1 Mark E. Merin (State Bar No. 043849)

LAW OFFICE OF MARK E. MERIN

2

1010 F Street, Suite 300

Sacramento, California 95814

3 Telephone: (916) 443-6911

Facsimile: (916) 447-8336

4

E-Mail:

mark@markmerin.com

5 Alan Schlosser (State Bar No. 049957)

Michael T. Risher (State BarNo. 191627)

6

Ijnda Lye (State Bar No. 215584)

Novella Coleman (State Bar No. 281632)

7

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF NORTHERN CALIFORNIA

8 39 Drumm Street

San Francisco, California 94111

9

Telephone: (415) 621-2493

Facsimile: (415) 255-1478

10

E-Mail:

aschlosser@aclunc.org

mrisher@aclunc.org

11

lIye@aclunc.org

ncoleman@aclunc.org

12

Meredith Wallis (State Bar No. 261457)

13

1057 East 33rd Street

Oakland, California 94610

14 Telephone: (713) 724-4047

E-Mail:

mewallis@stanford.edu

15 Attorneys jor Plaintiffs

16

CROWELL & MORING LLP

17

1. Daniel Sharp (CSB No. 131042, dsharp@crowell.com)

Kevin P. O'Brien CCSB No. 215148, kobrien@crowell.com)

18

Suzanne E. Rode (CSB No. 253830, srode@crowell.com)

19

275 Battery Street, 23rd Floor

San Francisco, CA 94111

20

Telephone: 415.986.2800

Facsimile: 415.986.2827 21

PORTER

5 COT T

22

A PROFESSIONAL CORPORATION

23

Nancy J. Sheehan, (CSB No. 109419, nsheehan@porterscott.com)

Terence 1. Cassidy, CCSB No. 099180, tcassidy@porterscott.com)

24

Katherine L.M. Mola, CCSB No. 264625, kmola@porterscott.com)

350 University Avenue, Suite 200

25

Sacramento, California 95825

(916) 929-1481 (telephone)

26

(916) 927-3706 (facsimile)

27 Attorneys for Defendant

28

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF SEITLEMENT; CASE NO. 212-CV-00450

1

2 UNITED STATES DISTRICT COURT
3 EASTERN DISTRICT OF CALIFORNlA
4

5 ENOSH BAKER, et ai., ,
6
Plaintiffs, 7
v. 8
THE REGENTS OF THE UNIVERSITY OF 9 CALIFORNIA,

10

Defendant.

Case No. 2: 12-cv-004S0 JAM EFB
[~] ORDER GRANTING
PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT, CERTIFYING THE SETTLEMENT CLASS, APPROVING CLASS NOTICE AND SCHEDULING FINAL APPROVAL HEARING

11

12

The Court having reviewed and considered the Joint Application for Preliminary Approval

13

of Settlement ("Joint Application"), filed on September 26, 2012, by Plaintiffs Enosh Baker,

14

David Buscho, Alyson Cook, Adam Fetterman, Sarena Grossjan, Deanna Johnson, Sophia

IS

Kamran, Elizabeth Lara, Ian Lee, Soo Lee, Evan Loker, Thomas Matzat, Darren Newell, Charles

16

Parker, William Roberts, Fatima Sbeih, Evka Whaley-Mayda, Kase Wheatley, Edward Geoffrey

17

Wildanger, Noah Wiley, and Jordan Wilheim (collectively "Plaintiffs"); and Defendant The

18

Regents of the University of California (the "Regents") (all collectively the "Parties"), and having

19

reviewed and considered the terms and conditions for the proposed settlement (the "Settlement")

20

as set forth in the Stipulation for Settlement dated September 26, 2012, a copy of which has been

21

submitted as Exhibit A to the Joint Application, and on the basis of such submissions, together

22

with any other submissions in support of the Joint Application, and for good cause shown, it is

23

hereby ORDERED:

24

PRELIMINARY APPROVAL OF SETTLEMENT

25

1. The terms of the Settlement are preliminarily approved, subject to further

26

consideration at the Final Approval Hearing provided for below. The Court concludes that the

27

Settlement is sufficiently within the range of reasonableness to warrant the preliminary

28

-1-

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT; CASE NO. 212-CV-004S0

SFACTIVE-902852642.1

certification of the proposed class described in the Stipulation for Settlement, the scheduling of a

2
hearing for final approval of the settlement, and the circulation of the notice to the putative class

3 members, each as provided for in this order.

4 PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS
5

2. For purposes of settlement only, pursuant to Federal Rules of Civil Procedure 6

23(a) and 23(b)(3), the action titled Baker, et al. v. The Regents ofthe University ofCalifornia, 7

Case No. 12-cv-00450-JAM-EFB, is preliminarily certified as a class action on behalf of the 8

following persons (collectively, the "Class" and each of the Class a "Class Member"): 9

All persons who were arrested or directly sprayed with pepper

10

spray by police officers working for or on the behalf of the

University of California, Davis Police Department on November

II

18,2011, on the area known as "the Quad," on the University of

12

California, Davis campus.

13

3. Plaintiffs Enosh Baker, David Buscho, Alyson Cook, Adam Fetterman, Sarena

14

Grossjan, Deanna Johnson, Sophia Kamran, Elizabeth Lara, Ian Lee, Soo Lee, Evan Loker,

15

Thomas Matzat, Darren Newell, Charles Parker, William Roberts,Fatima Sbeih, Evka Whaley-

16

Mayda, Kase Wheatley, Edward Geoffrey Wildanger, Noah Wiley, and Jordan Wilheim

17

(hereinafter "Representative Plaintiffs") are appointed as representatives of the Class.

18

4. Mark Merin of the Law Office of Mark E. Merin, the American Civil Liberties

19

Union Foundation of Northern California ("ACLU"), and Meredith Wallis are appointed and

20

designated as counsel for the Class.

21

5. This certification of the Class, appointment of the Representative Plaintiffs and

22

appointment and designation of Class Counsel are solely for purposes of effectuating the

23

Settlement. If the Stipulation for Settlement is terminated or is not consummated for any reason,

24

the foregoing certification of the Class, appointment of the Representative Plaintiffs and

25

designation of Class Counsel shall be void and of no effect and the Parties to the Stipulation for

26

Settlement shall be returned to the status each occupied before entry of this order without

27

prejudice to any legal argument that any ofthe Parties to the Stipulation for Settlement might

28

have asserted but for the Stipulation for Settlement.

-2-

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL Of" SETTLEMENT; CASE NO. 212-CV·004S0

SFACTIVE·902852642.i

6. Based on the Court's review of the Joint Application and supporting materials, the

2 Court preliminarily finds that the proposed Class satisfies Rules 23(a), 23(b)(2) and 23(b)(3).

3 FINAL APPROVAL HEARING
4

7. A hearing shall be held in Courtroom 6, United States District Court, Eastern

5

californi~q: ~ District of

30 /1, I>! on

1,201!, to consider whether the

6

settlement should be given final approvaL 7

8. Objections by class members who do not timely elect to exclude themselves from 8

the class to the proposed settlement should be considered if filed in writing with the clerk on or

9

before

_~~btr

t1..,

to,

z..

~
-.

.

10

9. At the hearing, class members who do not timely elect to exclude themselves from 11

the class may be heard orally in support of or in opposition to the settlement, provided such

12

N(),,~ I~Jlt2J.~ten persons file with the clerk by

notification of the desire to appear

13

personally, indicating (if in opposition to the settlement) briefly the nature of the objection. 14

10. Counsel for the Class and for the Defendant should be prepared at the hearing to 15

respond to objections filed by such class members and to provide other information, as 16

appropriate, bearing on whether or not the settlement should be approved. 17

18

19 20

NOTICE TO SETTLEMENT CLASS

DJrJ,u 11. By

Il,

~I

~
z"Defendant's

counsel

shall

cause

to

be

sent

via

electronic

mail

21

in the name of the clerk to all students enrolled in one or more classes at the Davis campus during

22

the Fall Quarter of2011 for whom the Regents have a valid e-mail address, the Notice attached as

23
24

Exhibit B to the Joint Application.

BylU.kr/I,~ndant's 12.

counsel shall cause to be published once each in the

25

UC Davis Aggie and the Davis Enterprise the Publication Notice in substantially the same style

26

and format as the summary notice attached as Exhibit C to the Joint Application.

27

28

-3-

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT; CASE NO.2: 12-CV-004S0

SFACTIVE-902852642.1

IT IS SO ORDERED. 2

3
4 Date~ il,2012

5

6

7

Approved as to form:

8 Dated: September 26, 2012
9

10

11

12
Dated: September 26,2012 13

14

15

16

17 Dated: September 26,2012 18

19

20

21

22

23

24

25

26

27

28

SFACTIVE-902852642.1

LAW OFFICE OF MARK E. MERIN
By: /s/ "Mark E. Merin" Mark E. Merin Attorneys for Plaintiffs
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
By: /s/ "Alan Schlosser" Alan Schlosser Michael Risher Attorneys for Plaintiffs
MEREDITH WALLIS
By: lsi "Meredith Wallis"
Meredith Wallis Attorrieys for Plaintiffs

-4-

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF SEITLEMENT; CASE NO. 212-CV-00450

· ,
Dated: September 26,2012
2
3 4 5
Dated: September 26,2012 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
22
23 24 25 26
27 28
SFACTIVE-902852642.1

CROWELL & MORING LLP
By: lsi "J. Daniel Sharp" 1. Daniel Sharp Attorneys for Defendant The Regents of the University of California
PORTER SCOTT LLP
By: lsi "Nancy 1. Sheehan" Nancy J. Sheehan Terence J. Cassidy Attorneys for Defendant The Regents of the University of California

-5-

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT; CASE NO.2: 12-CV-00450

 
 Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 1 of 21

1 Mark E. Merin (State Bar No. 043849)

LAW OFFICE OF MARK E. MERIN

2 1010 F Street, Suite 300

Sacramento, California 95814

3 Telephone: (916) 443-6911

Facsimile: (916) 447-8336

4 E-Mail:

mark@markmerin.com

FILED

5 Alan Schlosser (State Bar No. 049957)
Michael T. Risher (State Bar No. 191627) 6 Linda Lye (State Bar No. 215584)
Novella Coleman (State Bar No. 281632) 7 AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN CALIFORNIA 8 39 Drumm Street

SEP 27 2012

EASCTLEERRNK.DUIS.ST.RDICITSOTRF iCCT1:,FCO~NIA

BV

I .

DEPUTY ClSAk

"

San Francisco, California 94111

9 Telephone: (415) 621-2493

Facsimile: (415) 255-1478

10 E-Mail:

aschlosser@aclunc.org

mrisher@ac1unc.org

11

llye@ac1unc.org

ncoleman@aclunc.org 12

Meredith Wallis (State Bar No. 261457) 13 1057 East 33rd Street

Oakland, California 94610

14 Telephone: (713) 724-4047

E-Mail: 15

mewallis@stanford.edu

Attorneys for Plaintiffs

16

UNITED STATES DISTRICT COURT 17

EASTERN DISTRICT OF CALIFORNIA 18

ENOSH BAKER, DAVID BUSCHO, ALYSON 19 COOK, ADAM FETTERMAN, SARENA

Case No.2: 12-CV-00450-JAM-EFB

GROSSJAN, DEANNA JOHNSON, SOPHIA 20 KAMRAN, ELIZABETH LARA, IAN LEE, SOO
LEE, EVAN LOKER, THOMAS MATZAT, 21 DARREN NEWELL, CHARLES PARKER,
WILLIAM ROBERTS, FATIMA SBEIH, EVKA 22 WHALEY-MAYDA, KASE WHEATLEY,
EDWARD GEOFFREY WILDANGER, NOAH

fPR@Il88t5D] SECOND AMENDED CLASS ACTION COMPLAINT FOR DAMAGES FOR VIOLATION OF CIVIL RIGHTS WITH SUPPLEMENTAL CLAIMS FOR VIOLATION OF THE CALIFORNIA STATE CONSTITUTION AND STATUTES

23 WILEY, and JORDAN WILHElM, and all others similarly situated,

JURY TRIAL DEMANDED

24

Plaintiffs, 25

vs.

26

REGENTS OF THE UNIVERSITY OF

27 CALIFORNIA,

28

1
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED Baker, et al. vs. Regents ofthe University ofCalifornia; United States District Court, Eastern District ofCalifornia, Case No.2: 12-CV-00450-JAM-EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 2 of 21

1

INTRODUCTION

2

On November 18, 2011, University of California at Davis campus police attacked a peaceful 3

assembly at the center of the campus quad, arresting many students without probable cause and shooting 4

high-concentration pepper spray directly into the faces of students who were engaging in nonviolent 5

protest The actions of the police provoked shock and outrage nationally, in part because the video 6

footage was so reminiscent of the infamous images of police in the South using fire hoses to spray and 7

disperse nonviolent student sit-ins during the civil rights movement. 8

The 21 plaintiffs in this action, as well as all others similarly situated, were protesting university 9

privatization, distribution of resources, tuition hikes, police brutality and other onerous public policies 10

adopted by the University administration and the Board of Regents. Their protest was an integral part of 11

continuing, vigorous assembly and free speech activities which had been conducted by students for 12

weeks at the same time the nationwide Occupy Wall Street movement mobilized thousands nationwide. 13

Nineteen of the named plaintiffs were u.c. Davis students at the time; the other two were recent 14
graduates. 15

This action seeks the following relief: a declaration from the Court that campus policies and 16

practices that led to the abuse of the plaintiffs and others offend both the state and federal constitutional 17

guarantees of the rights to free speech and assembly and that the pepper-spraying and arrests of plaintiffs 18

violated their state and federal constitutional rights; an injunction to prevent repetition of such a response 19

to a non-violent protest; and compensatory and punitive damages against the individual perpetrators of 20

the illegal acts and their superiors who ordered, directed and/or condoned this outrageous conduct. 21
I. JURISDICTION AND VENUE 22

1.

Because this civil-rights action arises under the United States Constitution, this Court has

23

jurisdiction under 28 U.S.C. §§ 1331 and, 1343(a)(3), (4). This Court has supplemental jurisdiction over 24

the state-law claims under 28 U.S.c. § 1367. 25

26

2. At all times pertinent to this Complaint and in taking all of the actions described in this

27 Complaint, Defendant, THE REGENTS OF THE UNIVERSITY OF CALIFORNIA (hereinafter

28 sometimes referred to as "THE REGENTS" or "REGENTS") and those operating under their direction

2
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED
Baker, et al. vs. Regents 0/the University o/California; United States District Court, Eastern District of Califomia, Case No.2: 12-CV-004S0-JAM-EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 3 of 21

1 and control, acted and threatened to act under color of state law.
2

3

3. The events giving rise to this action occurring in Yolo County, California which is located

within this district. 4

II. PARTIES AND INVOLVED PERSONS 5

6

4. Plaintiff ENOSH BAKER graduated from U.C. Davis in 2009 and, at all times material to

7 this Complaint, was teaching on campus and awaiting decision on his graduate program application. He

8 was participating in a peaceful demonstration on the U.C. Davis campus on November 18,2011, when he

nc. 9 was picked up by

Davis police officers, thrown forcefully to the ground, handcuffed behind his

10 back, and illegally arrested. His head struck a sprinkler head during the arrest.

11

5.

nc. Plaintiff DAVID BUSCHO was a student at Davis who, while participating in a

nc. 12 peaceful assembly on Davis campus on November 18, 2011, was sprayed repeatedly with pepper

nc. 13 spray by Davis police officers Lt. John Pike and/or Officer Alexander Lee without legal cause or

14 justification.

15

6.

U.c. Plaintiff ALYSON COOK was a student at Davis who was participating in a

u.c. 16 peaceful assembly on the

Davis campus on November 18,2011, when she was illegally arrested,

17 handcuffed behind her back by U.C. Davis police officers and transported to the campus jaiL

18

7.

nc. Plaintiff ADAM FETTERMAN was a Davis student who was participating in a

19

peaceful demonstration on the U.C. Davis campus on November 18,2011, when he was pepper sprayed

20
u.c. without legal cause or justification by Davis police officer Lt. John Pike and/or Officer Alexander

21

Lee.

22

23

8. Plaintiff SARENA GROSSJAN was a U.C. Davis student who was participating in a

24 peaceful demonstration on the U.C. Davis campus on November 18,2011, when she was pepper sprayed

25 without legal cause or justification by U.C. Davis police officer Lt. John Pike and/or Officer Alexander

26 Lee.

27

9. Plaintiff DEANNA JOHNSON was a student at U.C. Davis who was participating in a

28 peaceful demonstration on U.C. Davis campus on November 18,2011, when she was pepper sprayed

3
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED Baker, et at. vs. Regents olthe University o/Calilornia; United States District Court, Eastern District of Califomia, Case No. 2:12-CV-00450-JAM-EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 4 of 21

1 without legal cause or justification by V.C. Davis police officer Lt. John Pike andlor Officer Alexander
2
Lee.
3

4

10. Plaintiff SOPHIA KAMRAN was a student at V.C. Davis who was participating in a

5 peaceful demonstration on U.C. Davis campus on November 18, 2011, when she was pepper sprayed

6 without legal cause or justification by U.C. Davis police officer Lt. John Pike andlor Officer Alexander

Lee. 7

8

11. Plaintiff ELIZABETH LARA was a student at U.C. Davis who was participating in a

9 peaceful assembly on the V.C. Davis campus on November 18, 2011, when she was illegally arrested by

10 D.C. Davis police officers, handcuffed painfully behind her back and transported to the campus jail.

11

12. Plaintiff IAN LEE was a student at U.C. Davis who was participating in a peaceful

12 demonstration on the V.C. Davis campus on November 18,2011, when he was pepper sprayed by U.C.

13 Davis police officer Lt. John Pike andlor Officer Alexander Lee without legal cause or justification and

14 then pinned to the ground by defendant Pike.

15 13. PlaintiffSOO LEE was a student at D.e. Davis who was participating in a peaceful
16 demonstration on the D.C. Davis campus on November 18, 2011, when she was pepper sprayed by U.C.
17 Davis police officer Lt. John Pike andlor Officer Alexander Lee without legal cause or justification.
18

19

14. Plaintiff EVAN LOKER was a student at U.C. Davis and was participating in a peaceful

20 demonstration on the U.C. Davis campus on November 18, 2011, when he was pepper sprayed by u.e.

21 Davis police officer Lt. John Pike andlor Officer Alexander Lee without legal cause or justification.

22

15. Plaintiff THOMAS MATZATwas a student at U.C. Davis who was participating in a

23 peaceful demonstration on the V.C. Davis campus on November 18, 2011, when he was selected for

24 illegal arrest, then handcuffed painfully behind his back and grabbed and dragged by D.C. Davis police 25 officers to a police car and transported to campus jail.

26

16. Plaintiff DARREN NEWELL was a student at V.C. Davis who was participating in a

27 peaceful demonstration on the D.C. Davis campus on November 18, 2011, when he was targeted for

28 illegal arrest. Two D.C. Davis police officers had him stand up and they then handcuffed his hands

4
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED Baker, et ai. vs. Regents qfthe University qfCalifornia; United States District Court, Eastern District of California, Case No.2: 12-CV-OO4S0-JAM-EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 5 of 21

1 behind his back, put him into a patrol car and transported him to jail.
2

3

17. Plaintiff CHARLES PARKER was a student at V.C. Davis who was participating in a

4 peaceful demonstration on the V.C. Davis campus on November 18, 2011, when he was targeted for

5 illegal arrest. Three D.C. Davis police officers, slammed him to the ground, kneed him and kneeled on

6 him, then handcuffed him behind his back and dragged him to a police car in which he was placed and

7 then driven to the campus jail. He was denied medical assistance and access to medication while

detained in the campus jail. 8

9

18. Plaintiff WILLIAM ROBERTS was a student at D.C. Davis and was participating in a

10 peaceful demonstration on the V,C. Davis campus on November 18, 2011, when he was pepper-sprayed

11 without legal cause or justification by D.C. Davis police officer Lt. John Pike and/or Officer Alexander

12 Lee.

13

19. Plaintiff FATIMA SBEIH was a student at V.C. Davis and was participating in a peaceful

14 demonstration on the D.C. Davis campus on November 18, 2011, when she was pepper sprayed, without

15 legal cause or justification, by V.C. Davis police officer Lt. John Pike and/or Officer Alexander Lee.

16 20. PlaintiffEVK.A WHALEY-MAYDA was a student at D.C. Davis and was participating in
17 a peaceful demonstration on the D.c. Davis campus on November 18,2011, when she was pepper-
18 sprayed, without legal cause or justification, by D.C. Davis police officer Lt. John Pike and/or Officer
19 Alexander Lee.
20

21

21. PlaintiffKASE WHEATLEY was a student at V.C. Davis and was participating in a

22 peaceful demonstration on the D.C. Davis campus on November 18,2011, when he was pepper sprayed,

23 without legal cause or justification, by D.C. Davis police officer Lt. John Pike and/or Officer Alexander

24 Lee, then handcuffed behind his back and falsely arrested by U.C. Davis police officers, placed into a

police car and transported to the campus jail. 25

26

22. Plaintiff EDWARD WILDANGER was a student at U.C. Davis and was participating in a

27 peaceful demonstration on the D.C. Davis campus on November 18, 2011, when, without legal cause or

28 justification, he was pepper sprayed by D.C. Davis police officer Lt. John Pike and/or Officer Alexander

5
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED Baker, et al. vs. Regents ofthe University ofCalifornia; United States District Court, Eastern District ofCalifornia, Case No.2: 12-CV-00450-JAM-EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 6 of 21

1 Lee.
2

3

23. PlaintiffNOAH WILEY was a student at U.C. Davis and was participating in a peaceful

4 demonstration on the U.C. Davis campus on November 18,2011, when he was pepper sprayed without

5 legal cause or justification by U.C. Davis police officer Lt. John Pike and/or Officer Alexander Lee, then

6 falsely arrested by U.C. Davis police officers and transported to the campus jail.

7

24. Plaintiff JORDAN WILHElM is a u.c. Davis alumnus who was graduated in the spring

8 of2011 and was visiting campus on November 18, 2011, when he witnessed and participated in a

9 peaceful demonstration on the U.C. Davis campus. During that demonstration he was handcuffed behind

10 his back and falsely arrested by U.C. Davis police officers and then transported to campus jail.

11

25. Plaintiff CLASS MEMBERS are all of those persons, other than and in addition to those

12 persons named as plaintiffs herein, who were present on the U.C. Davis Quad on the afternoon of

13 November 18,2011, who were either arrested or directly sprayed with pepper spray by one of the U.C.

14 Davis campus police officers.

15 26. Defendant REGENTS is an agent and instrumentality of the State of California, composed
16 of a 26 member board, which is responsible for all of the acts and omissions of the Chancellors of the
17 various campuses of the University of California, including the University of California at Davis, and of
18 the acts and omissions of all agents and employees of the University of California at Davis, including all
19 ofthose individuals named in paragraphs 27 through 34 of this Second Amended Complaint.
20

21

27. LINDA KATEHI is the Chancellor of the University of California at Davis. She operates

22 under the control and direction and pursuant to the policies, practices and procedures of Defendant

23 REGENTS which is liable for her acts and omissions.

24

28. RALPH J. HEXTER is the Provost and Executive Vice Chancellor of the University of

25 California at Davis.· He operates under the control and direction and pursuant to the policies, practices

26 and procedures of Defendant REGENTS which is liable for his acts and omissions.

27

29. FRED WOOD is the Vice Chancellor for Student Affairs at the University of California at

28 Davis. He operates under the control and direction and pursuant to the policies, practices and procedures

6
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED Baker. et at. vs. Regents ofthe University ofCalifornia; United States District Court, Eastern District of California, Case No.2: 12-CV-OO450-JAM-EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 7 of 21

1 of Defendant REGENTS which is liable for his acts and omissions.
2

3

30. JOHN MEYER is the Vice Chancellor of Administration and Resource Management at

4 the University of California at Davis, and as such exercises administrative responsibility over the

5 University of California at Davis Police Department. He operates under the control and direction and

6 pursuant to the policies, practices and procedures of Defendant REGENTS which is liable for his acts

and omissions. 7

8.

31. ANNETTE SPICUZZA, at all times material hereto, was the Chief of the University of

9 California at Davis Police Department. As a result of the actions described in this complaint,

10 SPICUZZA was placed on leave by the University. She operates under the control and direction and

11 pursuant to the policies, practices and procedures of Defendant REGENTS which is liable for her acts

12 and omissions.

13

32. JOHN PIKE is or was a Lieutenant in the University of California at Davis Police

14 Department. As a result of the actions described in this complaint Defendant PIKE was placed on leave

15 by the University. He operates under the control and direction and pursuant to the policies, practices and

16 procedures of Defendant REGENTS which is liable for his acts and omissions.

17 33. BARRY SWARTWOOD is a Lieutenant in the University of California at Davis Police
18 Department. On information and belief, Lt. SWARTWOOD was the Incident Commander for the
19 November 18, 2011 operation. He operates under the control and direction and pursuant to the policies,
20 practices and procedures of Defendant REGENTS which is liable for his acts and omissions.
21

22

34. ALEXANDER LEE is a police officer in the University of California at Davis Police

23 Department. He operates under the control and direction and pursuant to the policies, practices and

24 procedures of Defendant REGENTS which is liable for his acts and omissions.

25

35. All of the police officers, administrators, and/or other personnel employed by Defendant

26 REGENTS and/or the University of California at Davis who are identified in this complaint and or were

27 responsible for the acts alleged herein, at all times material to this complaint, were acting within the

28 course and scope of their employment and were directly involved in the actions which caused injury and

7
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED Baker, et aL vs. Regents ofthe University ofCalifornia; United States District Court, Eastern District ofCalifomia, Case No.2: 12-CV-OO450-JAM·EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 8 of 21

1 damages to plaintiffs herein.
2

TIl. STATEMENT OF FACTS

3

36. On November 16, D.C. Davis students joined others in San Francisco to demonstrate at a 4

scheduled Board of Regents meeting, protesting university privatization, tuition increases, and the brutal 5

treatment of demonstrators on Berkeley's campus the previous week. They returned to campus and, on 6

November 17, a general assembly of students agreed to set up symbolic tents on the quad and to continue 7

to meet openly, to "occupy the quad" to discuss and study university privatization, tuition hikes, and their 8

relation to other issues of macro political and social importance, and to consider what they could do to 9

change conditions which had brought people together in support of the Occupy Wall Street Movement. 10

11

37. A group of students set up tents on the quad and the "Occupation of the Quad" began.

12 Shortly after the first tents were erected, D.C. Davis administrative employees delivered to some of the

13 students on the quad a notice that included a campus "no overnight camping" policy. The notice was

14 discussed and the group concluded that they were symbolically "occupying the quad" in support of and

15 in solidarity with the 99% championed by the Occupy Wall Street movement.

16

38. On the evening of November 17, the Associated Students of the University of California

17 at Davis (ASUCD) endorsed the "occupation of the quad,"

18

39. On November 18, in the afternoon, Police Chief SPICUZZZA, accompanied by another

19 campus agent or employee, delivered a letter from Chancellor KATEHI directing students to remove the

20 tents by 3:00 p.m. "in interest of safety, respect for our campus environment and in accordance with our

21 Principles of Community."

22
40. Students held another assembly, discussed the letter the Chancellor had delivered, and 23
many decided to remove their tents and did so. Others resolved to remain.
24

25

41. Shortly before 3:00 p.m., a large number ofpolice in riot gear armed with long batons,

26 pepper-ball guns and other weapons were seen massing in formation adjacent to the quad. The students

27 moved the remaining tents to the circle on the Centennial Walk, a concrete pathway in the middle of the

28 campus quad, and stood around them.

