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Moni Law v. City of Berkeley

United States District Court, N.D. California

August 9, 2016

MONI LAW, et al., Plaintiffs,
v.
CITY OF BERKELEY, et al., Defendants.

          ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND STRIKE THE THIRD AMENDED COMPLAINT AND GRANTING LEAVE TO FILE FOURTH AMENDED COMPLAINT RE: DKT. NO. 67

          JACQUELINE SCOTT CORLEY United States Magistrate Judge.

         This lawsuit arises out of a racial justice protest in Berkeley, California. Plaintiffs challenge the City of Berkeley and the Berkeley Police Department’s response to the protest and allege that, among other things, they were subject to excessive force and violation of their First Amendment rights. Now pending before the Court is Berkeley’s motion to dismiss claims in the Third Amended Complaint for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1) and to strike certain allegations pursuant to Federal Rule of Civil Procedure 12(f). Having considered the parties’ submissions, the Court concludes that oral argument is unnecessary, see Civ. L.R. 7-1(b), and DENIES the motion. The Court also finds good cause to GRANT Plaintiffs leave to file the Fourth Amended Complaint. (Dkt. No. 70.)

         FACTUAL ALLEGATIONS

         This lawsuit arises out of a demonstration on December 6, 2014 in Berkeley, California. Plaintiffs are eight individuals who attended the demonstration, March Against State Violence, either as protesters or journalists. (Third Amended Complaint (Dkt. No. 62) at ¶¶ 1-3, 13-21; Dkt. No. 69 (granting stipulation to dismiss claims of three plaintiffs).) The Berkeley Police Department sent officers to the demonstration and requested mutual aid from nearby law enforcement agencies when they learned about the protest. (Id. at ¶¶ 3-5.) Pursuant to this request, the Hayward Police Department and several other law enforcement agencies responded and assisted Berkeley in policing the demonstration. (Id. at ¶ 42.)

         The demonstration began around 5:00 p.m. on the University of California, Berkeley campus and then proceeded down Telegraph Avenue to the Public Safety Building at 2100 Martin Luther King, Jr., Way. (Id. at ¶ 43.) Berkeley police officers blocked the demonstration once it reached 2100 Martin Luther King, Jr., Way and used batons to “hit and push any demonstrators who entered an unmarked, unannounced ‘safety zone.’” (Id.) Although Plaintiffs were peacefully participating in the demonstration either as protesters or journalists documenting the march, Berkeley police officers repeatedly struck them with batons, and in some instances, deployed tear gas. (Id. ¶¶ 44-70.) In addition, Plaintiff Watkins was arrested and spent the night in jail although he had done nothing wrong. (Id. at ¶ 66.)

         Plaintiffs contend that this unlawful use of force is “the proximate result of a custom, policy, pattern or practice of deliberate indifference by defendant City of Berkeley to the repeated violations of the constitutional rights of citizens by defendant City of Berkeley’s police officers, which have included, but are not limited to, the repeated use of excessive force, racial profiling, and the repeated failure to properly and/or adequately train, supervise and/or discipline officers with respect to the use of excessive force, constitutional limitations on the use of force, City policies on use of weapons and force, and racial profiling; the repeated failure by City of Berkeley high ranking officials, police department managers and/or supervisors to hold officers accountable for violating the rights of citizens; and/or other customs, policies and/or practices.” (Id. at ¶ 80.) Berkeley Police Chief Michael Meehan is an “authorized policymaker” for the City of Berkeley who “set in motion, supervised, directed, approved, and acquiesced in the constitutional violations.” (Id. at ¶ 23.) Berkeley Police Captain Erik Upson was the Incident Commander in charge of Berkeley and the mutual aid police response who was on scene and “supervised, directed, approved, acquiesced, and failed to intervene in officer’s constitutional violations” along with senior officers Andrew Rateaver and Rico Rolleri. (Id. at ¶¶ 24-26.) Upson and Rolleri failed to instruct or supervise the mutual aid responders which included Hayward police officers who brought “Specialty Impact Munitions” with them despite “state and local law which required Berkeley to remain in charge and take direct supervisory responsibility for all mutual aid units.” (Id. at ¶¶ 24, 26, 42.)

