United States District Court, N.D. California, San Jose Division
ORDER DENYING PLAINTIFFS' MOTION FOR CLASS
CERTIFICATION RE: DKT. NO. 125
H. KOH UNITED STATES DISTRICT JUDGE
case arises out of the June 2, 2016 rally for
then-presidential candidate Donald J. Trump that took place
at the McEnery Convention Center in downtown San Jose,
California (the “Rally”). ECF No. 35
(“FAC”) ¶ 63. Twenty named plaintiffs bring
this putative class action on behalf of themselves and all
others similarly situated (collectively,
“Plaintiffs”) against The City of San Jose and
various individual officers of the San Jose Police Department
“Defendants”). Plaintiffs' claims for money
damages, declaratory judgment, and injunctive relief stem
from Defendants' handling of the protest that occurred in
response to the Rally. Id. ¶¶ 290-91,
295-96, 310. Before the Court is Plaintiffs' motion for
class certification pursuant to Federal Rule of Civil
Procedure 23. Having considered the parties' briefing,
the relevant law, and the record in this case, the Court
DENIES Plaintiffs' motion for class certification.
action has substantially narrowed over the course of the
litigation. The First Amended Complaint (“FAC”)
sets forth the basic allegations relevant to the remaining
claims as follows:
are individuals who attended the Rally in June 2016. FAC
¶ 273. Defendants are The City of San Jose (the
“City”) and SJPD officers Loyd Kinsworthy, Lisa
Gannon, Kevin Abruzzini, Paul Messier, Paul Spagnoli, Johnson
Fong, Jason Ta, and Does 1-15. FAC ¶¶ 281, 293,
304. The SJPD was responsible for securing the area around
the Rally site in order to ensure the safety of the
presidential candidate, the Rally participants, and the
general public. On the night of the Rally, a violent
anti-Trump protest allegedly broke out in response to the
Rally. See, e.g., id. ¶ 92. The
gravamen of Plaintiffs' suit is that Defendants'
crowd control tactics following the Rally subjected the Rally
participants to physical harm and/or property damage by the
protestors. See Id. ¶ 1. Specifically,
Plaintiffs claim that Defendants acted with “deliberate
indifference, reckless and/or conscious disregard of a known
and obvious danger by directing Plaintiffs into the mob,
preventing Plaintiffs from leaving the event through other,
safer paths, and by failing to intervene in the many attacks
perpetrated on Plaintiffs and the Class members.”
Id. ¶ 287.
Plaintiffs were leaving the Rally, SJPD and other law
enforcement officers directed Plaintiffs to use the
east-northeast exit of the Convention Center. Id.
¶ 89. A police line outside the exit “directed the
Trump supporters to turn north and to proceed along Market
Street, into [a] crowd of violent anti-Trump
protesters.” Id. ¶ 90. “The police
also actively prevented the . . . Rally attendees from
proceeding south along Market Street, away from the
anti-Trump protesters, or from leaving the convention center
through alternative exits.” Id. ¶ 91. In
so doing, Plaintiffs claim, the officers “affirmatively
direct[ed] the Class members through the violent mob of
anti-Trump protestors.” Id. ¶ 288.
Plaintiffs further allege that violence had been reported as
early as 6:00 p.m. on the night of the Trump Rally, and yet
the officers continued to force Plaintiffs to follow this
route even after they realized that doing so placed
Plaintiffs in serious danger. Id. ¶ 1. As a
result, Plaintiffs were allegedly subjected to acts of
“violence, harassment, and intimidation” on the
part of the protestors. Id. at 19. According to
Plaintiffs, officers witnessed many of these attacks but
failed to intervene, despite “pleas for help from
several of the Trump supporters.” Id. ¶
95. Defendants allegedly refused even to “allow
individuals . . . to simply step past the police lines to
safety.” Id. ¶ 288.
specifically identify fourteen individual incidents in which
protestors allegedly attacked one or more Rally participants.
