Francois Tabi v. Deputy Stephenson ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ) 11 FRANCOIS TABI, ) Case No. CV 21-9929-DMG (JC) ) 12 Plaintiff, ) ORDER ACCEPTING FINDINGS, ) CONCLUSIONS, AND 13 v. ) RECOMMENDATIONS OF UNITED DEPUTY STEPHENSON, et al., ) STATES MAGISTRATE JUDGE 14 ) ) 15 Defendants. ) ) 16 ) 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the verified Civil Rights 19 Complaint, all documents submitted by Plaintiff and Defendant Los Angeles County 20 Sheriff’s Deputy Michael Stephenson (“Stephenson”) in connection with Defendant 21 Stephenson’s Motion for Summary Judgment or Partial Summary Judgment (“Motion”), 22 the September 20, 2023 Amended/Superseding Report and Recommendation of United 23 States Magistrate Judge (“Report and Recommendation”), Plaintiff’s “Opposition” to such 24 Report and Recommendation and supporting Declaration (collectively, “Objections”), and 25 all of the other records herein. The Court has further made a de novo determination of 26 those portions of the Report and Recommendation to which objection is made. The Court 27 agrees with, approves, accepts, and adopts the Report and Recommendation and overrules 28 the Objections. 1 The Magistrate Judge recommends granting Defendant Stephenson’s Motion and 2 entering judgment in his favor. For the following reasons, Plaintiff’s Objections do not 3 warrant a change to the Magistrate Judge’s findings or recommendation. 4 Plaintiff objects that the Report and Recommendation made five manifest 5 misrepresentations of material facts. [Doc. # 55 at 9–14.] They are addressed in turn. 6 First, Plaintiff objects that his deposition was “essentially a false and fraudulent 7 document” because, for example, he did not recognize the photographs of the Walmart 8 store shown to him, and because Defendant’s counsel misquoted Plaintiff’s deposition and 9 used it as “an instrument for deceit and fraud.” Id. at 9–10. This objection is not relevant 10 to a finding in the Report and Recommendation. To the extent that Plaintiff repeats the 11 arguments he made in his motion for sanctions against Defendant’s counsel, the Magistrate 12 Judge, in denying the motion, explained why the arguments were not relevant to summary 13 judgment. [Doc. # 61.] Specifically, the location of the Walmart was not material to an 14 issue for summary judgment, and Defendant’s counsel did not present false evidence. Id. 15 at 2 n.2 and at 4. 16 Second, Plaintiff objects that he was subject to discrimination because he was treated 17 differently from the other signature gathers who were similarly situated to him. [Doc. # 55 18 at 11.] This objection fails to address the Magistrate Judge’s finding that Plaintiff was not 19 similarly situated to the other signature gatherers because Plaintiff was the only one using 20 a table and chair, thereby taking up more space and likely being more disruptive of 21 pedestrian traffic. [Doc. # 49 at 23.] 22 Third, Plaintiff objects that the Report and Recommendation misrepresented the 23 sequence of events on which his retaliation claim is based. [Doc. # 55 at 12.] Plaintiff 24 alleges that, after he threatened to sue Defendant, he was “detained, arrested, and placed [] 25 under criminal investigation.” Id. But Plaintiff did not allege an arrest. Instead, Plaintiff 26 testified that Defendant did not arrest Plaintiff, place him in handcuffs, or even touch him. 27 [Doc. # 24-4 at 21–23.] Although it is undisputed that Defendant told Plaintiff to wait 28 while Defendant performed a background check on Plaintiff [Doc. # 49 at 8], the Report 1 and Recommendation considered this fact and concluded that it was too weak to establish 2 causation or a retaliatory animus, given that Defendant had probable cause to believe 3 Plaintiff was trespassing (id. at 17, 20). 4 Fourth, Plaintiff objects that Defendant’s counsel improperly suggested that Plaintiff 5 has a history of falsely suing police officers for wrongdoing. [Doc. # 55 at 13.] This 6 objection is not relevant to a finding in the Report and Recommendation, which did not 7 consider Plaintiff’s litigation history. [Doc. # 61 at 3 n.3.] 8 Fifth, Plaintiff objects that Defendant falsely claimed that Plaintiff drove away from 9 the incident in a Mercedes. [Doc. # 55 at 14.] Because Plaintiff does not own a Mercedes, 10 Plaintiff argues that it is possible Defendant was referring to a different incident. Id. This 11 objection also is not relevant to a finding in the Report and Recommendation, which did 12 not assess Defendant’s credibility. Moreover, any dispute as to the type of vehicle Plaintiff 13 left the scene in was not material for summary judgment purposes. [Doc. # 61 at 4.] 