         PROCEDURAL HISTORY

         Plaintiffs filed this action nearly a year after the at-issue protest naming both the City of Berkeley and several individual Berkeley police officers as Defendants as well as the City of Hayward, Hayward Chief of Police Diane Urban, and Hayward Police Lieutenant Bryan Matthews. (Dkt. No. 1.) Before any Defendants answered or appeared, Plaintiffs filed an amended complaint. (Dkt. No. 18.) Both the Hayward and the Berkeley Defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. Nos. 22 & 23.) These motions were granted in part and denied in part and Plaintiffs thereafter filed the Second Amended Complaint. (Dkt. Nos. 44, 45 & 49.) Plaintiffs subsequently resolved their claims with the Hayward Defendants and the Court granted Plaintiffs leave to file the now operative Third Amended Complaint (“TAC”). (Dkt. Nos. 60 & 62.)

         The TAC names the City of Berkeley, Michael Meehan as the Chief of Police for the City of Berkeley, and several Berkeley police officers (collectively, “Berkeley”). (Dkt. No. 62.) Plaintiffs assert seven claims for relief: (1) violation of their Fourth Amendment rights under 42 U.S.C. § 1983; (2) violation of their First Amendment rights under 42 U.S.C. § 1983; (3) false arrest and false imprisonment; (4) assault and battery; (5) violation of California Civil Code § 51.7; (6) violation of California Civil Code § 52.1; and (7) negligence. (Id. at ¶¶ 88-113.) The Third Amended Complaint is filed as a putative class action seeking injunctive and declaratory relief on behalf of a class of “all persons who wish to participate in or report on public demonstrations in the City of Berkeley.” (Id. at ¶ 34.)

         In response to the TAC, Defendants filed the underlying motion to dismiss and strike portions of the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).[1](Dkt, No. 67.) Five days later, Plaintiffs filed a Fourth Amended Complaint. (Dkt. No. 70.) However, Plaintiffs thereafter timely filed an opposition to Berkeley’s motion which notes that Plaintiffs misread Federal Rule of Civil Procedure 15 to allow a Fourth Amended Complaint as of right. Plaintiffs contend that the TAC is adequate and also seek leave to file the Fourth Amended Complaint should the Court find any deficiencies in the TAC. (Dkt. No. 74.)

         DISCUSSION

         Defendants’ motion raises three primary arguments. First, Defendants move to strike Plaintiffs’ class allegations contending that the proposed class is not adequately defined and Plaintiffs have not adequately alleged the prerequisites for a class action under Federal Rule of Civil Procedure 23(a) or (b)(2). Second, Defendants move to dismiss Plaintiffs’ claims for injunctive and declaratory relief for lack of standing. Finally, Defendants move to strike Plaintiffs’ allegations regarding injuries from mutual aid agencies, specialty impact munitions, and racial profiling. None of these arguments are availing.

         A. Defendants’ Motion to Strike Class Allegations is Procedurally Flawed

         Defendants move to strike Plaintiffs’ class allegations pursuant to Federal Rule of Civil Procedure 12(f). Under Rule 12(f), the “court may strike from a pleading ... any redundant, immaterial, impertinent, or scandalous matter.” Defendants have not cited, and the Court is not aware, of any Ninth Circuit Court of Appeals case concluding that Rule 12(f) is an appropriate vehicle for resolving the propriety of class claims. This lack of case law support is unsurprising given that in the Ninth Circuit a motion to strike may only be granted where the allegations in question are “(1) an insufficient defense; (2) redundant; (3) immaterial; (4) impertinent; or (5) scandalous.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973-74 (9th Cir. 2010). None of Defendants’ arguments fall within one of these ...


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