8
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED Baker, et al. vs. Regents ofthe University qfCalifornia; United States District Court, Eastern District of California, Case No.2: 12-CV-OO450-JAM-EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 9 of 21

1 42, The officers advanced on the students as can be seen on any number of videotapes, They
2
began pushing students away, or throwing them to the ground, Some of the officers disassembled or
3 destroyed the tents. As the tents were being removed, students sat down in a large circle. Classes were
4 letting out and hundreds of additional students swarmed out of their buildings to watch what was
5 happening.
6

7

43. The campus officers pointed to specific students, arrested them and began grabbing them

8 and hauling them off to jail. Plaintiff BAKER was the first to be grabbed and thrown to the ground by

9 two police officers. He hit his head on a sprinkler fixture as he was thrown to the ground and his hands

10 were tightly zip tied together behind his back as he was taken into custody and placed into a police car.

11

44. Plaintiff PARKER was targeted by three police officers and grabbed. His hands were

12 painfully zip tied behind his back, exacerbating a prior military combat injury, and he was placed into a

13 police car where he joined plaintiff BAKER and plaintiff LARA.

14

45. Plaintiff LARA had arrived immediately prior to the police advancing on those students

15 standing around the circle and joined the circle. When the police reached the crowd she was thrown to

16 the ground by police officers, her hands were zip tied behind her, and she was arrested and taken to the

17 police car which then transported her, PARKER and BAKER to the police station. Plaintiffs' hands were

18 all zip tied, some zip ties were particularly tight, cutting offblood flow, but the jailers did not have the

19 special equipment needed to cut the plastic ties. Eventually, the zip ties were cut and removed.

20 46. When the officers started to encircle the group of protesters, Plaintiff COOK was tapped
21 on the head by an officer who instructed other officers to "take her." She was pushed to the ground by an
22
officer, her arms were bent behind her back and zip-tie restraints were applied to her hands. She was left
23 lying on the ground for a few minutes before being placed in a vehicle and transported to the campus
24 police station.

25

26

47. As the group of students was being pushed by officers, students began to sit down in a

27 line. Officers were stepping over the seated students, who did nothing to stop them. Then PIKE ordered

28 the students to leave or stated they would be "shot." As is discernible from audio tapes of his reaction,

9
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED Baker, et al. vs. Regents ofthe University ofCalifomia; United States District Court, Eastern District of California, Case No, 2:12-CV-004S0-JAM-EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 10 of 21

1 Plaintiff WHEATLEY responded: "You're going to shoot us if we don't leave?"
2

3

48. PIKE then shook a canister of pepper spray like a can of aerosol paint, stepped over the

4 line of sitting, crouching students and walked up and down the line repeatedly dousing Plaintiffs with

orange colored pepper spray, mostly from a distance of one-to-two feet. Students watching the scene 5

screamed or shouted: "Shame." 6

7

49. Another officer, ALEXANDER LEE, then approached the line of seated demonstrators

8 from behind and began spraying them with a separate canister of pepper spray. On information and

9 belief, LEE was ordered to do so by PIKE.

10

50. Documents that the University of California has subsequently released in response to a

11 request for public records indicate that the substance used was Defense Technology's MK-9 Magnum

12 spray, with a major Capsaicinoid concentration of .7%. The single page of manufacturer's information

13 that the University was able to provide states that the minimum recommended distance for this

14 formulation is 6 feet. The University states that it has no other package inserts, warnings, or instructions

15 relating to this product, although California law requires that all such substances sold in California be

16 accompanied by printed instructions for use, first aid information, and safety information. See Cal. Penal

17 Code § 2281O(e)(4), (f) (former § 12403.7).

18 51. PlaintiffMATZAr's hands were zip-tied behind his back and he was arrested along with
19 Plaintiff WHEATLEY who had been pepper-sprayed and both had been transferred to jail by several
20
campus police officers.

21

22

52. Plaintiffs BUSCHO, FETTERMAN, GROSSJAN, JOHNSON, KAMRAN, IAN LEE,

23 SOO LEE, LOKER, ROBERTS, SBEIH, WHALEY-MAYDA, WILDANGER and CLASS MEMBERS

24 were pepper sprayed by PIKE, LEE, and other officers and left to deal with their burning eyes, faces and

25 skin. Neither the University nor the police provided adequate medical attention on the scene to any of

26 the students who had been sprayed.

27

53. Members of the campus student body administered first aid to Plaintiffs who could not see

28 and were disoriented. PlaintiffWHALEY-MAYDA was transported by ambulance to the hospital where

10
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED Baker. et at. vs. Regents o/the University o/California; United States District Court, Eastern District of California, Case No.2: 12-CV-004S0-JAM-EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 11 of 21

1 her eyes were irrigated and a skin rash from the pepper spray was treated.
2

3

54. As reported by the University, ten persons were arrested, all on the same charges: Failure

4 to Disperse from as Unlawful Assembly (Cal. Penal Code § 409). They were released after several hours

5 and all were assigned the same Court date for arraignment, January 31,2012. Prior to that date, however,

6 theDistrict Attorney ofYolo County announced that no complaints would be filed against any of the

7 persons arrested. As ofthe filing of this complaint none of the plaintiffs has been charged with any

8 crime arising out of the November 18 protest.

9

55. At the time campus police started arresting people, a large number of students had

10 gathered in a non-violent assemblage, which remained so but for the violence used by campus police

11 officers, PIKE, SWARTWOOD, LEE and other campus police officers, inclusive, to arrest non-resisting

12 persons. All of those persons, who assembled, including plaintiffs who were pepper sprayed, were

13 illegally required to disperse from the campus quad by helmeted police enforcing their erroneous

14 decision that the gathering was unlawful.

15

56. Defendant REGENTS and KATEHI, HEXTER, WOOD, MEYER, and SPICUZZA are

16 responsible for making decisions which set in motion an operation, executed by PIKE, SWARTWOOD,

17 LEE and other campus police officers, that any reasonable person in their positions would have known

18 would lead to the unlawful use of force against, and arrest or dispersal of, the demonstrators, including

19 Plaintiffs. Specifically, each ofthese named agents and employees of THE REGENTS was a part of an 20 administrative team at U.c. Davis that collectively made decisions that led to the violations, including

21 but not limited to the decision to dispatch the police to remove the tents and demonstrators without legal
22 authority to do so, and the decision that the operation take place in mid-afternoon, when large crowds of

23 students were likely to gather in response to the police actions, even though they had been advised that

24 the operation should occur at night.

25 57. Defendant REGENTS, and KATEHI, MEYER and SPICUZZA had an affirmative duty to
26
properly screen, train and supervise defendants PIKE, SWARTWOOD, LEE and the other campus police
27 officers involved in the incident, but failed to do so, resulting in the actions and violations ofthe rights of
28
Plaintiffs and others described herein.

11
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED
Baker, et at, vs. Regents ofthe University ofCalifomia; United States District Court, Eastern District of California, Case No.2: 12-CV-00450-JAM-EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 12 of 21

1 58. Defendant REGENTS and SPICUZZA are responsible for supervising and controlling the
2
actions of police officers PIKE, SWARTWOOD, LEE and all other unnamed campus police officers.
3 Defendant REGENTS and SPICUZZA are liable for all injuries described herein for acquiescing to
4 police officers' choice to wear riot gear and cany pepper spray which she knew or should have known
5 would lead to the excessive use of force against protestors, and for failing to stop the officers under their
6 command from violating the rights of Plaintiffs and others.
7

8

59. SPICUZZA, PIKE, and SWARTWOOD were present when the violations took place and

9 were responsible for supervising and controlling the actions of subordinate police officers and had a duty

10 to intervene and stop the unlawful conduct. Their failure to do this resulted in the actions and violations

11 of the rights of Plaintiffs and others described herein.

12

60. PIKE and LEE are responsible for pepper-spraying the students and are liable for the

13 damages caused thereby; Pike is also liable for ordering LEE to use the pepper spray.

14

61. KATEHI, MEYER and SPICUZZA failed properly to investigate the background of

15 PIKE, who was not qualified for the position he held, and failed to terminate him or take other

16 appropriate action when his lack of qualifications became known; as a result of the negligent hiring and

17 retention of PIKE he was enabled personally to commit the violations described herein and to supervise

18 and direct LEE and other campus police officers in the commission of the acts and violations described

19 herein.

20
62. All of the plaintiffs, and the CLASS MEMBERS were injured by being deprived of their
21 rights to assemble and to speak freely, and by being arrested and/or pepper sprayed and subjected to
22
other acts of excessive force by Defendant REGENTS and those operating under their direction and
23 control and/or pursuant to policies, practices and procedures of The REGENTS and each ofthem. Such
24 injuries included physical pain and suffering, deprivations of liberty, and infliction of emotional distress.
25

26

63. On information and belief, the actions of Defendant REGENTS, and each of the persons

27 operating under Defendant REGENTS' direction and control, were intentional and malicious in that the

28 pepper spraying and arrest of peacefully assembled students on their college campus was so clearly in

12
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED Baker, et al. vs. Regents ()f the University ()fCalifornia; United States District Court, Eastern District ofCalifornia, Case No.2: 12-CV-00450-JAM-EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 13 of 21

1 violation of established state and federal law that no inference other than that the Defendant REGENTS
2
acted maliciously with intent to injure and to deprive plaintiffs of their constitutional rights can be
3 drawn, entitling Plaintiffs, and each of them, to awards ofpunitive damages in amounts to be determined
4 at trial.

5

6

64. On information and belief, certain plaintiffs were targeted by the police for forcible arrests

7 based on their past political activism and associations at the University.

8

65. The actions of Defendant REGENTS, and each of their agents and employees, have had a

9 chilling effect on the willingness of Plaintiffs to exercise their free-speech rights in areas under

10 Defendant's control, causing Plaintiffs continuing injury that cannot be redressed by damages.

11

IV. CLASS CLAIMS

12

66. The arrest and pepper-spraying' to which named individual Plaintiffs and the CLASS

13 MEMBERS were subjected were performed pursuant to policies, practices and procedures of Defendant

14 REGENTS. The named individual Plaintiffs and the CLASS MEMBERS seek a declaration from the

15 Court that campus policies and practices that led to the abuse of the protesters and others offend both the

16 state and federal constitutional guarantees of the rights to free speech and assembly and that the pepper-

17 spraying and arrests violated their state and federal constitutional rights; an injunction to prevent

18 repetition of such a response to a non-violent protest; and compensatory and punitive damages against

19 Defendant REGENTS.

20

67. Plaintiffs bring this action on their own behalf and on behalf of all persons similarly

21 situated (CLASS MEMBERS) pursuant to Rule 23, Federal Rules of Civil Procedure and California

22 Code of Civil Procedure Sec. 382.

23

V. CLASS DEFINITIONS

24 68. The class is defined to include all persons, other than and in addition to those individual
25 plaintiffs named in this Second Amended Complaint, who, in the afternoon of November 18,2011, while
26 participating in a protest on the University ofCalifornia at Davis Quad, were arrested and/or directly
27 sprayed with pepper spray by a campus police officer.

28

13
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED Baker. et al. vs. Regents a/the University a/California; United States District Court, Eastern District ofCalifornia, Case No. 2:12-CV-00450-JAM-EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 14 of 21

1 69. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the members of the class
2 are so numerous that joinder of all members is impractical. Plaintiffs do not know the exact number of
3 class members but plaintiffs are infonned and believe, and thereupon allege, that the number of
4 individually named plaintiffs together with the CLASS MEMBERS exceeds 25 persons.
5

6

70. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiffs are infonned

7 and believe, and thereupon allege, that there are many questions of fact common to the class including,

8 but not limited to: (1) whether Defendant REGENTS knew or believed that unaffiliated persons were

9 associated with or participating in the November 18,2011, protest; (2) whether there was any indication

10 or evidence that the health or safety of students was endangered by the protest; (3) whether any of the

11 protesters had occupied a tent or "camped" out during the night of November 17, 2011; whether any act

12 had occurred which could be used as a basis for declaring the protest to be an "unlawful assembly;" (4)

13 whether protesters represented a threat to campus police officers before they were arrested and/or pepper-

14 sprayed; and (5) whether the pepper spray used against the protesters was authorized as a weapon to be

15 used by campus police officers.

16

71. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiffs are infonned

17 and believe, and thereupon allege, that there are many questions of law common to the class including,

18 but not limited to: (1) whether the protest on the Quad on November 18,2011, was an unlawful

19 assembly; (2) whether the arrests of plaintiffs were lawful; (3) whether the use of pepper-spray was

20 excessive force; (4) whether the policies, practices and/or procedures of the Defendant REGENTS

21 pursuant to which the acts of November 18, 2011, were taken, were constitutional under the state and

22 federal constitutions; and (5) whether the arrests and/or pepper-spraying of plaintiffs and CLASS

23 MEMBERS on November 18, 2011, violated the state and federal constitutional rights of the persons 24 arrested and/or pepper sprayed.

25

72. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the representative

26 plaintiffs who are the individually named plaintiffs in this Second Amended Complaint, have claims that

27 are typical of the CLASS MEMBERS whom they represent. They have the same interests and suffered

28 the same type of injuries as all of the CLASS MEMBERS. The Representative Plaintiffs' claims arose

14
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED Baker, et al. vs. Regents ofthe University o.(California; United States District Court, Eastern District of California, Case No. 2:l2-CV-00450-JAM-EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 15 of 21

1 because of Defendant's policies, practices and procedures and their claims are based upon the same legal
2
theories as the claims of the CLASS MEMBERS. The actual damages suffered by Representative
3 Plaintiffs are similar in type and amount to the actual damages suffered by each CLASS MEMBER. In
4 accordance with Federal Rules of Civil Procedure, Rule 23(a), the Representative Plaintiffs will fairly
5 and adequately protect the class interests. Representative Plaintiffs' interests are consistent with and not
6 antagonistic to the interests of the class.
7

8

73. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(A), prosecutions of

9 separate actions by individual members ofthe class could create a risk that inconsistent or varying

10 adjudications with respect to individual members of the class would establish incompatible standards of

11 conduct for the parties opposing the class.

12

74. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(B), prosecutions of

13 separate actions by individual members of the class would create a risk of inconsistent adjudications with

14 respect to individual members of the class which would, as a practical matter, substantially impair or

15 impede the interests of the other members of the class to protect their interests.

16

75. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(2), plaintiffs are

17 informed and believe, and thereupon allege, that defendants have acted on grounds generally applicable

18 to the class, thereby making appropriate the final injunctive or declaratory relief with respect to the class

19 as a whole.

20
76. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), this class action is
21 superior to other available methods for the fair and equitable adjudication ofthe controversy between the
22
parties. Plaintiffs are informed and believe, and thereupon allege, that the interests ofmembers of the
23 class in individually controlling the prosecution of a separate action is low in that most unnamed class
24 members would be unable individually to prosecute any action at all. Plaintiffs are informed and believe,
25 and thereupon allege, that the amounts at stake for individuals make separate suits impracticable.
26
Plaintiffs are informed and believe, and thereupon allege, that most members of the class will not be able
27 to find counsel to represent them. Plaintiffs are informed and believe, and thereupon allege, that it is
28
desirable to concentrate all litigation in one forum because all of the claims arise in the same location, i.e.

15
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED Baker, et al. VS. Regents ofthe University ofCalifornia; United States District Court, Eastern District of Califomia, Case No.2: 12-CV-004S0-JAM-EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 16 of 21

1 in the City of Davis, County of Yolo. It will promote judicial efficiency to resolve the common
2
questions oflaw and fact in one forum, rather than in multiple courts.
3

4

77. Plaintiffs do not know the identities of all of the CLASS MEMBERS but are informed

5 and believe that the identities ofthe CLASS MEMBERS may be ascertained from close inspection of

photographs and video footage taken during the November 18,2011, event which is the subject of this 6

litigation. 7

8

78. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), CLASS MEMBERS

9 must be furnished with the best notice practicable under the circumstances. Plaintiffs are informed and

10 believe, and thereupon allege, that Defendant's records contain a contact e-mail address for all students 11 enrolled at U.C. Davis during the semester which includes November 18, 2011, and that notice of the

12 pendency of this action may be e-mailed to all such student enrollees. Plaintiffs contemplate that notice

13 will be published, as well as e-mailed, and that notice will inform class members of the following:

14

i. The pendency of the class action and the issues common to the class;

15 11. The nature of the action;
16

17

iii. Their right to 'opt out' of the action within a given time, in which event they will

18

not be bound by a decision rendered in the class action;

19

IV. Their right, if they do not "opt out," to be represented by their own counsel and to

20

enter an appearance in the case; otherwise they will be represented by the named

21

class plaintiffs and their counsel; and

22

v. Their right, if they do not "opt out," to share in any recovery in favor of the class,

23

and conversely to be bound by any judgment on the common issues adverse to the

24

class.

25

VI. COUNT ONE

26

Violation ofthe First Amendment to the United States Constitution (42 U.S.C. § 1983)

27

79. Plaintiffs reallege and incorporate herein, as if stated in full, each and every of the

28 allegations contained in paragraphs 1 through 78, inclusive.

16
SECOND AMENDED COMPl,AINT; JURY TRIAL DEMANDED Baker, et at. vs. Regents ofthe University ({fCal!fornia; United States District Court, Eastern District of California, Case No.2: 12-CV-00450-JAM-EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 17 of 21

1 80. In prior years, Defendant and its agents and employees, as well as their predecessors in
2 their positions, permitted assemblies, demonstrations and protests on campus which included the erection
3 of structures such as tents and domes, when the message and speakers were less controversial. In
4 contrast, Defendant and its agents and employees, and each of them, took the actions to disperse the
5 lawful assembly on November 18, 2011, and to pepper spray and arrest students because of the
6 demonstration's message and who was delivering it.
7

8

81. By interfering, including through the use of excessive force, with Plaintiffs' peaceful

9 protest, the actions of Defendant and its agents and employees, and each of them, violated the rights of

10 Plaintiffs and each of them guaranteed to them by the First Amendment to the United States Constitution

11 and caused them on-going irreparable injury and damage, as stated above.

12

82. WHEREFORE, Plaintiffs pray for relief as stated below.

13

VII. COUNT TWO

Violation of the Fourth Amendment to the United States Constitution (42 U.S.C. § 1983) 14

15

83. Plaintiffs reallege and incorporate herein, as if stated in full, each and every of the

16 allegations contained in paragraphs 1 through 78, inclusive.

17

84. In ordering, directing, approving, condoning, acquiescing to, and executing the pepper

18 spraying of Plaintiffs, the arrest of Plaintiffs, the physical removal of Plaintiffs, and!or the use of

19 excessive force against Plaintiffs, the Defendant and its agents and employees, and each of them, violated

20 the prohibitions contained in the Fourth Amendment to the United States Constitution against

21 unreasonable search or seizure, as a result of which plaintiffs, and each of them, were injured as stated

22 above.

23

85. WHEREFORE, Plaintiffs pray for relief as stated below.

24

VIII. COUNT THREE

25

Violation ofthe 14th Amendment to the Unites States Constitution (42 U.S.C. § 1983)

26

86. Plaintiffs reallege and incorporate herein by this reference, as if set out in full, each and

27 every allegation contained in paragraphs 1 through 78, inclusive.

28 87. Personal possessions of Plaintiffs, including tents, were taken and!or destroyed by
17
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED Baker, et ai, vs, Regents ofthe University afCalifornia; United States District Court, Eastern District of California, Case No, 2: 12-CV-004SO-JAM-EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 18 of 21

1 Defendant and its agents and employees, and each of them, without due process in violation of the 14th
2 Amendment to the United States Constitution which prohibits the taking of property without due process
3 oflaw.

4

5

88. WHEREFORE, plaintiffs pray for relief as stated below.

IX. COUNT FOUR 6
Violation of Article 1 §§ 2 of the California State Constitution - Freedom of Speech

7

8

89. Plaintiffs reallege and incorporate herein by this reference, as if set out in full, each and

9 every allegation contained in paragraphs 1 through 78, inclusive.

10

90. Article 1 § 2 of the California State Constitution guarantees the right to speak freely. By

11 committing the acts alleged herein, Defendant and its agents and employees, and each of them, violated

12 the rights of Plaintiffs herein to free speech.

13
91. WHEREFORE, Plaintiffs pray for relief as stated below. 14
X. COUNT FIVE
15 Violation of Article 1 § 3 of the California State Constitution - Freedom of Petition & Assembly

16

17

92. Plaintiffs reallege and incorporate herein by this reference, as if set out in full, each and

18 every allegation contained in paragraphs 1 through 78, inclusive.

19

93. Article 1 § 3 of the California State Constitution guarantees the People the right to

20 freedom of assembly and to petition for redress. By committing the acts alleged herein, Defendant and

21 their agents and employees, and each of them, violated the rights of Plaintiffs herein to freely assemble

22 and to petition.

23 94. WHEREFORE, Plaintiffs pray for relief as stated below.

24

XI. COUNT SIX

25 Violation Article 1 § 13 of the California State Constitution - Unlawful Seizure
26

27

95. Plaintiffs reallege and incorporate herein by this reference, as if set out in full, each and

28 every allegation contained in paragraphs 1 through 78, inclusive.

18
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED Baker, et al. vs. Regents (j{the University o/California; United States District Court, Eastern District of California, Case No. 2:12-CV-00450-JAM-EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 19 of 21

1 96. In ordering, directing, approving, condoning, acquiescing to, and executing the pepper
2 spraying of Plaintiffs, the arrest ofPlaintiffs, the physical removal of Plaintiffs, and/or the use of
3 excessive force against Plaintiffs, the Defendant and its agents and employees, and each of them, violated
4 the prohibitions contained in Article 1, Section 13 of the California Constitution against unreasonable
5 search or seizure, as a result of which plaintiffs, and each of them, were injured as stated above..
6

7

97. WHEREFORE Plaintiffs pray for relief as stated below.

XII. COUNTSEVEN 8

9

False Arrest/Imprisonment and Violation of § 836(a) of the California Penal Code

10

98. Plaintiffs reallege and incorporate herein by this reference, as if set out in full, each and

11 every allegation contained in paragraphs 1 through 78, inclusive.

12

99. By arresting Plaintiffs without probable cause and for misdemeanor offenses not

13 committed in the presence of the arresting officer at the time of the offense, Defendant and its agents and

14 employees, violated Plaintiffs rights under California law.

15
100. WHEREFORE Plaintiffs pray for relief as stated below. 16
XIII. COUNT EIGHT
17

18

Violation of § 52.1 of the California Civil Code (Bane Act)

19

101. Plaintiffs reallege and incorporate herein by this reference, as if set out in full, each and

20 every allegation contained in paragraphs 1 through 78, inclusive.

21

102. By dispersing the student assembly on the U.c. Davis quad on November 18, and by

22 pepper spraying and/or falsely arresting Plaintiffs, Defendant and its agents and employees, and each of

23 them, through coercive force, violated federal and state constitutional and statutory rights guaranteed to

24 Plaintiffs and thereby became liable for the damages Plaintiffs suffered, as well as treble damages,

25 statutory damages, penalties, and attorneys' fees.

26
103. WHEREFORE Plaintiffs pray for relief as stated below.

27

XIV. COUNT NINE

28

Violation of § 845.6 of the California Government Code - failure to provide medical care

19
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED Baker. et al. vs. Regents ofthe University afCalifornia; United States District Court, Eastern District of California, Case No.2: 12-CV-00450-JAM-EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 20 of 21

1 104. Plaintiffs reallege and incorporate herein by this reference, as if set out in full, each and
2
every allegation contained in paragraphs 1 through 78, inclusive.
3

4

105. By failing to provide or summon medical care for persons whom they had taken to jail and

5 who they had reason to know needed immediate medical care, Defendant and its agents and employees,

6 and each of them, violated Plaintiffs' rights under § 845.6 of the California Government Code.

7

106. WHEREFORE Plaintiffs pray for the following relief:

8

XV. PRAYER

9

1. Injunctive relief under federal law;

10

2. Declaratory relief under federal law;

11

3. Compensatory Damages under state and federal law;

12

4. Punitive, Exemplary, and Statutory Damages under state and federal law;

l3

5. Attorney's Fees under state and federal law;

14

6. Costs under state and federal law; and

15

7. Such other and further relief as to this Court may deem just and proper.

16

XVI. JURYTRIALDEMANDED

17

Plaintiffs hereby demand a jury trial in this action.

18 DATED: September 26,2012 19 20 21
22
23 24 25 26 27 28

Respectfully Submitted,
lsi "Mark E. Merin" By: __~~~~~=-~~~~~~
Mark E. Merin (State Bar No. 043849)
LAW OFFICE OF MARK E. MERIN
1010 F Street, Suite 300 Sacramento, California 95814 Telephone: (916) 443-6911 Facsimile: (916) 447-8336
Alan Schlosser (State Bar No. 049957) Michael T. Risher (State Bar No. 191627) Linda Lye (State Bar No. 215584) Novella Coleman (State Bar No. 281632)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
39 Drumm Street San Francisco, California 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-1478

20
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED Baker, et at. vs. Regents ofthe University ofCalifornia; United States District Court, Eastern District of California, Case No. 2:12-CV-00450-JAM-EFB

Case 2:12-cv-00450-JAM-EFB Document 44 Filed 09/27/12 Page 21 of 21

1

Meredith Wallis (State Bar No. 261457)

2

1057 East 33rd Street

Oakland, California 94610

3

Telephone: (713) 724-4047

4

Attorneys for Plaintiffs

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

21
SECOND AMENDED COMPLAINT; JURY TRIAL DEMANDED Baker, et at. vs. Regents ojthe University ojCalifornia; United States District Court, Eastern District ofCalifornia, Case No.2: 12-CV-00450-JAM-EFB

 
 1 Mark E. Merin (State Bar No. 043849)

LAW OFFICE OF MARK E. MERIN

2 1010 F Street, Suite 300

Sacramento, California 95814

3 Telephone: (916) 443-6911

Facsimile: (916) 447-8336

4 E-Mail:

mark@markmerin.com

5 Alan Schlosser (State Bar No. 049957) Michael T. Risher (State Bar No. 191627)

6 Linda Lye (State Bar No. 215584) Novella Coleman (State Bar No. 281632)

7

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF NORTHERN CALIFORNIA

8 39 Drumm Street San Francisco, California 94111

9 Telephone: (415) 621-2493 Facsimile: (415) 255-1478

10 E-Mail:

aschlosser@aclunc.org mrisher@aclunc.org

11

llye@aclunc.org

ncoleman@aclunc.org

12

Meredith Wallis (State Bar No. 261457)

13

1057 East 33rd Street

Oakland, California 94610

14 Telephone: (713) 724-4047

E-Mail:

mewallis@stanford.edu

15 Attorneys for Plaintiffs

16

CROWELL & MORING LLP

17 J. Daniel Sharp (CSB No. 131042, dsharp@crowell.com)

Kevin P. O’Brien (CSB No. 215148, kobrien@crowell.com)

18

Suzanne E. Rode (CSB No. 253830, srode@crowell.com )

19

275 Battery Street, 23rd Floor

San Francisco, CA 94111

20 Telephone: 415.986.2800

Facsimile: 415.986.2827 21

22

A PROFESSIONAL CORPORATION

23

Nancy J. Sheehan, (CSB No. 109419, nsheehan@porterscott.com )

Terence J. Cassidy, (CSB No. 099180, tcassidy@porterscott.com )

24 Katherine L.M. Mola, (CSB No. 264625, kmo1a@porterscott.com )

350 University Avenue, Suite 200

25 Sacramento, California 95825

(916) 929-1481 (telephone)

26

(916) 927-3706 (facsimile)

27 Attorneys for Defendant
28
{01066108.DOCX}

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT; CASE NO. 2:12-CV-00450

SFACTIVE-902852642.1

1 THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

2

3

UNITED STATES DISTRICT COURT

4

EASTERN DISTRICT OF CALIFORNIA

5

6 ENOSH BAKER, et al., ,

Case No. 2:12-cv-00450 JAM EFB

7

Plaintiffs,

8

v.

