Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 1 of 21 Page ID #:54

1 PETER BIBRING (SBN 223981) Email: pbibring@aclu-sc.org

2 MARK ROSENBAUM (SBN 59940)

Email: mrosenbaum@aclu-sc.org

3 PETER J. ELIASBEirG (SBN 189110)

Email: peliasberg@aclu-sc.org

4 ACLU FOUNDATION

OF SOUTHERN CALIFORNIA 5 1313 West Eighth Street

6

Los Angeles, CA 90017 Telephone: (213) 977-9500

7 FacsImile: (213) 977-5297

8 STACY SHARTIN (SBN 58281) Email: sshartin@seyfarth.com
9 RISHI PURl (S'BN 252718) Email: rpuri@seyfarth.com
10 SEYFARTHSHAWLLP 2029 Century Park East, Suite 3300
11 Los Angeles, California 90067-3063 Telephone: (310) 277-7200
12 FacsImile: (310) 201-5219

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EASTERN DIVISION

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KEVON GORDON, RONALD JONES, RAYMONP· BARNES, QUINCY BROWN
Plaintiffs,
vs.
CITY OF MORENO VALLEY, a Municip~l Corporation; COUNTY OF RIVERSIDE; RICK HALL, CHIEF OF THE MORENO VALLEY POLICE DEPARTMENT, in his official capacity; KRISTY UNDERWOOD, EXECUTIVE OFFICER OF THE CALIFORNIA BOARD OF BARBERING AND COSMETOLOGY, in her official capacity; STAN SNIFF, RIVERSIDE COUNTY SHERIFF, in his official capacity; TONY HEISTERBERG,

Case No. ED CV 09-00688 SGL (SSx) FIRST AMENDED COMPLAINT DEMAND FOR JURy TRIAL
Assigned to: Judge Stephen G. Larson

Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 2 of 21 Page ID #:55
1 DENNIS LONGDYKE, LORI MILLER, SETH HARTNETT,
2 ROBERT DUCKETT, MARIO HERRERA, ERIC BREWER,
3 ANTHONY JOHNSON, CHRISTOPHER GASTINGER,
4 RICHARD HUTSON, JOE BROWN, XOCHI CARMARGO, ARLENE
5 BAUBY, and DOES 1-20, in their individual capacities,
6 Defendants.
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Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 3 of 21 Page ID #:56

1

JURISDICTION AND VENUE

2

1. This action seeks injunctive relief and damages for a series of raid-

3 style searches conducted by police in Moreno Valley, in coordination with local

4 and state inspectors, targeting African American barbershops that housed

5 legitimate, respected businesses and that served the African American community

6 as social centers and gathering places. These racially targeted raids violated the

7 guarantees of both the California and United States constitutions against racial

8 discrimination and unreasonable warrantless searches. This Court has jurisdiction

9 over Plaintiffs' claims pursuant to 28 U.S.C. §1331 (in that they arise under the

10 Constitution of the United States), § 1343(a)(3) (in that they are brought to redress

11 deprivations, under color of state authority, of rights, privileges and immunities

12 secured by the United States Constitution), § 1343(a)(4) (in that they seek to

13 secure equitable relief under 42 U.S.C. §1983), and the Declaratory Judgment Act,

14 28 U.S.C. §§ 2201 (a) and 2202. This Court has jurisdiction over Plaintiffs'

15 supplemental state law claims arising out of the same controversy pursuant to

16 28 U.S.C. § 1367.

17

2. Venue is proper in the Central District of California under 28 U.S.C.

18 § 1391(b). Defendants are located in the Central District and all of the acts and/or

19 omissions complained of herein occurred or will occur in this District.

20

INTRODUCTION

21

3. On April 2, 2008, officers from the Moreno Valley Police Department

22 ("MVPD"), acting in conjunction with state and local inspectors, conducted raid-

23 style searches on a number of African-American barbershops that housed

24 legitimate, respected businesses and were used by members of the African

25 American community as social centers. Despite the complete absence of any

26 physical threat and the peaceful nature of all previous health and business

27 inspections, the MVPD officers were armed with handguns and wore bulletproof

28 vests. The police acted in conjunction with California Department of Consumer

Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 4 of 21 Page ID #:57

1 Affairs Board of Barbering and Cosmetology (the "Board") and the City of

2 Moreno Valley Code and Neighborhood Services Division ("Code Enforcement"),

3 under the ruse of conducting ordinary health and business inspections. The raid-

4 style searches that ensued, however, were more intrusive in nature and scope than

5 justified in any ordinary business inspection. Upon information and belief, this

6 joint operation was initiated and undertaken at the request of MVPD officers. In

7 the two businesses addressed in this action - the Hair Shack and Fades Unlimited

8 - the raids included questioning of customers and extensive searches, but

9 produced no evidence of any wrongdoing other than routine issues concerning

10 maintenance and storage ofbarbering supplies and equipment. Following the

11 searches of April 2, 2008, business declined for barbers at both the Hair Shack and

12 Fades Unlimited.

13

4. Five of the six barbershops Defendants selected as targets for their

14 raid-style inspections on April 2, 2008, were owned, operated, and primarily

15 frequented by African Americans. This stark disparity and the unusually

16 aggressive conduct of the MVPD during the raid-style inspections indicate that

17 Defendants' decision to target these business in the manner they did was based, in

18 . part or in whole, on the race of the barbers and their clientele.

19

5. Fades Unlimited had been subjected to two prior warrantless

20 "inspections" by MVPD, once by MVPD officers and once by MVPD officers

21 along with one Code Enforcement officer. During the course of these earlier

22 inspections, MVPD officers demanded identification from barbers and customers,

23 ran warrants, and searched through drawers and containers.

24

6. The above raids by the MVPD trampled Plaintiffs' right to Equal

25 Protection under the Fourteenth Amendment to the United States Constitution, and

26 Article I, section 7 of the California Constitution, providing that the government

27 cannot target individuals or businesses for investigation on the basis of race.

28 Defendants further violated the guarantee of the Fourth Amendment to the United

2

Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 5 of 21 Page ID #:58

1 States Constitution and Article I, section13 of the California Constitution, that the

2 government cannot subject individuals or businesses to unreasonable searches.

3 Plaintiffs, barbers in business for themselves in the raided shops, bring this case to

4 seek compensation, to obtain a declaration that Defendants' acts were unlawful,

5 and to enjoin Defendants from applying their policies that resulted in in teh

6 violations of constitutional rights alleged herein.

7

PARTIES

8

7. Plaintiff Kevon Gordon is a barber and the owner of the Hair Shack, a

9 barbershop in Moreno Valley, California, and is a resident of the City of

10 Riverside, California. Mr. Gordon is African American.

11

8. Plaintiff Ron Jones is a barber who works at the Hair Shack and is a

12 resident of Moreno Valley, California. Mr. Jones is African American.

13

9. Plaintiff Raymond Barnes is a barber who, on April 2, 2008, worked

14 at Fades Unlimited, a barbershop in Moreno Valley, California. Mr. Barnes

15 resides in Moreno Valley and is African American.

16

10. Plaintiff Quincy Brown is a barber who, on April 2, 2008, worked at

17 Fades Unlimited, a barbershop in Moreno Valley, California. Mr. Brown resides

18 in Riverside, California, and is African American.

19

11. Defendant City of Moreno Valley (the "City") is a municipality

20 located in Riverside County, California. The City of Moreno Valley is one of the

21 legal entities responsible for the acts and omissions of the MVPD and Code

22 Enforcement, including the policies concerning administrative inspections and

23 criminal investigations.

24

12. Defendant Rick Hall is the Chief of Police for MVPD. He is sued in

25 his official capacity.

26

13. Defendant Stan Sniff is the Riverside County Sheriff. The County of

27 Riverside Sheriffs Department ("Sheriffs Department") provides police services

28 to the City of Moreno Valley under contract with the City of Moreno Valley.

3

Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 6 of 21 Page ID #:59

1 Sheriff Sniff is sued in his official capacity.

2

14. Defendant County of Riverside (the "County") is a county of the State

3 of California. The County operates the County of Riverside Sheriffs Department,

4 which operates the MVPD pursuant to a contract to provide police services to the

5 City of Moreno Valley. Upon information and belief, the Riverside County

6 Sheriffs Department remains responsible for the discipline of officers assigned to

7 the MVPD, who remain employees and agents of the County. The County remain

8 in part responsible for the policies and procedures of the MVPD.

9

15. Defendant Kristy Underwood is the Executive Officer of the Board.

lOIn her official capacity, Defendant Underwood is responsible for setting policies

11 and procedures concerning the Board's inspectors. Ms. Underwood is sued in her

12 official capacity.

13

16. Defendants Tony Heisterberg, Dennis Longdyke, and Lori Miller

14 (collectively, the "Code Enforcement Officers") are Code Enforcement officers

15 employed by the City of Moreno Valley. They are sued in their individual

16 capacities.

17

17. Defendants Seth Hartnett, Robert Duckett, Mario Herrera, Eric

18 Brewer, Anthony Johnson, Christopher Gastinger, and Richard Hutson

19 (collectively, the "MVPD Officers") are peace officers employed by the County of

20 Riverside assigned to the MVPD. They are sued in their individual capacities.

21

18. Defendants Joe Brown, Xochi Camargo, and Arlene Bauby

22 (collectively, the "Board Officers") are inspectors employed by the Board. They

23 are sued in their individual capacities.

24

19. The true names and capacities of defendants Does 1 through 10 are

25 unknown to Plaintiffs who therefore sue these Defendants by fictitious names.

26 Doe Defendants include the supervisors at MVPD, Code Enforcement, and the

27 Board who directly approved the acts described herein, as well as agents, officers

28 and employees ofMVPD, Code Enforcement, and the Board who participated in

4

Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 7 of 21 Page ID #:60

1 the raid but are not named herein. Plaintiffs will amend this Complaint to show

2 Doe Defendants' true names and capacities when they have been ascertained.

3 Plaintiffs are informed and believe, and herein allege, that such Doe Defendants

4 are residents of California.

5

FACTUAL ALLEGATIONS

6

20. Plaintiffs Gordon and Jones have operated the Hair Shack, a

7 barbershop in Moreno Valley California, in the same location since about 1987.

8 Mr. Gordon and Mr. Jones - the only two barbers who work in the Hair Shack -

9 are themselves both African American. While the Hair Shack serves a variety of

10 clients, the majority are African American. The front lobby of the Hair Shack is

11 decorated with posters showing sample haircuts, all of which use African

12 American models. The magazines in the lobby of the Hair Shack are magazines

13 directed to an African American readership, including Ebony, Hip Hop Soul,

14 King, Smooth Hair, and Source.

15

21. Fades Unlimited operated as a barbershop in Moreno Valley from

16 about 2003, or earlier, until about 2008. During 2007 and 2008, plaintiffs Barnes

17 and Brown worked at Fades Unlimited as an independent contractors, paying a

18 weekly fee for his station and retaining all proceeds from his clients. All the

19 barbers who worked at Fades Unlimited during the relevant period oflate 2007 to

20 2008 were African American, and most of the clientele was African American.

21 The name "Fades Unlimited" refers to a type of haircut, a "fade," that is popular

22 among African American men. There were pictures of sample haircuts in the

23 lobby, all or substantially all of which used African American models. The lobby

24 contained magazines directed toward an African American readership, including

25 Ebony, Jet, and Oprah. Art on the walls represented African American subjects.

26

22. At all relevant times, the Hair Shack and Fades Unlimited have

27 served as community and social centers for African American residents of Moreno

28 Valley. Because most of Plaintiffs' clientele at both the Hair Shack and Fades

5

Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 8 of 21 Page ID #:61

1 Unlimited consisted of repeat customers who returned for their haircuts every one

2 to three weeks, barbers and customers knew each other well. The atmosphere in

3 each place was friendly - barbers, customers who were being served, and those

4 who were waiting all talked with one another about politics, sports and current

5 events. On weekends at the Hair Shack, customers often remained to socialize

6 after their haircuts were finished, and long-time customers would stop by to talk

7 without getting a haircut at all. Hair Shack also allowed customers to play cards

8 and dominoes in a back room not used for barbering.

9

23. On April 2, 2008, the MVPD, acting in conjunction with Moreno

10 Valley Code Enforcement and Board inspectors conducted unannounced

11 inspections and searches on barbershops in the City of Moreno Valley. Upon

12 information and belief, the operation targeted six barbershops, five of which were

13 owned and operated by African Americans and served primarily African American

14 clientele. The Hair Shack and Fades Unlimited were among the targeted African

15 American barbershops.

16

24. During the April 2, 2008, raids on the Hair Shack, two MVPD police

17 cars pulled up to the .front of the Hair Shack, while another police car pulled into

18 the alley behind the Hair Shack. Approximately five MVPD officers wearing

19 bulletproof vests and side arms ran into the shop accompanied by about three

20 Board officers and about two officers from Code Enforcement. One MVPD

21 officer stood in the front doorway while others entered the barbering area and the

22 back room of the shop. The officer in the alley guarded the back door to the Hair

23 Shack from his police car. The officers never claimed that they had a warrant to

24 conduct a search and never produced a warrant. For approximately one-half hour,

25 the MVPD, Code Enforcement, and Board officers conducted an extensive search

26 of the Hair Shack, including areas where no barbering was performed, and

27 questioned employees and customers. The search was more extensive and

28 intrusive than necessary to determine compliance with barbering or business

6

Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 9 of 21 Page ID #:62

1 regulations. During the search, MVPD officers followed Board officers closely

2 and looked in the drawers and cabinets as Board officers opened them and

3 searched their contents.

4

25. Also on April 2, 2008, MVPD officers, accompanied by Code

5 Enforcement and Board inspectors, rushed into Fades Unlimited, blocking the

6 entrance so that no one could enter or leave. MVPD officers questioned

7 employees and customers, collected drivers licenses from them, and ran warrant

8 checks on them. Officers and inspectors conducted an extensive search of the

9 shop. The search was more intrusive than necessary to determine compliance with

10 barbering or business regulations. During the search, MVPD officers followed

11 Board officers closely and looked in the drawers and cabinets as Board officers

12 opened them and searched their contents. When plaintiff Brown expressed his

13 objections to the searches, an officer handcuffed him, took him to a police car in

14 the parking lot, placed him handcuffed in the back of the car, and told him they

15 had found an outstanding warrant. After about ten minutes, officers released

16 Brown and allowed him back inside the shop.

17

26. MVPD officers had previously inspected Fades Unlimited on two

18 occasions, once in about late 2007 or early 2008, and again in about early 2008.

19 Some of the same MVPD officers were present on one or more of these occasions

20 and on the raid of April 2, 2008.

21

27. During the first inspection of Fades Unlimited in about late 2007,

22 MVPD officers came without any Board or Code Enforcement officers and

23 questioned and checked identification of employees and customers. Upon

24 information and belief, MVPD officers ran warrant checks on individuals whose

25 identification they had collected. Upon information and belief, MVPD officers

26 took one of the barbers to his residence, searched it with his consent, and returned

27 him to the shop. Officers never stated they had a warrant for this search and

28 never produced such a warrant.

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Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 10 of 21 Page ID #:63

1

28. In early 2008, a Code Enforcement officer accompanied the MVPD to

2 Fades Unlimited and conducted a cursory visual inspection of the shop. The

3 MVPD used this agency inspection as an excuse once again to collect

4 identification from all the barbers. Upon information and belief, MVPD officers

5 ran warrant checks on individuals whose identification they had collected. Both

6 MVPD officers and the Code Enforcement officer opened cabinets, drawers and

7 containers belonging to some of the barbers. Officers neither produced a warrant

8 nor claimed the search was authorized by warrant.

9

29. Upon information and belief, the inspections conducted at the other

10 African-American businesses on April 2, 2008, were conducted in a similarly

11 invasive and intrusive manner.

12

30. Upon information and belief, following the April 2, 2008, raids there

13 was substantial outcry among members of the community, leading to several

14 media stories and a community meeting with the Mayor of Moreno Valley. In

15 comments to the media and to the public, the Mayor, City Council members, and

16 Chief Hall defended the raids as legitimate law enforcement operations. The

17 Sheriffs Department characterized the sweeps as a "City issue." A Code

18 Enforcement official told members of the press his department would conduct

19 such sweeps in the future, saying, "This is not a one-time event," and

20 characterizing the joint operation as successful. Upon information and belief, no

21 action was taken by either the City, the Sheriffs Department, or the MVPD to

22 discipline officers and officials involved, to correct policies or procedures that led

23 to the searches, or to make clear to officers or to the community that the searches

24 were unlawful.

25

31. Business dropped significantly for all Plaintiffs following these police

26 searches.

27

32. Upon information and belief, defendants Hartnett, Duckett, Herrera,

28 Brewer, Johnson, Gastinger, and Hutson were the MVPD officers who participated

8

Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 11 of 21 Page ID #:64

1 in the raids on Fades Unlimited and the Hair Shack on April 2, 2008, and/or in the

2 two earlier raids on Fades Unlimited.

