Valdez et al v. City of San Jose et al

Filing 162

ORDER by Judge Claudia Wilken DENYING 118 MOTION FOR CLASS CERTIFICATION; GRANTING IN PART AND DENYING IN PART 127 MOTION FOR SUMMARY JUDGMENT. (ndr, COURT STAFF) (Filed on 2/27/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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FRANCISCO VALDEZ, et al.,

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No. C 09-0176 CW

Plaintiffs,
v.

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CITY OF SAN JOSE, et al.,

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Defendants.
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United States District Court
For the Northern District of California

ORDER DENYING
MOTION FOR CLASS
CERTIFICATION
(Docket No. 118);
GRANTING IN PART
AND DENYING IN
PART MOTION FOR
SUMMARY JUDGMENT
(Docket No. 127)

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Plaintiffs Francisco Valdez, Ricardo Vasquez, Daniel
Martinez, and Jamil Stubbs bring this action against the City of
San Jose, San Jose Police Chief Robert Davis, and San Jose Police
Officers R. Agamau, Martin, Rickert, Wallace, and Orlando.1
Plaintiffs now move for class certification.
the motion and move for summary judgment.
motion for summary judgment.

Defendants oppose

Plaintiffs oppose the

Having considered the parties’

papers and oral argument, the Court denies Plaintiffs’ motion for
class certification and grants in part and denies in part
Defendants’ motion for summary judgment.

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BACKGROUND

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All four Plaintiffs were arrested for violating section
647(f) of the California Penal Code, also known as California’s

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Agamau is named in the operative complaint as “R. Agaman”
but indicates in his declaration that his true name is Agamau.
Declaration of Ryan Amagau ¶ 1. Plaintiffs also seem to address
claims against two other officers, Michael Panighetti and Gustavo
Perez, neither of whom were named as defendants in the operative
complaint.
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public intoxication law.

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of disorderly conduct, a misdemeanor, if he or she

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United States District Court
For the Northern District of California

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Under that provision, a person is guilty

is found in any public place under the influence of
intoxicating liquor, any drug, controlled substance,
toluene, or any combination of any intoxicating liquor,
drug, controlled substance, or toluene, in a condition
that he or she is unable to exercise care for his or her
own safety or the safety of others, or by reason of his
or her [intoxication], interferes with or obstructs or
prevents the free use of any street, sidewalk, or other
public way.
Cal. Penal Code § 647(f).
Plaintiffs, all of whom are either African-American or

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Latino,2 were arrested by the San Jose Police Department (SJPD) in

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downtown San Jose between 2007 and 2008.

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describe their arrests in greater detail.

The following sections

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A.

Plaintiff Martinez’s Arrest

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On the evening of February 1, 2007, Martinez went to a

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nightclub in downtown San Jose with his friend, Shana Stewart, and

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his cousin.

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of D. Martinez, at 19:21-20:2; Declaration of Shana Stewart ¶ 2.

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About an hour after they arrived, a group of women assaulted

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Stewart and stole her purse while she was waiting in line for the

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bathroom.

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Martinez and his cousin did not see the incident, Stewart told

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them about it immediately afterward and described her assailants

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to them.

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¶ 4, Ex. A, at 1.

Declaration of M. Jeffrey Kallis, Ex. B, Deposition

Stewart Decl. ¶ 3; Martinez Depo. 44:21-:23.

Although

Stewart Decl. ¶¶ 3-4, 7; Declaration of Daniel Martinez

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All Plaintiffs identify as Latino, except Plaintiff Stubbs,
who identifies as African-American.
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A short while later, Martinez saw a security guard in front

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of the nightclub speaking to a woman who resembled one of

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Stewart’s attackers.

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45:3-:6; Stewart Decl. ¶ 7.

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to go speak with the police, who had just arrived at the nightclub

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a few minutes earlier.

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refused and began to flee.

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tell one of the SJPD officers at the scene that the woman was

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getting away but the officer ignored him.

Martinez Decl., Ex. A, at 1; Martinez Depo.
He approached the woman and asked her

Martinez Depo. 43:23-44:4.
Id. 62:6-:15.

The woman

Martinez then tried to

Id. 61:23-62:17.

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For the Northern District of California

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Instead of pursuing the woman, the officer, who was speaking to

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Stewart at the time, told Martinez to leave them alone.

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62:12-:17.

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Id.

Martinez then approached another officer to report that

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Stewart’s attacker was fleeing.

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Martinez, the officer responded by asking Martinez to step toward

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the curb.

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Disappointed that the officer refused to pursue Stewart’s

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attacker, Martinez called the officer an “asshole”; he states,

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however, that despite his frustration, he still complied with the

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officer’s instructions to walk towards the curb.

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61:18-:22, 73:3-:15.

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the curb, Martinez claims that the officer “grabbed [his] right

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hand and twisted it behind [his] back.”

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officer then placed him under arrest and put him inside a police

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van.

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officer why he was being arrested, the officer told him that it

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was because he was drunk.

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73:3-:15.

Id. 63:5-:14.

According to

Id. 65:19-:24; Martinez Decl., Ex. A, at 1.

Martinez Depo.

At that moment, as he began walking toward

Martinez Decl. ¶ 2, Ex. A, at 2.

Id. 73:1-:15.

The

When Martinez asked the

Id., Ex A, at 2; Martinez Depo.

Martinez admits that he had a rum-and-coke and part of
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a beer earlier in the night but denies that he was drunk when he

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was arrested.

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Ex. A, at 2.

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Martinez Depo. 29:18-:20, 55:4-:8; Martinez Decl.,

Officer Wallace, who made the arrest, disputes this account

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and states that Martinez appeared “very drunk” to him.

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Declaration of Martin Wallace ¶ 8.

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bloodshot eyes, an unsteady gait, and emitted “a strong odor of

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alcohol.”

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wandering around in the street prior to his arrest and harassing

Id. ¶ 8.

He asserts that Martinez had

Wallace also asserts that Martinez had been

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For the Northern District of California

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various officers.

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believed that “Martinez was unable to care for his safety” and

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decided to arrest him under section 647(f).

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African-American, asserts that he “gave no consideration to the

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fact that Mr. Martinez is Hispanic in making the decision to

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arrest him.”

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Id. ¶ 7.

Based on these observations, Wallace

Id.

Wallace, who is

Id. ¶ 10.

Stewart, who is white, was arrested by another SJPD officer,

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Officer Martin, shortly thereafter.

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asserts that she, too, was sober at the time of her arrest.

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¶ 10.

Stewart Decl. ¶¶ 12-13.

She
Id.

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B.

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On June 27, 2008, Valdez and Vasquez drove together from

Plaintiffs Valdez and Vasquez’s Arrests

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Freedom, California, where they reside, to San Jose.

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Decl., Ex. D, Deposition of R. Vasquez, at 9:2-:14.

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in the early evening and parked at a downtown 7-Eleven on Santa

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Clara Street.

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After spending a “few hours” in the downtown area, the two

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returned to the 7-Eleven to drive back to Freedom.

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15:25-16:4; Vasquez Depo. 8:17-:20.

Kallis
They arrived

Id., Ex. C, Deposition of F. Valdez, at 14:1-:8.

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Id.

Neither recalls exactly where

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they went or how long they spent in the downtown area but both

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assert that they did not purchase any alcohol while they were

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there.

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23:4-:10.

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Valdez Depo. 16:5-:9; Vasquez Depo. 11:7-:12, 12:3-:5,

When they returned to the truck that evening, Vasquez entered

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the 7-Eleven to buy some snacks and non-alcoholic beverages for

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the drive home.

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in the parking lot near the truck.

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20:2-:13.

Vasquez Depo. 16:18-:22.