9 THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,
10 Defendant.
11

SUPPLEMENTAL ORDER GRANTING PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT, CERTIFYING THE SETTLEMENT CLASS, APPROVING CLASS NOTICE AND SCHEDULING FINAL APPROVAL HEARING

12 The Court having reviewed and considered the Joint Application for Preliminary Approval

13 of Settlement (“Joint Application”), filed on September 26, 2012, by Plaintiffs Enosh Baker,

14 David Buscho, Alyson Cook, Adam Fetterman, Sarena Grossjan, Deanna Johnson, Sophia

15 Kamran, Elizabeth Lara, Ian Lee, Soo Lee, Evan Loker, Thomas Matzat, Darren Newell, Charles

16 Parker, William Roberts, Fatima Sbeih, Evka Whaley-Mayda, Kase Wheatley, Edward Geoffrey

17 Wildanger, Noah Wiley, and Jordan Wilheim (collectively “Plaintiffs”); and Defendant The

18 Regents of the University of California (the “Regents”) (all collectively the “Parties”), and having

19 reviewed and considered the terms and conditions for the proposed settlement (the “Settlement”)

20 as set forth in the Stipulation for Settlement dated September 26, 2012, a copy of which has been

21 submitted as Exhibit A to the Joint Application, and on the basis of such submissions, together

22 with any other submissions in support of the Joint Application, and for good cause shown, it is

23 hereby ORDERED:

24 PRELIMINARY APPROVAL OF SETTLEMENT

25 1. The terms of the Settlement are preliminarily approved, subject to further

26 consideration at the Final Approval Hearing provided for below. The Court concludes that the

27 Settlement is sufficiently within the range of reasonableness to warrant the preliminary

28
{01066108.DOCX}

[PROPOSED] SUPPLEMENTAL ORDER GRANTING

-1-

PRELIMINARY APPROVAL OF SETTLEMENT; CASE

NO. 2:12-CV-00450

SFACTIVE-902852642.1

1 certification of the proposed class described in the Stipulation for Settlement, the scheduling of a

2 hearing for final approval of the settlement, and the circulation of the notice to the putative class

3 members, each as provided for in this order.

4 PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS
5

2. For purposes of settlement only, pursuant to Federal Rules of Civil Procedure 6

23(a) and 23(b)(3), the action titled Baker, et al. v. The Regents of the University of California, 7

Case No. 12-cv-00450-JAM-EFB, is preliminarily certified as a class action on behalf of the 8

following persons (collectively, the “Class” and each of the Class a “Class Member”): 9

All persons who were arrested or directly sprayed with pepper

10

spray by police officers working for or on the behalf of the

University of California, Davis Police Department on November

11

18, 2011, on the area known as “the Quad,” on the University of

12

California, Davis campus.

13

3. Plaintiffs Enosh Baker, David Buscho, Alyson Cook, Adam Fetterman, Sarena

14

Grossjan, Deanna Johnson, Sophia Kamran, Elizabeth Lara, Ian Lee, Soo Lee, Evan Loker,

15

Thomas Matzat, Darren Newell, Charles Parker, William Roberts, Fatima Sbeih, Evka Whaley-

16

Mayda, Kase Wheatley, Edward Geoffrey Wildanger, Noah Wiley, and Jordan Wilheim

17

(hereinafter “Representative Plaintiffs”) are appointed as representatives of the Class.

18

4. Mark Merin of the Law Office of Mark E. Merin, the American Civil Liberties

19

Union Foundation of Northern California (“ACLU”), and Meredith Wallis are appointed and

20

designated as counsel for the Class.

21

5. This certification of the Class, appointment of the Representative Plaintiffs and

22

appointment and designation of Class Counsel are solely for purposes of effectuating the

23

Settlement. If the Stipulation for Settlement is terminated or is not consummated for any reason,

24

the foregoing certification of the Class, appointment of the Representative Plaintiffs and

25

designation of Class Counsel shall be void and of no effect and the Parties to the Stipulation for

26

Settlement shall be returned to the status each occupied before entry of this order without

27

prejudice to any legal argument that any of the Parties to the Stipulation for Settlement might

28

have asserted but for the Stipulation for Settlement.

{01066108.DOCX}

-2-

[PROPOSED] SUPPLEMENTAL ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT; CASE
NO. 2:12-CV-00450

SFACTIVE-902852642.1

1 6. Based on the Court’s review of the Joint Application and supporting materials, the
2 Court preliminarily finds that the proposed Class satisfies Rules 23(a), 23(b)(2) and 23(b)(3).
3 FINAL APPROVAL HEARING
4 7. A hearing shall be held in Courtroom 6, United States District Court, Eastern
5 District of California, at 9:30 a.m. on January 9, 2013, to consider whether the settlement should
6 be given final approval.
7 8. Objections by class members who do not timely elect to exclude themselves from
8 the class to the proposed settlement should be considered if filed in writing with the clerk on or
9 before November 13, 2012.
10 9. At the hearing, class members who do not timely elect to exclude themselves from
11 the class may be heard orally in support of or in opposition to the settlement, provided such
12 persons file with the clerk by November 13, 2012 a written notification of the desire to appear
13 personally, indicating (if in opposition to the settlement) briefly the nature of the objection.
14 10. Counsel for the Class and for the Defendant should be prepared at the hearing to
15 respond to objections filed by such class members and to provide other information, as
16 appropriate, bearing on whether or not the settlement should be approved.
17

18

19

NOTICE TO SETTLEMENT CLASS

20

11. By October 11, 2012 Defendant’s counsel shall cause to be sent via electronic mail

21

in the name of the clerk to all students enrolled in one or more classes at the Davis campus during

22

the Fall Quarter of 2011 for whom the Regents have a valid e-mail address, the Notice attached as

23

Exhibit 1 to this Order. Exhibit 1 is a modification of the Notice attached as Exhibit B to the

24

Joint Application.

25

12. By October 11, 2012 Defendant’s counsel shall cause to be published once each in

26

the UC Davis Aggie and the Davis Enterprise the Publication Notice in substantially the same

27

style and format as the summary notice attached as Exhibit C to the Joint Application.

28
{01066108.DOCX}

[PROPOSED] SUPPLEMENTAL ORDER GRANTING

-3-

PRELIMINARY APPROVAL OF SETTLEMENT; CASE

NO. 2:12-CV-00450

SFACTIVE-902852642.1

1 IT IS SO ORDERED.
2 3 4 Dated: October 3, 2012 5 6 7 Approved as to form: 8
Dated: October 2, 2012 9 10 11 12
Dated: October 2, 2012 13 14 15 16 17 Dated: October 2, 2012 18 19 20 21 22 23 24 25 26 27 28
{01066108.DOCX}
SFACTIVE-902852642.1

/S/ JOHN A. MENDEZ_________________ UNITED STATES DISTRICT COURT JUDGE
LAW OFFICE OF MARK E. MERIN
By: /s/Mark E. Merin [authorized 10/2/12] Mark E. Merin Attorneys for Plaintiffs
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
By: /s/Alan Schlosser [authorized 10/2/12] Alan Schlosser Michael Risher Attorneys for Plaintiffs
MEREDITH WALLIS
By: /s/Meredith Wallis [authorized 10/2/12] Meredith Wallis Attorneys for Plaintiffs

[PROPOSED] SUPPLEMENTAL ORDER GRANTING

-4-

PRELIMINARY APPROVAL OF SETTLEMENT; CASE

NO. 2:12-CV-00450

1 Dated: October 2, 2012 2 3 4 5 Dated: October 2, 2012 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
{01066108.DOCX}
SFACTIVE-902852642.1

CROWELL & MORING LLP
By: /s/J. Daniel Sharp [authorized 10/2/12] J. Daniel Sharp Attorneys for Defendant The Regents of the University of California
PORTER SCOTT LLP
By: /s/ Nancy J. Sheehan Nancy J. Sheehan Terence J. Cassidy Attorneys for Defendant The Regents of the University of California

[PROPOSED] SUPPLEMENTAL ORDER GRANTING

-5-

PRELIMINARY APPROVAL OF SETTLEMENT; CASE

NO. 2:12-CV-00450

 
 Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 1 of 20

1 Mark E. Merin (State Bar No. 043849)

LAW OFFICE OF MARK E. MERIN

2 1010 F Street, Suite 300

Sacramento, California 95814

3 Telephone: (916) 443-6911

Facsimile: (916) 447-8336

4 E-Mail:

mark@markmerin.com

5 Alan Schlosser (State Bar No. 049957)

Michael T. Risher (State Bar No. 191627)

6 Linda Lye (State Bar No. 215584)

Novella Coleman (State Bar No. 281632)

7 AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF NORTHERN CALIFORNIA

8 39 Drumm Street

San Francisco, California 94111

9 Telephone: (415) 621-2493

Facsimile: (415) 255-1478

10 E-Mail:

aschlosser@aclunc.org

mrisher@aclunc.org

11

llye@aclunc.org

ncoleman@aclunc.org

12 Meredith Wallis (State Bar No. 261457)
13 1057 East 33rd Street

Oakland, California 94610

14 Telephone: (713) 724-4047

E-Mail:

mewallis@stanford.edu

15 Attorneysfor Plaintiffs

16

CROWELL & MORING LLP 17 J. Daniel Sharp (CSB No. 131042, dsharp@crowell.com)

Kevin P. O'Brien (CSB No. 215148, kobrien@crowell.com) 18 Suzanne E. Rode (CSB No. 253830, srode@crowell.com)

19 275 Battery Street, 23rd Floor San Francisco, CA 94111

20 Telephone: 415.986.2800

Facsimile: 415.986.2827 21

I P O R T E R

SCOTT

22 A PROFESSIONAL CORPORATION

Nancy J. Sheehan, (CSB No. 109419, nsheehan@porterscott.com) 23 Terence J. Cassidy, (CSB No. 099180, tcassidy@porterscott.com)

24

Katherine L.M. Mola, (CSB No. 264625, kmola@porterscott.com) 350 University Avenue, Suite 200

25 Sacramento, California 95825

(916) 929-1481 (telephone)

26 (916) 927-3706 (facsimile)

27 Attorneys for Defendants
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, LINDA KATEHI, RALPH J. 28 HEXTER, FRED WOOD & JOHN MEYER

STIPULAnON FOR SETTLEMENT; CASE NO. 2: 12-CV-00450

Case 2:12-cv-004S0-JAM-EFB Document 40-1 Filed 09/26112 Page 2 of 20

1 UNITED STATES DISTRICT COURT
2 EASTERN DISTRICT OF CALIFORNIA
3

4 ENOSH BAKER, DAVID BUSCHO,
5 ALYSON COOK, ADAM FETIERMAN, SARENA GROSSJAN, DEANNA
6 JOHNSON, SOPHIA KAMRAN, ELIZABETH LARA, IAN LEE, SOO LEE,
7 EVAN LOKER, THOMAS MATZAT, DARREN NEWELL, CHARLES PARKER,
8 WILLIAM ROBERTS, FATIMA SBEIH, EVKA WHALEY-MAYDA, KASE
9 WHEATLEY, EDWARD GEOFFREY WILDANGER, NOAH WILEY, and
10 JORDAN WILHElM,

Case No.2: 12-cv-00450 JAM EFB STIPULATION FOR SETTLEMENT

11

Plaintiffs,

12

v.

13 LINDA KATEHI, Chancellor of the University of California at Davis; RALPH J.
14 HEXTER, Provost and Executive Vice Chancellor ofthe University of California at
15 Davis; FRED WOOD, Vice Chancellor for Student Affairs at the University of California
16 at Davis; JOHN MEYER, Vice Chancellor of Administration and Resource Management at
17 the University at California at Davis; ANNETTE SPICUZZA, Chief ofthe
18 University of California at Davis Police Department; JOHN PIKE, Lt. in the
19 University of California at Davis Police Department; BARRY SWARTWOOD, Lt. in
20 the University of California at Davis Police Department; ALEXANDER LEE, officer of
21 the University of California at Davis Police Department; and DOES 2-50, officers ofthe
22 University of California at Davis Police Depat1ment,
23 Defendants.
24

25 I. PARTIES

26

This Stipulation of Settlement dated as of September 26, 2012 (the "Stipulation"), is made

27 and entered into by and among the following parties (all collectively the "Parties"):

28

-1-

STIPULAnON FOR SETTLEMENT; CASE NO.2: 12-CV-00450

SFACTIVE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 3 of 20

1 1) Named Plaintiffs Enosh Baker, David Buscho, Alyson Cook, Adam Fetterman,

2
Sarena Grossjan, Deanna Johnson, Sophia Kamran, Elizabeth Lara, Ian Lee, Soo

3 Lee, Evan Loker, Thomas Matzat, Darren Newell, Charles Parker, William

4 Roberts, Fatima Sbeih, Evka Whaley-Mayda, Kase Wheatley, Edward Geoffrey

5 Wildanger, Noah Wiley, and Jordan Wilheim (collectively "Representative

6 Plaintiffs" or simply "Plaintiffs") on behalf ofthemselves and each ofthe Class

7 Members, as defined below; and

8 2) The Regents ofthe University of California (the "Regents"), Defendant in

9 proposed Second Amended Complaint.

10 The Stipulation is intended to fully, finally, and forever resolve, discharge, and settle the Released

11 Claims (as defined below) on the terms and conditions set forth in this Stipulation, subject to the

12 approval ofthe Court.

13 II. THE LITIGATION
14 On February 22, 2012, Plaintiffs filed their initial Complaint in this Litigation. On July

15 20,2012, Plaintiffs filed their First Amended Complaint ("Complaint") naming as defendants

16 members of the University of California Administration Linda Katehi, Ralph J. Hexter, Fred

17 Wood and John Meyer; Chief ofthe University of California at Davis ("UC Davis") Police

18 Department Annette Spicuzza; and UC Davis Police Department officers John Pike, Barry

19 Swartwood and Alexander Lee. The Complaint alleges nine separate claims for relief, all arising

20 out of an incident involving U.C. Davis campus police and demonstrators and observers on the

21 campus of the University of California, Davis, on the afternoon of Friday, November 18, 2011.

22
Plaintiffs allege, inter alia, that, as part of the broader Occupy Wall Street movement, they had set

23 up symbolic tents on an area ofthe campus known as the Quad in protest against university

24 privatization, tuition increases, and the treatment of demonstrators at the University of California,

25 Berkeley. On Friday, November 18,2011, members ofthe UC Administration directed the

26
demonstrators to remove the tents be from the Quad by 3:00 p.m. At about 3:00 p.m., members

27 ofthe UC Davis Police Department declared the demonstration an unlawful assembly, ordered

28

-2-

STIPULATION FOR SETTLEMENT;

CASE NO.2: 12-CV-00450

SFACTIVE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 4 of 20

1 those assembled to disperse, and commenced to remove the tents from the Quad, arresting and

2
pepper-spraying demonstrators, including Plaintiffs. Plaintiffs allege that they and others

3 similarly situated were deprived of their civil rights under the First, Fourth, and Fourteenth

4 Amendments ofthe U.S. Constitution by being subjected to unlawful arrest and/or excessive

5 force (including pepper spray) by or at the direction of agents or employees ofthe Regents. The

6 Complaint seeks compensatory, statutory, and punitive damages, declaratory and injunctive relief,

7 plus attorneys' fees and costs. Plaintiffs believe that the evidence developed to date supports

8 their position, and that their claims have legal and factual merit.

9 III. DEFENDANTS' DENIALS OF WRONGDOING AND LIABILITY
10 Defendants have denied and continue to deny each and all ofthe claims alleged by

11 Plaintiffs in the Litigation. Defendants contend that they acted reasonably and in good faith to

12 address legitimate health and safety risks associated with an unpermitted encampment on the

13 Quad, and not out of any intent to suppress debate and protest, or to deprive Plaintiffs oftheir civil

14 rights. Defendants contend that the arrests and use of force were a lawful response to the efforts of

15 Plaintiffs and others to interfere with the UC Officer Defendants' performance oftheir lawful

16 objectives ofremoving tents erected without permits in violation ofUniversity policy and

17 removing arrestees from the Quad. Defendants believe that the evidence developed to date

18 supports their position that they acted reasonably and with good intentions, without violating the

19 rights of Plaintiffs or others, and that the Litigation is without merit.

20 IV. MEDIATION AND SETTLEMENT
21 On March 14,2012, prior to the filing of responsive pleadings by any Defendants, the

22
Parties then named in the Litigation entered into a StipUlation and Proposed Order for Extension of

23 Time to Respond to the Complaint and Other Dates in order to permit the Parties to explore

24 settlement. (Dckt. No. 10) The Court approved the stipulation. (Dckt. No. 13)

25 The Parties engaged The Hon. Raul Ramirez (Ret.) to serve as mediator. In preparation for

26 the mediation, the Parties engaged in informal discovery, including the production of documents

27 and the exchange of information. On August 15 and 16, 2012, the Parties engaged in mediation in

28

-3-

STIPULATION FOR SETTLEMENT;

CASE NO. 2:12-CV-00450

SFACTIVE-902852644.i

Case 2:12-cv-00450-JAM-EFB Document 40-1 Fi'led 09/26/12 Page 5 of 20

1 Sacramento, California, with respect to the claims and defenses raised in the Litigation. As a

2
result ofthe mediation, the Parties reached an agreement on a settlement ofthe Litigation, the

3 terms and conditions of which are set forth in this Stipulation.

4 Both Plaintiffs and Defendants have taken into account the uncertainty and risks inherent

5 in any litigation. Plaintiffs and Defendants have concluded that further conduct of the Litigation

6 would be protracted and expensive, with no certainty as to the ultimate outcome, and that it is

7 reasonable and desirable that the Litigation be fully and finally settled in the manner and upon the

8 terms and conditions set forth in this Stipulation. Plaintiffs and their counsel believe that the

9 settlement set forth in the Stipulation confers substantial benefits upon the Class, and that it is fair

10 and reasonable. Based on their evaluation, Plaintiffs and their counsel have determined that the

11 settlement set forth in the Stipulation is in the best interests of the Class.

12 TERMS OF STIPULATION AND AGREEMENT OF SETTLEMENT

13 NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among the

14 Plaintiffs (for themselves and the Class Members, as defined below) and the Defendants, by and

15 through their respective counselor attorneys of record, that, subject to the approval ofthe Court,

16 the Litigation and the Released Claims (as defined below) shall be finally and fully compromised,

17 settled, and released, and the Litigation shall be dismissed with prejudice, as to all Settling

18 Parties, upon and subject to the terms and conditions ofthe Stipulation, as follows.

19 1. Additional Definitions

20
In addition to the definitions of the Parties set forth in Section I above, the following terms

21 as used in this Stipulation have the meanings specified below:

22
1.1 "Administrator" means a committee comprised of one individual designated by the

23 Plaintiffs and one individual designated by the Regents.

24 1.2 "Approved Claim" means a claim submitted no later than the Bar Date by a Class

25 Member other than a Representative Plaintiff which is approved by the

26
Administrator.

27 1.3 "Bar Date" means that date specified herein by which Claim Forms submitted by

28

-4-

STIPULATION FOR SETTLEMENT; CASE NO.2: 12-CV-00450

SFACTIVE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 6 of 20

1 Class Members must be delivered or post-marked in order to be considered for

2 payment pursuant to the terms ofthe settlement described in this Stipulation.

3 1.4 "Claim Form" means that form, substantially in the form attached hereto as

4 Exhibit A, which Class Members must submit in order to qualify to participate in

5 the settlement described in this Stipulation

6
1.5 "Class" or "Settlement Class," as defined in the proposed Second Amended

7 Complaint, means all persons (other than those persons who timely and validly

8 request exclusion from the Class) who, on the afternoon ofNovember 18,2011,

9 while participating in a protest on the University of California at Davis Quad, were

10 arrested andlor directly sprayed with pepper spray by a campus police officer.

11 1.6 "Class Member" means a person who falls within the definition ofthe Class as set

12 forth in section 1.5 above and who does not validly and timely opt out ofthe Class.

13 1.7 "Class Notice" means both the written "Notice" substantially in the form of

14 Exhibit B, together with the "Publication Notice" substantially in the form of

15 Exhibit C, both as approved by the Court, which shall both include the general

16 terms ofthe settlement set forth in this Stipulation, the general terms ofthe Fee

17 and Expense Application referenced in section 8 hereof, and the date of the Final

18 Approval Hearing. The Class Notice shall conform to all applicable requirements

19 ofthe Federal Rules of Civil Procedure, due process, any other applicable law, and

20 shall otherwise be in the manner and form approved by the Court.

21 1.8 "Court" means the United Stated District Court for the Eastern District of

22 California.

23 1.9 "Defendants" means the parties identified in sections I and II above as Defendants,

24 including the Regents.

25 1.10 "Effective Date," or the date upon which this settlement becomes "effective," shall

26
be when the Judgment has become Final, as defined below.

27 1.11 "Final" means the date on which the Court has entered the Judgment, substantially

28

-5-

STIPULAnON FOR SETTLEMENT; CASE NO. 2:12-CV-00450

SFACTIVE-902852644.l

Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 7 of 20

1 in the form of Exhibit D attached hereto, and the last ofthe following shall have

2 occurred: (i) the expiration of the time to file a motion to alter or amend the

3 Judgment under Federal Rule of Civil Procedure 59(e) without any such motion

4
having been filed or, if such a motion is filed, the Judgment is not altered or

5 amended; (ii) the time in which to appeal the Judgment has passed without any

6 appeal having been taken; and (iii) if an appeal is taken, immediately after (a) the

7 date of final dismissal of any appeal or the final dismissal of any proceeding on

8 certiorari, or (b) the date of affirmance of the Judgment on appeal and the

9 expiration oftime for any further judicial review whether by appeal,

10 reconsideration or a petition for a writ of certiorari and, if certiorari is granted, the

11 date of final affirmance of the Judgment following review pursuant to the grant.

12 For purposes of this paragraph, an "appeal" shall include any petition for a writ of

13 certiorari or other writ that may be filed in connection with approval or

14 disapproval ofthis settlement, but shall not include any appeal that concerns only

15 the issue of attorneys' fees and expenses or incentive payments; any appeal on the

16 issue of attorneys' fees and expenses or incentive payments shall not in any way

17 delay or affect the time set forth above for the Judgment to become Final, or

18 otherwise preclude the Judgment from becoming Final.

19 1.12 "Final Approval Hearing" means the hearing to be held by the Court to consider

20
and determine whether the proposed Settlement ofthe Litigation as contained in

21 this Stipulation should be approved as fair, reasonable, and adequate, and whether

22 the Judgment should be entered.

23 1.13 "Judgment" means the Final Judgment and Order of Dismissal with Prejudice to

24 be rendered by the Comt, substantially in the form attached hereto as Exhibit D.

25 1.14 "Plaintiffs' Counsel" mean Mark E. Merin, attorneys with the American Civil

26
Liberties Foundation ofNorthern California, and Meredith Wallis.

27 1.15 "Litigation" means Enosh Baker et az', on behalfofthemselves and on behalfofall

28

-6-

STIPULATION FOR SETTLEMENT; CASE NO. 2:12-CV-00450

SFACTIVE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26112 Page 8 of 20

1 persons similarly situated, v. Linda Katehi, et al., United States District Court,

2 Eastern District of California, Case No. 2: 12-CV-00450-JAM-EFB.

3 1.16 "Notice" means written notice to be sent bye-mail substantially in the form of

4 Exhibit B, as approved by the Court.

5 1.17 "Notice Date" means the date that Notice is first sent or published.

6
1.18 "Publication Notice" means notice substantially in the form of Exhibit C to be

7 published in accordance with the Preliminary Approval Order.

8 1.19 "Released Claims" means any and all claims, debts, demands, controversies,

9 obligations, losses, rights or causes of action or liabilities of any kind or nature

10 whatsoever (including, but not limited to, any claims for damages, whether

11 compensatory, statutory, special, incidental, consequential, punitive, exemplary or

12 otherwise, injunctive relief, declaratory relief, attorneys' fees, costs, expenses, or

13 any other form oflegal or equitable relief whatsoever), whether based on federal,

14 state, local, statutory or common law or any other law, rule or regulation, and

15 whether known or unknown, fixed or contingent, suspected or unsuspected,

16 concealed or hidden, accrued or unaccrued, liquidated or unliquidated, at law or in

17 equity, matured or unmatured, whether class or individual in nature, including

18 Unknown Claims (as defined below), that (i) have been asserted in this Litigation

19 by the Plaintiffs and Class Members or any ofthem against any ofthe Released

20 Persons (as defined below), or (ii) could have been asserted in the Litigation or any

21 other forum by the Plaintiffs and Class Members or any ofthem against any ofthe

22 Released Persons which arise out of or are based upon or related to the allegations,

23 transactions, facts, matters or occurrences, set forth, or referred to in the Litigation,

24 including, without limitation, claims that the Defendants violated the civil rights of

25 the Plaintiffs and/or Class Members, or injured them in any way on the afternoon

26 of November 18,2011. Nothing in this release provision shall prevent any person

27 from seeking a certificate and record of detention as provided in California Penal

28

-7-

STIPULATION FOR SETTLEMENT; CASE NO.2: 12-CV-00450

SFACTIVE-902852644.l

Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 9 of 20

1 Code § 851.6, or seeking a finding of factual innocence as provided for in

2 California Penal Code § 851.8.

3 1.20 "Released Persons" means each and all ofthe Defendants named in the First

4 Amended Complaint, including but not limited to Annette Spicuzza, as well as the

5 Regents, and their officers, employees, managers, personal or legal

6 representatives, predecessors, successors, agents, attorneys, officials, trustees, as

7 well as any person or entity claimed to have been acting under the authority of, at

8 the direction of, or in concert with the Defendants, directly or indirectly, in any

9 manner whatsoever on November 18,2011, in connection with the subject matter

10 ofthe Litigation andlor the Released Claims. The term "Released Persons"

11 includes the City of Davis, its agents, officials and employees, and all individual

12 members ofthe City ofDavis Police Department who were involved in any way

13 with the events on the UC Davis Quad on November 18,2011.

14 1.21 "Releasing Parties" means the Representative Plaintiffs and all Class Members,

15 heirs, executors, administrators, agents, legal representatives, assigns and

16 successors, but only to the extent their claims are derived from the claims of Class

17 Members, excluding any Class Members who timely opt out of the Class.

18 1.22 "Settling Parties" means, collectively, the Defendants, including the Regents, and

19 the Plaintiffs on behalf of the Class.

