Hernandez v. City of San Jose

241 F.Supp.3d 959

Juan HERNANDEZ, et al., Plaintiffs,

v.CITY OF SAN JOSE, et al., Defendants.

Case No.16–CV–03957–LHK

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

Signed March 14, 2017

Harmeet K. Dhillon, Krista L. Baughman, Gregory Richard Michael, Dhillon Law Group Inc., San Francisco, CA, for Plaintiffs.

Ardell Johnson, Matthew W. Pritchard, Office of the City Attorney City of San

Jose, San Jose, CA, Daniel Mark Siegel, Jalle H. Dafa, Siegel & Yee, Oakland, CA, for Defendants.

ORDER GRANTING IN PART WITH PREJUDICE AND DENYING IN PART MOTION TO DISMISS

Re: Dkt. No. 44

LUCY H. KOH, United States District Judge

Plaintiffs 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, Donovan Rost, Michele Wilson, Cole Cassady, Theodore Jones, Martin Mercado, and Christopher Holland (collectively, "Plaintiffs") bring this putative class action against Defendants the City of San Jose ("City"); San Jose Police Chief Edgardo Garcia ("Garcia"); Police Officers Loyd Kinsworthy, Lisa Gannon, Kevin Abruzzini, Paul Messier, Paul Spagnoli, Johnson Fong, and Jason Ta (collectively, "City Defendants"); Anthony Yi; the minor H.A.; the minor S.M.; Victor Gasca; Daniel Arciga; Rafael Medina; Anthony McBride; and Does 1–55. First Amended Complaint ("FAC"), ECF No. 35. Before the Court is the City Defendants' second motion to dismiss. ECF No. 44. Having considered the submissions of the parties, the relevant law, and the record in this case, the Court GRANTS IN PART with prejudice and DENIES IN PART the City Defendants' motion to dismiss.

I. BACKGROUND

A. Factual Background

The FAC alleges the following facts.

Plaintiffs are individuals who attended a rally for then presidential candidate Donald J. Trump ("Trump") on June 2, 2016 at the McEnery Convention Center ("Convention Center") in San Jose, California. FAC ¶¶ 62–63. At the end of the rally, as Plaintiffs were leaving the building, San Jose police and other police officers directed Plaintiffs from 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 Trump 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. When Plaintiffs reached the anti-Trump protesters, the protesters attacked. Id. ¶ 92.

Plaintiffs Hernandez and Haines–Scrodin allege that Defendant Gasca repeatedly struck them in the face. Id. ¶¶ 119–126. Plaintiff Nathan Velasquez was allegedly assaulted by Anthony Yi. Id. ¶¶ 127–39. Defendants McBride, Gasca, and Arciga also allegedly confined Plaintiff Casey against the entrance of the Marriot hotel while protesters threw a bottle, eggs, and a tomato at Plaintiff Casey. Id. ¶ 140–59. The minor I.P. was allegedly assaulted by the minor H.A. and was then allegedly denied assistance by the San Jose Fire Department. Id. ¶¶ 160–71. An unknown individual hit Plaintiff Andrew Zambetti with a bag of rocks. Id. ¶ 172–75. Plaintiffs Mark Doering, Mary Doering, Wilson, and Arigoni were assaulted. Id. ¶¶ 176–201. During the assaults, Plaintiff Wilson allegedly asked for help from a police officer who said that the police had been ordered not to intervene but only to disperse the crowd in order to avoid inciting a riot. Id. ¶¶ 198–99. Other unknown individuals threatened and intimidated Plaintiffs Greg Hyver and Todd Broome and assaulted and/or battered Plaintiffs Wong, Mercado, Holland, Jones, Rost, and Cassady. Id. ¶¶ 202–272. During these attacks, Plaintiffs allege that police officers deliberately directed Plaintiffs into dangerous areas and did not intervene when violence erupted. Id. ¶¶ 198–99.

According to the complaint, Garcia, Kinsworthy, and other unspecified actors devised the crowd-control plan for the Trump Rally and were deliberately indifferent to whether the plan caused harm to Plaintiffs. Id. ¶¶ 75, 87. As evidence of Garcia's alleged deliberate indifference, Plaintiffs claim that Garcia knew that "some violence ha[d] been reported" at other Trump Rallies in California, id. ¶ 75, and that Garcia requested additional officers through mutual aid channels to deal with the known risk of violence, id. ¶¶ 67–69, 83. Additionally, Plaintiffs allege that before the rally, Chief Garcia edited a proposed "Media Advisory" that originally announced a "zero tolerance approach to violent protesters" to instead announce only that police officers "will do everything possible to ensure the event is safe for all a[t]tendees and surrounding neighborhoods." Id. ¶ 77. Plaintiffs also allege that Garcia stated that even before the Trump Rally, Garcia knew that "we did not have the staffing to have the arrest teams and personnel to keep the parties separated." Id. ¶ 82.