Valdez waited for him

Id. 16:6-:17; Valdez Depo.

According to Valdez, several SJPD officers -- he does

United States District Court
For the Northern District of California

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not recall the exact number -- approached him while he was

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standing in the parking lot and began questioning him about why he

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was there.

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replied that he was waiting for his friend, one of the officers

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went inside the store to find Vasquez.

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while he was speaking to the officers in the parking lot, one of

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them told him, “We don’t want your kind here.”

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Valdez Depo. 20:11-:20, 23:2-:4, 23:15-:19.

Id.

When he

Valdez asserts that

Id. 24:6-:8.

Meanwhile, the officer who went into the 7-Eleven quickly

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found Vasquez and escorted him towards the parking lot with the

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other officers.

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his deposition that the officer grabbed his hand and twisted it as

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they left the store.

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officers refused to respond to him and Valdez when they asked why

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they were being questioned.

Vasquez Depo. 16:18-:25.

Id. 17:1-:7.

Vasquez testified at

He also testified that the

Id. 17:16-:20, 18:19-19:8.

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Once Valdez and Vasquez were both in the parking lot, the

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police zip-tied their hands, placed them under arrest, and put

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them in a police van.

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24:2-:14.

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early the next morning.

Vasquez Depo. 18:19-19:5; Valdez Depo.

The two were then detained in police custody until
Valdez Depo. 24:24-:25; Vasquez Depo.
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29:5-:6.

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that he brought from Freedom earlier in the evening, both he and

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Vasquez assert that they were not intoxicated when they were

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arrested.

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26:13-:18, 35:22-:23.

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Although Valdez admits to having consumed some whiskey

Valdez Depo. 17:11-:20, 36:11-37:1; Vasquez Depo.

The SJPD officers who arrested Valdez and Vasquez dispute

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their claims of sobriety.

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of Vasquez’s arrest, Officer Panighetti states that Vasquez had

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“red blood shot watery eyes, slurred speech, [and] staggered

In a report detailing the circumstances

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For the Northern District of California

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gait.”

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Officer Amagau’s report, which documents the circumstances of

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Valdez’s arrest, similarly states that Valdez had “bloodshot eyes,

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staggering gait, [and] slurred speech.”

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Booking Information Sheet for F. Valdez.

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Valdez was “in the middle of 10th [Street] . . . walking in

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circles” when Amagau first encountered him.

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assert that they arrested Vasquez and Valdez for public

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intoxication based on their observations of the pair’s behavior at

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the 7-Eleven that night.

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8.

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these observations and not on Valdez or Vasquez’s race or

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ethnicity.

Declaration of Michael Panighetti ¶ 5, Ex. B, at 2.

Kallis Decl., Ex. J, PreIt also states that

Id.

The officers

Panighetti Decl. ¶ 6; Amagau Decl. ¶¶ 7-

The officers also assert that the arrests were based solely on

Panighetti Decl. ¶ 6; Amagau Decl. ¶ 8.

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C.

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On September 6, 2008, Stubbs and his friend, Leon Shirley,

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drove together from Newark, California, to San Jose to attend a

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couple of live musical performances.

Kallis Decl., Ex. A,

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Deposition of J. Stubbs, at 16:1-:9.

They parked in a public

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garage on Third Street at about 9:00 p.m.

Plaintiff Stubbs’ Arrest

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Id. 19:2-:10;

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Declaration of Leon Shirley ¶ 3.

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performances at two downtown nightclubs, Stubbs and Shirley walked

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back to the garage at around 1:00 a.m. to drive back to Newark.

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Stubbs Depo. 27:20-28:3; Shirley Decl. ¶ 4.

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After attending a couple of

When they returned to the garage, they encountered two SJPD

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officers near Shirley’s car.

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32:6-:8.

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as Stubbs was putting out a cigarette beside the car; the other

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officer approached Shirley.

Shirley Decl. ¶ 8; Stubbs Depo.

According to Stubbs, one of the officers approached him

Stubbs Depo. 28:11-:14, 29:15-:19,

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For the Northern District of California

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32:6-:21.

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could not hear exactly what Shirley was saying to the officer, it

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sounded like Shirley “was getting smart” with him.

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While Shirley was speaking to that officer, the other officer

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“pulled [Stubbs] to the side” and accused him of urinating on the

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wall of the parking garage, a charge that Stubbs immediately

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denied.

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officers placed both Shirley, who is white, and Stubbs under

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arrest.

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admits that he had a few drinks at a nightclub earlier in the

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evening, both he and Shirley assert that he was not exhibiting any

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signs of intoxication or defiance when they were arrested.

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Stubbs Depo. 57:16-58:9; Shirley Decl. ¶ 11.

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Stubbs testified at his deposition that, although he

Id. 36:5-:17.

Id. 32:18-:21.

After some further discussion, the

Id. 32:11-:12; Shirley Decl. ¶¶ 9-10.

Although Stubbs

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Officer Orlando, who arrested Stubbs, disputes these claims.

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He states in his declaration that Stubbs first caught his

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attention “because he was urinating on the wall in the garage.”

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Although Shirley is not a plaintiff in this lawsuit, he
asserts that he, too, was sober when he was arrested. Shirley
Decl. ¶ 5 (“During the entire time in San Jose that night, I did
not consume any alcohol.”).
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Declaration of Brandon Orlando ¶ 5.

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Stubbs’ “eyes were bloodshot,” his breath smelled of alcohol, and

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“he was verbally combative and would not listen to commands.”

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¶ 6.

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Stubbs for public intoxication based on these observations.

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Kallis Decl., Ex. J., Pre-Booking Information Sheet for J. Stubbs.

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Orlando asserts that neither he nor Officer Perez, who arrested

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Shirley, based their decisions on Stubbs’ or Shirley’s race.

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Orlando Decl. ¶ 9.

Orlando further asserts that

Id.

According to Orlando’s police report, he decided to arrest

United States District Court
For the Northern District of California

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D.

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Plaintiffs filed this putative class action lawsuit against

Procedural Background

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the City of San Jose and several SJPD officers on January 14,

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2009.

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on July 14, 2009.

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sixteen causes of action: (1) a claim under 42 U.S.C. § 1983 and

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Monell v. Department of Social Services, 436 U.S. 658 (1978),

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against the City based on an alleged policy, custom and long-

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standing practice of wrongfully arresting individuals for

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violations of Penal Code section 647(f), infringing on Plaintiffs’

Docket No. 1.

They filed a second amended complaint (2AC)

Docket No. 27.4

In their 2AC, they assert

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Plaintiffs apparently intended to amend the 2AC to add
Panighetti and Perez as defendants but, to date, have not actually
done so. On November 19, 2009, they filed a document entitled,
“Amendment to Complaint to Identify Does by True Names and
Capacities.” Docket No. 30. Plaintiffs filed that document
without obtaining leave to amend the complaint or a stipulation
from Defendants permitting such an amendment. The document did
not include a copy of the proposed third amended complaint, as
required by the local rules, Civil L.R. 10-1 (“Any party filing or
moving to file an amended pleading must reproduce the entire
proposed pleading and may not incorporate any part of a prior
pleading by reference.”), nor was it served on Panighetti and
Perez. Accordingly, the Court treats Plaintiffs’ 2AC as the
operative complaint.
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First, Fifth, Sixth, Eighth, and Fourteenth Amendment rights;

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(2) a Monell claim under § 1983 against Chief Davis based on his

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actions as a final policy maker; (3) a Monell claim under § 1983

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against Chief Davis based on his actions ratifying police

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misconduct; (4) a Monell claim under § 1983 against the City for

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failure to train police officers as to the rights secured by the

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First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments;

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(5) a claim under § 1983 against Chief Davis for “supervisory