20 1.23 "Unknown Claims" means any Released Claims which Releasing Parties do not

21 know or suspect to exist in his, her, or its favor at the time ofthe release ofthe

22
Released Persons which, ifknown by him, her, or it, might have affected his, her,

23 or its settlement with and release ofthe Released Persons, or might have affected

24 his, her, or its decisions with respect to this settlement. With respect to any and all

25 Released Claims, the Settling Parties stipulate and agree that, upon the Effective

26 Date, Plaintiffs shall expressly waive and relinquish, and each of the Class

27
Members shall be deemed to have, and by operation of the Judgment shall have,

28

-8-

STIPULAnON FOR SETTLEMENT; CASE NO. 2:!2-CV-00450

SFACTIVE-902852644.!

Case 2:12-cv-004S0-JAM-EFB Document 40-1 Filed 09/26/12 Page 10 of 20

1 expressly waived and relinquished, the provisions, rights, and benefits of

2 California Civil Code § 1542, which provides:

3

A general release does not extend to claims which the creditor does not

4

know or suspect to exist in his or her favor at the time of executing the

release, which if known by him or her must have materially affected

5

his or her settlement with the debtor.

6

Releasing Parties may hereafter discover facts in addition to or different from

7

those which he, she or it now knows or believes to be true with respect to the

8

subject matter of the Released Claims, but Releasing Parties upon the Effective

9

Date shall expressly, fully, finally, and forever settle and release and each Class

10

Member, upon the Effective Date, shall be deemed to have, and by operation of the

11

Judgment shall have, fully, finally, and forever settled and released any and all

12

Released Claims, known or unknown, suspected or unsuspected, contingent or

13

non-contingent, whether or not concealed or hidden, which now exist, or

14

heretofore have existed, upon any theory of law or equity now existing or coming

15

into existence in the future, including, but not limited to, conduct which is

16

negligent, intentional, with or without malice, or a breach of any duty, law or rule,

17

without regard to the subsequent discovery or existence of such different or

18

additional facts. Plaintiffs acknowledge, and the Class Members shall be deemed

19

by operation of the Judgment to have acknowledged, that the foregoing waiver was

20
separately bargained for and is a key element of the settlement of which this

21

release is a part.

22

2. Monetary Benefits to Be Provided to the Class

23

In consideration of the Release set forth in section 9 of this Stipulation and the entry of

24 Judgment on the claims of all Class Members, the Regents will pay the following amounts within

25

15 (fifteen) days of the Effective Date:

26

a. Representative Plaintiffs: Regents will pay the sum of $630,000.00 (six

27 hundred thirty thousand dollars) to the Representative Plaintiffs, which constitutes $30,000 for

28

-9-

STIPULATION FOR SETTLEMENT; CASE NO. 2:!2-CV-00450

SFACTIVE-902852644.!

Case 2:12-cv-004S0-JAM-EFB Document 40-1 Filed 09/26/12 Page 11 of 20

1 each of the 21 Representative Plaintiffs, by a single check made payable to the Law Office of

2
Mark E. Merin, Attorney Client Trust Fund, to be distributed to the Representative Plaintiffs by

3 that office. The payment shall be delivered to the Law Office of Mark E. Merin, 1010 F Street,

4 Sacramento, CA 95814, no later than three days following the Effective Date ofthe settlement.

5 The Parties stipulate and acknowledge that the payments to the Class Representatives are not

6 unduly preferential, and the amounts are justified based on the injuries they allegedly suffered,

7 and the burdens carried by the Class Representatives in commencing and prosecuting the

8 Litigation, including the notoriety attendant on pursuit of the Litigation and the amount oftime

9 and effOlt involved.

10

b. Other Class Members: To each additional Class Member other than the

11 Representative Plaintiffs who submits an Approved Claim, the Regents will pay the sum of

12 $20,000 (twenty thousand dollars); provided, however, that if there are more than five total

13 Approved Claims, the amount paid in settlement of each Approved Claim shall be reduced pro

14 rata so that the total amount paid for all Approved Claims does not exceed $100,000 (one hundred

15 thousand dollars). For example, ifthere are six Approved Claims, the settlement payment for

16 each such Approved Claim shall be $16,667 (sixteen thousand, six hundred sixty-seven dollars).

17 The procedure for making such payments is as follows:

18 (1) Prior to the time that Notice is sent or published, Plaintiffs and the

19 Regents shall each designate an individual to serve as a member ofthe Administrator. The

20 designated individuals may consult with their respective clients or with other attorneys who are

21 working on this matter in considering the appropriate action to be taken on the claims.

22
(2) Putative Class Members may submit Claim Forms in accordance

23 with the provisions set forth in the Notice. Within thirty (30) days ofthe submission of any such

24 Claim Forms, the Administrator shall attempt to agree on whether or not the claim is Approved.

25 If the parties' representatives comprising the Administrator cannot agree, the disputed Claim

26
Forms shall be submitted to Magistrate Judge Edmund F. Brennan, the Magistrate Judge assigned

27 to this action, for final, binding determination. The Magistrate Judge's determination shall be

28

-10-

STIPULATION FOR SETTLEMENT; CASE NO.2: 12-CV-00450

SFACTIVE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 12 of 20

1 based on the forms and any available evidence, including but not limited to video or photographs

2 taken on November 18, 201l. Putative Class Members who submit claims shall be notified in

3 writing whether their claim is Approved or not prior to the date ofthe Final Approval Hearing.

4 Putative Class Members who submit Approved Claim Forms shall receive payment oftheir

5 claims by check made payable to them and delivered to the addresses specified on their Claim

6 Forms within fifteen (15) days ofthe Effective Date ofthe settlement, unless there are five or

7 more approved claimants, in which case one check for $100,000 will be made payable to the Law

8 Office of Mark E. Merin, Attorney Client Trust Fund, to be distributed to the approved claimants

9 by that office.

10 3. Additional Class Relief

11 a. For two years following the Effective Date, the Regents will provide

12 Plaintiffs' attorneys from the American Civil Liberties Union Foundation ofNorthern California

13 ("ACLU") an opportunity to review, comment, and provide input on the Davis campus' written

14 policies, including the Regents' written policies applicable to the campus at Davis, pertaining to

15 the use of force by police, the handling of student demonstrations, and crowd control. This shall

16 include a fair and adequate opportunity to review, comment and provide input, prior to their

17 adoption, on any new or revised written Davis campus policies pertaining to these subjects. The

18 Regents will reimburse up to $20,000 (twenty thousand dollars) for reasonable attorneys' fees and

19 costs incurred by the ACLU in conducting such review, with payment being made within 45 days

20 from the submission of invoices for time spent by ACLU staff on such review. Any such

21 invoices shall be sent to the attention of Margaret Wu at the Office of General Counsel and to Jim

22
Taylor of Sedgwick.

23 b. Within fifteen (15) days of the Effective Date ofthe settlement, Chancellor

24 Linda Katehi will cause to be delivered to each of the twenty-one (21) Representative Plaintiffs

25 and any other putative class members who submit an Approved Claim Form a personal, written

26
apology for the incident and injuries and damages they suffered as a result thereof.

27 c. As part of the settlement, a Student Affairs representative on the Davis

28

-11-

STIPULATION FOR SETTLEMENT; CASE NO.2: 12-CV-00450

SFACTIVE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 13 of 20

1 campus will provide reasonable assistance and counseling to the Representative Plaintiffs (and

2 any other putative class members who submit an Approved Claim Form) with academic

3 performance issues that allegedly arose as a result ofthe incident. Plaintiffs hereby acknowledge

4 that under the University of California's system of shared governance, the Academic Senate and

5 the faculty of the University of California are accorded the authority for evaluating student

6
academic performance, and that The Regents make no promise or commitment that any Plaintiff

7 will be granted an exception to policies or will receive a grade change.

8 4. Initial Procedural Steps

9
a. The Parties will stipulate to the filing of a Second Amended Complaint in

10 which the only named defendant will be the Regents. Defendants Katehi, Hexter, Meyer, Wood,

11 Spicuzza, Pike, Swartwood, and Lee shall not be named as Defendants in the Second Amended

12 Complaint. The Second Amended Complaint will be filed for purposes of entering into and

13 effectuating the settlement set forth in this Stipulation. The Regents waives its immunity from

14 suit under the Eleventh Amendment to the U.S. Constitution for this purpose.

15 5. Preliminary Approval

16 As soon as possible, and in no event more than five days, after execution of this

17 Stipulation, the Settling Parties shall jointly submit the Stipulation together with its Exhibits to

18 the Court and shall jointly apply for entry of a Preliminary Approval Order substantially in the

19 form set f0l1h in Exhibit E, requesting, inter alia, the preliminary approval of the Settlement set

20 forth in this Stipulation, conditional certification of the Settlement Class, appointment of Class

21 Counsel, approval/dissemination of Class Notice, approval of the proposed Claim Form, and

22 entry of an order staying any activities in the Litigation except for activities related to the

23 approval and implementation of the Settlement.

24 6. Class Notice

25
a. Beginning not more than 14 days after the entry of the Preliminary

26
Approval Order, the Notice ofthe proposed settlement shall be given in the following manner:

27 (i) the Regents will cause the text ofthe Notice substantially in the form attached hereto as

28

-12-

STIPULAnON FOR SETTLEMENT; CASE NO.2: 12-CV-00450

SFACTlVE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 14 of 20

1 Exhibit B to be sent bye-mail to all students enrolled in one or more classes at the Davis campus

2
during the Fall Quarter of2011, for whom the Regents have a valid e-mail address; (ii) the

3 Regents shall cause the Publication Notice substantially in the form attached hereto as Exhibit C

4 to be published once each in the Davis Enterprise and the UC Davis Aggie; and (iii) the Regents

5 shall cause copies of the Notice, the Publication Notice, and the Claim Form to be posted online

6 at www.ucdavis.edu. Copies of the Notice and Claim Form shall be sent via electronic or

7 standard class mail to those Class Members who so request.

8 b. As set forth in the proposed Notice, the putative Class Members shall have

9 30 (thirty) days to file a Claim Form, or to exclude themselves ("opt out") ofthis Settlement and

10 from the Class by timely submitting a request to opt out in accordance with the procedure set

11 forth in the Notice.

12 c. As set forth in the proposed Notice, objections to the proposed Settlement

13 must be filed not later than 30 (thirty) days after the Notice Date.

14 7. Final Approval

15 A Final Approval Hearing shall be set no less than seventy-five (75) days after the Court

16 issues its Preliminary Approval Order. The parties jointly request that, at the Final Approval

17 Hearing, the Court approve the settlement of the Litigation and enter Judgment in a form

18 substantially similar to that attached hereto as Exhibit D. At least fifteen (15) days prior to the

19 Final Approval Hearing, Plaintiffs' Counsel shall submit a Fee and Expense Statement to the

20 Court for an award of attorneys' fees and costs as set forth in Section 8 below, to be determined

21 by the Court at the Final Approval Hearing.

22
8. Plaintiffs' Counsels' Attorneys' Fees and Expenses

23 The Regents has agreed to pay, and Plaintiffs' counsel has agreed to accept, the sum of

24 $250,000 (two hundred fifty thousand dollars) for all attorneys' fees and costs incurred in

25 connection with the prosecution of the Litigation and the administration of the settlement.

26
Accordingly, Plaintiffs' counsel shall submit a Fee and Expense Statement to the Court for an

27 award of attorneys' fees and costs for all work performed on behalf of the Class, not to exceed,

28

-13-

STIPULATION FOR SETTLEMENT; CASE NO.2: 12-CV-00450

SFACTIVE-902852644.1

Case 2:12-cv-00450~JAM-EFB Document 40-1 Filed 09/26112 Page 15 of 20

1 $250,000, which application the Defendants shall not oppose. Provided the Court approves the

2
Fee and Expense Statement, the Regents will pay the amount awarded by the Court within 15

3 (fifteen) days ofthe Effective Date, payable jointly to the Law Offices of Mark E. Merin, the

4
American Civil Liberties Union Foundation ofNorthern California and Meredith Wallis.

5 9. Releases and Bar Order

6 a. Upon the Effective Date, as defined above, the Releasing Parties shall be

7 deemed to have, and shall have, fully, finally, and forever waived, released, relinquished,

8 discharged, and dismissed each and every one of the Released Claims against each and everyone

9 ofthe Released Persons.

10 b. Upon the Effective Date, the Releasing Parties shall be forever barred and

11 enjoined from commencing, instituting, prosecuting or continuing to prosecute any action or other

12 proceeding in any court oflaw or equity, arbitration tribunal, or administrative forum, asserting

13 the Released Claims against any ofthe Released Persons. Nothing in this Stipulation shall

14 prevent any person from seeking a certificate and record of detention as provided in California

15 Penal Code § 851.6, or from seeking a finding of factual innocence as provided for in California

16 Penal Code § 851.8.

17 c. Upon the Effective Date, each ofthe Released Persons shall be deemed to

18 have, and by operation ofthe Judgment shall have, fully, finally, and forever released,

19 relinquished, and discharged Plaintiffs and Plaintiffs' Counsel from all claims (including

20 Unknown Claims) arising out of, relating to, or in connection with the institution, prosecution,

21 assertion, settlement or resolution of the Litigation or the Released Claims.

22 d. No person shall have any claim against the Administrator, or any member

23 thereof, based on the administration ofthis settlement, including but not limited to any

24 determination regarding the approval or disapproval of any claim submitted.

25 The Parties intend that this Stipulation eliminate all further risk and liability of the Released

26 Persons relating to the Released Claims, and accordingly agree that the Court shall include in the

27 Final Approval Order a Bar Order Provision as follows: "the Releasing Parties are permanently

28

-14-

STIPULATION FOR SETTLEMENT; CASE NO. 2:12-CV-00450

SFACTIVE-902852644.1

Case 2:12-cv-004S0-JAM-EFB Document 40-1 Filed 09/26/12 Page 16 of 20

1 enjoined from filing, commencing, prosecuting, intervening in, participating in or receiving any

2
benefits fi'om any lawsuit, arbitration, administrative or regulatory proceeding or order based on

3 any or all Released Claims against one or more Released Persons"

4 10. Waiver and Covenant not to Sue

5 Upon the Effective Date, each of the individuals named as Defendants in the First

6 Amended Complaint shall be deemed to have, and shall have, fully, finally, and forever waived,

7 released, and relinquished any claim for malicious prosecution in connection with the Litigation.

8 Each such Defendant covenants that he or she will not institute any claim, lawsuit, arbitration, or

9 proceeding of any nature against Plaintiffs, any Class Member, or Plaintiffs' Counsel for any act

10 or omission in connection with this Litigation.

11 11. Conditions of Settlement, Effect of Disapproval

12 This Settlement is subject to the following conditions:

13
a. This Settlement is subject to the approval ofthe Court as provided in

14 Federal Rule of Civil Procedure 23(e).

15 b. In the event that two or more Class Members opt out of the Class in

16 accordance with the terms ofthe Notice, this Stipulation and the Settlement contemplated hereby

17 shall be voidable at the election ofthe Regents. In the event that the Regents is entitled to and

18 elects to void this Stipulation for Settlement, the Regents must deliver formal written notice of

19 such election to counsel for all Parties within 14 (fourteen) days after the deadline for Class

20 Members to opt out of the Class.

21 c. In the event that the Stipulation is not approved by the Court, is voided by

22
the Regents, or otherwise fails to become effective in accordance with its terms and

23 provisions, the Settling Parties shall be restored to their respective positions in the Litigation as of

24 August 16,2012. In such event, the terms and provisions of this Stipulation, with the exception

25 of this section and section 4.a hereof, shall have no further force and effect with respect to the

26 Settling Parties and neither this Stipulation nor any submission by any party in connection with

27 the Motion(s) for Preliminary or Final Approval or Application for Attorneys' Fees and Expenses

28

-15-

STIPULATION FOR SETTLEMENT; CASE NO.2: 12-CV-00450

SFACTIVE-902852644.!

Case 2:12-cv-004S0-JAM-EFB Document 40-1 Filed 09/26112 Page 17 of 20

1 or Appeal therefrom, or any related motions or proceedings, may be used in this Litigation or in

2
any other proceeding for any purpose, and any judgment or order entered by the Court in

3 accordance with the terms of this Stipulation shall be treated as vacated, nunc pro tunc.

4 Notwithstanding the foregoing, no order of the Court or modification or reversal on appeal of any

5 order of the Court concerning the amount of any attorneys' fees, costs, or expenses awarded by

6 the Court to any of Plaintiffs' Counsel shall constitute grounds for cancellation or termination of

7 the Stipulation.

8 12. Miscellaneous Provisions

9 a. The Settling Parties (a) acknowledge that it is their intent to consummate

10 the Settlement set forth in this Stipulation, and (b) agree to cooperate to the extent reasonably

11 necessary to effectuate and implement all terms and conditions ofthe Stipulation and to exercise

12 their best effOlts to accomplish and effectuate the terms and conditions of the Stipulation.

13

b. The Settling Parties intend this settlement to be a final and complete

14 resolution of all disputes between them with respect to the Litigation. The settlement

15 compromises claims which are contested and shall not be deemed an admission by any Settling

16 Party as to the merits of any claim or defense. The Settling Parties agree that the terms ofthe

17 settlement were negotiated in good faith by the Settling Parties, and reflect a settlement that was

18 reached voluntarily after consultation with competent legal counsel and with the assistance of a

19 professional mediator.

20 c. Neither this Stipulation nor the settlement contained herein, nor any act

21 performed or document executed pursuant to or in furtherance ofthe Stipulation or the settlement:

22
(a) is or may be deemed to be or may be used as an admission of, or evidence of, the validity of

23 any Released Claim, or of any wrongdoing or liability ofthe Defendants; or (b) is or may be

24 deemed to be or may be used as an admission of, or evidence of, any fault or omission of any of

25 the Defendants in any civil, criminal or administrative proceeding in any COUlt, administrative

26
agency or other tribunal. The Defendants may file the Stipulation and/or the Judgment in any

27 action that may be brought against them in order to support a defense or counterclaim based on

28

-16-

STIPULATION FOR SETTLEMENT; CASE NO.2: 12-CV-00450

SFACTIVE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 18 of 20

1 principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or

2
reduction, or any other theory of claim preclusion or issue preclusion or similar defense.

3 d. All agreements made and orders entered during the course ofthe Litigation

4 relating to the confidentiality of information shall survive this Stipulation. The parties to the

5 Litigation shall comply with the stipulated protective order (Dkt. No. 29), relating to the

6 disposition of confidential information and documents.

7

e. All of the exhibits to this Stipulation are material and integral parts hereof

8 and are fully incorporated herein by this reference.

9

f.

The Stipulation and the exhibits attached hereto constitute the entire

10 agreement among the parties hereto and no representations, warranties or inducements have been

11 made to any party concerning the Stipulation or its exhibits other than the representations,

12 warranties, and covenants contained and memorialized in such documents. Except as otherwise

13 provided herein, each party shall bear its own costs.

14
g. This Stipulation may be amended or modified only by a written instrument

15 signed by or on behalf of all Settling Parties. Lead Counsel, on behalf of the Class, is expressly

16 authorized by the Plaintiffs to take all appropriate action required or permitted to be taken by the

17 Class pursuant to the Stipulation to effectuate its terms and also is expressly authorized to enter

18 into any modifications or amendments to the Stipulation on behalf of the Class which they deem

19 appropriate.

20

h. Each counselor other Person executing the Stipulation or any of its

21 exhibits on behalf of any party hereto hereby warrants that such Person has the full authority to do

22
so.

23

i.

The Stipulation may be executed in one or more counterparts. All executed

24 counterparts and each ofthem shall be deemed to be one and the same instrument. A complete

25 set of executed counterparts shall be filed with the Court. Signatures of parties transmitted by

26
facsimile or scanned bye-mail ("pdf') are deemed to be equivalent of original signatures of such

27 patties.

28

-17-

STIPULATION FOR SETTLEMENT; CASE NO. 2:12-CV-00450

SFACTIVE-902852644.!

Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 19 of 20

1

j.

The Stipulation shall be binding upon, and inure to the benefit of, the

2
successors and assigns ofthe Parties hereto.

3

k. The Court shall retain jurisdiction with respect to implementation and

4 enforcement of the terms of this Stipulation, and all parties hereto submit to the jurisdiction ofthe

5 Court for purposes of implementing and enforcing the settlement embodied in the Stipulation.

6

1.

This Stipulation and the exhibits hereto shall be considered to have been

7 negotiated, executed and delivered, and to be wholly performed, in the State of California, and the

8 rights and obligations ofthe parties to the Stipulation shall be construed and enforced in

9 accordance with, and governed by, the internal, substantive laws of the State of California without

10 giving effect to that State's choice-of-Iaw principles.

11
m. This Stipulation was drafted with substantial review and input by all

12 Parties and their counsel, and no reliance was placed on any representations other than those

13 contained herein. The Parties agree that this Stipulation shall be construed by its own terms, and

14 not by referring to, or considering, the terms of any other settlement, and not by any presumption

15 against the drafter.

16 NOW, THEREFORE, without any admission or concession on the part of Plaintiffs of any

17 lack of merit ofthe Litigation whatsoever, and without any admission or concession on the part of

18 Defendants as to the merit of the Litigation, or as to any liability or wrongdoing whatsoever by

19 Defendants, the foregoing terms are hereby STIPULATED AND AGREED, by and among the

20 Parties, subject to approval of the Court pursuant to Rule 23(e) of the Federal Rules of Civil

21 Procedure.

22
Respectfully submitted this 26th day of September, 2012.

23

24

25

26

27

28

-18-

STIPULATION FOR SETTLEMENT; CASE NO.2: 12-CV-00450

SFACTIVE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 20 of 20

1 Dated: September 26,2012 2 3 4 5
Dated: September 26,2012 6 7 8 9 10 Dated: September 26,2012 11 12 13
Dated: September 26,2012 14 15 16 17 18 Dated: September 26,2012 19 20 21 22 23 24 25 26 27 28
SFACTIVE-902852644.1

LAW OFFICE OF MARK E. MERIN
By: /s/ "Mark E. Merin" Mark E. Merin Attorneys for Plaintiffs
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
By: /s/ "Alan Schlosser" Alan Schlosser Michael Risher Attorneys for Plaintiffs
By: /s/ "Meredith Wallis" Meredith Wallis Attorneys for Plaintiffs
CROWELL & MORING LLP
By: /s/ "J. Daniel Sharp" J. Daniel Sharp Attorneys for Defendants Katehi, Hexter, Wood, and Meyer and The Regents ofthe University of California
PORTER SCOTT LLP
By: /s/ "Nancy J. Sheehan" Nancy J. Sheehan Terence J. Cassidy Attorneys for Defendants Katehi, Hexter, Wood, and Meyer and The Regents ofthe University of California

-19-

snpULAnON FOR SETTLEMENT; CASE NO.2: 12-CV-00450

 
 •·

1 Mark Merin (State Bar No. 043849)

2

LAW OFFICE OF MARK E. MERIN
1010 F Street, Suite 300

3

Sacramento, California 95814 Telephone: (91 6) 443-6911

4 Facsimile: E-Mail:

(916) 447-8336 mark@markmerin.com

5
Alan Schlosser (State Bar No. 049957)

6 Michael T. Risher (State Bar No. 191627)

Linda Lye (State Bar No. 215584)

7 Novella Coleman (State Bar No. 281632)

AMERICAN CIVIL LIBERTIES UNION

8 FOUNDATJON OF NORTHERN CALIFORNIA

39 Drumm Street

9 San Francisco, California 94111

Telephone: (415) 621-2493

10 Facsimile: (415) 255-1478

E-Mail:
11

aschlosser@aclunc.org mrisher@aclunc.org

12

llye@aclunc.org ncoleman@aclunc.org

FILED

JAN 9 2013

N - EASCTLEER"KI'J.,DJ.r.SIJ~. r[ iqldyl'RoFICCTACLOIFUORRTNIA

BY

\

~~""K

13 Meredith Wallis (State Bar No. 261457)

14 1057 East 33rd Street Oakland, California 9461 0

15 Telephone: (713) 724-4047

E-Mail:

mewallis@stanford.edu

16
Attorneys for Plaintiffs

17

CROWELL & MORING LLP

18 J. Daniel Sharp (CSB No. 131042, dsharp@crowell.com)

19

Kevin P. O'Brien (CSB No. 215148, kobrien@crowell.com) Suzanne E. Rode (CSB No. 253830, srode@crowell.com)

20 275 Battery Street, 23rd Floor

San Francisco, CA 94111 21 Telephone: 415.986.2800

22 Facsimile: 415.986.2827

23

I P O R T E R

SCOTT

A PROFESSIONAL CORPORATION

24 Nancy .J. Sheehan, (CSB No. 109419, nsheehan@porterscott.com)

25

Terence J. Cassidy, (CSB No. 099180, tcassidy@porterscott.com) 350 University Avenue, Suite 200

26 Sacramento, California 95825

(916) 929-1481 (telephone)

27 (916) 927-3706 (facsimile)

28
Attorneysfor Defendant

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
1

{01089074.DOCI

[PROPOSED] FINAL ORDER AND JUDGMENT

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 2 of 28

1

2

UNITED STATES DISTRICT COURT

3

EASTERN DISTRICT OF CALIFORNIA

4

5
ENOSH BAKER, eta/., ,
6
Plaintiffs,
v.
8
THE REGENTS OF THE UNIVERSITY 9 OF CALIFORNIA,

Case~ 2: 12-cv-00450 JAM EFB
fM 8EJJj FINAL ORDER
AND JUDGMENT

10

Defendant.

11

Pursuant to Federal Rules of Civil Procedure 23(e), and in accordance with the Stipulation

12 for Settlement entered into by all parties on September 26, 2012, it is hereby ORDERED,

13
ADJUDGED and DECREED as follows:

14 .
1. This Final Order and Judgment incorporates by reference the definitions in the

15
Stipulation for Settlement among the parties submitted as Exhibit A to the Joint Application for
16
Pre1iminary Approval of Settlement (Dckt. No. 40), attached hereto as Exhibit 1, and all
17
capitalized terms used herein that also appear in the Stipulation for Settlement have the meanings
18

set forth in the Stipulation for Settlement.
19

20

2. The Court has jurisdiction over the subject matter of this action under 28 U.S.C.

21 §§ 1331 and 1343(a)(3), (4). The court has personal jurisdiction over the Representative Class

22 Plaintiffs, Defendant, and the Class.

23

3. The Notices of the proposed settlement (in the form attached as Exhibit B to the

24 Stipulation for Settlement, as amended per order of the Court) and the Publication Notice (in the

25 form attached as Exhibit C to the Stipulation for Settlement, as amended per order of the Court)

26 were directed to members of the proposed Class in accordance with the Preliminary Approval 27 Order, dated September 27, 2012 (Dckt. No.45) and (a) constituted the best notice practicable 28 under the circumstances and (b) were reasonably calculated, under the circumstances, to apprise

101089074.DOC)

2
[PROPOSED] FINAL ORDER AND JUDGMENT

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 3 of 28

1 the Class Members of the pendency of the Litigation, the Settlement, and the release of rights

2 contained in the Stipulation for Settlement. Pursuant to, and in accordance with, Rule 23 of the
3
Federal Rules of Civil Procedure, the Court hereby finds that the Notice and Publication Notice
4
provided members of the Class due and adequate notice of the Settlement, the Stipulation for
5
Settlement, these proceedings, and the rights of members of the Classes to exclude themselves
6
from or to object to the Settlement.
7
4. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this Court hereby
8
approves the Settlement as set forth in the Stipulation for Settlement and finds that the Settlement
9
is in all respects fair, reasonable, and adequate to the Class Members. Accordingly, the Settlement
10
shall be consummated in accordance with the terms and provisions of the Stipulation for
11
12 Settlement, the terms of which are incorporated by re~erence into this Final Order and Judgment.