3

33. Upon information and belief, defendants Heisterberg, Longdyke and

4 Miller were the Code Enforcement officers who participated in the raids on Fades

5 Unlimited and the Hair Shack on April 2, 2008, and/or in the earlier raid on Fades

6 Unlimited.

7

34. Upon information and belief, defendants Brown, Camargo, and

8 Bauby were the Board inspectors who participated in the raids on Fades Unlimited

9 and the Hair Shack on April 2, 2008.

10

35. Upon information and belief, based on the open and deliberate

11 manner in which the raids were carried out, the need for multi-agency

12 coordination, and the unusual nature of the raids, it can be inferred that

13 supervisors at Code Enforcement, MVPD (or the Sheriffs Department) and/or the

14 Board approved in advance the manner in which the raids would be conducted,

15 which businesses would be selected for raid, or the manner in which businesses

16 would be selected for raids. These supervisors number among the Doe Defendants.

17

CAUSES OF ACTION

18

FIRST CAUSE OF ACTION

19

Violation of the Fourteenth Amendment; 42 U.S.C. § 1983

20 (Against defendants Hartnett, Duckett, Herrera, Brewer, Johnson, Gastinger,

21 Hutson, Heisterberg, Longdyke, Miller, Brown, Camargo, and Bauby; and

22

Does 1-10, in their individual capacities)

23

36. Plaintiffs reallege and incorporate the foregoing paragraphs as if set

24 forth herein.

25

37. Defendants' actions described herein violated the rights of Plaintiffs

26 under the Equal Protection Clause of the Fourteenth Amendment to the United

27 States Constitution by depriving Plaintiffs of their right to equal protection under

28 the law.

9

Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 12 of 21 Page ID #:65

1

38. Defendants' actions deprived Plaintiffs of their right to equal

2 protection under the law by selecting Plaintiffs' businesses for search and

3 inspection on the basis of Plaintiffs' race and the race of the owners, employees

4 and clientele at Plaintiffs' businesses.

5

39. Defendants' conduct violated clearly established constitutional or

6 other rights, of which Defendants knew, or of which reasonable public officials

7 should have known, rendering Defendants liable to Plaintiffs under 42 U.S.c.

8 § 1983.

9

40. Upon information and belief, the statements of City and County

10 officials following the raids indicate that the City and County subsequently ratified

11 the raids, including the manner in which businesses were selected for search.

12

41. As a direct and proximate result of the unlawful actions of these

13 Defendants, Plaintiffs have suffered significant emotional and economic harm.

14

SECOND CAUSE OF ACTION

15

Violation of the Fourth Amendment; 42 U.S.C. § 1983

16

(Against the City, the County, defendants Hartnett, Duckett, Herrera,

17 Brewer, Johnson, Gastinger, Hutson, Heisterberg, Longdyke, Miller, Brown,

18

Camargo, and Bauby; and Does 1-10, in their individual capacities)

19

42. Plaintiffs reallege and incorporate the foregoing paragraphs as if set

20 forth herein.

21

43. Defendants' actions described herein violated the rights of Plaintiffs

22 under the Fourth Amendment to the United States Constitution by subjecting

23 Plaintiffs to unreasonable warrantless searches.

24

44. Upon information and belief, the open and deliberate manner in

25 which these raids were carried out, the fact that they were a coordinated multi-

26 agency operation, the fact that the officers acted in a similar fashion repeatedly at

27 other businesses, and the statements of City and County officials following the

28 raids indicate that the raids were conducted according to custom and practice of

10

Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 13 of 21 Page ID #:66

1 the City and the Sheriffs Department, that the City and County inadequately

2 trained their officers and employees on the constitutional limits of warrantless

3 searches, and that the City and County subsequently ratified the raids.

4

45. Defendants' conduct violated clearly established constitutional or

5 other rights, of which Defendants knew, or of which reasonable public officials

6 should have known, rendering Defendants liable to Plaintiffs under 42 U.S.C.

7 § 1983.

8

46. As a direct and proximate result of the unlawful actions of these

9 Defendants, Plaintiffs have suffered significant emotional and economic harm.

10

THIRD CAUSE OF ACTION

11

Violation of Cal. Constitution, Art. I, § 7; Cal. Civil Code §52.1

12 (Against Defendants Underwood, Hall and Sniff for injunctive relief only.)

13

47. Plaintiffs reallege and incorporate the foregoing paragraphs as if set

14 forth herein.

15

48. Defendants' actions described herein violated the rights of Plaintiffs

16 to equal protection of the laws under Article I, section 7 of the California

17 Constitution. Defendants deprived Plaintiffs of these rights through, among other

18 means, the threat of force and intimidation.

19

49. Defendants' use of threats, intimidation and coercion, as well as their

20 attempts to use threats, intimidation and coercion, to deprive Plaintiffs of the equal

21 protection of the laws violates Plaintiffs' rights under California Civil Code §52.1

22 to be free from such threats, intimidation and coercion in the exercise of rights

23 guaranteed to Plaintiffs by the United States and California Constitutions.

24

FOURTH CAUSE OF ACTION

25

Violation of Cal. Constitution, Art. I, § 13; Cal. Civil Code § 52.1

26 (Against Defendants Underwood, Hall and Sniff for injunctive relief only.)

27

50. Plaintiffs reallege and incorporate the foregoing paragraphs as if set

28 forth herein.

11

Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 14 of 21 Page ID #:67

1

51. Defendants' actions described herein violated the rights of Plaintiffs

2 to be free of unreasonable searches under Article I, section 13 of the California

3 Constitution. Defendants deprived Plaintiffs of these rights through, among other

4 means, the threat of force and intimidation.

5

52. Defendants' use of threats, intimidation and coercion, as well as their

6 attempts to use threats, intimidation and coercion, to gain compliance with, and

7 submission to Defendants' unlawful searches and seizures violated Plaintiffs'

8 rights under California Civil Code §52.1 to be free from such threats, intimidation

9 and coercion in the exercise of rights guaranteed to Plaintiffs by the United States

10 and California Constitutions.

11

FIFTH CAUSE OF ACTION

12

Declaratory Relief

13

53. Plaintiffs reallege and incorporate the foregoing paragraphs as if set

14 forth herein.

15

54. There is a real and actual controversy between Plaintiffs and

16 Defendants regarding whether Defendants may take actions as alleged herein.

17 Plaintiffs contend that Defendants have violated the Constitution and laws of the

18 United States and California. Plaintiffs anticipate that Defendants will deny these

19 contentions. Plaintiffs fear that they will again be subjected to such unlawful and

20 unconstitutional actions. They seek a judicial declaration that Defendants'

21 conduct has deprived, and continues to deprive, Plaintiffs of their rights under the

22 Constitution and laws of the United States.

23

PRAYER FOR RELIEF

24

55. Plaintiffs therefore respectfully request that the Court enter a

25 judgment including:

26

a. As to Defendants Hall and Sniff, an injunction prohibiting racial

27

profiling and the conduct of administrative searches as described herein;

28

b. As to Defendant Underwood, an injunction prohibiting the conduct of

12

Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 15 of 21 Page ID #:68

1

administrative searches as described herein;

2

c. To the extent the Court finds that state statutes and regulations

3

authorized Defendants' conduct, a declaration that those state statutes and

4

regulations are unconstitutional under the Fourth Amendment to the United

5

States Constitution.

6

d. As to the City of Moreno Valley, the County of Riverside, and

7

individual defendants sued in their individual capacities, compensatory

8

damages for violation of the laws and Constitution of the United States, in

9

an amount to be determined at trial;

10

e. Reasonable attorneys' fees and costs; and

11

f. All other appropriate relief as may be just and proper.

12
o 13 Dated: [fV\ U- d:1. J Clc'1
14 15 16 17

ACLU Foundation of Southern California
Seyfarth Shaw LLP
By ~-P~PB
Rishi Puri
.' BYP=et:eErB~i~b~rin~

18

Attorneys for Plaintiffs Kevon Gordon,

19

Ronald Jones, Raymond Barnes, and Quincy

Brown

20

21

22

23

24

25

26

27

28

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Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 16 of 21 Page ID #:69

1

PROOF OF PERSONAL SERVICE

2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

3

I am elnployed in the County of Los Angeles, State ofCalifomia. I am over the age of 18 and

4 not a party to the within action; my business address is 1313 West Eighth Street., Los Angeles, CA

5 90017.

6

On May 22, 2009, I served the foregoing document:

7

8

FIRST AMENDED COMPLAINT

9 personally on the parties in tlus action by delivering a true and correct copy of each document thereof

10 to:

SEE ATTACHED SERVICE LIST

11 [XX] BY FIRST CLASS MAIL: I am readily familiar with the business' practice of

12

collection and processing con'espondence for mailing with the United States Postal Service. Ilmow that 13

14 the con'espondence is deposited with the United States Postal Service on the same day this declaration

15 was executed in the ordinary course ofbusiness. I lmow that the envelope was sealed and, with postage

16 thereon fully prepaid, placed for collection and mailing on this date, following ordinary business

17 practices, in the United States mail at Los Angeles, California.

18

[XX] BY ELECTRONIC DELIVERY: bytransmitting a true and correct copy via electronic

19 mail, with prior advance permission ofcounsel, to the email addresses contained onthe attached service

20 list.

21

[XX] I am employed in the office of a member of the bar of the State of California at whose

22 direction service was made. 23 24 25
26
27
28

Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 17 of 21 Page ID #:70
SERVICE LIST
MICHAEL A. BELL, SBN 034900 LA FOLLETTE, JOHNSON, DEHAAS, FESLER & AMES A Professional Corporation 2280 Market Street, Suite 140 Riverside, CA 92501 Phone: (951) 275-9192 Fax: (951) 275-9249 Email: mbell@ljdfa.com
ROBERTD. HERRICK, SBN 100916 City Attorney, City of Moreno Valley ROBERT L. HANSEN, SBN 130677 Assistant City Attorney, City of Moreno Valley 14177 Frederick Street Moreno Valley, CA 92552 Phone: (951) 413-3000 Fax: (951) 413-3034 Email: Mr. Herrick - bobh@moval.org Email: Mr. Hansen - bobha@moval.org
TIMOTHY T. COATES, SBN 110364 GREINES, MARTIN, STEIN & RICHLAND, LLP 5900 Wilshire Boulevard, 12th Floor Los Angeles, CA 90036 Phone: (310) 859-7811 Fax: (310) 276-5261 Email: tcoates@gmsr.com
Attorneys for defendant City of Moreno Valley
JOHN M. PORTER, SBN 62427 LEWIS, BRISBOIS, BISGAARD & SMITH LLP 650 E. Hospitality Lane, Suite 600 San Bernardino, CA 92408 Phone: (909)387-1130 Fax: (909) 387-1138 Email: porter@lbbslaw.com
CHRISTOPHER D. LOCKWOOD, SBN 110853 ARIAS & LOCKWOOD 225 W. Hospitality Lane, Suite 314 San Bernardino, CA 92408 Phone: (909) 890-0125 Fax: (909) 890-0185 Email: christopher.lockwood@ariaslockwood.com
Attorneys for defedants Stan Sniff, Rick Hall and the County of Riverside

Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 18 of 21 Page ID #:71
EDMUND G. BROWN JR Attorney General of the State of California JAMES M. LEDAKIS Supervising Deputy Attorney General DIANE DE KERVOR, SBN 174721 Deputy Attorney General 110 West "A" Street, Suite 1100 San Diego, CA 92101 PO Box 85266 San Diego, CA 92186-5266 Phone: (619) 645-2611 Fax: (619) 645-2061 Email: diane.dekervor@doj.ca.gov
Attorneys for Defendant Kristy Underwood, Executive Officer of the California Board of Barbering & Cosmetology

Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 19 of 21 Page ID #:72
"
I •

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CASE NUMBER

PLAlNTIFF(S)

6]) CV 09-00688 SGL (SSx)

v.

CITY OF MORENO VALLE'1 (see attached list of Defendants)
DEFENDANT(S).

SUMMONS

~~« TO: DEFENDANT(S): ~S~ee~a~tt~a~c~~~~.=----________

A lawsuit has been filed against you.

Within 20 days after service of this summons on you (not counting the day you received it), you

must serve on the plaintiff an answer to the attached D complaint Ii

First

amended complaint

o counterclaim 0 cross-claim or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer

or motion must be served on the plaintiffs attorney, Peter Bibring

, whose address is

1313 W. 8th Street, Los Angeles, California, 90017

. If you fail to do so,

judgment by default will be entered against you for the relief demanded in the complaint. You also must file

your answer or motion with the court.

Dated: _ _ _MA_Y _ 22_-_ _ _ _ __

---+-~n.v___~~-~-~- TERRY NAFISI
Clerk, U.S. District Court By:

~~

[Use 60 days if the defendant is the United States or a United States agency, or is an officer or employee ofthe United States. Allowed

60 days by Rule 12(a)(3)}.

.

CV-01A (12/07)

SUMMONS

Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 20 of 21 Page ID #:73
#
~

1 PETER BffiRING (SBN 223981) Email: pbibring~aclu-sc.org

2 MARK ROSENBAUM (SBN 59940)

Email: mrosenbaum~aclu-sc.org

3 PETER J. ELIASBEItG (SBN 189110)

Email: peliasbergcmaclu-sc.org

4 ACLU FOUNDATION

OFSOUTHERNCALWORNIA 5 1313 West Eighth Street

6

Los Angeles, CA 90017 Telephone: (213) 977-9500

7 FacsImile: (213) 977-5297

8

STACY SHARTIN (SBN58281) Email: sshartin~seyfarth.com

9

RISHI PURl (SBN 252718) Email: rpuri@seyfarth.com

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10 11

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13

14

UNITED STATES DISTRICT COURT

15

CENTRAL DISTRICT OF CALIFORNIA

16

EASTERN DIVISION

17

18

19

KEVON GORDON, RONALD JONES, RAYMONJ)'BARNES,

20 QUINCY BROWN

21

Plaintiffs,

22

vs.

Case No. ED CV 09-00688 SGL (SSx)
FIRST AME~~OMPLAINT
~.~ . ~~~~~ FOR JURy TRIAL

23

CITY OF MORENO VALLEY, a Munici~l CorpJ)ration; COUNTY

'l>

24

OF RIVERSIDE; RICK HALL, CHIEF OF THE MORENO VALLEY

25

POLICE DEPARTMENT, in his official cllj)acity; KRISTY

26

UNDERWOOD, EXECUTIVE OFFICER OF THE CALWORNIA

27

BOARD OF BARBERING AND COSMETOLOGY, in her official

Assigned to: Judge Stephen G. Larson

28

capacity; STAN SNWF, RIVERSIDE COUNTY SHERIFF, in his official

capacity; TONY HEISTERBERG,

Case 5:09-cv-00688-JZ -SS Document 15 Filed 05/22/09 Page 21 of 21 Page ID #:74

1 DENNIS LONGDYKE, LORI

2

MILLER, ROBERT

DSEUTCHKHETATR,TMNAERTITO

HERRERA, ERIC BREWER,

3 ANTHONY JOHNSON,

CHRISTOPHER GASTINGER,

4 RICHARD HUTSON, JOE BROWN,

XOCHI CARMARGO, ARLENE

5 BAUBY, and DOES 1-20, in their

individual capacities,

6 Defendants.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 
 Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 1 of 30

1 ACLU FOUNDATION OF SOUTHERN CALIFORNIA
2 Peter Bibring (SBN 223981) pbibring@aclu-sc.org
3 Mark Rosenbaum (SBN 59940) mrosenbaum@aclu-sc.org
4 Peter J. Eliasberg (SBN 189110) peliasberg@aclu-sc.org
5 1313 West Eighth Street Los Angeles, California 90017
6 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
7
SEYFARTH SHAW LLP 8 Stacy Shartin (SBN 58281)
sshartin@seyfarth.com 9 Rishi Puri (SBN 252718)
rpuri@seyfarth.com 10 2029 Century Park East, Suite 3500
Los Angeles, California 90067-3021 11 Telephone: (310) 277-7200
Facsimile: (310) 201-5219
12
Attorneys for Plaintiffs 13 KEVON GORDON, RONALD JONES
and RAYMOND BARNES
14

15

UNITED STATES DISTRICT COURT

16

CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION

17 KEVON GORDON, RONALD JONES, ) Case No. ED CV 09-00688 SGL (SSx)

RAYMOND BARNES and QUINCY )

18 BROWN

) PLAINTIFFS’ OPPOSITION TO

Plaintiffs,

19

v.

) MOTION OF DEFENDANTS ) DENNIS LONGDYKE AND LORI ) MILLER TO DISMISS FIRST

20 CITY OF MORENO VALLEY; CITY ) AMENDED COMPLAINT

OF MORENO VALLEY POLICE )

21 DEPARTMENT; RICK HALL, CHIEF ) Judge:

Hon. Stephen G. Larson

OF THE MORENO VALLEY POLICE ) Courtroom: 1

22 DEPARTMENT, in his official

) Date:

Aug. 17, 2009

capacity; KRISTY UNDERWOOD, ) Time:

10:00 a.m.