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liability based on the misconduct of subordinates”; (6) a claim

United States District Court
For the Northern District of California

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under § 1983 against Agamau, Martin, Rickert, Wallace and Orlando

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for falsely detaining, arresting, and incarcerating Plaintiffs in

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violation of their First and Fourth Amendment rights, as well as

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depriving them of their Fifth, Sixth, and Eighth Amendment rights

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and enforcing section 647(f) in a discriminatory manner in

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violation of the Fourteenth Amendment; (7) a claim against all

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Defendants for conspiracy under 42 U.S.C. § 1985; (8) a claim for

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false arrest against Agamau, Martin, Rickert, Wallace and Orlando;

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(9) a claim for false imprisonment against the same officers;

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(10) a claim for battery against the same; (11) a claim against

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all Defendants for violation of the Ralph Act, California Civil

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Code section 51.7; (12) a claim against all Defendants for

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violation of the Bane Act, California Civil Code section 52.1(b);

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(13) a claim against all Defendants for civil conspiracy to

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violate civil rights and commit torts; (14) a claim against all

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Defendants for aiding and abetting civil rights violations and the

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commission of torts; (15) a claim for negligence against all

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Defendants; and (16) a claim for injunctive relief against all

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Defendants.
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On May 29, 2012, Plaintiffs moved to certify a class
consisting of

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[a]ll individuals who between January 14, 2006 and the
present were arrested for violation of section 647(f)
where the Affidavit of Probable Cause fails to present
objective facts, other than the four subjective
symptoms, sufficient to demonstrate a violation of Penal
Code § 647(f).

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Pls.’ Mot. Class Cert. 5.
defined as

[a]ll racial minorities who between January 14, 2006 and
the present were subjected to unequal and discriminatory
enforcement of Penal Code 647(f) based upon their race
as demonstrated in Penal Code § 647(f) police paperwork
and the statistical analysis.

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United States District Court
For the Northern District of California

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They also seek to certify a subclass

Id. at 5-6.

Defendants filed an opposition and moved for summary

judgment on June 8, 2012.
DISCUSSION
I.

Defendants’ Motion for Summary Judgment
A.

Legal Standard

Summary judgment is properly granted when no genuine and
disputed issues of material fact remain, and when, viewing the
evidence most favorably to the non-moving party, the movant is
clearly entitled to prevail as a matter of law.

Fed. R. Civ.

P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.
1987).
The moving party bears the burden of showing that there is no
material factual dispute.

Therefore, the court must regard as

true the opposing party’s evidence, if supported by affidavits or
other evidentiary material.
815 F.2d at 1289.

Celotex, 477 U.S. at 324; Eisenberg,

The court must draw all reasonable inferences

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in favor of the party against whom summary judgment is sought.

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952

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F.2d 1551, 1558 (9th Cir. 1991).

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Material facts which would preclude entry of summary judgment

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are those which, under applicable substantive law, may affect the

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outcome of the case.

The substantive law will identify which

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facts are material.

Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248 (1986).

Where the moving party does not bear the burden

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For the Northern District of California

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of proof on an issue at trial, the moving party may discharge its

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burden of production by either of two methods:

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The moving party may produce evidence negating an
essential element of the nonmoving party’s case, or,
after suitable discovery, the moving party may 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., Ltd., v. Fritz Cos., Inc., 210 F.3d
1099, 1106 (9th Cir. 2000).
If the moving party discharges its burden by showing an
absence of evidence to support an essential element of a claim or
defense, it is not required to produce evidence showing the
absence of a material fact on such issues, or to support its
motion with evidence negating the non-moving party’s claim.

Id.;

see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990);
Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991).

If

the moving party shows an absence of evidence to support the nonmoving party’s case, the burden then shifts to the non-moving
party to produce “specific evidence, through affidavits or

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admissible discovery material, to show that the dispute exists.”

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Bhan, 929 F.2d at 1409.
If the moving party discharges its burden by negating an

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essential element of the non-moving party’s claim or defense, it

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must produce affirmative evidence of such negation.

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F.3d at 1105.

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burden then shifts to the non-moving party to produce specific

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evidence to show that a dispute of material fact exists.

Nissan, 210

If the moving party produces such evidence, the

Id.

If the moving party does not meet its initial burden of

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United States District Court
For the Northern District of California

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production by either method, the non-moving party is under no

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obligation to offer any evidence in support of its opposition.

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Id.

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ultimate burden of persuasion at trial.

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This is true even though the non-moving party bears the

B.

Id. at 1107.

Federal Claims against Defendants Wallace, Agamau, and
Orlando
1.

Fourth Amendment Claims

The Fourth Amendment requires police officers to have
probable cause before making a warrantless arrest.

Ramirez v.

City of Buena Park, 560 F.3d 1012, 1023 (9th Cir. 2008) (citing
Michigan v. Summers, 452 U.S. 692, 700 (1981)).

“Probable cause

to arrest exists when officers have knowledge or reasonably
trustworthy information sufficient to lead a person of reasonable
caution to believe that an offense has been or is being committed
by the person being arrested.”

United States v. Lopez, 482 F.3d

1067, 1072 (9th Cir. 2007).
Defendants move for summary judgment on the grounds that the
individual officers who arrested Plaintiffs had probable cause to
believe that Plaintiffs had violated section 647(f).

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Because

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disputed issues of material fact remain with respect to each

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Plaintiff’s arrest, summary judgment must be denied.
a.

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Officer Wallace

Wallace and Martinez offer conflicting accounts of the events

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surrounding Martinez’s arrest.

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whether Martinez was drunk when he was arrested.

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that he had less than two drinks on the evening of his arrest,

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Martinez Depo. 29:18-:20, 55:4-:8, while Wallace asserts that he

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appeared “very drunk” to him, Wallace Decl. ¶ 8.

United States District Court
For the Northern District of California

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Most significantly, they dispute
Martinez asserts

In addition to disputing Martinez’s sobriety, Martinez and

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Wallace dispute whether Martinez defied Wallace’s instructions

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that night.

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Martinez, more than once, to move to the sidewalk for his safety

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but he did not.”

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however, Martinez testified that he followed Wallace’s

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instructions to walk towards the curb.

Wallace states in his declaration that he “asked Mr.

Wallace Decl. ¶ 7.

During his deposition,

Martinez Depo. 73:3-:6.

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These factual disputes are central to the question of whether

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or not Wallace had probable cause to arrest Martinez under section

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647(f).

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cannot be resolved by summary judgment.
b.

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Accordingly, the Fourth Amendment claims against Wallace

Officer Agamau

Amagau and Valdez dispute several relevant facts regarding

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the circumstances of Valdez’s arrest.

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declaration that he found Valdez “walking in circles on 10th

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Street.”

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deposition expressly denied walking in the middle of the street.

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Valdez Depo. 31:15-:25.

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Valdez that night, “it was readily apparent he was highly

Agamau Decl. ¶ 5.

Agamau asserts in his

Valdez, in contrast, during his

Agamau states that, when he encountered

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intoxicated.”

Agamau Decl. ¶ 6.

Valdez, however, testified at

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his deposition that, other than the small bit of whiskey he had

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consumed a “few hours” earlier, he “wasn’t drinking” on the night

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he was arrested.

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(stating that at “the time I was arrested I know for myself I

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wasn’t under the influence whatsoever”).

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Valdez was staggering unsteadily as he walked, Agamau Decl. ¶ 6;

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Valdez testified that he had no trouble walking and never felt

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dizzy or unsteady.

Valdez Depo. 15:25-16:9, 16:24-17:23, 36:11-37:1

Agamau asserts that

Valdez Depo. 36:11-:19.