Id. ¶¶ 119-272. Each involved a different
attacker or group of attackers. Although Plsaintiffs allege
all the attackers were protestors, that is a disputed issue
Gannon, Abruzzini, Messier, Spagnoli, Fong, and Ta
(collectively, the “On-Duty Officers”) were
allegedly among the SJPD officers on duty that night.
Id. ¶ 284. Kinsworthy was allegedly the
“primary point of contact for all units deployed at the
Rally.” Id. ¶ 72. Fong was allegedly the
“sub-commander at the Trump Rally” and acted as
the “Commander for the skirmish line.”
Id. ¶¶ 45, 74. The FAC does not
specifically identify the roles of Gannon, Abruzzini,
Messier, Spagnoli, Ta, or Does 1-15.
the Rally, Chief Garcia allegedly praised officers for their
“discipline and restraint” because
“additional force can incite more violence in the
crowd.” Id. ¶ 102. Plaintiffs claim that
the City thus ratified the actions of the SJPD officers and
are liable for the officers' actions. Id. ¶
Original Complaint and First Motion to Dismiss
filed their original complaint on July 14, 2016. ECF No. 1
(“Original Complaint”). In the Original
Complaint, fourteen plaintiffs asserted 28 claims for relief
on behalf of themselves and others similarly situated.
Id. Those claims fell into two categories: (1) state
law and federal law claims against the City, Mayor Sam
Liccardo (“Liccardo”), Chief of Police Edgardo
Garcia (“Garcia”), and fifteen Doe Defendants, as
the individual SJPD officers were not yet named, id.
¶¶ 153-185; and (2) state law claims against
various private citizens who had allegedly committed acts of
aggression and violence against the plaintiffs, id.
August 4, 2016, the City, Liccardo, Garcia, and the Doe
officers filed a motion to dismiss the four claims against
them pursuant to Federal of Civil Procedure 12(b)(6). ECF No.
6. The Court granted in part and denied in part the motion to
dismiss on October 13, 2016. ECF No. 30. The Court granted
leave to amend for all the claims that it dismissed and noted
that failure to cure the deficiencies identified in its order
would result in dismissal with prejudice. Id. at 26.
First Amended Complaint (“FAC”)
November 14, 2016, Plaintiffs filed the FAC, which is now the
operative complaint in this case. ECF No. 35. The FAC added
six more named plaintiffs, for a total of twenty: Juan
Hernandez, Nathan Velasquez, Frank Velasquez, Rachel Casey,
Mark Doering, Mary Doering, Barbara Arigoni, Dustin
Haines-Scrodin, Andrew Zambetti, Christina Wong, Craig
Parsons, the minor I.P., Greg Hyver, Todd Broome, Martin
Mercado, Christopher Holland, Theodore Jones, Donovan Rost,
Michele Wilson, and Cole Cassady (collectively, “Named
Plaintiffs”). Id. Like the Original Complaint,
the FAC contains two categories of claims: those against
defendants associated with the City and those against private
citizens. In the FAC, the claims in the first category are
against the City, Garcia, seven named SJPD officers-Loyd
Kinsworthy, Lisa Gannon, Kevin Abruzzini, Paul Messier, Paul
Spagnoli, Johnson Fong, and Jason Ta-and fifteen Doe police
officers (collectively, “FAC City Defendants”).
Id. ¶¶ 280-310. Plaintiffs bring four
causes of action against the FAC City Defendants: (1) a claim
under 42 U.S.C. § 1983 against Garcia and the individual
SJPD officers for violations of the Fourteenth Amendment
(“Count 1”), id. ¶¶ 280-291;
(2) a claim under 42 U.S.C. § 1983 against the City for
violations of the Fourteenth Amendment (“Count
2”), id. ¶¶ 292-96; (3) a claim
under the Bane Act against all FAC City Defendants
(“Count 3”), id. ¶¶ 297-302;
and (4) a California common law negligence claim against the
City (“Count 4”), id. ¶¶
addition, the FAC contains 39 claims against 46 private
citizens, 40 of which are Doe defendants (collectively,
“FAC Individual Defendants”). Id.
¶¶ 311-556. These claims arise from the various
distinct incidents in which a protestor or group of
protestors allegedly attacked one or more Named Plaintiffs.