23 EXECUTIVE OFFICER OF THE

)

CALIFORNIA BOARD OF

)

24 BARBERING AND COSMETOLOGY,)

in her official capacity; STAN SNIFF, )

25 RIVERSIDE COUNTY SHERIFF, in )

his official capacity; and DOES 1-20 )

26

Defendants.

) )

27

)

28

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 2 of 30

1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

3 I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

4 II. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

5 III. LEGAL STANDARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

6 IV. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

7

A. Plaintiffs Have Adequately Pleaded a Claim of Unlawful

Discrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

8

1. Defendants’ Discussion of Plaintiffs’ Claim as “Selective

9

Enforcement” Omits Key Allegations of Discrimination . . . . 8

10

2. Defendants’ Do Not Provide An Obvious Alternative

Explanation That Renders Plaintiffs’ Claim of

11

Discrimination Implausible . . . . . . . . . . . . . . . . . . . . . . . . . . 12

12 13 14 15
V. 16

3. The Factual Allegations of the FAC are More Than Sufficient to Render Plausible Plaintiffs’ Claim that Longdyke and Miller Acted With Discriminatory Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
B. Defendants Are Not Entitled To Qualified Immunity . . . . . . . . . . . 18 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

17

18

19

20

21

22

23

24

25

26

27

28

-i-

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 3 of 30

1

TABLE OF AUTHORITIES

2 FEDERAL CASES

Page(s)

3 Ashcroft v. Iqbal,

__ U.S. __, 129 S. Ct. 1937 (May 18, 2009) . . . . . . . . . . . . . . . . . . . passim

4

Bell Atlantic v. Twombly,

5

550 U.S. 544 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 12, 15

6 Bingham v. City of Manhattan Beach,

341 F.3d 939 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 21

7

Buckey v. County of Los Angeles,

8

968 F.2d 791 (9th Cir.1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

9 Byrd v. Maricopa County Sheriff's Department,

565 F.3d 1205 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

10

Conley v. Gibson,

11

355 U.S. 41 (1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

12 Estelle v. Gamble,

429 U.S. 97 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

13

Harlow v. Fitzgerald,

14

457 U.S. 800 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

15 Hope v. Pelzer,

536 U.S. 730 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

16

Kelley v. Borg,

17

60 F.3d 664 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

18 Lyons v. Busi,

566 F. Supp. 2d 1172 (E.D. Cal. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

19

Monteiro v. Tempe Union High Sch. District,

20

158 F.3d 1022 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

21 Moss v. U.S. Secret Service,

___ F.3d ___, 2009 WL. 2052985 (9th Cir. July 16, 2009) . . . . . . . . . . . . . 6

22

Scheuer v. Rhodes,

23

416 U.S. 232 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

24 Sun Savings & Loan Association v. Dierdorff,

825 F.2d 187 (9th Cir.1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

25

Tibbetts v. Kulongoski,

26

567 F.3d 529 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

27 United States v. City of Redwood City, 640 F.2d 963 (9th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
28

-ii-

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 4 of 30

1 United States v. Montero-Camargo,

208 F.3d 1122 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

2

Washington v. Davis,

3

426 U.S. 229 Ct. 2040, 48 L. Ed. 2d 597 (1976) . . . . . . . . . . . . . . . . . . . . . 8

4 Whren v. United States,

517 U.S. 806 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

5

STATE CASES

6

Chao v. Ballista,

7

2009 WL. 1910954 (D. Mass. July 1, 2009) . . . . . . . . . . . . . . . . . . 16, 17, 18

8 Padilla v. Yoo, 2009 WL. 1651273 (N.D. Cal. Jun. 12, 2009) . . . . . . . . . . . . . . . . . . . . . . . 7
9 STATUTES
10 Federal Rule of Civil Procedure 8(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
11 Prof. Code § 7350 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-iii-

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 5 of 30

1 I. INTRODUCTION

2

On April 2, 2008, Moreno Valley police officers and code inspectors,

3 accompanied by state agents charged with regulating barbering, conducted a series

4 of warrantless, racially targeted raids on local African American barbershops under

5 the guise of administrative business inspections. But the raids were far more

6 aggressive than anything necessary to check compliance with business or health

7 regulations. Armed and armored police officers stormed the shops and blocked

8 exits. While police and inspectors thoroughly searched the premises (including

9 areas where no barbering was performed) and questioned customers and barbers,

10 police conducted warrant checks and answered one barber who protested the

11 aggressive treatment by handcuffing him and placing him in the back of a police

12 car.

13

In the aftermath of these searches, the barbers wondered why they had been

14 targeted for such unusually aggressive raids. An explanation quickly became

15 apparent. In a city that is less than 20% African-American, five of the six

16 businesses raided on that day were owned and operated by African Americans,

17 patronized primarily by African American customers, and which served as social

18 centers for the African American community in Moreno Valley. This disparity

19 strongly suggests that that the defendants deliberately targeted African American

20 barbershops for such unusual treatment.

21

Plaintiffs, four barbers who were subjected to the raid-style “inspections” of

22 April 2, 2008, brought this action which, among other claims, seeks damages

23 against the officers involved for unreasonable intrusions under the Fourth

24 Amendment and race discrimination in violation of the Fourteenth Amendment.

25 Defendants Longdyke and Miller are two of the three code enforcement officers 26 who participated in these raids.1 Longdyke and Miller move to dismiss only

27
1 Plaintiffs’ original complaint named the code enforcement officers as Doe 28 defendants. Prior to the filing of the First Amended Complaint (“FAC”), attorneys

1

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 6 of 30

1 plaintiffs’ claim for unlawful discrimination under the Fourteenth Amendment, on

2 three grounds.

3

First, Longdyke and Miller argue that plaintiffs have failed to provide facts

4 that make their claim of race discrimination plausible. In doing so, however, they

5 wrongly characterize the gravamen of plaintiffs’ equal protection concern as being

6 that defendants “selectively enforced Moreno Valley’s business license inspection

7 ordinance.” Mot. 7:19-21. If plaintiffs have not pled facts to adequately support

8 that claim, it is because it is not the claim they make. Plaintiffs’ claim is, in fact,

9 that defendants targeted plaintiffs not for ordinary inspections, but for aggressive

10 and unlawful searches, on the basis of their race, and there are more than sufficient

11 factual allegations to render that claim plausible.

12

Second, Longdyke and Miller argue that the barbershops were likely

13 targeted not because they were African American owned and operated, but because

14 they were “social centers.” However, they fail to point to any reason that the

15 shops’ friendly atmosphere or conversation between customers and barbers would

16 violate any law or regulation, and they fail to explain why this rationale would

17 justify carrying out the inspections in an unlawfully aggressive manner.

18

Third, Longdyke and Miller suggest that the complaint lacks sufficient facts

19 to plausibly suggest discriminatory intent, as there is no allegation that they made

20 racial slurs or other overtly racist remarks. Here, defendants rely on the recent

21 Supreme Court opinion in Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949

22 (May 18, 2009), which held that a plaintiff had failed to allege facts that plausibly

23 supported his allegation of discriminatory intent by high-level government officials

24 in charge of the departments he alleged had discriminated against him. But unlike

25 the defendants in Iqbal, Longdyke and Miller are not high-level government

26 employees far removed from the acts at issue — they are the very officers who

27
for the City of Moreno Valley provided plaintiffs’ counsel with the names of the 28 officers involved.

2

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 7 of 30

1 performed the discriminatory acts. Their direct participation in the discriminatory

2 operation renders the allegation of discriminatory intent plausible.

3

Finally, Longdyke and Miller also argue that they are entitled to qualified

4 immunity. But at the time the raids occurred in 2008, it was clearly established

5 that law enforcement officers could not select targets for inspection, or for

6 unusually or unlawfully aggressive inspections that occurred in this case, on the

7 basis of race.

8

Longdyke and Miller’s challenges to the adequacy of plaintiffs’

9 discrimination claim fail, and plaintiffs respectfully request that the Court deny

10 their motion to dismiss.

11 II. STATEMENT OF FACTS

12

On April 2, 2008, MVPD officers and agents from the California Board of

13 Barbering and Cosmetology and the City of Moreno Valley Code and

14 Neighborhood Services Division conducted raid-like inspections of six

15 barbershops in the City of Moreno Valley. FAC ¶ 3. Despite the complete

16 absence of any physical threat and the peaceful nature of all previous health and

17 business inspections, the raiding party adopted an unusually aggressive approach.

18 FAC ¶¶ 3, 4. Five MVPD officers armed with handguns and wearing bulletproof

19 vests, three Board officers and three Code Enforcement inspectors rushed into the

20 two shops involved here, while MVPD officers blocked the front doorways. FAC

21 ¶¶ 24, 25. At one of these shops, a police officer guarded the back door with a

22 police car. FAC ¶ 24. For approximately one-half hour at each shop, the MVPD,

23 Code Enforcement, and Board officers conducted extensive searches and

24 questioned employees and customers. FAC ¶¶ 24, 25. The searches were more

25 extensive and intrusive than necessary to determine compliance with barbering or

26 business regulations, and the searches extended to areas where no barbering was

27 even performed. FAC ¶ 24. During the searches, MVPD officers followed Board

28

3

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 8 of 30

1 officers closely and looked in the drawers and cabinets as Board officers opened

2 them and searched their contents. FAC ¶ 24, 25.

3

During the searches, MVPD officers questioned employees and customers,

4 collected drivers’ licenses from them, and ran warrant checks on them. FAC ¶ 25.

5 When one of the plaintiffs expressed his objections to the searches, an MVPD

6 officer handcuffed him, took him to a police car in the parking lot, placed him

7 handcuffed in the back of the car, and told him they had found an outstanding

8 warrant. After about ten minutes, officers released him and allowed him back

9 inside the shop. Id.

10

Upon information and belief, this joint operation was initiated and

11 undertaken at the request of MVPD officers. FAC ¶ 3. MVPD officers had

12 searched one of the barbershops involved here twice over approximately the prior

13 six months. On both occasions, officers checked identification of customers and

14 barbers, and during at least one of these inspections, they ran warrant checks on

15 customers and barbers. FAC ¶¶ 26, 27. MVPD officers also took one of the

16 barbers to his residence, searched it with his consent, and returned him to the shop.

17 FAC ¶ 27. On the second of these prior occasions, a Code Enforcement officer

18 accompanied the MVPD officers and conducted a cursory visual inspection of the

19 shop. FAC ¶ 28. The MVPD used this agency inspection as an excuse once again

20 to collect identification from and run warrant checks on all the barbers, while

21 police and the Code Enforcement opened barbers’ drawers, cabinets and containers

22 and inspected inside. Id.

23

None of the searches involved here was conducted pursuant to a warrant.

24 FAC ¶¶ 23, 24, 26, 27. The FAC alleges that the inspections conducted at the

25 other African-American businesses on April 2, 2008 were conducted in a similarly

26 invasive and intrusive manner. FAC ¶ 29.

27

While there was no justification offered for the unprecedented display of

28 force and intense nature of the searches, one feature of the searches was obvious –

4

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 9 of 30

1 the searches showed a stark racial disparity. In a city that is less than 20% African 2 American, 2 five of the six of the barbershops searched on April 2, 2008, were

3 owned, operated and primarily frequented by African Americans. FAC ¶ 4. The

4 barbershops at issue here displayed magazines targeted to African Americans in

5 their lobbies, posters of model haircuts using all African American models, and

6 had art depicting African Americans on their walls. FAC ¶¶ 20, 21. One of the

7 establishments, Fades Unlimited, draws its name from a type of haircut popular

8 among African American men. FAC ¶ 21.

9

Plaintiffs’ shops were more than just legitimate, respected businesses; they

10 were social centers for the African American community. FAC ¶ 3. Many of the

11 clients at these business consisted of repeat customers who returned for their

12 haircuts every one to three weeks, so barbers and customers knew each other well.

13 The atmosphere in each shop was friendly – barbers, customers who were being

14 served, and those who were waiting all talked with one another about politics,

15 sports and current events. On weekends at the Hair Shack, customers often stayed

16 to socialize after their haircuts were finished, and long-time customers stopped by

17 to talk without getting a haircut at all. The Hair Shack also allowed customers to

18 play cards and dominoes in a back room not used for barbering. FAC ¶ 22.

19

Following the April 2, 2008, raids, there was an understandable outcry

20 among members of the community, leading to several media stories and a

21

22 2 According to the U.S. Census Bureau, Moreno Valley is 19.9% African American. See http://quickfacts.census.gov/qfd/states/06/0649270.html (last
23 visited June 22, 2009). This Court can take judicial notice of census data under Federal Rule of Evidence 201(b), because they are “not subject to reasonable
24 dispute” and are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” See United States v. Esquivel,
25 75 F.3d 545, 549 (9th Cir. 1996) (taking judicial notice of Hispanic demographics in Southern California); Cactus Corner v. Dept. of Agriculture, 346 F.Supp.2d
26 1075, 1098 (E.D. Cal. 2004) (“Public records, such as census data, is appropriate subject matter for judicial notice.”). “On a motion to dismiss a court may properly
27 look beyond the complaint to matters of public record and doing so does not convert a Rule 12(b)(6) motion to one for summary judgment.” Gemtel Corp. v.
28 Comm. Redev. Agency, 23 F.3d 1542, 1544 (9th Cir. 1994) (quotation omitted).

5

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 10 of 30

1 community meeting with the Mayor of Moreno Valley. FAC ¶ 30. In comments

2 to the media and to the public, the Mayor, City Council members, and defendant

3 MVPD Chief Hall defended the raids as legitimate law enforcement operations.

4 Id. Defendant Sheriff’s Department characterized the sweeps as a “City issue.” A

5 Code Enforcement official told members of the press his department would

6 conduct such sweeps in the future, saying, “This is not a one-time event,” and

7 characterized the joint operation as successful. Id. The FAC alleges that no action

8 has been taken to discipline officers and officials involved, to correct policies or

9 procedures that led to the searches, or to make clear to officers or to the

10 community that the searches were unlawful. Id.

11 III. LEGAL STANDARD

12

Federal Rule of Civil Procedure 8(a)(2) requires only that a complaint

13 contain “ ‘a short and plain statement of the claim showing that the pleader is

14 entitled to relief,’ in order to give the defendant fair notice of what the claim is and

15 the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555

16 (2007) (quotation and citation omitted).

17

In Twombly and more recently in Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct.

18 1937, 1949 (May 18, 2009), the Supreme Court addressed the pleading standards

19 under Rule 8, rejecting the oft-cited formulation of Conley v. Gibson, 355 U.S. 41,

20 45-46 (1957), that a motion to dismiss should be granted only if there is “no set of

21 facts on which plaintiff would be entitled to relief,” and instead requiring “that the

22 facts alleged in a complaint state a claim that is plausible on its face,” Moss v. U.S.

23 Secret Service, ___ F.3d ___, 2009 WL 2052985, 8 (9th Cir. July 16, 2009).

24

Iqbal and Twombly suggest a two-part approach in order to ensure that the

25 allegations of a complaint give rise to more than a “sheer possibility” of

26 wrongdoing. Iqbal, 129 S. Ct. at 1949–50. First, a court reviews the complaint

27 for any allegations of legal conclusions that “amount to nothing more than a

28 formulaic recitation of the elements” of the claim alleged, to which the court need

6

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 11 of 30

1 not give any deference. Id. at 1951. Next, the court examines the remaining

2 factual allegations, and, in doing so, “should assume their veracity and then

3 determine whether they plausibly give rise to an entitlement to relief.” Id. at 1950.

4 “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for

5 more than a sheer possibility that a defendant has acted unlawfully.” Id. at 1949.

6

Even under the newly articulated standards of Iqbal and Twombly, Rule 8

7 does not require “detailed factual allegations,” but requires only “more than an

8 unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,

9 __ U.S. __, 129 S. Ct. 1937, 1949 (May 18, 2009); see also Twombly, 550 U.S. at

10 563 (“a complaint must allege facts suggestive of illegal conduct”). As one federal

11 district court in California recently explained:

12

When the district court reviews the sufficiency of a complaint at the

13

procedural stage of a motion to dismiss, “before the reception of

14

any evidence either by affidavit or admissions, its task is necessarily

a limited one. The issue is not whether a plaintiff will ultimately

15

prevail but whether the claimant is entitled to offer evidence to

16

support the claims. Indeed it may appear on the face of the

17

pleadings that a recovery is very remote and unlikely but that is not

the test.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Therefore,
18
to survive a motion to dismiss, a plaintiff’s burden is limited to

19

setting forth factual allegations sufficient to “raise the right to relief

20

above the speculative level.” Twombly, 550 U.S. at 545. A plaintiff

21

need only plead “enough facts to raise a reasonable expectation that

discovery will reveal evidence.” Twombly, 550 U.S. at 556. That is,

22

a plaintiff must allege facts that, taken as true, are “suggestive of

23

illegal conduct.” Id. at 564 n. 8.

