Case 3:05-cv-02324-JCS Document 1 Filed 06/08/2005 Page 1 of 14

1 Andrew C. Schwartz (State Bar No. 064578) Thom Seaton (State Bar No. 62713)
2 CASPER, MEADOWS & SCHWARTZ A Professional Corporation
3 California Plaza 2121 North California Blvd., Suite 1020
4 Walnut Creek, California 94596 Telephone: (925) 947-1147
5 Facsimile: (925) 947-1131 E-Mail: Schwartz@cmslaw.com
6 Mark E. Merin (State Bar No. 043849)
7 Jeffrey I. Schwarzschild (State Bar No. 192086) LAW OFFICES OF MARK E. MERIN
8 2001 P Street, Suite 100 Sacramento, California 95814
9 Telephone: (916) 443-6911 Facsimile: (916) 447-8336
10 E-Mail: mark@markmerin.com

11 Attorneys for Plaintiff

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13

IN THE UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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16 RUSSELL MOYLE, a minor, by and through his Guardian Ad Litem, his
17 custodial parent, RHONDA BOWERS and on behalf of themselves and all those
18 similarly situated,

19

Plaintiffs,

Case No.
CLASS ACTION COMPLAINT DEMAND FOR JURY TRIAL

20 vs.

21 CONTRA COSTA COUNTY; CONTRA COSTA COUNTY PROBATION
22 DEPARTMENT; CONTRA COSTA COUNTY CHIEF PROBATION OFFICER
23 LIONEL CHATMAN, in his individual and official capacities; CONTRA COSTA
24 COUNTY CHIEF DEPUTY PROBATION OFFICER FOR JUVENILE HALL, JIM
25 MATHERON, in his individual and official capacities; and DOES 1 THROUGH 100,
26 Defendants.
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CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

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Moyle vs. Contra Costa County, et al . CLASS ACTION COMPLAINT

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1 PLAINTIFF COMES BEFORE THIS HONORABLE COURT AND ALLEGES:

2

INTRODUCTION

3

This is an action for declaratory and injunctive relief, damages, and punitive

4 damages against CONTRA COSTA COUNTY, CONTRA COSTA COUNTY
5 PROBATION DEPARTMENT, CONTRA COSTA COUNTY CHIEF PROBATION
6 OFFICER LIONEL CHATMAN in his individual and official capacity, CONTRA COSTA COUNTY CHIEF DEPUTY PROBATION OFFICER FOR JUVENILE HALL, OFFICER
7 JIM MATHERON, in his individual and official capacity; and DOES 1 THROUGH 100
8 (persons sued herein by their fictitious names) for violations of plaintiffs’ constitutional
9 rights resulting from application of CONTRA COSTA COUNTY’s and CONTRA
10 COSTA COUNTY PROBATION DEPARTMENT’s policies, practices, and customs
11 concerning the use of strip searches and visual body cavity searches in Juvenile Hall.
12 Plaintiff seeks an order declaring illegal defendants’ policy of subjecting juvenile

13 detainees in their custody to strip and visual body cavity searches before such

14 detainees have appeared at a detention hearing and without having any reasonable

15 suspicion that the searches will be productive of contraband.

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Defendants’ strip and visual body cavity search policies, practices, and customs

17 violated and violate the rights of plaintiff, and each of those persons similarly situated,

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2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

secured by the Fourth and Fourteenth Amendments to the U.S. Constitution and entitles plaintiff, and all of those similarly situated, to recover damages under the Federal Civil Rights Act (42 U.S.C. § 1983).
Additionally, plaintiff includes claims under California state law against defendants for violation of the Unruh Civil Rights Act (California Civil Code § 52.1(b)) pursuant to which he is, and each of those persons similarly situated are, entitled to recover a minimum of $4,000 for each violation of rights secured to them by the Constitution or laws of the state of California and the constitutional or laws of the United States, and for violation of California Penal Code section 4030’s prohibition of pre-detention hearing strip-searches, pursuant to which plaintiff is, and each of those persons similarly situated are entitled to recover minimum damages of $1,000 and attorneys’ fees.

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1

JURISDICTION

2

1. This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988, and the

3 Fourth and Fourteenth Amendments to the United States Constitution. Jurisdiction is

4 founded upon 28 U.S.C. §§ 1331 and 1341(3) and (4) and the aforementioned

statutory and constitutional provisions. 5

2. The court has supplemental jurisdiction over plaintiff’s state claims under 6

28 U.S.C. § 1367(a). 7
3. The amount in controversy exceeds $10,000, excluding interest and

8 costs.

9

4. A JURY TRIAL IS HEREBY DEMANDED.

10 PARTIES

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5. Plaintiff RUSSELL MOYLE, like all those similarly situated, is, and at all

12 material times herein, was a citizen of the United States and a resident of the state of

13 California who was arrested while a juvenile and who was subjected to multiple strip

14 and/or visual body cavity searches at Contra Costa County’s Juvenile Hall, prior to

15 appearing at a detention hearing and/or without the defendants first having a

16 reasonable suspicion that the search would be productive of contraband or weapons.

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6. Defendant CONTRA COSTA COUNTY CHIEF PROBATION OFFICER

18 LIONEL CHATMAN is, and at all material times referred to herein, was responsible for
19 administering Contra Costa County’s juvenile detention facilities and for making, overseeing, and implementing the policies, practices, and customs challenged herein
20 relating to the operation of the Juvenile Hall. He is sued in his individual and official
21 capacities.
22 7. Defendant CONTRA COSTA COUNTY CHIEF DEPUTY PROBATION
23 OFFICER FOR JUVENILE HALL OFFICER JIM MATHERON is, and at all material
24 times referred to herein, was responsible for assisting in the administration of Contra
25 Costa County’s juvenile detention facilities and for assisting in the making, overseeing,
26 and implementing the policies, practices, and customs challenged herein relating to

27 the operation of Juvenile Hall. He is sued in his individual and official capacities.

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CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

8. Plaintiff is informed and believes, and thereon alleges that defendants

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1 sued herein by their fictitious names (DOES 1 through 100) are Contra Costa

2 Probation Officers and/or other persons employed by the defendant CONTRA COSTA

3 COUNTY who, as part of their duties at the Juvenile Hall subjected plaintiff, and all

4 those similarly situated, to pre-detention hearing strip and/or visual body cavity
5 searches without first having a reasonable suspicion that the searches would be
6 productive of contraband or weapons. Plaintiff is not currently aware of the true names and identities of those sued herein as DOES 1 through 100, but will amend this
7 complaint to include such persons’ real names once said names are made available to
8 them.
9 9. At all material times mentioned herein, each of the defendants was
10 acting under the color of law, to wit, under color of statutes, ordinances, regulations,
11 policies, customs and usages of the State of California, CONTRA COSTA COUNTY,
12 and/or the CONTRA COSTA COUNTY PROBATION DEPARTMENT.

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10. Defendant CONTRA COSTA COUNTY is, and at all material times

14 referred to herein, was, a lawfully created governmental entity created pursuant to the

15 laws of the State of California, that maintained or permitted an official policy or custom

16 or practice causing or permitting the occurrence of the types of wrongs complained of

17 herein, which wrongs damaged plaintiff, and all those similarly situated, as herein

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alleged. Plaintiff’s allegations against the COUNTY are based on acts and omissions of the CHIEF PROBATION OFFICER, the CHIEF DEPUTY PROBATION OFFICER FOR JUVENILE HALL OFFICER, and their officers, and on acts and omissions of persons who are COUNTY employees, and on the COUNTY’s breach of its duty to protect plaintiff, and all those similarly situated, from the wrongful conduct of said persons and employees.
11. Defendants CONTRA COSTA COUNTY PROBATION DEPARTMENT, CONTRA COSTA COUNTY CHIEF PROBATION OFFICER LIONEL CHATMAN, acting in his individual and official capacities, and CONTRA COSTA COUNTY CHIEF DEPUTY PROBATION OFFICER FOR JUVENILE HALL OFFICER JIM MATHERON, acting in his individual and official capacities, also maintained or permitted an official policy or custom or practice causing or permitting the occurrence of the types of

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1 wrongs complained of herein, which wrongs damaged plaintiff, and all those similarly

2 situated, as herein alleged.

3

12. Class action plaintiffs are all those similarly situated juveniles who were

4 subjected by defendants to pre-detention hearing strip and/or visual body cavity
5 searches without defendants having a reasonable suspicion that the searches would
6 be productive of contraband or weapons and who have not yet reached adulthood or who have turned 18 within two years of the filing of this complaint.
7 13. On December 30, 2004, plaintiff, on his own behalf, and on behalf of a
8 class of similarly situated individuals filed a Juvenile Class Government Claim
9 pursuant to California Government Code § 910 against CONTRA COSTA COUNTY;
10 CONTRA COSTA COUNTY PROBATION DEPARTMENT; CONTRA COSTA
11 COUNTY CHIEF PROBATION OFFICER LIONEL CHATMAN, and CONTRA COSTA
12 COUNTY CHIEF DEPUTY PROBATION OFFICER FOR JUVENILE HALL, JIM

13 MATHERON, and DOES 1 through 100. On February 8, 2005, the Contra Costa

14 Board of Supervisors denied the claim and on February 9, 2005, a Deputy County

15 Clerk mailed the Notice of Denial to Plaintiff’s counsel.

16

FACTS

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14. In or about August 26, 2004, plaintiff RUSSELL MOYLE, a minor, was

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2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

arrested and transported to Juvenile Hall in the County of Contra Costa, California, and there, prior to a detention hearing, was subjected to visual body cavity searches in violation of California Penal Code § 4030, the state constitution’s guarantee of the right of privacy, the Fourth and Fourteenth Amendments to the United States Constitution and the Bane Act (Civil Code § 52.1).
15. Each and every time that claimant left his housing unit within Juvenile Hall, upon his return, he was subjected to a visual body cavity search. These searches occurred after claimant visited with his parents, his lawyer, and every other time he left his housing unit. The strip searches were performed without particularized reasonable suspicion that the searches would be productive of contraband or weapons. Plaintiff is informed and believes, and thereon alleges, that defendants had no reasonable suspicion that a strip or visual body cavity search of plaintiff would

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1 result in the discovery of contraband or weapons.

2

16. Plaintiff is informed and believes, and thereon alleges, that defendants

3 routinely follow their policy, practice, and custom of subjecting pre-detention hearing

4 juvenile detainees, including plaintiff, to strip and visual body cavity searches,
5 individually and in groups, without having a reasonable suspicion that the searches will
6 be productive of contraband or weapons. 17. Plaintiff is informed and believes, and thereon alleges, that defendants
7 have the ability to identify all such similarly situated plaintiffs, specifically those who
8 are still juveniles or who were juveniles within two years of the filing of this complaint
9 and who, while in defendants’ custody at Juvenile Hall were subjected to strip
10 searches and/or visual body cavity searches prior to appearing at a detention hearing
11 without defendants first having a reasonable suspicion that the searches would be
12 productive of contraband or weapons.

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18. Defendants CHATMAN and MATHERON and defendants DOES 1

14 through 10 are jointly and severally personally responsible for the promulgation and

15 continuation of the strip search policy, practice, and custom pursuant to which plaintiff

16 herein and the persons in the class plaintiff purports to represent were subjected to the

17 searches complained of herein.

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2121 N. California Blvd., Suite 1020
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19. As a result of being subjected to the searches complained of herein, plaintiff, and all those similarly situated, have suffered physical, mental, and emotional distress, invasion of privacy, and violation of due process of law and federal and state statutory and constitutional rights, and are entitled to recover damages according to proof, including exemplary damages.
CLASS CLAIMS 20. The strip and visual body cavity searches to which plaintiff, and all those similarly situated, were subjected were performed pursuant to policies, practices, and customs of defendants, and each of them. The searches complained of herein were performed without regard to the nature of the alleged offense for which plaintiff, and each of those similarly situated, had been arrested, without regard to whether or not plaintiff, and each of those similarly situated, was eligible for release under Welfare &

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1 Institutions Code §§ 628 et seq. Furthermore, the searches complained of herein

2 were performed without defendants having a reasonable belief that plaintiff, or those

3 similarly situated, so searched possessed weapons or contraband, or that there

4 existed facts supporting a reasonable belief that the searches would produce

5 contraband.

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21. Plaintiff brings this action on his own behalf and on behalf of all persons

similarly situated pursuant to Rule 23, Federal Rules of Civil Procedure. 7

22. The class is defined to include all persons who are currently juveniles or 8
who reached the age of majority within two years of filing of this complaint, and who

9 were arrested and subjected to a pre-detention hearing strip and/or visual body cavity

10 search at Juvenile Hall without defendants having a reasonable suspicion that the

11 searches would be productive of contraband or weapons.

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

13 members of the class are so numerous that joinder of all members is impractical.

14 Plaintiff does not know the exact number of class members. Plaintiff is informed and

15 believes, and thereupon alleges, that there are more than 25 persons per day who are

16 arrested by defendants and/or in the custody of defendants and subjected to the

17 searches complained of herein as a result of defendants’ policy, practice, and custom

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2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

relating to said searches. Plaintiff is informed and believes, and therefore alleges, that there are thousands of persons in the proposed class.
24. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiff is informed and believes, and thereupon alleges, that there are many questions of fact common to the class including, but not limited to: (1) whether defendants routinely subject all juveniles arrested to visual body cavity searches prior to appearance at a detention hearing; (2) whether persons are subjected to visual body cavity searches prior to detention hearings without there being any reasonable suspicion, based on specific or articulable facts, to believes any particular arrestee has concealed drugs, weapons, and/or contraband in bodily cavities which could be detected by means of a visual body cavity search; (3) whether the visual body cavity searches are conducted in an area of privacy so that the searches cannot be observed by persons not

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1 participating in the searches, or whether the visual body cavity searches are

2 conducted in groups and/or in open areas where they may be observed by persons

3 not participating in the searches; and, (4) whether the visual body cavity searches are
4 reasonably related to defendants’ penological interest to maintain the security of the
5 juvenile detention facility and whether or not there are less intrusive methods for 6 protecting any such interest.
25. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiff 7
is informed and believes, and thereupon alleges, that there are many questions of law 8
common to the class including, but are not limited to: (1) whether defendants may 9
perform visual body cavity searches on juveniles prior to their detention hearing 10
without reasonable suspicion, based on specific or articulable facts, to believes any 11 particular detainee has concealed drugs, weapons and/or contraband which would
12 likely be discovered by a visual body cavity search; (2) whether defendants may
13 perform visual body cavity searches on juveniles without first reasonably relating the
14 use of the visual body cavity search to defendants’ penological interest to maintain the

15 security of the juvenile detention facility and determining if there is a less intrusive

16 method to protect that interest; (3) whether visual body cavity searches may be

17 conducted in areas where the search can be observed by people not participating in

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the search without violating plaintiff’s Federal and State constitutional rights; and, (4) whether or not defendants’ strip search policy and procedure is in accordance with the laws of the State of California and the State and Federal Constitutions.
26. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the claims of the representative plaintiff are typical of the class. Plaintiff was subjected to a strip and visual body cavity search, prior to his detention hearing, without reasonable suspicion that a strip or visual body cavity search would produce drugs, weapons or contraband. Representative plaintiff has the same interests and suffered the same type of injuries as all of the class members. Plaintiff’s claims arose because of defendants’ policy, practice, and custom of subjecting arrestees to strip and/or visual body cavity searches prior to detention hearings without having, and recording in writing, a reasonable suspicion that the search would be productive of contraband or

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1 weapons. Plaintiff’s claims are based upon the same legal theories as the claims of

2 the class members. Each class member suffered actual damages as a result of being

3 subjected to a strip or visual body cavity search. The actual damages suffered by
4 representative plaintiff are similar in type and amount to the actual damages suffered
5 by each class member, in that each member of the class is entitled to minimum 6 damages of $1,000 under Penal Code Section 4030(p) and $4,000 under Civil Code
Section 52(a). 7
27. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the 8
representative plaintiff will fairly and adequately protect the class interests. Plaintiff’s 9
interests are consistent with and not antagonistic to the interests of the class. 10
28. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(A), 11 prosecutions of separate actions by individual members of the class would create a
12 risk that inconsistent or varying adjudications with respect to individual members of the
13 class would establish incompatible standards of conduct for the parties opposing the
14 class.

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

16 prosecutions of separate actions by individual members of the class would create a

17 risk of inconsistent adjudications with respect to individual members of the class which

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would, as a practical matter, substantially impair or impede the interests of the other members of the class to protect their interests.
30. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(2), plaintiff is informed and believes, and thereupon alleges, that defendants have acted on grounds generally applicable to the class, thereby making appropriate the final injunctive or declaratory relief with respect to the class as a whole.
31. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), this class action is superior to other available methods for the fair and equitable adjudication of the controversy between the parties. Plaintiff is informed and believes, and thereupon alleges, that the interests of members of the class in individually controlling the prosecution of a separate action is low, in that most class members would be unable individually to prosecute any action at all. Plaintiff is informed and

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1 believes, and thereupon alleges, that the amounts at stake for individuals are so small

2 that separate suits would be impracticable. Plaintiff is informed and believes, and

3 thereupon alleges, that most members of the class will not be able to find counsel to
4 represent them. Plaintiff is informed and believes, and thereupon alleges, that it is
5 desirable to concentrate all litigation in one forum because all of the claims arise in the 6 same location; i.e., CONTRA COSTA COUNTY. It will promote judicial efficiency to
resolve the common questions of law and fact in one forum, rather than in multiple 7
courts. 8
32. Plaintiff does not know the identities of all of the class members. Plaintiff 9
is informed and believes, and thereupon alleges, that the identities of the class 10
members may be ascertained from records maintained by CONTRA COSTA 11 COUNTY, defendant CONTRA COSTA COUNTY PROBATION DEPARTMENT, and
12 defendants CHATMAN and MATHERON. Plaintiff is informed and believes, and
13 thereupon alleges, that defendants’ records reflect the identities, including addresses
14 and telephone numbers, of the persons who have been held in custody in the Juvenile

15 Hall. Plaintiff is informed and believes, and thereupon alleges, that records maintained

16 by defendants reflect who was subjected to a strip and/or visual body cavity search,

17 when the search occurred, where the search occurred, whether any reasonable

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2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

suspicion for the search existed, when persons searched appeared at detention hearings, and the charges on which such persons were arrested. Plaintiff is informed and believes, and thereupon alleges, that all of the foregoing information is contained in defendants’ computer system and that the information necessary to identify the class members, by last known addresses, and the dates and reasons for their arrests and/or release from custody, is readily available from said computer system.
33. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), class members must be furnished with the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. Plaintiff is informed and believes, and thereupon alleges, that defendants’ computer records contain a last known address for class members. Plaintiff contemplate that individual notice will be given to class members at such last known

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1 address by first class mail. Plaintiff contemplate that the notice will inform class

2 members of the following:

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

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class;

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ii. The nature of the action;

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iii. Their right to “opt out” of the action within a given time, in which

event they will not be bound by a decision rendered in the class 7

action; 8
iv. Their right, if they do not “opt out,” to be represented by their

9 own counsel and to enter an appearance in the case; otherwise

10 they will be represented by the named class plaintiff(s) and their

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counsel; and

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v. Their right, if they do not “opt out,” to share in any recovery in

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favor of the class, and conversely to be bound by any judgment

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on the common issues adverse to the class.

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16

FIRST CLAIM FOR RELIEF

17

(Violation Of Fourth And Fourteenth Amendments To The U.S.

Constitution On Behalf Of Plaintiff And All Persons Similarly Situated And

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Against All Defendants And Each Of Them)

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34. Plaintiff hereby incorporate herein the preceding paragraphs of this complaint, to the extent relevant, as if fully set forth.
35. Defendants’ policies, practices, and customs regarding the strip and visual body cavity searches complained of herein violated the rights of plaintiff, and the rights of each of those similarly situated, under the Fourth Amendment to be free from unreasonable searches and seizures, violated the rights of plaintiff, and the rights of each of those similarly situated, to due process and privacy under the Fourteenth Amendment, and directly and proximately damaged plaintiff, and each of those similarly situated, as herein alleges, entitling plaintiff, and all those similarly situated, to recover damages for said constitutional violations pursuant to 42 U.S.C. § 1983.

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1

WHEREFORE, plaintiff, on behalf of himself and on behalf of all those

2 similarly situated, prays for relief as hereunder appears.

3

SECOND CLAIM FOR RELIEF

4

(Violation Of The California State Unruh Civil Rights Act, Civil Code

Section 52.1 On Behalf Of Plaintiff And All Persons Similarly Situated

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And Against All Defendants And Each Of Them)

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36. Plaintiff hereby incorporates herein the preceding paragraphs of this

7 complaint, to the extent relevant, as if fully set forth.

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37. By requiring plaintiff, and all those similarly situated, to submit to pre-

9 detention hearing visual body cavity searches without first having reasonable suspicion

10 that such searches would be productive of weapons or contraband, recording such

11 reasonable suspicion, and having such searches approved in writing by a supervisor

12 prior to conducting such searches; and/or by conducting visual body cavity searches in

13 groups and/or in areas where the searches were viewed by persons who were not

14 participating in the searches, defendants, and each of them, have coerced and
15 interfered with plaintiff’s California Constitutional Right to Privacy (Article I, Section 1)
and Statutory Rights (Penal Code section 4030, which prohibits strip searches of 16
persons in groups and pre-detention hearing strip searches of juveniles charged with 17
minor offenses and misdemeanors, without reasonable suspicion, recorded in writing 18
and approved by a supervisor). 19
38. Plaintiff, and each of the persons plaintiff seeks to represent, was 20 harmed by defendants’ coercion and interference with their aforementioned
21 constitutional and statutory rights.

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39. By using coercion to interfere with plaintiff’s aforementioned

23 constitutional and statutory rights, defendants, and each of them, have violated the

24 California Bane Act (Cal. Civil Code § 52.1).

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40. Defendants’ violations of the Bane Act makes them liable to each plaintiff

26 for damages up to a maximum of three times the amount of each plaintiff’s actual

27 damages, but in no event less than four thousand dollars ($4,000), together with any

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CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

attorney’s fees and costs that may be determined by the court.
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1

WHEREFORE, plaintiff, on behalf of himself and on behalf of all those

2 similarly situated, prays for relief as hereunder appears.

3 THIRD CLAIM FOR RELIEF
4

5

(Violation Of California Penal Code Section 4030 On Behalf Of Plaintiff

And All Persons Similarly Situated And Against All Defendants And Each

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Of Them)

7 41. Plaintiff hereby incorporate herein the preceding paragraphs of this
8 complaint, to the extent relevant, as if fully set forth.
9 42. Defendants’ policies, practices, and customs regarding the strip and
10 visual body cavity searches complained of herein violated California Penal Code
11 Section 4030, and directly and proximately damaged plaintiff, and each of those
12 similarly situated, as herein alleged, entitling plaintiff, and all those similarly situated, to
13 recover damages for said constitutional violations pursuant to Penal Code § 4030(p) of
14 no less than $1,000.

15

WHEREFORE, plaintiff, on behalf of himself and on behalf of all those

16 similarly situated, prays for relief as hereunder appears.

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FOURTH CLAIM FOR RELIEF

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(For Exemplary Damages On Behalf Of Plaintiff And All Persons

Similarly Situated And Against All Individually Named Defendants, And

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Each Of Them)

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43. Plaintiff hereby incorporates herein the preceding paragraphs of this

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2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

complaint, to the extent relevant, as if fully set forth. 44. Plaintiff and all those similarly situated were minors at the time
defendants subjected them to the humiliating, degrading, and unlawful strip searches complained of herein. Defendants exploited on the young age of plaintiff and all those similarly situated to coerce plaintiff, and the members of the class he represents, to comply with their unlawful demands. Defendants’ conduct was oppressive, malicious, and done in complete disregard of the rights of plaintiff and all those similarly situated;

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1 and, therefore plaintiff, and all those similarly situated, are entitled to recover, in

2 addition to actual damages, damages to make an example of and to punish

3 defendants, and each of them.

4

WHEREFORE, plaintiff, on behalf of himself and on behalf of all those

5 similarly situated, prays for relief as hereunder appears.

6

PRAYER FOR RELIEF

7

WHEREFORE, plaintiff, on behalf of himself and on behalf of all those

similarly situated, seeks judgment as follows: 8
1. For declaratory and injunctive relief declaring illegal and enjoining, 9
preliminarily and permanently, defendants’ policies, practices, and customs of
10 subjecting pre-detention hearing juvenile detainees to strip and visual body cavity

11 searches without having a reasonable suspicion that such searches would be

12 productive of contraband or weapons.

13

2. Certification of the action as a class action;

14

3. For compensatory, general, and special damages for each

15 representative and for each member of the class of plaintiffs, as against all

16 defendants;

17

4. Exemplary damages as against each of the individual defendants

18 in an amount sufficient to deter and to make an example of those defendants;

19

5. Attorneys’ fees and costs under 42 U.S.C. § 1988, California

20 Penal Code § 4030(p), and California Civil Code §§ 52 et seq.; and,

21

6.

and proper. 22

The cost of this suit and such other relief as the court finds just

23 DATED: May 23, 2005 24 Respectfully submitted, 25

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CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

Andrew C. Schwartz CASPER, MEADOWS & SCHWARTZ Attorneys for Plaintiff
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1 Andrew C. Schwartz (State Bar No. 064578) Thom Seaton (State Bar No. 62713)
2 CASPER, MEADOWS, SCHWARTZ & COOK A Professional Corporation
3 California Plaza 2121 North California Blvd., Suite 1020
4 Walnut Creek, California 94596 Telephone: (925) 947-1147
5 Facsimile: (925) 947-1131 E-Mail: Schwartz@cmslaw.com
6 Mark E. Merin (State Bar No. 043849)
7 Jeffrey I. Schwarzschild (State Bar No. 192086) LAW OFFICES OF MARK E. MERIN
8 2001 P Street, Suite 100 Sacramento, California 95814
9 Telephone: (916) 443-6911 Facsimile: (916) 447-8336
10 E-Mail: mark@markmerin.com

11 Attorneys for Plaintiffs

12

13

IN THE UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

16 RUSSELL MOYLE, a minor, by and through his Guardian Ad Litem, his
17 custodial parent, RHONDA BOWERS; KATHERINE ERMITANO, a minor, by and
18 through her Guardian Ad Litem, her custodial parent, MARLON ERMITANO,
19 and on behalf of themselves and all those similarly situated,
20 Plaintiffs,
21 vs.
22 CONTRA COSTA COUNTY; CONTRA
23 COSTA COUNTY PROBATION DEPARTMENT; CONTRA COSTA
24 COUNTY CHIEF PROBATION OFFICER LIONEL CHATMAN, in his individual and
25 official capacities; CONTRA COSTA COUNTY CHIEF DEPUTY PROBATION
26 OFFICER FOR JUVENILE HALL, NANCY MILLER, in her individual and official
27 capacities; and DOES 1 THROUGH 100,

Case No. C05-02324
FIRST AMENDED CLASS ACTION COMPLAINT DEMAND FOR JURY TRIAL

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CASPER, MEADOWS, SCHWARTZ & COOK 2121 N. California Blvd.,
Suite 1020 Walnut Creek, CA 94596
TEL: (925) 947-1147 FAX (925) 947-1131

Defendants.
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1 PLAINTIFFS COME BEFORE THIS HONORABLE COURT AND ALLEGE:

2

INTRODUCTION

3

This is an action for declaratory and injunctive relief, damages, and punitive

4 damages against CONTRA COSTA COUNTY, CONTRA COSTA COUNTY
5 PROBATION DEPARTMENT, CONTRA COSTA COUNTY CHIEF PROBATION
6 OFFICER LIONEL CHATMAN in his individual and official capacity, CONTRA COSTA COUNTY CHIEF DEPUTY PROBATION OFFICER FOR JUVENILE HALL, OFFICER
7 NANCY MILLER, in her individual and official capacity; and DOES 1 THROUGH 100
8 (persons sued herein by their fictitious names) for violations of plaintiffs’ constitutional
9 rights resulting from application of CONTRA COSTA COUNTY’s and CONTRA
10 COSTA COUNTY PROBATION DEPARTMENT’s policies, practices, and customs
11 concerning the use of strip searches and visual body cavity searches in Juvenile Hall.
12 Plaintiffs seek an order declaring illegal defendants’ policy of subjecting juvenile

13 detainees in their custody to strip and visual body cavity searches before such

14 detainees have appeared at a detention hearing and without having any reasonable

15 suspicion that the searches will be productive of contraband.

16

Defendants’ strip and visual body cavity search policies, practices, and customs

17 violated and violate the rights of plaintiffs, and each of those persons similarly situated,

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secured by the Fourth and Fourteenth Amendments to the U.S. Constitution and entitles plaintiffs, and all of those similarly situated, to recover damages under the Federal Civil Rights Act (42 U.S.C. § 1983).
Additionally, plaintiffs include claims under California state law against defendants for violation of the Unruh Civil Rights Act (California Civil Code § 52.1(b)) pursuant to which they are, and each of those persons similarly situated is entitled to recover a minimum of $4,000 for each violation of rights secured to them by the Constitution or laws of the state of California and the constitutional or laws of the United States, and for violation of California Penal Code section 4030’s prohibition of pre-detention hearing strip-searches, pursuant to which each plaintiffs are, and each of those persons similarly situated is entitled to recover minimum damages of $1,000 and attorneys’ fees.

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1

JURISDICTION

2

1. This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988, and the

3 Fourth and Fourteenth Amendments to the United States Constitution. Jurisdiction is

4 founded upon 28 U.S.C. §§ 1331 and 1341(3) and (4) and the aforementioned

statutory and constitutional provisions. 5

2. The court has supplemental jurisdiction over plaintiffs’ state claims under 6

28 U.S.C. § 1367(a). 7
3. A JURY TRIAL IS HEREBY DEMANDED.

8 PARTIES

9

4. Plaintiff RUSSELL MOYLE, like all those similarly situated, is and at all

10 material times herein was a citizen of the United States and a resident of the state of

11 California who was arrested while a juvenile and who was subjected to multiple strip

12 and/or visual body cavity searches at Contra Costa County’s Juvenile Hall, prior to

13 appearing at a detention hearing and/or without the defendants first having a

14 reasonable suspicion that the search would be productive of contraband or weapons.

15

5. Plaintiff KATHERINE ERMITANO, like all those similarly situated, is and

16 at all material times herein was a citizen of the United States and a resident of the

17 state of California who was arrested while a juvenile and who was subjected to

18 multiple strip and/or visual body cavity searches at Contra Costa County’s Juvenile
19 Hall, prior to appearing at a detention hearing and/or without the defendants first having a reasonable suspicion that the search would be productive of contraband or
20 weapons.
21 6. Defendant CONTRA COSTA COUNTY CHIEF PROBATION OFFICER
22 LIONEL CHATMAN is, and at all material times referred to herein, was responsible for
23 administering Contra Costa County’s juvenile detention facilities and for making,
24 overseeing, and implementing the policies, practices, and customs challenged herein
25 relating to the operation of the Juvenile Hall. He is sued in his individual and official
26 capacities.

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7. Defendant CONTRA COSTA COUNTY CHIEF DEPUTY PROBATION

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OFFICER FOR JUVENILE HALL OFFICER NANCY MILLER is, and at all material

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1 times referred to herein, was responsible for assisting in the administration of Contra

2 Costa County’s juvenile detention facilities and for assisting in the making, overseeing,

3 and implementing the policies, practices, and customs challenged herein relating to

4 the operation of Juvenile Hall. She is sued in her individual and official capacities.

5

8. Plaintiffs are informed and believe, and thereon allege that defendants

6 sued herein by their fictitious names (DOES 1 through 100) are Contra Costa
Probation Officers and/or other persons employed by the defendant CONTRA COSTA 7
COUNTY who, as part of their duties at the Juvenile Hall subjected plaintiffs, and all 8
those similarly situated, to pre-detention hearing strip and/or visual body cavity 9
searches without first having a reasonable suspicion that the searches would be
10 productive of contraband or weapons. Plaintiffs are not currently aware of the true

11 names and identities of those sued herein as DOES 1 through 100, but will amend this

12 complaint to include such persons’ real names once said names are made available to

13 them.