13

5. By its Preliminary Approval Order dated September 27, 2012, 2012, the Court

14 preliminarily certified the following Settlement Class:

15

All persons who were arrested or directly sprayed with pepper spray by

16 police officers working for or on the behalf of the University of California, Davis Police Department on November 18, 2011, on the area known as "the Quad," on

17 . the University of California, Davis campus.

18
6. The Court finds that the Settlement Class satisfies the requirements of Fed. R. Civ.
19
P. 23, including the requirements of numerosity, commonality, typicality, and adequacy pursuant
20

to Rule 23(a), and at least one of the requirements of Rule 23(b)(2) and 23(b)(l)(A). The Court
21

hereby certifies the Settlement Class as described in Paragraph 5 of this Order and Judgment.
22

23

7. The Court approves Plaintiffs Enosh Baker, David Buscho, Alyson Cook, Adam

24 Fetterman, Sarena Grossjan, Deanna Johnson, Sophia Kamran, Elizabeth Lara, Ian Lee, Soo Lee,

25 Evan Loker, Thomas Matzat, Darren Newell, Charles Parker, William Roberts, Fatima Sbeih,

26 Evka Whaley-Mayda, Kase Wheatley, Edward Geoffrey Wildanger, Noah Wiley, and Jordan

27 Wilheim (hereinafter "Representative Plaintiffs") as Class Representatives for the Settlement

28 Class.

{O:OB9074.DOC)

3
[PROPOSED] FINAL ORDER AND JUDGMENT

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 4 of 28

1

8.

The Court finds that Class Counsel, Mark E. Merin, the American Civil Liberties

2 Foundation of Northern California (''ACLU"), and Meredith Wallis have fairly and adequately

3
represented the interests of the Class and satisfied all the requirements of Fed. R. Civ. P. 23(g).
4
9. The Regents of the University of California ("Regents") shall make the settlement
5
payments called for in Section 2 of the Stipulation for Settlement within 15 (fifteen) days of the
6
Effective Date as defined in Section 1.8 of the Stipulation. The Court finds that the payments to
7
the Class Representatives are not unduly preferential, and the amounts are justified based on the
8
injuries and damages they suffered and the burdens carried by the Class Representatives in
9
commencing and prosecuting the Litigation, including the notoriety attendant on pursuit of the
10
Litigation and the amount of time and effort involved.
11

12

10. Upon the Settlement becoming Final in accordance with Section 1.11 of the

13 Stipulation for Settlement (i) the Releasing Parties are permanently barred from filing,

14 commencing, prosecuting, intervening in, participating in or receiving any benefits from any

15 lawsuit, arbitration, administrative or regulatory proceeding or order based on any or all Released

16 Claims against one or more Released Persons, and (ii) the Released Persons are and shall be

17 unconditionally, fully and finally released and forever discharged from all Released Claims

18 against each of the Releasing Parties in accordance with the Stipulation for Settlement. Each

19 Class Member may hereafter discover facts other than or different from those which he or she

20 knows or believes to be true with respect to the Released Claims, but each Class Member has
21 expressly waived and fully, finally and forever released and discharged any and all known or
22
unknown, suspected or unsuspected, asserted or unasserted, contingent or non-contingent claim
23
that would otherwise fall within the definition of Released Claims, whether or not concealed or
24
hidden, without regard to the subsequent discovery or existence of such different or additional
25
facts, upon the Settlement becoming Final.
26
11. Upon consideration of Class Counsel's Fee and Expense Statement to the Court for
27
an award of fees and costs, and the agreement of The Regents in the Stipulation for Settlement to
28
pay the sum of two hundred fifty thousand dollars ($250,000.00) for all attorneys' fees and costs

{01089074.DOCl

4
[PROPOSED] FINAL ORDER AND JUDGMENT

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 5 of 28

1 incurred in connection with the prosecution of the Litigation and administration of the settlement,
2 the Court hereby awards the sum of $250,000.00, jointly and severally, to the Law Offices of
3
Mark E. Merin, the American Civil Liberties Foundation of Northern California, and Meredith
4
Wallis.
5
12. The attorneys' fees and costs and payments to Class Members authorized and
6
approved by this Final Order and Judgment shall constitute full and final satisfaction of any and
7
all claims that Representative Plaintiffs and any Class member, and their respective counsel, may
8
have or assert for reimbursement of fees and costs or Class Representative payments, and
9
Representative Plaintiffs and Class Members, and their respective counsel, shall not seek or
10
demand payment of any additional fees and costs or Class Representative payments, except as
11
12 provided for in Section 3 of the Stipulation for Settlement, which provides that the Regents will
13 reimburse the ACLU up to $20,000 (twenty thousand dollars) for reasonable attorneys' fees and
14 costs incurred by the ACLU in reviewing and commenting on the Davis campus' written policies,
15 including the Regents' written policies applicable to the Davis campus, pertaining to the use of

16 force by police, the handling of student demonstrations, and crowd control. Except for the

Regents' obligation to reimburse the ACLU up to $20,000 as provided for in Section 3 of the

18 Stipulation for Settlement, the Released. Persons (as defined in Section 1.20 of the Stipulation for

19 Settlement) shall have no further responsibility for, and no liability whatsoever with respect to,
20 any payment or disbursement of attorneys' fees and costs or payments, nor with respect to any
21 allocation of attorneys' fees and costs or payments to any other person or entity who may assert
22 any claim thereto.
23
13. Without in any way affecting the finality of this Final Order and Judgment, this
24
Court has continuing jurisdiction as to all matters relating to the interpretation, administration, and
25
enforcement of the Stipulation for Settlement.
26
14. The Court finds that this Final Order and Judgment adjudicates all of the claims,
27
rights, and liabilities of the Parties to the Settlement, and is intended to be final and immediately
28
appealable. Neither this Final Order and Judgment, the Stipulation for Settlement, nor any other

{01089074.DOC)

5
[PROPOSED] FINAL ORDER AND JUDGMENT

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 6 of 28

1 settlement-related document shall constitute any evidence of admission of liability by the
2 Defendants or any other Released Person, nor be offered in evidence or used for any other purpose
3 in this or any other matter or proceeding except as may be necessary to consummate or enforce the
4
Stipulation for Settlement or the terms of this Final Order and Judgment, or if offered by any
5
Released Person in responding to any action purporting to assert Released Claims.
6
IT IS SO ORDERED.
7

8

JwWA{ q 9 Dated:
J.O

1JJ(3
1

11

12
13 Approved as to form:

14
Dated: Decemher 21 , 20 12
15
16
17 18 .
Dated: December 21, 2012
19
20
21
22
23
Dated: December21, 2012
24
25
26

LAW OFFICE OF MARK E. MERIN
By Is/Mark E. Merin [12[21112]
Mark E. Merin .Attorneys for Plaintiffs
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
By Is/Alan Schlosser [authorized 12/21112] Alan Schlosser Michael Risher Attorneys for Plaintiffs
By Is/Meredith Wallis [authorized 12/21/12] Meredith Wallis Attorneys for Plaintiffs .

27

28

{01089074.DOCI

6
[PROPOSED] FINAL ORDER AND JUDGMENT

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 7 of 28

1
2 Dated: December 21, 2012
3 4 5 6 7 8 9 10 11 12
13 14 15 16
17 18 19 20 21 22 23 24 25
26 27
28

PORTER SCOTT PC
By Is/Nancy J. Sheehan Nancy J. Sheehan Terence J. Cassidy Attorneys for Defendant The Regents of the University of California

!01089074.DOC)

7
[PROPOSED] FINAL ORDER AND JUDGMENT

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21112 Page 8 of 28
EXHIBIT 1

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 9 of 28 Case 2:12·cv·00450·JAM-EFB Document 40-1 Filed 09/26/12 Page 1 of 20

Mark E. Merin (State Bar No. 043849)

LAW OFFICE OF MARK E. MERIN

2 I010 F Street, Suite 300

Sacramento, California 95814

3 Telephone: (916) 443-6911

Facsimile: (916) 447-8336

4 E-Mail:

mark@markmerin.com

5. Alan Schlo~ser (State Bar No. 049957)

Michael T. Risher (State Bar No. 191627)

6 Linda Lye (State Bar No. 215584)

Novella Coleman (State Bar No. 281632)

7 AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF NORTHERN CALIFORNIA

8 39 Drumm Street

San Francisco, California 94111

9 Telephone: (415) 621-2493

Facsimile: (415) 255-1478

1o· E-Mai I:

asch losser@aclunc.org

mrisher@aclunc.org

11

llye@aclunc.org

ncoleman@aclunc.org

12 Meredith Wallis (State Bar No. 261457)
13 I 057 East 33rd Street ·

Oakland, California 94610

14 Telephone: (713) 724-4047

E-Mail:

mewallis@stanford.edu

15 Attorneys.for Plaintiffs

16

CROWELL & MORING LLP 17 J. Daniel Sharp (CSB No. 131042, dsharp@crowell.com)

Kevin P. O'Brien (CSB No. 215148, kobrien@crowell.com) 18 Suzanne E. Rode (CSB No. 253830, srode@crowell.com)

19 275 Battery Street, 23rd Floor San Francisco, CA 94111

20 Telephone: 415.986.2800

Facsimile: 415.986.2827 21

... o . . . . . . . . I SCOTT

22 A PROFESSIONAL CORPORATION

Nancy J. Sheehan, (CSB No. 109419, nsheehan@porterscott.com ) 23 Terence J. Cassidy, (CSB No. 099180, tcassidy@porterscott.com)

24 Katherine L.M. Mola, (CSB No. 264625, kmola@porterscott.com) 350 University Avenue, Suite 200

25 Sacramento, California 95825

(916) 929-1481 (telephone)

26 (916) 927-3706 (facsimile)

27 Attorneysfor Defendants THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, LINDA KATEHT, RALPH J.
28 HEXTER, FRED WOOD & JOHN MEYER

STIPULATION FOR SETTLEMENT; CASE NO. 2: 12-CV-00450

Case 2:12-.cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 10 of 28 Case 2:12ccv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 2 of 20

UNITED STATES DISTRICT COURT
2 EASTERN DISTRICT OF CALIFORNIA
3

4 ENOSH BAKER, DAVID BUSCHO,
5 AL YSON COOK, ADAM FETTERMAN, SARENA GROSSJAN, DEANNA
6 JOHNSON, SOPHIA KAMRAN, ELIZABETH LARA, JAN LEE, SOO LEE,
7 EVAN LOKER, THOMAS MATZAT, DARREN NEWELL, CHARLES PARKER,
8 WILLIAM ROBERTS, FATIMA SBEIH, EVKA WHALEY-MAYDA, KASE
9 WHEATLEY, EDWARD GEOFFREY WILDANGER, NOAH WILEY, and
10 JORDAN WILHElM,

Case No. 2: 12-cv-00450 JAM EFB
STIPULATION FOR SETTLEMENT

II

Plaintiffs,

12

v.

13 LINDA KATEHI, Chancellor of the University of California at Davis; RALPH J.
14 HEXTER, Provost and Executive Vice Chancellor of the University of California at
15 Davis; FRED WOOD, Vice Chancellor for Student Affairs at the University of California
16 at Davis; JOHN MEYER, Vice Chancellor of Administration and Resource Management at
17 the University at California at Davis; ANNETTE SPICUZZA, Chief of the
18 University of California at Davis Police Department; JOHN PIKE, Lt. in the
19 University of California at Davis Police Department; BARRY SWARTWOOD, Lt. in
20 the University of California at Davis Police Department; ALEXANDER LEE, officer of
21. the University of California at Davis Police Department; and DOES 2-50, officers of the
22 University of California at Davis Police Department,
23 Defendants.
24

25 I.

PARTIES

26

This Stipulation of Settlement dated as of September 26, 2012 (the "Stipulation"), is made

27 and entered into by and among the following parties (all collectively the ~'Parties"):

28

-I-

STIPULATION FOR SETTLEMENT; CASE NO. 2:12-CV-00450

SFACTIVE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 11 of 28 Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 3 of 20

l) Named Plaintiffs Enosh Baker, David Buscho, Alyson Cook, Adam Fetterman, 2
Sarena Grossjan, Deanna Johnson, Sophia Kamran, Elizabeth Lara, Ian Lee, Soo 3
Lee, Evan Loker, Thomas Matzat, Darren Newell, Charles Parker, William 4
Roberts, Fatima Sbeih, Evka Whaley-Mayda, Kase Wheatley, Edward Geoffrey 5
Wildanger, Noali Wiley, and Jordan Wilheim (collectively "Representative 6
Plaintiffs" or simply "Plaintiffs") on behalf of themselves and each of the Class· 7
Members, as defined below; and 8
2) The Regents of the University of California (the "Regents"), Defendant in
9 proposed Second Amended Complaint.

lO
The Stipulation is intended to fully, finally, and forever resolve, discharge, and settle the Released 11
Claims (as defined below) on the terms and conditions set forth in this Stipulation, subject to the 12
approval ofthe Court.

13
II. THE LITIGATION 14
On February 22, 2012, Plaintiff!; filed their initial Complaint in this Litigation. On July 15
20, 2012, Plaintiffs filed their First Amended Complaint ("Complaint") naming as defendants 16
members of the University ofCalifornia Administration Linda Katehi, Ralph J. Hexter, Fred 17
Wood and John Meyer; Chief of the University of California at Davis ("UC Davis") Police
18 Department Annette Spicuzza; and UC Davis Police Department officers John Pike, Barry
19 Swartwood and Alexander Lee. The Complaint alleges nine separate claims for relief, all arising
20 out of an incident involving U.C. Davis campus police and demonstrators and observers on the
21 campus ofthe University ofCalifornia, Davis, on the afternoon of Friday, November 18,2011.
22 Plaintiffs allege, inter alia, that, as part of the broader Occupy Wall Street movement, they had set
23 up symbolic tents on an area of the campus known as the Quad in protest against university
24 privatization, tuition increases, and the treatment of demonstrators at the University of California,
25. Berkeley. On Friday, November 18,2011, members ofthe UC Administration directed the
26
demonstrators to remove the tents be from the Quad by 3:00p.m. At about 3:00p.m., members
27
ofthe UC Davis Police Department declared the demonstration an unlawful assembly, ordered 28

-2-

STfPULATTON FOR SETTLEMENT; CASE NO. 2:12-CV-00450

SFACTIVE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 12 of 28 Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 4 of 20

those assembled to disperse, and commenced to remove the tents from the Quad, arresting and
2
pepper-spraying demonstrators, including Plaintiffs. Plaintiffs allege that they and others

3 similarly situated were deprived of their civil rights under the First, Fourth, and Fourteenth
4 Amendments of the U.S. Constitution by being subjected to unlawful arrest and/or excessive
5 force (including pepper spray) by or at the direction of agents or employees of the Regents. The

6 Complaint seeks compensatory, statutory, and punitive damages, declaratory and injunctive relief,
7 plus attorneys' fees and costs. Plaintiffs believe that the evidence developed to date supports
8 their position, and that their claims have legal and factual merit.

9 III. DEFENDANTS' DENIALS OF WRONGDOING AND LIABILITY
10 Defendants have denied and continue to deny each and all of the claims alleged by

11 Plaintiffs in the Litigation. Defendants contend that they acted reasonably and in good faith to

12 address legitimate health and safety risks associated with an unpermitted encampment on the
13 Quad, and not out of any intent to suppress debate and protest, or to deprive Plaintiffs of their civil

14 rights. Defendants contend that the arrests and use of force were a lawful response to the efforts of

15 Plaintiffs and others to interfere with the UC Officer Defendants' performance of their lawful
16 objectives of removing tents erected without permits in violation of University policy and

17 removing arrestees from the Quad. Defendants believe that the evidence developed to date

18 supports their position that they acted reasonably and with good intentions, without violating the
19 rights of Plaintiffs or others, and that the Litigation is without merit.

20 IV. MEDIATION AND SETTLEMENT
21 On March 14, 2012, prior to the filing of responsive pleadings by any Defendants, the
22
Parties then named in the Litigation entered into a Stipulation and Proposed Order for Extension of

23 Time to Respond to the Complaint and Other Dates in order to permit the Parties to explore

24 settlement. (Dckt. No. 10) The Court approved the stipulation. (Dckt. No. 13)

25 The Parties engaged The Hon. Raul Ramirez (Ret.) to serve as mediator. In preparation for
26
the mediation, the Parties engaged in informal discovery, including the production of documents
27
and the exchange of information. On August 15 and 16, 2012, the Parties engaged in mediation in
28

-3-

STIPULATION FOR SETTLEMENT; CASE NO. 212-CV-00450

SF A.CTIVE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 13 of 28 Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 5 of 20

Sacramento, California, with respect to the claims and defenses raised in the Litigation. As a
2
result of the mediation, the Parties reached an agreement on a settlement of the Litigation, the
3.
terms and conditions of which are set forth in this Stipulation. 4
Both Plaintiffs and Defendants have taken into account the uncertainty and risks inherent 5
in any litigation. Plaintiffs and Defendants have concluded that further conduct of the Litigation 6
would be protracted and expensive, with no certainty as to the ultimate outcome, and that it is 7
reasonable and desirable that the Litigation be fully and finally settled in the manner and upon the 8
terms and conditions set forth in this Stipulation. Plaintiffs and their counsel believe that the 9
settlement set forth in the Stipulation confers substantial benefits upon the Class, and that it is fair 10
and reasonable. Based on their evaluation, Plaintiffs and their counsel have determined that the
1 I
settlement set forth in the Stipulation is in the best interests of the Class. 12
TERMS OF STIPULATION AND AGREEMENT OF SETTLEMENT 13
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among the 14
Plaintiffs (for themselves and the Class Members, as defined below) and the Defendants, by and 15
through their respective counsel or attorneys of record, that, subject to the approval ofthe Court, 16
the Litigation and the Released Claims (as defined below) shall be finally and fully compromised, 17
settled, and released, and the Litigation shall be dismissed with prejudice, as to all Settling 18
Parties, upon and subject to the terms and conditions of the Stipulation, as follows. 19
1. Additional Definitions 20
In addition to the definitions ofthe Parties set forth in Section I above, the following terms 21
as used in this Stipulation have the meanings specified below:
22
l.1 "Administrator" means a committee comprised of one individual designated by the 23
Plaintiffs and one individual designated by the Regents.
24
1.2 "Approved Claim" means a claim submitted no later than the Bar Date by a Class

25 Member other than a Representative Plaintiff which is approved by the
26
Administrator.

27
1J "Bar Date" means that date specified herein by which Claim Forms submitted by 28

-4-

STIPULATION FOR SETTLEMENT; CASE NO 2: 12-CV-00450

SFACTIVE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 14 of 28 Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 6 of 20

Class Members must be delivered or post-marked in order to be considered for
2
payment pursuant to the terms of the settlement described in this Stipulation. 3
1.4 "Claim Form" means that form, substantially in the form attached hereto as 4
Exhibit A, which Class Members must submit in order to qualify to participate in 5
the settlement described in this Stipulation
6 1.5 "Class" or "Settlement Class," as defined in the proposed Second Amended
7 Complaint, means all persons (other than those persons who timely and validly
8 request exclusion from the Class) who, on the afternoon of November 18, 20 I I,
9 while participating in a protest on the University of California at Davis Quad, were
10 arrested and/or directly sprayed with pepper spray by a campus police officer.
II 1.6 "Class Member" means a person who falls within the definition of the Class as set
12 forth in section 1.5 above and who does not validly and timely opt out of the Class.
13 1.7 "Class Notice" means both the written "Notice" substantially in the form of
14 Exhibit B, together with the "Publication Notice" substantially in the form of
15 Exhibit C, both as approved by the Court, which shall both include the general
16 terms of the settlement set forth in this Stipulation, the general terms of the Fee
17 and Expense Application referenced in section 8 hereof, and the date of the Final
18 Approval Hearing. The Class Notice shall conform to all applicable requirements
19 ofthe Federal Rules of Civil Procedure, due process, any other applicable law, and
20 shall otherwise be in the manner and form approved by the Court.
21 1.8 "Court" means the United Stated District Court for the Eastern District of
22
California.
23 1.9 "Defendants" means the parties identified in sections I and II above as Defendants,
24
including the Regents.
25 1.10 "Effective Date," or the date upon which this settlement becomes "effective," shall
26
be when the Judgment has become Final, as defined below.
27 1.11 "Final" means the date on which the Court has entered the Judgment, substantially
28

-5-

STIPULATION FOR SETTLEMENT; CASE NO. 2:12-CV-00450

SFACT!VE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21112 Page 15 of 28 Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 7 of 20

in the form of Exhibit D attached hereto, and the last of the following shall have
2
occurred: (i) the expiration of the time to file a motion to alter or amend the
3 Judgment under Federal Rule of Civil Procedure 59(e) without any such motion
4 having been filed or, if such a motion is filed, the Judgment is not altered or
5 amended; (ii) the time in which to appeal the Judgment has passed without any
6 appeal having been taken; and (iii) if an appeal is taken, immediately after (a) the
7 date of final dismissal of any appeal or the final dismissal of any proceeding on
8 certiorari, or (b) the date of affirmance of the Judgment on appeal and the
9 expiration of time for any further judicial review whether by appeal,
10 reconsideration or a petition for a writ of certiorari and, if certiorari is granted, the
11 date of final affirmance ofthe Judgment following review pursuant to the grant.
12 For purposes of this paragraph, an "appeal" shall include any petition for a writ of
l3 certiorari or other writ that may be filed in connection with approval or
14 disapproval of this settlement, but shall not include any appeal that concerns only
15 the issue of attorneys' fees and expenses or incentive payments; any appeal on the
16 issue of attorneys' fees and expenses or incentive payments shall not in any way
17 delay or affect the time set forth above for the Judgment to become Final, or
18 otherwise preclude the Judgment from becoming Final.
19 1.12 "Final Approval Hearing" means the hearing to be held by the Court to consider
20 and determine whether the proposed Settlement ofthe Litigation as contained in
21 this Stipulation should be approved as fair, reasonable, and adequate, and whether
22
the Judgment should be entered.
23 1.13 "Judgment" means the Final Judgment and Order of Dismissal with Prejudice to
24 be rendered by the Court, substantially in the form attached hereto as Exhibit D.
25
1.14 "Plaintiffs' Counsel" mean Mark E. Merin, attorneys with the American Civil
26 Liberties Foundation ofNorthern California, and Meredith Wallis.
27
1.15 "Litigation" means Enosh Baker et al., on behalfofthemselves and on beha~fofall
28

-6-

STIPULATION FOR SETTLEMENT; CASE NO. 2;12-CV-00450

SFACTlVl'r902852644.1

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 16 of 28 Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 8 of 20
persons similarly situated, v. Linda Katehi, et al., United States District Court, 2
Eastern District of California, Case No. 2: 12-CV-00450-JAM-EFB. 3
1.16 "Notice" means written notice to be sent by e-mail substantially in the form of 4
Exhibit B, as approved by the Court. 5
1.1 7 "Notice Date" means the date that Notice is first sent or published. 6
1.18 "Publication Notice" means notice substantially in the form of Exhibit C to be 7
published in accordance with the Preliminary Approval Order. 8
1.19 "Released Claims'' means any and all claims, debts, demands, controversies, 9
obligations, losses, rights or causes of action or liabilities of any kind or nature 10
whatsoever (including, but not limited to, any claims for damages, whether 1\
compensatory, statutory, special, incidental, consequential, punitive, exemplary or 12
otherwise, injunctive relief, declaratory relief, attorneys' fees, costs, expenses, or l3
any other form of legal or equitable relief whatsoever), whether based on federal, 14
state, local, statutory or common law or any other law, rule or regulation, and 15
whether known or unknown; fixed or contingent, suspected or unsuspected, 16
concealed or hidden, accrued or unaccrued, liquidated or unliquidated, at law or in 17
equity, matured or unmatured, whether class or individual in nature, including 18
Unknown Claims (as defined below), that (i) have been asserted in this Litigation 19
by the Plaintiffs and Class Members or any of them against any of the Released 20
Persons (as defined below), or (ii) could have been asserted in the Litigation or any 21
other forum by the Plaintiffs and Class Members or any of them against any ofthe
22
Released Persons which arise out of or are based upon or related to the allegations, 23
transactions, facts, matters or occurrences, set forth, or referred to in· the Litigation, 24
including, without limitation, claims that the Defendants violated the civil rights of 25
the Plaintiffs and/or Class Members, or injured them in any way on the afternoon 26
of November 18, 2011. Nothing in this release provision shall prevent any person
27
from seeking a certificate and record of detention as provided in California Penal
28
STIPULATION FOR SETTLEMENT; CASE NO. 2: 12-CV..()()450
SFACTTVE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21112 Page 17 of 28 Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 9 of 20

Code § 851.6, or seeking a finding of factual innocence as provided for in
2
California Penal Code§ 851.8. 3
1.20 "Released Persons" means each and all of the Defendants named in the First 4
Amended Complaint, including but not limited to Annette Spicuzza, as well as the 5
Regents, and their officers, employees, managers, personal or legal 6
representatives, predecessors, successors, agents, attorneys, officials, trustees, as 7
well as any person or entity claimed to have been acting under the authority of, at 8
the direction of, or in concert with the Defendants, directly or indirectly, in any 9
manner whatsoever on November 18, 2011, in connection with the subject matter 10
of the Litigation and/or the Released Claims. The term "Released Persons" II
includes the City of Davis, its agents, officials and employees, and all individual 12
members of the City of Davis Police Department who were involved in any way 13
with the events on the UC Davis Quad on November 18, 2011. 14
1.21 "Releasing Parties" means the Representative Plaintiffs and all Class Members, 15
heirs, executors, administrators, agents, legal representatives, assigns and
16 successors, but only to the extent their claims are derived from the claims of Class
17 Members, excluding any Class Members who timely opt out of the Class.
18 1.22 "Settling Parties" means, collectively, the Defendants, including the Regents, and
19 the Plaintiffs on behalf of the Class.
20· 1.23 "Unknown Claims" means any Released Claims which Releasing Parties do not
21 know or suspect to exist in his, her, or its favor at the time of the release of the
22
Released Persons which, if known by him, her, or it, might have affected his, her, 23
or its settlement with and release of the Released Persons, or might have affected 24
his, her, or its decisions with respect to this settlement. With respect to any and all
25
Released Claims, the Settling Parties stipulate and agree that, upon the Effective 26
Date, Plaintiffs shall expressly waive and relinquish, and each ofthe Class
27
Members shall be deemed to have, and by operation of the Judgment shall have,
28

-8-

STIPULATION FOR SETTLEMENT; CASE NO 2:12-CV-00450

SI'ACTJVE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 18 of 28 Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 10 of 20

expressly waived and relinquished, the provisions, rights, and benefits of

2
California Civil Code§ 1542, which provides:

3 A general release does not extend to claims which the creditor does not

4

know or suspect to exist in his or her favor at the time of executing the

release, which if known by him or her must have materially affected

5

his or her settlement with the debtor.