24
Padilla v. Yoo, 2009 WL 1651273, at *8 (N.D. Cal. Jun. 12, 2009).
25
Nothing in Iqbal or Twombly alters the longstanding rule that when a court
26
considers a motion to dismiss, it must construe all allegations of the complaint in
27
the plaintiff’s favor. Sun Savings & Loan Ass’n v. Dierdorff, 825 F.2d 187, 191
28

7

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 12 of 30

1 (9th Cir.1987). In particular, “[c]ivil rights complaints are to be liberally

2 construed.” Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir.1992). It

3 is only the extraordinary case in which dismissal under Rule 12(b)(6) is proper.

4 United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).

5
6 IV. ARGUMENT

7

A. Plaintiffs Have Adequately Pleaded a Claim of Unlawful

8

Discrimination.

In order to prevail on a claim of unlawful discrimination at trial, plaintiffs
9

must prove that defendants’ actions had a discriminatory impact and that the
10

discrimination was intentional. Washington v. Davis, 426 U.S. 229, 239-241, 96 .
11

Ct. 2040, 48 L. Ed.2d 597 (1976); Bingham v. City of Manhattan Beach, 341 F.3d
12

939, 948 (9th Cir. 2003). At the pleading stage, the Ninth Circuit has held that a
13

plaintiff must “allege facts that are at least susceptible of an inference of
14

discriminatory intent.” Byrd v. Maricopa County Sheriff’s Department, 565 F.3d
15

1205 (9th Cir. 2009) (quoting Monteiro v. Tempe Union High Sch. Dist., 158 F.3d
16

1022, 1026 (9th Cir. 1998)). This is consistent with the standard applied by the
17

Supreme Court in Iqbal, in which it held the complaint insufficient because it
18

lacked “any factual allegation sufficient to plausibly suggest petitioners’
19

discriminatory state of mind.” Iqbal, 129 S. Ct. at 1952.
20

21

1. Defendants’ Discussion of Plaintiffs’ Claim as “Selective Enforcement” Omits Key Allegations of Discrimination

22

The heart of plaintiffs’ complaint is that their barbershops were subjected to

23 a series of “raid-style searches” by a team of thirteen officers from three agencies

24 who stormed the barbershops, blocked exits, detained and interrogated customers

25 and barbers, ran warrant checks, and searched far beyond the extent necessary to

26 check compliance with health or business regulations. FAC ¶ 4, 24, 25.

27 Certainly, plaintiffs’ allege that the nature and extent of this warrantless intrusion

28

8

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1 violated the Fourth Amendment, and Longdyke and Miller do not challenge that

2 claim. See id. ¶¶ 42-46. But the nature and extent of the intrusion also justifies

3 plaintiffs’ Equal Protection claim that defendants subjected them to “unusually

4 aggressive” raids because of their race and the race of their co-workers and

5 customers. Id. ¶ 4, 36-41.

6

In arguing that the allegations of the complaint fall short of plausibly

7 alleging discrimination, Longdyke and Miller mischaracterize plaintiffs’ claim as

8 one of “selective enforcement.” See Mot. at 7:19-21 (“The gravamen of Plaintiffs’

9 equal protection claim against Officers Longdyke and Miller is that they

10 selectively enforced Moreno Valley’s business license inspection ordinance against

11 Plaintiffs because of their race.”); id. at 8:7-8 (“Plaintiffs repeatedly contend that

12 they were targeted for business licenses inspections because they and their clientele

13 are African-American.”). They paint a distorted picture of plaintiffs’ claim,

14 erroneously asserting that it arises solely from the fact that defendants selected

15 plaintiffs for ordinary business license inspections, not from the fact that

16 defendants targeted plaintiffs for these unusually aggressive searches.

17

However, the complaint could not be clearer that plaintiffs’ discrimination

18 claim is based not just on the fact of the searches, but on the unusually aggressive

19 manner in which they were executed. The complaint alleges:

20

Five of the six barbershops Defendants selected as targets for their

21

raid-style inspections on April 2, 2008, were owned, operated, and

22

primarily frequented by African Americans. This stark disparity and

23

the unusually aggressive conduct of the MVPD during the raid-style

24

inspections indicate that Defendants’ decision to target these

25

businesses in the manner they did was based, in part or in whole, on

26

the race of the barbers and their clientele.

27 FAC ¶ 4 (emphasis added). This unequivocal allegation and the emphasis

28 throughout the complaint on the aggressive manner in which the searches were

9

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 14 of 30

1 conducted gave defendants notice as to the nature of plaintiffs’ equal protection 2 claim. This Court should reject defendants’ distortion of the complaint.3

3

By asserting this cramped and inaccurate reading of plaintiffs’

4 discrimination claim, defendants ignore the most potent evidence of discrimination

5 in the complaint — the extraordinary nature of the raids to which plaintiffs were

6 subjected. Under the pretense that plaintiffs are complaining only about being

7 selected for ordinary business license inspections, Longdyke and Miller argue that

8 the mere fact that five of the six barbershops searched in one day of inspections

9 were owned and operated by African-Americans does not plausibly suggest that

10 the inspections were targeted based on race, and they build on this erroneous

11 argument by asserting plaintiffs’ focus on the single day of raids artificially 12 narrows the proper scope of comparison.4 See Mot. at 7, 9-10. If the only

13
3 Defendants may argue that some isolated references in the complaint to 14 plaintiffs’ discrimination claim could be interpreted as referring to a selective
enforcement claim, rather than a claim of unlawful treatment based on race. In 15 evaluating a motion to dismiss, a court reads the complaint “in the light most
favorable to the [plaintiff],” and “reads the complaint as a whole, … rather than 16 isolating allegations and taking them out of context.” In re Countrywide Financial
Corp. Securities Litigation, 588 F.Supp.2d 1132, 1145 (C.D. Cal. 2008); see also 17 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23 (2007) (holding
that in evaluating motion to dismiss securities fraud complaint for failure to 18 adequately plead facts supporting scienter, “[t]he inquiry…is whether all of the
facts alleged, taken collectively, give rise to a strong inference of scienter, not 19 whether any individual allegation, scrutinized in isolation, meets that standard”).
4 In support of this assertion, defendants cite United States v. Bourgeois, 964 20 F.2d 935 (9th Cir. 1992). As an initial matter, Bourgeois addresses the threshold
for obtaining discovery on selective enforcement in a criminal case, and holds little 21 value in deciding the completely different question of whether allegations of a civil
complaint state a claim. See Rodriguez v. California Highway Patrol, 89 22 F.Supp.2d 1131, 1141 (N.D. Cal. 2000) (distinguishing case law regarding
discovery on selective enforcement in criminal cases as irrelevant to evaluating 23 whether civil plaintiff had stated equal protection claim under Rule 8).
Even were the issues similar, Bourgeois is inapposite because the conduct 24 which the criminal defendant there complained was discriminatory — the
prosecution for federal firearms violations — occurred regularly, such that 25 consideration of racial disparities in the conduct across a longer time frame would
be more instructive than consideration of the disparities over the single day that 26 Bourgeois advocated. By contrast, here the very basis of plaintiffs’ claim is that
the overly aggressive treatment to which they were subjected during the 27 inspections of April 2, 2008 was unusual and completely unjustified; therefore, the
racial composition of the barbershops searched on that day is probative of 28 discrimination.

10

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1 discriminatory treatment plaintiffs alleged had been that they were visited by Code

2 Enforcement for ordinary inspection, Longdyke and Miller might rightly argue that

3 they could not allege discrimination on the basis of a single day’s inspections, and

4 must look to the pattern of ordinary Code Enforcement inspections over a longer

5 period of time. But plaintiffs focus on the single day of inspections because, as

6 alleged in the complaint, the businesses visited that day were subjected to

7 “unusually aggressive…raid-style inspections” — indeed, so aggressive as to 8 violate the Fourth Amendment.5 FAC ¶ 4.

9

Fairly reading plaintiffs’ discrimination claim to challenge the fact that

10 plaintiffs were selected for overly and unlawfully aggressive raids, there are ample

11 facts in the complaint to render their claim plausible. The complaint sets forth

12 sixteen paragraphs of detailed factual allegations describing an “unusually

13 aggressive” series of inspections, in which a total of thirteen agents stormed the

14 barbershops, including armed police wearing bulletproof jackets. FAC ¶¶ 24, 25.

15 Police blocked exits and monitored the back alley, while officers questioned

16 customers and barbers, and police took identification and ran warrant checks, and

17 when one barber complained about the searches, defendant police officers

18 handcuffed him and placed him in the back of a patrol car outside the barbershop.

19 Id. ¶ 25. The complainant alleges that the common characteristic among nearly all

20 of the barbershops subjected to the searches was race— five of the six shops

21 searched were owned and operated by African Americans with primarily African

22

23
5 Defendants also suggest that plaintiffs’ complaint fails because they do not 24 allege that plaintiffs treated non-African Americans differently. See Mot. at
11:13-12:1. But a fair reading of plaintiffs’ allegations that the raids were 25 “unusually aggressive” is that Code Enforcement did not treat any other
licensees in this fashion, and singled out plaintiffs for different treatment on 26 this occasion because of their race. See FAC ¶4 (“Th[e] stark disparity [in
the race of those target by the raids] and the unusually aggressive conduct of 27 the MVPD during the raid-style inspections indicate that Defendants’
decision to target these business in the manner they did was based, in part or 28 in whole, on the race of the barbers and their clientele.”).

11

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 16 of 30

1 American clientele, in a city where the African American population is less than

2 20%. Id. ¶¶ 4, 23, 29; see supra note 1 (describing census information). The

3 occurrence of such unusual inspections raises the question – what prompted

4 defendants to act differently in inspecting these businesses? The allegation that a

5 highly disproportionate number of African American businesses were inspected

6 renders more than plausible plaintiffs’ claim that the explanation for such disparate

7 treatment was racial animus. These allegations far surpass the minimal threshold

8 established in Iqbal that factual allegations need only be “sufficient to plausibly

9 suggest [defendants’] discriminatory state of mind.” Id. at 1949, 1952.

10

2. Defendants Do Not Provide An “Obvious Alternative Explanation”

11

That Renders Plaintiffs’ Claim of Discrimination Implausible

12

The Supreme Court in Iqbal and Twombly, in questioning the plausibility of

13 the claim raised by the allegations, placed great reliance on the existence of an

14 “obvious alternative explanation” that the Court reasoned was far more likely than

15 unlawful conduct to explain the facts set forth in the complaint. Iqbal, at 1951–52

16 (citing Twombly). In Twombly, the complaint of “parallel conduct” was not

17 plausible because the pricing alleged, while consistent with conspiracy, was “not

18 only compatible with, but indeed was more likely explained by, lawful,

19 unchoreographed free-market behavior.” Iqbal, 129 S. Ct. at 1950. Similarly, in

20 Iqbal, the Court stated that the higher proportion of Arab Muslims who were

21 detained by authorities after 9/11 was far less plausibly explained by

22 discrimination, as alleged by plaintiffs, than by the neutral, legitimate reason that a

23 higher proportion of Arab Muslims are related to Al Qaeda than people who are

24 not Arab Muslims. Id. at 1951–52. The Court concluded that “[a]s between the

25 ‘obvious alternative explanation’ for the arrests and the purposeful, invidious

26 discrimination respondent asks us to infer, discrimination is not a plausible

27 conclusion.” Id.

28

In their Motion, Longdyke and Miller do offer an alternative explanation,

12

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 17 of 30

1 but one that is far from “obvious.” Longdyke and Miller speculate that plaintiffs’

2 barbershops might have been subjected to these extraordinary, raid-style

3 inspections for the nondiscriminatory reason that, as the complaint alleges, the

4 businesses “were used by members of the African American community as social

5 centers,” and that the Hair Shack had previously “allowed customers to play cards

6 and dominoes in a back room not used for barbering.” Mot. At 10:16-11:11; FAC

7 ¶¶ 3, 22. Defendants assert that these allegations somehow demonstrate violations

8 of the barbering regulations or other laws that provide a more probable and race-

9 neutral reason for the inspections. This argument fails for two reasons.

10

First, nothing in the description of the barbershops as social centers reveals

11 anything approaching unlawful activity that would justify inspection. The FAC

12 states:

13

[B]arbers and customers [in the shops] knew each other well. The atmosphere in each place was friendly – barbers, customers who were being

14

served, and those who were waiting all talked with one another about politics, sports and current events. On weekends at the Hair Shack,

15

customers often remained to socialize after their haircuts were finished, and long-time customers would stop by to talk without getting a haircut at all.

16

Hair Shack also allowed customers to play cards and dominoes in a back room not used for barbering.

17 FAC ¶ 22. Defendants implausibly suggest that conversation between customers

18 and barbers, a “friendly” atmosphere, or even customers playing cards and

19 dominoes somehow constitutes unlawful use of the barbershop “for residential

20 purposes” or “other purpose that would tend to make the room unsanitary,

21 unhealthy, or unsafe, or endanger the health and safety of the consuming public.”

22 Bus. & Prof. Code § 7350. This suggestion is preposterous. Defendants offer

23 absolutely no reason why good conversation about sports, politics, or current

24 events, or a friendly game of cards or dominoes, would possibly constitute

25 unlawful conduct that would justify aggressive raids and searches of the

26 barbershops. Defendants offer no sensible explanation of why being a “social

27 center” might justify these unprecedented raids on plaintiffs’ barbershops, much

28

13

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 18 of 30

1 less an explanation so compelling as to render plaintiffs’ claim of discrimination

2 implausible.

3

Second, even if the social aspect of these African American barbershops

4 somehow justified a routine inspection to insure compliance with barbering or

5 business regulations, it would not explain why defendants did not simply conduct

6 such routine inspections, but instead subjected plaintiffs’ shops to raids so

7 aggressive as to be independently unlawful, as alleged in the complaint. As

8 explained above, it is not the mere fact that plaintiffs’ barbershops were inspected,

9 but the unusually (and indeed unlawfully) aggressive nature of the inspections that,

10 when taken together with the fact that five of the six business defendants raided

11 were African American, not only makes an inference of race discrimination

12 plausible, but makes race discrimination virtually the only explanation for

13 defendants’ misconduct.

14

3. The Factual Allegations of the FAC are More Than Sufficient to

Render Plausible Plaintiffs’ Claim that Longdyke and Miller

15

Acted With Discriminatory Intent

16

Longdyke and Miller argue that the complaint lacks facts that plausibly

17 show a discriminatory intent on their part as individual defendants. They reason

18 that “Plaintiffs specifically claim that Code Enforcement, MVPD and Board

19 supervisors made the decision to inspect Plaintiffs’ barbershops,” and that the

20 complaint lacks allegations that would demonstrate discriminatory animus in the

21 conduct of the raids, such as racial slurs or derogatory remarks. Mot. at 12-13.

22

Defendants’ argument again mischaracterizes the complaint. The complaint

23 does not allege that supervisors “made the decision” as to which businesses to

24 target. It merely alleges that supervisors “approved in advance the manner in

25 which the raids would be conducted, which businesses would be selected for raid,

26 or the manner in which businesses would be selected for raids.” FAC ¶ 35.

27 Approving the decision is not the same as making the decision, and it certainly is

28 not the same as carrying out the raids. This allegation does not suggest that

14

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 19 of 30

1 Longdyke and Miller, who did carry out the raids, did not participate in decisions

2 about what businesses to target or in what manner to conduct the raids, and it

3 certainly does not absolve them for “acting in conjunction” to execute the raids

4 “under the ruse of conducting ordinary health and business inspections.” FAC ¶ 3.

5

Longdyke or Miller suggest that there is no evidence of discriminatory

6 animus on their part because plaintiffs allege no act of overt racism, stating: “For

7 example, Plaintiffs do not claim that either Officer uttered a racial slur or made

8 derogatory remarks about a barbers’ or clientele’s race.” Mot. at 13:1-3.

9

Defendants in essence ask this Court to find that even where a complaint

10 describes a raid that, from the factual allegations, clearly appears unlawful in scope

11 and racially motivated, it is implausible to infer that any individual officers who

12 executed that search possessed discriminatory animus without some overt act of

13 racism or racially discriminatory remarks. Because clear evidence of intent is

14 often in defendants’ possession, such a rule would prevent plaintiffs from

15 challenging even obviously discriminatory actions in court. Iqbal is not so broad.

