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Eberhard v. Patrol

United States District Court, N.D. California

November 6, 2014

STEPHEN E. EBERHARD, Plaintiff,
v.
CALIFORNIA HIGHWAY PATROL, et al., Defendants

Page 1123

For Stephen E. Eberhard, Plaintiff: Duffy Carolan, LEAD ATTORNEY, Jassy Vick Carolan LLP, San Francisco, CA; Jean-Paul Jassy, LEAD ATTORNEY, Jassy Vick, LLP, Los Angeles, CA; Kevin Lester Vick, LEAD ATTORNEY, Los Angeles, CA.

For California Highway Patrol, Christopher W. Dabbs, Kory A. Reynolds, Teddy M. Babcock, James T. Epperson, Bridget T. Lott, Defendants: Micah Charles Osgood, California State Attorney General's Office, San Francisco, CA; Harry T. (Chip) Gower, III, CA State Attorney General's Office, San Francisco, CA.

For Charlie Fielder, California Department of Transportation, Defendants: Ankush Agarwal, LEAD ATTORNEY, State of California, Department of Transportation Legal Division, San Francisco, CA.

Page 1124

ORDER GRANTING MOTIONS TO DISMISS Dkt. Nos.: 23, 32

JAMES DONATO, United States District Judge.

This lawsuit arises out of allegations by plaintiff Stephen Eberhard, a photojournalist, that he was harassed and unlawfully arrested by officers of the California Highway Patrol. Eberhard sued the arresting officers, the California Highway Patrol, the California Department of Transportation, California Highway Patrol Chief Bridget Lott, and California Department of Transportation District 1 Director Charlie Fielder. Lott and Fielder are alleged to have jointly released after Eberhard's arrest a " letter to the editor" missive discussing their respective government agencies' roles in the incident. Lott wrote an additional letter to a journalism organization defending the California Highway Patrol's conduct.

Defendants California Department of Transportation, Fielder, and Lott move to dismiss Eberhard's claims against them under Federal Rule of Civil Procedure 12(b)(6). The motions involve only a portion of the claims in the first amended complaint. The unaffected claims will continue to move forward. For the challenged claims, the Court grants the motions and dismisses them without prejudice and subject to an opportunity to re-plead, if Eberhard is so inclined.

I. FACTUAL BACKGROUND

As alleged in the first amended complaint, Eberhard is a photojournalist for The Willits News (" TWN" ), a newspaper in Willits, California. Dkt. No. 26 ¶ 5. He has been active in covering the Willits Bypass Project, a highway construction project involving a 5.9 mile long, four-lane freeway around Willits. Id. ¶ 14. The project is overseen by the California Department of Transportation (" Caltrans" ), and has been the subject of lawsuits, protests, and media coverage. Id. ¶ ¶ 7, 14-16. Eberhard alleges that from April to July 2013, he was harassed and intimidated by officers of the California Highway Patrol (" CHP" ). Id. ¶ ¶ 17-24. After complaints from TWN, Caltrans assigned a media representative to escort TWN reporters and photographers around the project area, but Eberhard alleges that this did not prevent more harassment by the CHP. Id. ¶ ¶ 22-24.

Events culminated in Eberhard's arrest by CHP officers the morning of July 23, 2013, immediately after a protest on the project site. Id. ¶ ¶ 26-39. Eberhard was held in a patrol car and later taken to Mendocino County Jail, where he was released after spending about two hours in a cell. Id. ¶ 36.

In the days following his arrest, a number of editorials condemning CHP's arrest of Eberhard appeared in newspapers throughout California. Id. ¶ 41. In response to these editorials, CHP Chief Bridget Lott and Caltrans District 1 Director Charlie Fielder jointly wrote a letter to the editor stating, among other things, that Eberhard was arrested because he had " trespassed" and " refused a

Page 1125

lawful order to exit." Id. ¶ 42. The letter was published in a number of newspapers in California. Id. ¶ 43. Lott and Fielder published a modified version of the letter in TWN and its sister papers: Instead of saying that Eberhard failed to obey a lawful order, the modified letter is alleged to have stated that Eberhard was directed by an officer to leave and that he was arrested not because of his profession but because he refused to leave a construction site. Id. ¶ 43.

On August 2, 2013, in response to a letter written to the CHP Commissioner by a journalism organization called the Society of Environmental Journalists protesting against the CHP's treatment of Eberhard, Lott wrote an additional letter to the Society defending CHP's actions. Id. ¶ 44. The portion of the letter excerpted in Eberhard's first amended complaint states:

[H]e had visited the site many times since early February 2013, and had been granted access without incident. In other situations he was on site as part of a protest contingent, but had left voluntarily with the protesters when asked.
Gaining access to the issues that make up the news is at the heart of the journalistic enterprise and the CHP takes seriously its role in facilitating that process. The CHP does not want to see any member of the media arrested. Unfortunately, on this particular day, Mr. Eberhard declined to conform to the well-defined set of operating standards. It was explained to him, no less than three times, that he was putting himself in a situation which could lead to arrest. Though originally acting as part of a group of protesters, when all other protesters had left the site as requested, Mr. Eberhard remained.
He was given additional time to leave but chose not to, leaving officers with no other course of direction but to take him into custody for trespassing; for his safety, the safety of the workers, and the operational necessity of the project.

Id. ¶ 44.

On March 27, 2014, Eberhard brought suit in California state court, alleging a number of statutory and constitutional violations. Dkt. No. 1 ¶ 1. He named as defendants the CHP and the CHP officers who allegedly harassed and arrested him, as well as Caltrans, Lott, and Fielder. Id. The case was removed to this Court on April 24, 2014. Dkt. No. 1.

Caltrans, Fielder, and Lott (who is now retired) have moved to dismiss counts five, seven, and twelve of Eberhard's first amended complaint with respect to themselves. Count five alleges that Lott and Fielder violated Eberhard's First Amendment rights (as applied to California under the Fourteenth Amendment). Dkt. No. 26 ¶ ¶ 76-83. Count seven alleges that Caltrans engaged in false arrest and false imprisonment along with the CHP. Id. ¶ ¶ 91-99. Count twelve seeks declaratory relief against all defendants. Id. ¶ ¶ 127-29. Lott also argues that she is protected from suit by qualified immunity. Dkt. No. 32 at 6-9.

Eberhard does not allege that Lott and Fielder were personally involved in the alleged harassment and arrest. Rather, his claims against them are based on their joint letter to the editor and (with respect to Lott) her subsequent letter to the Society of Environmental Journalists.

II. LEGAL BACKGROUND

" To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, 'to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, ...


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