CHARLES R. BREYER, District Judge.
There are two Motions presently before the Court. First, Plaintiffs move to alter or amend this Court's Order granting them leave to amend but not including in that leave permission to add a new named Plaintiff (Brian Vowell) as a subclass representative.
Plaintiffs' Motion to Alter the Judgment is GRANTED in part and DENIED in part. In particular, Plaintiffs are permitted to add Vowell as a subclass representative for the group of arrestees searched absent classification (subclass 2) but not for the group making claims under section 4030 (subclass 3). Defendants' Motion to Dismiss is GRANTED, and Plaintiffs' damage claims against the City for violation of section 4030 are dismissed.
The gist of Plaintiffs' Motion to Alter the Judgment is that the Court was "clearly wrong" in denying them leave to add a new named Plaintiff and Class Representative who they now imply is necessary (or at least very helpful) for the proper presentation of two of their subclass claims.
This Court certified a class in this case in 2004.
Defendant Hennessey took an interlocutory appeal on the qualified immunity issue, and the Ninth Circuit concluded that the City's "policy requiring strip searches of all arrestees classified for custodial
In response to the Ninth Circuit's decision, Plaintiffs moved to amend their Complaint. Mot. to Am. Cmpl. (Dkt. 291). The Court granted that motion in part, allowing Plaintiffs to amend to set forth three "new" subclasses composed of members of the originally certified class who still have viable claims. Sept. 8, 2010 Order (Dkt. 314). However, the Court did not permit Plaintiffs to add two new named Plaintiffs (and, it is now clear, proposed subclass representatives). Id. at 12-14. This was because (1) the new Plaintiffs' claims were not affected by Bull because they did not concern a classification strip search and (2) allowing their addition after so lengthy a time has passed since the events at issue would be unduly prejudicial to Defendants. Id.
Plaintiffs did two things in response to the Court's Order.
First, they filed a Fourth Amended Complaint, which, among other things, sets forth three subclasses. Fourth Am. Cmpl. (Dkt. 315) at 15-16.
Id.
Second, Plaintiffs simultaneously filed a Motion for Leave to File a Motion for Reconsideration of the decision to deny them leave to add Vowell as a named Plaintiff/Class Representative. Dkt. 316. The Court granted Plaintiffs leave to file the motion for reconsideration, they filed that motion, and it is now ripe for disposition.
"A Rule 59(e) motion is appropriate `if the district court: (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.'" Circuit City Stores, Inc. v. Mantor, 417 F.3d 1060, 1063 n. 1 (9th Cir.2005) (quoting Sch. Dist. No. 1J, Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)). The district court should not reverse itself if its initial decision was merely wrong. Rather, it should do so only if the prior decision was "clearly" wrong. Leslie Salt v. United States, 55 F.3d 1388, 1393 (9th Cir.1995).
The starting point for Plaintiffs' argument that this Court clearly erred in not
Plaintiffs further assert that the Supreme Court has sanctioned the very approach they are trying to take here. In Kremens v. Bartley, the Court, after noting that a change in the law mooted the claims of class representatives, remanded to the district court "for reconsideration of the class definition, exclusion of those whose claims are moot, and substitution of class representatives with live claims." 431 U.S. 119, 135, 97 S.Ct. 1709, 52 L.Ed.2d 184 (1977) (emphasis added). Accordingly, in Plaintiffs' view, Bull justifies them swapping out class representatives whose claims have been mooted and swapping in representatives with live claims. See Catholic Social Serv., Inc. v. Ashcroft, 206 F.R.D. 654, 662 (E.D.Cal.2002) (modifying class definition and allowing substitution of new named plaintiffs following a complex series of procedural and substantive events that, absent amendment, would have rendered null certain class members' claims).
Thus, the question is whether Bull affected the fitness of the originally named representatives to represent the interests of class members now contained within subclasses 2 and 3.
Bull did affect the fitness of the original class representatives to represent the group of class members now contained within subclass 2 but not subclass 3.