16

Both Twombly and Iqbal are clear that the plausibility standard does not

17 require a plaintiff to plead that defendants essentially admitted their discriminatory

18 intent. The Iqbal Court warned against reading the plausibility standard as “akin to

19 a ‘probability requirement,’” instead describing the threshold as “ask[ing] for more

20 than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S. Ct. at

21 1949. The Court also made clear that while plaintiffs must provide factual

22 allegations that support for the claims, “plausibility” may be based on the court’s

23 inferences from those facts: “A claim has facial plausibility when the plaintiff

24 pleads factual content that allows the court to draw the reasonable inference that

25 the defendant is liable for the misconduct alleged.” Id. To plead “enough facts to

26 state a claim to relief that is plausible on its face,” plaintiffs need only provide

27 sufficient facts to “nudge[] their claims across the line from conceivable to

28 plausible.” Twombly, 550 U.S. at 547; accord Iqbal, 129 S. Ct. 1950-51.

15

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 20 of 30

1

The Iqbal Court also recognized that “[d]etermining whether a complaint

2 states a plausible claim for relief will . . . be a context-specific task that requires the

3 reviewing court to draw on its judicial experience and common sense.” Iqbal, 129

4 S. Ct. at 1950; accord Chao v. Ballista, 2009 WL 1910954, at *4 (D. Mass. July 1,

5 2009) (describing evaluation of plausibility under Iqbal as a “highly contextual

6 enterprise — dependent on the particular claims asserted, their elements, and the

7 overall factual picture alleged in the complaint”). The context in Iqbal was highly

8 unusual — there, the plaintiff was one of more than 1,000 people detained by

9 federal law enforcement in the wake of the terrorist attacks of September 11, 2001

10 on suspicion of links to the attacks or to terrorism in general, and one of a much

11 smaller subset of those detainees deemed to be of “high interest” and detained

12 under “restrictive conditions designed to prevent them from communicating with

13 the outside world.” Iqbal, 129 S. Ct. at 1943. Before the Court were Iqbal’s

14 claims against FBI director Robert Mueller and Attorney General John Ashcroft

15 that they had subjected him to these conditions of detention because of his race and

16 religion. “Ever-present in the majority’s opinion was the fact that these high-

17 ranking officials faced an unprecedented attack on American soil, ‘perpetrated by

18 19 Arab Muslim hijackers.’” Chao, 2009 WL 1910954, at *4 (quoting Iqbal, 129

19 S. Ct. at 1951). The Court observed that because the 9/11 terrorists, and the bulk

20 of the group Al Qaeda to which they belonged, were Arab Muslim, “[i]t should

21 come as no surprise that a legitimate policy directing law enforcement to arrest and

22 detain individuals because of their suspected link to the attacks would produce a

23 disparate, incidental impact on Arab Muslims, even though the purpose of the

24 policy was to target neither Arabs nor Muslims.” Iqbal, 129 S. Ct. at 1951.

25 Considering this explanation of the facts of the complaint, the Court found the

26 claim that the allegations demonstrated discriminatory intent implausible. Id. at

27 1951-52.

28

16

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1

As one court has noted, “Plausibility, in this view, is a relative measure. . . .

2 Th[e] analysis depends on the full factual picture, the particular cause of action,

3 and the available alternative explanations.” Chao, 2009 WL 1910954, at *5. The

4 nature of the complaint before this Court is dramatically different from that in

5 Iqbal: here, plaintiffs allege unjustified raids by local law enforcement officials

6 that — due to their unusually aggressive nature, the fact they were overwhelming

7 targeted at African American barbershops, and the lack of an “obvious alternative

8 explanation” for their unusually aggressive nature — suggest discrimination as a

9 more than plausible explanation for the raids, particularly on the part of the officers

10 who executed the raids, including Longdyke and Miller.

11

Unlike defendants John Ashcroft and Robert Mueller in Iqbal, Longdyke

12 and Miller are not “the Nation’s top law enforcement officers,” Iqbal, 129 S. Ct. at

13 1952, appointed officials far-removed from the actions at issue in the case, but

14 rather are the very officers who the complaint alleges performed the discriminatory

15 actions in question. FAC ¶¶ 24, 25, 28. Indeed, plaintiffs specifically allege that

16 the Code Enforcement officers, including Longdyke and Miller, were directly

17 involved by acting “in conjunction” with MVPD officers and Board agents to

18 perform the “unusually aggressive” raids “under the ruse of conducting ordinary 19 health and business inspections.”6 FAC ¶ 3. These actors were not acting under

20 any exigencies at all, and certainly not exigencies comparable to those created by

21 9/11. Nor have defendants here offered a plausible “alternative explanation,”

22 much less an obvious one, that would provide a neutral nondiscriminatory reason

23 that they subjected a disproportionate number of African American barbershops to

24 these extraordinarily intrusive actions. Given the “context-specific” nature of the

25 plausibility evaluation, application of “judicial experience and common sense” to

26
6 Even if Longdyke and Miller, as civilians, did not behave in an unusually 27 aggressive manner, the fact that they officer in these coordinated, multiagency
raids behaved in such an unusually aggressive manner suggests the entire 28 operation, in which they were an integral part, was based on discriminatory motive.

17

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 22 of 30

1 the allegations of discriminatory intent of this case compels a different conclusion

2 than that the Court reached on the facts of Iqbal. Iqbal, 129 S. Ct. at 1950.

3

Plaintiffs’ allegations meet Iqbal’s requirements. Even after Iqbal, “a

4 complaint should only be dismissed at the pleading stage where the allegations are

5 so broad, and the alternative explanations so overwhelming, that the claims no

6 longer appear plausible.” Chao, 2009 WL 1910954, at *5. The allegations that

7 Longdyke and Miller participated in the discriminatory acts, specifically acting in

8 concert with members of other agencies to conduct the searches in an unlawfully

9 aggressive manner that targeted African-American owned businesses, easily

10 constitute “factual allegation[s] sufficient to plausibly suggest petitioners’

11 discriminatory state of mind,” Iqbal, 129 S. Ct. at 1952, or to “nudge[]” plaintiffs’

12 claims that defendants acted from discriminatory animus “across the line from

13 conceivable to plausible.” Iqbal, 129 S. Ct. at 1950-51. Plaintiffs’ claim of

14 discrimination is therefore well pleaded under Rule 8, and defendants’ motion to

15 dismiss should be denied.

16

B. Defendants Are Not Entitled To Qualified Immunity

17

Qualified immunity protects government officials from “liability for civil

18 damages insofar as their conduct does not violate clearly established statutory or

19 constitutional rights of which a reasonable person would have known.” Tibbetts v.

20 Kulongoski, 567 F.3d 529, 535 (9th Cir. 2009) (quoting Harlow v. Fitzgerald, 457

21 U.S. 800, 818 (1982)). Defendants Longdyke and Miller seek qualified immunity

22 on grounds that, “[w]hile it may have been apparent at that time that local

23 governments may not selectively enforce the law against certain citizens because

24 of their race, it certainly was not clear that law enforcement actions conducted on a

25 single day which disproportionately affect persons of a particular class could, in

26 and of themselves, constitute an equal protection violation.” Mot. At 14:11-16.

27 This argument suffers from two problems, each of them fatal.

28

18

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 23 of 30

1

First, Longdyke and Miller define the right at issue too narrowly, as the right

2 to be free of “law enforcement actions conducted on a single day which

3 disproportionately affect persons of a particular class.” Id. As the Supreme Court

4 has explained:

5

For a constitutional right to be clearly established, its contours must

6

be sufficiently clear that a reasonable official would understand that

7

what he is doing violates that right. This is not to say that an official

8

action is protected by qualified immunity unless the very action in

9

question has previously been held unlawful, but it is to say that in the

10

light of pre-existing law the unlawfulness must be apparent.

11 Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citations and quotations omitted). In

12 Hope, the Supreme Court rejected the notion that for a right to be clearly

13 established, there must be “fundamentally” or “materially” similar cases on the

14 books, and held that the law is clearly established when “the state of the law

15 [gives] [officers] fair warning” that their actions are unconstitutional. Hope, 536

16 U.S. at 741; see also Lyons v. Busi, 566 F.Supp.2d 1172, 1190 (E.D. Cal. 2008)

17 (“When identifying the right allegedly violated, the court must define the right

18 more narrowly than the constitutional provision guaranteeing the right, but more

19 broadly than the factual circumstances surrounding the alleged violation.”). Under

20 this rule, “officials can still be on notice that their conduct violates established law

21 even in novel factual circumstances.” Id.

22

For example, in Kelley v. Borg, 60 F.3d 664 (9th Cir. 1995), plaintiff sued

23 prison officials for violations of the Eighth Amendment based on their failure to

24 remove him from his cell after he complained of fumes entering through the air

25 ducts, causing him to lose consciousness. The prison officials argued that they

26 were entitled to qualified immunity because plaintiff did not have a clearly

27 established right “for defendant correctional officers to immediately remove him

28 from his cell in the Security Housing Unit during a lock down, when they first

19

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 24 of 30

1 were required to at least inform their superior officer that they needed to remove an

2 inmate, be it any inmate, from his cell.” Id. at 667. The Ninth Circuit held that the

3 defendants “misapprehend[ed] the level of generality at which a law must be

4 clearly established,” reasoning that while the inquiry was more particularized than

5 whether “the Eighth Amendment generally is clearly established,” the proper

6 question was whether “Eighth Amendment rights in the prison medical context are

7 clearly established.” Id. (quotations and citations omitted). The Court held the that

8 the right was clearly established by the standard for Eighth Amendment violations

9 in the prison medical context — that prisoners have a right to officials who are not

10 “deliberately indifferent to serious medical needs.” Estelle v. Gamble, 429 U.S. 97,

11 106 (1976) — and that “[t]o hold that the magistrate judge should have defined the

12 right at issue more narrowly, and included all the various facts that Appellants

13 recited in their proposed definition, would be to allow Appellants, and future

14 defendants, to define away all potential claims.” Kelley, 60 F.3d at 667.

15

Longdyke and Miller’s argument suffers from a second, fatal flaw: by

16 suggesting the law was not clear whether “law enforcement actions conducted on a

17 single day which disproportionately affect persons of a particular class” worked a

18 constitutional violation, defendants confuse the right at issue (to be free from

19 intentional racial discrimination in law enforcement actions) with the evidence

20 required to prove a violation of that right (racial disparities that give rise to an

21 inference of discriminatory intent). It is the legal right that must be clearly

22 established under Hope and other case law, not the particular evidence required to

23 prove a violation of that right.

24

Properly framed, the inquiry for qualified immunity is whether, at the

25 time of the raids in 2008, defendants were on “fair notice” that they would

26 violate the equal protection clause if they intentionally selected subjects for

27 inspection, or for unlawfully aggressive searching or detention during

28 inspection, on the basis of the subjects’ race. It is beyond question that in the

20

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 25 of 30

1 light of case law, the unlawfulness of such racially motivated law

2 enforcement action was apparent. See, e.g., Whren v. United States, 517

3 U.S. 806, 813 (1996) (“[T]he Constitution prohibits selective enforcement of

4 the law based on considerations such as race.”); Bingham v. City of

5 Manhattan Beach 341 F.3d 939, 948 (9th Cir. 2003) (noting that for driver

6 to succeed on equal protection claim that police officer unlawfully pulled

7 him over because of his race, he must prove that officer “acted in a 8 discriminatory manner and that the discrimination was intentional”); 7 see

9 also United States v. Montero-Camargo, 208 F.3d 1122, 1135 (9th Cir.

10 2000) (holding, based partly on Equal Protection values, that for purposes of

11 border patrol enforcement, “Hispanic appearance is, in general, of such little

12 probative value that it may not be considered as a relevant factor where

13 particularized or individualized suspicion is required”).

14

Defendants were therefore on fair notice that the discrimination

15 alleged was unlawful and are not entitled to qualified immunity.

16

17 7 See also Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 212-14 (5th Cir. 2009) (applying same standard as articulated in Birmingham to law enforcement raid on
18 nightclubs); Flowers v. Fiore, 359 F.3d 24, 34-45 (1st Cir. 2004) (applying same standard to discriminatory vehicle stops and arrests); Chavez v. Illinois State
19 Police, 251 F.3d 612, 635 (7th Cir. 2001) (holding that use of “impermissible racial classifications in determining whom to stop, detain, and search” would
20 violate the Equal Protection clause, and applying same standard as Bingham); Johnson v. Crooks, 326 F.3d 995, 999-1000 (8th Cir. 2003) (applying same
21 standard to discriminatory vehicle stops); Bradley v. United States, 299 F.3d 197, 205 (3rd Cir. 2002) (applying same standard as in Bingham to claim of
22 discriminatory airport searches); Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir. 2000) (applying same standard to discriminatory stops by police); United
23 States. v. Avery, 137 F.3d 343 (6th Cir. 1997) (holding clearly established law under Fourteenth Amendment “protects citizens from police action, including the
24 decision to interview an airport patron, based solely on impermissible racial considerations”); Swint v. City of Wadley, 51 F.3d 988, 1000 (11th Cir. 1995)
25 (applying same standard to affirm denial of qualified immunity raised by officer and police chief in a law enforcement raid on African American-owned
26 nightclubs). In determining whether a right is “clearly established,” this Court may look
27 unpublished decisions, the law of other circuits, and district court opinions, in addition to Ninth Circuit precedent. Prison Legal News v. Lehman, 397 F.3d 692,
28 701-02 (9th Cir. 2005); Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir.2002).

21

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 26 of 30

1 V. CONCLUSION

2

For the foregoing reasons, plaintiffs respectfully request that the Court deny

3 the Motion to Dismiss by defendants Longdyke and Miller.

4

5 Dated: Aug. 3, 2009
6 7

ACLU FOUNDATION OF SOUTHERN CALIFORNIA By \s\ Peter Bibring________________
Peter Bibring

8

SEYFARTH SHAW LLP

9

By \s\ Stacy Shartin________________

Stacy Shartin

10

Attorneys for Plaintiffs

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

22

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 27 of 30

1

PROOF OF SERVICE

2 STATE OF CALIFORNIA

)

) ss

3 COUNTY OF LOS ANGELES )

4

I am a resident of the State of California, over the age of eighteen years, and

not a party to the within action. My business address is Seyfarth Shaw LLP, 5 2029 Century Park East, Suite 3500, Los Angeles, California 90067-3021. On

August 3, 2009, I served the within documents:
6

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS FIRST 7 AMENDED COMPLAINT OF DEFENDANTS DENNIS LONGDYKE

AND LORI MILLER
8

by placing the document(s) listed above in a sealed envelope with postage

 9

thereon fully prepaid, in the United States mail at Los Angeles, California

addressed as set forth below.

10

by personally delivering the document(s) listed above to the person(s) at

 11

the address(es) set forth below.

12

by placing the document(s) listed above, together with an unsigned copy

 13

of this declaration, in a sealed Federal Express envelope with postage paid on account and deposited with Federal Express at Los Angeles,

14

California, addressed as set forth below.

 15

by transmitting the document(s) listed above, electronically, via the email addresses set forth below.

16

 17

electronically by using the Court’s ECF/CM System.

18

SEE ATTACHED ADDRESSEE LIST

19
I am readily familiar with the firm’s practice of collection and processing 20 correspondence for mailing. Under that practice it would be deposited with the
U.S. Postal Service on that same day with postage thereon fully prepaid in the 21 ordinary course of business. I am aware that on motion of the party served, service
is presumed invalid if postal cancellation date or postage meter date is more than 22 one day after the date of deposit for mailing in affidavit.

23

I declare under penalty of perjury under the laws of the State of California

that the above is true and correct.

24

Executed on August 3, 2009, at Los Angeles, California.

25

26

s/ Christian Lebano

Christian Lebano

27

28
LA1 6887954.1

23
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS FAC OF DEFENDANTS LONGDYKE AND MILLER Case No. ED CV 09-00688 SGL (SSx)

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 28 of 30

1

ADDRESSEE LIST

2 (Counsel for Defendant City of Moreno Valley)

3 1.
4
5
6
2.
7
8

Robert D. Herrick City Attorney, City of Moreno Valley Robert L. Hansen Assistant City Attorney, City of Moreno Valley 14177 Frederick Street Moreno Valley, CA 92552 Timothy T. Coates Greines, Martin, Stein & Richland, LLP 5900 Wilshire Boulevard, 12th Floor Los Angeles, CA 90036

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
LA1 6887954.1

24
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS FAC OF DEFENDANTS LONGDYKE AND MILLER Case No. ED CV 09-00688 SGL (SSx)

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 29 of 30

1

PROOF OF SERVICE

2 STATE OF CALIFORNIA

)

) ss

3 COUNTY OF LOS ANGELES )

4

I am a resident of the State of California, over the age of eighteen years, and

not a party to the within action. My business address is Seyfarth Shaw LLP, 5 2029 Century Park East, Suite 3500, Los Angeles, California 90067-3021. On

August 3, 2009, I served the within documents:
6

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS FIRST 7 AMENDED COMPLAINT OF DEFENDANTS DENNIS LONGDYKE

AND LORI MILLER
8

by placing the document(s) listed above in a sealed envelope with postage

 9

thereon fully prepaid, in the United States mail at Los Angeles, California

addressed as set forth below.