14

9. At all material times mentioned herein, each of the defendants was

15 acting under the color of law, to wit, under color of statutes, ordinances, regulations,

16 policies, customs and usages of the State of California, CONTRA COSTA COUNTY,

17 and/or the CONTRA COSTA COUNTY PROBATION DEPARTMENT.

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10. Defendant CONTRA COSTA COUNTY is, and at all material times referred to herein was, a lawfully created governmental entity created pursuant to the laws of the State of California, that maintained or permitted an official policy or custom or practice causing or permitting the occurrence of the types of wrongs complained of herein, which wrongs damaged plaintiffs, and all those similarly situated, as herein alleged. Plaintiffs’ allegations against the COUNTY are based on acts and omissions of the CHIEF PROBATION OFFICER, the CHIEF DEPUTY PROBATION OFFICER FOR JUVENILE HALL OFFICER, and their officers, and on acts and omissions of persons who are COUNTY employees, and on the COUNTY’s breach of its duty to protect plaintiffs, and all those similarly situated, from the wrongful conduct of said persons and employees.
11. Defendants CONTRA COSTA COUNTY PROBATION DEPARTMENT,

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1 CONTRA COSTA COUNTY CHIEF PROBATION OFFICER LIONEL CHATMAN,

2 acting in his individual and official capacities, and CONTRA COSTA COUNTY CHIEF

3 DEPUTY PROBATION OFFICER FOR JUVENILE HALL OFFICER NANCY MILLER,

4 acting in her individual and official capacities, also maintained or permitted an official

5 policy or custom or practice causing or permitting the occurrence of the types of

6 wrongs complained of herein, which wrongs damaged plaintiffs, and all those similarly
situated, as herein alleged. 7
12. Class action plaintiffs are all those similarly situated juveniles who were 8
subjected by defendants to pre-detention hearing strip and/or visual body cavity 9
searches without defendants having a reasonable suspicion that the searches would
10 be productive of contraband or weapons and who have not yet reached adulthood or

11 who have turned 18 within two years of the filing of this action.

12

13. On December 30, 2004, plaintiff RUSSELL MOYLE, on his own behalf,

13 and on behalf of a class of similarly situated individuals filed a Juvenile Class

14 Government Claim pursuant to California Government Code § 910 against CONTRA

15 COSTA COUNTY; CONTRA COSTA COUNTY PROBATION DEPARTMENT;

16 CONTRA COSTA COUNTY CHIEF PROBATION OFFICER LIONEL CHATMAN, and

17 CONTRA COSTA COUNTY CHIEF DEPUTY PROBATION OFFICER FOR JUVENILE

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HALL, JIM MATHERON, and DOES 1 through 100. On February 8, 2005, the Contra Costa Board of Supervisors denied the claim and on February 9, 2005, a Deputy County Clerk mailed the Notice of Denial to Plaintiff’s counsel.
14. On August 1, 2005, plaintiff KATHERINE ERMITANO, on her own behalf, and on behalf of a class of similarly situated individuals filed a Juvenile Class Government Claim pursuant to California Government Code § 910 against CONTRA COSTA COUNTY; CONTRA COSTA COUNTY PROBATION DEPARTMENT; CONTRA COSTA COUNTY CHIEF PROBATION OFFICER LIONEL CHATMAN, and CONTRA COSTA COUNTY CHIEF DEPUTY PROBATION OFFICER FOR JUVENILE HALL, NANCY MILLER, and DOES 1 through 100. On September 13, 2005, the Contra Costa Board of Supervisors denied the claim and on September 14, 2005, a Deputy County Clerk mailed the Notice of Denial to Plaintiff’s Counsel.

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1

FACTS

2

15. In or about August 26, 2004, plaintiff RUSSELL MOYLE, a minor, was

3 arrested and transported to Juvenile Hall in the County of Contra Costa, California,
4 and there, prior to a detention hearing, was subjected to visual body cavity searches in
5 violation of California Penal Code § 4030, the California state constitution’s guarantee 6 of the right of privacy, the Fourth and Fourteenth Amendments to the United States
Constitution and the Bane Act (Civil Code § 52.1). 7
16. Each and every time that plaintiff RUSSELL MOYLE left his housing unit 8
within Juvenile Hall, upon his return, he was subjected to a visual body cavity search. 9
These searches occurred after claimant visited with his parents, his lawyer, and every 10
other time he left his housing unit. The strip searches were performed without 11 particularized reasonable suspicion that the searches would be productive of
12 contraband or weapons. Plaintiff RUSSELL MOYLE is informed and believes, and
13 thereon alleges, that defendants had no reasonable suspicion that a strip or visual
14 body cavity search of plaintiff would result in the discovery of contraband or weapons.

15

17. On or about May 25, 2005, plaintiff KATHERINE ERMITANO, a minor,

16 was arrested and transported to Juvenile Hall in the County of Contra Costa,

17 California, and there, prior to a detention hearing, was subjected to visual body cavity

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searches in violation of California Penal Code § 4030, the state constitution’s guarantee of the right of privacy, the Fourth and Fourteenth Amendments to the United States Constitution and the Bane Act (Civil Code § 52.1).
18. Each and every time that plaintiff KATHERINE ERMITANO left her housing unit within Juvenile Hall, upon her return, she was subjected to a visual body cavity search. These searches occurred after claimant visited with her parents, her lawyer, after a court appearance, and every other time she left her housing unit. The strip searches were performed without particularized reasonable suspicion that the searches would be productive of contraband or weapons. Plaintiff KATHERINE ERMITANO is informed and believes, and thereon alleges, that defendants had no reasonable suspicion that a strip or visual body cavity search of plaintiff would result in the discovery of contraband or weapons.

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1

19. Plaintiffs are informed and believe, and thereon allege, that defendants

2 routinely follow their policy, practice, and custom of subjecting pre-detention hearing

3 juvenile detainees, including plaintiffs, to strip and visual body cavity searches,

4 individually and in groups, without having a reasonable suspicion that the searches will

5 be productive of contraband or weapons.

6

20. Plaintiffs are informed and believe, and thereon allege, that defendants

have the ability to identify all such similarly situated plaintiffs, specifically those who 7

are still juveniles or who were juveniles within two years of the filing of this action and 8
who, while in defendants’ custody at Juvenile Hall were subjected to strip searches

9 and/or visual body cavity searches prior to appearing at a detention hearing without

10 defendants first having a reasonable suspicion that the searches would be productive

11 of contraband or weapons.

12

21. Defendants CHATMAN and MILLER and defendants DOES 1 through 10

13 are jointly and severally personally responsible for the promulgation and continuation

14 of the strip search policy, practice, and custom pursuant to which plaintiffs herein and

15 the persons in the class plaintiffs purport to represent were subjected to the searches

16 complained of herein.

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22. As a result of being subjected to the searches complained of herein,

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plaintiffs, and all those similarly situated, have suffered physical, mental, and emotional distress, invasion of privacy, and violation of due process of law and federal and state statutory and constitutional rights, and are entitled to recover damages according to proof, including exemplary damages.
CLASS CLAIMS 23. The strip and visual body cavity searches to which plaintiffs, and all those similarly situated, were subjected were performed pursuant to policies, practices, and customs of defendants, and each of them. The searches complained of herein were performed without regard to the nature of the alleged offense for which plaintiffs, and each of those similarly situated, had been arrested, without regard to whether or not each plaintiff, and each of those similarly situated, was eligible for release under Welfare & Institutions Code §§ 628 et seq. Furthermore, the searches complained of

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1 herein were performed without defendants having a reasonable belief that plaintiffs, or

2 those similarly situated, so searched possessed weapons or contraband, or that there

3 existed facts supporting a reasonable belief that the searches would produce

4 contraband.

5

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

6 similarly situated pursuant to Rule 23, Federal Rules of Civil Procedure.
25. The class is defined to include all persons who are currently juveniles or 7
who reached the age of majority within two years of filing of this action, and who were 8
arrested and subjected to a pre-detention hearing strip and/or visual body cavity 9
search at Juvenile Hall without defendants having a reasonable suspicion that the
10 searches would be productive of contraband or weapons.

11

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

12 members of the class are so numerous that joinder of all members is impractical.

13 Plaintiffs do not know the exact number of class members. Plaintiffs are informed and

14 believe, and thereupon allege, that there are more than 25 persons per day who are

15 arrested by defendants and/or in the custody of defendants and subjected to the

16 searches complained of herein as a result of defendants’ policy, practice, and custom

17 relating to said searches. Plaintiffs are informed and believe, and therefore allege,

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that there are thousands of persons in the proposed class. 27. In accordance with Federal Rules of Civil Procedure, Rule 23(a),
plaintiffs are informed and believe, and thereupon allege, that there are many questions of fact common to the class including, but not limited to: (1) whether defendants routinely subject all juveniles arrested to visual body cavity searches prior to appearance at a detention hearing; (2) whether persons are subjected to visual body cavity searches prior to detention hearings without there being any reasonable suspicion, based on specific or articulable facts; to believe any particular arrestee has concealed drugs, weapons, and/or contraband in bodily cavities which could be detected by means of a visual body cavity search; (3) whether the visual body cavity searches are conducted in an area of privacy so that the searches cannot be observed by persons not participating in the searches, or whether the visual body cavity

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1 searches are conducted in groups and/or in open areas where they may be observed

2 by persons not participating in the searches; and, (4) whether the visual body cavity

3 searches are reasonably related to defendants’ penological interest to maintain the

4 security of the juvenile detention facility and whether or not there are less intrusive

5 methods for protecting any such interest.

6

28. In accordance with Federal Rules of Civil Procedure, Rule 23(a),

plaintiffs are informed and believe, and thereupon allege, that there are many 7

questions of law common to the class including, but are not limited to: (1) whether 8
defendants may perform visual body cavity searches on juveniles prior to their

9 detention hearing without reasonable suspicion, based on specific or articulable facts,

10 to believe any particular detainee has concealed drugs, weapons and/or contraband

11 which would likely be discovered by a visual body cavity search; (2) whether

12 defendants may perform visual body cavity searches on juveniles without first

13 reasonably relating the use of the visual body cavity search to defendants’ penological

14 interest to maintain the security of the juvenile detention facility and determining if

15 there is a less intrusive method to protect that interest; (3) whether visual body cavity

16 searches may be conducted in areas where the search can be observed by people not

17 participating in the search without violating plaintiffs’ Federal and State constitutional

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rights; and, (4) whether or not defendants’ strip search policy and procedure is in accordance with the laws of the State of California and the State and Federal Constitutions.
29. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the claims of the representative plaintiffs are typical of the class. Plaintiffs were subjected to a strip and visual body cavity search, prior to his detention hearing, without reasonable suspicion that a strip or visual body cavity search would produce drugs, weapons or contraband. Representative plaintiffs have the same interests and suffered the same type of injuries as all of the class members. Plaintiffs’ claims arose because of defendants’ policy, practice, and custom of subjecting arrestees to strip and/or visual body cavity searches prior to detention hearings without having, and recording in writing, a reasonable suspicion that the search would be productive of

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1 contraband or weapons. Plaintiffs’ claims are based upon the same legal theories as

2 the claims of the class members. Each class member suffered actual damages as a

3 result of being subjected to a strip or visual body cavity search. The actual damages
4 suffered by representative plaintiffs are similar in type and amount to the actual
5 damages suffered by each class member, in that each member of the class is entitled 6 to minimum damages of $1,000 under Penal Code Section 4030(p) and $4,000 under
Civil Code Section 52(a). 7
30. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the 8
representative plaintiffs will fairly and adequately protect the class interests. Plaintiffs’ 9
interests are consistent with and not antagonistic to the interests of the class. 10
31. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(A), 11 prosecutions of separate actions by individual members of the class would create a
12 risk that inconsistent or varying adjudications with respect to individual members of the
13 class would establish incompatible standards of conduct for the parties opposing the
14 class.

15

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

16 prosecutions of separate actions by individual members of the class would create a

17 risk of inconsistent adjudications with respect to individual members of the class which

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would, as a practical matter, substantially impair or impede the interests of the other members of the class to protect their interests.
33. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(2), plaintiffs are informed and believe, and thereupon allege, that defendants have acted on grounds generally applicable to the class, thereby making appropriate the final injunctive or declaratory relief with respect to the class as a whole.
34. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), this class action is superior to other available methods for the fair and equitable adjudication of the controversy between the parties. Plaintiffs are informed and believe, and thereupon allege, that the interests of members of the class in individually controlling the prosecution of a separate action is low, in that most class members would be unable individually to prosecute any action at all. Plaintiffs are informed and

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1 believe, and thereupon allege, that the amounts at stake for individuals are so small

2 that separate suits would be impracticable. Plaintiffs are informed and believe, and

3 thereupon allege, that most members of the class will not be able to find counsel to
4 represent them. Plaintiffs are informed and believe, and thereupon allege, that it is
5 desirable to concentrate all litigation in one forum because all of the claims arise in the 6 same location; i.e., CONTRA COSTA COUNTY. It will promote judicial efficiency to
resolve the common questions of law and fact in one forum, rather than in multiple 7
courts. 8
35. Plaintiffs do not know the identities of all of the class members. Plaintiffs 9
are informed and believe, and thereupon allege, that the identities of the class 10
members may be ascertained from records maintained by CONTRA COSTA 11 COUNTY, defendant CONTRA COSTA COUNTY PROBATION DEPARTMENT, and
12 defendants CHATMAN and MATHERON. Plaintiffs are informed and believe, and
13 thereupon allege, that defendants’ records reflect the identities, including addresses
14 and telephone numbers, of the persons who have been held in custody in the Juvenile

15 Hall. Plaintiffs are informed and believe, and thereupon allege, that records

16 maintained by defendants reflect who was subjected to a strip and/or visual body

17 cavity search, when the search occurred, where the search occurred, whether any

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reasonable suspicion for the search existed, when persons searched appeared at detention hearings, and the charges on which such persons were arrested. Plaintiffs are informed and believe, and thereupon allege, that all of the foregoing information is contained in defendants’ computer system and that the information necessary to identify the class members, by last known addresses, and the dates and reasons for their arrests and/or release from custody, is readily available from said computer system.
36. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), class members must be furnished with the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. Plaintiffs are informed and believe, and thereupon allege, that defendants’ computer records contain a last known address for class members. Plaintiffs

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1 contemplate that individual notice will be given to class members at such last known

2 address by first class mail. Plaintiffs contemplate that the notice will inform class

3 members of the following:

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

5

class;

6

ii. The nature of the action;

iii. Their right to “opt out” of the action within a given time, in which 7

event they will not be bound by a decision rendered in the class 8
action;

9 iv. Their right, if they do not “opt out,” to be represented by their

10 own counsel and to enter an appearance in the case; otherwise

11

they will be represented by the named class plaintiffs and their

12

counsel; and

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v. Their right, if they do not “opt out,” to share in any recovery in

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favor of the class, and conversely to be bound by any judgment

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on the common issues adverse to the class.

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FIRST CLAIM FOR RELIEF
(Violation Of Fourth And Fourteenth Amendments To The U.S. Constitution On Behalf Of Plaintiffs And All Persons Similarly Situated
And Against All Defendants And Each Of Them) 37. Plaintiffs hereby incorporate herein the preceding paragraphs of this complaint, to the extent relevant, as if fully set forth. 38. Defendants’ policies, practices, and customs regarding the strip and visual body cavity searches complained of herein violated the rights of plaintiffs, and the rights of each of those similarly situated, under the Fourth Amendment to be free from unreasonable searches and seizures. These policies, practices, and customs also violated the rights of plaintiffs, and the rights of each of those similarly situated, to due process and privacy under the Fourteenth Amendment, and directly and proximately damaged plaintiffs, and each of those similarly situated, as herein alleged, entitling plaintiffs, and all those similarly situated, to recover damages for said

Moyle vs. Contra Costa County, et al . FIRST AMENDED CLASS ACTION COMPLAINT

Page 12

Case 3:05-cv-02324-JCS Document 8 Filed 09/16/2005 Page 13 of 15

1 constitutional violations pursuant to 42 U.S.C. § 1983.

2

WHEREFORE, plaintiffs, on behalf of themselves and on behalf of all those

3 similarly situated, pray for relief as hereunder appears.

4

SECOND CLAIM FOR RELIEF

5

(Violation Of The California State Unruh Civil Rights Act, Civil Code

Section 52.1 On Behalf Of Plaintiffs And All Persons Similarly Situated

6

And Against All Defendants And Each Of Them)

7

39. Plaintiffs hereby incorporate herein the preceding paragraphs of this

8 complaint, to the extent relevant, as if fully set forth.

9

40. By requiring plaintiffs, and all those similarly situated, to submit to pre-

10 detention hearing visual body cavity searches without first having reasonable suspicion

11 that such searches would be productive of weapons or contraband, recording such

12 reasonable suspicion, and having such searches approved in writing by a supervisor

13 prior to conducting such searches; and/or by conducting visual body cavity searches in

14 groups and/or in areas where the searches were viewed by persons who were not

15 participating in the searches, defendants, and each of them, have coerced and

16 interfered with plaintiffs’ California Constitutional Right to Privacy (Article I, Section 1)

17 and Statutory Rights (Penal Code section 4030, which prohibits strip searches of
persons in groups and pre-detention hearing strip searches of juveniles charged with 18
minor offenses and misdemeanors, without reasonable suspicion, recorded in writing 19
and approved by a supervisor). 20
41. Plaintiffs, and each of the persons plaintiffs seek to represent, was
21 harmed by defendants’ coercion and interference with their aforementioned

22 constitutional and statutory rights.

23

42. By using coercion to interfere with plaintiffs’ aforementioned

24 constitutional and statutory rights, defendants, and each of them, have violated the

25 California Bane Act (Cal. Civil Code § 52.1).

26

43. Defendants’ violations of the Bane Act makes them liable to each plaintiff

27 for damages up to a maximum of three times the amount of each plaintiff’s actual

28
CASPER, MEADOWS, SCHWARTZ & COOK 2121 N. California Blvd.,
Suite 1020 Walnut Creek, CA 94596
TEL: (925) 947-1147 FAX (925) 947-1131

damages, but in no event less than four thousand dollars ($4,000), together with any

Moyle vs. Contra Costa County, et al . FIRST AMENDED CLASS ACTION COMPLAINT

Page 13

Case 3:05-cv-02324-JCS Document 8 Filed 09/16/2005 Page 14 of 15

1 attorney’s fees and costs that may be determined by the court.

2

WHEREFORE, plaintiffs, on behalf of themselves and on behalf of all those

3 similarly situated, pray for relief as hereunder appears.

4

THIRD CLAIM FOR RELIEF

5

(Violation Of California Penal Code Section 4030 On Behalf Of Plaintiffs

6

And All Persons Similarly Situated And Against All Defendants And Each

Of Them)

7

8

44. Plaintiffs hereby incorporate herein the preceding paragraphs of this

9 complaint, to the extent relevant, as if fully set forth.

10

45. Defendants’ policies, practices, and customs regarding the strip and

visual body cavity searches complained of herein violated California Penal Code 11
Section 4030, and directly and proximately damaged plaintiffs, and each of those 12
similarly situated, as herein alleged, entitling each plaintiff, each of those similarly 13
situated, to recover damages for said constitutional violations pursuant to Penal Code
14 § 4030(p) of no less than $1,000.

15 WHEREFORE, plaintiffs, on behalf of themselves and on behalf of all those
16 similarly situated, pray for relief as hereunder appears.

17

18

FOURTH CLAIM FOR RELIEF

19

(For Exemplary Damages On Behalf Of Plaintiffs And All Persons

20

Similarly Situated And Against All Individually Named Defendants, And Each Of Them)

21

46. Plaintiffs hereby incorporate herein the preceding paragraphs of this

22 complaint, to the extent relevant, as if fully set forth.

23

47. Plaintiffs and all those similarly situated were minors at the time

24 defendants subjected them to the humiliating, degrading, and unlawful strip searches

25 complained of herein. Defendants exploited on the young age of plaintiffs and all

26
27
28
CASPER, MEADOWS, SCHWARTZ & COOK 2121 N. California Blvd.,
Suite 1020 Walnut Creek, CA 94596
TEL: (925) 947-1147 FAX (925) 947-1131

those similarly situated to coerce plaintiffs, and the members of the class they represent, to comply with their unlawful demands. Defendants’ conduct was oppressive, malicious, and done in complete disregard of the rights of plaintiffs and all

Moyle vs. Contra Costa County, et al . FIRST AMENDED CLASS ACTION COMPLAINT

Page 14

Case 3:05-cv-02324-JCS Document 8 Filed 09/16/2005 Page 15 of 15

1 those similarly situated; and, therefore plaintiffs, and all those similarly situated, are

2 entitled to recover, in addition to actual damages, damages to make an example of

3 and to punish the individually named defendants, and each of them.

4

WHEREFORE, plaintiffs, on behalf of themselves and on behalf of all those

5 similarly situated, pray for relief as hereunder appears.

6

PRAYER FOR RELIEF

7

WHEREFORE, plaintiffs, on behalf of themselves and on behalf of all those

similarly situated, seek judgment as follows: 8
1. For declaratory and injunctive relief declaring illegal and enjoining, 9
preliminarily and permanently, defendants’ policies, practices, and customs of
10 subjecting pre-detention hearing juvenile detainees to strip and visual body cavity

11 searches without having a reasonable suspicion that such searches would be

12 productive of contraband or weapons.

13

2. Certification of the action as a class action;

14

3. For compensatory, general, and special damages for each

15 representative and for each member of the class of plaintiffs, as against all

16 defendants;

17

4. Exemplary damages as against each of the individual defendants

18 in an amount sufficient to deter and to make an example of those defendants;

19

5. Attorneys’ fees and costs under 42 U.S.C. § 1988, California

20 Penal Code § 4030(p), and California Civil Code §§ 52 et seq.; and,

21

6.

and proper. 22

The cost of this suit and such other relief as the court finds just

23 DATED: September 15, 2005 24 Respectfully submitted, 25

26
27
28
CASPER, MEADOWS, SCHWARTZ & COOK 2121 N. California Blvd.,
Suite 1020 Walnut Creek, CA 94596
TEL: (925) 947-1147 FAX (925) 947-1131

Andrew C. Schwartz CASPER, MEADOWS, SCHWARTZ & COOK Attorneys for Plaintiffs

Moyle vs. Contra Costa County, et al . FIRST AMENDED CLASS ACTION COMPLAINT

Page 15

 
 Case3:05-cv-02324-JCS Document145 Filed02/19/10 Page1 of 4

1

2

3

4

5

6

7

8

9

10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

RUSSELL MOYLE, a minor, by and through his

Case No. C05-02324 JCS

13 Guardian Ad Litem, his custodial parent, RHONDA

BOWERS; KATHERINE ERMITANO, a minor, by [PROPOSED] ORDER AND JUDGMENT

14 and through her Guardian Ad Litem, her custodial

OF DISMISSAL

parent, MARLON ERMITANO, and on behalf of

15 themselves and all those similarly situated,

DATE: March 19, 2010

16

Plaintiffs,

TIME: 9:30 a.m. CTRM: A, 15th Floor

17 vs.

JUDGE: Hon. Joseph C. Spero, Magistrate

18 CONTRA COSTA COUNTY; CONTRA COSTA COUNTY PROBATION DEPARTMENT; CONTRA
19 COSTA COUNTY CHIEF PROBATION OFFICER LIONEL CHATMAN, in his official capacity;
20 CONTRA COSTA COUNTY CHIEF DEPUTY PROBATION OFFICER FOR JUVENILE HALL,
21 NANCY MILLER, in her official capacity; and DOES 1 THROUGH 100,
22 Defendants.
23

24

This matter came on regularly for a Fairness He aring on March 19, 2010, in Courtroom A of the

25 above-entitled Court, the Honorable Joseph C. Spero, Magistrate Judge presidi ng. Plaintiff Class was

26 represented by Class Counsel Mark E. Merin of th e Law Office of Mark E. Merin and Andrew C.

27 Schwartz of the firm Casper, Meadows, Schwartz & Cook; Defendants were represented by Peter Obstler

28 and Jee Young You of the firm Bingham McCutchen, and James Fitzgerald of the firm McNamara,

1
PROPOSED ORDER AND JUDGMENT OF DISMISSAL Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

Case3:05-cv-02324-JCS Document145 Filed02/19/10 Page2 of 4

1 Dodge, Ney, Beatty, Slattery, Pfalzer, Borges & Brothers.

2

After considering the d ocuments previously su bmitted by the par ties, including the Stipulated

3 Motion for Prelim inary Approval of Provisional Set tlement Class and Settlem ent of Cl ass Action,

4 together with the extens ive exhibits attached th ereto; the Application of Plaintiff’s Class Cou nsel for

5 Award of Attorneys = Fees and Costs; Plaintiffs’ Subm ission in Support of Final Approval of the

6 Settlement; the arguments of counsel; and the submission from the Class Claims Administrator,

7

IT IS NOW ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

8

1. On September 18, 2009, this Court entered its or der preliminarily approving settlement of

9 the above-captioned class action. Since the entry of the Court =s Preliminary Order, in acco rdance with

10 the Stipulation of Settlement as proved to th e satisfaction of the Court, th e requisite notice of the

11 Settlement, with opt-out and objection inform ation, was published in th e Contra Costa T imes and the

12 West County Times on November 5, 11, and 18, 2009. The notice of the Settlement and approved claim

13 forms, were posted by First Class Ma il to the last-known address of each person in th e Settlement Class.

14 Both the published notice and the m ailed notice specified that Claim Forms had to be deliver ed to the

15 Claims Administrator, postmarked no later than January 19, 2010.

16

2. Both the published and m ailed notices specified that any person who chooses to object to

17 the Settlement, either personally or through counsel, and desired to a ppear at the Fairness Hearing, was

18 required to subm it a Notice of Inten tion to appear, together with wr itten arguments in support of any

19 objection, by January 19, 2010. No objections have been received by counsel or filed with the Court.

20

3. The Court is satisf ied from all of the m emoranda of law, declarations, and exhibits

21 submitted to the Court, that the Stip ulation of Settlement is fair, and the Court now finds for the reasons

22 stated on the record at the hearing on March 19, 2010, that the Stipulation of Settlement is fair and finally

23 approves it as such. The Stipulation of Settlement is incorporated herein by this reference as if set out in

24 full.

25

4. The “Settlement Class” m eans all of thos e persons who are m embers of the following

26 defined class:

27

All SCMs who were booked at Contra Costa County Juvenile Hall during the class period who were strip-searched at intake pursuant to Contra Costa

28

County’s policy and practice of strip-searching all such juveniles prior to their detention hearings, except for: 1) those who were strip-searched at

2

PROPOSED ORDER AND JUDGMENT OF DISMISSAL Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

Case3:05-cv-02324-JCS Document145 Filed02/19/10 Page3 of 4

1

intake after being admitted for an alleged violation (felony or

misdemeanor) involving violence, drugs, or weapons; 2) those who had a

2

prior history of being booked on offenses involving drugs, weapons, or

violence; 3) those who were subject to parole or probationary search

3

conditions at the time of the strip search; and 4) those who were transferred

from another detention facility and thus were not under the constant

4

supervision of a Contra Costa County employee.

5

5. Persons who previously comm enced civil litiga tion challenging the leg ality of any strip

6 search at the Contra Costa County Juvenile Hall during the class period and have prevailed, settled or had

7 their complaints denied on their m erits, and persons who have given timely notice of their election to be

8 excluded from the Settlement Class are not included in the Settlement Class.

9

6. All claims and complaints of the named Representative Plaintiff, together with all persons

10 in the Settlement Class, are now dism issed with prejudice as to all of the Released Persons, defined to

11 include all Defendants, their predecessors, successors , and/or assigns, together with pa st, present and

12 future officials, em ployees, representatives, attorney s and/or agents of the County of Contra Costa.

13 Claims and com plaints of such persons are now forever barred, and all Settlem ent Class Mem bers are

14 enjoined from asserting against any Released P ersons any and all c laims which the Settlem ent Class

15 Members had, have, or may have in the future arising out of the facts alleged in the complaint.

16

7. Each Released Person is released from the claims which any Settlem ent Class Member

17 has had or m ay in the future have against any such Released Persons arising out of the facts in the

18 complaint.

19

8. This Court explicitly finds that the Stipulation of Settlement, which is now made final by

20 this Judgment, was entered into in good faith, is fair and reasonabl e, and adequate, and is in the best

21 interest of the Class. The Court ex pressly finds the amount of attorney’s fees and costs s ought to be fair

22 and reasonable and expressly approves paym ent to class counsel, Mark E. Merin of the Law Office of

23 Mark E. Merin and Andrew C. Schwartz of the fi rm Casper, Meadows, Schwartz & Cook, in the am ount

24 of Eight Hundred Thousand Dollars ($800,000), as and for attorney fees and reim bursement of costs, for

25 the representation of Settlem ent Class Mem bers herein, to be paid as provided in the Stipulation of

26 Settlement.

27

9. The Court further explicitly approves paym ent from the payment fund of a total of One

28 Hundred Thousand Dollars ($100,000.00) to be distribute d to the Representative Plaintiff, Katherine

3
PROPOSED ORDER AND JUDGMENT OF DISMISSAL Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

Case3:05-cv-02324-JCS Document145 Filed02/19/10 Page4 of 4

1 Ermitano, as specified in the Stipulation of Settlem ent. The Court finds the am ount is fair and ad equate

2 in view of the damages suffered by the Representative Plaintiff and the efforts she expended in litigating

3 this case in the more than five years from the time the original claim was filed.

4

10. Claims have been sub mitted and, in acco rdance with th e claims processing p rocedure

5 specified in the Stipulation of Settlement, will be reviewed, valued, and paid by the Claims Administrator

6 from funds provided by the Defe ndants as soon as pr acticable following the ef fective date of this

7 Judgment, meaning the date it is entered and becom es final, but in any event no later than 30 days after

8 notification by the Claims Administrator that they have evaluated all the claims received and are ready to

9 disburse settlement. Such Judgment will be deemed final only upon the expiration of the tim e to appeal

10 or, if a notice of appeal is filed in this matter, upon exhaustion of al l appeals and petitions for writ of

11 certiorari.

12

11. The Court reserves continuing and exclusive ju risdiction over the p arties in th is action,

13 including Defendants and all Settlement Class Members, to administer, supervise, construe and enforce

14 the Settlement in accordance with the terms for the mutual benefit of all of the parties.

15

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the complaint in this action be

UNITED S ALIFORNIA

OURT NORTH

16 dismissed with prejudice and that judgm ent be and the same hereby is e ntered pursuant to the te rms of

17 this Order.