Id. ¶¶ 119-272. Criminal proceedings have
been brought against a number of these individual attackers.
See, e.g., FAC ¶¶ 139, 157-159, 171.
Second Motion to Dismiss
December 22, 2016, the FAC City Defendants moved to dismiss
the four claims against them pursuant to Rule 12(b)(6). ECF
No. 44. The Court granted in part and denied in part this
motion on March 14, 2017. ECF No. 72.
Count 1, Plaintiffs alleged that the SJPD had violated
Plaintiffs' substantive due process rights under the
Fourteenth Amendment in two ways: (1) by devising a
crowd-control plan for the Rally that created or exposed
Plaintiffs to danger, and (2) by executing the crowd-control
plan on the evening of the Rally, even after it became clear
the plan was subjecting Plaintiffs to danger. FAC
¶¶ 280-291; see ECF No. 72 at 15. The SJPD
prepared the so-called Incident Action Plan in preparation
for the Rally. See ECF No. 126-3 (“Kinsworthy
Deposition”) Ex. 5. Garcia was only alleged to have
been involved in devising the Incident Action Plan, and not
in policing on the night of the Rally. ECF No. 72 at 18. The
Court held the first theory (based on devising the Incident
Action Plan) was insufficient to support a Fourteenth
Amendment claim and therefore dismissed Count 1 with
prejudice to the extent it relied upon that theory.
Id. at 13-14, 16. The Court permitted Plaintiffs to
proceed with their Fourteenth Amendment claim on the basis of
the second theory (executing the Incident Action Plan at the
Rally), however. Id. at 18. In so doing, the Court
rejected the FAC City Defendants' argument that qualified
immunity foreclosed Plaintiffs' claims. Id. at
alleges that the City is vicariously liable for the legal
violations of the individual SJPD officers under Count 1. The
Court found that Plaintiffs had stated a claim that the City
had ratified the SJPD officers' allegedly
unconstitutional actions on the night of the Rally.
Id. at 25. In accordance with its holding regarding
Count 1, the Court allowed Count 2 to proceed only to the
extent it was based upon this ratification theory and the
actions of the SJPD officers on the night of the Rally.
Id. at 26. To the extent the claim was based upon
alternative theories of vicarious liability, the Court
dismissed the claim with prejudice. Id. at 31.
Similarly, as to Count 4, the Court permitted a negligence
claim against the City based upon the SJPD officers'
actions on the night of the Rally but not upon the devising
of the Incident Action Plan. Id. at 32.
the Court dismissed Count 3, the Bane Act claim, with
prejudice. Id. at 31. Because the Court had
dismissed all of the claims against Garcia with prejudice,
the Court also dismissed Garcia from the case. Id.
Appeal, Stay, and Severance
March 28, 2017, the remaining FAC City Defendants (i.e.,
those other than Garcia) filed a notice of appeal to the
Ninth Circuit to seek interlocutory review of the Court's
finding that the individual SJPD officers were not entitled
to qualified immunity with regard to Plaintiffs' §
1983 claims. ECF No. 80; see ECF No. 82 at 2. These
defendants also filed a motion to stay the entire action
pending resolution of the appeal. ECF No. 82; see
ECF No. 96 at 7. Then, on March 30, 2017, the same defendants
moved to sever misjoined parties. ECF No. 84. On May 15,
2017, the Court issued an order resolving both motions. ECF
No. 96. First, the Court denied the motion for severance but
nevertheless severed the claims sua sponte into 12
separate actions. Id. at 11, 20. Action #1 comprised
the claims against the FAC City Defendants, whereas Actions
#2 through #12 concerned the Individual Defendants.
Id. at 21-22. The Court then found that it lacked
jurisdiction over Actions #2 through #12-which only alleged
state law claims-and therefore dismissed them without
prejudice for refiling in state court. Id. at 23. In
its order, the Court noted that criminal proceedings were
ongoing in state court as to six of the Individual
Defendants. Id. at 18. At the December 5, 2018 case
management conference, however, Plaintiffs indicated they had
chosen not to pursue any of the eleven civil actions in state
court. See ECF No. 106.