10

by personally delivering the document(s) listed above to the person(s) at

 11

the address(es) set forth below.

12

by placing the document(s) listed above, together with an unsigned copy

 13

of this declaration, in a sealed Federal Express envelope with postage paid on account and deposited with Federal Express at Los Angeles,

14

California, addressed as set forth below.

 15

by transmitting the document(s) listed above, electronically, via the email addresses set forth below.

16

 17

electronically by using the Court’s ECF/CM System.

18

SEE ATTACHED ADDRESSEE LIST

19
I am readily familiar with the firm’s practice of collection and processing 20 correspondence for mailing. Under that practice it would be deposited with the
U.S. Postal Service on that same day with postage thereon fully prepaid in the 21 ordinary course of business. I am aware that on motion of the party served, service
is presumed invalid if postal cancellation date or postage meter date is more than 22 one day after the date of deposit for mailing in affidavit.

23

I declare under penalty of perjury under the laws of the State of California

that the above is true and correct.

24

Executed on August 3, 2009, at Los Angeles, California.

25

26

s/ Christian Lebano

Christian Lebano

27

28
LA1 6887954.1

25
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS FAC OF DEFENDANTS LONGDYKE AND MILLER Case No. ED CV 09-00688 SGL (SSx)

Case 5:09-cv-00688-SGL-SS Document 60 Filed 08/03/2009 Page 30 of 30

1

ADDRESSEE LIST

2 (Counsel for Defendants Stan Sniff, Rick Hall, and the County of Riverside)

3 1.
4
5
2.
6
7

John M. Porter Lewis, Brisbois, Bisgaard & Smith LLP 650 E. Hospitality Lane, Suite 600 San Bernardino, CA 92408 Christopher Lockwood Arias & Lockwood 225 W. Hospitality Lane, Suite 314 San Bernardino, CA 92408

8 (Counsel for Defendant City of Moreno Valley)

9 3.
10
11
4.
12
13
14

Michael A. Bell La Follette, Johnson, Dehaas, Fesler & Ames 2280 Market Street, Suite 140 Riverside, CA 92501 Robert D. Herrick City Attorney, City of Moreno Valley Robert L. Hansen Assistant City Attorney, City of Moreno Valley 14177 Frederick Street Moreno Valley, CA 92552

15 5. Timothy T. Coates

Greines, Martin, Stein & Richland, LLP

16

5900 Wilshire Boulevard, 12th Floor

Los Angeles, CA 90036
17

(Counsel for Defendant Kristy Underwood)
18

6. Edmund G. Brown, Jr.

19

Attorney General of the State of California

James M. Ledakis

20

Supervising Deputy Attorney General

Diane De Kervor

21

Deputy Attorney General

110 West A Street, Suite 110

22

San Diego, CA 92101

P.O. Box 85266

23

San Diego, CA 92186-5266

24 (Co-Counsel for Plaintiffs)

25 7.
26 27 28

Peter Bibring Mark Rosenbaum Peter J. Eliasberg ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017
26

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS FAC OF DEFENDANTS LONGDYKE AND MILLER Case No. ED CV 09-00688 SGL (SSx)

LA1 6887954.1

 
 Case 5:09-cv-00688-SGL-SS Document 65 Filed 08/10/2009 Page 1 of 13

l LA FOLLETTE" JOHNSON, DEHAAS, FESLER & AMES Michael A. Bell (SBN 034900)
2 MBell@jdfa.com A ProfessIOnal Corporation
3 2280 Market Street, Suite 140 Riverside, CalifornIa 92501
4 Telephone: (951) 275-9192 Facslffiile: (951) 275-9249
5 CITY ATTORNEY, CITY OF MORENO VALLEY
6 Robert D. Herrick (SBN 100916) bobh@mova1.org ..
7 ASSIS'rANT CITY ATTORNEY, CITY OF MORENO VALLEY Robert L. Hansen (SBN 130677)
8 bobha@mova1.org 14177 Frederick Street
9 Moreno Valley, CA 92552 Telephone: (951) 413-3000
10 Facslffiile: (951) 413-3034

11 GREINES, MARTIN, STEIN & RICHLAND LLP Timothy T. Coates (SBN 11 0364)
12 TCoates@gmsr.com Michael Aiithony Brown (SBN 243848)
13 TBrown@gmsr.com 5900 Wilsnire Boulevard, 12th Floor
14 Los Angeles, California 90036 Telephone: (310) 859-7811
15 Facslffiile: (310) 276-5261

16 Attorneys for Defendants Dennis Longdyke and Lori Miller
17

18 UNITED STATES DISTRICT COURT
19 CENTRAL DISTRICT OF CALIFORNIA
20 EASTERN DIVISION
21

22 KEVON GORDON et at.

Case No. ED CV 09-00688 SGL (SSx)

23

Plaintiffs,

24 v.

25 CITY OF MORENO VALLEY et at.,

26

Defendants.

27

28

REPLY OF DEFENDANTS DENNIS LONGDYKE AND LORI MILLER IN SUPPORT OF THEIR MOTION TO DISMISS FIRST AMENDED COMPLAINT UNDER FRCP 12(b)(6) Judge: Hon. Stephen G. Larson Place: Courtroom 1 D.ate: August 17, 2009 TIme: 10:00 a.ill.

REPLY OF DEFENDANTS LONGDYKE AND MILLER IN SUPPORT OF THEIR MOTION TO DISMISS

Case 5:09-cv-00688-SGL-SS Document 65 Filed 08/10/2009 Page 2 of 13

1 I. INTRODUCTION

2

Plaintiffs ask this Court to go forward on an equal protection claim against

3 Moreno Valley Code Enforcement Officers Dennis Longdyke and Lori Miller

4 based on no more than allegations that those Officers were present at

5 administrative inspections, during which officers from the Moreno Valley Police

6 Department ("MVPD") acted in what Plaintiffs characterize as an "unusually

7 aggressive" manner. The Court should not let this happen.

8

Plaintiffs' First Amended Complaint ("Complaint" or "FAC") fails to allege

9 that others similarly situated were treated differently or to state facts that plausibly

10 establish Officers Longdyke and Miller acted with discriminatory intent. Doing so

11 isn't necessary, Plaintiffs argue, because the inspections involved only African

12 American businesses and were "unusually aggressive." But this argument suffers

13 from several fatal flaws, including that: (i) the Complaint never actually alleges

14 the Officers acted aggressively during the inspections; (ii) the Complaint's narrow

15 focus on six inspections conducted on a single day is legally inadequate to

16 establish dissimilar treatment or intent; (iii) allegations about the MVPD's

17 behavior, however aggressive, cannot establish the Officers' discriminatory intent;

18 and (iv) the Officers' alleged behavior is consistent with lawful conduct.

19

Plaintiffs' allegations boil down to a charge that the administrative

20 inspections were conducted unlawfully, and a suspicion that the inspections were

21 conducted this way because Plaintiffs are African American. But, absent

22 allegations that inspections at non-African American barber shops either did not

23 occur or did occur but were conducted differently, Plaintiffs' contention about the

24 unreasonableness ofthe inspections is insufficient to raise an inference of racial

25 discrimination or state an equal protection claim. Bingham v. City ofManhattan

26 Beach, 341 F.3d 939, 948 (9th Cir. 2003) ("Essentially, Bingham argues that[,]

27 because he is African-American, the officer is white, and they disagree about the

28 reasonableness ofthe traffic stop, these circumstances are sufficient to raise an

REPLY OF DEFENDANTS LONGDYKE AND MILLER IN SUPPORT OF THEIR MOTION TO DISMISS

Case 5:09-cv-00688-SGL-SS Document 65 Filed 08/10/2009 Page 3 of 13

1 inference of racial discrimination. We disagree that this is sufficient to state an

2 equal protection claim.").

3

Even if the Court finds Plaintiffs' Complaint does state an equal protection

4 claim, the Officers are entitled to qualified immunity because the conduct

5 alleged-unnecessarily broad administrative inspections conducted at mostly

6 African American businesses in a single day-was not "clearly prohibited" at the

7 time of the inspections.

8

For these reasons-and because the Opposition indicates Plaintiffs intend to

9 proceed exclusively under their novel, though legally invalid, equal protection

10 theory-Officers Longdyke and Miller ask the Court to dismiss Plaintiffs' equal

11 protection claim with prejudice.

12

13 II. PLAINTIFFS DO NOT STATE AN EQUAL PROTECTION CLAIM

14 A. Plaintiffs Do Not Allege Dissimilar Treatment.

15

The Equal Protection clause of the 14th Amendment "is essentially a

16 direction that all persons similarly situated should be treated alike." City of

17 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed.

18 2d 786 (1985). That is why, to properly plead an equal protection claim against

19 Officers Longdyke and Miller, Plaintiffs must allege that other Moreno Valley

20 barber shops were either not subject to, or not subject to the same treatment

21 during, administrative inspections conducted by those Officers. Freeman v. City

22 ofSanta Ana, 68 F.3d 1180, 1188 (9th Cir. 1995).

23

This the Complaint simply fails to do. As Officers Longdyke and Miller

24 demonstrated in their Motion, the Complaint nowhere alleges that they did not

25 conduct inspections at non-African American barber shops, or that the Officers

26 treated non-African American barbers any differently during business inspections.

27 See Mot. 9-10, 11. And nowhere in their Opposition do Plaintiffs identify any

28 such allegations in the Complaint. "[D]iscrimination cannot exist in a vacuum; it

2
REPLY OF DEFENDANTS LONGDYKE AND MILLER IN SUPPORT OF THEIR MOTION TO DISMISS

Case 5:09-cv-00688-SGL-SS Document 65 Filed 08/10/2009 Page 4 of 13

1 can be found only in the unequal treatment of people in similar circumstances."

2 United States v. Aguilar, 883 F.2d 662,706 (9th Cir. 1989) (internal quotation

3 marks omitted). Because the Complaint identifies no group to whom the Plaintiffs

4 can be compared to establish dissimilar treatment, Plaintiffs fail to make out one

5 of the elements of their claim. Id.

6

Census data concerning Moreno Valley's racial make-up cannot properly be

7 used to show dissimilar treatment, as Plaintiffs suggest. See Opp. 5:1-3,

8 11 :19-12:7. Doing so would be tantamount to comparing the plaintiff barbers to

9 all other residents of Moreno Valley. But the appropriate "control group" in this

10 case includes only others "similarly situated," i.e., Moreno Valley barbers, who

11 were treated differently. And the Complaint lacks any such allegations.

12

Finally, to the extent Plaintiffs's claim is based on allegations that five of

13 the six barber shops inspected on April 2, 2008, were owned and patronized by

14 African Americans, it fails because the time period involved is too limited to

15 establish dissimilar treatment. See United States v. Bourgeois, 964 F.2d 935, 936-

16 37 (9th Cir. 1992). As Officers Longdyke acknowledged in their Motion,

17 Bourgeois concerns the showing a criminal defendant must make to obtain

18 discovery on a selective enforcement defense. See Mot. 9. But this fact alone

19 does not make Bourgeois completely "inapposite" here, as Plaintiffs argue. Opp.

20 10 n.4. As the Ninth Circuit noted in Bourgeois, "selective prosecution claims are

21 evaluated 'according to ordinary equal protection standards.'" Id. at 938 (quoting

22 United States v. Wayte, 470 U.S. 598, 608-09, 105 S. Ct. 1524, 1531-32, 84 L.

23 Ed.2d 547 (1985)). Furthermore, the "colorable basis" standard applied in

24 Bourgeois is similar to, though somewhat more stringent than, the "plausibility"

25 standard required by Ashcroft v. Iqbal. Compare id. at 939 ("We hold that to

26 obtain discovery on a selective prosecution claim, a defendant must present

27 specific facts, not mere allegations, which establish a colorable basis for the

28 existence of both discriminatory application of a law and discriminatory intent on

3
REPLY OF DEFENDANTS LONGDYKE AND MILLER IN SUPPORT OF THEIR MOTION TO DISMISS

Case 5:09-cv-00688-SGL-SS Document 65 Filed 08/10/2009 Page 5 of 13

1 the part of government actors.") with Iqbal, 129 S. Ct. 1937, 1950 (2009) ("[A]

2 court considering a motion to dismiss can choose to begin by identifying pleadings

3 that, because they are no more than conclusions, are not entitled to the assumption

4 of truth. While legal conclusions can provide the framework of a complaint, they

5 must be supported by factual allegations. When there are well-pleaded factual

6 allegations, a court should assume their veracity and then determine whether they

7 plausibly give rise to an entitlement to relief.").l Finally, the policy arguments

8 supporting the Bourgeois court's decision are equally applicable to the task of

9 evaluating the sufficiency of the pleadings in a § 1983 claim. See 964 F.2d at 940

10 ("As a policy matter, Bourgeois' narrow time focus is untenable. If adopted, it

11 would severely limit law enforcement efforts directed at specific groups of

12 criminals.... Operations targeted at Wall Street bankers, alien smugglers, or any

13 of the gangs listed by Bourgeois in his brief are likely to result in the prosecution

14 of several people ofthe same race. This, in itself, does not suggest the prosecution

15 decisions were based on race.").

16 B. Allegations that the Inspections Were "Unusually Aggressive" Do Not

17

Make Up for the Absence of Allegations of Dissimilar Treatment.

18

Plaintiffs' Opposition as much as concedes that the Complaint's focus on a

19 single day's inspections is inadequate to make out an equal protection claim:

20

If the only discriminatory treatment plaintiffs alleged had been that

21

they were visited by Code Enforcement for ordinary inspection,

22

Longdyke and Miller might rightly argue that they could not allege

23

discrimination on the basis of a single day's inspections, and must

24

look to the pattern of ordinary Code Enforcement inspections over a

25

longer period of time. Opp.10:12-11:5.

26
1 It should be kept in mind that Rodriguez v. California Highway Patrol, 89 27 F.Supp.2d 1131 (N.D. Cal. 2000), which Plaintiffs cite to distinguish Bourgeois, 28 see Opp. 10, nA, was decided before Iqbal established the "plausibility" standard
for evaluating the sufficiency of pleadings in civil rights actlOns.
4

REPLY OF DEFENDANTS LONGDYKE AND MILLER IN SUPPORT OF THEIR MOTION TO DISMISS

Case 5:09-cv-00688-SGL-SS Document 65 Filed 08/10/2009 Page 6 of 13

1 But, Plaintiffs argue, their equal protection claim is saved by the fact that, "as

2 alleged in the complaint, the businesses visited that day were subjected to

3 'unusually aggressive ... raid-style inspections'-indeed, so aggressive as to

4 violate the Fourth Amendment." Opp. 11:5-8 (citing FAC ~ 4). In other words, it

5 is not the fact of the inspections, but their manner, that, according to Plaintiffs,

6 gives rise to their cause of action for unlawful discrimination.

7

Even if this were the case, Plaintiffs still have to allege that the "unusually

8 aggressive" treatment was discriminatory, i.e., that Officers Longdyke and Miller

9 treated non-Afiican Americans differently. See Freeman, 68 F.3d at 1188. But

10 Plaintiffs' Opposition points to no such allegation in the Complaint, and none can

11 be found there. To address this fatal flaw in the Complaint, Plaintiffs contend that

12 "a fair reading" of the "unusually aggressive" allegation is that "Code

13 Enforcement did not treat any other licensees in this fashion." Opp. 11 :5-8.

14 Plaintiffs are essentially asking the Court to cure this deficiency in the pleadings

15 by inferring an allegation of discriminatory treatment from their characterization

16 of the inspections as "unusually aggressive."

17

The Court should not do so for the following reasons. First, the Complaint

18 does not actually allege that Officers Longdyke or Miller acted in an aggressive

19 manner during the inspections. In fact, the "unusually aggressive" allegation that

20 Plaintiffs repeatedly cite in their Opposition refers to the conduct ofthe MVPD.

21 See FAC ~ 4 ("[T]he unusually aggressive conduct ofthe MVPD during the raid-

22 style inspections indicate that Defendants' decision to target these business[es] in

23 the manner they did was based ... on the race of the barbers and their clientele."

24 (emphasis added)). This is consistent with the rest of the Complaint, which

25 attributes all the allegedly aggressive conduct during the alleged administrative

26 inspections to the MVPD,z By contrast, the full extent of allegations against

27

28

2 See, e.g., FAC ~~ 3 ("Despite the complete absence of any physical threat and the peaceful nature of all previous health and business inspections, the MVPD

5

REPLY OF DEFENDANTS LONGDYKE AND MILLER IN SUPPORT OF THEIR MOTION TO DISMISS

Case 5:09-cv-00688-SGL-SS Document 65 Filed 08/10/2009 Page 7 of 13

1 Officers Longdyke and Miller is that they "conducted an extensive search" of the

2 barber shops in a manner the Plaintiffs characterize-in conclusory fashion-as

3 "more intrusive than necessary to determine compliance with ... business

4 regulations." See FAC ~~ 24,25. These allegations do not plausibly suggest that

5 Officers Longdyke and Miller were "unusually aggressive."

6

Second, even if the Complaint can fairly be read to allege the Officers were

7 "unusually aggressive," it certainly cannot fairly be read to suggest that they "did

8 not treat any other licensees in this fashion." Opp. 11 n.5. Indulging such a

9 stretched reading ofthe Complaint would automatically convert every unlawful

10 search and seizure claim into an equal protection claim, and make inconsequential

11 Federal Rule of Civil Procedure 11 's requirement that factual allegations be based

12 on "an inquiry reasonable under the circumstances."