These factual

United States District Court
For the Northern District of California

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disputes are all material to whether Wallace had probable cause to

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arrest Valdez under section 647(f) and, thus, preclude summary

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judgment on this claim.
c.

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Officer Orlando

As with Valdez and Martinez, the circumstances surrounding

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Stubbs’ arrest are disputed.

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Stubbs after witnessing him urinate on a parking garage wall.

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Orlando Decl. ¶¶ 5-6.

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[Stubbs] was intoxicated” from his bloodshot eyes and the smell of

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alcohol on his breath.

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Stubbs was “verbally combative” and defiant.

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Orlando states that he arrested

He asserts that it was “evident that

Id. ¶¶ 5-6.

Orlando also states that
Id. ¶ 6.

This account contradicts that of Stubbs and his friend,

22

Shirley.

Shirley states in his declaration that he never saw

23

Stubbs urinating in the garage nor did he see Stubbs “having

24

difficulty walking, staggering, slurring his speech or otherwise

25

acting drunk.”

26

his deposition that he had consumed only a few drinks that night

27

and was not exhibiting any signs of inebriation when he was

28

arrested.

Shirley Decl. ¶¶ 6-7.

Stubbs himself testified at

Stubbs Depo. 24:4-:12, 57:16-58:9.
14

He also testified

1

that he never urinated in the parking garage and that he complied

2

with Orlando’s commands prior to his arrest.

3

:11.

4

must be denied.

Based on these disputes of material fact, summary judgment

2.

5
6

Id. 36:24-:25, 40:5-

Fourteenth Amendment Claims

Plaintiffs allege that each of officers who arrested them did
so with a racially discriminatory purpose in violation of the

8

Fourteenth Amendment’s equal protection clause.

9

summary judgment on this claim, Plaintiffs must present evidence

10
United States District Court
For the Northern District of California

7

to support an inference that each officer’s arrest decision was

11

racially motivated.

12

(1996).

13

Thus, to survive

United States v. Armstrong, 517 U.S. 456, 465

The only evidence Plaintiffs offer of discriminatory intent

14

here is the comment that Vasquez and Valdez heard Agamau make

15

while they were being arrested.

16

Agamau’s exact words, both assert that they heard the comment.

17

Valdez testified at his deposition that the officer said something

18

to the effect of “We don’t want your kind here.”

19

26:6-:9.

20

don’t want you guys to come back.

21

Vasquez Depo. 18:5-:6.

22

Although neither remembers

Valdez Depo.

Vasquez similarly testified that the officer said, “We
We don’t like you people.”

Defendants argue that, even if Valdez and Vasquez’s

23

allegations are true, an isolated comment like this is

24

insufficient to establish discriminatory intent for the purposes

25

of Fourteenth Amendment liability.

26

circuit for support: Merrick v. Farmers Ins. Group, 892 F.2d 1434,

27

1438 (9th Cir. 1990), and Rodriguez v. John Muir Medical Center,

28

2010 WL 3448567, at *7-*8 (N.D. Cal.), which relies on Merrick.
15

They cite two cases from this

1

In both these cases, the courts held that the plaintiff had to

2

produce more than just an isolated derogatory comment by the

3

defendant to support an inference of discriminatory intent on

4

summary judgment.

5

Neither Merrick nor Rodriguez is analogous here because they

6

specifically address workplace discrimination claims.

In that

7

context, where the plaintiff has necessarily had a continuous

8

employment relationship with the defendant, isolated comments

9

offer only limited insight into the defendant’s motives.

See

United States District Court
For the Northern District of California

10

Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O’Connor,

11

J., concurring) (discussing the limited evidentiary value of

12

“stray remarks in the workplace” in a Title VII disparate

13

treatment case).

14

here was based on his brief interaction with Valdez moments before

15

the arrest.

16

isolated comment is potentially quite probative of his underlying

17

motives, especially since it remains disputed whether Agamau had

18

probable cause to make the arrest.

19

of Homewood, 2001 WL 1467708, at *14 (N.D. Ill.) (“If there was no

20

probable cause and [the defendant] indeed called [the plaintiff] a

21

‘loud mouth nigger’ upon his arrest (a disputed fact), this is

22

sufficient to support an inference of discriminatory intent.”).

23

In contrast, Amagau’s decision to arrest Valdez

In the space of that brief interaction, Agamau’s

See, e.g., Carroll v. Village

Because the parties dispute whether Agamau actually made this

24

comment to Valdez, Amagau is not entitled to summary judgment on

25

Plaintiffs’ equal protection claim.

26

Defendant officers, however, are entitled to summary judgment on

27

this claim.

28
16

All other individual

3.

1

Claims arising under § 1985 and the First, Fifth,
Sixth, and Eighth Amendments

2

Defendants do not appear to have raised any arguments in

3

support of their motion with respect to Plaintiffs’ First, Fifth,

4

Sixth, and Eighth Amendment claims or their § 1985 claim.

5

Accordingly, they have not met their initial burden and summary

6

judgment must be denied with respect to these claims.

7

210 F.3d at 1107.

8

Court notes that Plaintiffs have not, thus far, provided an

9

evidentiary basis to support most of these claims.

See Nissan,

Although these claims remain to be tried, the

United States District Court
For the Northern District of California

10

C.

11

Plaintiffs have not provided any evidence that Martin or

Federal Claims against Defendants Martin and Rickert

12

Rickert actually participated in their arrests.

13

contend that Martin and Rickert are liable for failing to prevent

14

the alleged constitutional violations committed by their fellow

15

officers.

16

inference of liability under this failure-to-prevent theory,

17

Martin and Rickert are entitled to summary judgment here.

18

Still, they

Because Plaintiffs’ evidence does not support an

The Ninth Circuit has recognized that a defendant may be held

19

liable under § 1983 even if the defendant does not personally

20

participate in committing an unconstitutional act.

21

liability under this theory, the plaintiff must show that the

22

defendant “omit[s] to perform an act which he is legally required

23

to do which causes the deprivation of the plaintiff’s federally

24

protected rights.”

25

Cir. 1989) (citing Johnson v. Duffy, 588 F.2d 740, 743-44 (9th

26

Cir. 1978)).

27

omission under § 1983 “only when there is an extremely high degree

To establish

Stevenson v. Koskey, 877 F.2d 1435, 1439 (9th

Generally, a defendant will be liable for an

28
17

1

of culpability for inaction.”

2

885 (7th Cir. 1983).

3

Lenard v. Argento, 699 F.2d 874,

Plaintiffs have not provided sufficient evidence to support

4

an inference of liability under this standard.

As the cases they

5

cite illustrate, courts typically only impose § 1983 liability for

6

an omission when dealing with a supervisor’s “ratification of a

7

subordinate’s misconduct.”

8

also Beverly v. Morris, 470 F.2d 1356, 1357 (5th Cir. 1972)

9

(noting that the plaintiff’s suit rested “on the theory that [the

Stevenson, 877 F.2d at 1439 n.6; see

United States District Court
For the Northern District of California

10

defendant] was negligent in failing to train properly the

11

auxiliary officer, to supervise his patrol duties, and to provide

12

a regular police officer on duty the night of the assault”).

13

the present case, Plaintiffs have not presented any evidence that

14

Martin and Rickert held supervisory authority over the officers

15

who actually arrested Plaintiffs.

16

can be held liable under § 1983 for failing to prevent their

17

fellow officers’ actions.

In

Thus, it is unlikely that they

18

More importantly, Plaintiffs have failed to produce any

19

evidence that Martin and Rickert were even capable of preventing

20

their fellow officers’ allegedly unconstitutional conduct.