Prior to Bull, class members in what is now subclass 2 were adequately represented. This is because the originally certified class drew no distinction between classification searches and non-classification searches. Any search conducted without reasonable suspicion was unlawful before Bull. Accordingly, it was not until Bull that Plaintiffs needed to have "unique" representation for class members now grouped within subclass 2. Because Bull rendered previously adequate representatives inadequate as to class members now in subclass 2, Plaintiffs are justified in seeking to add representatives whose claims are still valid.
The foregoing analysis does not hold for class members now contained within subclass 3. This is because the section 4030 claims being pursued by subclass 3 turn in large part on issues unrelated to Defendants' reason for the search. Specifically,
In support of their argument that they will be unduly prejudiced if Plaintiffs are allowed to add Vowell, Defendants assert that evidence, including videotapes showing detainee movement and phone records logging calls, is no longer available and memories will have faded. Moreover, Defendants assert that the limited evidence they do have regarding Vowell's time in custody calls into serious question the veracity of his allegations. For example, Vowell's housing card reflects that he entered the jail at 9:41 p.m., property of his was released to a friend at 1:45 a.m., and he was released no later than 4:50 a.m. the next day. This is inconsistent with Vowell's allegations that he was held for more than 10 hours before being strip searched and, during that time, was not given access to a phone. Proposed Third Am. Cmpl. ¶ 45. According to Defendants, the inconsistencies between their limited records and Vowell's story underscore the prejudice because, although discovery taken several years ago may have poked additional
The Court finds Defendants' arguments compelling with respect to Plaintiffs' attempt to add Vowell as a representative for those class members now in subclass 3 but not for subclass 2. This is because the evidence necessary to establish liability in connection with subclass 2 involves mostly straightforward facts including primarily that subclass members were searched without reasonable suspicion without having been classified for housing. Thus, the basic facts necessary to challenge Vowell's claims as a representative of subclass 2 should be reasonably available to Defendants even after the passage of several years. However, the same cannot be said of Plaintiffs' attempt to add Vowell as a representative of what is now subclass 3. Defendants will be prejudiced by having to challenge Vowell as a representative of subclass 3 because establishing a violation of section 4030 requires proving that Vowell was searched prior to having been given a reasonable opportunity of at least three hours in which to attempt to post bail. That will not involve simply consulting with a computer printout to determine time of arrest and time of search and seeing if less than three hours passed. Rather, it will involve determining whether, during the several hours he was in custody, a total time period of at least 3 hours existed when he could have made a call. Unfortunately, given how much time has passed since the events at issue, eyewitness evidence will be of questionable availability and/or utility, and various sources of other evidence (videotapes and phone logs, for example) are simply no longer available. Thus, Defendants are prejudiced by having to defend Vowell's allegations regarding the reasonableness of the opportunity or opportunities he had to post bail during his several hours in custody before being strip searched.
In light of the foregoing, the Court GRANTS Plaintiffs' Motion to Alter or Amend the Judgment in part and DENIES it in part. In particular, the Court finds that it committed clear error in preventing Plaintiffs from amending to add Vowell as a new named Plaintiff and Class Representative as to subclass 2 but not as to subclass 3. Thus, Plaintiffs are permitted to add Vowell as a named Plaintiff and class representative for subclass 2 but not subclass 3.
Defendants have moved to dismiss "all state-law strip-search claims brought by all Plaintiffs seeking damages and penalties based on alleged violations of Cal.Penal
The Court addressed this issue back in 2005-2006 and held that the City was not immune. Sept. 22, 2005 Mem. and Order (Dkt. 220) at 23-24; Feb. 23, 2006 Am. Mem. and Order (Dkt. 247) at 33. The basis for the Court's ruling was that, because section 4030 was enacted after section 844.6, "the later statute, [which] is more specific and does not limit suits [to individual defendants]" should control. Id. Notwithstanding the fact that the Court already addressed this issue, Defendants assert that the Court clearly erred and, further, that that error is revealed by subsequent decisions on this issue. Because the Court agrees that its initial decision on this matter was "clearly wrong," Defendants' Motion to Dismiss is GRANTED, and damage claims against the City arising under section 4030 are dismissed.