Court retained jurisdiction over Action #1 and granted the
motion to stay the case. ECF No. 96 at 28. On July 27, 2018,
the Ninth Circuit affirmed this Court's decision, ECF No.
100, and the Court reopened the case on December 5, 2018, ECF
Summary of Plaintiffs' Remaining Claims
although the FAC is the operative complaint in this case, the
FAC has been significantly narrowed by the Court's
previous orders. The Named Plaintiffs are Juan Hernandez,
Nathan Velasquez, Frank Velasquez, Rachel Casey, Mark
Doering, Mary Doering, Barbara Arigoni, Dustin
Haines-Scrodin, Andrew Zambetti, Christina Wong, Craig
Parsons, the minor I.P., Greg Hyver, Todd Broome, Martin
Mercado, Christopher Holland, Theodore Jones, Donovan Rost,
Michele Wilson, and Cole Cassady-all of whom attended the
Rally in June 2016. FAC ¶ 273. The current Defendants
are the City and SJPD officers Kinsworthy, Gannon, Abruzzini,
Messier, Spagnoli, Fong, Ta, and Does 1-15. Id.
¶¶ 281, 293, 304.
claims for relief remain: Counts 1, 2, and 4. Count 1 is the
§ 1983 claim against the individual SJPD officers, and
Count 2 is the § 1983 claim against the City. As to
these two claims, Plaintiffs request attorneys' fees
and/or costs, compensatory damages, and injunctive relief.
Id. ¶¶ 290-91, 295-96. Count 4 is the
negligence claim against the City for compensatory damages.
Id. ¶ 310. All three claims are predicated on
the alleged actions of the SJPD officers on the night of the
Rally and not on the devising of the Incident Action Plan in
advance of the Rally.
Motion for Class Certification
30, 2019, Plaintiffs filed their Motion for Class
Certification. ECF No. 125. Specifically, Plaintiffs move to
certify the following Class as an injunctive relief class
pursuant to Federal Rule of Civil Procedure 23(b)(2):
Class: All persons who attended the June 2, 2016 Donald J.
Trump campaign Rally (the “Rally”) at the South
Hall of the McEnery Convention Center in San Jose,
California, and who, upon exiting the Rally, were either (1)
directed, or otherwise required, by agents of the City of San
Jose to leave in the direction of, or along a route toward,
anti-Trump protestors, and/or (2) were prevented by agents of
the City of San Jose from leaving by any alternate route.
Excluded from the Class are the City of San Jose's
officers, directors, agents, legal representatives, heirs,
successors, and assigns that attended the Rally in his, her,
or their capacity as such. Also excluded from the Class are
counsel for Plaintiffs and Defendants (the
Mot. for Class Cert. at 1. Plaintiffs move to certify the
following Subclass as a damages class pursuant to Rule
Subclass: All members of the Class who sustained injury to
their persons or damage to their property upon leaving the
Rally (the “Subclass”).
Id. Plaintiffs also move to (1) certify Plaintiffs
as named representatives of the Class; (2) certify Plaintiffs
as named representatives of the Subclass; (3) appoint Dhillon
Law Group as class counsel pursuant to Rule 23(g); and (4)
authorize notice of the pending action and of Subclass
members' right to opt out. Id. Defendants oppose
the motion. See ECF No. 135 (“Def.
Opp.”). The motion has now been fully briefed. ECF Nos.
actions are governed by Federal Rule of Civil Procedure 23.