TATES DISTRICT C

18 Dated: ___0_3_/_1_9_/2_0_1_0_________ 19 20

______________________________________

HON. JOSEPH C. SPERO

Magistrate Judge, United States District Court

Northern

District
Judge

oJofsepChaCl.iSfpoerronia,

San

Jose

Division

21

ERN DISTRICT OF C

22

23

24

25

26

27

28

4
PROPOSED ORDER AND JUDGMENT OF DISMISSAL Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

 
 Moyle v. County of Contra Costa, Not Reported in F.Supp.2d (2007)

2007 WL 4287315 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
Russell MOYLE, et al., Plaintiffs, v.
COUNTY OF CONTRA COSTA, et al., Defendants.
No. C-05-02324 JCS. | Dec. 5, 2007.
Attorneys and Law Firms
Andrew Charles Schwartz, Thomas Andrew Seaton, Casper Meadows Schwartz & Cook, Walnut Creek, CA, Mark E. Merin, Esq., Law Office of Mark E. Merin, Sacramento, CA, for Plaintiffs.
Debra S. Belaga, Peter Obstler, O’Melveny & Myers, San Francisco, CA, James V. Fitzgerald, III, McNamara Dodge Ney Beatty Slattery Pfalzer Borges & Brothers, Walnut Creek, CA, for Defendants.
Opinion
ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Docket Nos. 35, 44]
JOSEPH C. SPERO, United States Magistrate Judge.
I. INTRODUCTION *1 Plaintiffs in this purported class action assert that Defendants’ use of strip searches and visual body cavity searches in the County of Contra Costa’s Juvenile Hall violates their federal constitutional rights under the Fourth and Fourteenth Amendments, as well as their right to privacy under article I, section 1, of the California Constitution, the California Unruh Civil Rights Act, the Bane Act (California Civil Code sections 52.1(a) & (b)), and California Penal Code section 4030. In the Motion for Class Certification (the “Class Certification Motion”), Plaintiffs seek class certification under Rule 23 of the Federal Rules of Civil Procedure as to Plaintiffs’ claims under the federal and California constitutions.1 Defendants oppose the motion for class certification and bring a motion seeking summary judgement (the “Summary Judgment Motion”) on all of Plaintiffs’ claims on a variety of grounds.

1

Plaintiffs’ counsel has stipulated that class certification

is not being sought as to the claim asserted under

Cal.Penal Code section 4030. See Motion for Class

Certification at 2, n. 2 (“Plaintiff Ermitano does not

seek to certify a class with respect to the claim for

violation of California Penal Code Section 4030”).

On Friday, October 26, 2007, at 9:30 a.m., Plaintiffs’ Motion for Class Certification and Defendants’ Motion for Summary Judgment came on for hearing. For the reasons stated below, the Class Certification Motion is GRANTED; the Summary Judgment Motion is GRANTED IN PART and DENIED IN PART.

II. BACKGROUND

A. First Amended Complaint2

2

The First Amended Complaint includes factual

allegations regarding named plaintiffs Russell Moyle

and Katherine Ermitano. On June 28, 2007, however,

Russell Moyle was dismissed from the action, pursuant

to a stipulation by the parties. Accordingly, the Court

recounts here only the factual allegations relating to

Plaintiff Katherine Ermitano.

In the First Amended Complaint (“FAC”), Plaintiffs allege that on May 25, 2005, Plaintiff Katherine Ermitano was “arrested and transported to Juvenile Hall in the County of Contra Costa, California, and there, prior to a detention hearing, was subjected to visual body cavity searches in violation of California Penal Code § 4030, the state constitution’s guarantee of the right of privacy, the Fourth and Fourteenth Amendments to the United States Constitution and the Bane Act (Civil Code § 52.1).” FAC at 6. The FAC further alleges that Ermitano was subjected to these searches upon her return to the housing unit in Juvenile Hall “[e]ach and every time” she left for a court appearance or visits with her parents or lawyer, even though Defendants had “no reasonable suspicion that a strip or visual body cavity search of [Ermitano] would result in the discovery of contraband or weapons.” Id.
Plaintiffs allege that in conducting these strip and visual body cavity searches, Defendants were acting pursuant to a policy, practice or custom of performing strip and visual body cavity searches on pre-detention hearing detainees without having a reasonable suspicion that such searches would produce contraband or weapons. Id. at 7. They further allege that Contra Costa County Chief Probation Officer Lionel Chatman and Contra Costa County Chief Deputy Probation Officer for Juvenile Hall Nancy Miller are “personally responsible for the promulgation and
1

Moyle v. County of Contra Costa, Not Reported in F.Supp.2d (2007)

continuation of the strip search policy, practice and custom ....” Id. Both Chatman and Miller were sued in their individual and official capacities based on their alleged involvement in making and implementing the strip search policy at Contra Costa County’s Juvenile Hall. Id. at 3. However, in a stipulation filed November 21, 2007, the individual capacity claims against Chatman and Miller were voluntarily dismissed.
*2 Plaintiffs bring a purported class action asserting the following claims: 1) violation of Fourth and Fourteenth Amendments and 42 U.S.C. § 1983; 2) violation of California’s Bane Act, California Civil Code section 52.1(a) and Unruh Civil Rights Act, California Civil Code section 52.1(b), based on alleged use of coercion to deprive Plaintiffs of their rights under article I, section 1, of the California Constitution and California Penal Code section 4030; 3) violation of California Penal Code section 4030; and 4) exemplary damages. Plaintiffs seek damages and injunctive relief, as well as attorneys’ fees and costs.

unlawful.4 Id., No. 11; see also Fitzgerald Decl., Ex. A (Policy). Under the new policy, “[n]o pre-detention minor will be subjected to a strip search or visual body cavity search unless reasonable suspicion exists that the minor is concealing contraband that will be discovered in the search.” Fitzgerald Decl., Ex. A. This policy expressly applied to juveniles arrested for felonies as well as those who were arrested for misdemeanors and infractions. Id.

3

In Defendants’ Statement of Undisputed Facts,

Defendants include both facts that the parties agree are

undisputed and facts that Defendants contend are

undisputed. The Court relies only on the former in this

Order.

4

Plaintiffs stipulated at oral argument that they are not

challenging the policies and practices of Defendants

regarding stip searches at Contra Costa Juvenile Hall

after September 15, 2005, and conceded that they do

not have evidence that the blanket strip policies that

previously were followed continued after that date.

B. Evidence in the Record
1. Intake and Search Practices at Contra Costa County’s Juvenile Hall Since June 2005, Contra Costa County has been confining juvenile offenders at a new Juvenile Hall that houses approximately 290 juvenile offenders. Declaration of James V. Fitzgerald, III in Support of Defendants’ Motion for Summary Judgment (“Fitzgerald Summary Judgment Decl.”), Ex. B (Deposition of Nancy Miller (“Miller Depo.”)) at 12. Previously, an older facility was used that housed somewhat fewer juveniles. See Declaration of Mark E. Merin in Support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment (“Merin Summary Judgment Decl.”), Ex. F (Quarterly Juvenile Detention Survey with “Daily Snapshots” of Juvenile Hall population on various dates between October 2003 and May 2005 ranging from 120 to 200 juveniles).
It is undisputed that between January 2000 and September 15, 2005, Contra Costa County Juvenile Hall conducted strip searches of every juvenile offender who was admitted to Juvenile Hall. Defendant Contra Costa County, Lionel Chatman, and Nancy Miller’s Joint Statement of Undisputed Facts and Defendants’ Separate Statement of Proposed Undisputed Facts that Plaintiffs Continue to Dispute in Support of Defendants’ Motion for Summary Judgment (“Defendants’ Undisputed Facts”),3 No. 6. Similarly, juveniles were strip-searched after having contact outside their unit during a visit with a person who worked outside the Juvenile Hall. Id., No. 6. The parties do not dispute that on September 15, 2005, Contra Costa promulgated a written strip search policy that replaced the practices that Plaintiffs allege are

Between January 2000 and September 30, 2005, Contra Costa booked 14,700 juveniles, of which, at least 3,832 were booked for “being in violation of offenses not involving violence, drugs or weapons.” Id., No. 3; see also Fitzgerald Summary Judgment Decl., Ex. M (Defendants’ Response to Plaintiffs’ Interrogatory No. 11). Contra Costa contends that all but 81 of these juveniles “were arrested in connection with or had a documented history of committing a serious criminal offense, were subject to an unlimited search condition order from the Juvenile Court, had a documented history of drug abuse, or posed a risk of harm to themselves or others.” Defendants’ Undisputed Facts, No. 4. Plaintiffs assert that this number is inaccurate, however, because “Defendants’ list of charges they consider to be related to violence, drugs, and weapons includes many charges not so related....” Plaintiffs’ Response to Defendants’ Statement of Disputed and Undisputed Facts in Opposition to Defendants’ Motion for Summary Judgment (“Plaintiffs’ Response to Defendants’ Undisputed Facts”), No. 4.
*3 During the relevant period, the decision to admit a juvenile to Juvenile Hall in connection with a pre-arraignment offense was made by a Probation Department intake counselor. See Fitzgerald Summary Judgment Decl., Ex. E (Deposition of James White (“White Depo.”)) at 9-12; Ex. F (Deposition of Joe Battle (“Battle Depo.”)) at 31-34; Ex. G (Deposition of Michelle Schultz (“Schultze Depo.”)) at 19-20; Ex. H (Deposition of Charles Gonsalves (“Gonsalves Depo.”)) at 23-25. In making the determination as to whether to admit a juvenile, intake counselors considered the type and
2

Moyle v. County of Contra Costa, Not Reported in F.Supp.2d (2007)

seriousness of the offense the juvenile was charged with as well as whether the juvenile was already on probation. Id. According to Nancy Miller, Chief Deputy Probation Officer for Contra Costa Juvenile Hall, most of the juveniles admitted were charged with felonies rather than misdemeanors. Fitzgerald Decl., Ex. B (Deposition of Nancy Miller (“Miller Depo.”)) at 27. As part of the admission process, the probation counselor generally reviewed and signed off on the juvenile’s “booking sheet,” completed by the arresting officer. See Declaration of Mark E. Merin in Support of Plaintiffs’ Motion for Class Certification (“Merin Class Certification Decl.”), Ex. E (Deposition of Michelle Schulze (“Schulze Depo.”)) at 22-23. The probation counselor would also complete an Adjustment Record as part of the admission process. Id. at 29. This form included the name of the juvenile, the time and date of intake, the housing assignment, and any previous detention history. Id. at 31-33 & Depo. Ex. 8.

2. Evidence Regarding Health and Safety

According to Juvenile Detention Survey Reports issued

by the California Board of Corrections, juvenile offenders

confined to county detention facilities in Contra Costa

County attempted 89 suicides, 65 escapes and 59 assaults

between 2000 and 2005. Defendants’ Summary Judgment

Motion at 4 (citing Juvenile Detention Survey-Online

Querying,

available

at

www.bdcorr.ca.gov/joq/jds/QuerySelection.asp).

Contraband logs produced by Defendants that strip

searches of juveniles at Juvenile Hall between 2000 and

2005 produced 94 items of contraband, including 45

weapons and 24 drug or drug-like substances. See

Fitzgerald Decl., Ex. L (contraband log). The contraband

logs do not specify where the items were hidden (i.e., in

clothing or a body cavity); nor do they provide any

information about the offenders from whom the items

were seized (i.e., whether the juvenile was charged with a

crime involving drugs, weapons, or violence). Id.

3. Evidence Regarding Psychological Impact of Strip Searches Plaintiffs provide three declarations addressing the harmful impact that strip searches can have on adolescents. First, they have provided a declaration by John P. Rhoads, who held the position of Chief Probation Officer in Santa Cruz County from 1997 to 2002. Declaration of John P. Rhoads in Support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment (“Rhoads Decl.”), ¶ 2. Since 2002, Rhoads has worked as a consultant in the field of juvenile detention reform. Id., ¶¶ 2-6. He states that he is opposed to blanket strip searches of juveniles because strip searches are “invasive, embarrassing and harmful to some children”

and therefore, the decision to conduct strip searches should be made on an individualized basis, based on articulable facts that are reviewed by a supervisor. Id., ¶ 14. Rhoads further states that in his opinion, “a careful pat down search made by a well-trained same sex staff along with utilization of metal detectors will intercept most if not all contraband and weapons that an institution will be concerned with.” Id. Rhoads also cites to a 2007 report released by the National Center for Mental Health and Juvenile Justice that states that 49% of incarcerated girls suffer from post-traumatic stress disorder (“PTSD”), as compared to 20% of incarcerated boys.” Id., ¶ 16.
*4 Plaintiffs also provide a declaration by Dr. Lynn E. Ponton. Declaration of Lynn E. Ponton, M.D., in Support of Plaintiff’s Opposition to Defendants Motion for Summary Judgment (“Ponton Decl.”). Dr. Ponton is a medical doctor and a professor of psychiatry at the University of California San Francisco, specializing in adolescent psychiatry. Id., ¶¶ 1-2. Dr. Ponton states that “[a]dolescents are much more conscious about their bodies and their sexual organs than adults ... [which] contributes for a heightened need for personal privacy.” Id., ¶ 7. According to Dr. Ponton, strip searches violate this need for personal privacy. Id. Dr. Ponton further states that many adolescents have “undiagnosed trauma of emotional, physical and sexual natures” and that the rate of such trauma is higher in “juvenile settings” than in general. Id., ¶ 9. As a result, such juveniles are “even more likely to be re-victimized by strip searches than other comparative groups of adolescents.” Id.
Finally, Plaintiffs provide a declaration by Russell Davis, who has held the position of Jail Administrator for the Santa Ana Police Department for the last 15 years. Declaration of Russell Davis in Support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment (“Davis Decl.”), ¶ 2. According to Davis, the Santa Ana Jail has housed juveniles for the last 9 or 10 years under a contract with the Orange County Probation Department. Id. Russell expresses the opinion that most of the contraband recovered by Defendants between 2000 and 2005 and referenced in their Summary Judgment Motion would have been recovered through a pat-down search by a trained and experienced intake officer. Id. ¶ 11. Davis further questions Defendants’ assertion that their “exemplary safety record”-according to Defendants, only 89 attempted suicides, 65 escapes, and 59 assaults on staff-was due to their use of strip searches, stating that “[a]ssuming that a blanket strip search policy will prevent attempted suicides, escapes and assaults on staff is a stretch.” Id. ¶ 12. Rather, Davis states, a “good pat search policy and procedure will eliminate potential weapons that could be used in an escape or assault.” Id. With respect to suicide prevention, Davis states that:
Utilizing strip searches as a suicide
3

Moyle v. County of Contra Costa, Not Reported in F.Supp.2d (2007)

prevention tool would be counterproductive. Inmates conceal drugs to support their habit, not to attempt suicide. Suicide prevention screening, counseling, behavioral observations, and intervention are the most effective tools to prevent suicide attempts.
Id. ¶ 13.5

5

Both Davis and Russell also express opinions about the

legality of Defendants’ strip search practices prior to

the 2005 change in policy. These legal conclusion are

not binding in any way on the Court and the Court does

not consider them. Consequently, the Court also need

not address Defendants’ objections that these experts

are not qualified to testify because they are not familiar

with various legal doctrines, such as the doctrine of in

loco parentis. See Defendants’ Summary Judgment

Reply at 9.

4. Ermitano’s Arrest and Subsequent Searches at Juvenile Hall Katherine Ermitano was arrested by the Hercules Police on May 25, 2005, after her father called the police to report that Ermitano was driving a black Ford Mustang that he did not recognize. Declaration of Katherine Ermitano in Support of Plaintiffs’ Motion for Class Certification (“Ermitano Class Certification Decl.”) at 1-2. Ermitano was first taken to the Hercules Police Department for interrogation, and then to Contra Costa Juvenile Hall, at around 1:00 a.m. on May 26. Id. at 2. An Intake Probation form (the “booking sheet”) filled out by one of the Hercules Department Officers involved in the arrest, Officer Russell, contains the following account:
*5 On 5-25-05 at about 2152 hours Katherine’s father, Marlon, called the police because Katherine was driving a 2005 black Ford Mustang and he did not know who it belonged to. Marlon stated Katherine told him she was watching it for a friend.
Officer Biasas responded to 175 Grenadine to make contact with Marlon and Katherine. He also conducted a records check on the VIN of the vehicle (2005 black Ford Mustang). The vehicle was reported stolen out of San Ramon on 5-11-05 and the keys to the vehicle were taken out of the driver’s home during a residential burglary.
I responded to 175 Grenadine and Marlon said he took the keys from Katherine and handed them to Officer Biasas. I arrested Katherine and transported her to HPD where I read her rights per Miranda. Katherine said she

would answer my questions and admitted to stealing the Mustang. Katherine stated the keys to the Mustang were sitting on the front left tire of the vehicle however she denied burglarizing the victim’s home.
Fizgerald Decl., Ex. K (Ermitano Depo.), Depo. Ex. 3 (KE 0119).
Hercules Police Officers Biasas and Russell both completed reports relating to Ermitano’s arrest. See id. at KE 0123-0125 (Russell Report); Declaration of Carla Meninsky in Support of Defendants’ Reply in Support of its Motion for Summary Judgment (“Meninsky Reply Decl.”), Ex. G (Biasas Report). There is no evidence in the record, however, that these reports were provided to the intake officers at Juvenile Hall when Ermitano was admitted. The reports contain additional details that were not included in the Intake Probation form-including information about how Ermitano learned about the victim via an Internet chat room for Mustang owners-but do not differ significantly from the account provided by Officer Russell in the Intake Probation form discussed above.
According to Ermitano, after arriving at Juvenile Hall, she was left alone in a room, where she slept until around 7:00 a.m. Ermitano Decl. at 2. At that point, she was taken out of the room, photographed, and asked to provide general information about herself (e.g., name and birth date). Id. After that, she was taken to a shower room and strip-searched. Id. Subsequently, Ermitano was placed in a room with a solid door and a window looking out into the adjacent neighborhood. Id. Ermitano was interviewed by a probation counselor on the afternoon of May 26 and on May 27. Id. at 2-3. According to Ermitano, she was strip-searched before and after both meetings. Id. Ermitano further testifies that she was strip-searched before and after a visit with her parents on May 27 and before her court appearance on May 31. Id. Ermitano was released after that hearing. Id.
During her meeting with the probation counselor-apparently the meeting on May 27-Ermitano told the counselor that she had suffered from depression and had attempted suicide several months before. See Fitzgerald Decl., Ex. K (Ermitano Depo.) at 128-30 (stating that during meeting that occurred “the next day,” that is, “24 hours after [she] had been admitted to the hall,” Ermitano told counselor she suffered from depression and had attempted suicide); see also Depo. Ex. 2 (“Intake Complaint Record” noting previous suicide attempt, that Ermitano had taken Prozac for two months and that she was seeing a psychiatrist).
*6 In addition to the meetings described by Ermitano, Hercules Police Officer B. Persson also stated in a report dated May 31, 2005, that he interviewed Ermitano at Juvenile Hall on May 27. See Fitzgerald Decl., Ex. K (Ermitano Depo.), Depo. Ex. 4 (KE0108-111). According
4

Moyle v. County of Contra Costa, Not Reported in F.Supp.2d (2007)

to Persson, Ermitano admitted that she had stolen the car and also that she had broken into the owners’ house to steal the keys to the car. Id. According to the report, she told the officer that she broke into the house after ringing the bell and getting no answer. Id. She also told him that in trying to enter the master bedroom to search for the keys to the car, she used a large knife she found in the kitchen to cut a window screen. Id.

C. The Summary Judgment Motion Defendants seek summary judgment on the following grounds: 1) Plaintiffs’ constitutional claims fail as a matter of law because the strip search policy at issue was constitutional under Earl v. Board of Education, 536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002) and its progeny; 2) the request for injunctive relief is either moot or barred under Younger v. Harris, 401 U.S. 37 (1970) because the County changed its practice regarding strip searches at juvenile hall when it adopted to the new policy on September 15, 2005; 3) the County of Contra Costa is immune from liability on the state law claims California Government Code section 844.6, which immunizes public entities from liability arising out of state law claims asserted by persons confined to its custody, including juveniles; 4) the searches were lawful based on the specific facts of Ermitano’s arrest and confinement because she was searched in connection with an offense involving violence, weapons, or drugs and had a history of suicide.6

6

Defendants also asserted in the Summary Judgment

Motion that individual defendants Chatman and Miller

were entitled to qualified immunity under federal law

because their actions were not objectively unreasonable

under the circumstances and because there was no

evidence that these individuals had any personal

involvement in the allegedly illegal strip searches. This

issue has become moot, however, because Plaintiffs

have dismissed Chatman and Miller, in their individual

capacities, from the case.

D. The Class Certification Motion Plaintiffs seek class certification under Rule 23(b) of the Federal Rules of Civil Procedure on the basis that there is a core legal and factual issue common to the defined class, that is, “whether the Contra Costa County Juvenile Hall’s blanket strip search policy was constitutional under the State and Federal Constitution.” Class Certification Motion at 2. Plaintiffs seek certification as to two classes, defined as follows:
Class One: All juveniles admitted and housed at Contra Costa County Juvenile Hall during the class period who

were strip-searched at intake pursuant to defendants’ blanket policy and practice of strip searching all such juveniles prior to their detention hearings, except for those who were strip-searched at intake after being admitted for an alleged violation (felony or misdemeanor) involving violence, drugs or weapons, or those who were strip-searched at intake because of a reasonable suspicion that such strip search would be productive of contraband.
Class Two: All juvenile arrestees in Class One who were strip-searched before and/or after visits or court appearances, prior to the detention hearing, during the class period.
*7 Class Certification Motion at 5. The class period for both classes is defined as “all persons who are currently juveniles or who reached the age of majority [i.e., 18 years of age] within two years of filing this action [i.e., June 8, 2003].” Id.
III. ANALYSIS
A. Defendants’ Summary Judgment Motion
1. Legal Standard on Summary Judgment Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the non-moving party’s claim, or to a defense on which the non-moving party will bear the burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Further, “Celotex requires that for issues on which the movant would bear the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact,” that is, “that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir.1993). Once the movant has made this showing, the burden then shifts to the party opposing summary judgment to designate “specific facts showing there is a genuine issue for trial.” Id. at 323. On summary judgment, the court draws all reasonable factual inferences in favor of the non-movant. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
5

Moyle v. County of Contra Costa, Not Reported in F.Supp.2d (2007)

2. Fourth Amendment Claims Defendants assert that Plaintiffs’ Fourth Amendment claims (brought under 42 U.S.C. § 1983) fail, as a matter of law, because the “special need” to protect minors in the custody of Juvenile Hall justifies the policy of conducting strip searches-both upon admission and after juveniles have had contact with individuals outside Juvenile Hall-without reasonable suspicion that contraband will be found. Alternatively, Defendants assert that they are entitled to summary judgment because “[t]he particular circumstances surrounding Ermitano’s arrest and confinement justified the searches.” Summary Judgment Motion at 22. The Court is not persuaded by either argument.
The second argument has no merit. In their Summary Judgment Motion, Defendants assert in a cursory fashion that the strip searches of Ermitano were justified because “she was searched in connection with an offense involving violence, weapons, or drugs and had histories [sic] suicide.” Id. In particular, they cite facts that Ermitano revealed to a Hercules Police Officer and a probation counselor at least a day after she was admitted to Juvenile Hall, namely, that she had used a kitchen knife to cut a door screen in committing the offense for which she was arrested and she had attempted suicide several months before. Therefore, Defendants argue, there was reasonable suspicion to justify the searches of Ermitano.
*8 Where the arresting officer had a reasonable suspicion that an arrestee possessed a weapon or contraband, a strip search does not violate the Fourth Amendment. Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984). Reasonable suspicion, however, depends on the facts known at the time of the strip search by the individuals who made the decision to strip-search Ermitano. See United States v. Erwin, 803 F.2d 1505, 1510 n. 2 (9th Cir.1986) (evidence obtained after seizure occurred could not be considered in determining whether seizure was justified by reasonable suspicion). Here, it is undisputed that Ermitano’s suicide attempt and her use of a kitchen knife to carry out the burglery were unknown at the time of intake. Thus, these facts do not support the conclusion that there was reasonable suspicion to justify the search that was conducted upon Ermitano’s admission. Nor is there any evidence in the record that this information was ever communicated to any individual who was involved in the subsequent strip searches. Therefore, Defendants’ argument fails as to these additional strip searches.
The more difficult question facing the Court is whether Defendants’ practice of conducting blanket strip searches of juveniles at Juvenile Hall, either at intake or after outside contact, was justified under the circumstances because of the risks and dangers that inhere in the juvenile detention setting and the state’s obligation to act in loco parentis to protect children in its custody. The starting point for this analysis is the approach articulated in Bell v.

Wolfish, that is, “[t]he test of reasonableness under the Fourth Amendment ... requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).
In the Ninth Circuit, it is well-established that a policy of strip-searching adults arrested for minor offenses without reasonable suspicion of finding weapons or contraband violates the Fourth Amendment because the need to conduct such searches has not been found to be sufficient to justify such a serious intrusion on an individual’s privacy. See Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir.1985) (holding that in 1981, “the law was sufficiently clear ... so as to expose a public official who unreasonably authorized blanket strip searches of minor offense arrestees to civil liability under 42 U.S.C. § 1983”). It is less clear, however, whether this rule applies in the context of juveniles held in pre-detention hearing custody. As the Supreme Court has cautioned, “children have a very special place in life which law should reflect.” Eddings v. Oklahoma, 455 U.S. 104, 116 n. 12, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (quoting May v. Anderson, 345 U.S. 528, 536, 73 S.Ct. 840, 97 L.Ed. 1221 (1953)). Further, there may be situations in which “special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirements impracticable.” Earls v. Bd. of Educ., 536 U.S. 822, 829, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002). In Earls, the Court explained that in conducting the balance between the intrusiveness of the search and legitimate government interests, courts must keep in mind that there are “certain limited circumstances” involving “safety and administrative regulations” in which the Government’s need to “discover ... latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting searches without any measure of individualized suspicion.” Id. (citations omitted).7

7

Defendants assert that Plaintiffs’ Fourth Amendment

claims are based on a “fundamental misunderstanding”

of the juvenile law governing strip searching practices,

suggesting that the “special needs” test is qualitatively

different from the approach used to analyze the

constitutionality of adult strip searches in Bell v.

Wolfish and its progeny. See Defendants’ Summary

Judgment Reply at 2. Defendants are incorrect. As the

court in N.G. v. Connecticut noted, “the ‘special needs’

standard does not validate searches simply because a

special need exists. Instead, what is required is a

‘fact-specific balancing of the intrusion ... against the

promotion of legitimate governmental interests.’ [Earls,

536 U.S. at 830.] This is simply an application of the

overarching principle that ‘[t]he test of reasonableness

under the Fourth Amendment ... requires a balancing of

the need for the particular search against the invasion of

personal rights that the search entails.’ Bell v. Wolfish,

441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447

6

Moyle v. County of Contra Costa, Not Reported in F.Supp.2d (2007)

(1979).” 382 F.3d 225, 231 (2d Cir.2004).
*9 In the absence of any definitive Ninth Circuit authority addressing the constitutionality of suspicionless strip searches of juveniles in pre-detention hearing custody, the Court looks for guidance to three cases that address similar issues: N.G. v. Connecticut, 382 F.3d 225 (2d Cir.2004), Smook v. Minnehaha County, 457 F.3d 806 (8th Cir.2006), and Flores v. Meese, 681 F.Supp. 665 (C.D.Cal.1988).
In N.G., the court addressed the constitutionality of the blanket policy of strip-searching all juveniles admitted to juvenile detention centers upon intake and upon return to the centers after leaving, for example, for court appearances. 382 F.3d at 227. The action was brought on behalf of two girls, S.C. and T.W. Id. at 228-29. S.C. had a history of “mental illness, suicide attempts, self-mutilation, sexual activity with older men, drug and alcohol abuse, and drug peddling.” Id. at 228. T.W. had a “history of persistent truancy, and possible mental health issues.” Id. at 229. Both children had been adjudicated to be members of a “family with service needs” under Connecticut law, allowing for detention upon a finding by a judge that a “delinquent act” has been committed. Id. at 227.
Eight strip searches of S.C. were at issue, the circumstances of which varied. First, after being arrested for running away in violation of a court order, S.C. was delivered to a juvenile detention center, where she was strip-searched upon admission. Id. at 229. She was then transferred to another juvenile detention facility, where she was strip-searched a second time. Id. After returning from a court appearance, to which she was transported in handcuffs and shackles, S.C. was strip-searched a third time. Id. She was later released to her parents but ran away from home again, at which point she was again admitted to a juvenile detention center and strip-searched a fourth time. Id. Following another court appearance, at which she was ordered detained at a different facility, S.C. was strip-searched a fifth time. Id. Once again, S.C. was transported to court in handcuffs and shackles. Id. The sixth and seventh strip searches were conducted in connection with pencils that disappeared from S.C.’s unit in the juvenile detention center. Id. The eighth strip search occurred after S.C., who had now been released from juvenile detention, ran away once again, and then turned herself in to the police, who took her to a juvenile detention center. Id.
T.W. was strip-searched twice. Id. First, she was strip-searched upon admission to a juvenile detention center after she was detained for violating a court order to attend seventh grade. Id. She was strip-searched a second time when she was transferred to another facility. Id.

The court in N.G. sought to balance the intrusion on the juveniles’ privacy against the states’ interest in conducting the strip searches to determine whether the searches were reasonable. Id. at 232. The court began by noting that “[s]trip searches of children pose the reasonableness inquiry in a context where both the interests supporting and opposing such searches appear to be greater than with searches of adults confined for minor offenses.” Id. On one hand, the court explained, the state’s obligation to “act in the place of parents (in loco parentis ) obliges it to take special care to protect those in its charge, and that protection must be concerned with dangers from others and self-inflicted harm.” Id. On the other hand, “the adverse psychological effect of a strip search is likely to be more severe upon a child than an adult, especially a child who has been the victim of sexual abuse.” Id. The court then looked to the specific circumstances of the strip searches. Id. at 233.
*10 First, the court addressed the constitutionality of S.C’s second, third and fifth searches, and T.W.’s second search, all of which were conducted following transfer from one facility to another. Id. Noting that there was no evidence that the girls had an opportunity to obtain contraband during the transfers, the court concluded that there was “no state interest sufficient to warrant repeated strip searches simply because of transfer to other facilities.” Id. On this basis, the court concluded that the strip searches following transfer were unconstitutional. Id.
Second, the court addressed the strip searches of S.C. while she was in juvenile detention occasioned by the disappearance of pencils on two separate occasions (the sixth and seventh strip searches). Id. at 234. These strip searches occurred after numbered pencils were handed out to a group of girls in a room and one was not returned. Id. The court held that the possibility that a pencil could be used as a weapon and could be concealed in a body cavity was to unlikely to justify strip searches of all girls, in the absence of reasonable suspicion that a particular girl actually had concealed the pencil. Id. Thus, these strip searches as well were found to be unconstitutional.
Finally, the court addressed the strip searches that were conducted upon intake. Id. at 235. The court found that this raised a closer issue than the other strip searches and that the facts of the case did not “yield an obvious answer to the question whether it was constitutionally ‘reasonable’ to perform strip searches upon their initial admission to detention facilities.” Id. at 237. Nonetheless, the court concluded that weighing the special obligations to protect the children in detention against the risks to the psychological health of the children associated with performing strip searches upon initial admission, the strip searches were constitutional. Id. In reaching this conclusion, the court focused in particular on three factors that it found supported the constitutionality of such
7

Moyle v. County of Contra Costa, Not Reported in F.Supp.2d (2007)

searches. First, the court pointed to the state’s “pervasive responsibility for children in detention centers twenty-four hours a day.” Id. Second, it pointed to the protective function of strip searches for locating items that could be used for self-mutilation or suicide, noting that over half of girls admitted to juvenile detention centers show signs of self-mutilation. Id. Third, the court pointed to evidence that strip searches often reveal evidence of abuse that occurred at home. Id. With respect to this third factor, the court acknowledged that this was not articulated as one of the reasons for conducting strip searches by the officials involved, but concluded that it could be considered as one of the “special needs” that confronts the state when it admits children to juvenile detention centers. Id.8

8

Based on the court of appeals’ account of the district

court ruling, the district court approached the Fourth

Amendment question somewhat differently, stating on

the record that although the policy of strip searching all

children in juvenile detention centers violated the

Fourth Amendment, the strip searches of S.C. and T.W.

were reasonable because the history of both girls

“suggest[ed] prospective behavior which would

predispose them to bringing various contraband into a

[Juvenile Detention Center].” Id. at 230 (quoting

district court ruling). The court of appeals, in contrast,

did not rely on the girls’ history in reaching the

conclusion that the intake searches (or any other

searches) were constitutional. The court of appeals

further noted that to the extent the district court made a

statement about the facial validity of the strip search

policy, the court declined to review that question

because the court’s judgment contained no declaration

to that effect.