6 Releasing Parties may hereafter discover facts in addition to or different from

7
those which he, she or it now knows or believes to be true with respect to the

8 subject matter of the Released Claims, but Releasing Parties upon the Effective

9 Date shall expressly, fully, finally, and forever settle and release and each Class

10 Member, upon the Effective Date, shall be deemed to have, and by operation ofthe

II Judgment shall have, fully, finally, and forever settled and released any and all

12 Released Claims, known or unknown, suspected or unsuspected, contingent or

13 non-contingent, whether or not concealed or hidden, which now exist, or

14 heretofore have existed, upon any theory of law or equity now existing or coming

15 into existence in the future, including, but not limited to, conduct which is

16 negligent, intentional, with or without malice, or a breach of any duty, law or rule,

17 without regard to the subsequent discovery or existence of such different or

18 additional facts. Plaintiffs acknowledge, and the Class Members shall be deemed

19 by operation of the Judgment to have acknowledged, that the foregoing waiver was

20 separately bargained for and is a key element of the settlement of which this

21 release is a part.

22

2. Monetary Benefits to Be Provided to the Class

23
In consideration of the Release set forth in section 9 of this Stipulation and the entry of

24 Judgment on the claims of all Class Members, the Regents will pay the following amounts within

25 15 (fifteen) days of the Effective Date:

26

a.

Representative Plaintiffs: Regents will pay the sum of$630,000.00 (six

27 hundred thirty thousand dollars) to the Representative Plaintiffs, which constitutes $30,000 for

28

-9-

STIPULATION FOR SETTLEMENT; CASE NO. 2: 12-CV-00450

SFACT!VE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 19 of 28 Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 11 of 20

each ofthe 21 Representative Plaintiffs, by a single check made payable to the Law Office of

2
Mark E. Merin, Attorney Client Trust Fund, to be distributed to the Representative Plaintiffs by 3
that office. The payment shall be delivered to the Law Office of Mark E. Merin, 10 I 0 F Street,

4
Sacramento, CA 95814, no later than three days following the Effective Date of the settlement. 5
The Parties stipulate and acknowledge that the payments to the Class Representatives are not 6
unduly preferential, and the amounts are justitied based on the injuries they allegedly suffered,

7
and the burdens carried by the Class Representatives in commencing and prosecuting the 8
Litigation, including the notoriety attendant on pursuit of the Litigation and the amount oftime

9 and effort involved.

10 b. Other Class Members: To each additional Class Member other than the

11
Representative Plaintiffs who submits an Approved Claim, the Regents will pay the sum of

12· $20,000 (twenty thousand dollars); provided, however, that ifthere are more than five total

13 Approved Claims, the amount paid in settlement of each Approved Claim shall be reduced pro

14
rata so that the total amount paid for all Approved Claims does not exceed $100,000 (one hundred

15 thousand dollars). For example, ifthere are six Approved Claims, the settlement payment for
16 each such Approved Claim shall be $16,667 (sixteen thousand, six hundred sixty-seven dollars).

17
The procedure for making such payments is as follows: 18
(1) Prior to the time that Notice is sent or published, Plaintiffs and the 19
Regents shall each designate an individual to serve as a member of the Administrator. The 20
designated individuals may consult with their respective clients or with other attorneys who are

21
working on this matter in considering the appropriate action to be taken on the claims. 22
(2) Putative Class Members may submit Claim Forms in accordance 23
with the provisions set forth in the Notice. Within thirty (30) days ofthe submission of any such

24 Claim Forms, the Administrator shall attempt to agree on whether or not the claim is Approved.

25 If the parties' representatives comprising the Administrator cannot agree, the disputed Claim
26 Forms shall be submitted to Magistrate Judge Edmund F. Brennan, the Magistrate Judge assigned
27 to this action, for final, binding determination. The Magistrate Judge's determination shall be
28

-I 0-

STIPULATION FOR SETTLEMENT; CASE NO. 2:12-CV-00450

SFACTIVE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 20 of 28 Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 12 of 20

J
based on the forms and any available evidence, including but not limited to video or photographs
2
taken on November 18, 2011. Putative Class Members who submit claims shall be notified in 3
writing whether their claim is Approved or not prior to the date of the Final Approval Hearing. 4
Putative Class Members who submit Approved Claim Forms shall receive payment of their 5
claims by check made payable to them and delivered to the addresses specified on their Claim 6
Forms within fifteen (15) days ofthe Effective Date ofthe settlement, unless there are five or 7
more approved claimants, in which case one check for $100,000 will be made payable to the Law 8
Office of Mark E. Merin, Attorney Client Trust Fund, to be distributed to the approved claimants 9
by that office.

10 3. Additional Class Relief

11

a.

For two years following the Effective Date, the Regents will provide

12 Plaintiffs' attorneys from the American Civil Liberties Union Foundation of Northern California

13 ("ACLU") an opportunity to review, comment, and provide input on the Davis campus' written

14 policies, including the Regents' written policies applicable to the campus at Davis, pertaining to

15 the use of force by police, the handling of student demonstrations, and crowd control. This shall

16 include a fair and adequate opportunity to review, comment and provide input, prior to their

17 adoption, on any new or revised written Davis campus policies pertaining to these subjects. The

18 Regents will reimburse up to $20,000 (twenty thousand dollars) for reasonable attorneys' fees and
19 costs incurred by the ACLU in conducting such review, with payment being made within 45 days
20 from the submission of invoices for time spent by ACLU staff on such review. Any such
21 invoices shall be sent to the attention of Margaret Wu at the Office of General Counsel and to Jim
22
Taylor of Sedgwick.

23 b. Within fifteen (15) days ofthe Effective Date of the settlement, Chancellor
24 Linda Kate hi will cause to be delivered to each of the twenty-one (21) Representative Plaintiffs
25
and any other putative class members who submit an Approved Claim Form a personal, written
26
apology for the incident and injuries and damages they suffered as a result thereof. 27
c. As part ofthe settlement, a Student Affairs representative on the Davis
28

-ll-

STIPULATTON FOR SETTLEMENT; CASE NO. 2:12-CV-00450

SFACTIVE-902&52644. 1

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 21 of 28 Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 13 of 20

campus will provide reasonable assistance and counseling to the Representative Plaintiffs (and
2
any other putative class members who submit an Approved Claim Form) with academic 3
performance issues that allegedly arose as a result of the incident. Plaintiffs hereby acknowledge 4
that under the University of California's system of shared governance, the Academic Senate and 5
the faculty of the University of California are accorded the authority for evaluating student 6
academic performance, and that The Regents make no promise or commitment that any Plaintiff 7
will be granted an exception to policies or will receive a grade change. 8
4. Initial Procedural Steps 9
a. The Parties will stipulate to the filing of a Second Amended Complaint in
10 which the only named defendant will be the Regents. Defendants Katehi, Hexter, Meyer, Wood,
II Spicuzza, Pike, Swartwood, and Lee shall not be named as Defendants in the Second Amended
12 Complaint. The Second Amended Complaint will be filed for purposes of entering into and
13 effectuating the settlement set forth in this Stipulation. The Regents waives its immunity from
14 suit under the Eleventh Amendment to the U.S. Constitution for this purpose.
15 5. Preliminary Approval
16 As soon as possible, and in no event more than five days, after execution of this
17 Stipulation, the Settling Parties shall jointly submit the Stipulation together with its Exhibits to
18 the Court and shall jointly apply for entry of a Preliminary Approval Order substantially in the
19 form set forth in Exhibit E, requesting, inter alia, the preliminary approval of the Settlement set
20
forth in this Stipulation, conditional certification ofthe Settlement Class, appointment ofClass 21
Counsel, approval/dissemination of Class Notice, approval of the proposed Claim Form, and
22
entry of an order staying any activities in the Litigation except for activities related to the 23
approval and implementation of the Settlement. 24
6. Class Notice 25
a. Beginning not more than 14 days after the entry of the Preliminary
26
Approval Order, the Notice of the proposed settlement shall be given in the following manner:
27
(i) the Regents will cause the text of the Notice substantially in the form attached hereto as
28

-12-

STIPULATION FOR SETTLEMENT; CASE NO.2: 12-CV-0045'0

SFACTIVE-90285'2644.1

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 22 of 28 Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 14 of 20

Exhibit B to be sent by e-mail to all students enrolled in one or more classes at the Davis campus
2 during the Fall Quarter of20 II, for whom the Regents have a valid e-mail address~ (ii) the

3 Regents shall cause the Publication Notice substantially in the form attached hereto as Exhibit C

4
to be published once each in the Davis Enterprise and the UC Davis Aggie; and (iii) the Regents 5
shall cause copies of the Notice, the Publication Notice, and the Claim Form to be posted online

6 at www.ucdavis.edu. Copies of the Notice and Claim Form shall be sent via electronic or
7 standard class mail to those Class Members who so request.

8 b. As set forth in the proposed Notice, the putative Class Members shall have

9 30 (thirty) days to file a Claim Form, or to exclude themselves ("opt out") of this Settlement and
10 from the Class by timely submitting a request to opt out in accordance with the procedure set
1 l forth in the Notice.

12 c. As set forth in the proposed Notice, objections to the proposed Settlement
13
must be filed not later than 30 (thirty) days after the Notice Date.

14 7. Final Approval

15 A Final Approval Hearing shall be set no less than seventy-five (75) days after the Court
16 issues its Preliminary Approval Order. The parties jointly request that, at the Final Approval

17 Hearing, the Court approve the settlement of the Litigation and enter Judgment in a form

18 substantially similar to that attached hereto as Exhibit D. At least fifteen (15) days prior to the

19 Final Approval Hearing, Plaintiffs' Counsel shall submit a Fee and Expense Statement to the

20 Court for an award of attorneys' fees and costs as set forth in Section 8 below, to be determined

21 by the Court at the Final Approval Hearing.

22 8. Plaintiffs' Counsels' Attorneys' Fees and Expenses

23 The Regents has agreed to pay, and Plaintiffs' counsel has agreed to accept. the sum of
24
$250,000 (two hundred fifty thousand dollars) for all attorneys' fees and costs incurred in

25 connection with the prosecution of the Litigation and the administration of the settlement.
26
Accordingly, Plaintiffs' counsel shall submit a Fee and Expense Statement to the Court for an

27 award of attorneys' fees and costs for all work performed on behalf of the Class, not to exceed,
28

-13-

STIPULATION FOR SETTLEMENT; CASE NO. 2: 12-CV-00450

SFACTJVE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21112 Page 23 of 28 Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 15 of 20

$250,000, which application the Defendants shall not oppose. Provided the Court approves the
2
Fee and Expense Statement, the Regents will pay the amount awarded by the Court within 15 3
(fifteen) days ofthe Effective Date, payable jointly to the Law Offices of Mark E. Merin, the
4
American Civil Liberties Union Foundation of Northern California and Meredith Wallis. 5
9. Releases and Bar Order 6
a. Upon the Effective Date, as defined above, the Releasing Parties shall be 7
deemed to have, and shall have, fully, finally, and forever waived, released, relinquished, 8
discharged, and dismissed each and every one of the Released Claims against each and every one
9
ofthe Released Persons.
10
b. Upon the Effective Date, the Releasing Parties shall be forever barred and
11 enjoined from commencing, instituting, prosecuting or continuing to prosecute any action or other
12 proceeding in any court of law or equity, arbitration tribunal, or administrative forum, asserting
13 the Released Claims against any of the Released Persons. Nothing in this Stipulation shall
14 prevent any person from seeking a certificate and record of detention as provided in California
15 Penal Code § 851.6, or from seeking a finding of factual innocence as provided for in California
16
Penal Code § 851 .8. 17
c. Upon the Effective Date, each of the Released Persons shall be deemed to 18
have, and by operation of the Judgment shall have, fully, finally, and forever released, 19
relinquished, and discharged Plaintiffs and Plaintiffs' Counsel from all claims (including 20
Unknown Claims) arising out of; relating to, or in connection with the institution, prosecution, 21
assertion, settlement or resolution of the Litigation or the Released Claims.
22
d. No person shall have any claim against the Administrator, or any member 23
thereof, based on the administration of this settlement, including but not limited to any 24
determination regarding the approval or disapproval of any claim submitted. 25
The Parties intend that this Stipulation eliminate all further risk and liability of the Released 26
Persons relating to the Released Claims, and accordingly agree that the Court shall include in the 27
Final Approval Order a Bar Order Provision as follows: "the Releasing Parties are permanently 28

-14-

STIPULATION FOR SETTLEMENT; CASE NO.2: 12-CV-00450

SFACTIVE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 24 of 28 Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 16 of 20

I enjoined from filing, commencing, prosecuting, intervening in, participating in or receiving any
2 benefits from any lawsuit, arbitration, administrative or regulatory proceeding or order based on
3 any or all Released Claims against one or more Released Persons"
4 l 0. Waiver and Covenant not to Sue
5 Upon the Effective Date, each of the individuals named as Defendants in the First
6 Amended Complaint shall be deemed to have, and shall have, fully, finally, and forever waived,
7 released, and relinquished any claim for malicious prosecution in connection with the Litigation.
8 Each such Defendant covenants that he or she will not institute any claim, lawsuit, arbitration, or
9 proceeding of any nature against Plaintiffs, any Class Member, or Plaintiffs' Counsel for any act
10 or omission in connection with this Litigation.
11 11. Conditions of Settlement, Effect of Disapproval
12 This Settlement is subject to the following conditions:
13
a. This Settlement is subject to the approval of the Court as provided in
14 Federal Rule of Civil Procedure 23(e).
15·
b. In the event that two or more Class Members opt out of the Class in
16 accordance with the terms of the Notice, this Stipulation and the Settlement contemplated hereby
17 shall be voidable at the election of the Regents. Jn the event that the Regents is entitled to and
18 elects to void this Stipulation for Settlement, the Regents must deliver formal written notice of
19 such election to counsel for all Parties within 14 (fourteen) days after the deadline for Class
2o' Members to opt out of the Class.
21 c. In the event that the Stipulation is not approved by the Court, is voided by
22 the Regents, or otherwise fails to become effective in accordance with its terms and
23 provisions, the Settling Parties shall be restored to their respective positions in the Litigation as of
24 August 16,2012. In such event, the terms and provisions ofthis Stipulation, with the exception
25 of this section and section 4.a hereof, shall have no further force and effect with respect to the
26 Settling Parties and neither this Stipulation nor any submission by any party in connection with
27
the Motion(s) for Preliminary or Final Approval or Application for Attorneys' Fees and Expenses
28

-15-

STIPULATION FOR SETTLEMENT; CASE NO. 2:12-CV-00450

SfACTIVE-902852644.1

· Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 25 of 28 Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 17 of 20

or Appeal therefrom, or any related motions or proceedings, may be used in this Litigation or in
2
any other proceeding for any purpose, and any judgment or order entered by the Court in 3
accordance with the terms of this Stipulation shall be treated as vacated, nunc pro tunc. 4
Notwithstanding the foregoing, no order of the Court or modification or reversal on appeal of any
5
order of the Court concerning the amount of any attorneys' fees, costs, or expenses awarded by 6
the Court to any of Plaintiffs' Counsel shall constitute grounds for cancellation or termination of 7
the Stipulation.
8 12. Miscellaneous Provisions
9 a. The Settling Parties (a) acknowledge that it is their intent to consummate
10 the Settlement set forth in this Stipulation, and (b) agree to cooperate to the extent reasonably
11 necessary to effectuate and implement all terms and conditions of the Stipulation and to exercise
12 their best efforts to accomplish and effectuate the terms and conditions of the Stipulation.
IJ
b. The Settling Parties intend this settlement to be a final and complete 14
resolution of all disputes between them with respect to the Litigation. The settlement 15
compromises claims which are contested and shall not be deemed an admission by any Settling 16
Party as to the merits of any claim or defense. The Settling Parties agree that the terms ofthe 17
settlement were negotiated in good faith by the Settling Parties, and reflect a settlement that was 18
reached voluntarily after consultation with competent legal counsel and with the assistance of a 19
professional mediator.
20
c. Neither this Stipulation nor the settlement contained herein, nor any act 21
performed or document executed pursuant to or in furtherance of the Stipulation or the settlement:
22
(a) is or may be deemed to be or may be used as an admission of, or evidence of, the validity of 23
any Released Claim, or of any wrongdoing or liability of the Defendants; or (b) is or may be
24
deemed to be or may be used as an admission of, or evidence of, any fault or omission of any of 25
the Defendants in any civil, criminal or administrative proceeding in any court, administrative
26
agency or other tribunal. The Defendants may file the Stipulation and/or the Judgment in any 27
action that may be brought against them in order to support a defense or counterclaim based on
28

-16-

STIPULATION FOR SETTLEMENT; CASE NO 2:12-CV-00450

SFACT\VE-902852644.1

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 26 of 28 Case 2:12-cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 18 of 20

principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or 2
reduction, or any other theory of claim preclusion or issue preclusion or similar defense.

3 d. All agreements made and orders entered during the course of the Litigation

4 relating to the confidentiality of information shall survive this Stipulation. The parties to the

5 Litigation shall comply with the stipulated protective order (Dkt. No. 29), relating to the

6
disposition of confidential information and documents.

7 e. All of the exhibits to this Stipulation are material and integral parts hereof

8 and are fully incorporated herein by this reference.

9 f. The Stipulation and the exhibits attached hereto constitute the entire

10 agreement among the parties hereto and no representations, warranties or inducements have been

11 made to any party concerning the Stipulation or its exhibits other than the representations,

12 warranties, and covenants contained and memorialized in such documents. Except as otherwise

13 provided herein, each party shall bear its own costs.

14 g. This Stipulation may be amended or modified only by a written instrument

15 signed by or on behalf of all Settling Parties. Lead Counsel, on behalf of the Class, is expressly

16 authorized by the Plaintiffs to take all appropriate action required or permitted to be taken by the

17 Class pursuant to the Stipulation to effectuate its terms and also is expressly authorized to enter

18 into any modifications or amendments to the Stipulation on behalf ofthe Class which they deem

19 appropriate.

20 h. Each counsel or other Person executing the Stipulation or any of its

21 exhibits on behalf of any party hereto hereby warrants that such Person has the full authority to do
22 so.

23 i. The Stipulation may be executed in one or more counterparts. All executed
24 counterparts and each ofthem shall be deemed to be one and the same instrument. A complete

25 set of executed counterparts shall be filed with the Court. Signatures of parties transmitted by
26 facsimile or scanned by e-mail ("pdf') are deemed to be equivalent of original signatures of such

27 parties.

28

-17-

STIPULATION FOR SETTLEMENT; CASE NO. 2: 12-CV -00450

SFACTIVE-902852644. I

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 27 of 28 Case 2:12~cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 19 of 20

J.

The Stipulation shall be binding upon, and inure to the benefit of, the

2 successors and assigns of the Parties hereto.

3 k. The Court shall retain jurisdiction with respect to implementation and

4 enforcement ofthe terms of this Stipulation, and all parties hereto submit to the jurisdiction ofthe

5. Court for purposes of implementing and enforcing the settlement embodied in the Stipulation.

6

I.

This Stipulation and the exhibits hereto shall be considered to have been

7 negotiated, executed and delivered, and to be wholly performed, in the State of California, and the

8 rights and obligations of the parties to the Stipulation shall be construed and enforced in

9 accordance with, and governed by, the internal, substantive laws of the State of California without
w
giving effect to that State's choice-of-law principles.

1 1
m. This Stipulation was drafted with substantial review and input by all

12 Parties and their counsel, and no reliance was placed on any representations other than those

13 contained herein. The Parties agree that this Stipulation shall be construed by its own terms, and

14 not by referring to, or considering, the terms of any other settlement, and not by any presumption

15 against the drafter.

16 NOW, THEREFORE, without any admission or concession on the part of Plaintiffs of any

17 lack of merit of the Litigation whatsoever, and without any admission or concession on the part of

18 Defendants as to the merit of the Litigation, or as to any liability or wrongdoing whatsoever by

19 Defendants, the foregoing terms are hereby STIPULATED AND AGREED, by and among the

20 Parties, subject to approval of the Court pursuant to Rule 23(e) of the Federal Rules of Civil

21 Procedure.

22 Respectfully submitted this 26th day of September, 2012.

23

24

25

26

27

28

-18-

STIPULATION FOR SETTLEMENT; CASE NO.2: l2..CV-00450

SFACTIVE-902852644.1

'

Case 2:12-cv-00450-JAM-EFB Document 50-4 Filed 12/21/12 Page 28 of 28

Case 2:12·cv-00450-JAM-EFB Document 40-1 Filed 09/26/12 Page 20 of 20

Dated: September 26, 2012 2 3 4 5
Dated: September 26, 2012 6
7
8 9 10 Dated: September 26, 2012 11 12 13
Dated: September 26, 2012 14 15 16 17 18' Dated: September 26, 2012 19 20 21 22 23 24 25 26
27
28
SFACTIVE-902852644.1

LAW OFFICE OF MARK E. MERIN
By: Is/ "Mark E. Merin"
Mark E. Merin Attorneys for Plaintiffs
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
By: Is/ "Alan Schlosser"
Alan Schlosser Michael Risher Attorneys for Plaintiffs
By: /s/ "Meredith Wallis" Meredith Wallis Attorneys for Plaintiffs
CROWELL & MORING LLP
By: Is/ "J. Daniel Shaq~" J. Daniel Sharp
Attorneys for Defendants Katehi, Hexter, Wood, and Meyer .and The Regents of the University of California
PORTER SCOTT LLP
By: /s/ "Nancy J. Sheehan" Nancy J. Sheehan Terence J. Cassidy Attorneys for Defendants Katehi, Hexter, Wood, and Meyer and The Regents of the University of California

-19-

STIPULATION FOR SETTLEMENT; CASE NO. 2:12-CV-00450

Baker, et al v. Katehi, et al, Docket No. 2:12-cv-00450 (E.D. Cal. Feb 22, 2012), Court Docket
General Information

Case Name Docket Number Court Nature of Suit Related Opinion(s)

Baker, et al v. Katehi, et al 2:12-cv-00450 United States District Court for the Eastern District of California Civil Rights: Other 2012 BL 252470

© 2013 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6M5ERK6O2? documentName=54.pdf&amp;fmt=pdf

 
 Case 2:12-cv-00450-JAM-EFB Document 1 Filed 02/22/12 Page 1 of 14

1 Mark E. Merin (State Bar No. 043849)

LAW OFFICE OF MARK E. MERIN

2 1010 F Street, Suite 300

Sacramento, California 95814

3 Telephone: (916) 443-6911

Facsimile: (916) 447-8336

4 E-Mail:

mark@markmerin.com

5 Alan Schlosser (State Bar No. 049957)

Michael T. Risher (State Bar No. 191627)

6 Linda Lye (State Bar No. 215584)

Novella Coleman (State Bar No. 281632)

7 AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF NORTHERN CALIFORNIA

8 39 Drumm Street

San Francisco, California 94111

9 Telephone: (415) 621-2493

Facsimile: (415) 255-1478

10 E-Mail:

aschlosser@aclunc.org

mrisher@aclunc.org

11

llye@aclunc.org

ncoleman@aclunc.org

12

Meredith Wallis (State Bar No. 261457) 13 1057 East 33rd Street

Oakland, California 94610

14 Telephone: (713) 724-4047

E-Mail:

mewallis@stanford.edu

15

Attorneys for Plaintiffs

16 UNITED STATES DISTRICT COURT

17 EASTERN DISTRICT OF CALIFORNIA

18

ENOSH BAKER, DAVID BUSCHO, SARENA Case No.

19 GROSSJAN-NAVARRO, DEANNA JOHNSON,

SOPHIA KAMRAN, ELIZABETH LARA, IAN COMPLAINT FOR DAMAGES FOR

20 LEE, SOO LEE, EVAN LOKER, THOMAS

VIOLATION OF CIVIL RIGHTS WITH

MATZAT, DARREN NEWELL, CHARLES

SUPPLEMENTAL CLAIMS FOR

21 PARKER, WILLIAM ROBERTS, FATIMA

VIOLATION OF THE CALIFORNIA STATE

SBEIH, EVKA WHALEY-MAYDA, KASE

CONSTITUTION AND STATUTES

22 WHEATLEY, EDWARD GEOFFREY

WILDANGER, NOAH WILEY, and JORDAN

JURY TRIAL DEMANDED

23 WILHEIM,

24

Plaintiffs,

25

vs.

26 LINDA KATEHI, Chancellor of the University of California at Davis; RALPH J. HEXTER, Provost
27 and Executive Vice Chancellor of the University of California at Davis; FRED WOOD, Vice
28 Chancellor for Student Affairs at the University of
(Defendants Continued…)
1
COMPLAINT; JURY TRIAL DEMANDED
Enosh Baker, et al. vs. Linda Katehi, et al.; United States District Court, Eastern District of California, Case No. __________

Case 2:12-cv-00450-JAM-EFB Document 1 Filed 02/22/12 Page 2 of 14

1 California at Davis; JOHN MEYER, Vice Chancellor of Administration and Resource
2 Management at the University at California at Davis; ANNETTE SPICUZZA, Chief of the
3 University of California at Davis Police Department; JOHN PIKE, Lt. in the University of
4 California at Davis Police Department; and DOES 1 – 50, officers of the University of California at
5 Davis Police Department.

6

Defendants.

7

INTRODUCTION

8 On November 18, 2011, University of California at Davis campus police attacked a peaceful
9 assembly at the center of the campus quad, arresting many students without probable cause and shooting
10 high-concentration pepper spray directly into the faces of students who were engaging in nonviolent
11 protest. The actions of the police provoked shock and outrage nationally, in part because the video
12 footage was so reminiscent of the infamous images of police in the South using fire hoses to spray and
13 disperse nonviolent student sit-ins during the civil rights movement.
14 The 19 plaintiffs in this action were protesting university privatization, distribution of resources,
15 tuition hikes, police brutality and other onerous public policies adopted by the University administration
16 and the Board of Regents. Their protest was an integral part of continuing, vigorous assembly and free
17 speech activities which had been conducted by students for weeks at the same time the nationwide
18 Occupy Wall Street movement mobilized thousands nationwide. Seventeen of the plaintiffs were U.C.
19 Davis students at the time; the other two are recent graduates.
20 This action seeks the following relief: a declaration from the Court that campus policies and
21 practices that led to the abuse of the plaintiffs and others offend both the state and federal constitutional
22 guarantees of the rights to free speech and assembly and that the pepper-spraying and arrests of plaintiffs
23 violated their state and federal constitutional rights; an injunction to prevent repetition of such a response
24 to a non-violent protest; and compensatory and punitive damages against the individual perpetrators of
25 the illegal acts and their superiors who ordered, directed and/or condoned this outrageous conduct..
26 I. JURISDICTION AND VENUE
27
1. Because this civil-rights action arises under the United States Constitution, this Court has 28

2
COMPLAINT; JURY TRIAL DEMANDED Enosh Baker, et al. vs. Linda Katehi, et al.; United States District Court, Eastern District of California, Case No. __________

Case 2:12-cv-00450-JAM-EFB Document 1 Filed 02/22/12 Page 3 of 14

1 jurisdiction under 28 U.S.C. §§ 1331 and, 1343(a)(3), (4). This Court has supplemental jurisdiction over

2 the state law claims under 28 U.S.C. §1367.

3 2. At all times pertinent to this Complaint and in taking all of the actions described in this

4 Complaint, Defendants, and each of them, acted and threatened to act under color of state law.

5 3. The events giving rise to this action occurring in Yolo County, California which is located

6 within this district.