14 Plaintiff further objects that the Report and Recommendation made five manifest 15 misinterpretations of the law. [Doc. # 55 at 14–24.] They are addressed in turn. 16 First, Plaintiff objects that he has stated a First Amendment claim under Laguna 17 Publishing Company v. Golden Rain Foundation of Laguna Hills, 131 Cal. App. 3d 816 18 (1982), disapproved on other grounds by Katzberg v. Regents of the University of 19 California, 29 Cal. 4th 300, 328 and n. 30 (2002). [Doc. # 55 at 15–17.] In Laguna 20 Publishing Company, the California Court of Appeal held that the owners of a private gated 21 retirement community violated a newspaper publisher’s free speech and press rights under 22 the California Constitution by enforcing a rule barring the distribution of unsolicited free 23 newspapers within the community. Laguna Publishing Company, 131 Cal. App. 3d at 24 854–56. This decision, however, is inapplicable to Plaintiff’s federal claim under 42 25 U.S.C. § 1983. Id. at 848 (“[I]t is an answer to plaintiff’s claim of right to an opportunity 26 to prove alleged damages under 42 United States Code section 1983 to observe that the 27 discrimination which we hold was here practiced was solely with reference to the plaintiff’s 28 free-speech, free-press rights secured under the California Constitution.”) (emphasis in 1 original). As the Report concluded, Plaintiff did not raise a claim under the California 2 Constitution. [Doc. # 49 at 14 n.12.] And even if he had, the entrance and apron area of 3 the Walmart store would not have been a public forum under the California Constitution’s 4 free speech provision. Id. 5 Second, Plaintiff objects that he raised a genuine issue of causation for his retaliation 6 claim. [Doc. # 55 at 18–19.] Plaintiff objects that he was banned from a public place 7 because he dared to speak out about filing a lawsuit against Defendant. Id. But as the 8 Report and Recommendation found, Plaintiff’s conclusory assertion of causation was 9 insufficient to raise a genuine issue of material fact. The assertion was “at most, weak 10 evidence of retaliation” in comparison to the evidence that Defendant had probable cause 11 to believe that Plaintiff was trespassing because he refused to leave when store security 12 guards requested that he do so. [Doc. # 49 at 20.] 13 Third, Plaintiff objects that he stated an equal protection claim by alleging he was 14 racially profiled. [Doc. # 55 at 19–20.] As the Report found, however, such conclusory 15 statements of bias do not carry Plaintiff’s burden in opposing Defendant’s Motion. [Doc. 16 # 49 at 22 and n.13. 17 Fourth, Plaintiff objects that he committed no crime that warranted a ban from the 18 shopping center, which required judicial process and a Court Order. [Doc. # 55 at 21–22.] 19 But Plaintiff did not raise this claim in his Complaint by challenging, on procedural 20 grounds, a supposed ban from the shopping center. Moreover, the Walmart shopping 21 center is private property that has a right to exclude. See Cedar Point Nursery v. Hassid, 22 141 S. Ct. 2063, 2072 (2021) (“[W]e have stated that the right to exclude is universally 23 held to be a fundamental element of the property right, and is one of the most essential 24 sticks in the bundle of rights that are commonly characterized as property.”) (citations and 25 internal quotation marks omitted). And as the Report and Recommendation concluded, the 26 general public does not have a First Amendment right to access private property for 27 expression. [Doc. # 49 at 12.] 28 Fifth, Plaintiff objects that he has presented substantial evidence to sustain his claims 2 || of violations of his free speech rights and retaliation. [Doc. #55 at 23—24.] This objection 3 || does not dispel the findings in the Report and Recommendation that Plaintiff did not have 4 ||a First Amendment right to register voters or circulate ballot measures on private shopping 5 || center property [Doc. # 49 at 12], and that Plaintiff did not establish a causal link between 6 || Defendant’s adverse action and a retaliatory motive (id. at 18). 7 In sum, Plaintiff's objections are overruled IT IS HEREBY ORDERED THAT: (1) 8 || the Motion for Summary Judgment [Doc. #24] is granted in favor of Defendant Stephenson 9 || and against Plaintiff: (2) this action is dismissed without prejudice as against the “Several 10 || Unnamed Security Officers at the Walmart Supercenter” Defendants (who have not been 11 ||served and have not appeared in this action); and (3) the Clerk shall enter Judgment 12 || accordingly. 13 IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the 14 || Judgment herein on Plaintiff and counsel for Defendant Stephenson. 15 IT IS SO ORDERED. 16 □□ 17 ||} DATED: March 6, 2024 Dn 18 Ltby, Dh. 19 UNITED#STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28