Plaintiffs also claim that the police officers on duty on the night of the Trump Rally 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, which would not have occurred but for the Individual City Defendants' actions." Id. ¶ 287. Specifically, Plaintiffs allege that violence had been reported as early as 6:00 p.m. on the night of the Trump Rally, and yet police officers continued to direct Plaintiffs out of the same single exit of the convention center even after realizing that doing so placed Plaintiffs in serious danger. Id. ¶ 1. Plaintiffs also claim that the City itself is vicariously liable for the actions of its police officers on the night of the Trump Rally. Id. ¶¶ 292–96, 303–10. Plaintiffs claim that the City is liable in part because 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.

Finally, Plaintiffs make other allegations against Anthony Yi, the minor H.A., the minor S.M., Victor Gasca, Daniel Arciga, Rafael Medina, Anthony McBride, and Does 42–55. Id. ¶¶ 311–556. However, the claims against these Defendants are not before the Court because none of these Defendants have joined the instant motion.

B. Procedural History

The instant action began with a complaint filed on July 14, 2016. ECF No. 1. In the complaint, fourteen Plaintiffs asserted twenty-eight claims for relief against six named defendants. Compl. ¶¶ 153–336. The original complaint named the City of San Jose, Mayor Sam Liccardo ("Liccardo"), and Garcia as City Defendants. Id. The remaining police officers were not yet named in the original complaint, but instead were listed as Doe Defendants. Id. Plaintiffs' complaint also sought to represent a class consisting of "[a]ll persons who attended the June 2, 2016 Trump Rally at the McEnery Convention Center in San Jose, California, and exited the rally from the east-northeast exit." Id. ¶ 146.

The City Defendants filed a motion to dismiss the original complaint on August 4, 2016. ECF No. 6. The motion sought to dismiss all four claims against the City Defendants, which were as follows: (1) a claim under 42 U.S.C. § 1983 against Liccardo, Garcia, and the City for violation of Plaintiffs' rights under the First and Fourteenth Amendments (Count 1); (2) a claim for violation of the Bane Act, CAL. CIV. CODE § 52.1, against Liccardo, Garcia, and the City (Count 2); (3) a claim for violation of the Ralph Act, CAL. CIV. CODE § 51.7, against Liccardo, Garcia, and the City (Count 3); and (4) a California common law negligence claim against the City as employer of Does 1–15 (Count 4). Compl. ¶ 153–85.

On October 13, 2016, the Court granted in part and denied in part the motion to dismiss. ECF No. 30. The Court dismissed Plaintiffs' § 1983 claims because the Court found that Plaintiffs had not sufficiently alleged that Liccardo and Garcia had acted with malicious intent or targeted Plaintiffs because of their political affiliations. Id. at 7–13.The Court also found that Plaintiffs had not alleged a municipal policy sufficient to render the City of San Jose vicariously liable for the actions of Liccardo, Garcia, or the police officers. Id. at 13–18. The Court further found that Plaintiffs' Bane Act and Ralph Act claims were based on essentially the same allegations as Plaintiffs' § 1983 claim, and therefore the Court dismissed the Bane Act and Ralph Acts claims. Id. at 18–21. However, the Court found that Plaintiffs had sufficiently alleged a negligence claim against the Doe police officers and the City. Id. at 21–25.

After the Court granted the motion to dismiss in part, Plaintiffs filed an Amended Complaint ("FAC"). ECF No. 35. The FAC added numerous Plaintiffs, Defendants, and causes of action. The FAC contains 43 claims by 20 individual plaintiffs against 17 named defendants and 55 Doe defendants. ECF No. 35. As relevant to the instant motion, the FAC omitted Liccardo as a Defendant but added police officers Loyd Kinsworthy, Lisa Gannon, Kevin Abruzzini, Paul Messier, Paul Spagnoli, Johnson Fong, and Jason Ta (collectively, "named police officers") as defendants. Id. The FAC also asserted claims against Does 1–15, who are other unidentified police officers present at the rally. Therefore, under the FAC the City Defendants are the City of San Jose, Police Chief Edgardo Garcia, and Police Officers Loyd Kinsworthy, Lisa Gannon, Kevin Abruzzini, Paul Messier, Paul Spagnoli, Johnson Fong, and Jason Ta, as well as Does 1–15.

The FAC asserts four claims against the City Defendants: (1) a claim under 42 U.S.C. § 1983 against Garcia, the named Police...