In Smook, the court reached a similar result on somewhat different facts. There, the plaintiff challenged the blanket strip search policy of a juvenile detention center, but it was undisputed that the juvenile had not been asked to remove her undergarments. 457 F.3d at 809. Because she was not subjected to a full strip search, the court concluded, Smook’s constitutional claim was “not as strong as that of the juveniles in N.G.” Id. at 811. In particular, because the intrusion was less severe, the case did not present the “close constitutional question” presented in N.G. Id. at 812. Rather, the court found that the balance clearly tipped in favor of the defendants because of the state’s “legitimate responsibility to act in loco parentis with respect to juveniles in lawful state custody.” Id.
*11 In contrast to N.G. and Smook, a district court in Flores v. Meese held that a policy of strip-searching all juveniles admitted to an INS detention facility was unconstitutional. 681 F.Supp. 665, 669 (C.D.Cal.1988). Starting with the balancing test articulated in Bell v. Wolfish, and taking into account that children are

“especially susceptible to possible traumas from strip searches,” the court held that the policy was unreasonable under the Fourth Amendment. Id. at 667. First, it rejected the government’s assertion that strip searches were necessary to maintain security, noting that there was “no evidence” that any contraband had been discovered at two of the facilities at issue and minimal evidence that contraband had been found as a result of juvenile strip searches at a third facility. Id. The court further noted that the facilities at issue had not experienced the sort of serious security problems that had been at issue in Bell v. Wolfish. Id. Finally, the court noted that the children detained in INS facilities are not “charged with any criminal offense, let alone an offense that might indicate a propensity to conceal weapons or contraband on their persons.” Id. at 668.
With the above discussion in mind, the Court turns to the task of balancing the severity of the intrusion that results from the challenged practices against Defendants’ legitimate need to protect the children in its custody at Juvenile Hall. With respect to the former, the Court finds that the severity of the intrusion is extremely significant. Here, as in N.G. and Flores (and in contrast to Smook ), the policy at issue involves a full strip search of juveniles, whether or not there is reasonable suspicion to suspect contraband. Courts have repeatedly recognized that such strip searches may be particularly traumatic to juveniles and especially to juveniles who are detained in juvenile detention centers, who are more likely than juveniles in the general population to suffer from PTSD or other trauma. See, e.g., N.G., 382 F.3d at 232 & n. 10; Justice v. City of Peachtree, 961 F.2d 188, 193 (11th Cir.1992) (“[i]t is axiomatic that a strip search represents a serious intrusion upon personal rights”); see also Rhoads Decl., ¶ 16; Ponton Decl., ¶ 9.
Against this intrusion, the Court weighs the evidence presented by Defendants in support of such a policy. The Court concludes that the evidence is insufficient to establish, as a matter of law, that the challenged policy is constitutional. Defendants rely heavily on evidence that juveniles admitted to Juvenile Hall are generally charged with serious crimes, in contrast to the juveniles detained in Flores, who were not accused of any crime. They also point to evidence that contraband has been recovered from strip searches, which includes both weapons and drugs, in support of their claim that strip searches are necessary to protect the safety of the juveniles in their custody.
*12 While the Court agrees that the circumstances in Flores did not present the sort of difficult security issues faced by Contra Costa Juvenile Hall, it concludes, nonetheless, that Defendants’ evidence falls short of establishing the constitutionality of blanket strip searches-both upon intake and after returning from visits with individuals who were not employed by Juvenile
8

Moyle v. County of Contra Costa, Not Reported in F.Supp.2d (2007)

Hall. With respect to the strip searches that were conducted upon admission to Juvenile Hall, there has been no showing that the contraband listed in the contraband log was seized from juveniles like Ermitano, whose crime did not involve violence, drugs, or weapons.9 Further, in the face of Plaintiffs’ evidence that this contraband could have been detected through the use of pat searches and a metal detector, Defendants have offered no evidence showing that the more intrusive strip search was required. Nor have they pointed to evidence that any of the contraband listed on the logs was concealed in a body cavity. Similarly, with respect to the strip searches conducted after visits with probation counselors and parents, there has been no showing that strip searches are necessary to protect the children at Juvenile Hall. Indeed, the possibility that contraband or weapons might be given to juveniles by probation counselors seems particularly unlikely.

9

As discussed further below, the Court rejects

Defendants’ assertion that the burglary Ermitano later

admitted to was a crime of violence. The Court finds

that a crime of violence, at a minimum, requires some

threat of physical harm to another individual. Use of a

kitchen knife that Ermitano found in an empty house to

cut a screen does not make Ermitano’s offense a crime

of violence. Similarly, the kitchen knife itself does not

constitute a weapon as Ermitano did not bring it to the

scene and used it only as a tool.

The Court also notes that in N.G., the court relied upon evidence that strip searches sometimes revealed abuse at home, thus allowing juvenile authorities to address this problem. In that case, this evidence was considered to add to the combination of special needs confronting the state. Here, however, Defendants have presented no evidence that strip searches have ever revealed cases of abuse.
Considering all of these factors, the Court concludes that Defendants have fallen short of demonstrating that their blanket search policy, both upon admission and after visits with non-Juvenile Hall individuals, was constitutional. Accordingly, summary judgment is denied as Plaintiffs’ Fourth Amendment claims.

3. Availability of Injunctive Relief Defendants assert that injunctive relief is not available to Plaintiffs for three reasons: 1) the practice challenged by Plaintiffs was replaced by a new policy and, therefore, there is no reasonable likelihood that Plaintiff’s will be subjected to the same conduct in the future; 2) the named Plaintiff is no longer a juvenile, having reached the age of 18, and, therefore, would not be subject to confinement as a juvenile; and 3) the court should abstain under Younger v. Harris, 401 U.S. 37 (1970) from exercising jurisdiction

over injunctive relief claims that may be the subject of a juvenile court proceeding. The Court rejects all three arguments.
a. Standing and Mootness Defendants’ first two arguments are based on the doctrines of standing and mootness. In order to establish standing under Article III of the Constitution, a plaintiff must demonstrate the existence of an actual “case or controversy” for each form of relief sought. See Friends of the Earth, Inc. v. Laidlaw Envt’l Servs., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Where injunctive relief is sought, a plaintiff’s allegations must show that, at the time the litigation was initiated, the plaintiff faced a “real and immediate” threat of injury. City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); see also Friends of the Earth, 528 U.S. at 704 (holding that Article III inquiry addresses whether there was standing at the “outset of the litigation”). In Lyons, the Court addressed whether a plaintiff had standing under Article III of the Constitution to seek injunctive relief where the plaintiff alleged that he had been subjected to excessive force when police officers used a choke hold on him during a traffic stop. Id. at 97-98. The Court held that he did not, finding that although it was possible the plaintiff might be stopped again and subjected to a choke hold, it was not sufficiently likely to give rise to “a real immediate threat” that he would be subjected to such conduct, as would be required to support a finding of standing with respect to the plaintiff’s claim for equitable relief. Id. at 105. The Court noted, however, that the plaintiff would have had standing on his equitable relief claim if he had alleged that the police always used choke holds during traffic stops, or that the City ordered or authorized police officers to engage in such conduct. Id. at 105-06. See also Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir.2001) (holding that a plaintiff in a putative class action has standing to seek injunctive relief where the harm is the result of a written policy or a pattern of officially sanctioned behavior).
*13 Where a defendant changes its policy or practice after the litigation is initiated, that voluntary cessation generally does not deprive a plaintiff of standing to seek injunctive relief. See United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953) (holding that “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, ie., does not make the case moot”). The Court in W.T. Grant explains that because a defendant is “free to return to his old ways,” a “controversy remains to be settled in such circumstances.” Id. at 632. Accordingly, where the defendant voluntarily ceases to engage in the challenged conduct, the case becomes moot only if the defendant meets the “heavy
9

Moyle v. County of Contra Costa, Not Reported in F.Supp.2d (2007)

burden” of demonstrating that “there is no reasonable expectation that the wrong will be repeated.” Id. (citations omitted); see also Friends of the Earth, 528 U.S. at 189-90. As the Court noted in Friends of the Earth, the heavy burden that must be carried in order to establish mootness on the basis of a defendant’s voluntary cessation of conduct gives rise to the result that “there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness.” Id. at 190.
To determine whether a defendant has established mootness based on voluntary cessation of conduct, courts consider whether the change in conduct is accompanied by circumstances indicating the change is a “genuine” act of “self-correction.” See Magnuson v. City of Hickory Hills, 933 F.2d 562, 565 (7th Cir.1991). Where the defendant has ceased to engage in the challenged conduct only for practical or strategic reasons-such as avoiding litigation-the cessation does not make the case moot. See United States v. Government of Virgin Islands, 363 F.3d 276, 285 (3d Cir.2004) (holding that where Government of Virgin Islands withdrew from challenged contract just before litigation was initiated and governor offered only general reason that withdrawal was in the “best interest” of the Virgin Islands, voluntary cessation was likely only a strategic move to avoid litigation and therefore case was not moot). Further, where a defendant has not conceded that its past conduct is illegal, courts are less likely to find a cessation of challenged conduct makes the case moot. See Armster v. United States Dist. Court for the Cent. Dist. of Cal., 806 F.2d 1347, 1359 (9th Cir.1986); Sasnett v. Litscher, 197 F.3d 290, 291-292 (7th Cir.1999).
Applying the doctrines set forth above, at least two courts have held that plaintiffs who brought challenges to blanket strip search policies had standing to seek injunctive relief based on those challenges, even though the policies were changed after litigation commenced. See Maneely v. City of Newburgh, 208 F.R.D. 69, 72-73 (S.D.N.Y.2002) (holding that consistent with Lyons, plaintiff had standing with respect to claim for injunctive relief based on allegedly unconstitutional strip search where the plaintiff was strip-searched pursuant to an official policy of strip-searching all arrestees); Mack v. Suffolk County, 191 F.R.D. 16, 20 (D.Mass.2000) (same). In both cases, the courts found that Lyons was distinguishable because in Lyons, the challenged practice did not involve a policy that was applied to all detainees. The courts in both cases further found that the defendants had not established that there was no “reasonable expectation” that the challenged conduct would resume, pointing out that the defendants had changed their conduct only in response to litigation, even though the law governing the strip search policies at issue in those cases had been established for many years.

*14 The Court finds the reasoning in Maneely and Mack to be persuasive. Here, as in those cases, Plaintiffs challenge an established practice under which all juveniles were strip-searched when they were admitted to Contra Costa Juvenile Hall. This policy was still in effect when the litigation commenced. Therefore, at the time this action was initiated, Ermitano and the class of plaintiffs she purports to represent, in contrast to the plaintiff in Lyons, faced a real and immediate threat of being subjected to a strip search again. Thus, the standing requirement under Article III has been satisfied. Further, Defendants’ change in policy-which Chatman testified was in response to this litigation-does not render Plaintiffs’ claims moot. Although it is true that the law in this case is less clear-cut than it was in Maneely and Mack (both of which involved strip search policies in the adult context), Defendants’ change in policy was in response to this litigation and has been accompanied by continued assertions in this litigation that it’s prior practices were constitutional. Therefore, the Court concludes that Defendants have not met the “heavy burden” required to establish mootness.
The Court does not find that Smook requires a contrary result. In Smook, the court held that the plaintiffs did not have standing to bring an injunctive relief claim challenging a blanket strip search policy that was applied to all juveniles admitted to a juvenile detention center because the defendants’ policy changed within a month after the strip search on which the complaint was based. 457 F.3d at 816. The court concluded that the plaintiffs did not establish that there was a real and immediate threat that they would be strip-searched again under this new policy, citing to Lyons. 457 F.3d at 816. The Court does not adopt the holding of Smook for two reasons. First, although it is unclear whether the policy at issue in Smook changed before or after litigation commenced, the fact that the court in that case addressed standing only, and did not mention or cite to case law involving mootness, indicates that the policy changed before the litigation commenced. As the Supreme Court explained in Friends of the Earth, there may be circumstances in which the likelihood that conduct will be resumed is too speculative to establish standing at the outset of a case but sufficient to overcome mootness. 528 U.S. at 190. Smook may be an example of that principle.
Second, to the extent the policy in Smook may have been changed after litigation commenced, the Court declines to follow that decision because the court failed to address what this Court, like the courts in Maneely and Mack, finds to be a critical distinction between the facts here and those in Lyons: that the allegations here relate to an established policy of subjecting all of the members of the purported class to strip searches, taking the claims out of the realm of the speculative. The Smook court also failed to address the established case law relating to voluntary cessation of challenged conduct (again, assuming the
10

Moyle v. County of Contra Costa, Not Reported in F.Supp.2d (2007)

policy at issue was changed after litigation commenced), which places the burden squarely on the defendant to show that the challenged conduct will not recur. Therefore, the Court declines to adopt the approach or holding of Smook with respect to the availability of injunctive relief.
*15 Finally, the Court rejects Defendants’ assertion that the action is moot because Plaintiff is no longer a juvenile. While it is true that this development would moot Ermitano’s injunctive relief claim if it were asserted only on her own behalf, because Plaintiff represents a putative class that may still be detained at Contra Costa Juvenile Hall and therefore subjected to the challenged conduct, this case falls within “that narrow class of cases in which the termination of a class representative’s claim does not moot the claims of the unnamed members of the class” because the claim is “capable of repetition but evading review.” Gerstein v. Pugh, 420 U.S. 103, 110 n. 11, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Therefore, the fact that Plaintiff is no longer a juvenile also does not render Plaintiffs’ request for injunctive relief moot.
b. Younger Abstention Defendants assert that the Court should dismiss Plaintiffs’ claims under Younger v. Harris on the basis that federal courts must not interfere with state criminal prosecutions unless there is a threat of “great and immediate injury.” 401 U.S. at 36. Defendants have not pointed to any particular state criminal prosecution with which Plaintiffs’ injunctive relief claim would interfere. Therefore, the Court rejects this argument.
For the reasons stated above, the Court concludes that Defendants are not entitled to summary judgment on Plaintiffs’ claim for injunctive relief.
4. Immunity of the County of Contra Costa Under State Law Defendants argue that the County is entitled to immunity on Plaintiffs’ state law claims under California Government Code section 844.6. The Court agrees.
Section 844.6 provides that public entities shall not be liable for “an injury to any prisoner” except as provided in California Penal Code sections 814, 814.2, 845.4 and 845.6 and in Title 2.1 (commencing with section 3500) of Part 3 of the Penal Code. Although Plaintiffs do not contend that any of the exceptions that are specifically enumerated in section 844.6 apply here, they assert that this provision nonetheless does not bar their state law claims against the County of Contra Costa. According to Plaintiffs, the immunity provided in section 844.6 was not intended to strip prisoners of the protection of statutes that

were specifically enacted for their benefit, such as California Penal Code section 4030. Nor, Plaintiffs assert, does this provision deprive prisoners of their right to sue public entities for rights guaranteed under the California constitution. In support of their position, Plaintiffs cite the introductory language of section 844.6, namely, the exclusion of the specific provisions listed above. Plaintiffs also cite Hart v. County of Orange, 254 Cal.App.2d 302, 62 Cal.Rptr. 73 (1967). In that case, the court held that an earlier version of section 844.6 that did not contain the any specific exceptions did not preclude liability under California Penal Code section 845.6, which creates liability on the part of public entities based on failure to obtain medical care for a prisoner.
*16 The Court is not persuaded by Plaintiffs’ arguments. As another district court has held in addressing the same issue, the principle of expressio unius est exclusio alterius supports the conclusion that if the legislature had intended to exclude Penal Code section 4030, California Civil Code section 52.1, or particular sections of the California Constitution, from the purview of section 844.6, it would have listed these provisions and sections along with the other exceptions. See Kozlowski v. Sacramento County, Case No. C-04-0238 (E.D.Cal. March 11, 2005) (dismissing claims against County defendant under California Penal Code section 4030 and California Civil Code section 52.1 on the basis of the immunity afforded public entities under section 844.6); see also Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (explaining that where the legislature includes particular language in one section of a statute but omits it in another section, it is generally presumed that the legislature acts intentionally and purposely in the disparate inclusion and exclusion).
Nor does Hart support a contrary result. In that case, the court addressed a previous version of the statute that did not contain any specific exclusions. 254 Cal.App.2d at 306, 62 Cal.Rptr. 73. The court concluded that the legislature did not intend to do away with public entity liability under statutory provisions like section 845.6 that affirmatively create liability. Id. The legislature apparently agreed as to the specific provision at issue in Hart, amending section 844.6 three years later to clarify that it did not extend to that provision or three other enumerated provision. See Legislative Committee Comments to 1970 Amendment. Notably, however, the legislature did not amend section 844.6 to broadly exclude any provision creating liability on the part of prisoners, as would have been consistent with the reasoning of Hart. Rather, it identified specific provisions that were excluded. It amended the provision again in 1977 to add another specific exclusion. In light of the legislature’s choice to take this narrow approach, it is reasonable to conclude that claims under Penal Code section 4030 and Civil Code section 52.1 were not intended to be excluded under section 844.6, even though
11

Moyle v. County of Contra Costa, Not Reported in F.Supp.2d (2007)

both of those provisions were enacted after section 844.6. Indeed, the legislature has shown, in enacting the amendments of 1970 and 1977, that it is aware of the issue and, therefore, that its decision not to amend section 844.6 to exclude the two state law provisions at issue here was intentional.
Accordingly, the state law claims against the County are dismissed under California Government Code section 844.6.10

10

To the extent Plaintiffs allege that Defendants have

violated their right to privacy under article I, section 1,

of the California Constitution, that claim is asserted

under the Unruh Civil Rights Act and the Bane Act

(Calfornia Government Code sections 52.1(a) & (b))

and, therefore, is barred under California Government

Code section 844.6. Because the Complaint does not

assert a direct claim under the California Constitution,

the Court need not consider whether California

Government Code section 844.6 would bar such a

claim.

B. Plaintiffs’ Class Certification Motion
1. Legal Standard Governing Class Certification In order to satisfy the requirements for class certification in Rule 23, plaintiffs must demonstrate that they have satisfied the requirements set forth in subsection (a) as well as one of the four possibilities in subsection (b). Subsection (a) sets forth the following requirements for certification:
*17 (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a). Plaintiffs here seek class certification under Rule 23(b)(3), which allows a class action to be maintained where the court finds that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Rule 23(b)(3) instructs courts to consider the following factors in making this determination:

(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Fed.R.Civ.P. 23(b)(3).
Plaintiffs bear the burden of establishing that class certification is appropriate. Zinser v. Accuflex Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir.2001). The court must conduct a “rigorous analysis” to determine whether the prerequisites of Rule 23 are met. Id. (citation omitted). “Because the early resolution of the class certification question requires some degree of speculation, however, all that is required is that the Court form a ‘reasonable judgment’ on each certification requirement.” In re Citric Acid Antitrust Litig., 1996 WL 655791 *2 (N.D.Cal. Oct.2, 1996). In conducting this analysis, the court may properly consider both the allegations in the complaint and the evidence submitted by the parties. Id. (citing Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th Cir.1975)).
2. Numerosity Rule 23(1) requires that the size of the proposed class be so numerous that joinder of all the class members is impracticable. There is no set number cut-off. See Welling v. Allexy, 155 F.R.D. 654, 656 (N.D.Cal.1994) (noting that courts have certified classes as small as 14 and have often certified classes with 50-60 members). Here, Defendants have provided the following numbers regarding strip searches as Contra Costa County Juvenile Hall:
Approximately 14700 juveniles were booked during the January 2000 through September 2005 time period. 3832 juveniles were booked for being in violation of offenses not involving violence, drugs, or weapons. From the 3832 juveniles, we then removed from the list: juveniles who had a prior history of violations involving violence, drugs, or weapons, juveniles booked on court commitments; warrants; home supervision
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Moyle v. County of Contra Costa, Not Reported in F.Supp.2d (2007)

violations; probation violations, had probation strip search clauses, juveniles transferred into the facility from another detention facility, juveniles who disclosed a history of drug use, suicide or mental health problems, and juveniles with a history of violence in schools or at detention facilities, leaving approximately 81 juveniles remaining who were strip searched at the time of their booking.

*18 Fizgerald Summary Judgment Decl., Ex. M (Defendants’ Second Amended Responses to Interrogatories, Response to Interrogatory 11). Thus, it is undisputed that Class One, directed at Defendants’ intake strip search policy, contained at least 81 members. The Court concludes that this number is sufficient to satisfy the numerosity requirement as to Class One.11

11

In reaching this conclusion, the Court does not rule on

whether the categories of individuals Defendants

excluded from their list were properly excluded under

Plaintiffs’ class definition.

With respect to Class Two, which includes juveniles arrested in Class One who were strip-searched before and/or after visitation or court appearances, Plaintiffs assert that most of the 3,832 juveniles that Defendants concede were booked and housed at Juvenile Hall for offenses that did not include drugs, weapons, or violence would have been subjected to the policy of strip-searching juveniles in connection with visits and court appearances. Even if Defendants take the position that the number of individuals in Class One is much smaller than Plaintiffs’ assert, they do not dispute that these individuals would have been subjected to the practice of being strip-searched after court appearances. Therefore, the Court concludes that the numerosity requirement is satisfied as to Class Two as well.
The Court rejects Defendants’ assertion that the class members are not ascertainable because so many individualized factual determinations must be made regarding class membership. See Defendants’ Opposition to Class Certification Motion at 20 (citing DeBremaeker v. Short, 433 F.2d 733, 734-35 (5th Cir.1970) for the proposition that numerosity requirement requires that the class be ascertainable by reference to objective criteria). It is apparent from the record that Defendants maintain computerized records of juveniles admitted to Juvenile Hall and the charges on which they were booked. See Merin Class Certification Decl., ¶ 5. These records will make a determination of who is in the two classes relatively straightforward.

3. Common Questions of Law and Fact In order to satisfy the commonality requirement, Plaintiffs must demonstrate that there are questions of law and fact that are common to the class. Fed.R.Civ.P. 23(a)(2). The Ninth Circuit has explained that this requirement has been construed permissively and is less rigorous than the requirements of Rule 23(b)(3). Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.1998). “The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.” Id. Here, the core legal issue is the lawfulness of policies that were applied to all juveniles detained by Contra Costa Juvenile Hall. This common legal issue is sufficient to meet the commonality requirement.
4. Typicality To satisfy the typicality requirement, Plaintiffs must establish that “claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R.Civ. P. 23(a)(2). Again, the standard is permissive: “representative claims are ‘typical’ if they are reasonably coextensive with those of absent class members; they need not be substantially identical.” Id. at 1020. Defendants assert that Ermitano’s claims are not typical of the claims of the two classes Plaintiffs seek to certify for three reasons: 1) Ermitano was initially strip-searched, according to Defendants “as a result of having committed a crime involving violence drugs or weapons” and after her confinement, was strip-searched because of her history of “suicide, depression and drug use;” 2) Ermitano’s account of her experience differs from that of all other individuals detained at Juvenile Hall to the extent that she asserts she was strip-searched not only after but also before visits and court appearances; and 3) Ermitano is not typical of the class because she has already reached the age of majority. The Court rejects Defendants’ arguments except with respect to the pre-visitation strip searches, which the Court excludes from the definition of Class One.
*19 Defendants’ assertion that Ermitano was initially strip-searched as a result of having committed a crime involving violence, drugs or weapons does not withstand scrutiny. This assertion apparently is based on Ermitano’s admission that she used a kitchen knife to cut a screen when she stole the keys to the car that she also stole. The Court finds that a crime of violence, at a minimum, requires some threat of physical harm to another individual. Use of a kitchen knife in an empty house to cut a screen does not make Ermitano’s offense a crime of violence. Similarly, the kitchen knife itself does not constitute a weapon as Ermitano found the knife at the
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Moyle v. County of Contra Costa, Not Reported in F.Supp.2d (2007)

scene and used it only as a tool. Nor, as discussed above, does Ermitano’s use of the kitchen knife support the conclusion that there was probable cause to strip-search Ermitano, as there is no evidence this information was ever conveyed to the individuals who conducted the strip searches (even assuming it would have been sufficient to establish probable cause). Rather, the evidence indicates that she was strip-searched as a result of Defendants’ blanket policy of strip-searching juvenile detainees without reasonable suspicion. That is the policy Ermitano and the proposed class members in Class One challenge.
Similarly, there is no evidence that the strip searches that were conducted while Ermitano was at Juvenile Hall were conducted because of Ermitano’s prior suicide attempt. In particular, Defendants point to no evidence that this information was communicated to anyone who was involved in conducting (or deciding to conduct) these strip searches of Ermitano. Again, the evidence in the record indicates that Ermitano was strip-searched as part of a blanket policy or practice.12

12

The Court notes that in balancing the extent of the

intrusion against the nature of governments’ interest in

conducting the challenged strip search policies, the

risks that juvenile detainees may attempt to harm

themselves or others will be a significant consideration.

There is no doubt that past suicide attempts by

detainees are relevant to this inquiry. Defendants,

however, have pointed to no evidence that Ermitano’s

one past suicide attempt makes her atypical of juveniles

detained for crimes that do not involve violence, drugs,

or weapons. Rather, the evidence in the record suggests

that juveniles detained at Juvenile Hall are, on the

whole, more likely to suffer from undiagnosed trauma

that makes suicide attempts more likely than is the case

for the general population of juveniles.

The Court also rejects Defendants’ assertion that Ermitano is not typical of the rest of the class because she has reached majority already and therefore no longer faces the possibility of being strip-searched as a juvenile detainee at Juvenile Hall. This argument is essentially the same as the argument raised on summary judgment with respect to Plaintiffs’ injunctive relief claim. For the reasons set forth above, the Court rejects Defendants’ argument here.
The Court does find that both Class One and Class Two may include plaintiffs whose claims are not typical of Ermitano’s to the extent the class period is defined only in terms of the plaintiffs’ ages. As a result, the proposed classes include plaintiffs who were strip-searched after the change in policy that was instituted on September 15, 2005. As Plaintiffs have conceded that they have no evidence regarding the implementation of the new policy, the Court concludes that the class period should be

modified to include an additional limitation requiring that class members must have been subjected to strip searches at Juvenile Hall prior to September 15, 2005.
In addition, the Court concludes that Class Two is overbroad to the extent it includes individuals who were subjected to strip searches before visits and court appearances. Plaintiffs have pointed to no evidence that any other plaintiff in the class was subjected to such searches and Defendants have cited evidence that this was not the practice at Juvenile Hall. Although Ermitano’s claims need not be identical to those of the class, in the absence of evidence that Ermitano’s challenge to strip searches conducted prior to visits and court appearances is shared by the rest of class, the Court finds it appropriate to exclude from the definition of Class Two the words “before and/or.” With these modifications, the Court concludes that the typicality requirement is met.
5. Adequacy of Representation *20 Defendants assert that Ermitano will not adequately represent the class because her claims fail on the merits and therefore, she lacks standing to assert the claims of the class. In particular, Defendants assert that the strip searches Ermitano was subjected to were constitutional and that she does not have standing to seek injunctive relief. These arguments are the same as the ones that the Court has already rejected in connection with Defendants’ Summary Judgment Motion. Further, Plaintiffs have offered evidence that their counsel have extensive class action experience, including cases that involve challenges to blanket strip search policies like the one in this case. See Declaration of Mark E. Merin in Support of Plaintiffs’ Motion for Class Certification (“Merin Class Certification Decl.”), ¶¶ 7-12. Accordingly, the Court concludes that Ermitano is an adequate class representative.
6. Rule 23(b)(3) Requirements To qualify for class certification, Plaintiffs must also satisfy the requirements of Rule 23(b)(3). “To qualify for certification under this subsection, a class must satisfy two conditions in addition to the Rule 23(a) prerequisites: common questions must ‘predominate over any questions affecting only individual members,’ and class resolution must be ‘superior to other available methods for the fair and efficient adjudication of the controversy.’ ” Hanlon v. Chrysler Corp., 150 F.3d at 1022. The predominance test of Rule 23(b)(3) is more “far more demanding” than the commonality test under Rule 23(a)(1). Anchem Prods., Inc. v. Windsor, 521 U.S. 591, 624, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).
Defendants assert that the predominance test is not met-and, therefore, the class mechanism is not superior to
14

Moyle v. County of Contra Costa, Not Reported in F.Supp.2d (2007)

other methods of resolution-because the claims of the class members will require individualized determinations on a variety of issues, including: 1) whether the individual plaintiffs’ claims are barred under the Rooker-Feldman doctrine, Younger abstention, or the doctrine of collateral estoppel; 2) the juveniles’ prior history, which might give rise to reasonable suspicion as to some of the plaintiffs and render the strip searches constitutional; and 3) the damages each plaintiff may recover. The Court rejects these arguments.
a. Rooker-Feldman Doctrine, Younger Abstention, and Collateral Estoppel Defendants’ reliance on various doctrines that prohibit this Court from overturning or interfering with state court judgments and require the Court to give preclusive effect to issues that have already been decided in state court is misplaced.
As discussed above, under Younger v. Harris, federal courts must not interfere with ongoing state criminal prosecutions unless there is a threat of “great and immediate injury.” 401 U.S. at 36. Similarly, the Rooker-Feldman doctrine precludes a litigant in federal court from trying to “undo a prior state-court judgment” or ruling. Bianchi v. Rylaarsdam, 334 F.3d 895, 901 (9th Cir.2003). For example, in Wishnefsky v. Addy, 969 F.Supp. 953 (E.D.Pa.1997), cited by Defendants, the plaintiff brought a federal civil rights action based on allegedly unconstitutional search where he had raised the same constitutional challenge in the state court criminal proceeding in the context of a motion to suppress evidence the prosecution sought to introduce against him. The state court had denied the motion to suppress, ruling that the search was proper. Id. at 955. On the basis of the state court ruling, the district court dismissed Wishnefsky’s civil rights claims on the basis that they were barred under the Rooker-Feldman doctrine. Id. Finally, under the doctrine of collateral estoppel, parties may not relitigate an issue that has already been litigated and decided by another court. See Migra v. Warren City Sch. Dist. & Bd. of Educ., 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984).
*21 Here, Defendants have not pointed to any instances in which contraband discovered as the result of a strip search was used as a basis for bringing state law criminal charges against a juvenile or where the constitutionality of the search was challenged or is the subject of a challenge in any ongoing state court action. Nor have they provided evidence that any plaintiff in the proposed classes has been the subject of a state court ruling on the same constitutional issues as are raised here. Thus, the possibility that the claims of a plaintiff in the proposed classes might fall under any of the three doctrines discussed above is entirely speculative.

b. Prior History and Reasonable Suspicion Defendants point to a variety of factual inquiries that they assert will require individualized inquiry, including whether at the time of the strip search or searches the juvenile had previously been booked for crimes involving drugs, violence, or weapons, whether the juvenile was subject to a probationary search term, whether the juvenile had a history of suicide or mental health problems, whether the juvenile had a history of violence in school or in a detention facility and whether the juvenile was transferred from another facility. While some courts have accepted this argument as a basis for denying class certification, see, e,g., Doe v. Connecticut, Case No. C00-2036, slip op. at *8 (D.Conn. September 27, 2002), other courts, including two in this district, have rejected such arguments. See Mary Bull v. City and County of San Francisco, Case No. C03-1840, slip. op. (N.D. Cal. June 10, 2004); Gallagher v. County of San Mateo, Case No. C-04-2448 (N.D.Cal. Oct. 28, 2005); see also Tardiff v. Knox County, 365 F.3d, 1, 7 (1st Cir.2004); Maneely v. City of Newburgh, 208 F.R.D. 69, 78 (S.D.N.Y.2002); Mack v. Suffolk County, 191 F.R.D. 16, 23 (D.Mass.2000).
In Mary Bull, the plaintiffs challenged an alleged policy on the part of the Sheriff’s Department of conducting strip searches on arrestees charged with a crime involving drugs, weapons or violence and arrestees with a criminal history involving drugs, weapons or violence. Slip op. at 2. The policy also allowed arrestees to be strip-searched if they were placed in safety cells, which could occur under a wide array of circumstances, including if the arrestee “displays bizarre behavior” or if the arrestee requests to be placed in the safety cell. Id. Plaintiffs sought to certify a class of individuals who were arrested “on any charge not involving weapons, controlled substances, or a felony charge of violence, and not involving a violation of parole or a violation of probation (where consent to search is a condition of such probation).” Id. at 8. Defendants argued that the class should not be certified because the common issues in the case did not predominate, asserting that the question of whether reasonable suspicion existed as to each plaintiff would require an individualized inquiry. Id. at 9.
*22 The court in Mary Bull rejected Defendants’ position. It held that the legality of the defendants’ strip search policy or practice-the nature of which was undisputed-was the predominant issue in the case, even if it might be necessary to make some individualized determinations regarding the existence of facts that would have given rise to reasonable suspicion. The court pointed out that to the extent any individuals were actually strip-searched based on individualized reasonable suspicion, those individuals would not be included in the
15