7

II. PARTIES

8 4. Plaintiff ENOSH BAKER graduated from U.C. Davis in 2009 and, at all times material to
9 this Complaint, was teaching on campus and awaiting decision on his graduate program application. He
10 was participating in a peaceful demonstration on the U.C. Davis campus on November 18, 2011, when he
11 was picked up by Defendant U.C. Davis police officers Does 2 and 3, thrown forcefully to the ground,
12 handcuffed behind his back, and illegally arrested. His head struck a sprinkler head during the arrest.
13 5. Plaintiff DAVID BUSCHO is a student at U.C. Davis who, while participating in a
14 peaceful assembly on U.C. Davis campus on November 18, 2011, was sprayed repeatedly with pepper
15 spray by Defendant U.C. Davis police officers Lt. John Pike and/or Doe 1 without legal cause or
16 justification.
17 6. Plaintiff SARENA GROSSJAN-NAVARRO is a U.C. Davis student who was
18 participating in a peaceful demonstration on the U.C. Davis campus on November 18, 2011, when she
19 was pepper sprayed without legal cause or justification by Defendant U.C. Davis police officer Lt. John
20 Pike and/or Doe 1.
21 7. Plaintiff DEANNA JOHNSON is a student at U.C. Davis who was participating in a
22 peaceful demonstration on U.C. Davis campus on November 18, 2011, when she was pepper sprayed
23 without legal cause or justification by Defendant U.C. Davis police officer Lt. John Pike and/or Doe 1.
24 8. Plaintiff SOPHIA KAMRAN is a student at U.C. Davis who was participating in a
25 peaceful demonstration on U.C. Davis campus on November 18, 2011, when she was pepper sprayed
26 without legal cause or justification by Defendant U.C. Davis police officer Lt. John Pike and/or Doe 1.
27 9. Plaintiff ELIZABETH LARA is a student at U.C. Davis who was participating in a
28

3
COMPLAINT; JURY TRIAL DEMANDED Enosh Baker, et al. vs. Linda Katehi, et al.; United States District Court, Eastern District of California, Case No. __________

Case 2:12-cv-00450-JAM-EFB Document 1 Filed 02/22/12 Page 4 of 14
1 peaceful assembly on the U.C. Davis campus on November 18, 2011, when she was illegally arrested by
2 Defendant U.C. Davis police officers Does 16 and 17 and transported to the campus jail.
3 10. Plaintiff IAN LEE is a student at U.C. Davis who was participating in a peaceful
4 demonstration on the U.C. Davis campus on November 18, 2011, when he was pepper sprayed by
5 Defendant U.C. Davis police officer Lt. John Pike and/or Doe 1 without legal cause or justification and
6 then pinned to the ground by defendant Pike.
7 11. Plaintiff SOO LEE is a student at U.C. Davis who was participating in a peaceful
8 demonstration on the U.C. Davis campus on November 18, 2011, when she was pepper sprayed by
9 Defendant U.C. Davis police officer Lt. John Pike and/or Doe 1 without legal cause or justification.
10 12. Plaintiff EVAN LOKER, at all times material to this complaint, was a student at U.C.
11 Davis and was participating in a peaceful demonstration on the U.C. Davis campus on November 18,
12 2011, when he was pepper sprayed by Defendant U.C. Davis police officer Lt. John Pike and/or Doe 1
13 without legal cause or justification.
14 13. Plaintiff THOMAS MATZAT is a student at U.C. Davis who was participating in a
15 peaceful demonstration on the U.C. Davis campus on November 18, 2011, when he was selected for
16 illegal arrest, then handcuffed painfully behind his back and grabbed and dragged by Defendant U.C.
17 Davis police officers, Does 23 and 4, to a police car and transported to campus jail.
18 14. Plaintiff DARREN NEWELL is a student at U.C. Davis who was participating in a
19 peaceful demonstration on the U.C. Davis campus on November 18, 2011, when he was targeted for
20 illegal arrest. Two U.C. Davis police officers, defendants Doe 5 and 6, had him stand up and they then
21 handcuffed his hands behind his back, put him into a patrol car and transported him to jail.
22 15. Plaintiff CHARLES PARKER is a student at U.C. Davis who was participating in a
23 peaceful demonstration on the U.C. Davis campus on November 18, 2011, when he was targeted for
24 illegal arrest. Three U.C. Davis police officers, Defendants Does 7, 8, and 9, slammed him to the
25 ground, kneed him and kneeled on him, then handcuffed him behind his back and dragged him to a
26 police car in which he was placed and then driven to the campus jail. He was denied medical assistance
27 and access to medication while detained in the campus jail.
28 16. Plaintiff WILLIAM ROBERTS is a student at U.C. Davis and was participating in a
4
COMPLAINT; JURY TRIAL DEMANDED Enosh Baker, et al. vs. Linda Katehi, et al.; United States District Court, Eastern District of California, Case No. __________

Case 2:12-cv-00450-JAM-EFB Document 1 Filed 02/22/12 Page 5 of 14
1 peaceful demonstration on the U.C. Davis campus on November 18, 2011, when he was pepper-sprayed
2 without legal cause or justification by defendant U.C. Davis police officer Lt. John Pike and/or Doe 1.
3 17. Plaintiff FATIMA SBEIH is a student at U.C. Davis and was participating in a peaceful
4 demonstration on the U.C. Davis campus on November 18, 2011, when she was pepper sprayed, without
5 legal cause or justification, by defendant U.C. Davis police officer Lt. John Pike and/or Doe 1.
6 18. Plaintiff EVKA WHALEY-MAYDA is a student at U.C. Davis and was participating in a
7 peaceful demonstration on the U.C. Davis campus on November 18, 2011, when she was pepper-sprayed,
8 without legal cause or justification, by defendant U.C. Davis police officer Lt. John Pike and/or Doe 1.
9 19. Plaintiff KASE WHEATLEY is a student at U.C. Davis and was participating in a
10 peaceful demonstration on the U.C. Davis campus on November 18, 2011, when he was pepper sprayed,
11 without legal cause or justification, by defendant U.C. Davis police officer Lt. John Pike and/or Doe 1,
12 then handcuffed behind his back and falsely arrested by defendant U.C. Davis police officers Does 10
13 and 11, placed into a police car and transported to the campus jail.
14 20. Plaintiff EDWARD WILDANGER is a student at U.C. Davis and was participating in a
15 peaceful demonstration on the U.C. Davis campus on November 18, 2011, when, without legal cause or
16 justification, he was pepper sprayed by defendant U.C. Davis police officer Lt. John Pike and/or Doe 1.
17 21. Plaintiff NOAH WILEY is a student at U.C. Davis and was participating in a peaceful
18 demonstration on the U.C. Davis campus on November 18, 2011, when he was pepper sprayed without
19 legal cause or justification by defendant U.C. Davis police officer Lt. John Pike and/or Doe 1, then
20 falsely arrested by defendant U.C. Davis police officers Does 12 and 13 and transported to the campus
21 jail.
22 22. Plaintiff JORDAN WILHEIM is a U.C. Davis alumnus who was graduated in the spring
23 of 2011 and was visiting campus on November 18, 2011, when he witnessed and participated in a
24 peaceful demonstration on the U.C. Davis campus. During that demonstration he was handcuffed behind
25 his back and falsely arrested by U.C. Davis police officers, defendants Does 14 and 15, and then
26 transported to campus jail.
27 23. Defendant LINDA KATEHI is the Chancellor of the University of California at Davis.
28 She is sued in her individual and official capacities.
5
COMPLAINT; JURY TRIAL DEMANDED Enosh Baker, et al. vs. Linda Katehi, et al.; United States District Court, Eastern District of California, Case No. __________

Case 2:12-cv-00450-JAM-EFB Document 1 Filed 02/22/12 Page 6 of 14

1 24. Defendant RALPH J. HEXTER is the Provost and Executive Vice Chancellor of the

2 University of California at Davis. He is sued in his individual and official capacities.

3 25. Defendant FRED WOOD is the Vice Chancellor for Student Affairs at the University of

4 California at Davis. He is sued in his individual and official capacities.

5 26. Defendant JOHN MEYER is the Vice Chancellor of Administration and Resource

6 Management at the University of California at Davis. He is sued in his individual and official capacities.

7 27. Defendant ANNETTE SPICUZZA is the Chief of the University of California at Davis

8 Police Department. As a result of the actions described in this complaint Defendant Spicuzza was placed

9 on leave by the University. She is sued in her individual and official capacities.

10 28. Defendant JOHN PIKE is a Lieutenant in the University of California at Davis Police

11 Department. As a result of the actions described in this complaint Defendant Pike was placed on leave by

12 the University. He is sued in his individual capacity.

13 29. Plaintiffs do not know the true names and capacities of Defendants DOES 1 through 50,

14 inclusive, and therefore sue these defendants by such fictitious names. Plaintiffs are informed and

15 believe and thereupon allege that each defendant so named is responsible in some manner for the injuries

16 and damages suffered by plaintiffs as are alleged herein. Plaintiffs will amend their complaint to state

17 the names and capacities of Does 1 - 50, inclusive, when the same have been ascertained.

18 30. Defendants DOES 1 – 50, inclusive, were all police officers , administrators, and/or other

19 personnel employed by defendant University of California at Davis and, at all times material to this

20 complaint, were acting within the course and scope of their employment and were directly involved in

21 the actions which caused injury and damages to plaintiffs herein.

22 31. At all times material hereto, Defendants sued herein were acting under color of state law.

23

III. STATEMENT OF FACTS

24 32. On November 16, U.C. Davis students joined others in San Francisco to demonstrate at a
25 scheduled Board of Regents meeting, protesting university privatization, tuition increases, and the brutal
26 treatment of demonstrators on Berkeley’s campus the previous week. They returned to campus and, on
27 November 17, a general assembly of students agreed to set up symbolic tents on the quad and to continue
28

6
COMPLAINT; JURY TRIAL DEMANDED Enosh Baker, et al. vs. Linda Katehi, et al.; United States District Court, Eastern District of California, Case No. __________

Case 2:12-cv-00450-JAM-EFB Document 1 Filed 02/22/12 Page 7 of 14
1 to meet openly, to “occupy the quad” to discuss and study university privatization, tuition hikes, and their
2 relation to other issues of macro political and social importance, and to consider what they could do to
3 change conditions which had brought people together in support of the Occupy Wall Street Movement.
4 33. A group of students set up tents on the quad and the “Occupation of the Quad” began.
5 Shortly after the first tents were erected, U.C. Davis administrative employees delivered to some of the
6 students on the quad a notice that included a campus “no overnight camping” policy. The notice was
7 discussed and the group concluded that they were symbolically “occupying the quad” in support of and
8 in solidarity with the 99% championed by the Occupy Wall Street movement.
9 34. On the evening of November 17, the Associated Students of the University of California
10 at Davis (ASUCD) endorsed the “occupation of the quad.”
11 35. On November 18, in the afternoon, Defendant Police Chief SPICUZZZA, accompanied
12 by a Doe Defendant, delivered a letter from Defendant Chancellor KATEHI directing students to remove
13 the tents by 3:00 p.m. “in interest of safety, respect for our campus environment and in accordance with
14 our Principles of Community.”
15 36. Students held another assembly, discussed the letter the Chancellor had delivered, and
16 many decided to remove their tents and did so. Others resolved to remain.
17 37. Shortly before 3:00 p.m., a large number of police in riot gear armed with long batons,
18 pepper-ball guns and other weapons were seen massing in formation adjacent to the quad. The students
19 moved the remaining tents to the circle on the Centennial Walk, a concrete pathway in the middle of the
20 campus quad, and stood around them.
21 38. The officers advanced on the students as can be seen on any number of videotapes. They
22 began pushing students away, or throwing them to the ground. Some of the officers disassembled or
23 destroyed the tents. As the tents were being removed, students sat down in a large circle. Classes were
24 letting out and hundreds of additional students swarmed out of their buildings to watch what was
25 happening.
26 39. The campus officers pointed to specific students, arrested them and began grabbing them
27 and hauling them off to jail. Plaintiff ENOSH BAKER was the first to be grabbed and thrown to the
28 ground by two police officers, Defendants DOE 2 and DOE 3. He hit his head on a sprinkler fixture as
7
COMPLAINT; JURY TRIAL DEMANDED Enosh Baker, et al. vs. Linda Katehi, et al.; United States District Court, Eastern District of California, Case No. __________

Case 2:12-cv-00450-JAM-EFB Document 1 Filed 02/22/12 Page 8 of 14
1 he was thrown to the ground and his hands were tightly zip tied together behind his back as he was taken
2 into custody and placed into a police car.
3 40. Plaintiff CHARLES PARKER was targeted by three police officers, Defendants DOE 7,
4 DOE 8, and DOE 9 grabbed him. His hands were painfully zip tied behind his back, exacerbating a prior
5 military combat injury, and he was placed into a police car where he joined BAKER and plaintiff
6 ELIZABETH LARA.
7 41. Plaintiff LARA had arrived immediately prior to the police advancing on those students
8 standing around the circle and joined the circle. When the police reached the crowd she was thrown to
9 the ground by Defendant police officers DOES 16 and 17, her hands were zip tied behind her, and she
10 was arrested and taken to the police car which then transported her, PARKER and BAKER to the police
11 station. Plaintiffs’ hands were all zip tied, some zip ties were particularly tight, cutting off blood flow,
12 but the jailers did not have the special equipment needed to cut the plastic ties. Eventually, the zip ties
13 were cut and removed.
14 42. As the group of students was being pushed by officers, students began to sit down in a
15 line. Officers were stepping over the seated students, who did nothing to stop them. Then Defendant
16 PIKE ordered the students to leave or stated they would be “shot.” As is discernible from audio tapes of
17 his reaction, Plaintiff WHEATLEY responded: “You’re going to shoot us if we don’t leave?”
18 43. Defendant PIKE then shook a canister of pepper spray like a can of aerosol paint, stepped
19 over the line of sitting, crouching students and walked up and down the line repeatedly dousing Plaintiffs
20 with orange colored pepper spray, mostly from a distance of one-to-two feet. Students watching the
21 scene screamed or shouted: “Shame.”
22 44. Another officer, Doe 1, then approached the line of seated demonstrators from behind and
23 began spraying them with a separate canister of pepper spray.
24 45. Documents that the University of California has subsequently released in response to a
25 request for public records indicate that the substance used was Defense Technology’s MK-9 Magnum
26 spray, with a major Capsaicinoid concentration of .7%. The single page of manufacturer’s information
27 that the University was able to provide states that the minimum recommended distance for this
28 formulation is 6 feet. The University states that it has no other package inserts, warnings, or instructions
8
COMPLAINT; JURY TRIAL DEMANDED Enosh Baker, et al. vs. Linda Katehi, et al.; United States District Court, Eastern District of California, Case No. __________

Case 2:12-cv-00450-JAM-EFB Document 1 Filed 02/22/12 Page 9 of 14
1 relating to this product, although California law requires that all such substances sold in California be
2 accompanied by printed instructions for use, first aid information, and safety information. See Ca. Penal
3 Code § 22810(e)(4), (f) (former § 12403.7).
4 46. Plaintiff MATZAT’s hands were zip-tied behind his back and he was arrested along with
5 Plaintiff WHEATLEY who had been pepper-sprayed and both had been transferred to jail by Defendants
6 Does 23, and 4 and 18 and 19, respectively.
7 47. Plaintiffs BUSCHO, GROSSJAN-NAVARRO, JOHNSON, KAMRAN, IAN LEE, SOO
8 LEE, LOKER, ROBERTS, SBEIHN, WHALEY-MAYDA and WILDANGER were pepper sprayed by
9 Defendant PIKE and Doe Officers and left to deal with their burning eyes, faces and skin. Neither the
10 University nor the police provided adequate medical attention on the scene to any of the students who
11 had been sprayed.
12 48. Members of the campus student body administered first aid to Plaintiffs who could not see
13 and were disoriented. Plaintiff WHALEY-MAYDA was transported by ambulance to the hospital where
14 her eyes were irrigated and a skin rash from the pepper spray was treated.
15 49. As reported by the University, ten persons were arrested, all on the same charges: Failure
16 to Disperse from as Unlawful Assembly (Cal. Penal Code § 409). They were released after several hours
17 and all were assigned the same court date for arraignment, January 31, 2012. Prior to that date, however,
18 the District Attorney of Yolo County announced that no complaints would be filed against any of the
19 persons arrested. As of the filing of this complaint none of the plaintiffs has been charged with any
20 crime arising out of the November 18 protest.
21 50. At the time campus police started arresting people, a large number of students had
22 gathered in a non-violent assemblage, which remained so but for the violence used by Defendant police
23 officers, PIKE and Does 1 to 50, inclusive, to arrest non-resisting persons. All of those persons, who
24 assembled, including plaintiffs who were pepper sprayed, were illegally required to disperse from the
25 campus quad by helmeted police enforcing their erroneous decision that the gathering was unlawful.
26 51. The decision to declare the assemblage of students on the quad at 3:00 p.m. on November
27 18, 2011, unlawful, was made by defendants, KATEHI, HEXTER, WOOD, MEYER and SPICUZZA,
28 acting in concert, and executed by defendants PIKE and Defendant DOES 1 through 50, inclusive.
9
COMPLAINT; JURY TRIAL DEMANDED Enosh Baker, et al. vs. Linda Katehi, et al.; United States District Court, Eastern District of California, Case No. __________

Case 2:12-cv-00450-JAM-EFB Document 1 Filed 02/22/12 Page 10 of 14
1 There was no legal cause to disperse the assembly, and the declaration of an unlawful assembly violated
2 the plaintiffs’ rights of freedom of speech and assembly guaranteed by the First Amendment to the
3 United States Constitution and the Liberty of Speech Clause of the California Constitution.
4 52. Defendants KATEHI, HEXTER, WOOD, MEYER and SPICUZZA had an affirmative
5 duty to properly screen, train and supervise defendants PIKE and DOE Defendants 1 through 50, but
6 failed to do so, resulting in the actions and violations of the rights of Plaintiffs and others described
7 herein.
8 53. Defendants KATEHI, HEXTER, WOOD, MEYER and SPICUZZA failed properly to
9 investigate the background of Defendant PIKE who was not qualified for the position he held, and failed
10 to terminate him when his lack of qualifications became known; as a result of the negligent hiring and
11 retention of Defendant PIKE he was enabled personally to commit the violations described herein and to
12 supervise and direct defendants DOES 1 through 50 in the commission of the acts and violations
13 described herein.
14 54. All of the plaintiffs, as well as others who may be joined to this action when they come
15 forward, were injured by being deprived of their rights to assemble and to speak freely, and by being
16 arrested and/or pepper sprayed and subjected to other acts of excessive force by defendants and each of
17 them. Such injuries included physical pain and suffering, deprivations of liberty, and infliction of
18 emotional distress.
19 55. The actions of Defendants, and each of them, were intentional and malicious in that the
20 pepper spraying and arrest of peacefully assembled students on their college campus was so clearly in
21 violation of established state and federal law that no inference other than that the Defendants acted
22 maliciously with intent to injure and to deprive plaintiffs of their constitutional rights can be drawn,
23 entitling Plaintiffs, and each of them, to awards of punitive damages in amounts to be determined at trial.
24 56. On information and belief, certain plaintiffs were targeted by the police for forcible arrests
25 based on their past political activism and associations at the University.
26 57. The actions of Defendants, and each of them, have had a chilling effect on the willingness
27 of Plaintiffs to exercise their free-speech rights in areas under Defendants’ control, causing Plaintiffs
28 continuing injury that cannot be redressed by damages.
10
COMPLAINT; JURY TRIAL DEMANDED Enosh Baker, et al. vs. Linda Katehi, et al.; United States District Court, Eastern District of California, Case No. __________

Case 2:12-cv-00450-JAM-EFB Document 1 Filed 02/22/12 Page 11 of 14

1

IV. COUNT ONE

2

Violation of the First Amendment to the United States Constitution (42 U.S.C. § 1983)

3

58. Plaintiffs reallege and incorporate herein, as if stated in full, each and every of the

4 allegations contained in paragraphs 1 through 56, inclusive.

5

59. In prior years, Defendants and each of them, as well as their predecessors in their

6 positions, permitted assemblies, demonstrations and protests on campus which included the erection of

7 structures such as tents and domes, when the message and speakers were less controversial. In contrast,

8 Defendants and each of them took the actions to disperse the lawful assembly on November 18, and to

9 pepper spray and arrest students because of the demonstration’s message and who was delivering it.

10

60. By interfering, including through the use of excessive force, Plaintiffs’ peaceful protest,

11 the actions of defendants and each of them violated the rights of Plaintiffs and each of them guaranteed

12 to them by the First Amendment to the United States Constitution and caused them on-going irreparable

13 injury and damage, as stated above.

14

61. WHEREFORE, Plaintiffs pray for relief as stated below.

15

V. COUNT TWO

Violation of the Fourth Amendment to the United States Constitution (42 U.S.C. § 1983) 16

17

62. Plaintiffs reallege and incorporate herein, as if stated in full, each and every of the

18 allegations contained in paragraphs 1 through 57, inclusive.

19

63. In ordering, directing, approving, condoning, and executing the pepper spraying of

20 Plaintiffs, the arrest of Plaintiffs, the physical removal of Plaintiffs, and/or the use of excessive force

21 against Plaintiffs, the Defendants, and each of them, violated the prohibitions contained in the Fourth

22 Amendment to the United States Constitution against unreasonable search or seizure, as a result of which

23 plaintiffs, and each of them, were injured as stated above.

24

64. WHEREFORE, Plaintiffs pray for relief as stated below.

25

VI. COUNT THREE

Violation of the 14th Amendment to the Unites States Constitution (42 U.S.C. § 1983)

26

65. Plaintiffs reallege and incorporate herein by this reference, as if set out in full, each and 27

every allegation contained in paragraphs 1 through 57, inclusive. 28

11
COMPLAINT; JURY TRIAL DEMANDED Enosh Baker, et al. vs. Linda Katehi, et al.; United States District Court, Eastern District of California, Case No. __________

Case 2:12-cv-00450-JAM-EFB Document 1 Filed 02/22/12 Page 12 of 14

1 66. Personal possessions of Plaintiffs, including tents, were taken and destroyed by

2 defendants, and each of them, without due process in violation of the 14th Amendment to the United

3 States Constitution which prohibits the taking of property without due process of law.

4 67. WHEREFORE, plaintiffs pray for relief as stated below.

5

VII. COUNT FOUR

6

Violation of Article 1 §§ 2 of the California State Constitution – Freedom of Speech

7

8

68. Plaintiffs reallege and incorporate herein by this reference, as if set out in full, each and

9 every allegation contained in paragraphs 1 through 57, inclusive.

10

69. Article 1 § 2 of the California State Constitution guarantees the right to speak freely. By

11 committing the acts alleged herein, Defendants, and each of them, violated the rights of Plaintiffs herein

12 to free speech.

13

70. WHEREFORE, Plaintiffs pray for relief as stated below.

VIII. COUNT FIVE 14
Violation of Article 1 § 3 of the California State Constitution – Freedom of Petition & Assembly

15

16

71. Plaintiffs reallege and incorporate herein by this reference, as if set out in full, each and

17 every allegation contained in paragraphs 1 through 57, inclusive.

18

72. Article 1 § 3 of the California State Constitution guarantees the People the right to

19 freedom of assembly and to petition for redress. By committing the acts alleged herein, Defendants, and

20 each of them, violated the rights of Plaintiffs herein to freely assemble and to petition.

21

73. WHEREFORE, Plaintiffs pray for relief as stated below.

22

IX. COUNT SIX

23

Violation Article 1 § 13 of the California State Constitution – Unlawful Seizure

24 74. Plaintiffs reallege and incorporate herein by this reference, as if set out in full, each and
25 every allegation contained in paragraphs 1 through 57.
26 75. In ordering, directing, approving, condoning, and executing the pepper spraying of
27 Plaintiffs, the arrest of Plaintiffs, the physical removal of Plaintiffs, and/or the use of excessive force
28 against Plaintiffs, the Defendants, and each of them, violated the prohibitions contained in the Fourth

12
COMPLAINT; JURY TRIAL DEMANDED Enosh Baker, et al. vs. Linda Katehi, et al.; United States District Court, Eastern District of California, Case No. __________

Case 2:12-cv-00450-JAM-EFB Document 1 Filed 02/22/12 Page 13 of 14

1 Amendment to the United States Constitution against unreasonable search or seizure, as a result of which

2 plaintiffs, and each of them, were injured as stated above..

3 76. WHEREFORE Plaintiffs pray for relief as stated below.

4

X. COUNT SEVEN

5 False Arrest/Imprisonment and Violation of § 836(a) of the California Penal Code
6

7

77. Plaintiffs reallege and incorporate herein by this reference, as if set out in full, each and

8 every allegation contained in paragraphs 1 through 57.

9

78. By arresting Plaintiffs without probable cause and for misdemeanor offenses not

10 committed in the presence of the arresting officer at the time of the offense, Defendants violated

11 Plaintiffs rights under California law.

12

79. WHEREFORE Plaintiffs pray for relief as stated below.

XI. COUNT EIGHT 13

14

Violation of § 52.1 of the California Civil Code (Bane Act)

15

80. Plaintiffs reallege and incorporate herein by this reference, as if set out in full, each and

16 every allegation contained in paragraphs 1 through 71.

17

81. By dispersing the student assembly on the U.C. Davis quad on November 18, and by

18 pepper spraying and/or falsely arresting Plaintiffs, Defendants and each of them through coercive force,

19 violated federal and state constitutional and statutory rights guaranteed to Plaintiffs and thereby became

20 liable for the damages Plaintiffs suffered, as well as treble damages, statutory damages, penalties, and

21 attorneys’ fees.

22

82. WHEREFORE Plaintiffs pray for relief as stated below.

23

XII. COUNT NINE

24

Violation of § 845.6 of the California Government Code – failure to provide medical care

25 83. Plaintiffs reallege and incorporate herein by this reference, as if set out in full, each and
26 every allegation contained in paragraphs 1 through 57.
27 84. By failing to provide or summon medical care for persons whom they had taken to jail and
28 who they had reason to know needed immediate medical care, Defendants violated Plaintiffs’ rights

13
COMPLAINT; JURY TRIAL DEMANDED Enosh Baker, et al. vs. Linda Katehi, et al.; United States District Court, Eastern District of California, Case No. __________

Case 2:12-cv-00450-JAM-EFB Document 1 Filed 02/22/12 Page 14 of 14

1 under § 845.6 of the California Government Code.