To certify a class under Rule 23, Plaintiffs must show that
the proposed class satisfies all four requirements of Rule
23(a) and at least one subsection of Rule 23(b). See
Fed. R. Civ. P. 23(a)-(b); Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 345 (2011). Rule 23(a) provides
that a district court may certify a class only if: “(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; (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). These requirements are commonly referred
to as numerosity, commonality, typicality, and adequacy of
representation, respectively. See Mazza v. Am. Honda
Motor Co., 666 F.3d 581, 588 (9th Cir. 2012).
to Rule 23(b), there are three possible types of class
actions. See Fed. R. Civ. P. 23(b)(1)-(3). For
certification of the Class, plaintiffs rely upon subsection
(b)(2), which permits class treatment for the purpose of
injunctive relief. See Ellis v. Costco Wholesale
Corp., 657 F.3d 970, 986 (9th Cir. 2011) (“Class
certification under Rule 23(b)(2) is appropriate only where
the primary relief sought is declaratory or
injunctive.”). A class may be certified under Rule
23(b)(2) when “the party opposing the class has acted
or refused to act on grounds generally applicable to the
class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a
whole.” Fed.R.Civ.P. 23(b)(2). “The key to the
(b)(2) class is the indivisible nature of the injunctive or
declaratory remedy warranted-the notion that the conduct is
such that it can be enjoined or declared unlawful only as to
all of the class members or as to none of them.”
Wal-Mart, 564 U.S. at 360.
addition, Plaintiffs seek to certify the Subclass as a
damages class under subsection (b)(3). On top of the four
prerequisites under Rule 23(a), Rule 23(b)(3) damages classes
must meet the requirements of predominance and superiority.
Just Film, Inc. v. Buono, 847 F.3d 1108, 1115 (9th
Cir. 2017). That is, the moving party must establish
“that the questions of law or fact common to class
members predominate over any questions affecting
only individual members and that a class action is
superior to other available methods for the fair and
efficient adjudication of the controversy.”
Fed.R.Civ.P. 23(b)(3) (emphases added).
deciding whether to certify a class under Rule 23, a court
must undertake a “rigorous analysis” of whether
the requirements of the Rule have been satisfied.
Wal-Mart, 564 U.S. at 351.” Rule 23 does not
set forth a mere pleading standard.” Id. at
350. Rather, the party seeking class certification
“bears the burden of affirmatively demonstrating
through evidentiary proof that the class meets the
prerequisites of Rule 23(a).” Sali v. Corona
Reg'l Med. Ctr., 909 F.3d 996, 1003-04 (9th Cir.
2018). Hence, a court may look beyond the pleadings to any
“material sufficient to form a reasonable judgment on
each Rule 23(a) requirement, ” including evidence that
would be inadmissible at trial. Id. at 1005
(“[A] district court should analyze the persuasiveness
of the evidence presented at the Rule 23 stage.”).
cases, this rigorous analysis “may entail some overlap
with the merits of the plaintiff's underlying
claim.” Amgen Inc. v. Connecticut Ret. Plans &
Tr. Funds, 568 U.S. 455, 466 (2013) (internal quotation
marks omitted). At the same time, the United States Supreme
Court has instructed courts not to “engage in
free-ranging merits inquiries at the certification
stage.” Id. “Merits questions may be
considered to the extent-but only to the extent-that they are
relevant to determining whether the Rule 23 prerequisites for
class certification are satisfied.” Id. For
instance, a court may “consider the substantive
elements of the plaintiffs' case in order to envision the
form that a trial on those issues would take.”
Hohider v. United Parcel Serv., Inc., 574 F.3d 169,
176 (3d Cir. 2009). Ultimately, whether the moving party has
met the prerequisites of Rule 23 is a matter within the
“broad discretion” of the trial court. See
Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180,
1186, amended by, 273 F.3d 1266 (9th Cir. 2001).
move to certify the Class as a damages class under Rule
23(b)(2) and the Subclass as an injunctive relief class under
reasons below, the Court denies certification of the Subclass
as a damages class because Plaintiffs have failed to satisfy
Rule 23(a)'s commonality requirement and Rule
23(b)(3)'s predominance requirement. The Court also
denies certification of the Class as an injunctive relief
class because the Named Plaintiffs lack standing to pursue
Subclass: Damages Class under Rule 23(b)(3)
move to certify the Subclass of “[a]ll members of the
Class who sustained injury to their persons or damage to
their property upon leaving the Rally” as a damages
class pursuant to Rule 23(b)(3). Mot. for Class Cert. at 1.