Moyle v. County of Contra Costa, Not Reported in F.Supp.2d (2007)

class. Id. at 11. Further, even if post hoc determinations of reasonable suspicion were required-a question the court declined to rule on-“that does not mean that an individual was not searched pursuant to a blanket visual body cavity strip search, the constitutionality of which will be determined in this litigation.” Id. The court also noted that the exclusion of individuals charged with crimes involving weapons, drugs and violence (the court amended the class definition to exclude misdemeanors where violence was used as well as felonies) would reduce the problem. Id. at 10. And to the extent that there was a policy of conducting strip searches without individualized reasonable suspicion, the court reasoned, the number of individuals “as to whom defensible individual judgments to strip search were actually made or could have been made,” such persons “may well not be numerous.” Id. at 11 (quoting Tardiff, 365 F.3d at 6). Finally, the court reasoned that even if some categories of individuals within the class could be permissibly strip-searched, some of these determinations too could be resolved on a class-wide basis. Id. at 10.
The Court finds the reasoning in Mary Bull to be persuasive. The core issue of whether the policies and practices relating to strip searches at Contra Costa Juvenile Hall prior to September 15, 2005, were lawful is the predominant issue that binds the class together in this case and is sufficient to satisfy the requirements of Rule 23(b)(3). Nonetheless, the Court concludes that Plaintiffs’ proposed classes should be narrowed to eliminate certain categories of individuals whose claims are more likely to raise separate issues. In particular, the Court narrows Class One to exclude the following categories of individuals: 1) juveniles with a prior history of being booked on offenses involving drugs, weapons, or violence; 2) juveniles who were subject to parole or probationary search conditions at the time of the strip search; and 3) juveniles who were transferred from another detention facility and, thus, were not under the constant supervision of a Contra Costa County employee.13

13

The Court notes that at oral argument, Plaintiffs’

counsel conceded that the categories of individuals

carved out by Defendants in determining the size of the

potential class were “generally reasonable.”

c. Damage Determinations Defendants assert that damage determinations are likely to differ as between plaintiffs because the impact of the strip searches on the individual plaintiffs will diverge widely. Assuming this is true, the Court does not find that this fact is sufficient to defeat a finding of predominance. As the court in Tardiff noted, “the need for individualized

damage decisions does not ordinarily defeat predominance where there are still common issues as to liability.” 365 F.3d at 6. In particular, if the class action resolves liability only, this is a legitimate function. Id. at 6-7. Once the question of liability is resolved, the issue of damages can be resolved in a variety of ways. Id. at 7. If no solution is found to resolve the damages of the class members, the court even has the option of entering a judgment of liability and allowing the class members to bring separate actions for damages. Id. The Court concludes that the possible divergence among plaintiffs in the proposed classes is not sufficient to defeat class certification.
IV. CONCLUSION *23 The Court DENIES Defendants’ Summary Judgment Motion as to Claim One, based on Defendants’ alleged violation of the Fourth Amendment. The Court further DENIES Defendants’ Summary Judgment Motion as to Plaintiffs’ request for injunctive relief. The Court GRANTS Defendants’ Summary Judgment Motion as to the state law claims (Claims Two and Three) against the County.
Plaintiffs’ Class Certification Motion is GRANTED. Accordingly, the Court certifies the following classes:
Class One: All juveniles admitted and housed at Contra Costa County Juvenile Hall during the class period who were strip-searched at intake pursuant to defendants’ blanket policy and practice of strip-searching all such juveniles prior to their detention hearings, except for: 1) those who were strip-searched at intake after being admitted for an alleged violation (felony or misdemeanor) involving violence, drugs, or weapons; 2) those who were strip-searched at intake because of a reasonable suspicion that such strip search would be productive of contraband; 3) those who had a prior history of being booked on offenses involving drugs, weapons, or violence; 4) those who were subject to parole or probationary search conditions at the time of the strip search; and 5) those who were transferred from another detention facility and thus were not under the constant supervision of a Contra Costa County employee.
Class Two: All juvenile arrestees in Class One who were strip-searched after visits or court appearances, prior to the detention hearing, during the class period.
The class period for both classes shall be defined as “all persons who are currently juveniles or who reached the age of majority within two years of filing this action and who were subjected to a strip search at Contra Costa County Juvenile Hall before September 15, 2005.” Id.

16

Moyle v. County of Contra Costa, Not Reported in F.Supp.2d (2007)

The parties shall meet and confer and submit to the Court a joint proposed class notice consistent with this opinion within thirty (30) days of the date of this Order.

IT IS SO ORDERED.
	  

17

 
 Case 3:05-cv-02324-JCS Document 123 Filed 09/03/09 Page 1 of 20

1 LAW OFFICE OF MARK E. MERIN

Mark E. Merin, SBN 043849

2 2001 P Street, Suite 100

Sacramento, California 95811

3 Telephone: (916) 443-6911

Facsimile: (916) 447-8336

4 E-Mail:

mark@markmerin.com

5 CASPER, MEADOWS, SCHWARTZ & COOK

Andrew C. Schwartz, SBN 064578

6 2121 North California Blvd., Suite 1020

Walnut Creek, California 94596

7 Telephone: (925) 947-1147

Facsimile: (925) 947-1131

8 E-Mail:

Schwartz@cmslaw.com

9 Attorneys for Plaintiffs

10 MCNAMARA, DODGE, NEY, BEATTY,

SLATTERY, PFALZER, BORGES & BROTHERS

11 James Fitzgerald, III, Esq. SBN 55632

1211 Newell Avenue

12 Walnut Creek, CA 94596

Telephone: (925) 939-5330

13 Facsimile: (925) 939-0203

E-Mail:

james.fitzgerald@mcnamaralaw.com

14

BINGHAM MCCUTCHEN, LLP

15 Peter Obstler, SBN 171623

Three Embarcadero Center

16 San Francisco, CA 94111-4067

Telephone: (415) 393-2578

17 Facsimile: (415) 262-9244

E-Mail:

peter.obstler@bingham.com

18

Attorneys for Defendants

19

UNITED STATES DISTRICT COURT

20

NORTHERN DISTRICT OF CALIFORNIA

21

RUSSELL MOYLE, a minor, by and through his

Case No. C05-02324 JCS

22 Guardian Ad Litem, his custodial parent, RHONDA

BOWERS; KATHERINE ERMITANO, a minor, by STIPULATION OF SETTLEMENT

23 and through her Guardian Ad Litem, her custodial

parent, MARLON ERMITANO, on behalf of

DATE:

September 18, 2009

24 themselves and all those similarly situated,

TIME: CTRM:

9:30 a.m. A, 15th Floor

25

Plaintiffs,

JUDGE: Hon. Joseph C. Spero

26 vs.

27 CONTRA COSTA COUNTY; CONTRA COSTA COUNTY PROBATION DEPARTMENT; CONTRA
28 COSTA COUNTY CHIEF PROBATION OFFICER LIONEL CHATMAN, in his official capacity;
1
STIPULATION OF SETTLEMENT
Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

Case 3:05-cv-02324-JCS Document 123 Filed 09/03/09 Page 2 of 20

1 CONTRA COSTA COUNTY CHIEF DEPUTY PROBATION OFFICER FOR JUVENILE HALL,
2 NANCY MILLER, in her official capacity; and DOES 1 THROUGH 100,
3 Defendants.
4 Plaintiff KATHERINE ERMITANO, individually and on behalf of the settlement class defined
5 herein, and Defendants CONTRA COSTA COUNTY, CONTRA COSTA COUNTY PROBATION
6 DEPARTMENT, CONTRA COSTA COUNTY CHIEF PROBATION OFFICER LIONEL CHATMAN,
7 in his official capacity, CONTRA COSTA COUNTY CHIEF DEPUTY PROBATION OFFICER FOR
8 JUVENILE HALL, NANCY MILLER, in her official capacity, (hereinafter referred to as “Parties”), by
9 and through their respective counsel, hereby submit the following Stipulation of Settlement.
10

11

I.

12

RECITALS

13

WHEREAS on or about June 8, 2005, Plaintiff RUSSELL MOYLE, a minor, filed a class action

14 complaint against Defendant Contra Costa County (“Contra Costa”) and Chief Probation Officer Lionel

15 Chatman and Chief Deputy Probation Officer For Juvenile Hall, Nancy Miller in their individual

16 capacities.

17

WHEREAS on or about September 15, 2005, Contra Costa revised the strip search policy and has

18 implemented a revised search policy (the “Revised Policy”). The Revised Policy has been implemented

19 and remains in place pending the outcome of certain appeals regarding the constitutionality of blanket

20 strip search policies, including the pending Ninth Circuit en banc review in Bull v. City and County of

21 San Francisco, Case No. 05-17080, D.C. No. CV-03-01840-CRB (9th Cir. hearing en banc on May 26,

22 2009.). Copies of the Contra Costa’s Revised Policies relating to the strip search of juveniles at Contra

23 Costa County Juvenile Hall are attached hereto as Exhibit 1.

24

WHEREAS on September 16, 2005, Plaintiffs filed a Second Amended Complaint to add a new

25 class representative, Plaintiff KATHERINE ERMITANO, at that time a minor, challenging the

26 Defendants’ policy of strip searching juveniles at Contra Costa County Juvenile Hall. Defendants filed a

27 timely answer to the First Amended Complaint denying allegations of wrong doing or liability.

28 \\\
2

STIPULATION OF SETTLEMENT Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

Case 3:05-cv-02324-JCS Document 123 Filed 09/03/09 Page 3 of 20

1

WHEREAS the Parties entered into discovery which included exchange of documents,

2 preparation of and responses to requests for production of documents, on site review of juvenile files, and

3 taking depositions of the Parties and Defendants’ employees and administrators.

4

WHEREAS on December 4, 2007, the Honorable Joseph C. Spero, United States Magistrate

5 Judge for the Northern District of California, issued an order granting preliminary certification to a class

6 of juveniles subject to the class definition set forth in that order (the “Certification Order”).

7

WHEREAS Plaintiffs voluntary dismissed with prejudice all claims against Defendants Chatman

8 and Miller, leaving only Contra Costa as the remaining Defendant in this Action. (See Class Cert. Order

9 fn. 6 at 10.)

10

WHEREAS, on July 8, 2009 and July 9, 2009, the Parties participated in settlement mediation

11 presided over by the Honorable Fern M. Smith (retired). At the mediation, Contra Costa and Plaintiffs

12 reached an agreement on a Term Sheet, which was approved by the Contra Costa Board of Supervisors

13 on July 21, 2009. The terms reached at the mediation were to be further clarified and incorporated into

14 this Stipulation of Settlement which, subject to the approval of the Court, will constitute a final and

15 binding settlement agreement of all individual and class-wide claims (and related claims) alleged in the

16 action in the manner and upon the terms set forth below and fully resolves the dispute.

17

WHEREAS, at the time of the mediation, the law applicable to the issue of whether Plaintiffs’

18 core claim that Contra Costa’s blanket strip search policy violates the Fourth Amendment may be

19 impacted by on-going appellate proceedings, including the en banc review in Bull v. San Francisco. As a

20 result, the Plaintiffs and Contra Costa reached a compromise and agreed that in the event that blanket

21 strip search policies involving the intake and placing of a juvenile into the general population at juvenile

22 detention facility are found to be constitutional or the constitutionality of such policies are determined to

23 be different from that argued by the Plaintiffs or defined by the Court in its Class Certification Order in

24 this Action, Contra Costa may modify its existing Search Policy or re-implement its prior policy in

25 compliance with Ninth Circuit or Supreme Court law, and such further revisions and implementation of

26 those policies shall be permitted by and incorporated into this agreement by subsequent written

27 modification to any final settlement agreement reached in this Action.

28 \\\
3
STIPULATION OF SETTLEMENT Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

Case 3:05-cv-02324-JCS Document 123 Filed 09/03/09 Page 4 of 20

1

WHEREAS, subject to the terms of the original negotiated Term Sheet and approval by the

2 Contra Costa Board of Supervisors and the Court, the parties desire to enter into a final and binding

3 settlement that will resolve all claims for relief and causes of action alleged or related to any individual

4 or class-wide allegations averred in the Second Amended Complaint or Motion for Class Certification,

5 Contra Costa and Plaintiffs enter into this Stipulation of Settlement.

6

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

7 Parties as follows:

8

II.

9

DEFINITIONS

10

1. “Administrator” means Gilardi and Co., LLC, P.O. Box 8060, San Rafael, CA 94912-

11 8060, to be appointed by the Court to provide notice to the members of the class and to review and

12 determine the validity and value of claims submitted by Settlement Class Members (ASCMs”), according

13 to the procedures set forth herein.

14

2. “Bar Date” is the date established by the Court by which any SCM who wishes to receive

15 payment pursuant to the Stipulation of Settlement must file his/her Claim Form(s), objections to this

16 Stipulation of Settlement, or request to be excluded from the class (opt-out).

17

3. “Charge List” means the list of charges attached hereto as Exhibit 2.

18

4. “Claim Form” is the form required to be used to make a claim for payment under this

19 settlement. A copy of the proposed Claim Form is attached as Exhibit 3.

20

5. “Class Counsel” means Mark E. Merin, attorney, Law Office of Mark E. Merin, 2001 P

21 Street, Suite 100, Sacramento, CA 95811, and Andrew C. Schwartz, attorney, Casper, Meadows,

22 Schwartz & Cook, 2121 North California Blvd., Suite 1020, Walnut Creek, California 94596.

23

6. The “Class Notice” means the notice in the form attached hereto as Exhibit 4 (Notice by

24 Mail); such other summary notice(s) and announcements to be published in newspapers serving the

25 Contra Costa County area, announced on radio stations, posted on billboards, and/or posted in juvenile

26 facilities operated by Contra Costa County.

27

7. The “Class Period” ends on September 15, 2005, and includes all juveniles who were

28 booked into Contra Costa County Juvenile Hall prior to that date who had not reached the age of 20 on or

4

STIPULATION OF SETTLEMENT Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

Case 3:05-cv-02324-JCS Document 123 Filed 09/03/09 Page 5 of 20

1 before June 8, 2005, the date of filing of the complaint herein.

2

8. The “Database” is the information provided in hard copy and/or electronic form by

3 Defendants to the Administrator and Class Counsel which includes, to the extent practicable, the name,

4 last known addresses, date of birth, social security number, date(s) of booking, charge(s) and information

5 reflecting whether the SCM was on searchable probation at the time of booking of all SCMs arrested

6 during the Class Period, together with the name(s), last known address(es), and social security number(s)

7 of all parents and/or guardians of SCMs arrested during the Class Period. The Parties agree that all of the

8 persons identified in the list attached hereto as Exhibit 5 are members of the class.

9

a. Notwithstanding the above language set forth in Section II.8 above, this list of

10

eligible claimants may be increased by a number of persons who may have requested that

11

their juvenile files be sealed or purged or expunged. Because the Contra Costa County

12

Juvenile Court Judge has issued an Order on July 29, 2009, pursuant to a joint request to

13

release information relating to those juveniles in the Settlement class, including those

14

Class Members whose files have been expunged (the “Expunged Class Members”) to

15

allow all Class Members to receive notice of the settlement in this action, the Juvenile

16

Court Order and findings at the July 29, 2009 hearing are expressly incorporated into the

17

terms of this Agreement and any binding settlement.

18

19

9. “Debts Owed to the County” shall mean any financial obligation which would be

20 collected by the Contra Costa County Central Collections Agency and/or any Debt Owed to the County

21 of Contra Costa or State of California for unpaid child support.

22

10. The “Effective Date” means the date upon which a judgment entered by the Court

23 approving the Stipulation of Settlement becomes final. The judgment will be deemed final only upon

24 expiration of the time to appeal or, if a Notice of Appeal is filed, upon exhaustion of all appeals and

25 petitions for Writ of Certiorari. Notwithstanding the above, an application to the Court or subsequent

26 approval of the Stipulation is expressly subject to the condition precedent of the Contra Costa Board of

27 Supervisors formal approval of this Stipulation and its terms and no such application for final approval

28 by the Court shall be made by any Party unless and until the condition precedent of Board Approval is

5
STIPULATION OF SETTLEMENT Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

Case 3:05-cv-02324-JCS Document 123 Filed 09/03/09 Page 6 of 20

1 received.

2

11. A “Non-VDW” Offense for purposes of this Stipulation only means an offense not listed

3 on the Charge List. The parties represent and warrant that the definition of a non-VWD Offense shall

4 have no collateral estoppel and shall not be used by any party or third party as legal precedent in any

5 other legal action or proceeding, other than a proceeding to enforce the terms of a Final Settlement

6 approved by the Court, if any, in this Action.

7

12. An “Opt-Out” is any potential Settlement Class Member who files a timely request for

8 exclusion as specified in Paragraph 49.

9

13. “Released Persons” means the Defendants and their predecessors, successors, and/or

10 assigns, together with past, present, and future officials, employees, representatives, attorneys and/or

11 agents of the County of Contra Costa or Contra Costa County Probation Department or any other

12 political subdivision or agency of Contra Costa County, including its Counsel of Record.

13

14. The “Settlement Class” means all persons who were booked at Contra Costa County

14 Juvenile Hall on or before September 15, 2005, who had not reached the age of 20 by June 8, 2005.

15

15. A “Settlement Class Member” (“SCM”) means any member of the Settlement Class,

16 including representatives, successors and assigns, who does not file a valid and timely Request for

17 Exclusion as provided in Paragraph 49 of this Stipulation of Settlement.

18

16. “Special Master” shall mean the Honorable Fern M. Smith (Ret.) appointed by the Court

19 to preside over this Stipulation of Settlement. The Special Master shall have power to make decisions in

20 all matters pertaining to the administration and enforcement of the Stipulation of Settlement, subject to

21 review by the Court upon request of any party.

22

17. This Stipulation of Settlement is for settlement purposes only, and neither the fact of, nor

23 any provision contained in this Stipulation of Settlement or its exhibits, nor any action taken hereunder

24 shall constitute, be construed as, or be admissible in evidence as an admission of the validity of any claim

25 or any fact alleged by Plaintiff or SCMs in this action or in any other pending action or of any

26 wrongdoing, fault, violation of law, or liability of any kind on the part of Defendants or admission by

27 Defendants of any claim or allegation made in this action or in any other action, nor as an admission by

28 Plaintiff, SCMs or Class Counsel of the validity of any fact or defense asserted against them in this action

6
STIPULATION OF SETTLEMENT Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

Case 3:05-cv-02324-JCS Document 123 Filed 09/03/09 Page 7 of 20

1 or in any other action. Defendants deny all allegations of wrongdoing and deny any liability to Plaintiff

2 or to any other Class Members. The Parties have agreed that, in order to avoid long and costly litigation,

3 this controversy should be settled pursuant to the terms of this settlement, subject to the approval of the

4 Court.

5

III.

6

TERMS AND EFFECT OF STIPULATION OF SETTLEMENT

7

8

18. The Parties will file a proposed stipulated protective order concurrently with the motion

9 for preliminary approval of this Stipulation of Settlement to allow personnel of the Contra Costa County

10 Probation Department to provide the name, last known address, and other necessary data of all SCMs to

11 Class Counsel and the Claims Administrator. This information is privileged and confidential. The

12 Defendants may, in their sole discretion, withdraw from the Stipulation of Settlement if the Court does

13 not enter that order.

14

19. On or about the Effective Date, the Parties will submit all appropriate papers to dismiss

15 Case No. C 05-02324 JCS with prejudice in the United States District Court for the Northern District of

16 California.

17

20. The Parties agree, solely for the purpose of this settlement and its implementation, that

18 this action shall proceed as a class action, with the Settlement Class as defined in Paragraph 14, and that

19 attorneys for the class are Class Counsel as defined in Paragraph 5; but if such settlement fails to be

20 approved or otherwise fails to be consummated, then this Stipulation of Settlement is hereby withdrawn.

21

21. SCMs who comply with the requirements set forth in this Stipulation of Settlement will be

22 paid specified sums determined by the procedures set forth herein in full satisfaction of all claims.

23

22. The Stipulation of Settlement, as of the Effective Date, resolves in full all claims against

24 the Released Persons by all of the SCMs, including the named Plaintiff KATHERINE ERMITANO,

25 involving violation of their Fourth and Fourteenth Amendment rights or of any other federal, state or

26 local law, regulation, duty, or obligation which are based upon or could be based upon or arise from or

27 relate to the facts alleged in Case No. C 05-02324 JCS filed in the United States District Court, Northern

28 District of California. When the Stipulation of Settlement is final, as of the Effective Date, all SCMs,

7
STIPULATION OF SETTLEMENT Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

Case 3:05-cv-02324-JCS Document 123 Filed 09/03/09 Page 8 of 20

1 including the named Plaintiff, hereby provide a full and general release all such claims, including a

2 waiver of rights relating to unknown claims under CCP § 1542 as set forth below in Section III.24.

3

23. The Parties agree that the Court, by preliminarily approving the Stipulation of Settlement,

4 will be certifying the class as defined in Paragraph 14 as the Settlement Class, subject to final approval

5 of the settlement at the Fairness Hearing, and that the Court shall retain exclusive and continuing

6 jurisdiction of the action, Parties, SCMs, Special Master and the Administrator to interpret and enforce

7 the terms, conditions and obligations under this agreement.

8

24. Upon approval by the Court of this Stipulation of Settlement, and except as to such rights

9 or claims as may be created by this Stipulation of Settlement, Plaintiffs and all SCMs fully release and

10 discharge Defendants and all present and former employees, agents, servants, registered representatives,

11 attorneys, insurers, and successors and assigns from any and all claims, debts, liabilities, demands,

12 obligations, guarantees, costs, expenses, attorney’s fees, damages, action or causes of action whatever

13 kind or nature, whether known or unknown, including all rights and benefits afforded by Section 1542 of

14 the State of California as set forth below.

15

25. Plaintiffs and all SCMS agree that any and all of Plaintiffs’ claims, rights, and causes of

16 action, damages, punitive or statutory damages, penalties, losses, and issues of any kind or nature

17 whatsoever, asserted or unasserted, known or unknown (including, but not limited to, any and all claims

18 relating to or alleging events described in Paragraph 22, by or on behalf of Plaintiffs and SCMs, the

19 general public, any other or all persons purporting to act on Plaintiffs’ and SCMs behalf or purporting to

20 assert a claim under or through Plaintiffs and SCMs, including, but not limited to, any heirs and assigns,

21 children, spouses, significant others, and companions, whether individual, class, representative, legal,

22 equitable, direct or indirect, or any other type of capacity against Defendants (and all Defendants’ present

23 and former employees, agents, servants, registered representatives, attorneys, insurers, and successors

24 and assigns), in connection with or that arise out of or relate in any manner whatsoever, in whole, or in

25 part, to the claims that were or could have been asserted in Case No. C 05-02324 JCS filed in the United

26 States District Court, Northern District of California, shall be finally and irrevocably compromised,

27 settled, released, and discharged with prejudice. Plaintiffs and all SCMs agree to release, waive, and

28 discharge, to the fullest extent permitted by law, the provisions, rights and benefits of Section 1542 of the

8
STIPULATION OF SETTLEMENT Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

Case 3:05-cv-02324-JCS Document 123 Filed 09/03/09 Page 9 of 20

1 California Civil Code, which provides:

2

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

3

know or suspect to exists in his or her favor at the time of executing the release, which if known by him or her must have materially effected his or

4

her settlement with the debtor.

5 In addition, Plaintiffs and SCMs expressly waive and relinquish, to the fullest extent permitted by law, 6 any and all provisions, rights, and benefits conferred by any law of the United States, or any statute or 7 territory of the United States, or principle of common law or equity that is similar, comparable or 8 equivalent to Section 1542 of the California Civil Code. Plaintiffs and SCMs expressly acknowledge 9 that they may hereafter discover facts in addition to or different from those which they now know or 10 believe to be true with respect to the subject matter of the Released Claims. Plaintiffs and SCMs fully, 11 finally and forever settle, release, and discharge any and all Released Claims, known or unknown, 12 suspected or unsuspected, contingent or non-contingent, whether or not concealed or hidden, that now 13 exist or heretofore have existed upon any theory of law or equity now existing or coming into existence 14 in the future, including but not limited to Released Claims based on conduct that is negligent, reckless, 15 intentional, with or without malice, or a breach of any duty, law, or rule, without regard to the subsequent 16 discovery or existence of such different or additional facts. 17

18

26. As of the Effective Date of this Stipulation of Settlement, the SCMs, including the named

19 Plaintiff, hereby waive any and all rights to pursue, initiate, prosecute, or commence any action or

20 proceeding before any court, administrative agency or other tribunal, or to file any complaint with regard

21 to acts or commission or omission by the Released Persons respecting such SCMs with respect to any

22 strip search by Defendants during their confinement at juvenile hall which occurred during the Class

23 Period.

24

27. This Stipulation of Settlement contains all of the terms and conditions agreed upon by the

25 Parties hereto regarding the subject matter of the instant proceeding, and no oral agreement entered into

26 at any time nor any written agreement entered into prior to the execution of this Stipulation shall be

27 deemed to exist, or to bind the Parties hereto, or to vary the terms and conditions contained herein, except

28 as expressly provided herein.

9
STIPULATION OF SETTLEMENT Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

Case 3:05-cv-02324-JCS Document 123 Filed 09/03/09 Page 10 of 20

1

28. Each SCM shall be deemed to have submitted to the jurisdiction of the Court.

2

29. No Opt-Out shall share in any monetary benefits provided by this Stipulation of

3 Settlement.

4

30. This agreement is subject to and conditioned upon the final approval of this Stipulation of

5 Settlement by the Contra Costa Board of Supervisors (approved on July 21, 2009), and the subsequent

6 issuance of the final order and judgment of dismissal, by the United States District Court, Northern

7 District of California, providing the below specified relief, which relief shall be pursuant to the terms and

8 conditions of this Stipulation of Settlement and the Parties’ performance of their continuing rights and

9 obligations hereunder. The order and judgment will be deemed final only upon expiration of the time to

10 appeal, or, if a Notice of Appeal is filed, upon exhaustion of all appeals and petitions for writs of

11 certiorari. Such final order and judgment shall:

12

a. Dismiss with prejudice all claims for relief, liabilities, or causes of action, or

13

complaints in the Action, whether known or unknown, as to the Released Persons;

14

b. Order that all SCMs are enjoined from asserting against any Released Person, any

15

and all claims which the SCMs has, had, or may have in the future arising out of

16

the facts alleged in the related complaints;

17

c. Release each Released Person from the claims which any SCM has, had or may

18

have in the future, against such Released Person arising out of the facts alleged in

19

the related complaints;

20

d. Determine that this Stipulation of Settlement is entered into in good faith, is

21

reasonable, fair and adequate, and is in the best interest of the Class; and

22

e. Reserve the Court=s continuing and exclusive jurisdiction over the Parties to this

23

Stipulation of Settlement, including Defendants and all SCMs, to administer,

24

supervise, construe and enforce the Stipulation of Settlement in accordance with

25

the terms for the mutual benefit of all the Parties.

26

27

31. The Parties will take all necessary and appropriate steps to obtain preliminary approval of

28 the Stipulation of Settlement, final approval of the settlement, and dismissal of the actions with prejudice.

10
STIPULATION OF SETTLEMENT Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

Case 3:05-cv-02324-JCS Document 123 Filed 09/03/09 Page 11 of 20

1 If the Court finally approves this Stipulation of Settlement, and if there is an appeal from such decision,

2 the Defendants will actively cooperate with Plaintiffs in joint efforts to defend the Stipulation of

3 Settlement.

4

IV.

5

RESOLUTION AND PAYMENT OF CLAIMS FOR DAMAGES

6

7

32. The Parties have agreed that certain sums will be paid by or on behalf of Defendants to

8 resolve all claims of all SCMs as described in Paragraph 21, and that the total of all such sums shall not

9 exceed One Million, Seven Hundred Fifty Thousand Dollars ($1,750,000.00), including the fees and

10 costs of Class Counsel and the cost of administration of this settlement.

11

33. Class Counsel and the SCMs, by and through the Representative Plaintiff, have

12 determined that the following distribution of the sum described in Paragraph 31 is appropriate, in which

13 determination the Released Persons acquiesce: (1) up to Seven Hundred Thousand Dollars

14 ($700,000.00) will be allocated to pay verified claims of the SCMs; (2) One Hundred Thousand Dollars

15 ($100,000.00) will be allocated to compensate Representative Plaintiff; (3) Eight Hundred Thousand

16 Dollars ($800.000.00) will be allocated to pay class counsels’ fees and costs subject to Court approval;

17 and (4) Up to One Hundred Fifty Thousand Dollars ($150,000.00) will be allocated to pay the costs of

18 administration, including all notices to the class and processing, administration and payment of the

19 SCMs’ claims. Any Administration costs that exceed $150,000.00 allocated for costs of administration

20 shall be the sole responsibility of the Plaintiffs. Distribution of the settlement amount is subject to the

21 following terms and conditions of this Stipulation of Settlement.

22

34. The parties understand and agree that, prior to a final Fairness Hearing, Class Counsel will

23 file an application for approval of attorney’s fees and reimbursement of costs in the amount of $800,000,

24 supporting that application with a memorandum of law and attaching exhibits documenting their time

25 spent on the litigation, and that the Court will have the discretion to award whatever amount it considers

26 appropriate, but in no event will Defendants be obligated to pay any amount in excess of $800,000.

27

35. No payment shall be made to eligible SCMs before the Effective Date. Claims may be

28 processed between the date of preliminary Court approval and the Effective Date. Claims will only be

11
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Case 3:05-cv-02324-JCS Document 123 Filed 09/03/09 Page 12 of 20

1 paid after all verified Claims have been calculated and all disputes relating to Claims have been resolved.

2

36. No payment shall be paid to Class Counsel for fees and costs before the Effective Date as

3 more fully described in Paragraph 10.

4

37. The Parties agree to make an application to the Court to appoint the Claims Administrator

5 as an officer of the Court for the purpose of implementing the terms of the Stipulation of Settlement. The

6 Administrator shall be subject to judicial immunity to the fullest extent permitted by law.

7

V.

8

PROCEDURES FOR RECEIVING PAYMENT

9

UNDER THIS SETTLEMENT AGREEMENT

10

11

38. All SCMs who were booked at Contra Costa County Juvenile Hall during the class period

12 who were strip-searched at intake pursuant to Defendants’ blanket policy and practice of strip searching

13 all such juveniles prior to their detention hearings, except for: 1) those who were strip searched at intake

14 after being admitted for an alleged violation involving violence, drugs, or weapons (VDW offense); 2)

15 those who had a prior history of being booked on VDW offenses; 3) those who were subject to parole or

16 probationary search conditions at the time of the strip search; and 4) those who were transferred from

17 another detention facility and thus were not under the constant supervision of a Contra Costa County

18 employee, shall receive One Thousand, Seven Hundred Fifty Dollars ($1,750.00) for each such booking,

19 for a maximum of two (2) bookings.

