GEORGE F. SCHAEFER, Assistant City Attorney PAMELA C. CHALK, Deputy City Attorney California State Bar No. Office of the City Attorney 00 Third Avenue, Suite 00 San Diego, California 0-00 Telephone: ( -00 Facsimile: ( - Attorneys for Defendants City of San Diego, Shelley Zimmerman, Chief Of Police; Kevin Moyna; Perry McCiver; Dan Plein; Chuck Kaye 0 0 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA RED EYED JACKS SPORTS BAR INC. dba CHEETAH'S NIGHTCLUB, Plaintiff, CITY OF SAN DIEGO AND SHELLEY ZIMMERMAN, in her official capacity as Chief of Police, JANE DOE, Defendants. Plaintiff, CITY OF SAN DIEGO, SHELLY ZIMMERMAN, and DOES -00, inclusive, Defendants. Case No. cv0 L (AGS DEFENDANTS AMENDED EX PARTE APPLICATION AND APPLICATION TO EXCUSE SAN DIEGO POLICE CHIEF SHELLEY ZIMMERMAN FROM ATTENDING MANDATORY SETTLEMENT CONFERENCE Date: March, 0 Time: :00 a.m. Judge: Hon. Andrew G. Schopler Court Room: th Floor (Schwartz Suite 0 West Broadway San Diego, CA 0 RELATED CASE: Case No. cv L (AGS [CONTINUED ON NEXT PAGE] Case Nos.:cv0 L (AGS; cv L (AGS; cv L (AGS; and, cv L (AGS

2 Case :-cv-0-l-ags Document Filed 0// PageID. Page of 0 0 TANYA A., STEPHANIE B., ANGELA C., MINDY C., DIANA D., KATELYNN D., HEATHER D., VALERIA E., TIANA E., BERENIZ F., SARA G., MARITZA G., CRYSTAL H., CLARRISE J., EMILIA J. ANDREA L., RENEE L., CHLOE L., KRISTINIA M., MALLORY M., BRITTANY M., ZINNIA P., CHELSEA S., LINDSAY T., MARIYA W., LINDA E., BRIANNA H., ROWSANNA M., JENNIFER S. and ANGELA T., Plaintiffs, CITY OF SAN DIEGO, SHELLY ZIMMERMAN and DOES -00, inclusive, Defendants. SUZANNE COE Plaintiff, CITY OF SAN DIEGO; SHELLY ZIMMERMAN, as an individual and in her official capacity as Chief of Police; KEVIN MOYNA; PERRY McCIVER; DAN PLEIN; CHUCK KAYE; and DOES to 0 Defendants, RELATED CASE: Case No. cv L (AGS RELATED CASE: Case No. cv L (AGS Defendants City of San Diego, Shelley Zimmerman, Chief Of Police ( Chief Zimmerman ; Kevin Moyna; Perry McCiver; Dan Plein; and, Chuck Kaye ( Defendants, by and through their attorneys of record, San Diego City Attorney Mara W. Elliott and Deputy City Attorney Pamela C. Chalk, hereby submit this Amended Ex Parte Application and Application to excuse Chief Zimmerman from attending the Mandatory Settlement Conference ( MSC set in all of the abovetitled matters. For purposes of this pleading only, the above-title matters, listed below are hereafter referred to as the Red Eyed Jack s Cases : Case Nos.:cv0 L (AGS; cv L (AGS; cv L (AGS; and, cv L (AGS

3 Case :-cv-0-l-ags Document Filed 0// PageID. Page of 0 0 a Red Eyed Jacks Sports Bar, Inc. dba Cheetahs City of San Diego et al,. United States District Court, Southern District of California, Case No. -cv-0 L (AGS ( Red Eyed Jacks ; b Jane Doe City of San Diego, et al,. United States District Court, Southern District of California, Case No. -CV- L (AGS ( Jane Doe ; c Tanya A. et. al. City of San Diego, et al,. United States District Court, Southern District of California, Case No. -CV- L (AGS ( Tanya A. ; and, d Suzanne Coe City of San Diego, et al,. United States District Court, Southern District of California, Case No. -CV-0 L (AGS ( Coe. This application is made on the following grounds:. The Court has set the MSC for March, 0, at :00 a.m., in the Courtroom of United States Honorable Andrew G. Schopler, United States Courthouse, West Broadway, San Diego, California, 0. [ECF NO. 0].. The Red Eyed Jack s Cases concern allegations regarding alleged constitutional violations stemming from two SDPD inspections of the Cheetahs adult entertainment nightclub(s on July, 0 and March, 0. Defendants dispute all claims made by the Plaintiffs in each of the Red Eyed Jack s Cases.. Chief Zimmerman s attendance at the MSC would neither contribute to nor enhance Defendants participation in the conference. She was neither present at nor directly involved in the alleged incident(s at issue in this case and/or has no current involvement other than in her departmental management capacity and/or her official capacity as the Chief of Police.. She is sued solely in her official management capacity as the Chief of Police in all the Red Eyed Jack s Cases except for the Coe Case. In the previous ex parte motion submitted to the Court yesterday, Defendants erroneously stated Chief Case Nos.:cv0 L (AGS; cv L (AGS; cv L (AGS; and, cv L (AGS

