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Hernandez v. City of San Jose

United States District Court, N.D. California, San Jose Division

September 17, 2019

JUAN HERNANDEZ, et al., Plaintiffs,
v.
CITY OF SAN JOSE, et al., Defendants.

          ORDER DENYING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION RE: DKT. NO. 125

          LUCY H. KOH UNITED STATES DISTRICT JUDGE

         This 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 (“SJPD”) (collectively, “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.

         I. BACKGROUND

         A. Factual Background

         This 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:

         Plaintiffs 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.

         As 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.

         Plaintiffs 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 of fact.

         Kinsworthy, 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.

         After 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. ¶ 293.

         B. Procedural History

         1. Original Complaint and First Motion to Dismiss

         Plaintiffs 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. ¶¶ 186-336.

         On 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.

         2. First Amended Complaint (“FAC”)

         On 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. ¶¶ 303-310.

         In 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.

         3. Second Motion to Dismiss

         On 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.

         As to 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 20.

         Count 2 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.

         Finally, 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. at 35.

         4. Appeal, Stay, and Severance

         On 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.

         The 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 No. 107.

         5. Summary of Plaintiffs' Remaining Claims

         Thus, 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.

         Three 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.

         6. Motion for Class Certification

         On May 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 “Class”);

Mot. for Class Cert. at 1. Plaintiffs move to certify the following Subclass as a damages class pursuant to Rule 23(b)(3),

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. 135, 137.

         II. LEGAL STANDARD

         Class 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).

         Turning 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.

         In 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).

         In 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.”).

         In many 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).

         III. DISCUSSION

         Plaintiffs move to certify the Class as a damages class under Rule 23(b)(2) and the Subclass as an injunctive relief class under Rule 23(b)(3).

         For the 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 injunctive relief.[1]

         A. Subclass: Damages Class under Rule 23(b)(3)

         Plaintiffs 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.

         1. Predominance and Commonality

         The 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.

         Predominance 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 omitted).

         Of 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.

         In 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 “individualized ...


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