20

39. The Administrator shall determine whether or not a person who has submitted a Claim

21 Form is an SCM and shall reject claims by persons who are not SCMs.

22

40. After all claims have been validated and values assigned to each claim, the Claims

23 Administrator will total all claims. If the total value of all validated claims is equal to or less than Seven

24 Hundred Thousand Dollars ($700,000.00), claims shall be paid as set out in Paragraph 37. If the total

25 value of all validated claims exceeds Seven Hundred Thousand Dollars ($700,000.00), the value of each

26 claim will be proportionately reduced so that the sum of all validated claims equals Seven Hundred

27 Thousand Dollars ($700,000.00), and such sums shall be paid out as set out in Paragraph 38.

28 \\\

12
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1

41. Upon determination of the total amounts to be paid to all SCMs, the Administrator will

2 notify the Parties of the amount of money necessary to satisfy all SCMs’ claims and the Defendants will

3 cause sufficient funds to be deposited in the Administrator’s account within thirty (30) days of such

4 notice to permit the Administrator to pay the verified claims.

5

42. Any SCM who fails to submit a Claim Form completed in accordance with the

6 instructions contained therein by the Bar Date or any other Court mandated extension, shall be forever

7 barred from receiving any payment pursuant to the Stipulation of Settlement. Such SCM shall in all

8 other respects be bound by all of the terms of the Stipulation of Settlement, and the judgment entered

9 herein, including but not limited to the release of all Released Persons of all claims resolved herein.

10

43. The Administrator will determine the value to be assigned to each eligible SCMs’ claim

11 based upon the Administrator=s review of the Claim Forms and the information in the database provided

12 by Defendants.

13

44. Claim Forms of all SCMs who have not attained the age of 18 at the time the Claim Form

14 is submitted shall be signed by a parent or guardian, or by the minor if the minor does not have ready

15 access to a parent or guardian at the time the claim form is submitted. The checks distributed to the

16 SCMs who have not attained the age of 18 at the time the checks are mailed shall be made out jointly to

17 the SCM and the parent or guardian, if any, who signs the Claim Form and the parent or guardian will be

18 instructed that the Court ordered funds are to be placed in a blocked account until the minor turns 18. If

19 the claim submitted was signed only by a minor SCM and the SCM is under the age of 18 at the time the

20 checks are mailed, the check will be made payable to the Law Office of Mark E. Merin in trust for the

21 SCM and mailed to the Law Office of Mark E. Merin to be held in trust for that minor until the minor

22 attains the age of eighteen (18) at which time the funds shall be distributed to the SCM.

23

VI.

24

PAYMENT OF DEBTS OWED TO THE COUNTY FROM AWARDS

25

26

45. Any award to SCMs shall be subject to any Debts Owed to the County and child support.

27 The Defendants shall provide to the Claims Administrator, with a copy to Class Counsel, a list of all

28 qualified SCMs who have Debts Owed to the County as defined in Paragraph 9 and who submit valid

13
STIPULATION OF SETTLEMENT Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

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1 claims, with the amount of the Debt Owed to the County specified. The Claims Administrator is directed

2 to deduct from each SCM=s award the amount of the specified Debt Owed to the County, up to a

3 maximum of fifty percent (50%) of the SCM=s award. Copies of the information related to the reduction

4 of claims awards shall be provided to the SCMs with copies to Class Counsel. Any SCM may submit a

5 written objection to the Debt Owed to the County within thirty (30) days of the date that settlement

6 checks are distributed. The written objection shall specify the grounds for the objection and copies shall

7 be sent to Class Counsel and Defendants’ Counsel. In the event that the SCM, Class Counsel and

8 Defense Counsel cannot informally resolve the objection then the objection will be submitted to the

9 Special Master.

10

VII.

11

GENERAL CLAIM PROCEDURES

12

13

46. To receive payment, an SCM shall be required to submit to the Claims Administrator an

14 executed Claim Form, signed under penalty of perjury. If the SCM has not attained the age of 18 by the

15 time the Claim Form is submitted, the Claim Form must be submitted under penalty of perjury by a

16 parent or guardian of the SCM if one is readily available to the SCM at the time the Claim Form is

17 submitted. If a parent or guardian of an SCM under the age of eighteen (18) is not readily available to

18 the SCM, the SCM may sign and submit the Claim Form under penalty of perjury.

19

47. The Claim Form shall be submitted by first class mail and shall be deemed submitted

20 upon the date of the postmark thereon.

21

48. SCMs who submit claims and whose names appear on the database will be paid by mail at

22 the address specified on the Claim Form. The Representative Plaintiff shall be deemed fully

23 compensated by the distribution to her through Class Counsel of One Hundred Thousand Dollars

24 ($100,000.00) within thirty (30) days of the Effective Date, and she shall not be permitted or required to

25 submit a Claim Form. The check for the Representative Plaintiff shall be made payable to “Casper,

26 Meadows, Schwartz & Cook, Client Trust Account, Moyle, et al. vs. Contra Costa County.”

27 \\\

28 \\\

14
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1

VIII.

2

EXCLUSION FROM THE SETTLEMENT CLASS

3 49. Any potential SCM who wishes to be excluded from the Settlement Class must file a
4 Request for Exclusion from the class with the Clerk of the Court, on or before the Bar Date or as the
5 Court may otherwise direct. An SCM who has not attained the age of 18 at the time the Request for
6 Exclusion is filed, must file such a request signed by the SCM=s parent or guardian under penalty of
7 perjury. The Representative Plaintiff will not request exclusion pursuant to this paragraph.
8 50. Any potential SCM who does not timely file a Request for Exclusion shall conclusively be
9 deemed to have become an SCM and to be bound by this Stipulation of Settlement and by all subsequent
10 proceedings, orders, and judgments herein.
11 51. Any SCM who does not elect to be excluded from the Settlement Class may, but need not,
12 enter an appearance through his or her own attorney. SCMs who do not enter an appearance will be
13 represented by Class Counsel.
14 52. The Defendants may, in their sole discretion, withdraw from the Stipulation of Settlement
15 if the number of Opt Outs exceeds 10. Defendants will advise the Court of their election within 15
16 (fifteen) days prior to the fairness hearing. If Defendants withdraw pursuant to this provision of
17 Stipulation of Settlement, the Stipulation of Settlement will be null and void.
18

19

IX.

20

OBJECTING TO THE PROPOSED SETTLEMENT

21

53. Any SCM who does not elect to be excluded from the Settlement Class may, but need not,

22 submit comments or objections to the proposed settlement. The Court will enter an appropriate order

23 setting forth the procedure for SCMs to submit comments or objections to the proposed settlement.

24 X.
25 ATTORNEYS FEES AND COSTS
26

27

54. Class Counsel’s award of attorney’s fees and costs shall be inclusive of any costs and fees

28 incurred in seeking final approval of this Stipulation of Settlement and the defense thereof in any court or

15
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Case 3:05-cv-02324-JCS Document 123 Filed 09/03/09 Page 16 of 20

1 jurisdiction. Payment will be made as follows: one half of the total amount of attorney’s fees and costs

2 awarded by the Court to Plaintiffs’ Counsel will be paid within thirty (30) days of the Effective Date by

3 check made payable to the Law Office of Mark E. Merin and delivered to Class Counsel at 2001 P Street,

4 Suite 100, Sacramento, CA 95811. The remaining half of the total amount of attorney’s fees and costs

5 awarded by the Court to Plaintiffs’ Counsel will be paid at the time of distribution of settlement funds to

6 the SCMs by delivery of a check made payable and delivered as specified above.

7

XI.

8

NOTICE

9

10

55. Notice to SCMs defined in Paragraph 15, including a Claim Form with a postage pre-

11 paid return envelope, shall be sent by the Administrator by first class mail, postage prepaid, to all

12 individuals whose addresses are on record in databases maintained by Contra Costa County Probation

13 Department and/or to such other, better addresses identified by the Administrator. Defendants will make

14 reasonable and good faith efforts to provide such addresses to the Administrator, subject to the protective

15 order referred to in Paragraph 18. Both Parties and the Administrator will exercise their reasonable

16 efforts to update and to verify addresses, including but not limited to addresses of SCMs who are

17 incarcerated. Further efforts to locate persons whose claim packets are returned as undeliverable, shall

18 include, but not be limited to, advanced people finder searches, searches of databases of Contra Costa

19 County juvenile institutions, databases of local jails and state prison systems, and the use of private

20 investigation services. This paragraph shall not limit further appropriate efforts to provide notice, except

21 that all costs incurred with complying with this or any other notice provision shall be deducted from the

22 $150,000 amount specified for Claims Administration, and in no event shall Contra Costa be required to

23 pay any amount that exceeds the total aggregate amount of the $1.75 million agreed to by the Parties in

24 the Term Sheet.

25 \\\

26 \\\

27 \\\

28 \\\

16
STIPULATION OF SETTLEMENT Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

Case 3:05-cv-02324-JCS Document 123 Filed 09/03/09 Page 17 of 20

1

XII.

2

POSTING OF NOTICE/DELIVERY OF CLAIM FORMS

3 56. A Summary Notice in a form substantially similar to that attached hereto as Exhibit 4
4 shall be posted, prominently, in areas visible to inmates/detainees in the following institutions: Contra
5 Costa County Juvenile Hall (aka John A. Davis Juvenile Hall), the Orin Allen Youth Rehabilitation
6 Center (aka Byron Boys’ Ranch), the Chris Adams Girls’ Center and Contra Costa County Jails
7 including but not limited to the Martinez Detention Facility, the West County Detention Facility, and the
8 Marsh Creek Detention Facility. The Summary Notices shall be posted within seven (7) days of the
9 Court=s preliminary approval of this Stipulated Settlement and be posted continuously until the Bar Date.
10 The Administrator will make available to Defendants for transmittal to each institution at which
11 Summary Notices are published, sufficient numbers of Claim Forms and prepaid postage return
12 envelopes so that the institutions posting notice may provide Claim Forms and prepaid postage return
13 envelopes to persons requesting them.
14 57. Follow-up reminder post cards shall be sent by the Administrator by first class mail 30
15 days after the date of mailing of the initial notice described in paragraph 56, to the last known address of
16 all SCMs who have not returned a Claim Form by that date.
17 58. The Administrator shall cause to be published in the Contra Costa Times and the West
18 County Times, and in such free additional publications calculated to reach the SCMs, once a week in
19 each of three consecutive weeks notices in a form and manner agreed to by the Parties describing this
20 settlement, the claims procedure, and the procedure to object and/or to opt-out of the settlement. If the
21 Parties cannot agree on the wording of the Notice, the Special Master will determine the content of the
22 Notice to be published.
23 59. The parties shall have the option of making announcements summarizing the proposed
24 settlement on each of the following radio stations at least six times during each of three successive
25 weeks:
26

27

94.9 KYLD – WILD 94.9

28

106.1 KMEL – Hip Hop and R&B

17
STIPULATION OF SETTLEMENT Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

Case 3:05-cv-02324-JCS Document 123 Filed 09/03/09 Page 18 of 20

1

107.7 KSAN – The Bone

2 60. The parties shall have the option of making an announcement of the proposed settlement
3 by posting on two billboards in Contra Costa County for the duration of the claims period, provided such
4 billboards are available and the costs would not result in the Claims Administration costs exceeding the
5 budgeted maximum. To the extent that any cost incurred in Section XII exceed the $150,000.00 allotted
6 for Administration and Notice, Plaintiffs shall be solely responsible for payment of those additional
7 costs.
8

9

XIII.

10

ADMINISTRATIVE COSTS

11

61. All reasonable costs incurred in the administration of this Stipulation of Settlement

12 including, but not limited to, the fees of the Administrator, costs of disseminating notice to class

13 members, by mail, publication, or other means agreed to by the Parties, costs of producing notice to be

14 posted, costs of reviewing and evaluating claims, including the cost of distribution of the monetary

15 payments to the class members, fees, if any, of the Special Master, and any additional ancillary

16 administration fees will be paid up to the total amount of One Hundred Fifty Thousand Dollars

17 ($150,000.00) allocated for these expenses. Any Administrative Costs that exceed $150,000.00 shall be

18 the sole responsibility of Plaintiffs or their Counsel. In no event shall Contra Costa have any obligation

19 to incur costs or make any additional payments of administrative costs that exceed the one time payment

20 of $150,000.00 allocated for the Administrative Costs in this Stipulation or any Preliminary or Final

21 Settlement approved by the Court.

22

62. Following preliminary Court approval of the Stipulation of Settlement, the Administrator

23 shall submit monthly invoices to Defendants, with copies to Class Counsel, for services rendered and for

24 expense reimbursement. All invoices will indicate the dates upon which services were performed, the

25 titles of the employees performing the services, the number of hours worked by each title on each date,

26 the hourly rate for each such title, and the total fee for the services performed. The rates will be in

27 accordance with the agreement between the Parties and the Claims Administrator.

28 \\\

18

STIPULATION OF SETTLEMENT Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

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1

63. In the event that the total charges against the Administration Fund exceed One Hundred

2 Fifty Thousand Dollars ($150,000.00), counsel for the Plaintiffs shall pay up to an additional Fifty

3 Thousand Dollars ($50,000.00) for claims administration. Should the total charges against the

4 Administration Fund not exceed One Hundred Fifty Thousand Dollars ($150,000.00) after all Claims

5 have been paid, and all Administration has been completed, any remaining funds will be returned to

6 Defendant County of Contra Costa or its designee.

7

8

Respectfully submitted,

9 DATED: August 31, 2009

LAW OFFICES OF MARK MERIN

10

11

BY:

/s/

Mark Merin, Esq.

12

Attorneys for Plaintiffs

13 DATED: August 31, 2009
14

CASPER, MEADOWS, SCHWARTZ & COOK

15

BY:

/s/

16

Andrew C. Schwartz, Esq.

Attorneys for Plaintiffs

17

18 DATED: August 31, 2009 19

McNAMARA, DODGE, NEY, BEATTY, SLATTERY, PFALZER, BORGES & BROTHERS LLP

20 21 22 23 DATED: August 31, 2009

BY:

/s/

James V. Fitzgerald, III, Esq.

Attorneys for Defendants

BINGHAM MCCUTCHEN, LLP

24

BY:

/s/

25

Peter Obstler, Esq.

Attorneys for Defendants 26

27

28

19
STIPULATION OF SETTLEMENT Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

Case 3:05-cv-02324-JCS Document 123 Filed 09/03/09 Page 20 of 20

1 ATTORNEY SIGNATURE ATTESTATION
2 Pursuant to General Order 45, section X.B, I hereby attest that concurrence in the filing of this
3 document has been obtained from each of the other signatories as shown by the /s/ on their signature
4 lines within this e-filed document.
5

6 DATED: August 31, 2009

LAW OFFICES OF MARK MERIN

7

8

BY:

/s/

9

Mark Merin, Esq.

10

Attorneys for Plaintiffs

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

20
STIPULATION OF SETTLEMENT Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

 
 CCasaes3e:30:50-5c-vc-v0-20322342-4J-CJCSS DDocoucmumenetn1t2153-05 FFileilde0d90/91/80/30/909 PPagaeg1e1ofo8f 8

1

2

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11 RUSSELL MOYLE, a minor, by and through his
12 Guardian Ad Litem, his custodial parent, RHONDA BOWERS; KATHERINE ERMITANO, a minor, by
13 and through her Guardian Ad Litem, her custodial parent, MARLON ERMITANO, and on behalf of
14 themselves and all those similarly situated,

15

Plaintiffs,

16 vs.

Case No. C05-02324 JCS
ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION
DATE: September 18, 2009 TIME: 9:30 a.m. CTRM: A, 15th Floor JUDGE: Hon. Joseph C. Spero

17 CONTRA COSTA COUNTY; CONTRA COSTA COUNTY PROBATION DEPARTMENT; CONTRA
18 COSTA COUNTY CHIEF PROBATION OFFICER LIONEL CHATMAN, in his official capacity;
19 CONTRA COSTA COUNTY CHIEF DEPUTY PROBATION OFFICER FOR JUVENILE HALL,
20 NANCY MILLER, in her official capacity; and DOES 1 THROUGH 100,
21 Defendants.
22

23

WHEREAS, plaintiff Katherine Ermitano, on behalf of herself and all persons similarly situated,

24 by and through her attorneys, Mark E. Merin of the Law Office of Mark E. Merin, and Andrew C.

25 Schwartz of the firm Casper, Meadows, Schwartz & Cook, and defendants, CONTRA COSTA

26 COUNTY, CONTRA COSTA COUNTY PROBATION DEPARTMENT, CONTRA COSTA COUNTY

27 CHIEF PROBATION OFFICER LIONEL CHATMAN, in his official capacity, CONTRA COSTA

28 COUNTY CHIEF DEPUTY PROBATION OFFICER FOR JUVENILE HALL, NANCY MILLER, in

1

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

CCasaes3e:30:50-5c-vc-v0-20322342-4J-CJCSS DDocoucmumenetn1t2153-05 FFileilde0d90/91/80/30/909 PPagaeg2e2ofo8f 8

1 her official capacity, by and through their counsel, James Fitzgerald, III, of the firm McNamara, Dodge,

2 Ney, Beatty, Slattery, Pfalzer, Borges & Brothers, and Peter Obstler of the firm Bingham McCutchen,

3 LLP, have entered into a Stipulation of Settlement intending to resolve all claims raised in this class

4 action pending in this Court;

5

WHEREAS, the Stipulation of Settlement, together with the supporting materials, sets forth the

6 terms and conditions for a proposed settlement and dismissal with prejudice of the pending above-

7 captioned class action against all defendants;

8

WHEREAS, the Court has before it and has reviewed the parties’ Stipulated Motion for

9 Preliminary Approval of Settlement of Class Action together with the Stipulation of Settlement and

10 supporting materials; and

11

WHEREAS, the Court is satisfied that the terms and conditions set forth in the Stipulation of

12 Settlement were the result of good faith, arms’ length settlement negotiations between competent and

13 experienced counsel for both plaintiffs and defendants, after mediation before the Honorable Fern M.

14 Smith (Retired);

15

IT IS HEREBY ORDERED AS FOLLOWS:

16 I.
17

PRELIMINARY APPROVAL OF SETTLEMENT

18

1. The terms of the Stipulation of Settlement are hereby preliminarily approved and the class

19 is preliminarily certified, subject to further consideration thereof at the Fairness Hearing provided for

20 below. The Court finds that the settlement is sufficiently within the range of reasonableness and that

21 notice of the proposed settlement should be given as provided in this Order.

22

2. The Court has previously found and now reiterates that plaintiff Katherine Ermitano is an

23 adequate class representative for the settlement class.

24

3. The Court further finds that plaintiffs’ counsel Mark E. Merin of the Law Office of Mark

25 E. Merin and Andrew C. Schwartz of the firm Casper, Meadows, Schwartz & Cook are adequate class

26 counsel.

27

4. The Court approves the Notice of Proposed Settlement of Class Action Strip Search Case

28 attached hereto as Exhibit A and further approves the method by which notice is proposed to be given.

2
ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

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1

5. If, pursuant to the terms of the Stipulation of Settlement, the settlement is not

2 consummated, the preliminary approval of the Stipulation of Settlement and the preliminary certification

3 of the class shall be void and the parties shall have reserved all of the rights to continue with any

4 litigation or further mediation or settlement discussions.

5

6. The Bar Date, as defined in paragraph 2 of the Stipulation of Settlement shall be January

6 19, 2010.

7 II.
8

NOTICE TO SETTLEMENT CLASS MEMBERS, APPROVAL OF CLASS COUNSEL, AND EMPLOYMENT OF CLASS CLAIM ADMINISTRATOR

9 7. Counsel for the class (“class counsel”) is as follows:

10

Mark E. Merin, Esq.

11

Law Office of Mark E. Merin

12

2001 P Street, Suite 100

Sacramento, CA 95811

13

(916) 443-6911 - Telephone

(916) 447-8336 – Facsimile

14

Andrew C. Schwartz, Esq.

15

Casper, Meadows, Schwartz & Cook

16

2121 North California Blvd., Suite 1020 Walnut Creek, California 94596

17

(925) 947-1147 - Telephone (925) 947-1131 - Facsimile

18

8. Counsel for defendants are as follows: 19

20

James Fitzgerald, III, Esq.

McNamara, Dodge, Ney, Beatty,

21

Slattery, Pfalzer, Borges & Brothers

1211 Newell Avenue

22

Walnut Creek, CA 94596

(925) 939-5330 - Telephone

23

(925) 939-0203 - Facsimile

24

Peter Obstler, Esq.

Bingham McCutchen, LLP

25

Three Embarcadero Center

San Francisco, CA 94111-4067

26

(415) 393-2578 - Telephone

(415) 262-9244 - Facsimile

27

28

3
ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

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1

9. Class Claims Administrator is as follows:

2

Gilardi and Company, LLC

3

P.O. Box 8060

San Rafael, CA 94912-8060

4

(415) 461-0410 - Telephone

(800) Toll Free Number to be arranged.

5

(415) 461-0412 – Facsimile

6
10. On or before October 19, 2009, counsel for the parties acting with the Class Claims 7
Administrator shall cause to be disseminated the Notice and Claim Form, substantially in the form 8
attached hereto as Exhibits A and B, in the manner set forth in paragraphs 54 through 59 of the 9
Stipulation of Settlement. Such summary notice as the parties agree will be published in accordance with 10
the Stipulation of Settlement and the parties may make announcements following a script approved by 11
the parties to be made on such radio stations with the frequency provided in the Stipulation of Settlement, 12
as well as have the option of posting the announcement on billboards in Contra Costa County for the 13
duration of the claims period. Class members will have up to and including January 19, 2010, in which to 14
object to this settlement or file claims. Prior to the Fairness Hearing, the Claims Administrator shall file 15
and serve a sworn statement attesting to compliance with the provisions of this paragraph. 16
11. The notice to be provided as set forth in the Stipulation of Settlement is hereby found to 17
be the best means practicable of providing notice under the circumstances and, when completed, shall 18
constitute due and sufficient notice of the proposed settlement and of the Fairness Hearing to all persons 19
and entities affected by and/or entitled to participate in the settlement, in full compliance with applicable 20
statutes and Constitution of the state of California, due process, the Constitution of the United States and 21
all other applicable laws. The notices are accurate, objective, informative and provide class members 22
with all of the necessary information to make an informed decision regarding their participation in the 23
settlement and its fairness. 24
12. Counsel for the respective parties are authorized to retain Gilardi and Company, LLC, 25
P.O. Box 8060, San Rafael, CA 94912-8060, as Class Claims Administrator in accordance with the 26
Stipulation of Settlement and this Order. 27

28

4
ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

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1 III. REQUESTS FOR EXCLUSION FROM THE SETTLEMENT CLASS

2

13. Any member of the Settlement Class who wishes to be excluded (“Opt Out”) from the

3 Settlement Class must send a written request for exclusion to the Court at the address indicated in the

4 Notice, postmarked on or before the Bar Date. The request for exclusion shall fully comply with the

5 requirements set forth in the Stipulation of Settlement. Members of the Settlement Class may not exclude

6 themselves by filing requests for exclusions as a group or class, but must, in each instance, individually

7 and personally execute a request for exclusion and timely transmit it to the Court.

8

14. Any member of the Settlement Class who does not properly and timely request exclusion

9 from the Settlement Class shall be bound by all of the terms and provisions of the Stipulation of

10 Settlement, including but not limited to the releases, waivers, and covenants described in the Stipulation

11 of Settlement, whether or not such person objected to the settlement and whether or not such person

12 made a claim under the terms of the Stipulation of Settlement.

13

14 IV. THE FAIRNESS HEARING

15

15. A hearing on final approval, the “Fairness Hearing,” is hereby scheduled to be held before

16 this Court on March 19, 2010, at 9:30 a.m., to consider the fairness, reasonableness, and adequacy of the

17 proposed settlement, the dismissal with prejudice of this class action complaint with respect to the

18 released parties herein, and the entry of final judgment in the class action. Class counsels’ application for

19 an award of attorneys’ fees and costs shall be heard at the time of the Fairness Hearing. The motion for

20 final approval and class counsels’ application for an award of attorneys’ fees and costs shall be filed no

21 later than February 19, 2010.

22

16. The date and time of the Fairness Hearing shall be set forth in the Notice, but the Fairness

23 Hearing shall be subject to adjournment by the Court without further notice to the members of the

24 settlement class other than that which may be issued by the Court.

25

17. Any person who does not elect to be excluded from the settlement class may, but need

26 not, enter an appearance through his or her own attorney. Settlement class members who do not enter an

27 appearance through their own attorneys will be represented by class counsel.

28

5
ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

CCasaes3e:30:50-5c-vc-v0-20322342-4J-CJCSS DDocoucmumenetn1t2153-05 FFileilde0d90/91/80/30/909 PPagaeg6e6ofo8f 8

1

18. Any person who does not elect to be excluded from the settlement class may, but need

2 not, submit comments or objections to the proposed settlement. Any class member may object to the

3 proposed settlement, entry of the final order and judgment approving the settlement, and class counsels’

4 application for fees and expenses by filing and serving a written objection.

5

19. Any class member making the objection (an “objector”) must sign the objection

6 personally. Any objection must state why the objector objects to the proposed settlement and provide the

7 basis to support such position. If an objector intends to appear personally at the Fairness Hearing, the

8 objector must include with the objection a notice of the objector’s intent to appear at the hearing.

9

20. Objections, along with any notice of intent to appear, must be filed with the Court no later

10 than January 19, 2010. If counsel is appearing on behalf of more than one class member, counsel must

11 identify each such class member and each class member must have complied with the requirements of

12 this order. The documents must be filed with the clerk of the Court at the following address: United

13 States District Court, Northern District of California, 450 Golden Gate Avenue, 16th Floor, San

14 Francisco, California 94102.

15

21. Objections, along with any notice of intent to appear, must also be mailed to class counsel

16 and counsel for defendants at the addresses listed below:

17

Counsel for the class (“class counsel”) is as follows:

18

Mark E. Merin, Esq.

19

Law Office of Mark E. Merin

2001 P Street, Suite 100

20

Sacramento, CA 95811

(916) 443-6911 - Telephone

21

(916) 447-8336 – Facsimile

22

Andrew C. Schwartz, Esq.

23

Casper, Meadows, Schwartz & Cook

2121 North California Blvd., Suite 1020

24

Walnut Creek, California 94596

(925) 947-1147 - Telephone

25

(925) 947-1131 - Facsimile

26 \\\

27 \\\

28 \\\

6
ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

CCasaes3e:30:50-5c-vc-v0-20322342-4J-CJCSS DDocoucmumenetn1t2153-05 FFileilde0d90/91/80/30/909 PPagaeg7e7ofo8f 8

1

Counsel for defendants are as follows:

2

James Fitzgerald, III, Esq.

3

McNamara, Dodge, Ney, Beatty, Slattery, Pfalzer, Borges & Brothers

4

1211 Newell Avenue Walnut Creek, CA 94596

5

(925) 939-5330 - Telephone (925) 939-0203 - Facsimile

6

Peter Obstler, Esq.

7

Bingham McCutchen, LLP Three Embarcadero Center

8

San Francisco, CA 94111-4067 (415) 393-2578 - Telephone

9

(415) 262-9244 – Facsimile

10

22. Only class members who have filed and served valid and timely notices of objection shall

11 be entitled to be heard at the Fairness Hearing. Any class member who does not timely file and serve an

12 objection in writing to the settlement, entry of final order and judgment, or to class counsels’ application

13 for fees and expenses, in accordance with the procedure set forth in the class notice and mandated in the

14 order, shall be deemed to have waived any such objection by appeal, collateral attack, or otherwise.

15

23. Persons wishing to be heard at the Fairness Hearing are required to file written comments

16 or objections and indicate in their written comments or objections their intention to appear at the Fairness

17 Hearing. Settlement class members need not appear at the hearing or take any other action to indicate

18 their approval.

19

24. All members of the settlement class who do not personally and timely request to be

20 excluded from the class are enjoined from proceeding against the defendants until such time as the Court

21 renders a final decision regarding approval of the settlement and, if the settlement is approved, enters

22 final judgment as provided in the Stipulation of Settlement.

23 V.
24

OTHER PROVISIONS

25

25. Upon approval of the settlement provided for in the Stipulation of Settlement, each and

26 every term and provision thereof shall be deemed incorporated herein as if expressly set forth and shall

27 have the force and effect of an order of this Court.

28

7
ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

CCasaes3e:30:50-5c-vc-v0-20322342-4J-CJCSS DDocoucmumenetn1t2153-05 FFileilde0d90/91/80/30/909 PPagaeg8e8ofo8f 8

1

26. All reasonable costs incurred in notifying members of the settlement class as well as

2 administering the Stipulation of Settlement shall be paid as set forth in the Stipulation of Settlement.