13 C. Allegations About Others' Aggressive Behavior Cannot Establish the

14

Officers' Discriminatory Intent.

15

Recognizing that their Complaint does not allege Officers Longdyke and

16 Miller acted in an "unusually aggressive" manner, Plaintiffs contend that "the fact

17 that [other officers] in these coordinated, multiagency raids behaved in such an

18 unusually aggressive manner suggests that the entire operation, in which [Officers

19 Longdyke and Miller] were an integral part, was based on discriminatory intent."

20 Opp. 17 n.6. But such an inference is specifically prohibited in a § 1983 claim,

21 where "a plaintiff must plead that each Government-official defendant, through

22

23

officers were armed with handguns and wore bulletproof vests."), 6 ("The above raids by the MVPD trampled Plaintiffs' right to Equal Protection ...."),24

24 ("Approximately five MVPD officers wearing bulletproof vests and SIde arms ran

into [Hair Shack] accompanied by about three Board officers and about two

25 officers from Code Enforcement. One MVPD officer stood in the front doorway

.... The [MVPD] officer in the alley guarded the back door to the Hair Shack from

26 his 1?olice car."), 25 ("Also on April 2, 2008, MVPD officers ... rushed into Fades

Unhmited, blocking the entrance so that no one could enter or leave. MVPD

27 officers questioned employees and customers, collected drivers licenses from

28 them, and ran warrant checks on them. ...When plaintiff Brown expressed his

objections to the searches, an officer handcuffed him in the back of a car ....").

6

REPLY OF DEFENDANTS LONGDYKE AND MILLER IN SUPPORT OF THEIR MOTION TO DISMISS

Case 5:09-cv-00688-SGL-SS Document 65 Filed 08/10/2009 Page 8 of 13

1 the official's own individual actions, has violated the Constitution." Iqbal, 129 S.

2 Ct. at 1948 (emphasis added).

3

Furthermore, the Complaint does not allege that either Officer participated

4 in the decision to target the barber shops-a failure Plaintiffs do not actually

5 dispute. See Opp. 14:28-15:4. Nor does the Complaint contain any other

6 allegations that are reasonably susceptible to this inference. In fact, the facts

7 actually alleged-that MVPD initiated and requested the operation, FAC '1! 3; and

8 that MVPD, Board, and Code Enforcement supervisors approved in advance the

9 targets and the manner in which the inspections would be conducted, id.

10 '1! 35-reasonably lead only to the opposite conclusion: Officers Longdyke and

11 Miller had nothing to do with the selection of Plaintiffs, barber shops for

12 inspection. As to the Officers' conduct during the inspection, the Complaint, as

13 pointed out above, alleges only that they accompanied the MVPD and conducted

14 searches that were allegedly too broad in scope. See id. '1!'1! 24,25. But a mere

15 dispute about the scope ofthe inspections does not raise an equal protection claim.

16 See, e.g., Bingham, 341 F.3d at 948-949; Annamaria M. v. Napa Valley Unified

17 School Dist., 2006 WL 1525733, at *9 (N.D. Cal. 2006) ("[T]he allegations that

18 (1) Annamaria is a member of a protected class, (2) the individual defendants are

19 members of a different class and (3) the individual defendants acted unreasonably

20 do not cumulatively establish either a racially discriminatory intent or differential

21 treatment and thus fail to state an equal protection claim.").

22 D. The Actions Plaintiffs Describe Are Consistent with Lawful Conduct.

23

Iqbal holds that allegations "merely consistent" with liability do not "cross

24 the line between possibility and plausibility of entitlement to relief." Iqbal, 129 S.

25 Ct. at 1949. Absent allegations concerning dissimilar treatment of others similarly

26 situated, the Complaint states facts that are, at best, "merely consistent" with

27 lawful conduct and therefore fall short of a plausible claim for relief.

28

Plaintiffs allege that (i) Hair Shack and Fades Unlimited "were used by

7
REPLY OF DEFENDANTS LONGDYKE AND MILLER IN SUPPORT OF THEIR MOTION TO DISMISS

Case 5:09-cv-00688-SGL-SS Document 65 Filed 08/10/2009 Page 9 of 13

1 members ofthe African American community as social centers," FAC ~ 3;

2 (ii) Hair Shack "allowed customers to play cards and dominoes in a back room not 3 used for barbering," id. ~ 22; and (iii) Cosmetology Board supervisors helped 4 select the barber shops to be inspected on April 2, id. ~ 35. Given these

5 facts-along with the absence of allegations that non-African American barber

6 shops were not inspected-it would be reasonable to conclude the barber shops

7 were selected for inspection because of potential health and safety concerns, see

8 Cal. Bus. & Prof. Code § 7350; and that this, not racial animus, explains the 9 apparently disproportionate number of African American businesses selected.

10

Plaintiffs counter that using the barber shops as social centers does not

11 violate the barbering regulations. See Opp. 12-13. But Plaintiffs' argument

12 misses the point. Whether the circumstances described constitute actual violations

13 is irrelevant. The only relevant question is whether those facts provide a

14 reasonable explanation, other than race, for why the barber shops were chosen for

15 inspection. They do: the barbers, known to permit others to use their shops for

16 non-barbering activities, had their businesses inspected for potential violations of 17 the barbering regulations.3

18

19 III. PLAINTIFFS' FIRST CAUSE OF ACTION SHOULD BE DISMISSED

20

BECAUSE OFFICERS LONGDYKE AND MILLER ARE ENTITLED

21

TO QUALIFIED IMMUNITY

22

Officers Longdyke and Miller are entitled to qualified immunity because the

23 facts alleged in Plaintiffs' Complaint fail to make out a violation of a

24 constitutional right. Pearson v. Callahan, 129 S. Ct 808,816-818, 172 L. Ed. 2d 25

26

3 Plaintiffs also argue that the ''unusually aggressive" nature ofthe

27 inspections, together with the fact that five of six barber shops inspected were

African American, "makes an inference of race discrimination plausible." Opp.

28 14:7-13. But because the Complaint does not, in fact, allege that Officers

Longdyke or Miller acted aggressively, this argument fails.

8

REPLY OF DEFENDANTS LONGDYKE AND MILLER IN SUPPORT OF THEIR MOTION TO DISMISS

Case 5:09-cv-00688-SGL-SS Document 65 Filed 08/10/2009 Page 10 of 13

1 565,576 (2009). Even if the Court finds otherwise, the Officers are entitled to

2 qualified immunity because their alleged conduct did not violate "clearly

3 established ... constitutional rights of which a reasonable person would have

4 known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d

5 396 (1982).

6

The right the Officers allegedly violated must have been "clearly

7 established" in a "particularized" sense that is "relevant" to the actual facts

8 alleged. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed.

9 2d 523 (1987). Indeed, "[t]he contours of the right must be sufficiently clear that a

10 reasonable official would understand that what he is doing violates that right." [d.

11 Plaintiffs' proposed framing of the inquiry-whether intentionally selecting

12 businesses for unlawfully aggressive inspections on the basis of race, see Opp.

13 20:24-28-is not particularized to the Complaint in any relevant sense because it

14 ignores the scope of Plaintiffs' claim (i.e., that the inspections occurred on one

15 day) and incorporates facts not even alleged against the Officers (i.e., that the

16 officers were "unusually aggressive"). The Court's inquiry should therefore be

17 more narrowly tailored to the relevant, particular facts alleged, as follows: Would

18 a reasonable business license inspector in April 2008 have understood that

19 conducting unnecessarily extensive inspections at predominately African

20 American businesses on a single day would violate those business owners' equal

21 protection rights?

22

The answer to that question is ''No.'' The law in April 2008 was clearly

23 established that, absent dissimilar treatment of others similarly situated, even

24 allegedly unreasonable administrative inspections would not violate Plaintiffs'

25 equal protection rights. See, e.g., Bingham, 341 F.3d at 948-949.

26

27

28

9
REPLY OF DEFENDANTS LONGDYKE AND MILLER IN SUPPORT OF THEIR MOTION TO DISMISS

Case 5:09-cv-00688-SGL-SS Document 65 Filed 08/10/2009 Page 11 of 13

1 IV. PLAINTIFFS' FIRST CAUSE OF ACTION SHOULD BE DISMISSED

2

WITHOUT LEAVE TO AMEND

3

Plaintiffs do not claim that, if ordered to do so, they could amend the

4 Complaint to state facts that would make out an equal protection claim. To the

5 contrary, the Opposition indicates Plaintiffs' intention to proceed exclusively on

6 the theory the "unusually aggressive" nature of the inspections constitutes the

7 violation.4 Because granting leave to amend would, under these circumstances, be

8 "an exercise in futility," the Court should dismiss Plaintiffs' claim without leave to

9 amend. Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998).

10

11 IV. CONCLUSION

12

For the foregoing reasons, Officers Longdyke and Miller respectfully

13 request that the Court dismiss Plaintiffs' First Cause of Action with prejudice.

14 DATED: August )0,2009 15 16 17 18 19 20 21 22

LA FOLLETTE, JOHNSON, DEHAAS, FESLER & AMES
OFFICE OF THE CITY ATTORNEY, CITY OF MORENO VALLEY
GREINES, MARTIN, STEIN & RICHLAND LLP
\(lAh\ f?~ By:----.-..--M-.i,c-h-a-e-l--ATn-t.h,o-n--y-B,.r,o--w"n'---'-------
Attorneys for Defendants DENNIS LONGDYKE and LORI MILLER

23 4 See, e.g., Opp. 2:8-10 ("Plaintiffs' claim is, in fact, that defendants
24 targeted [them] not for ordinary inspections, but for aggressive and unlawful searches, on the basis oftheir race."), 10 n. 3 ("[H]ere the very basis of plaintiffs'
25 claim is that the overly aggressive treatment to which they were subjected during the inspections of April 2, 2008, was unusual and completely unjustified;
26 therefore, the racial composition of the barbershops searched on that day is 27 probative of discriminatIon."), 11 :5-8 ("Plaintiffs focus on a single day of
inspections because, as alleged in the complaint, the businesses visited that day 28 were subjected to 'unusually aggressive ... raid-style inspections'-indeed, so
aggressive as to violate the Fourth Amendment.").
10

REPLY OF DEFENDANTS LONGDYKE AND MILLER IN SUPPORT OF THEIR MOTION TO DISMISS

Case 5:09-cv-00688-SGL-SS Document 65 Filed 08/10/2009 Page 12 of 13
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 5900 Wilshire Boulevard, 12th Floor, Los Angeles, California 90036.
On August 10,2009, I served the foregoing document described as: REPLY OF DEFENDANTS DENNIS LONGDYKE AND LORI MILLER IN SUPPORT OF THEIR MOTION TO DISMISS FIRST AMENDED COMPLAINT UNDER FRCP 12(b)(6) on the parties in this action by serving:
(SEE ATTACHED SERVICE LIST)

(X) By Envelope - by placing 0 the original (X) a true copy thereof enclosed in sealed
envelopes addressed as above and delivering such envelopes:

(X) By Mail: As follows: I am "readily familiar" with this fi='s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with United States Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than I day after date of deposit for mailing in affidavit.

o By Facsimile Transmission: On

at _ _.m., I caused the above-named

document to be transmitted by facsimile transmission telephonically to the offices of the

addressee(s) at the facsimile number(s) so indicated above, The transmission was reported as

complete and without error. A copy of the transmission report properly issued by the

transmitting facsimile machine is attached hereto.

Executed on August 10, 2009, at Los Angeles, California.

( ) (State) I declare under penalty of peIjury under the laws of the State of California that the foregoing is true and correct.

(X) (Federal) I declare that I am employed by the office of a member of the bar ofthis court at whose direction the service was made.

Case 5:09-cv-00688-SGL-SS Document 65 Filed 08/10/2009 Page 13 of 13
Re:Gordon, et.a!. v. City of Moreno Valley, et. a!. United States District Court Case No.: ED CV 09-00688 SGL (Ssx)
SERVICE LIST
Peter Bibring Mark Rosenbaum Peter J. Eliasberg ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles; CA 90017 Attorneys for Plaintiffs
Stacy Shartin Rishl Puri Seyfarth Shaw LLP 2029 Century Park East Suite 3300 Los Angele- CA 9006/-3063 Attorneys for Plaintiffs
John M. Porter Lewis, Brisbois, Bisgaard & Smith 650 East HospitalityLane, Suite 600 San Bernardino, CA 92408 Attorneys for Stan Sniff, Riverside County Sheriff, iu his official capacity and Rick Hall, Chief of the Moreno Valley Police Department, in his official capacity
Christopher Lockwood Arias & Lockwood 225 West Hospitality Laue San Bernardino, CA 92408 Attorneys for Stan Sniff, Riverside County Sheriff, iu his official capacity and Rick Hall, Chief of the Moreno Valley Police Department, in his official capacity
Diaue De Kervor Deputy Attorney General San Diego Licensing Section CAAG - Office of the Attorney General 110 West A Street Suite II 00 POBox 85266 San Diego, CA 92186-5266 Kristy Underwood, Executive Officer of Barbering and Cosmetology, in her official capacity

 
 Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 1 of 25

LA FOLLETTE, JOHNSO~ DEHAAS, FESLER & AMES Michael A. Bell (SBN 034,,00)
2 MBell@jdfa.com A ProfessIOnal Corporation
3 2280 Market Street, Suite 140 Riverside, Califorma 92501
4 Telephone: (951) 275-9192 Facsllnile: (951) 275-9249
5 CITY ATTORNEY, CITY OF MORENO VALLEY
6 Robert D. Henick (SBN 100916) bobhCalmova1.org
7 ASSISTANT CITY ATTORNEY, CITY OF MORENO VALLEY Robert L. Hansen (SBN 130677)
8 bobhaCalmova1.org 14177 Frederick Street
9 Moreno Valley, CA 92552 Telephone: (951) 413-3000
10 Facsmrile: (951) 413-3034

11 GTRiEmIoNthEyS'1'M. CAoRatTeIsN(SSBTNE1IN10&36R4)ICHLAND LLP
12 Tcoates@gmsr.com Michael Anthony Brown
13 tbrownCalgmsr.com 5900 WilSliire Boulevar<j, 12th Floor
14 Los Angeles, California ,,0036 Telephone: (310) 859-7811
15 Facsmrile: (310) 276-5261

16 Attorneys for Defendants Dennis Longdyke and Lori Miller
17

18 UNITED STATES DISTRICT COURT
19 CENTRAL DISTRICT OF CALIFORNIA
20 EASTERN DIVISION
21

22 KEVON GORD01'.l....RONALD JONE~ RAYMONU BARNES,
23 QUIN\...Y BROWN

24

Plaintiffs,

25 v.

Case No. ED CV 09-00688 SGL (SSx) MOTION OF DEFENDANTS DENNIS LONGDYKE AND LORI MILLER TO DISMISS FIRST AMENDED COMPLAINT UNDER FRCP 12(b)(6)

26 CMuITniYc~OaFlMCO~RraENtiOoV~ACLOLUENYTaY
27 gtl~IF 6~HE ~~~N~VALLEY
28 POLICE DEPARTMENT, in his

Date: August 17, 2009 Time: 10:00 a.m. Courtroom: Hon. Stephen G. Larson

MOTION TO DISMISS

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 2 of 25
official capacity; KRISTY UNDERWOOD EXECUTIVE 2 OFFICER OF THE CALIFORNIA BOARD OF BARBERING AND 3 COSMETOLOGY, in her official capacity; STAN SNIFF, RIVERSIDE 4 COUNTY SHERIFF in his official ca]lacity,i TONY HEISTERBERG, 5 DMEINLNLIE~~LSOENTGHDHYAKRETNLEOTRTI, 6 ROBER, DUCKETT MARIO
7 ~Wo~ f~~~~WER, 8 CRHICRHIASTRODPHHUETRSGOJA'l"S,TJOiNEGBERROWN,
XOCHI CARMARuv, ARLEN 9 BAUBY, and DOES I through 20, in
their indIvidual capacities, 10
Defendants. II 12 13 14 IS
16 17 18 19 20 21 22
23
24 25
26 27 28
MOTION TO DISMISS

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 3 of 25

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

I

PLEASE TAKE NOTICE THAT at 10:00 a.m. on August 17,2009, or as

2 soon thereafter as the matter may be heard in the above-entitled court, located at

3 3470 Twelfth Street, Riverside, California, 92501, defendants Dennis Longdyke

4 and Lori Miller will move the court under Federal Rule of Civil Procedure

5 12(b)(6) to dismiss Plaintiffs' First Cause of Action in their First Amended

6 Complaint ("Complaint") for failure to state a claim upon which relief can be

7 granted.