4 Case :-cv-0-l-ags Document Filed 0// PageID. Page of 0 0 Zimmerman had only been sued in her official capacity in all the Red Eyed Jack s Cases. Thereby, in good faith, the Defendants submit this amended ex parte motion to correct this error.. However, in addition to fully disputing the claims made by Coe in her Complaint and/or that Coe is entitled to any relief in the Coe Case whatsoever, it is the Defendants position that Chief Zimmerman should not have been sued and/or was erroneously sued in her individual capacity in the Coe case given that Coe s allegations all concern alleged acts by Chief Zimmerman that she allegedly committed in her official capacity as an alleged top/head policy maker, as the Chief of Police, and/or as a San Diego employee. (See, e.g., ECF No., Plaintiff s Complaint, Paragraph, wherein it states, At all times mentioned herein, Shell[e]y Zimmerman ( Zimmerman, Chief of Police, City of San Diego, was the head of and policy maker for the San Diego Police Department, the agency charged with administrating the provisions of San Diego Municipal Code Chapter III, Article, Division, regulating the business of nude entertainment in the City of San Diego. Defendants revoked plaintiff s permit and later defendant that action at an administrative appeal hearing. Zimmerman is also sued herein in her official capacity.. (emphasis added.. Additionally, a motion to dismiss the Complaint to include Chief Zimmerman is still pending before the Court and it may be if the motion is granted that she will soon no longer be a party to the Coe case, thereby further potentially or actually rendering her appearance at the MSC most likely unnecessary. (See, ECF No... Chief Zimmerman s presence at the MSC will not improve the chances of settlement. As noted above, she is sued only in her official capacity and/or, at best, should have only been sued in her official capacity in the Coe case (if at all (as noted above in Paragraphs - herein as a San Diego employee. She and the City of San Diego will be represented at the MSC by Deputy City Attorney Pamela Case Nos.:cv0 L (AGS; cv L (AGS; cv L (AGS; and, cv L (AGS

5 Case :-cv-0-l-ags Document Filed 0// PageID. Page of 0 0 C. Chalk; Charlie Hopper, a Claims Representative from the City s Risk Management Department with authority to negotiate settlement; and Defendants Kevin Moyna, Perry McCiver, Dan Plein, and, Chuck Kaye. Dan Andrews, an Investigator in the City Attorney s Civil Litigation Division, will also attend. Ms. Chalk will be prepared to recommend any settlement that may be reached, if appropriate, to the government official(s having ultimate settlement authority, as required by the City Charter and related codes and regulations.. Requiring Chief Zimmerman to attend the MSC would place an unwarranted and extraordinary burden on the police department and the San Diego community; such appearances would adversely detract from the sound management and control of the department. In her position as the police chief of a major U.S. municipality, Chief Zimmerman is frequently named as a defendant in cases involving only subordinate officers of the department, and is continuously a party to multiple suits not personally involving her. Courts in the Southern District of California routinely excuse Chief Zimmerman from attending settlement conferences to include but not limited to Mandatory Settlement Conferences and/or Early Neutral Evaluations. (See, e.g., ECF No. in the Red Eyed Jacks Case.. Ms. Chalk has notified Plaintiffs counsel of record, of her plans to ask the Court to excuse Chief Zimmerman from the MSC. Counsel for Jane Doe said that the request is not opposed by Jane Doe. Counsel for the Plaintiffs in the Red Eyed Jack s, Tanya A., and Coe case have indicated that they will and do oppose the motion. 0. For the foregoing reasons, Defendants ask the Court to excuse Chief Shelley Zimmerman from attending the MSC in this matter, which is currently set for :00 a.m. on March, 0.. Good cause exists for granting this motion and considering on an ex parte basis given that the MSC is scheduled a week from today. Case Nos.:cv0 L (AGS; cv L (AGS; cv L (AGS; and, cv L (AGS

6 Case :-cv-0-l-ags Document Filed 0// PageID. Page of Pursuant to Local Civil Rule., Defendants will separately submit a Proposed Order granting the relief requested herein. Respectfully submitted, Dated: February, 0 MARA W. ELLIOTT, City Attorney By /s/pamela C. Chalk Pamela C. Chalk, Jr. Deputy City Attorney Attorneys for Defendants 0 0 Case Nos.:cv0 L (AGS; cv L (AGS; cv L (AGS; and, cv L (AGS

7 Case :-cv-0-l-ags Document Filed 0// PageID. Page of 0 ECF CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document has been served on this date to all current and/or opposing counsel of record, if any to date, who are deemed to have consented to electronic service via the Court s CM/ECF system per CivLR.(d. Any other counsel of record will be served by electronic mail, facsimile, regular mail, , personal delivery, and/or overnight delivery upon their appearance in this matter and/or as directed by the Court. I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct. Executed this rd day of February at San Diego, California. Dated: February, 0 MARA W. ELLIOTT, City Attorney By s/ Pamela C. Chalk Pamela C. Chalk Deputy City Attorney pchalk@sandiego.gov Attorneys for Defendants 0 Case Nos.:cv0 L (AGS; cv L (AGS; cv L (AGS; and, cv L (AGS

Case5:12-cv HRL Document9 Filed08/09/12 Page1 of 5

Case5:12-cv HRL Document9 Filed08/09/12 Page1 of 5 Baykeeper v. Zanker Road Resource Management, Ltd Doc. 0 Case:-cv-0-HRL Document Filed0/0/ Page of 0 Jason Flanders (Bar No. 00) Andrea Kopecky (Bar No. ) SAN FRANCISCO, INC. Market Street, Suite 0 San