UNITED S
ALIFORNIA

OURT NORTH

3 IT IS SO ORDERED. 4 DATED: Sept. 8, 2009 5 6 7

TATES DISTRICT C
HON. JOSEPH C. SPERO MAGISTRATE JUDGE UNITED STATES DISTRICT COURT NORTHERN DJudISgeTJoRseIpChTC.OSpFerCo ALIFORNIA

8

ERN DISTRICT OF C

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8
ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION Moyle, et al. vs. Contra Costa County, et al.; USDC, No. Dist., Case No. C 05-02324 JCS

 
 Case: 3:05-cv-2324 As of: 11/09/2017 11:45 AM PST 1 of 18
ADRMOP,CLOSED,E−Filing
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:05−cv−02324−JCS

Moyle et al v. Contra Costa County et al Assigned to: Magistrate Judge Joseph C. Spero Cause: 42:1983 Civil Rights Act
Plaintiff
Russell Moyle a minor, by and through his Guardian Ad Litem, his custodial parent, RHONDA BOWERS and on behalf of themselves and all those similarly situated TERMINATED: 06/29/2007

Date Filed: 06/08/2005 Date Terminated: 03/19/2010 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Andrew Charles Schwartz Casper Meadows Schwartz & Cook California Plaza 2121 North California Boulevard Suite 1020 Walnut Creek, CA 94596 925−947−1147 Fax: 925−947−1131 Email: schwartz@cmslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey I. Schwarzschild Department of Justice Office of the Attorney General Employment Regulation & Administration Section 1300 I Street Sacramento, CA 95814 916/324−8630 Email: Jeffrey.Schwarzschild@doj.ca.gov TERMINATED: 11/15/2006 ATTORNEY TO BE NOTICED

Mark E. Merin , Esq. 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 ATTORNEY TO BE NOTICED

Thomas Andrew Seaton Casper Meadows Schwartz & Cook 2121 North California Boulevard, Suite 1020 Walnut Creek, CA 94596 (925) 947−1147 Fax: (925) 947−1131 ATTORNEY TO BE NOTICED

Plaintiff
Rhonda Bowers and on behalf of herselves and all those similarly situated

represented by Andrew Charles Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey I. Schwarzschild (See above for address) TERMINATED: 11/15/2006

Case: 3:05-cv-2324 As of: 11/09/2017 11:45 AM PST 2 of 18

ATTORNEY TO BE NOTICED

Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

Thomas Andrew Seaton (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Katherine Ermitano By and through her guardian ad litem, Marlon Ermitano

represented by Andrew Charles Schwartz Casper Meadows Schwartz & Cook 2121 North California Boulevard Suite 1020 Walnut Creek, CA 94596 925−947−1147 Fax: 925−947−1131 Email: schwartz@cmslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Contra Costa County

represented by Debra S. Belaga O'Melveny & Myers Two Embarcadero Center 28th Floor San Francisco, CA 94111 415−984−8700 Fax: (415) 984−8701 Email: dbelaga@omm.com TERMINATED: 10/15/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James V. Fitzgerald , III McNamara, Ney, Beatty, Slattery, Borges & Brothers LLP 1211 Newell Avenue Walnut Creek, CA 94596 (925) 939−5330 Fax: (925) 939−0203 Email: james.fitzgerald@mcnamaralaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Obstler Browne George Ross LLP 101 California Street Suite 1225 San Francisco, CA 94111 415−471−3100 Fax: 415−471−3400 Email: pobstler@bgrfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:05-cv-2324 As of: 11/09/2017 11:45 AM PST 3 of 18

Jee Young You Arnold & Porter Kaye Scholer LLP Three Embarcadero Center, 10th Floor San Francisco, CA 94111 (415) 471−3364 Fax: (415) 471−3400 Email: jeeyoung.you@apks.com ATTORNEY TO BE NOTICED

John Thomas Yow Arnold and Porter LLP Three Embarcadero Center 10th Floor San Francisco, CA 94111 415−471−3100 Fax: 415−471−3400 Email: john.yow@aporter.com ATTORNEY TO BE NOTICED

Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

Monika L. Cooper County Counsel's Office County of Contra Costa 651 Pine Street, 9th Floor Martinez, CA 94553 925−335−1885 Fax: 925−335−1866 Email: monika.cooper@cc.cccounty.us ATTORNEY TO BE NOTICED

Defendant
Contra Costa County Probation Department

represented by Debra S. Belaga (See above for address) TERMINATED: 10/15/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James V. Fitzgerald , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Obstler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Thomas Yow (See above for address) ATTORNEY TO BE NOTICED

Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

Monika L. Cooper (See above for address) ATTORNEY TO BE NOTICED

Defendant

represented by

Case: 3:05-cv-2324 As of: 11/09/2017 11:45 AM PST 4 of 18

Lionel Chatman Contra Costa County Chief Probation Officer

Debra S. Belaga (See above for address) TERMINATED: 10/15/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James V. Fitzgerald , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Obstler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Thomas Yow (See above for address) ATTORNEY TO BE NOTICED

Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jim Matheron Contra Costa County Chief Deputy Probation Officer for Juvenile Hall

represented by Debra S. Belaga (See above for address) TERMINATED: 10/15/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James V. Fitzgerald , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Obstler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Thomas Yow (See above for address) ATTORNEY TO BE NOTICED

Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

Defendant Nancy Miller

represented by James V. Fitzgerald , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Obstler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Thomas Yow (See above for address) ATTORNEY TO BE NOTICED

Case: 3:05-cv-2324 As of: 11/09/2017 11:45 AM PST 5 of 18
Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/08/2005
06/08/2005
06/08/2005 06/08/2005 06/08/2005 06/14/2005 06/16/2005 07/25/2005
08/12/2005 08/16/2005 09/16/2005 09/23/2005 09/26/2005
11/29/2005 12/01/2005

# Docket Text
1 CLASS ACTION COMPLAINT; Demand for Jury Trial against Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Jim Matheron (Filing fee $ 250.00, receipt number 3373075.). Filed byRussell Moyle, Rhonda Bowers. (gba, COURT STAFF) (Filed on 6/8/2005) Additional attachment(s) added on 6/10/2005 (gba, COURT STAFF). (Entered: 06/09/2005)
2 ADR SCHEDULING ORDER: Case Management Statement due by 9/30/2005. Case Management Conference set for 10/7/2005 01:30 PM. (Attachments: # 1 Standing Order CMC# 2 Standing Order #2)(gba, COURT STAFF) (Filed on 6/8/2005) (Entered: 06/09/2005)
Received Petition and Order for Appointment of Guardian Ad Litem by Russell Moyle, Rhonda Bowers. (gba, COURT STAFF) (Filed on 6/8/2005) (Entered: 06/09/2005)
Summons Issued as to Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Jim Matheron. (gba, COURT STAFF) (Filed on 6/8/2005) (Entered: 06/09/2005)
CASE DESIGNATED for Electronic Filing. (gba, COURT STAFF) (Filed on 6/8/2005) (Entered: 06/09/2005)
3 CLERK'S NOTICE TO PLAINTIFFS RE: Consent to Proceed before a U.S. Magistrate Judge. Form due by JUNE 28, 2005. (klh, COURT STAFF) (Filed on 6/14/2005) (Entered: 06/14/2005)
4 CONSENT to Proceed Before a US Magistrate Judge by Russell Moyle.. (Schwartz, Andrew) (Filed on 6/16/2005) (Entered: 06/16/2005)
5 SUMMONS Returned Executed by Russell Moyle. Contra Costa County served on 7/11/2005, answer due 8/1/2005; Contra Costa County Probation Department served on 7/11/2005, answer due 8/1/2005; Lionel Chatman served on 7/11/2005, answer due 8/1/2005; Jim Matheron served on 7/15/2005, answer due 8/4/2005. (Schwartz, Andrew) (Filed on 7/25/2005) (Entered: 07/25/2005)
6 CONSENT to Proceed Before a US Magistrate Judge by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Jim Matheron.. (Fitzgerald, James) (Filed on 8/12/2005) (Entered: 08/12/2005)
7 ORDER GRANTIING PETITION FOR APPOINTMENT OF GUARDIAN AD LITEM. Signed by Judge Joseph C. Spero on 8/15/5. (klh, COURT STAFF) (Filed on 8/16/2005) (Entered: 08/16/2005)
8 AMENDED COMPLAINT Class Action against all defendants. Filed byRussell Moyle. (Schwartz, Andrew) (Filed on 9/16/2005) (Entered: 09/16/2005)
9 STIPULATION Request to Reset Case Management Conference; Proposed Order by Russell Moyle. (Schwartz, Andrew) (Filed on 9/23/2005) (Entered: 09/23/2005)
10 STIPULATION AND ORDER TO CONTINUE INITIAL CASE MANAGEMENT CONFERENCE. Initial Case Management Conference continued to 12/9/2005 at 1:30 PM. Joint case management conference statement due by 12/2/5. Signed by Judge Joseph C. Spero on 9/26/2005. (klh, COURT STAFF) (Filed on 9/26/2005) (Entered: 09/26/2005)
11 ANSWER to Amended Complaint byContra Costa County, Contra Costa County Probation Department, Lionel Chatman, Jim Matheron. (Fitzgerald, James) (Filed on 11/29/2005) (Entered: 11/29/2005)
12 JOINT CASE MANAGEMENT STATEMENT ; [Proposed] Order filed by Russell Moyle, Rhonda Bowers. (Merin, Mark) (Filed on 12/1/2005) (Entered: 12/01/2005)

Case: 3:05-cv-2324 As of: 11/09/2017 11:45 AM PST 6 of 18

12/12/2005
12/13/2005
03/03/2006 03/10/2006 03/15/2006 07/26/2006 08/04/2006
08/08/2006
08/10/2006 10/31/2006 11/13/2006 11/14/2006
11/14/2006 11/15/2006

13 Minute Entry: Initial Case Management Conference held on 12/9/2005 before Joseph C. Spero. Initial disclosures shall be due by 12/16/5. Phase 1 discovery shall occur wihtin 150 days. A further case management conference is set for 3/10/6 at 1:30 p.m. Court to prepare Order. (Tape #Not Recorded.) (klh, COURT STAFF) (Date Filed: 12/12/2005) (Entered: 12/12/2005)
14 CASE MANAGEMENT AND PRETRIAL ORDER: Initial disclosures shall be due by 12/16/05.Updated Joint Case Management Statement due by 3/3/2006. Further Case Management Conference set for 3/10/2006 at 1:30 PM. Phase I Discovery to be completed by 5/12/2006. Signed by Judge Joseph C. Spero on 12/13/2005. (klh, COURT STAFF) (Filed on 12/13/2005) (Entered: 12/13/2005)
15 JOINT CASE MANAGEMENT STATEMENT (Updated) filed by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Jim Matheron, Russell Moyle, Rhonda Bowers. (Merin, Mark) (Filed on 3/3/2006) (Entered: 03/03/2006)
16 Minute Entry: Further Case Management Conference held on 3/10/2006 before Joseph C. Spero. Court to prepare Order. (Tape #Not Recorded.) (klh, COURT STAFF) (Date Filed: 3/10/2006) (Entered: 03/10/2006)
17 FURTHER CASE MANAGEMENT AND PRETRIAL ORDER: Updated Joint Case Management Statement due by 7/28/2006. Further Case Management Conference set for 8/4/2006 at 1:30 PM. Signed by Judge Joseph C. Spero on 03/15/06. (klh, COURT STAFF) (Filed on 3/15/2006) (Entered: 03/15/2006)
18 JOINT CASE MANAGEMENT STATEMENT [Updated] filed by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Jim Matheron, Russell Moyle, Rhonda Bowers. (Merin, Mark) (Filed on 7/26/2006) (Entered: 07/26/2006)
19 Minute Entry: Further Case Management Conference held on 8/4/2006 before Joseph C. Spero. Parties shall submit a joint letter to the Court with the name of the mediator and mediation date by 8/11/6. An updated joint case management conference statement shall be due by 11/9/6. A further case management conference is set for 11/17/6 at 1:30 PM. Court to prepare Order. (Tape #Not Recorded.) (klh, COURT STAFF) (Date Filed: 8/4/2006) (Entered: 08/04/2006)
20 FURTHER CASE MANAGEMENT AND PRETRIAL ORDER: Private Mediation shall occur no later than 11/1/6. Parties shall submit a joint letter to the Court with the name of the mediator, and mediation date by 8/11/6. Updated Joint Case Management Statement due by 11/9/2006. Further Case Management Conference set for 11/17/2006 at 1:30 PM. Plaintiff shall file their Motion for Class Certification by 12/15/2006. Signed by Judge Joseph C. Spero on 8/8/6. (klh, COURT STAFF) (Filed on 8/8/2006) (Entered: 08/08/2006)
21 Letter from Andrew Schwartz. (Schwartz, Andrew) (Filed on 8/10/2006) (Entered: 08/10/2006)
22 Letter from James V. Fitzgerald, III. (Fitzgerald, James) (Filed on 10/31/2006) (Entered: 10/31/2006)
23 JOINT CASE MANAGEMENT STATEMENT filed by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman. (Fitzgerald, James) (Filed on 11/13/2006) (Entered: 11/13/2006)
24 ORDER GRANTING 23 Updated Joint Case Management Statement filed by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman. The further case management conference, set for 11/17/6 at 1:30 PM, has been continued to 3/2/7 at 1:30 PM. Signed by Judge Joseph C. Spero on 11/14/06. (klh, COURT STAFF) (Filed on 11/14/2006) (Entered: 11/14/2006)
Set/Reset Hearings: Further Case Management Conference continued to 3/2/2007 at 1:30 PM. (klh, COURT STAFF) (Filed on 11/14/2006) (Entered: 11/14/2006)
25 NOTICE of Change In Counsel by Mark E. Merin, Esq (Merin, Mark) (Filed on 11/15/2006) (Entered: 11/15/2006)

Case: 3:05-cv-2324 As of: 11/09/2017 11:45 AM PST 7 of 18

01/11/2007 01/30/2007 02/20/2007 02/26/2007 02/26/2007 03/16/2007 03/16/2007 03/19/2007 03/23/2007 05/17/2007 05/18/2007 05/18/2007 05/18/2007
05/18/2007
05/18/2007 05/18/2007

26 Letter from James V. Fitzgerald, III. (Fitzgerald, James) (Filed on 1/11/2007) (Entered: 01/11/2007)
27 CLERK'S NOTICE that the Further Case Management Conference previously noticed for 3/2/7 at 1:30 PM has been continued to 3/9/2007 at 1:30 PM. The Joint Updated Case Management Statement shall be due by 3/2/2007. (klh, COURT STAFF) (Filed on 1/30/2007) (Entered: 01/30/2007)
28 STIPULATION TO CONTINUE DATE OF FURTHER CASE MANAGEMENT CONFERENCE by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Jim Matheron. (Fitzgerald, James) (Filed on 2/20/2007) (Entered: 02/20/2007)
29 STIPULATION AND ORDER TO CONTINUE DATE OF FURTHER CASE MANAGEMENT CONFERENCE from March 9, 2007 at 1:30 PM to March 23, 2007 at 1:30 PM. Joint updated statement due by 3/16/7. Signed by Judge Joseph C. Spero on 2/26/7. (klh, COURT STAFF) (Filed on 2/26/2007) (Entered: 02/26/2007)
Set/Reset Hearings: Further Case Management Conference reset for 3/23/2007 at 01:30 PM. (klh, COURT STAFF) (Filed on 2/26/2007) (Entered: 02/26/2007)
30 JOINT CASE MANAGEMENT STATEMENT filed by Russell Moyle. (Schwartz, Andrew) (Filed on 3/16/2007) (Entered: 03/16/2007)
31 STIPULATION and Order Re: Extension of Time to File Motion for Class Certification by Russell Moyle. (Schwartz, Andrew) (Filed on 3/16/2007) (Entered: 03/16/2007)
32 STIPULATION AND ORDER RE: EXTENSION OF TIME TO FILE MOTION FOR CLASS CERTIFICATION − 60 days from 3/19/07. Signed by Judge Joseph C. Spero on 03/19/07. (klh, COURT STAFF) (Filed on 3/19/2007) (Entered: 03/19/2007)
33 Minute Entry: Further Case Management Conference held on 3/23/2007 before Joseph C. Spero. A further case management conference will be set at the Motion for Class Certification hearing. (Tape #Not Recorded.) (klh, COURT STAFF) (Date Filed: 3/23/2007) (Entered: 03/23/2007)
34 ASSOCIATION of Counsel by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Jim Matheron. (Fitzgerald, James) (Filed on 5/17/2007) (Entered: 05/17/2007)
35 MOTION to Certify Class Notice filed by Katherine Ermitano, Russell Moyle. Motion Hearing set for 6/22/2007 01:30 PM in Courtroom A, 15th Floor, San Francisco. (Merin, Mark) (Filed on 5/18/2007) (Entered: 05/18/2007)
36 Brief re 35 MOTION to Certify Class Notice filed byKatherine Ermitano, Russell Moyle. (Related document(s) 35 ) (Merin, Mark) (Filed on 5/18/2007) (Entered: 05/18/2007)
37 Declaration in Support of 35 MOTION to Certify Class Notice, 36 Brief filed byKatherine Ermitano, Russell Moyle. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O# 16 Exhibit P# 17 Exhibit Q)(Related document(s) 35 , 36 ) (Merin, Mark) (Filed on 5/18/2007) (Entered: 05/18/2007)
38 Declaration in Support of 36 Brief, 37 Declaration in Support,, 35 MOTION to Certify Class Notice Re: Briefing Schedule filed byKatherine Ermitano, Russell Moyle. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5)(Related document(s) 36 , 37 , 35 ) (Merin, Mark) (Filed on 5/18/2007) (Entered: 05/18/2007)
39 Declaration of Katherine Ermitano in Support of 36 Brief, 38 Declaration in Support,, 37 Declaration in Support,, 35 MOTION to Certify Class Notice filed byKatherine Ermitano, Russell Moyle. (Related document(s) 36 , 38 , 37 , 35 ) (Merin, Mark) (Filed on 5/18/2007) (Entered: 05/18/2007)
40 Proposed Order re 35 MOTION to Certify Class Notice by Katherine Ermitano, Russell Moyle. (Merin, Mark) (Filed on 5/18/2007) (Entered: 05/18/2007)

Case: 3:05-cv-2324 As of: 11/09/2017 11:45 AM PST 8 of 18

05/18/2007 05/29/2007 05/30/2007
05/30/2007 05/30/2007 06/22/2007 06/22/2007
06/22/2007 06/22/2007
06/23/2007
06/23/2007 06/23/2007

41 NOTICE by Katherine Ermitano, Russell Moyle re 35 MOTION to Certify Class Notice Proposed (Merin, Mark) (Filed on 5/18/2007) (Entered: 05/18/2007)
42 STIPULATION AND PROPOSED ORDER SETTING BRIEFING SCHEDULE FOR CLASS CERTIFICATION MOTION by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Jim Matheron. (Fitzgerald, James) (Filed on 5/29/2007) (Entered: 05/29/2007)
43 STIPULATION AND ORDER SETTING BRIEFING SCHEDULE FOR CLASS CERTIFICATION MOTION. Pla's Motion for Class Certification is now set for 8/17/7 at 1:30 PM. A further case management conference is also set for 8/17/7 at 1:30 PM. A joint updated case management conference statement shall be due by 8/10/7. Signed by Judge Joseph C. Spero on 5/29/7. (klh, COURT STAFF) (Filed on 5/30/2007) (Entered: 05/30/2007)
Set/Reset Deadlines as to 35 MOTION to Certify Class Notice. Opposition due by 6/22/2007. Replies due by 7/6/2007. Motion Hearing re−set for 8/17/2007 at 01:30 PM in Courtroom A, 15th Floor, San Francisco. (klh, COURT STAFF) (Filed on 5/30/2007) (Entered: 05/30/2007)
Set Deadlines/Hearings: Updated Joint Case Management Statement due by 8/10/2007. Further Case Management Conference set for 8/17/2007 01:30 PM. (klh, COURT STAFF) (Filed on 5/30/2007) (Entered: 05/30/2007)
44 MOTION for Summary Judgmeng; Memorandum of Points and Authorities in Support Thereof filed by Nancy Miller, Contra Costa County, Contra Costa County Probation Department, Lionel Chatman. Motion Hearing set for 8/17/2007 09:00 AM in Courtroom A, 15th Floor, San Francisco. (Obstler, Peter) (Filed on 6/22/2007) Modified on 6/26/2007 (gba, COURT STAFF). (Entered: 06/22/2007)
45 Appendix of Unpublished Authorities in support of 44 MOTION for Summary Judgment; Memorandum of Points and Authorities in Support Thereof filed by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Nancy Miller. (Attachments: # 1 Exhibit TAB 1# 2 Exhibit TAB 2)(Related document(s) 44 ) (Obstler, Peter) (Filed on 6/22/2007) Modified on 6/26/2007 (gba, COURT STAFF). (Entered: 06/22/2007)
46 Declaration of Marlon Washington in Support of 44 MOTION for Summary Judgment; Memorandum of Points and Authorities in Support Thereof filed by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Nancy Miller. (Related document(s) 44 ) (Obstler, Peter) (Filed on 6/22/2007) Modified on 6/26/2007 (gba, COURT STAFF). (Entered: 06/22/2007)
47 Declaration of James V. Fitzgerald, III in Support of 44 MOTION for Summary Judgment; Memorandum of Points and Authorities in Support Thereof filed by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Nancy Miller. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J_1# 11 Exhibit J_2# 12 Exhibit K_1# 13 Exhibit K_2# 14 Exhibit L# 15 Exhibit M)(Related document(s) 44 ) (Obstler, Peter) (Filed on 6/22/2007) Modified on 6/26/2007 (gba, COURT STAFF). (Entered: 06/22/2007)
48 NOTICE of Statement of Undisputed Facts and Defendants' Seperate Statement of Proposed Undisputed Facts that Plaintiffs Continue to Dispute in support of by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Nancy Miller 44 MOTION for Summary Judgment; Memorandum of Points and Authorities in Support Thereof (Obstler, Peter) (Filed on 6/23/2007) Modified on 6/26/2007 (gba, COURT STAFF). (Entered: 06/23/2007)
49 Memorandum in Opposition re 35 MOTION to Certify Class Notice filed byContra Costa County, Contra Costa County Probation Department, Lionel Chatman, Nancy Miller. (Obstler, Peter) (Filed on 6/23/2007) (Entered: 06/23/2007)
50 Appendix of Unpublished Authorities in support of 49 Memorandum in Opposition filed by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Nancy Miller. (Attachments: # 1 Exhibit TAB 1)(Related document(s) 49 ) (Obstler, Peter) (Filed on 6/23/2007) Modified on 6/26/2007 (gba, COURT STAFF). (Entered: 06/23/2007)

Case: 3:05-cv-2324 As of: 11/09/2017 11:45 AM PST 9 of 18

06/27/2007 06/28/2007 06/29/2007
07/13/2007
07/16/2007 07/17/2007 07/17/2007 07/18/2007 07/20/2007 07/20/2007 07/23/2007 08/10/2007 08/13/2007

51 ORDER Motion Hearing set for 10/12/2007 09:30 AM.. Signed by Judge JOSEPH C. SPERO on 6/27/07. (bjt, COURT STAFF) (Filed on 6/27/2007) (Entered: 06/27/2007)
52 STIPULATION and [Proposed] Order to Amend Briefing Schedule and Dismiss Plaintiff Russell Moyle by Contra Costa County. (Obstler, Peter) (Filed on 6/28/2007) (Entered: 06/28/2007)
53 STIPULATION AND ORDER re 35 MOTION to Certify Class Notice filed by Katherine Ermitano, Russell Moyle, 44 MOTION for Summary Judgment; Memorandum of Points and Authorities in Support Thereof filed by Nancy Miller, Contra Costa County Probation Department, Contra Costa County, Lionel Chatman, 52 Stipulation filed by Contra Costa County, Russell Moyle terminated. Motion Hearing on Plaintiffs' Motion to Cerfify Class and Defendants' Motin for Summary Judgment set for 10/12/2007 09:30 AM in Courtroom A, 15th Floor, San Francisco. Briefing schedule modified as follows: Plaintiffs' reply to defendants' opposition to plaintiffs' motion for class certification due by July 20, 2007; Plaintiff's response to defendants' motion for summary judgment due by August 14, 2007; Defendants' reply to plaintiffs' response to defendants' motion for summary judgment is due by September 7, 2007. Signed by Judge Joseph C. Spero on 6/29/2007. (tl, COURT STAFF) (Filed on 6/29/2007) (Entered: 06/29/2007)
54 MOTION for Leave to File Excess Pages − Plaintiff's Miscellaneous Administrative Request for Leave to File Up to a 35 Page Brief in Reply to Defendants' Opposition to Plaintiffs' Motion for Class Certification; Declaration of Mark E. Merin; [Proposed] Order [Local Rule 7−11] filed by Katherine Ermitano. Motion Hearing set for 10/12/2007 09:30 AM in Courtroom 15, 18th Floor, San Francisco. (Merin, Mark) (Filed on 7/13/2007) (Entered: 07/13/2007)
55 Reply Memorandum to Plaintiffs' Miscellaneous Administrative Request for Leave to File up to a 35 Page Brief in Reply to Defendants' Opposition to Plaintiffs' Motion for Class Certification filed byContra Costa County. (Obstler, Peter) (Filed on 7/16/2007) (Entered: 07/16/2007)
56 Letter from Jee Young You to Magistrate Judge Joseph C. Spero regarding Corrected Response to Plaintiffs' Miscellaneous Administrative Request for Leave to File up to a 35 Page Brief. (Obstler, Peter) (Filed on 7/17/2007) (Entered: 07/17/2007)
57 Reply Memorandum Defendants' CORRECTED Response to Plaintiffs' Miscellaneous Administrative Request for Leave to File up to a 35 Page Brief 54 filed by Contra Costa County. (Obstler, Peter) (Filed on 7/17/2007) Modified on 7/18/2007 (sv, COURT STAFF). (Entered: 07/17/2007)
58 Reply to Opposition re 54 MOTION for Leave to File Excess Pages − Plaintiff's Miscellaneous Administrative Request for Leave to File Up to a 35 Page Brief in Reply to Defendants' Opposition to Plaintiffs' Motion for Class Certification; Declaration of Mark E. [Proposed] Order filed byKatherine Ermitano. (Merin, Mark) (Filed on 7/18/2007) (Entered: 07/18/2007)
59 Reply to Opposition to Plaintiffs' Motion for Class Certification filed byKatherine Ermitano. (Merin, Mark) (Filed on 7/20/2007) (Entered: 07/20/2007)
60 Declaration of Mark E. Merin in Support of 59 Reply to Opposition to Plaintiff's Motion for Class Certification filed byKatherine Ermitano. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Related document(s) 59 ) (Merin, Mark) (Filed on 7/20/2007) (Entered: 07/20/2007)
61 ORDER GRANTING LEAVE TO FILE UP TO A 22−PAGE REPLY BRIEF in support of their Motion for Class Certification. Pla may file a brief not to exceed 21 pages. Signed by Judge Joseph C. Spero on 723/7. (klh, COURT STAFF) (Filed on 7/23/2007) (Entered: 07/23/2007)
62 JOINT CASE MANAGEMENT STATEMENT − JOINT UPDATED CASE MANAGEMENT STATEMENT; DEFENDANTS' UNOPPOSED REQUEST FOR LEAVE TO FILE A REPLY BRIEF UP TO 21 PAGES; [PROPOSED] ORDER filed by Contra Costa County. (Obstler, Peter) (Filed on 8/10/2007) (Entered: 08/10/2007)
63 ORDER GRANTING UNOPPOSED REQUEST FOR LEAVE TO FILE A REPLY BRIEF UP TO 21 PAGES. [Grants Docket No. 62]. Signed by Judge Joseph C. Spero

Case: 3:05-cv-2324 As of: 11/09/2017 11:45 AM PST 10 of 18

08/14/2007 08/14/2007 08/14/2007 08/14/2007 08/14/2007 08/14/2007 08/14/2007 08/17/2007 08/20/2007 09/07/2007 09/07/2007 09/07/2007 09/07/2007
09/07/2007

on 8/13/7. (klh, COURT STAFF) (Filed on 8/13/2007) Modified on 8/14/2007 (gba, COURT STAFF). (Entered: 08/13/2007)
64 Memorandum in Opposition to 44 Defendants' Motion for Summary Judgment filed by Katherine Ermitano. (Merin, Mark) (Filed on 8/14/2007) Modified on 8/31/2007 (gba, COURT STAFF). (Entered: 08/14/2007)
65 RESPONSE to Defendants' Statement of Disputed and Undisputed Facts in Opposition to Defendants' Motion for Summary Judgment filed by Katherine Ermitano. (Merin, Mark) (Filed on 8/14/2007) Modified on 8/31/2007 (gba, COURT STAFF). (Entered: 08/14/2007)
66 Notice of Separate Statement of Undisputed Facts in support of 64 Opposition to Defendants' Motion for Summary Judgment filed by Katherine Ermitano. (Merin, Mark) (Filed on 8/14/2007) Modified on 8/31/2007 (gba, COURT STAFF). (Entered: 08/14/2007)
67 Declaration of Mark E. Merin in Support of 64 Plaintiffs' Opposition to Defendants' Motion for Summary Judgment filed by Katherine Ermitano. (Attachments: # 1 Exhibit A−C# 2 Exhibit D# 3 Exhibit E−I)(Merin, Mark) (Filed on 8/14/2007) Modified on 8/31/2007 (gba, COURT STAFF). (Entered: 08/14/2007)
68 Declaration of John P. Rhoads in Support of 64 Plaintiffs' Opposition to Defendants' Motion for Summary Judgment filed by Katherine Ermitano. (Merin, Mark) (Filed on 8/14/2007) Modified on 8/31/2007 (gba, COURT STAFF). (Entered: 08/14/2007)
69 Declaration of Russell Davis in Support of 64 Plaintiffs' Opposition to Defendants' Motion for Summary Judgment filed by Katherine Ermitano. (Merin, Mark) (Filed on 8/14/2007) Modified on 8/31/2007 (gba, COURT STAFF). (Entered: 08/14/2007)
70 Declaration of Lynn E. Ponton, M.D. in Support of 64 Plaintiffs' Opposition to Defendants' Motion for Summary Judgment filed by Katherine Ermitano. (Merin, Mark) (Filed on 8/14/2007) Modified on 8/31/2007 (gba, COURT STAFF). (Entered: 08/14/2007)
71 Minute Entry: Further Case Management Conference held on 8/17/2007 before Joseph C. Spero. (Tape #Not Recorded.) (klh, COURT STAFF) (Date Filed: 8/17/2007) (Entered: 08/17/2007)
72 FURTHER CASE MANAGEMENT AND PRETRIAL ORDER: Further Case Management Conference set for 10/12/2007 at 09:30 AM. Signed by Judge Joseph C. Spero on 8/20/07. (klh, COURT STAFF) (Filed on 8/20/2007) (Entered: 08/20/2007)
73 RESPONSE to Plaintiffs' Statement of Undisputed Facts in Opposition to Defendants' Motion for Summary Judgment by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Nancy Miller. (Obstler, Peter) (Filed on 9/7/2007) (Entered: 09/07/2007)
74 REPLY to 44 Motion for Summary Judgment filed by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Nancy Miller. (Obstler, Peter) (Filed on 9/7/2007) Modified on 9/18/2007 (gba, COURT STAFF). (Entered: 09/07/2007)
75 Appendix re 74 Reply to Response to Motion for Summary Judgment filed byContra Costa County, Contra Costa County Probation Department, Lionel Chatman, Nancy Miller. (Attachments: # 1 Exhibit 1)(Related document(s) 74 ) (Obstler, Peter) (Filed on 9/7/2007) (Entered: 09/07/2007)
76 Declaration of Carla Meninsky in Support of 74 Reply to Motion for Summary Judgment filed by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Nancy Miller. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Related document(s) 74 ) (Obstler, Peter) (Filed on 9/7/2007) Modified on 9/18/2007 (gba, COURT STAFF). (Entered: 09/07/2007)
77 CORRECTED REPLY to 44 Motion for Summary Judgment (with Signature) filed by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Nancy Miller. (Obstler, Peter) (Filed on 9/7/2007) Modified on 9/18/2007 (gba,

Case: 3:05-cv-2324 As of: 11/09/2017 11:45 AM PST 11 of 18

09/08/2007 09/10/2007 09/10/2007 10/09/2007
10/22/2007 10/26/2007
11/09/2007 11/19/2007
11/21/2007
12/05/2007 01/04/2008 01/09/2008 04/21/2008 04/28/2008 04/28/2008