The precise basis for Defendants' Motion is unclear. Defendants do not specify whether the Motion to Dismiss is brought pursuant to Rule 12(b)(6) or Rule 12(b)(1), nor do they style it as a motion for reconsideration. Because the question presented here is a pure question of law that would require this Court to reverse its earlier ruling, the Court concludes that the proper standard for evaluating Defendants' Motion is the one governing motions for reconsideration.
Statutory interpretation starts with the language of the statute(s). Here, there are four statutory provisions whose interplay is important to determining whether the City is immune from damages: Cal. Gov.Code § 844.6(a)(2); Cal. Gov.Code § 820; Cal. Gov.Code § 820.2; and Cal.Penal Code § 4030.
Section 844.6(a)(2) provides in relevant part that "[n]otwithstanding any other provision of this part . . . a public entity is not liable for [a]n injury to any prisoner."
Section 820(a) provides in relevant part that, "[e]xcept as otherwise provided by statute[,] . . . a public employee is liable for injury caused by his act or omission to the same extent as a private person."
Section 820.2 provides in relevant part that, "[e]xcept as otherwise provided by statute . . . a public employee is not liable for an injury resulting from his act or omission where the act or omission was the
Section 4030, enacted after section 844, provides in relevant part as follows:
There is nothing in the plain language of these statutes that compels the conclusion that section 4030 provides an exception to section 844 immunity. Of most importance on this issue, section 4030 does not say that public entities are subject to suit or expressly abrogate immunity. Accordingly, the plain language of the relevant provisions is at least as consistent with a determination that immunity exists as with one that holds that immunity has been abrogated.
In originally ruling on this issue, this Court concluded that immunity was abrogated because, in part, an absence of immunity would mean that only "individual officers" would be subject to suit. Sept. 22, 2005 Mem. and Order (Dkt. 220) at 23-24; Feb. 23, 2006 Am. Mem. and Order (Dkt. 247) at 33. The Court felt that this result would frustrate the purpose of the legislation without a clear basis in section 4030 for drawing a distinction between the two groups—public entities and individual officers—of potential defendants.
The Court's analysis did not adequately grapple with all the relevant statutory purposes or the ways in which those purposes can be effectuated even if the City is immune from damage claims.
Section 4030's purpose is "to protect the state and federal constitutional rights of the people of California by establishing a statewide policy strictly limiting strip and body cavity searches" and allowing people whose rights were violated to bring claims. Cal.Penal Code § 4030(a), (p). Critically, that purpose can be served, even if public entities are afforded immunity from damages, because section 844 does not bar claims for injunctive relief against the public entity and damages can be obtained from individual defendants. Indeed, the
Not only are section 4030's purposes served notwithstanding public entity immunity, but section 844's purposes are served as well. Allowing damage claims against the City may further section 4030's purposes, but it does not harmonize section 4030 with section 844.6.
More than one district court to consider this issue since this Court's initial ruling has held that section 844 immunity applies in section 4030 cases. For example, Moyle v. County of Contra Costa, No. C-05-02324 JCS, 2007 WL 4287315, at *15-*16 (Dec. 5, 2007 N.D.Cal.2007) held that "claims under Penal Code section 4030 . . . were not intended to be excluded under section 844.6, even though [that] provision [] w[as] enacted after section 844.6." Moyle's reasoning focused on the California Legislature's decision not to amend section 844.6 to cover section 4030 when other amendments to section 844.6 were made. Id. (citing Kozlowski v. Sacramento Cty., No. C-04-0238 (E.D.Cal. Mar. 11, 2005)); see also Holland v. City of San Francisco, No. C10-2603 TEH, 2010 WL 5071597 (N.D.Cal. Dec. 7, 2010) ("[T]his Court interprets the legislature's inaction as preserving section 844.6's general immunity provisions, rendering them effective against section 4030(f).") (citing and disagreeing with this Court's prior holding on this issue).
Plaintiffs raise several substantive arguments as to why this Court's initial ruling on this matter was correct. The Court addresses those arguments below.
Plaintiffs first argue that, in enacting section 4030, "[t]he Legislature intended to impose civil liability on law enforcement, a public agency, for violations of its statutory protections[.]" Opp'n to Defs.' Mot. to Dismiss (Dkt. 328) at 10. This argument is not compelling for two primary reasons.