21

assuming that Martin and Rickert had a clear legal duty to prevent

22

their peers from arresting Plaintiffs -- and Plaintiffs have not

23

pointed to any specific duty here -- they could only satisfy that

24

duty if they knew that their fellow officers’ conduct threatened

25

Plaintiffs’ constitutional rights.

26

support such an inference here.

Even

Plaintiffs’ evidence does not

27

For instance, the mere allegation that “Rickert was with

28

Orlando when Stubbs was arrested” does not, on its own, support an
18

1

inference that Rickert knew that Orlando might lack probable cause

2

for the arrest.

3

own evidence, Orlando was the only officer to have had direct

4

contact with Stubbs, which would have made it difficult, if not

5

impossible, for any other officer to assess the constitutionality

6

of his arrest decision.5

7

evidence similarly indicates that Martin was not able to assess

8

the constitutionality of Wallace’s decision to arrest Martinez.

9

Martinez Depo. 62:2-:5.

See Opp. Summ. J. 20.

According to Plaintiffs’

Stubbs Depo. 32:4-:21.

Plaintiffs’

According to Martinez’s own deposition

United States District Court
For the Northern District of California

10

testimony, Martin was preoccupied at the time of the arrest

11

because he was speaking to another individual.

12

65:12-:13.

13

Id. 62:2-:5,

Without producing any evidence that Rickert or Martin

14

actually had the capacity to stop their fellow officers from

15

making unconstitutional arrests, Plaintiffs cannot establish that

16

these officers are liable for omissions under § 1983.

17

Accordingly, Rickert and Martin are entitled to summary judgment

18

on all of Plaintiffs’ claims against them.

19

D.

20

As noted above, Plaintiffs have not named Panighetti and

21

Federal Claims against Defendants Panighetti and Perez

Perez as defendants in this lawsuit.

If they wish to substitute

22
23
24
25
26
27
28

It is not clear that Rickert was even present during
Stubbs’ arrest, as Plaintiffs contend in their brief. None of
Plaintiffs’ evidence actually identifies Rickert as the second
officer present during Stubbs’ arrest and their complaint asserts
only that he was present during Martinez’s arrest. See Compl.
¶ 57. In any event, even accepting arguendo that Rickert was
present during Stubbs’ arrest, none of Plaintiffs’ evidence
indicates that Rickert actually had the capacity to assess the
constitutionality of Orlando’s conduct.
5

19

1

these officers for Doe Defendants, they must file and notice a

2

motion for leave to amend their complaint.

3

so will weigh against them.

Their delay in doing

4

E.

Federal Claims against Municipal Defendants

5

In addition to their claims against the individual arresting

6

officers, Plaintiffs also assert claims for municipal liability

7

against the City of San Jose and SJPD Chief Davis.

8
9

“Plaintiffs who seek to impose liability on local governments
under § 1983 must prove that ‘action pursuant to official

United States District Court
For the Northern District of California

10

municipal policy’ caused their injury.”

11

S. Ct. 1350, 1359 (2011) (citing Monell, 436 U.S. at 691).

12

“Official municipal policy includes the decisions of a

13

government’s lawmakers, the acts of its policymaking officials,

14

and practices so persistent and widespread as to practically have

15

the force of law.”

16

Connick v. Thompson, 131

Id.

A city may not be held vicariously liable for the

17

unconstitutional acts of its employees on the basis of an

18

employer-employee relationship with the tortfeasor.

19

U.S. at 691-92.

20

can be established in one of three ways.

21

plaintiff must prove (1) “that a city employee committed the

22

alleged constitutional violation pursuant to a formal governmental

23

policy or a longstanding practice or custom which constitutes the

24

standard operating procedure of the local governmental entity;”

25

(2) “that the individual who committed the constitutional tort was

26

an official with final policy-making authority;” or (3) “that an

27

official with final policy-making authority ratified a

28

subordinate’s unconstitutional decision or action and the basis

Monell, 436

The Ninth Circuit has held that Monell liability

20

Specifically, the

1

for it.”

2

1992).

3

Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir.

Here, Plaintiffs do not point to a specific written policy

4

encouraging SJPD officers to make section 647(f) arrests without

5

probable cause.

6

encouraging SJPD officers to consider race when making these

7

arrests.

8

practice among SJPD officers of making racially motivated section

9

647(f) arrests without probable cause that it amounts, in effect,

Nor do they point to any written policy

Rather, Plaintiffs argue that there is such a widespread

United States District Court
For the Northern District of California

10

to an unwritten municipal policy.

11

the City had knowledge of this practice but nevertheless failed to

12

correct it in its training of SJPD officers.

13

addressed below.
1.

14
15

Plaintiffs also contend that

These arguments are

Fourth Amendment Claims under Monell

Plaintiffs allege that there is a widespread, unwritten

16

practice among SJPD officers of arresting people under section

17

647(f) without probable cause in violation of the Fourth

18

Amendment.

19

SJPD’s standard operating procedure for public intoxication

20

arrests.

21

They argue that this practice effectively functions as

For support, Plaintiffs rely on various reports and documents

22

obtained from SJPD, which allegedly show that SJPD officers often

23

lack valid reasons for making section 647(f) arrests.

24

specifically to SJPD’s “Pre-Booking Information Sheets,”

25

“Affidavits re Probable Cause and Bail Setting,” and “Police

26

Reports.”

27

documents provide a space for officers to describe their reasons

28

for making a public intoxication arrest.

They point

Declaration of Andrew V. Stearns, Exs. C & E.

21

Plaintiffs have

These

submitted more than two thousand of these documents -- all

2

completed by SJPD officers between 2007 and 2010 -- as evidence

3

that the department’s officers routinely fail to identify a

4

legitimate source of probable cause for their section 647(f)

5

arrests.

6

documents by Jesica Giron, who reviewed 350 of the reports and

7

concluded that “probable cause was lacking in 71.43%” of them.

8

Declaration of Jesica Giron ¶ 1.

9

for determining whether or not an officer had probable cause was

10
United States District Court
For the Northern District of California

1

“whether the officer included details as to why the person was a

11

danger to themselves or others.”

12

Plaintiffs, Giron’s analysis demonstrates that SJPD officers

13

frequently arrest individuals who may be intoxicated but who do

14

not show signs that they are “unable to exercise care” for

15

themselves or others, as the statute requires.

16

Code § 647(f).

17

SJPD’s arrest practices systematically violate the Fourth

18

Amendment.

19

See id.

Plaintiffs also provide an analysis of these

Giron asserts that her criteria

Id. ¶ 2.

According to

See Cal. Penal

This analysis does not support an inference that

Giron’s analysis is limited for several reasons.

First,

20

Giron fails to state whether the reports she reviewed constitute a

21

representative cross-section of all SJPD reports for section

22

647(f) reports.

23

selected or why her analysis is limited to 350 reports when

24

Plaintiffs had access to over a thousand other reports.

25

Giron fails to identify her qualifications or explain her

26

methodology.

27

words long.

28

the faulty assumption that symptoms of intoxication alone can

She does not explain how these reports were

Second,

In fact, her entire analysis is less than a hundred
Third, and most importantly, her analysis rests on

22

1

never justify an officer’s decision to arrest someone under

2

section 647(f).

3

certain symptoms of intoxication can also provide an officer with

4

reason to believe that someone is unable to care for him or

5

herself.

6

reports featuring written observations of arrestee behavior that

7

satisfy both criteria.

8

Affidavit of Probable Cause for C. Moreno, at 001327 (citing “poor

9

balance” and “poor time/situational awareness” as evidence of both

United States District Court
For the Northern District of California

10
11

This assumption ignores the possibility that

Plaintiffs’ own evidence includes several SJPD arrest

See, e.g., Stearns Decl., Ex. C, File 6,

intoxication and inability to care for one’s self).
In sum, Plaintiffs’ evidence does not support an inference

12

that SJPD officers follow a “standard operating procedure” or

13

“longstanding practice” of systematically ignoring considerations

14

that bear on probable cause under section 647(f).