COURT STAFF). (Entered: 09/07/2007)
78 AMENDED REPLY to 77 Reply to Motion for Summary Judgment by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Nancy Miller. (Obstler, Peter) (Filed on 9/8/2007) Modified on 9/18/2007 (gba, COURT STAFF). (Entered: 09/08/2007)
79 Letter from Carla Meninsky Regarding Reply Filed on 9/7/07. (Obstler, Peter) (Filed on 9/10/2007) (Entered: 09/10/2007)
80 ERRATA re 78 Amended Reply by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Nancy Miller. (Obstler, Peter) (Filed on 9/10/2007) Modified on 9/19/2007 (gba, COURT STAFF). (Entered: 09/10/2007)
81 CLERK'S NOTICE that the hearing on Plas' Motion for Class Cert., Dfts' Motion for Summary Judgment and Further Case Management Conference prev. set for 10/12/7, has been reset for 10/26/2007 at 09:30 AM. Updated Joint Case Management Statement due by 10/19/2007. (klh, COURT STAFF) (Filed on 10/9/2007) (Entered: 10/09/2007)
82 JOINT CASE MANAGEMENT STATEMENT filed by Katherine Ermitano. (Merin, Mark) (Filed on 10/22/2007) (Entered: 10/22/2007)
83 Minute Entry: Further Case Management Conference held on 10/26/2007 before Joseph C. Spero. Motion Hearing held on 10/26/2007 before Joseph C. Spero re 35 MOTION to Certify Class Notice filed by Katherine Ermitano, Russell Moyle, 44 MOTION for Summary Judgment; Memorandum of Points and Authorities in Support Thereof filed by Nancy Miller, Contra Costa County Probation Department, Contra Costa County, Lionel Chatman. Moions Submitted. (Court Reporter Starr Wilson.) (klh, COURT STAFF) (Date Filed: 10/26/2007) (Entered: 10/26/2007)
84 Letter from James V. Fitzgerald, III. (Fitzgerald, James) (Filed on 11/9/2007) (Entered: 11/09/2007)
85 NOTICE of Voluntary Dismissal by Stipulation of Defendants Contra Costa County Chief Probation Officer Lionel Chatman and Contra Costa County Chief Deputy Probation Officer for Juvenile Hall Nancy Miller, in their INDIVIDUAL capacities ONLY [FRCP Rule 41(a)]; [Proposed] Order by Katherine Ermitano, Russell Moyle (Merin, Mark) (Filed on 11/19/2007) (Entered: 11/19/2007)
86 STIPULATION AND ORDER RE: VOLUNTARY DISMISSAL OF DEFENDANTS CONTRA COSTA COUNTY CHIEF PROBATION OFFICER LIONEL CHATMAN AND CONTRA COSTA COUNTY CHIEF DEPUTY PROBATION OFFICER FOR JUVENILE HALL NANCY MILLER, IN THEIR INDIVIDUAL CAPACITIES, ONLY. Signed by Judge Joseph C. Spero on 11/20/07. (klh, COURT STAFF) (Filed on 11/21/2007) (Entered: 11/21/2007)
87 ORDER re 35 MOTION to Certify Class and 44 MOTION for Summary Judgment. Signed by Judge Joseph C. Spero on December 5, 2007. (jcslc1, COURT STAFF) (Filed on 12/5/2007) (Entered: 12/05/2007)
88 NOTICE by Katherine Ermitano, Russell Moyle Agreed Notice of Pendency of Class Action (Attachments: # 1 Notice of Pendency of Class Action)(Merin, Mark) (Filed on 1/4/2008) (Entered: 01/04/2008)
89 TRANSCRIPT of Proceedings held on 10/26/07 before Judge Joseph C. Spero. Court Reporter: Starr A. Wilson. (sv, COURT STAFF) (Filed on 1/9/2008) (Entered: 01/16/2008)
90 JOINT CASE MANAGEMENT STATEMENT filed by Russell Moyle. (Schwartz, Andrew) (Filed on 4/21/2008) (Entered: 04/21/2008)
91 CLERK'S NOTICE Setting A Discovery Conference for 5/5/8 at 11:00 AM before Judge Joseph C. Spero, Courtroom A, 15th Floor, San Francisco, CA (klh, COURT STAFF) (Filed on 4/28/2008) (Entered: 04/28/2008)
Set/Reset Hearings: Discovery Hearing set for 5/5/2008 at 11:00 AM in Courtroom A, 15th Floor, San Francisco. (klh, COURT STAFF) (Filed on 4/28/2008) (Entered: 04/28/2008)

Case: 3:05-cv-2324 As of: 11/09/2017 11:45 AM PST 12 of 18

05/05/2008 05/07/2008 07/11/2008 07/16/2008 08/15/2008 08/18/2008 08/18/2008 08/19/2008
08/28/2008 01/09/2009 01/16/2009
01/20/2009
02/12/2009 02/12/2009

92 Minute Entry: Discovery Hearing held on 5/5/2008 before Joseph C. Spero. Further case management conference set for 7/18/8 at 9:30 AM. Joint updated case management conference statement due by 7/14/8. (Tape #FTR 11:13−11:36.) (klh, COURT STAFF) (Date Filed: 5/5/2008) (Entered: 05/05/2008)
93 FURTHER CASE MANAGEMENT AND PRETRIAL ORDER: Joint Updated Case Management Statement due by 7/14/2008. Further Case Management Conference set for 7/18/2008 at 09:30 AM. Signed by Judge Joseph C. Spero on 5/7/8. (klh, COURT STAFF) (Filed on 5/7/2008) (Entered: 05/07/2008)
94 CASE MANAGEMENT STATEMENT filed by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Nancy Miller. (Fitzgerald, James) (Filed on 7/11/2008) (Entered: 07/11/2008)
95 CLERK'S NOTICE continuing the Further Case Management Conference to 8/22/2008 at 01:30 PM. Joint Updated Case Management Statement due by 8/22/2008. (klh, COURT STAFF) (Filed on 7/16/2008) (Entered: 07/16/2008)
96 CASE MANAGEMENT STATEMENT filed by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Nancy Miller. (Obstler, Peter) (Filed on 8/15/2008) (Entered: 08/15/2008)
97 CASE MANAGEMENT STATEMENT of Plaintiffs filed by Katherine Ermitano, Russell Moyle. (Schwartz, Andrew) (Filed on 8/18/2008) (Entered: 08/18/2008)
98 STIPULATION and [Proposed] Order re: Case Management Conference Continuance Until January 2009 by Katherine Ermitano, Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Nancy Miller, Russell Moyle, Rhonda Bowers. (Obstler, Peter) (Filed on 8/18/2008) (Entered: 08/18/2008)
99 STIPULATION AND ORDER RE: CASE MANAGEMENT CONFERENCE CONTINUANC UNTIL JAN. 2009. Further Case Management Conference currently set for 8/22/8 at 1:30 PM has been re−set for 1/16/2009 at 01:30 PM. Signed, as modified, by Judge Joseph C. Spero on 8/19/08. (klh, COURT STAFF) (Filed on 8/19/2008) (Entered: 08/19/2008)
100 NOTICE of Change of Address by Peter Obstler for O'Melveny & Myers LLP (Obstler, Peter) (Filed on 8/28/2008) (Entered: 08/28/2008)
101 CASE MANAGEMENT STATEMENT UPDATED JOINT filed by Katherine Ermitano, Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Nancy Miller, Jim Matheron, Rhonda Bowers. (Obstler, Peter) (Filed on 1/9/2009) (Entered: 01/09/2009)
102 Minute Entry: Further Case Management Conference held on 1/16/2009 before Joseph C. Spero. Bench Trial set for 9/21/2009 at 08:30 AM in Courtroom A, 15th Floor, San Francisco. Further Case Management Conference set for 3/27/2009 at 01:30 PM. Pretrial Conference set for 8/28/2009 at 01:30 PM in Courtroom A, 15th Floor, San Francisco. (Tape #Not Recorded.) (klh, COURT STAFF) (Date Filed: 1/16/2009) (Entered: 01/16/2009)
103 CASE MANAGEMENT AND PRETRIAL ORDER: Bench Trial set for 9/21/2009 at 08:30 AM in Courtroom A, 15th Floor, San Francisco. Updated Joint Case Management Statement due by 3/13/2009. Further Case Management Conference set for 3/27/2009 at 01:30 PM. Final Pretrial Conference set for 8/28/2009 at 01:30 PM in Courtroom A, 15th Floor, San Francisco. Signed by Judge Joseph C. Spero on 1/20/09. (klh, COURT STAFF) (Filed on 1/20/2009) (Entered: 01/20/2009)
104 Letter from Mark E. Merin requesting Ex Parte Hearing. (Merin, Mark) (Filed on 2/12/2009) (Entered: 02/12/2009)
105 Ex Parte Application re 104 Letter for Protective Order for Disclosure of Juvenile Records filed by Katherine Ermitano, Russell Moyle. Motion Hearing set for 2/13/2009 01:30 PM in Courtroom A, 15th Floor, San Francisco. (Attachments: # 1 Proposed Order Protective Order for Disclosure of Juvenile Records, # 2 Exhibit A)(Merin, Mark) (Filed on 2/12/2009) (Entered: 02/12/2009)

Case: 3:05-cv-2324 As of: 11/09/2017 11:45 AM PST 13 of 18

02/12/2009 02/12/2009 02/13/2009 02/13/2009 03/13/2009 03/13/2009 03/27/2009 03/31/2009
06/02/2009 06/08/2009
06/08/2009 06/08/2009 06/12/2009
06/16/2009 06/16/2009

106 ORDER GRANTING re 104 Letter filed by Katherine Ermitano, Russell Moyle for Ex Parte Hearing on Ex Parte Application for Protective Order for Disclosure of Juvenile Records. Hearing set for 2/13/9 at 1:30 PM. Signed by Judge Joseph C. Spero on 2/12/09. (klh, COURT STAFF) (Filed on 2/12/2009) (Entered: 02/12/2009)
107 CERTIFICATE OF SERVICE by Katherine Ermitano, Russell Moyle re 105 Ex Parte Application re 104 Letter for Protective Order for Disclosure of Juvenile Records Ex Parte Application re 104 Letter for Protective Order for Disclosure of Juvenile Records, 104 Letter (Merin, Mark) (Filed on 2/12/2009) (Entered: 02/12/2009)
108 Minute Entry: Motion Hearing held on 2/13/2009 before Joseph C. Spero re 105 Ex Parte Application re 104 Letter for Protective Order for Disclosure of Juvenile Records filed by Katherine Ermitano, Russell Moyle. Motion Granted. (Court Reporter Kathy Wyatt.) (klh, COURT STAFF) (Date Filed: 2/13/2009) (Entered: 02/13/2009)
109 ORDER, by Judge Joseph C. Spero, signed 2/13/9, granting 105 Ex Parte Application for Protective Order Disclosure of Juvenile Records. (klh, COURT STAFF) (Filed on 2/13/2009) (Entered: 02/13/2009)
110 CASE MANAGEMENT STATEMENT (Plaintiffs' Updated) filed by Katherine Ermitano. (Schwartz, Andrew) (Filed on 3/13/2009) (Entered: 03/13/2009)
111 CASE MANAGEMENT STATEMENT of Defendant Contra Costa County filed by Contra Costa County, Contra Costa County Probation Department, Lionel Chatman, Nancy Miller. (Obstler, Peter) (Filed on 3/13/2009) (Entered: 03/13/2009)
112 Minute Entry: Further Case Management Conference held on 3/27/2009 before Joseph C. Spero. Simultaneous briefs due 5/15/9. Further cmc set for 6/12/9. Court to prepare Order. (Tape #Not reported.) (klh, COURT STAFF) (Date Filed: 3/27/2009) (Entered: 03/27/2009)
113 FURTHER CASE MANAGEMENT AND PRETRIAL ORDER: Simultaneous briefs due by 5/15/2009. Joint updated Case Management Statement due by 6/2/2009. Further Case Management Conference set for 6/12/2009 01:30 PM. Signed by Judge Joseph C. Spero on 3/31/09. (klh, COURT STAFF) (Filed on 3/31/2009) (Entered: 03/31/2009)
114 CASE MANAGEMENT STATEMENT JOINT filed by Katherine Ermitano. (Schwartz, Andrew) (Filed on 6/2/2009) (Entered: 06/02/2009)
115 *** FILED IN ERROR. PLEASE SEE DOCKET # 116 . *** MOTION to Appear by Telephone by Peter Obstler, Esq. filed by Lionel Chatman, Contra Costa County, Contra Costa County Probation Department, Nancy Miller. Motion Hearing set for 6/12/2009 01:30 PM in Courtroom A, 15th Floor, San Francisco. (Obstler, Peter) (Filed on 6/8/2009) Modified on 6/8/2009 (ewn, COURT STAFF). (Entered: 06/08/2009)
116 MOTION to Appear by Telephone CORRECTION OF DOCKET # 115 filed by Lionel Chatman, Contra Costa County, Contra Costa County Probation Department, Nancy Miller. Motion Hearing set for 6/12/2009 01:30 PM in Courtroom A, 15th Floor, San Francisco. (Obstler, Peter) (Filed on 6/8/2009) (Entered: 06/08/2009)
117 ORDER, by Judge Joseph C. Spero, signed 6/8/9granting 116 Motion to Appear by Telephone − Peter Obstler at the case management conference on 6/12/9 at 1:30 PM. (klh, COURT STAFF) (Filed on 6/8/2009) (Entered: 06/08/2009)
118 Minute Entry: Further Case Management Conference held on 6/12/2009 before Joseph C. Spero. An updated case management conference statement shall be due by 8/7/9. Further cmc set for 8/14/9 at 1:30 PM and to set a new pretrial conference date. Bench trial date of 9/21/9 has been continued to 3/22/10 at 8:30 AM. (Tape #Not Reported.) (klh, COURT STAFF) (Date Filed: 6/12/2009) (Entered: 06/15/2009)
119 NOTICE of Substitution of Counsel by Peter Obstler (Obstler, Peter) (Filed on 6/16/2009) (Entered: 06/16/2009)
Set/Reset Hearings: Bench Trial set for 3/22/2010 08:30 AM in Courtroom A, 15th Floor, San Francisco. Further Case Management Conference set for 8/14/2009 01:30 PM. (gba, COURT STAFF) (Filed on 6/16/2009) (Entered: 06/16/2009)

Case: 3:05-cv-2324 As of: 11/09/2017 11:45 AM PST 14 of 18

06/17/2009 07/27/2009 07/28/2009 09/03/2009 09/03/2009 09/03/2009
09/03/2009 09/03/2009 09/15/2009 09/18/2009 09/18/2009 09/18/2009

120 FURTHER CASE MANAGEMENT AND PRETRIAL ORDER: Bench Trial reset for 3/22/2010 at 08:30 AM. Further Case Management Conference set for 8/14/2009 at 01:30 PM. Signed by Judge Joseph C. Spero on 6/17/09. (klh, COURT STAFF) (Filed on 6/17/2009) (Entered: 06/17/2009)
121 STIPULATION Request to Vacate Dates for Further Case Management Conference, Pre−Trial Conference, and Trial; [Proposed] Order by Rhonda Bowers, Lionel Chatman, Contra Costa County, Contra Costa County Probation Department, Katherine Ermitano, Jim Matheron, Nancy Miller. (Merin, Mark) (Filed on 7/27/2009) (Entered: 07/27/2009)
122 STIPULATED REQUEST TO VACATE DATES FOR FURTHER CASE MANAGEMENT CONFERENCE, PRETRIAL CONFERENCE, AND TRIAL AND ORDER. Signed by Judge Joseph C. Spero on 7/28/2009. (ls, COURT STAFF) (Filed on 7/28/2009) (Entered: 07/28/2009)
123 STIPULATION of Settlement by Rhonda Bowers, Lionel Chatman, Contra Costa County, Contra Costa County Probation Department, Katherine Ermitano, Jim Matheron, Nancy Miller, Russell Moyle. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5 [FILED UNDER SEAL])(Merin, Mark) (Filed on 9/3/2009) (Entered: 09/03/2009)
124 MOTION to Seal Exhibit 5 to the Stipulation of Settlement; Declaration of Mark E. Merin in Support filed by Rhonda Bowers, Katherine Ermitano, Russell Moyle. Motion Hearing set for 9/18/2009 09:30 AM in Courtroom A, 15th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Merin, Mark) (Filed on 9/3/2009) (Entered: 09/03/2009)
125 MOTION for Settlement Stipulated Motion for Preliminary Approval of Provisional Settlement Class and Settlement of Class Action filed by Rhonda Bowers, Lionel Chatman, Contra Costa County, Contra Costa County Probation Department, Katherine Ermitano, Jim Matheron, Nancy Miller, Russell Moyle. Motion Hearing set for 9/18/2009 09:30 AM in Courtroom A, 15th Floor, San Francisco. (Attachments: # 1 Stipulated Motion for Preliminary Approval of Provisional Settlement Class and Settlement of Class Action, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Proposed Order, # 6 Exhibit A [Proposed Order], # 7 Exhibit B [Proposed Order])(Merin, Mark) (Filed on 9/3/2009) (Entered: 09/03/2009)
126 Proposed Order Protective Order for Disclosure of Records and Information by Rhonda Bowers, Lionel Chatman, Contra Costa County, Contra Costa County Probation Department, Katherine Ermitano, Jim Matheron, Nancy Miller, Russell Moyle. (Merin, Mark) (Filed on 9/3/2009) (Entered: 09/03/2009)
132 EXHIBIT 5 to Stipulation of Settlement filed by Rhonda Bowers, Lionel Chatman, Contra Costa County, Contra Costa County Probation Department, Katherine Ermitano, Jim Matheron, Nancy Miller, Russell Moyle. FILED UNDER SEAL (gba, COURT STAFF) (Filed on 9/3/2009) (Entered: 10/01/2009)
127 CLERKS NOTICE that the hearing on the Stipulated Motion for Preliminary Approval of Provisional Settlement Class, and Settlement Class Action, prev. set for 9/18/9 at 9:30 AM, has been reset TO THE SAME DAY AT 02:30 PM in Courtroom A, 15th Floor, San Francisco. (klh, COURT STAFF) (Filed on 9/15/2009) (Entered: 09/15/2009)
128 ORDER, by Judge Joseph C. Spero, signed 9/17/9,granting 124 Motion to File Under Seal Exhibit 5 to the Stipulation of Settlement. (klh, COURT STAFF) (Filed on 9/18/2009) (Entered: 09/18/2009)
129 Minute Entry: Motion Hearing held on 9/18/2009 before Joseph C. Spero re 125 MOTION for Settlement Stipulated Motion for Preliminary Approval of Provisional Settlement Class and Settlement of Class Action filed by Nancy Miller, Katherine Ermitano, Contra Costa County Probation Department, Contra Costa County, Russell Moyle, Rhonda Bowers, Lionel Chatman, Jim Matheron. (Court Reporter Catherine Edwards.) (klh, COURT STAFF) (Date Filed: 9/18/2009) (Entered: 09/18/2009)
130 ORDER, by Judge Joseph C. Spero, signed 9/18/9,granting 125 Stipulated Motion for Settlement (klh, COURT STAFF) (Filed on 9/18/2009) (Entered: 09/18/2009)

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09/18/2009 02/19/2010 02/19/2010 02/19/2010 02/19/2010 02/19/2010 02/19/2010 02/19/2010 02/19/2010 02/19/2010 02/19/2010 02/19/2010 02/19/2010 02/19/2010

131 PROTECTIVE ORDER FOR DISCLOSURE OF RECORDS AND INFORMATION. Signed by Judge Joseph C. Spero on 9/18/9. (klh, COURT STAFF) (Filed on 9/18/2009) (Entered: 09/18/2009)
133 MOTION for Settlement Plaintiffs' Submission in Support of Final Approval of Stipulated Settlement filed by Katherine Ermitano. Motion Hearing set for 3/19/2010 09:30 AM in Courtroom A, 15th Floor, San Francisco. (Attachments: # 1 Exhibit 1)(Merin, Mark) (Filed on 2/19/2010) (Entered: 02/19/2010)
134 Declaration of Mark E. Merin in Support of 133 MOTION for Settlement Plaintiffs' Submission in Support of Final Approval of Stipulated Settlement filed byKatherine Ermitano. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 133 ) (Merin, Mark) (Filed on 2/19/2010) (Entered: 02/19/2010)
135 Declaration of Katherine Ermitano in Support of 133 MOTION for Settlement Plaintiffs' Submission in Support of Final Approval of Stipulated Settlement filed byKatherine Ermitano. (Related document(s) 133 ) (Merin, Mark) (Filed on 2/19/2010) (Entered: 02/19/2010)
136 Declaration of Ryanne Cozzi in Support of 133 MOTION for Settlement Plaintiffs' Submission in Support of Final Approval of Stipulated Settlement ; Exhibit A filed byKatherine Ermitano. (Related document(s) 133 ) (Merin, Mark) (Filed on 2/19/2010) (Entered: 02/19/2010)
137 MOTION to Expedite Case Management Conference filed by Lionel Chatman, Contra Costa County, Contra Costa County Probation Department, Nancy Miller. Motion Hearing set for 3/19/2010 09:30 AM in Courtroom A, 15th Floor, San Francisco. (Obstler, Peter) (Filed on 2/19/2010) (Entered: 02/19/2010)
138 MOTION for Attorney Fees Class Counsel's Application for Approval of Stipulated Attorney's Fees and Reimbursement of Costs filed by Katherine Ermitano. Motion Hearing set for 3/19/2010 09:30 AM in Courtroom A, 15th Floor, San Francisco. (Merin, Mark) (Filed on 2/19/2010) (Entered: 02/19/2010)
139 Declaration of Mark E. Merin in Support of 138 MOTION for Attorney Fees Class Counsel's Application for Approval of Stipulated Attorney's Fees and Reimbursement of Costs filed byKatherine Ermitano. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 138 ) (Merin, Mark) (Filed on 2/19/2010) (Entered: 02/19/2010)
140 Declaration of Andrew C. Schwartz in Support of 138 MOTION for Attorney Fees Class Counsel's Application for Approval of Stipulated Attorney's Fees and Reimbursement of Costs filed byKatherine Ermitano. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 138 ) (Merin, Mark) (Filed on 2/19/2010) (Entered: 02/19/2010)
141 Declaration of Douglas R. Young in Support of 138 MOTION for Attorney Fees Class Counsel's Application for Approval of Stipulated Attorney's Fees and Reimbursement of Costs filed byKatherine Ermitano. (Related document(s) 138 ) (Merin, Mark) (Filed on 2/19/2010) (Entered: 02/19/2010)
142 Declaration of John W. Keker in Support of 138 MOTION for Attorney Fees Class Counsel's Application for Approval of Stipulated Attorney's Fees and Reimbursement of Costs filed byKatherine Ermitano. (Related document(s) 138 ) (Merin, Mark) (Filed on 2/19/2010) (Entered: 02/19/2010)
143 Declaration of Jay−Allen Eisen in Support of 138 MOTION for Attorney Fees Class Counsel's Application for Approval of Stipulated Attorney's Fees and Reimbursement of Costs ; Exhibit A filed byKatherine Ermitano. (Related document(s) 138 ) (Merin, Mark) (Filed on 2/19/2010) (Entered: 02/19/2010)
144 Declaration of Michael White in Support of 138 MOTION for Attorney Fees Class Counsel's Application for Approval of Stipulated Attorney's Fees and Reimbursement of Costs filed byKatherine Ermitano. (Related document(s) 138 ) (Merin, Mark) (Filed on 2/19/2010) (Entered: 02/19/2010)
145 Proposed Order and Judgment of Dismissal by Katherine Ermitano. (Merin, Mark) (Filed on 2/19/2010) (Entered: 02/19/2010)

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02/22/2010 02/22/2010 02/22/2010 02/22/2010
02/24/2010
02/24/2010 02/24/2010 02/25/2010 03/01/2010 03/01/2010 03/04/2010 03/19/2010
03/19/2010 03/19/2010

146 ORDER, by Judge Joseph C. Spero, signed 2/22/10,granting 137 Dfts' Motion to Expedite a Case Management Conference. Case management conference set for 3/5/10 at 1:30 PM. Hearing date of 3/19/10 on this motion is vacated. (klh, COURT STAFF) (Filed on 2/22/2010) (Entered: 02/22/2010)
Set/Reset Hearings: Case Management Conference set for 3/5/2010 at 01:30 PM in Courtroom A, 15th Floor, San Francisco. (klh, COURT STAFF) (Filed on 2/22/2010) (Entered: 02/22/2010)
147 MOTION to Continue Plaintiffs' Request for a Resetting of the Expedited Case Management Conference; [Proposed] Order filed by Katherine Ermitano. Motion Hearing set for 3/5/2010 01:30 PM in Courtroom A, 15th Floor, San Francisco. (Merin, Mark) (Filed on 2/22/2010) (Entered: 02/22/2010)
148 Declaration of John W. Keker in Support of 138 MOTION for Attorney Fees Class Counsel's Application for Approval of Stipulated Attorney's Fees and Reimbursement of Costs, 142 Declaration in Support, Amended (signed) filed byKatherine Ermitano. (Related document(s) 138 , 142 ) (Merin, Mark) (Filed on 2/22/2010) (Entered: 02/22/2010)
149 **DISREGARD. SEE NEXT ENTRY** ORDER, by Judge Joseph C. Spero, signed 2/24/10,granting 147 Plaintiff's Motion to Continue/Reset Expedited Case Management Conference. Case Management Conference prev. set for 3/5/10 at 1:30 PM has been advanced to 3/4/10 at 1:30 PM. (klh, COURT STAFF) (Filed on 2/24/2010) Modified on 2/25/2010 (klh, COURT STAFF). (Entered: 02/24/2010)
Set/Reset Hearings: Case Management Conference re−set for 3/4/2010 01:30 PM in Courtroom A, 15th Floor, San Francisco. (klh, COURT STAFF) (Filed on 2/24/2010) (Entered: 02/24/2010)
150 ORDER GRANTING PLAINTIFFS' REQUEST FOR RESETTING OF EXPEDITED CASE MANAGEMENT CONFERENCE. Case management conference date of 3/5/10 at 1:30 PM has been advanced to 3/4/10 at 1:30 PM. Signed by Judge Joseph C. Spero on 2/24/10. (klh, COURT STAFF) (Entered: 02/25/2010)
151 Brief re 150 Order, Plaintiffs' Memorandum of Points and Authorities re: Expedited Case Management Conference filed byKatherine Ermitano. (Related document(s) 150 ) (Merin, Mark) (Filed on 2/25/2010) (Entered: 02/25/2010)
152 RESPONSE to Plaintiffs' Memorandum of Points and Authorities re Expedited Case Management Conference by Lionel Chatman, Contra Costa County, Contra Costa County Probation Department, Jim Matheron, Nancy Miller. (Obstler, Peter) (Filed on 3/1/2010) (Entered: 03/01/2010)
153 Reply to 152 Defendant's Response by Katherine Ermitano. (Merin, Mark) (Filed on 3/1/2010) Modified on 3/2/2010 (gba, COURT STAFF). (Entered: 03/01/2010)
154 Minute Entry: Further Case Management Conference held on 3/4/2010 before Joseph C. Spero. (Tape #FTR 1:37 to 1:48.) (klh, COURT STAFF) (Date Filed: 3/4/2010) (Entered: 03/04/2010)
155 Minute Entry: Motion Hearing held on 3/19/2010 before Joseph C. Spero re 138 MOTION for Attorney Fees Class Counsel's Application for Approval of Stipulated Attorney's Fees and Reimbursement of Costs filed by Katherine Ermitano, 133 MOTION for Settlement Plaintiffs' Submission in Support of Final Approval of Stipulated Settlement filed by Katherine Ermitano. Motions granted. (Court Reporter Margo Gurule.) (klh, COURT STAFF) (Date Filed: 3/19/2010) (Entered: 03/19/2010)
156 ORDER AND JUDGMENT DISMISSING CASE. Signed by Judge Joseph C. Spero on 3/19/2010. (klh, COURT STAFF) (Filed on 3/19/2010) (Entered: 03/19/2010)
157 Transcript of Proceedings held on September 18, 2009, before Magistrate Judge Joseph C. Spero. Court Reporter/Transcriber Catherine Edwards, Telephone number (510) 886−2427. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from

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06/23/2010
06/30/2010 01/28/2014 02/18/2014 02/21/2014 03/03/2014 03/05/2014 03/17/2014 03/17/2014
03/18/2014
03/28/2014 04/29/2014

date of this filing. Release of Transcript Restriction set for 6/17/2010. (djc, COURT STAFF) (Filed on 3/19/2010) (Entered: 03/19/2010)
158 Transcript of Proceedings held on 03/19/10, before Judge JOSEPH C. SPERO. Court Reporter/Transcriber Margaret "Margo" Gurule, Telephone number 415−504−4204 or margolargo@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 9/21/2010. (mng, COURT STAFF) (Filed on 6/23/2010) (Entered: 06/23/2010)
***Deadlines terminated. Release of Transcript Restriction 06/17/2010 Date Terminated 157 Transcript. (gba, COURT STAFF) (Filed on 6/30/2010) (Entered: 06/30/2010)
159 MOTION to Alter Judgment filed by Katherine Ermitano. Responses due by 2/11/2014. Replies due by 2/18/2014. (Merin, Mark) (Filed on 1/28/2014) (Entered: 01/28/2014)
160 Notice of Non−Opposition to 159 Application for Modification of Order and Judgment of Dismissal by Contra Costa County (You, Jee Young) (Filed on 2/18/2014) Modified on 2/19/2014 (gbaS, COURT STAFF). (Entered: 02/18/2014)
161 ORDER, signed 2/21/2014 by Judge Joseph C. Spero denying without prejudice 159 Motion to Alter Judgment. Parties shall meet and confer and submit a proposed stipulation within ten (10) days of this Order. (klhS, COURT STAFF) (Filed on 2/21/2014) (Entered: 02/21/2014)
162 STIPULATION WITH PROPOSED ORDER For Additional Time To Respond To Order Denying Without Prejudice Application For Modification Of Order And Judgment Of Dismissal filed by Lionel Chatman, Contra Costa County, Contra Costa County Probation Department, Jim Matheron, Nancy Miller. (Yow, John) (Filed on 3/3/2014) (Entered: 03/03/2014)
163 Order, signed 3/5/14, by Magistrate Judge Joseph C. Spero granting 162 Stipulation For Additional Time to Respond to Order Dnying Without Prejudice Application for Modification fo Order and Judgment of Dismissal. Time extended to 3/17/14.(klhS, COURT STAFF) (Filed on 3/5/2014) (Entered: 03/05/2014)
164 ASSOCIATION of Counsel by Contra Costa County, Contra Costa County Probation Department. (Obstler, Peter) (Filed on 3/17/2014) (Entered: 03/17/2014)
165 MOTION Modification of Order and Judgment of Dismissal re 160 Notice (Other), 161 Order on Motion to Alter Judgment, 156 Order Dismissing Case, 159 MOTION to Alter Judgment (Application for Modification of Order and Judgment of Dismissal) filed by Contra Costa County, Contra Costa County Probation Department. Motion Hearing set for 4/25/2014 09:30 AM in Courtroom G, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. Responses due by 3/31/2014. Replies due by 4/7/2014. (Cooper, Monika) (Filed on 3/17/2014) (Entered: 03/17/2014)
166 CLERKS NOTICE CHANGING TIME as to 165 MOTION Modification of Order and Judgment of Dismissal re 160 Notice (Other), 161 Order on Motion to Alter Judgment, 156 Order Dismissing Case, 159 MOTION to Alter Judgment (Application for Modification of Order and Judgme. Motion Hearing re−set for 4/25/2014 at 02:00 PM in Courtroom G, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. This is a text only entry. There is no document associated with this notice . (klhS, COURT STAFF) (Filed on 3/18/2014) (Entered: 03/18/2014)
167 RESPONSE (re 165 MOTION Modification of Order and Judgment of Dismissal re 160 Notice (Other), 161 Order on Motion to Alter Judgment, 156 Order Dismissing Case, 159 MOTION to Alter Judgment (Application for Modification of Order and Judgme ) filed byKatherine Ermitano. (Attachments: # 1 Exhibit 1 (list of remaining claimants))(Merin, Mark) (Filed on 3/28/2014) (Entered: 03/28/2014)
168 Minute Entry: Motion Hearing held on 4/25/2014 before Joseph C. Spero re 165 MOTION Modification of Order and Judgment of Dismissal re 160 Notice (Other),

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04/04/2016 04/07/2016 04/18/2016

161 Order on Motion to Alter Judgment, 156 Order Dismissing Case, 159 MOTION to Alter Judgment (Application for Modification of Order and Judgme filed by Contra Costa County Probation Department, Contra Costa County. Motion granted in part, denied in part.The remaining settlement funds shall be transferred by the administrator to the Trust Account of the Law Office of Mark Merin. Mr. Merin's firm shall take reasonable steps to locate the remaining class members and pay them pursuant to the settlement. A status report shall be submitted by the Plaintiffs to the Court in two (2) years detailing what funds were paid. After two (2) years, the parties may file a renewed motion that the remaining funds go to a Cy Pres recipient. (Recording #FTR 2:04−2:13.) (klhS, COURT STAFF) (Date Filed: 4/29/2014) (Entered: 04/29/2014)
169 STATUS REPORT RE RESIDUAL SETTLEMENT FUNDS by Katherine Ermitano. (Merin, Mark) (Filed on 4/4/2016) (Entered: 04/04/2016)
170 RESPONSE to re 169 Status Report [Defendants' Response to Plaintiff's Status Report re: Residual Settlement Funds] by Contra Costa County. (Cooper, Monika) (Filed on 4/7/2016) (Entered: 04/07/2016)
171 ORDER RE DISTRIBUTION OF REMAINING SETTLEMENT FUNDS. Signed by Judge Joseph C. Spero on April 18, 2016. (jcslc1S, COURT STAFF) (Filed on 4/18/2016) (Entered: 04/18/2016)