2 85. WHEREFORE Plaintiffs pray for the following relief:

3

XIII. PRAYER

4 1. Injunctive relief under federal law;
5 2. Declaratory relief under federal law;
6 3. Compensatory Damages under state and federal law;
7 4. Punitive, Exemplary, and Statutory Damages under state and federal law;
8 5. Attorney’s Fees under state and federal law;
9 6. Costs under state and federal law; and
10 7. Such other and further relief as to this Court may deem just and proper.
11 XIV. JURY TRIAL DEMANDED

12 Plaintiffs hereby demand a jury trial in this action.
13

14 DATED: February 22, 2012 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully Submitted,
/s/ “Mark E. Merin” By:
Mark E. Merin (State Bar No. 043849) LAW OFFICE OF MARK E. MERIN 1010 F Street, Suite 300 Sacramento, California 95814 Telephone: (916) 443-6911 Facsimile: (916) 447-8336
Alan Schlosser (State Bar No. 049957) Michael Risher (State Bar No. 191627) Linda Lye (State Bar No. 215584) Novella Coleman (State Bar No. 281632) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, California 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-1478
Meredith Wallis (State Bar No. 261457) 1057 East 33rd Street Oakland, California 94610 Telephone: (713) 724-4047
Attorneys for Plaintiffs

14
COMPLAINT; JURY TRIAL DEMANDED Enosh Baker, et al. vs. Linda Katehi, et al.; United States District Court, Eastern District of California, Case No. __________

 
 Case: 2:12-cv-450 As of: 10/26/2017 10:39 PM PDT 1 of 14
CIVIL,CLOSED
U.S. District Court Eastern District of California − Live System (Sacramento) CIVIL DOCKET FOR CASE #: 2:12−cv−00450−JAM−EFB

Baker, et al v. Katehi, et al Assigned to: District Judge John A. Mendez Referred to: Magistrate Judge Edmund F. Brennan Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 02/22/2012 Date Terminated: 01/09/2013 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Enosh Baker

represented by Lauren B. DeMartini ACLU of Northern California 39 Drumm St. San Francisco, CA 94111 415−621−2493 Email: lauren.demartini@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Merin Law Office of Mark E. Merin 1010 F Street Suite 300 Sacramento, CA 95814 916−443−6911 Fax: 916−447−8336 Email: mark@markmerin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Lye ACLU Foundation Of Northern California 39 Drumm Street San Francisco, CA 94111 415−621−2493−313 Fax: 415−255−8437 Email: llye@aclunc.org ATTORNEY TO BE NOTICED

Michael Temple Risher American Civil Liberties Union of Northern California 39 Drumm St. San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: mrisher@aclunc.org ATTORNEY TO BE NOTICED

Plaintiff David Buscho

represented by Lauren B. DeMartini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Lye

Case: 2:12-cv-450 As of: 10/26/2017 10:39 PM PDT 2 of 14

(See above for address) ATTORNEY TO BE NOTICED

Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Sarena Grossjan−Navarro

represented by Lauren B. DeMartini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Lye (See above for address) ATTORNEY TO BE NOTICED

Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Deanna Johnson

represented by Lauren B. DeMartini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Lye (See above for address) ATTORNEY TO BE NOTICED

Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Sophia Kamran

represented by Lauren B. DeMartini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Lye (See above for address) ATTORNEY TO BE NOTICED

Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED

Case: 2:12-cv-450 As of: 10/26/2017 10:39 PM PDT 3 of 14

Plaintiff Elizabeth Lara
Plaintiff Ian Lee
Plaintiff Soo Lee
Plaintiff Evan Loker

represented by Lauren B. DeMartini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Lye (See above for address) ATTORNEY TO BE NOTICED
Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED
represented by Lauren B. DeMartini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Lye (See above for address) ATTORNEY TO BE NOTICED
Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED
represented by Lauren B. DeMartini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Lye (See above for address) ATTORNEY TO BE NOTICED
Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED
represented by Lauren B. DeMartini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:12-cv-450 As of: 10/26/2017 10:39 PM PDT 4 of 14

Plaintiff Thomas Matzat
Plaintiff Darren Newell
Plaintiff Charles Parker

Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Lye (See above for address) ATTORNEY TO BE NOTICED
Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED
represented by Lauren B. DeMartini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Lye (See above for address) ATTORNEY TO BE NOTICED
Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED
represented by Lauren B. DeMartini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Lye (See above for address) ATTORNEY TO BE NOTICED
Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED
represented by Lauren B. DeMartini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:12-cv-450 As of: 10/26/2017 10:39 PM PDT 5 of 14

Linda Lye (See above for address) ATTORNEY TO BE NOTICED

Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED

Plaintiff William Roberts

represented by Lauren B. DeMartini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Lye (See above for address) ATTORNEY TO BE NOTICED

Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Fatima Sbeih

represented by Lauren B. DeMartini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Lye (See above for address) ATTORNEY TO BE NOTICED

Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Evka Whaley−Mayda

represented by Lauren B. DeMartini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Lye (See above for address) ATTORNEY TO BE NOTICED

Michael Temple Risher (See above for address)

Case: 2:12-cv-450 As of: 10/26/2017 10:39 PM PDT 6 of 14

ATTORNEY TO BE NOTICED

Plaintiff Kase Wheatley

represented by Lauren B. DeMartini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Lye (See above for address) ATTORNEY TO BE NOTICED

Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Edward Wildanger

represented by Lauren B. DeMartini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Lye (See above for address) ATTORNEY TO BE NOTICED

Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Noah Wiley

represented by Lauren B. DeMartini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Lye (See above for address) ATTORNEY TO BE NOTICED

Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jordan Wilheim

represented by Lauren B. DeMartini (See above for address)

Case: 2:12-cv-450 As of: 10/26/2017 10:39 PM PDT 7 of 14

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Lye (See above for address) ATTORNEY TO BE NOTICED

Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Alyson Cook

represented by Lauren B. DeMartini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED

Mark E. Merin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Adam Fetterman

represented by Lauren B. DeMartini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED

Mark E. Merin (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Linda Katehi Chandellor of the University of California at Davis

represented by J. Daniel Sharp Crowell & Moring LLP 275 Battery Street 23rd Floor San Francisco, CA 94111 415−986−2800−7372 Fax: 415−986−2827 Email: dsharp@crowell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine L.M. Mola Porter Scott 350 University Avenue Suite 200

Case: 2:12-cv-450 As of: 10/26/2017 10:39 PM PDT 8 of 14

Sacramento, CA 95825 916−929−1481 Fax: 916−927−3706 Email: kmola@porterscott.com ATTORNEY TO BE NOTICED

Nancy Joan Sheehan Porter Scott, APC 350 University Ae. Suite 200 Sacramento, CA 95825 916−929−1481 Ext. 318 Fax: 916−927−3706 Email: nsheehan@porterscott.com ATTORNEY TO BE NOTICED

Terence John Cassidy Porter Scott, APC 350 University Avenue Suite 200 Sacramento, CA 95825 (916) 929−1481 x316 Fax: (916) 927−3706 Email: tcassidy@porterscott.com ATTORNEY TO BE NOTICED

Defendant
Ralph J. Hexter Provost and Executive Vice Chancellor of the University of California at Davis

represented by J. Daniel Sharp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine L.M. Mola (See above for address) ATTORNEY TO BE NOTICED

Nancy Joan Sheehan (See above for address) ATTORNEY TO BE NOTICED

Terence John Cassidy (See above for address) ATTORNEY TO BE NOTICED

Defendant
Fred Wood Vice Chancellor for Student Affairs at the University of California at Davis

represented by J. Daniel Sharp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine L.M. Mola (See above for address) ATTORNEY TO BE NOTICED

Nancy Joan Sheehan (See above for address) ATTORNEY TO BE NOTICED

Terence John Cassidy (See above for address) ATTORNEY TO BE NOTICED

Defendant

Case: 2:12-cv-450 As of: 10/26/2017 10:39 PM PDT 9 of 14

John Meyer Vice Chancellor of Administration and Resourse Management at the University of California at Davis

represented by J. Daniel Sharp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine L.M. Mola (See above for address) ATTORNEY TO BE NOTICED

Nancy Joan Sheehan (See above for address) ATTORNEY TO BE NOTICED

Terence John Cassidy (See above for address) ATTORNEY TO BE NOTICED

Defendant
Annette Spicuzza Chief of the University of California at Davis Police Department

represented by Jason H. Jasmine Messing Adam & Jasmine LLP 980 9th Street Suite 380 Sacramento, CA 95814 916−446−5297−3318 Fax: 916−448−5047 Email: jason@majlabor.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lina Balciunas Cockrell Messing Adam & Jasmine LLP 980 9th Street Suite 380 Sacramento, CA 95814 916−446−5297−3342 Fax: 916−448−5047 Email: lina@majlabor.com ATTORNEY TO BE NOTICED

Defendant
John Pike Lieutenant in the University of California at Davis Police Department

represented by Christopher Lee Gaspard 8509 Hayloft Place Riverside, CA 92508 (951) 529−8192 Email: chris@joelwbaruch.com ATTORNEY TO BE NOTICED

John H. Bakhit Lackie, Dammeier & McGill APC 367 N. Second Avenue Upland, CA 91786 949−231−2702 Fax: 909−985−3299 Email: john@policeattorney.com ATTORNEY TO BE NOTICED

Michael A McGill Adams, Ferrone & Ferrone 4333 Park Terrace Drive Suite 200 Westlake Village, CA 91361 805−373−4900−237 Fax: 818−874−1382 Email: mmcgill@adamsferrone.com

Case: 2:12-cv-450 As of: 10/26/2017 10:39 PM PDT 10 of 14

ATTORNEY TO BE NOTICED

Russell Marc Perry Lackie, Dammeier & McGill 367 N Second Ave Upland, CA 91786 909−241−2391 Fax: 909−985−3299 Email: russell@policeattorney.com ATTORNEY TO BE NOTICED

Defendant Alexander Lee

represented by Michael A McGill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Russell Marc Perry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Barry Swartwood

represented by Michael A McGill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Russell Marc Perry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/22/2012 02/22/2012 02/22/2012 02/22/2012
02/22/2012 02/28/2012 02/28/2012 02/28/2012 02/28/2012 03/14/2012

# Docket Text
1 COMPLAINT against all defendants by plaintiffs; DEMAND for Jury Trial.(Merin, Mark) (Entered: 02/22/2012)
2 CIVIL COVER SHEET by plaintiffs (Merin, Mark) (Entered: 02/22/2012)
RECEIPT number # CAE200042410 $350.00 fbo plaintiffs E. Baker, D. Buscho, et al by Mark Merin on 2/22/2012. (Marciel, M) (Entered: 02/22/2012)
4 SUMMONS ISSUED as to *Ralph J. Hexter, Linda Katehi, John Meyer, John Pike, Annette Spicuzza, Fred Wood* with answer to complaint due within *21* days. Attorney *Mark E. Merin* *Law Offices of Mark E. Merin* *1010 F Street, Suite 300* *Sacramento, CA 95814*. (Marciel, M) (Entered: 02/22/2012)
5 CIVIL NEW CASE DOCUMENTS ISSUED (Attachments: # 1 Consent Form, # 2 Order re Page Limits, # 3 VDRP Form) (Marciel, M) (Entered: 02/22/2012)
6 SUMMONS RETURNED EXECUTED: Linda Katehi served on 2/24/2012, answer due 3/16/2012. (Merin, Mark) (Entered: 02/28/2012)
7 SUMMONS RETURNED EXECUTED: Ralph J. Hexter served on 2/24/2012, answer due 3/16/2012. (Merin, Mark) (Entered: 02/28/2012)
8 SUMMONS RETURNED EXECUTED: Fred Wood served on 2/24/2012, answer due 3/16/2012. (Merin, Mark) (Entered: 02/28/2012)
9 SUMMONS RETURNED EXECUTED: John Meyer served on 2/24/2012, answer due 3/16/2012. (Merin, Mark) (Entered: 02/28/2012)
10 STIPULATION and PROPOSED ORDER for EXTENSION OF TIME TO RESPOND TO THE COMPLAINT AND OTHER DATES by Ralph J. Hexter, Linda

Case: 2:12-cv-450 As of: 10/26/2017 10:39 PM PDT 11 of 14

03/14/2012 03/14/2012 03/15/2012
03/19/2012 04/11/2012 05/09/2012 05/09/2012 05/09/2012
05/09/2012 05/15/2012
05/16/2012 05/16/2012 05/16/2012 05/16/2012 05/16/2012 05/16/2012 05/21/2012

Katehi, John Meyer, Fred Wood. Attorney Sharp, J. Daniel added. (Sharp, J.) (Entered: 03/14/2012)
11 [DISREGARD − See 12 ] CERTIFICATE of SERVICE by Ralph J. Hexter, Linda Katehi, John Meyer, Fred Wood re 10 Stipulation and Proposed Order. (Sharp, J.) Modified docket text on 3/15/2012 (Waggoner, D). (Entered: 03/14/2012)
12 CERTIFICATE of SERVICE by Ralph J. Hexter, Linda Katehi, John Meyer, Fred Wood re 10 Stipulation and Proposed Order. (Sharp, J.) (Entered: 03/14/2012)
13 STIPULATION and ORDER signed by Judge John A. Mendez on 3/14/12 ORDERING that the time period for Defendants to answer or otherwise to respond to the complaint is enlarged by a period of up to 90 days. This stipulation may be extended by order of the Court upon the further stipulation of the parties hereto, subject to such terms and conditions as the Court may impose.(Mena−Sanchez, L) (Entered: 03/15/2012)
14 SUMMONS RETURNED EXECUTED: John Pike served on 3/12/2012, answer due 4/2/2012. (Merin, Mark) (Entered: 03/19/2012)
15 SUMMONS RETURNED EXECUTED: Annette Spicuzza served on 4/10/2012, answer due 5/1/2012. (Merin, Mark) (Entered: 04/11/2012)
16 ASSOCIATION of ATTORNEY: Added attorney Nancy Joan Sheehan for Ralph J. Hexter,Nancy Joan Sheehan for Linda Katehi,Nancy Joan Sheehan for John Meyer,Nancy Joan Sheehan for Fred Wood. (Sheehan, Nancy) (Entered: 05/09/2012)
17 ASSOCIATION of ATTORNEY: Added attorney Katherine L.M. Mola for Ralph J. Hexter,Katherine L.M. Mola for Linda Katehi,Katherine L.M. Mola for John Meyer,Katherine L.M. Mola for Fred Wood. (Mola, Katherine) (Entered: 05/09/2012)
18 ASSOCIATION of ATTORNEY: Added attorney Terence John Cassidy for Ralph J. Hexter,Terence John Cassidy for Linda Katehi,Terence John Cassidy for John Meyer,Terence John Cassidy for Fred Wood. (Cassidy, Terence) (Entered: 05/09/2012)
19 NOTICE of APPEARANCE by Jason H. Jasmine on behalf of Annette Spicuzza. Attorney Jasmine, Jason H. added. (Jasmine, Jason) (Entered: 05/09/2012)
20 JOINT STATUS REPORT by Enosh Baker, David Buscho, Sarena Grossjan−Navarro, Deanna Johnson, Sophia Kamran, Elizabeth Lara, Ian Lee, Soo Lee, Evan Loker, Thomas Matzat, Darren Newell, Charles Parker, William Roberts, Fatima Sbeih, Evka Whaley−Mayda, Kase Wheatley, Edward Wildanger, Noah Wiley, Jordan Wilheim. (Merin, Mark) (Entered: 05/15/2012)
21 ASSOCIATION of ATTORNEY: Added attorney Russell Marc Perry for John Pike. (Perry, Russell) (Entered: 05/16/2012)
22 ASSOCIATION of ATTORNEY: Added attorney Michael Andrew McGill for John Pike. (Perry, Russell) (Entered: 05/16/2012)
23 ASSOCIATION of ATTORNEY: Added attorney John H. Bakhit for John Pike. (Perry, Russell) (Entered: 05/16/2012)
24 ASSOCIATION of ATTORNEY: Added attorney Christopher Lee Gaspard for John Pike. (Perry, Russell) (Entered: 05/16/2012)
25 NOTICE of APPEARANCE by Michael Temple Risher on behalf of all plaintiffs. Attorney Risher, Michael Temple added. (Risher, Michael) Modified on 6/15/2012 (Kastilahn, A). (Entered: 05/16/2012)
26 ASSOCIATION of ATTORNEY: Added attorney Linda Lye for all plaintiffs. (Lye, Linda) Modified on 6/15/2012 (Kastilahn, A). (Entered: 05/16/2012)
27 NOTICE of Association of Counsel by Annette Spicuzza. Attorney Cockrell, Lina Balciunas added. (Cockrell, Lina) Modified on 5/23/2012 (Marciel, M) (Entered: 05/21/2012)

Case: 2:12-cv-450 As of: 10/26/2017 10:39 PM PDT 12 of 14

06/11/2012 06/12/2012 06/13/2012 06/14/2012
07/20/2012
07/23/2012 08/23/2012 08/27/2012 08/27/2012 08/27/2012 08/27/2012 09/26/2012
09/26/2012

28 STIPULATED JOINT PROPOSED PROTECTIVE ORDER by Ralph J. Hexter, Linda Katehi, John Meyer, Fred Wood. (Sharp, J.) (Entered: 06/11/2012)
29 STIPULATED JOINT PROTECTIVE ORDER signed by Judge John A. Mendez on 6/11/12. (Kaminski, H) (Entered: 06/12/2012)
30 STIPULATION and PROPOSED ORDER for Further Extension to Respond to Complaint by Ralph J. Hexter, Linda Katehi, John Meyer, Fred Wood. (Sheehan, Nancy) (Entered: 06/13/2012)
31 STIPULATION and ORDER signed by Judge John A. Mendez on 6/13/2012 ORDERING that the time period for Defendants to answer or otherwise respond to the Complaint is further ENLARGED until 9/12/2012. No later than seven court days after completion of the final session of the mediation, the parties will submit a joint status report apprising the Court of their progress, including whether or not an agreement on resolution has been reached. The foregoing extension of time and all other terms of this stipulation may be revoked upon ten days notice by any of the parties. Such notice of revocation shall be filed with the Court and served on all parties as provided by the Federal Rules of Civil Procedure. This stipulation may be further extended by order of the Court upon further stipulation of the parties, subject to any terms and conditions as the Court may impose. (Zignago, K.) (Entered: 06/14/2012)
32 FIRST AMENDED COMPLAINT against All Defendants by Noah Wiley, Edward Wildanger, Elizabeth Lara, Darren Newell, Deanna Johnson, Evan Loker, Enosh Baker, Charles Parker, Ian Lee, Evka Whaley−Mayda, William Roberts, Fatima Sbeih, David Buscho, Sophia Kamran, Soo Lee, Jordan Wilheim, Thomas Matzat, Kase Wheatley, Sarena Grossjan−Navarro, Alyson Cook, Adam Fetterman.(Merin, Mark) Modified on 7/23/2012 (Manzer, C). (Entered: 07/20/2012)
33 SUMMONS ISSUED as to *Alexander Lee, Barry Swartwood* with answer to complaint due within *21* days. Attorney *Mark E. Merin* *1010 F Street* *Suite 300* *Sacramento, Ca 95814*. (Manzer, C) (Entered: 07/23/2012)
34 MINUTE ORDER: GOOD CAUSE APPEARING, the parties joint status report shall be filed on or before August 30, 2012. (TEXT ENTRY ONLY) (Vine, H) (Entered: 08/23/2012)
35 JOINT STATUS REPORT by Enosh Baker, David Buscho, Alyson Cook, Adam Fetterman, Sarena Grossjan−Navarro, Deanna Johnson, Sophia Kamran, Elizabeth Lara, Ian Lee, Soo Lee, Evan Loker, Thomas Matzat, Darren Newell, Charles Parker, William Roberts, Fatima Sbeih, Evka Whaley−Mayda, Kase Wheatley, Edward Wildanger, Noah Wiley, Jordan Wilheim. (Merin, Mark) (Entered: 08/27/2012)
36 MINUTE ORDER: GOOD CAUSE APPEARING, the parties joint status report shall be filed on or before November 30, 2012. (TEXT ENTRY ONLY) (Vine, H) (Entered: 08/27/2012)
37 NOTICE OF ASSOCIATION OF COUNSEL by Alexander Lee. Adding attorney Russell M. Perry. Attorney McGill, Michael Andrew added. (McGill, Michael) Modified on 8/28/2012 (Benson, A.). (Entered: 08/27/2012)
38 NOTICE OF ASSOCIATION OF COUNSEL by Barry Swartwood. Adding attorney Russell M. Perry. Attorney McGill, Michael Andrew added. (McGill, Michael) Modified on 8/28/2012 (Benson, A.). (Entered: 08/27/2012)
39 STIPULATION and PROPOSED ORDER for Filing of Second Amended Complaint by Enosh Baker, David Buscho, Alyson Cook, Adam Fetterman, Sarena Grossjan−Navarro, Deanna Johnson, Sophia Kamran, Elizabeth Lara, Ian Lee, Soo Lee, Evan Loker, Thomas Matzat, Darren Newell, Charles Parker, William Roberts, Fatima Sbeih, Evka Whaley−Mayda, Kase Wheatley, Edward Wildanger, Noah Wiley, Jordan Wilheim. (Attachments: # 1 Exhibit A)(Merin, Mark) (Entered: 09/26/2012)
40 APPLICATION for Preliminary Approval of Settlement by Enosh Baker, David Buscho, Alyson Cook, Adam Fetterman, Sarena Grossjan−Navarro, Deanna Johnson, Sophia Kamran, Elizabeth Lara, Ian Lee, Soo Lee, Evan Loker, Thomas Matzat, Darren Newell, Charles Parker, William Roberts, Fatima Sbeih, Evka Whaley−Mayda, Kase Wheatley, Edward Wildanger, Noah Wiley, Jordan Wilheim. (Attachments: # 1 Exhibit Stipulation for Settlement, # 2 Exhibit A to Stipulation (Claim Form), # 3

Case: 2:12-cv-450 As of: 10/26/2017 10:39 PM PDT 13 of 14

09/27/2012 09/27/2012 09/27/2012 09/27/2012 09/27/2012
09/28/2012 10/02/2012 10/04/2012
11/20/2012 12/21/2012 12/21/2012
12/27/2012 01/09/2013

Exhibit B to Stipulation (Notice), # 4 Exhibit C to Stipulation (Publication Notice), # 5 Exhibit D to Stipulation ([Proposed] Final Order & Judgment), # 6 Exhibit E to Stipulation ([Proposed] Order Granting Preliminary Approval))(Merin, Mark) (Entered: 09/26/2012)
41 NOTICE OF ERRATA by all plaintiffs to 39 Stipulation and Proposed Order,. (Merin, Mark) Modified on 9/28/2012 (Matson, R). (Entered: 09/27/2012)
42 NOTICE OF ERRATA by all plaintiffs re 40 Application. (Merin, Mark) Modified on 9/28/2012 (Matson, R). (Entered: 09/27/2012)
43 STIPULATION and ORDER 39 signed by Judge John A. Mendez on 9/27/12 allowing filing of Second Amended Complaint.(Matson, R) (Entered: 09/27/2012)
44 SECOND AMENDED COMPLAINT against All Defendants (Matson, R) (Entered: 09/27/2012)
45 ORDER signed by Judge John A. Mendez on 9/27/12 GRANTING 40 Application for an Order granting preliminary approval of settlement, certifying the settlement class, approving class notice and scheduling final approval hearing. Final Approval hearing set for 1/9/2013 at 09:30 AM in Courtroom 6 (JAM) before Judge John A. Mendez. (Matson, R) (Entered: 09/27/2012)
46 MINUTE ORDER: The Courts order of September 27, 2012 (#45 on the docket) is modified at paragraphs 8 and 9 to change the November 12, 2012 filing date to November 13, 2012. (TEXT ENTRY ONLY) (Vine, H) (Entered: 09/28/2012)
47 PROPOSED ORDER re Granting Preliminary Approval of Settlement by Ralph J. Hexter, Linda Katehi, John Meyer, Fred Wood. (Sheehan, Nancy) (Entered: 10/02/2012)
48 SUPPLEMENTAL ORDER GRANTING preliminary approval of settlement, certifying the settlement class, approving class notice and scheduling final approval hearing signed by Judge John A. Mendez on 10/3/12: Final Approval Hearing set for 1/9/2013 at 09:30 AM in Courtroom 6 (JAM) before Judge John A. Mendez. (Kaminski, H) (Entered: 10/04/2012)
49 ASSOCIATION of ATTORNEY: (DeMartini, Lauren) (Entered: 11/20/2012)
50 STIPULATION and PROPOSED ORDER for Final Order and Judgment by Ralph J. Hexter, Linda Katehi, John Meyer, Fred Wood. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Proposed Order)(Sheehan, Nancy) (Entered: 12/21/2012)
51 MOTION for ATTORNEY FEES by Enosh Baker, David Buscho, Alyson Cook, Adam Fetterman, Sarena Grossjan−Navarro, Deanna Johnson, Sophia Kamran, Elizabeth Lara, Ian Lee, Soo Lee, Evan Loker, Thomas Matzat, Darren Newell, Charles Parker, William Roberts, Fatima Sbeih, Evka Whaley−Mayda, Kase Wheatley, Edward Wildanger, Noah Wiley, Jordan Wilheim. Motion Hearing set for 1/9/2013 at 09:30 AM in Courtroom 6 (JAM) before Judge John A. Mendez. (Attachments: # 1 Declaration of Mark E. Merin, # 2 Exhibit A to Merin Declaration, # 3 Exhibit B to Merin Declaration, # 4 Declaration of Alan Schlosser, # 5 Exhibit A to Schlosser Declaration, # 6 Exhibit B to Schlosser Declaration, # 7 Exhibit C to Schlosser Declaration, # 8 Exhibit D to Schlosser Declaration, # 9 Exhibit E to Schlosser Declaration, # 10 Exhibit F to Schlosser Declaration, # 11 Declaration of Meredith Wallis, # 12 Exhibit A to Wallis Declaration)(Merin, Mark) (Entered: 12/21/2012)
52 AMENDED DOCUMENT Re: Motion for Attorney Fees. re 51 filing of omitted signature page by Plaintiffs. (Risher, Michael) Modified on 12/28/2012 (Reader, L). (Entered: 12/27/2012)
53 MINUTES (Text Only) for proceedings held before Judge John A. Mendez: MOTION HEARING held on 1/9/2013 ; Motions terminated: 51 MOTION for ATTORNEY FEES filed by Fatima Sbeih, William Roberts, Adam Fetterman, Thomas Matzat, Darren Newell, Ian Lee, Edward Wildanger, Sarena Grossjan−Navarro, Kase Wheatley, Evan Loker, Alyson Cook, Enosh Baker, Elizabeth Lara, Soo Lee, Charles Parker, Deanna Johnson, David Buscho, Jordan Wilheim, Sophia Kamran, Evka Whaley−Mayda, Noah Wiley ; granting 51 Motion for Attorney Fees and Final

Case: 2:12-cv-450 As of: 10/26/2017 10:39 PM PDT 14 of 14

01/09/2013 08/05/2014
08/08/2014

approval of settlement. Court signed order. Plaintiffs Counsel M. Merin; M. Risher; L. DeMartini present. Defendants Counsel N. Sheehan present. Court Reporter: K. Swinhart. (Vine, H) (Entered: 01/09/2013)
54 FINAL ORDER AND JUDGMENT signed by Judge John A. Mendez on 1/9/13. (Manzer, C) (Entered: 01/09/2013)
55 TRANSCRIPT REQUEST by Enosh Baker, David Buscho, Alyson Cook, Adam Fetterman, Sarena Grossjan−Navarro, Deanna Johnson, Sophia Kamran, Elizabeth Lara, Ian Lee, Soo Lee, Evan Loker, Thomas Matzat, Darren Newell, Charles Parker, William Roberts, Fatima Sbeih, Evka Whaley−Mayda, Kase Wheatley, Edward Wildanger, Noah Wiley, Jordan Wilheim for proceedings held on 01/09/2013 before Judge John A. Mendez, (Risher, Michael) (Entered: 08/05/2014)
56 TRANSCRIPT of Motion Hearing held on January 9, 2013, before Judge John A. Mendez, filed by Court Reporter Kathy Swinhart, Phone number 916−446−1347 E−mail kswinhartcsr@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may also be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 8/29/2014. Redacted Transcript Deadline set for 9/8/2014. Release of Transcript Restriction set for 11/6/2014. (Swinhart, K) (Entered: 08/08/2014)