15

F.2d at 1346.

16

inference that any SJPD officer with “policy-making authority,”

17

such as Chief Davis, participated in making an unconstitutional

18

arrest or “ratified” a subordinate’s decision to do so.

19

Plaintiffs do not even appear to allege, let alone offer evidence,

20

that the officers who arrested them had policy-making authority or

21

consulted a supervisor before making the arrest.

22

municipal Defendants are entitled to summary judgment on

23

Plaintiffs’ Fourth Amendment claims under Monell.
2.

24

Gillette, 979

The evidence is also insufficient to support an

Id.

Accordingly,

Fourteenth Amendment Claims under Monell

25

Plaintiffs allege that SJPD enforces section 647(f) in a

26

racially discriminatory manner in violation of the Fourteenth

27

Amendment.

28

for public intoxication arrests so often that the practice

Specifically, they contend that SJPD targets Latinos

23

1

effectively functions as the department’s standard operating

2

procedure.6

3

must produce evidence to support an inference that SJPD maintained

4

a policy, custom, or longstanding practice of intentionally

5

discriminating against Latinos.

6

716 (9th Cir. 1995); Gillette, 979 F.2d at 1346.

7

To survive summary judgment on this claim, Plaintiffs

Navarro v. Block, 72 F.3d 712,

Discriminatory intent may be proved by indirect evidence,

8

including whether the challenged state action has a

9

disproportionate “impact” on a particular group.

Arlington

United States District Court
For the Northern District of California

10

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).

11

Supreme Court has cautioned, however, that “impact alone is not

12

determinative” and, absent a clear pattern of discrimination,

13

courts must look to other evidence when adjudicating equal

14

protection claims.

15

statistical evidence of discriminatory impact is “whether that

16

impact is sufficiently gross or stark that a court must infer that

17

it was intended by the defendant.”

18

Lunchmen’s Union, 694 F.2d 531, 552 (9th Cir. 1982).

19

statistical evidence alone is sufficient to establish equal

20

protection liability are rare.

21

shown by statistical evidence, is a starting point, and an

22

important starting point, to that inquiry, but is rarely

23

sufficient of itself.”); Arlington Heights, 429 U.S. at 266.

24
25
26
27
28

Id.

The

The critical inquiry in assessing

Gay v. Waiters’ & Dairy
Cases where

Id. (“‘Discriminatory impact,’ as

Here, Plaintiffs rely principally on statistical evidence to
support their discrimination claim.

They provide an analysis by

Although one of the four Plaintiffs in this suit is
African-American, Plaintiffs’ claims against municipal Defendants
here are based solely on discrimination against Latinos. 2AC
¶ 119.
6

24

Ann Kalinowski which identifies a statistically significant7

2

disparity between the proportion of San Jose’s population that

3

identifies as Latino (thirty-three percent) and the proportion of

4

people arrested for public intoxication who are Latino (fifty-

5

seven percent).

6

statistics for the year 2007).

7

compares the rate at which Latinos were arrested for public

8

intoxication in San Jose (eighty-five arrests per 10,000 Latinos)

9

to their arrest rates in Oakland (forty-nine arrests per 10,000

10
United States District Court
For the Northern District of California

1

Latinos) and San Diego (twenty-two arrests per 10,000 Latinos).

11

Id. ¶¶ 8, 13.

12

differences in these cities’ Latino populations, Latinos were

13

arrested for public intoxication at a much higher rate in San

14

Jose.

15

Declaration of Ann Kalinowski ¶¶ 8-9 (focusing on
Kalinowski’s analysis also

She concludes that, even when controlling for

Id.
In addition to Kalinowski’s analysis, Plaintiffs provide data

16

from a 2007 report8 by the National Highway Transportation Safety

17

Administration (NHTSA) which, they argue, further illustrates that

18

the SJPD arrest disparities are the product of discriminatory

19

animus.

20

percentage of Latino drivers who drive at night without alcohol in

21

their system is roughly comparable to the percentage of white

Plaintiffs state that the NHTSA report indicates that the

22
23
24

Z = 34.8; P-value ≈ 0. Kalinowski Decl. ¶ 9.
Nat’l Transp. Safety Admin., National Roadside Survey of
Alcohol and Drug Use: Alcohol Results (2007), available at
http://www.nhtsa.gov/Driving+Safety/Research+&+Evaluation/2007+Nat
ional+Roadside+Survey+of+Alcohol+and+Drug+Use+by+Drivers.
Plaintiffs have asked the Court to take judicial notice of the
report. The Court will take judicial notice of the report but not
for the truth of the matters asserted therein.
7
8

25
26
27
28

25

1

drivers who do so.9

2

that “the percentage of Hispanics who are intoxicated while

3

driving does not differ from the percent of Caucasians” and, thus,

4

in the absence of discriminatory enforcement, the rates of public

5

intoxication arrests between the two groups should be roughly

6

equivalent.

7

Based on this statistic, Plaintiffs argue

Opp. Summ. J. 23.

None of this evidence is sufficient to support an inference

8

of discriminatory intent on the part of SJPD.

The Kalinowski

9

analysis falls far short of illustrating the “clear pattern” of

United States District Court
For the Northern District of California

10

discrimination “unexplainable on grounds other than race” that is

11

required to establish equal protection liability based on

12

statistical evidence.

13

Kalinowski fails to explain, for instance, why San Jose’s Latino

14

population represents the appropriate baseline against which the

15

Latino share of section 647(f) arrestees should be compared.

16

decision ignores the possibility that some of SJPD’s public

17

intoxication arrests may involve individuals who reside outside of

18

San Jose -- such as all four Plaintiffs in this case.10

19

pattern of discriminatory enforcement, Plaintiffs would have to

20

select a baseline that more accurately reflects the population of

21

people potentially subject to section 647(f) arrests.

22

least, Plaintiffs must explain why Kalinowski’s choice of baseline

23

is reasonable.

24

at *3 (6th Cir.) (per curiam) (upholding summary judgment in favor

Arlington Heights, 429 U.S. at 266.

This

To show a

At the very

Cf. Johnson v. Northwest Airlines, 1995 WL 242001,

25
26
27
28

Plaintiffs do not provide a citation to specific page of
the report, which is over one hundred pages in length.
10 Although Kalinowski states in her declaration that her
conclusions would apply with equal force to the “San Jose census
region,” she fails to explain how she reached this conclusion.
9

26

1

of Title VII defendants because “plaintiff gives us no reason why

2

his baseline . . . provides the appropriate statistic” for

3

assessing discriminatory impact).

4

Kalinowski’s analysis suffers from other critical defects.

5

It relies, for example, on second-hand data taken from a 2009

6

newspaper article and offers no guarantee of its accuracy.

7

Kalinowski Decl. ¶ 8.

8

show that the discrepancy between the Latino share of San Jose’s

9

population and the Latino share of SJPD’s public intoxication

Furthermore, the analysis purports only to

United States District Court
For the Northern District of California

10

arrests is “not due to chance.”

11

held that this type of analysis is, without more, insufficient to

12

demonstrate discriminatory intent.

13

put, statistics demonstrating that chance is not the more likely

14

explanation are not by themselves sufficient to demonstrate that

15

race is the more likely explanation for an employer’s conduct [in

16

a Title VII case].”).

17

Id. ¶ 9.

The Ninth Circuit has

Gay, 694 F.2d at 553 (“Simply

Kalinowski’s comparison of section 647(f) arrest rates in San

18

Jose, Oakland, and San Diego is similarly flawed.