First, contrary to Plaintiffs' position, "law enforcement" is not an identifiable public agency. That phrase can be used interchangeably to refer to either or both the public entities and the individual officers. Second, no one disputes that the public entity can be sued for injunctive relief. Combined with damages claims against individual officers, this imposes substantial obligations on "law enforcement" to comply with section 4030's terms. Thus, the fact that section 4030 refers to "law enforcement" does not show that the Legislature intended to abrogate public entity immunity from damage suits.
Plaintiffs next argue that the Legislature's failure to amend section 844.6 to exclude section 4030 claims provides no evidence that it intended for section 4030 damage claims against public entities to be barred. Plaintiffs are right that, standing alone, legislative inaction with respect to amending section 844.6 is not particularly revealing. County of Los Angeles v. Workers' Comp. Appeals Bd., 30 Cal.3d 391, 404, 179 Cal.Rptr. 214, 637 P.2d 681 (1981) ("The Legislature's failure to act may indicate many things other than approval of a judicial construction of a statute....").
Plaintiffs recite the general maxim that "a general provision is controlled by one that is special, the latter being treated as an exception to the former." Estate of Mason, 224 Cal.App.3d 634, 638, 274 Cal.Rptr. 61 (1990). They reason from that proposition that, because section 4030 is the later enacted and more specific statute, it must be treated as an exception to 844.6's background immunity. The flaw in this argument is that section 4030 was silent as to public entity immunity, so the maxim simply does not apply. Indeed, in Caldwell v. Montoya, the California Supreme Court made clear that abrogation of immunity "can only be achieved by a clear indication of legislative intent that statutory immunity is withheld or withdrawn in the particular case." 10 Cal.4th 972, 986, 42 Cal.Rptr.2d 842, 897 P.2d 1320 (1995). There is no such "clear indication" in section 4030, at least as pertains to damage claims as against public entities as opposed to individuals.
Plaintiffs attempt to distinguish Caldwell on the ground that it was referring to statutes imposing general legal duties rather than statutes, like section 4030, specifically directed toward public officials and agencies. Opp'n to Defs.' Mot. to Dismiss (Dkt. 328) at 12. The Court is unpersuaded by this argument. In support of their "later enacted specific statute" argument Plaintiffs cite Bernard Osher Trust DTD v. City of Alameda, Nos. C 09-1437 SI, C 08-4575 SI, 2009 WL 2474716, at *2-*6 (N.D.Cal. Aug. 11, 2009). The statute at issue in that case, the California Corporate Securities Law, provided that "any person who willfully participates in any act or transaction" which violates the statute "shall be liable to any other person" for damages. Id. at *2 (quoting Cal. Corp. Code § 25500). Critically, the California Securities Law goes on to define "person" as, among other things, "a government, or a political subdivision of a government." Id. Indeed, in holding that the California Corporate Securities Law abrogated governmental immunity, the Bernard court noted that it (1) "specifically includes public agencies within its ambit," (2) "explicitly includes public entities in its coverage," and (3) "includ[ed] government entities in its definition of [those liable]." Id. at *4 (emphasis added). The same cannot be said of section 4030. Although "law enforcement" is broadly set out as the target of the legislation, there is no "specific" or "explicit" statement that public entities are subject to damage suits, and the term "law enforcement" is ambiguous. The Corporate Securities Law shows that the Legislature knew how to abrogate immunity for public entities, and the fact that it chose not to use similar language in section 4030 is further evidence of legislative intent not to abrogate immunity.
Plaintiffs' final argument is that granting public entities immunity from damages frustrates the purpose of section 4030, which was to create state wide policies that respect arrestee's rights. However, as already discussed, section 4030's purpose can be served with damage claims against individual personnel and injunctive relief against the public entity. Although abrogating public entity immunity from damage claims might further serve section 4030's purpose, it is not this Court's job to effectuate section 4030's purpose at the expense of the purposes served by governmental immunity. Rather, as matter of
Defendants' Motion to Dismiss the section 4030 claim against the City to the extent it seeks damages against the City is GRANTED.
June 10, 2004 Mem. and Order (Dkt. 162) at 12-13.