Plaintiffs request damages as to Counts 1, 2, and 4, which
are brought under theories of state-created danger and
negligence. Defendants oppose certification on the grounds
that none of the requirements of either Rule 23(a) or Rule
23(b)(3) are satisfied. The Court agrees that neither Rule
23(b)(3)'s predominance requirement nor Rule 23(a)'s
commonality have been met. Therefore, without deciding that
Plaintiffs' have satisfied Rule 23's other
prerequisites, the Court concludes that class certification
is not appropriate and denies Plaintiffs' motion to
certify the Subclass.
Predominance and Commonality
Court first reviews the legal standards for predominance and
commonality before considering the individualized issues that
defeat both prerequisites in the instant case. “The
class action is an exception to the usual rule that
litigation is conducted by and on behalf of the individual
named parties only.” Comcast Corp. v. Behrend,
569 U.S. 27, 33 (2013) (internal quotation marks omitted).
What is more, of the three types of classes provided for by
Rule 23, the (b)(3) damages class is the most extraordinary.
The United States Supreme Court has called it an
“adventuresome innovation, . . . designed for
situations in which class-action treatment is not as clearly
called for, ” id. at 34 (internal quotation
marks omitted), but “may nevertheless be convenient and
desirable, ” Amchem Prods., Inc. v. Windsor,
521 U.S. 591, 616 (1997). In other words, the “notion
that the adjudication of common issues will help achieve
judicial economy” is integral to the Rule 23(b)(3)
class. In re Wells Fargo Home Mortg. Overtime Pay
Litig., 571 F.3d 953, 958 (9th Cir. 2009). Accordingly,
the purpose of the predominance requirement is to
“test whether proposed classes are sufficiently
cohesive to warrant adjudication by representation.”
Id. at 623.
means that “the questions of law or fact common to the
members of the class predominate over any questions affecting
only individual members.” Fed.R.Civ.P. 23(b)(3).
“The predominance inquiry asks whether the common,
aggregation-enabling, issues in the case are more prevalent
or important than the non-common, aggregation-defeating,
individual issues.” Tyson Foods, Inc. v.
Bouaphakeo, 136 S.Ct. 1036, 1045 (2016). To meet the
predominance requirement, “common questions must be a
significant aspect of the case that can be resolved for all
members of the class in a single adjudication.”
Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1068
(9th Cir. 2014). For the purposes of Rule 23, a
“common” question is one that is “capable
of classwide resolution.” Wal-Mart, 564 U.S.
at 350. In contrast, an “individual” question is
one for which “members of a proposed class will need to
present evidence that varies from member to member.”
Tyson Foods, 136 S.Ct. at 1045 (quotation marks
particular relevance here, “Rule 23(b)(3)'s
predominance requirement takes into account questions of
damage.” Just Film, 847 F.3d at 1120. Although
“the amount of damages is invariably an individual
question and does not defeat class action treatment, ”
Leyva v. Medline Indus. Inc., 716 F.3d 510, 514 (9th
Cir. 2013), plaintiffs must show that “damages are
capable of measurement on a classwide basis.”
Comcast, 569 U.S. at 34. In other words, Plaintiffs
must establish “that their damages arise from a course
of conduct that impacted the class.” Just
Film, 847 F.3d at 1120. In Comcast, for
instance, the plaintiffs had to show “that the
existence of individual injury resulting from the alleged
antitrust violation . . . was capable of proof at trial
through evidence that [was] common to the class rather than
individual to its members.” 569 U.S. at 30.
undertaking the predominance analysis, “the Court must
consider how a trial on the merits would be conducted if a
class were certified.” Moore v. Apple Inc.,
309 F.R.D. 532, 543 (N.D. Cal. 2015) (internal quotation
marks omitted). Specifically, the Court's analysis
“entails identifying the substantive issues that will
control the outcome, assessing which issues will predominate,
and then determining whether the issues are common to the
class, a process that ultimately prevents the class from
degenerating into a series of individual trials.”
Herskowitz v. Apple, Inc., 301 F.R.D. 460, 469 (N.D.
Cal. 2014). Common issues cannot predominate where