19

does Kalinowski explain why Oakland and San Diego are appropriate

20

cities against which to compare San Jose’s Latino arrest rate.

21

Without this explanation -- and with no reference to statewide

22

statistics -- the selection of these cities amounts to little more

23

than statistical cherry-picking.

24

At no point

Plaintiffs’ reliance on the NHTSA report is even more

25

problematic.

Not only is the report based on the results of a

26

national survey of nighttime drivers, which may or may not reflect

27

the habits of San Jose-area drivers, but it says nothing about the

28

drinking habits of non-drivers.

As Plaintiffs’ own arrests in
27

1

this case demonstrate, non-drivers -- such as Vasquez, Martinez,

2

and Stubbs -- can also be arrested under section 647(f).

3

Plaintiffs’ effort to extrapolate the rates of public intoxication

4

among different racial groups in the San Jose area from a national

5

survey of nighttime drivers is too strained to satisfy their

6

burden on summary judgment.

7

Thus, in light of the numerous deficiencies in Plaintiffs’

8

statistical evidence and their failure to produce any other

9

evidence of discrimination,11 municipal Defendants are entitled to

United States District Court
For the Northern District of California

10

summary judgment on Plaintiffs’ equal protection claim.

11

Jok-ef v. Columbia Basin CLG, 66 F.3d 335, at *4 (9th Cir. 1995)

12

(unpublished opinion) (“Statistical evidence by itself is not

13

sufficient to avoid summary judgment unless such evidence reveals

14

‘a clear pattern [of discrimination], unexplainable on grounds

15

other than race.’” (citations omitted; alterations in original)).12
3.

16
17
18

See

Failure-to-Train Claims under Monell

The Supreme Court has recognized that, under “limited
circumstances, a local government’s decision not to train certain

19
Although the comment that Agamau allegedly made to Valdez
during his arrest constitutes non-statistical evidence of
discrimination, it is insufficient on its own to support an
inference of a widespread pattern of discrimination.
12 In their motion for class certification, Plaintiffs refer
to this suit as a “disparate impact” case and cite several cases
where statistical evidence was used to show discriminatory impact.
These cases are inapposite to Defendants’ summary judgment motion.
The cases Plaintiffs cite arise under civil rights statutes, such
as Title VII and the Voting Rights Act, that expressly support
liability for “disparate impact” and “discriminatory effect.” In
contrast, Plaintiffs’ claims here arise under the Equal Protection
Clause, which the Supreme Court has long held does not support
“racial impact” liability. See Washington v. Davis, 426 U.S. 229,
247-48 (1976).
11

20
21
22
23
24
25
26
27
28

28

1

employees about their legal duty to avoid violating citizens’

2

rights may rise to the level of an official government policy for

3

purposes of § 1983.”

4

liability under this theory, the “municipality’s failure to train

5

its employees in a relevant respect must amount to ‘deliberate

6

indifference to the rights of persons with whom the [untrained

7

employees] come into contact.’”

8

489 U.S. 378, 388 (1989)).

9

requires proof that “policymakers are on actual or constructive

Connick, 131 S. Ct. at 1359.

Id.

To establish

(citing Canton v. Harris,

This “stringent standard of fault”

United States District Court
For the Northern District of California

10

notice that a particular omission in their training program causes

11

city employees to violate citizens’ constitutional rights.”

12

S. Ct. at 1360.

13

“functional equivalent of a decision by the city itself to violate

14

the Constitution.”

15

here.

16

131

In short, the training deficiency must be the

Id.

Plaintiffs have not met this standard

Defendants’ evidence indicates that, since at least 2007,

17

SJPD has provided its officers with specific training in section

18

647(f) enforcement upon their graduation from the police academy.

19

See Declaration of Michael Knox ¶¶ 2-7.

20

not dispute this evidence, they contend that SJPD’s training

21

procedures were constitutionally deficient.

22

that City policymakers should have known of this deficiency based

23

on a report by the City’s Public Intoxication Task Force, which

24

was established in November 2008 to review SJPD’s section 647(f)

25

enforcement policies.

26

Memorandum Re: Public Intoxication Task Force, at 1.13

27

The Court grants Plaintiffs’ request to take judicial
notice of this document.

28

Although Plaintiffs do

They further assert

Pls.’ Request for Judicial Notice, Ex. K,

13

29

The task

1

force was created at the request of the City Council and charged

2

with proposing policy recommendations to City officials.

3

consisted of members of various community organizations and

4

various City agencies, including SJPD.

5

its recommendations in June 2009.

Id.

Id.

It

The task force issued

Id., Ex. L.

Plaintiffs’ reliance on the task force and its report as

7

evidence of the City’s failure to train its officers is misplaced.

8

The task force convened after all four Plaintiffs in this case

9

were arrested and Plaintiffs have not identified any evidence that

10
United States District Court
For the Northern District of California

6

SJPD made any unconstitutional arrests after the task force issued

11

its report.

12

the City with notice that SJPD officers were routinely committing

13

constitutional violations, as Plaintiffs suggest.

14

focused principally on proposing procedural reforms and did not

15

address the constitutional implications of past SJPD practices.

16

See id.

17

highlighted possible racial disparities in section 647(f) arrest

18

rates, the report itself stated that these “observations have not

19

been approved or validated by the [task force] or Administration.”

20

Id.

Moreover, the report itself could not have provided

The report

Although one of the task force’s member organizations

Accordingly, neither the creation of the task force nor its

21
22

final report gave City officials “notice that a particular

23

omission in their training program causes city employees to

24

violate citizens’ constitutional rights.”

25

1360.

26

failure to train its officers under Monell.

27

are therefore entitled to summary judgment on this claim.

Connick, 131 S. Ct. at

Without this notice, the City cannot be held liable for

28
30

Municipal Defendants

1

F.

State Claims

2

Plaintiffs assert claims of false arrest and battery against

3

Wallace, Agamau, Orlando, Rickert, and Martin.

In addition, they

4

charge all Defendants with civil conspiracy, negligence, and

5

violations of the Bane Act and the Ralph Act, Cal. Civ. Code

6

§§ 52.1, 51.7.
Defendants contend that they are entitled to summary judgment

7
8

on all of these claims because the officers who arrested

9

Plaintiffs had probable cause to do so.

Plaintiffs, in response,

United States District Court
For the Northern District of California

10

argue that summary judgment on these claims must be denied because

11

Defendants have not established probable cause.
As explained above, the parties dispute several facts that

12
13

are central to determining whether or not Defendants had probable

14

cause to arrest Plaintiffs under section 647(f).

15

Defendants present no other arguments or evidence supporting their

16

motion for summary judgment on Plaintiffs’ state law claims, their

17

motion must be denied with respect to these claims.

18

210 F.3d at 1107.

19

II.

Thus, because

See Nissan,

Plaintiffs’ Motion for Class Certification

20

A.

Legal Standard

21

Plaintiffs seeking to represent a class must satisfy the

22

threshold requirements of Rule 23(a) as well as the requirements

23

for certification under one of the subsections of Rule 23(b).

24

Rule 23(a) provides that a case is appropriate for certification

25

as a class action if

26

(1)

the class is so numerous that joinder of all members is
impracticable;

(2)

there are questions of law or fact common to the class;

27
28

31

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

(3)

the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and

(4)

the representative parties will fairly and adequately
protect the interests of the class.

Fed. R. Civ. P. 23(a).
Plaintiffs must also establish that one of the subsections of
Rule 23(b) is met.

In the instant case, Plaintiffs seek

certification under subsections (b)(1) and (b)(2), or
alternatively, under (b)(3).
Rule 23(b)(1) applies where the prosecution of separate
actions by individual members of the class would create the risk
of “inconsistent or varying adjudications with respect to
individual members of the class which would establish incompatible
standards of conduct for the party opposing the class,” or of
adjudications “which would as a practical matter be dispositive of
the interests of the other members not parties to the
adjudications or substantially impair or impede their ability to
protect their interests.”

Fed. R. Civ. P. 23(b)(1).

Rule 23(b)(2) applies where “the party opposing the class has
acted or refused to act on grounds generally applicable to the
class, thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the class as a
whole.”

Fed. R. Civ. Proc. 23(b)(2).

“Civil rights cases against

parties charged with unlawful, class-based discrimination are
prime examples” of Rule 23(b)(2) actions.

Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 614 (1997).
Rule 23(b)(3) permits certification where common questions of
law and fact “predominate over any questions affecting only
individual members” and class resolution is “superior to other

28
32

1

available methods for the fair and efficient adjudication of the

2

controversy.”

3

intended “to cover cases ‘in which a class action would achieve

4

economies of time, effort, and expense . . . without sacrificing

5

procedural fairness or bringing about other undesirable results.’”

6

Amchem Prods., 521 U.S. at 615 (quoting Fed. R. Civ. P. 23(b)(3)

7

Adv. Comm. Notes to 1966 Amendment).

Fed. R. Civ. P. 23(b)(3).

These requirements are

8

Regardless of what type of class the plaintiff seeks to

9

certify, it must demonstrate that each element of Rule 23 is

United States District Court
For the Northern District of California

10

satisfied; a district court may certify a class only if it

11

determines that the plaintiff has borne this burden.

12

Co. of Sw. v. Falcon, 457 U.S. 147, 158-61 (1982); Doninger v.

13

Pac. Nw. Bell, Inc., 564 F.2d 1304, 1308 (9th Cir. 1977).

14

general, the court must take the substantive allegations of the

15

complaint as true.

16

Cir. 1975).

17

analysis,’” which may require it “‘to probe behind the pleadings

18

before coming to rest on the certification question.’”

19

Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (quoting

20

Falcon, 457 U.S. at 160-61).

21

will entail some overlap with the merits of the plaintiff’s

22

underlying claim.

23

2551.

24

court may consider material beyond the pleadings and require

25

supplemental evidentiary submissions by the parties.

26

F.2d at 901 n.17.

27

context of a motion for class certification, district courts must

28

consider ‘the persuasiveness of the evidence presented.’”

Gen. Tel.

In

Blackie v. Barrack, 524 F.2d 891, 901 (9th

However, the court must conduct a “‘rigorous

Wal-Mart

“Frequently that ‘rigorous analysis’

That cannot be helped.”

Dukes, 131 S. Ct. at

To satisfy itself that class certification is proper, the

Blackie, 524

“When resolving such factual disputes in the

33

Aburto

1

v. Verizon Cal., Inc., 2012 WL 10381, at *2 (C.D. Cal.) (quoting

2

Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.

3

2011)).

4

whether a class should be certified.

5

937, 946 (9th Cir. 2003); Burkhalter Travel Agency v. MacFarms

6

Int’l, Inc., 141 F.R.D. 144, 152 (N.D. Cal. 1991).

Ultimately, it is in the district court’s discretion
Molski v. Gleich, 318 F.3d

7

B.

8

Defendants contend that class certification must be denied

9

United States District Court
For the Northern District of California

10
11

Analysis

here because Plaintiffs have failed to satisfy the commonality
prerequisite of Rule 23(a)(2).
The Supreme Court recently held in Dukes that plaintiffs

12

seeking to certify a Title VII class action must produce

13

“‘significant proof’ that [the defendant] ‘operated under a

14

general policy of discrimination’” to satisfy the commonality

15

prerequisite.

16

added).

17

plaintiffs in Fourth and Fourteenth Amendment class actions, as

18

well, by requiring them to produce “significant proof” that the

19

defendant followed an unconstitutional policy or practice.

20

e.g., Aguilar v. Immigration & Customs Enforcement Div., 2012 WL

21

1344417, at *5-*7 (S.D.N.Y.) (denying class certification under

22

Dukes because plaintiffs failed to establish that the defendant

23

immigration agency followed an unconstitutional policy of

24

targeting Latinos for home raids).

25

courts have denied certification for lack of commonality.

26

131 S. Ct. at 2253 (citations omitted) (emphasis

Since Dukes, lower courts have applied this rule to

See,

In the absence of such proof,
See id.

As explained above, Plaintiffs here have failed to produce

27

sufficient evidence to establish that SJPD followed any

28

unconstitutional policy or practice regarding public intoxication
34

1

arrests.

Specifically, they have not shown that SJPD’s training

2

procedures resulted in widespread constitutional violations nor

3

have they provided reliable evidence showing a widespread practice

4

of unreasonable seizures or racially discriminatory enforcement of

5

section 647(f).

6

Indeed, even if Plaintiffs’ evidence did not suffer from the

7

numerous deficiencies described above, it would still likely fall

8

short of satisfying Rule 23(a)’s commonality requirement because

9

it rests on five year old data.

Earlier this year, a court in the

United States District Court
For the Northern District of California

10

Southern District of New York denied class certification on this

11

basis to plaintiffs alleging that federal immigration agents

12

unconstitutionally target Latinos for home raids.

13

WL 1344417, at *7.

14

statistical analysis of five year old data lacked the “scientific

15

rigor” that Dukes required and could not be used to certify a

16

class that included plaintiffs whose homes were raided years

17

later.

18

of targets for the 2007 operations.

19

standing alone, insufficient to provide a foundation for a

20

determination that ICE agents today engage or would engage in

21

intentional targeting of Latinos for unconstitutional home

22

raids.”).

23

suffers from the same problem.

24

Aguilar, 2012

The court found that the plaintiffs’

Id. (“Plaintiffs’ statistical analysis is based on lists
It is, as in [Dukes],

Plaintiffs’ statistical analysis of 2007 arrest rates

Accordingly, because Plaintiffs have failed to show that SJPD

25

followed an unconstitutional practice or policy, they cannot

26

demonstrate commonality under Rule 23(a)(2).

27

failure, the Court need not address whether Plaintiffs have

28

satisfied the requirements of Rule 23(b).
35

In light of this

CONCLUSION

1
2

For the reasons set forth above, Defendants’ motion for

3

summary judgment (Docket No. 127) is GRANTED in part and DENIED in

4

part.

5

(Docket No. 118).

6

their late filings (Docket No. 154) is GRANTED.

7

evidentiary objections to the declarations of Jesica Giron and Ann

8

Kalinowski are overruled as moot.

9

Plaintiffs’ motion for class certification is DENIED
Defendants’ administrative motion to accept
Defendants’

Defendants are granted summary judgment on Plaintiffs’ first,

United States District Court
For the Northern District of California

10

second, third, fourth, and fifth causes of action.

11

also granted summary judgment on Stubbs’ and Martinez’s Fourteenth

12

Amendment claims, which are asserted in Count Six of Plaintiffs’

13

sixth cause of action.

14

Officer Rickert, and Officer Martin are entitled to summary

15

judgment on all claims against them.

16

action remain to be tried.

17
18

Defendants are

Defendants City of San Jose, Chief Davis,

Plaintiffs’ other causes of

The parties are referred to Magistrate Judge Grewal for a
settlement conference.

19

Within seven days of this order, the parties will submit a

20

joint statement proposing dates for a final pretrial conference

21

and a jury trial.

22

for a Wednesday at 2:00 p.m. and take place at least two weeks

23

before trial is set to begin.

24

The final pretrial conference must be scheduled

IT IS SO ORDERED.

25
26
27

Dated: 2/27/2013

CLAUDIA WILKEN
United States District Judge

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36