8

The grounds for this motion are that Plaintiffs' allegations, even if taken as

9 true, do not make out a plausible, as opposed to merely possible, equal protection

10 violation. Furthermore, Officers Longdyke and Miller are entitled to qualified

II immunity from Plaintiffs' First Cause of Action because (i) Plaintiffs' Complaint

12 does not state an equal protection violation, and (ii) it was not "clearly

13 established" at the time of the events alleged that the conduct of Officers

14 Longdyke and Miller described in the Complaint violated Plaintiffs' equal

IS protection rights.

16

The motion will be based on this Notice of Motion and Motion, the

17 supporting Memorandum of Points and Authorities filed with it, the oral argument

18 of counsel, all pleadings and papers filed in this action, any evidence of which the

19 Court may take judicial notice, and any other matter the Court may take into

20 consideration.

21

This motion is made after counsel for the parties, pursuant to Local Rule 7-

22 3, met and conferred via an exchange of various emails concerning the substance

23 of the motion.

24 III

25 1//

26 1//

27 /II

28 III

MOTION TO DISMISS

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 4 of 25

This email exchange commenced on Jun 19, 2009, and concluded on June 30, I 2009, after which, despite the best efforts of counsel for the parties to resolve 2 matters, it became necessary to file this motion.

3 4 DATED: July -,,2009 5
6
7 8
9 10 II 12 13 14 15

LA FOLLETTE, JOHNSON, DEHAAS, FESLER & AMES
OFFICE OF THE CITY ATTORNEY, CITY OF MORENO VALLEY
GREINES, MARTIN, STEIN & RJCHLAND LLP
By: ~l~l~~ Attorneys for Defendants DENNIS LONGDYKE and LORJ MILLER

16 17 18 19 20 21 22 23 24

25
26 27
28 2

MOTION TO DISMISS

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 5 of 25
MOTION TO DISMISS

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 6 of 25

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 7 of 25

FEDERAL STATUTES
STATE STATUTES 7 Cal. Bus. & Prof. Code § 7350 8 9 10 11 12 13 14 15 16 17 18 19
20
21
22
23 24 25
26
27
28
III MOTION TO DISMISS

Page 1, 4, 12
5,7 4,5,7,15
11

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 8 of 25

MEMORANDUM OF POINTS AND AUTHORITIES

I

2 I. INTRODUCTION

3

The Plaintiffs in this action are four African-American barbers who cut hair

4 at two barber shops in the City of Moreno Valley ("City" or "Moreno Valley").

5 Plaintiffs' action is based on health and business license inspections conducted by

6 officers from the City of Moreno Valley's Code and Neighborhood Services

7 Division ("Code Enforcement"), the California Department of Consumer Affairs'

8 Board of Barbering and Cosmetology ("Board"), and the Moreno Valley Police

9 Department ("MVPD") at their barber shops. In their First Amended Complaint

I0 ("Complaint" or "FAC"), Plaintiffs allege these inspections violated various

II federal and state constitutional rights.

12

Against Code Enforcement Officers Dennis Longdyke and Lori Miller

13 specifically, Plaintiffs bring two claims under 42 U.S.C. § 1983, seeking monetary

14 damages for violations of their Fourteenth Amendment equal protection rights and

15 their Fourth Amendment right to be free from warrantless searches. This Motion

16 concerns only the equal protection claim, Plaintiffs' First Cause of Action.

17

Plaintiffs' equal protection claim should be dismissed against Officers

18 Longdyke and Miller because the Complaint fails to allege facts raising a plausible

19 claim to relief. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868,

20 883 (2009). That claim, for selective enforcement of the law, is based on

21 allegations that five of six health and business license inspections conducted at

22 Moreno Valley barber shops on a single day in April 2008 occurred at shops

23 owned and patronized primarily by African Americans. Even if these allegations

24 were true, they would not make out an equal protection claim because events from

25 such a narrow time frame are not legally sufficient to establish a discriminatory

26 effect, let alone intent. Moreover, Plaintiffs' Complaint contains allegations that

27 raise an obvious lawful alternative explanation for the searches, i.e. , that Plaintiffs'

28 permitted their barber shops to be used as social gathering places, a potential

1

MEMORANDUM OF POINTS AND AlJfHORITIES

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 9 of 25

violation of the health and safety statute governing barber shops and potential

I violation of business licensing requirements. In addition, Plaintiffs' Complaint

2 does not claim that Officers Longdke and Miller selected Plaintiffs' barber shops

3 for inspection; in fact, Plaintiffs allege that supervisors at Code Enforcement, the

4 Board, and MVPD made this decision. Thus, the Complaint fails to plead facts

5 sufficient to establish discriminatory intent as to these individual defendants.

6

Finally, Officers Longdyke and Miller are entitled to qualified immunity

7 from Plaintiffs' equal protection claim because the Complaint fails to show that

8 their actions, as alleged, violated clearly established law.

9

Accordingly, Officers Longdyke and Miller respectfully request that the

10 Court dismiss Plaintiffs' First Cause of Action against them.

II

12 II. FACTUAL ALLEGATIONS RELEVANT TO THE CLAIMS

13

AGAINST OFFICERS LONGDYKE AND MILLER

14

The allegations relevant to Plaintiffs' equal protection claim against

15 Officers Longdyke and Miller are as follows:

16

• On April 2, 2008, MVPD, Board, and Code Enforcement

17

officers conducted combined business license and health inspections

18

at six Moreno Valley barber shops. First Amended Complaint

19

("Complaint" or "FAC") ~~ 3, 4, 23.

20

• "Five of the six barbershops Defendants selected as targets for

21

the[se] raid-style inspections on April 2, 2008, were owned, operated,

22

and primarily frequented by African Americans." Id. ~ 4; see also id.

23

~ 23.

24

• The "stark disparity" in the number of African American (as

25

opposed to non-African American) barber shops inspected on April 2,

26

2008, as well as the "unusually aggressive conduct" ofMVPD

27

officers during the inspections, "indicate that Defendants' decision to

28

target [Plaintiffs'] businesses in the manner they did was based, in

2

MEMORANDUM OF POINTS AND AtrrHORITIF.S

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 10 of 25

part or in whole, on the race of the barbers and their clientele." FAC

1

~ 4.

2

• Hair Shack and Fades Unlimited, the barber shops where

3

Plaintiffs work, were among the five African American barber shops

4

n selected for inspection on April 2, 2008. !d. 23-25 .

5

• During the April 2, 2008, inspection at Hair Shack, five

6

MVPD, three Board, and "about two" Code Enforcement officers

7

conducted "an extensive search[,] including areas where no barbering

8

was performed, and questioned employees and customers." [d. ~ 24.

9

• During the Fades Unlimited inspection on April 2, an

10

unidentified number of MVPD, Board, and Code Enforcement

11

" [o]fficers and inspectors conducted an extensive search of the shop."

12

[d. ~ 25 .

13

• These inspections were "more extensive and intrusive than

14

necessary to determine compliance with barbering or business

15

regulations." [d. ~ 24; see a/so id. ~ 25.

16

• These inspections "produced no evidence of wrongdoing other

17

than routine issues concerning maintenance and storage ofbarbering

18

supplies and equipment." [d. ~ 3.

19

•

The April 2 inspections at the other three African American

20

barber shops were "conducted in a similarly invasive and intrusive

21

manner." [d. ~ 29.

22

• Fades Unlimited was also inspected in late 2007 and sometime

23

in early 2008. [d. ~~ 26-28. No Code Enforcement officers

24

participated in the early 2008 inspection. [d. ~ 27. The one Code

25

Enforcement officer who participated in the late 2007 inspection

26

"conducted a cursory visual inspection of the shop" and, along with

27

MVPD officers, "opened cabinets, drawers and containers belonging

28

to some of the barbers." !d. ~ 28.

3

MEMORANDUM OF POINTS AND AUTHORITIES

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 11 of 25

• Code Enforcement Officers Tony Heisterberg, I Longdyke, and

I

Miller participated in the April 2, 2008, inspections at Hair Shack and

2

Fades Unlimited "and/or" the early 2007 inspection at Fades

3

Unlimited. FAC 1 33.

4

• "[S]upervisors at Code Enforcement, MVPD (or the Sheriffs

5

Department) and/or the Board approved in advance the manner in

6

which the raids would be conducted, which businesses would be

7

selected for raid, or the manner in which businesses would be selected

8

for raids." Id. 1 35.

9

10 III. PLAINTIFFS FAIL TO STATE AN EQUAL PROTECTION CLAIM

II

AGAINST OFFICERS LONGDYKE AND MILLER

12

To state a claim under 42 U.S.C. § 1983, Plaintiffs must allege that a person

13 acting under color of state law deprived them of a right secured by the United

14 State Constitution and laws. West v. Atkins, 487 U.S. 42, 49, 108 S. Ct. 2250,

15 2255, 101 L. Ed. 2d 40, 49-50 (1988). Here, Plaintiffs have failed to plead a

16 deprivation of their Fourteenth Amendment equal protection rights.

17

18

A. Plaintiffs' Claim Should Be Dismissed If Their Well-Pleaded

19

Facts, Taken As True, Do Not Show a Plausible Claim for Relief

20

A cause of action may be dismissed as a mailer of law for (i) lack of a

21 cognizable legal theory; or (ii) insufficient facts under a cognizable legal theory.

22 Fed. R. Civ. P. 12(b)(6); Balistreri v. Pacifica Police Dep 't, 901 F.2d 696, 699

23 (9th Cir. 1990). "On a motion to dismiss for failure to state a claim, the court must

24 presume all factual allegations of the complaint to be true and draw all reasonable

25 inferences in favor of the nonmoving party." Usher v. City ofLos Angeles, 828

26 F.2d 556, 561 (9th Cir. 1987).

27

28

I Heisterberg has not yet been served with Plaintiffs' Complaint or a

summons .

4

MEMORANDUM OF POlNTS AND AUTHORITIES

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 12 of 25

In its recent decision, Ashcroft v. Iqbal, the United State Supreme Court

I clearly established the degree offactual specificity required by Federal Rule of

2 Civil Procedure ("FRCP") 8 and, therefore, necessary to survive a motion to

3 dismiss under FRCP 12(b)(6). Iqbal, a Pakistani Muslim, charged various federal

4 officials and corrections officers with violating his constitutional rights in

5 connection with his detention and treatment while confined in a maximum security

6 facility, pending trial for identification fraud, in the months immediately following

7 the September II attacks. Iqbal, 129 S. Ct. at 1943-1944. Two of those officials,

8 former U.S . Attorney General John Ashcroft and former FBI Director Robert

9 Mueller, moved under FRCP 12(b)(6) to dismiss Iqbal's First and Fifth

10 Amendment discrimination claims against them. Id. at 1944. The district court

II denied that motion, and the Second Circuit affirmed. Id.

12

In reversing, the Supreme Court laid out two principles governing

13 evaluation of the sufficiency of the pleadings for purposes of a motion to dismiss

14 under FRCP 12(b)(6). First, "the tenet that a court must accept as true all of the

15 allegations contained in the complaint is inapplicable to legal conclusions.

16 Threadbare recitals of the elements of a cause of action, supported by mere

17 conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949. In short, the

18 pleading must include "more than an unadorned, the-defendant-unlawfully-

19 harmed-me accusation." Id. Second, "only a complaint that states a plausible

20 claim for relief survives a motion to dismiss." Id. at 1950 (citing Bell All. Corp. v.

21 Twombly, 550 U.S. 544, 556, 127 S. Ct. 1965, 167 L. Ed. 2d 929 (2007)). A claim

22 is plausible, as opposed to merely possible, if its factual content "allows the court

23 to draw the reasonable inference that the defendant is liable for the misconduct

24 alleged." Id. at 1949 (citing Twombly, 550 U.S. at 556). A complaint alleging

25 facts that are '''merely consistent with' a defendant's liability, [however,] 'stops

26 short of the line between possibility and plausibility of entitlement to relief. '" Id.

27 (quoting Twombly, 550 U.S. at 557). The Court incorporated these principles into

28 the following two-pronged approach:

5

MEMORANDUM OF POINTS AND AUTHORITlES

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 13 of 25

[AJ court considering a motion to dismiss can choose to begin by

Identifying pleadings that, because they are no more than conclusions,

I

are not entitled to the assumption of truth. While legal conclusions

2

can provide the framework of a complaint, they must be sUf.ported by factual allegations. When there are well-pleaded factual al egations, a

3

court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. !d. at 1950.

4 The Iqbal decision illustrates this two-pronged approach. First, the Court

discrimination claim, including (i) that Ashcroft and Mueller '''knew of, condoned,

7
and willfully and maliciously agreed to subject [him]' to harsh conditions of

8 confinement 'as a matter of policy, solely on account of [hisJ religion, race, and/or

9 national origin and for no legitimate penological interest"'; (ii) that Ashcroft was

10 "the'principal architect' of this invidious policy"; and (iii) that Mueller "was

II ' instrumental' in adopting and executing it." !d. at 1951 (internal citations

12 omitted).

\3

Next, the Court examined Iqbal's factual allegations to determine if they

14 plausibly suggested entitlement to relief. !d. The relevant allegations for Iqbal's

15 claims were: (i) that the FBI, under Mueller's direction, "arrested and detained

16 thousands of Arab Muslim men ... as part of its investigation of the events of

17 September II"; and (ii) that Ashcroft and Mueller approved a policy of holding

18 these detainees in highly restrictive conditions of confinement until the FBI

19 determined they were not linked to the September II attacks or other terrorist

20 activity. !d. Though Iqbal did not challenge his arrest, the Court concluded that,

21 in any case, it could not plausibly infer purposeful, invidious discrimination based

22
on the arrest because of an "obvious alternative explanation," i.e., given the

23 mastermind and perpetrators of the September II attacks were Arab, "a legitimate

24 policy directing law enforcement to arrest and detain individuals because of their

25
suspected link to the attacks would produce a disparate, incidental impact on Arab

26 Muslims." Id. at 1951 (internal quotation marks omitted). As for Iqbal's actual

27 claims based on his detention and subsequent treatment in the maximum security

28 facility, the Court held that the relevant factual allegations plausibly suggested

6

MEMORANDUM OF POINTS AND AUTHORITIES

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 14 of 25

only that "the Nation's top law enforcement officers, in the aftermath of a

1 devastating terrorist attack, sought to keep suspected terrorists in the most secure

2 conditions available until the suspects could be cleared of terrorist activity." Id. at

3 1954. Accordingly, the Court concluded that Iqbal failed to plead sufficient facts

4 to state a claim against Ashcroft and Mueller. Id. at 1954.

5

Iqbal thus requires that, to survive a motion to dismiss under FRCP

6 12(b)(6), the pleadings must state facts, not mere recitations of the elements of a

7 claim, that are at the very least susceptible to an inference of liability. Iqbal also

8 makes it clear that, when a complaint describes conduct that may reasonably be

9 interpreted as either lawful or unlawful, the plaintiff should not be permitted to go

10 on a fishing expedition for evidence that might support his or her claim. Instead,

II that claim should be dismissed.

12

This is especially so where, as in Iqbal, government official defendants are

13 entitled to assert qualified immunity, because failure to enforce FRCP 8's pleading

14 requirements would effectively undermine qualified immunity's purpose of

15 "!Tee[ing) public officials !Tom the concerns of litigation, including avoidance of

16 disruptive discovery." Id. at 1953 (internal quotation marks omitted).

17

18

B. Plaintiffs Fail To State an Equal Protection Claim

19

The gravamen of Plaintiffs' equal protection claim against Officers

20 Longdyke and Miller is that they selectively enforced Moreno Valley's business

21 license inspection ordinance against Plaintiffs because of their race. See, e.g.,

22 FAC 1111 1, 6, 38.

23

But exercising some selectivity in enforcement is not in itself a federal

24 constitutional violation. Freeman v. City afSanta Ana, 68 F.3d 1180, 1188 (9th

25 Cir. 1995). To state an equal protection claim for impermissible selective

26 enforcement, Plaintiffs allegations must, if taken as true, show (i) a discriminatory

27 effect, i.e., that Officers Longdyke and Miller did not take, or took different,

28 action against others similarly situated; and (ii) a discriminatory purpose, i.e., that

7

MEMORANDUM OF POINTS AND AUTHORITIES

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 15 of 25

the Officers undertook the alleged selective enforcement because of the Plaintiffs'

I race. Id. at 1187; see also Rosenbaum v. City and County o/S.F., 484 F.3d 1142,

2 1153 (9th Cir. 2007) (citing Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct.

3 1524,1531,84 L. Ed. 2d 547, 556 (1985».

4

5

1. Plaintiffs' Allegations Do Not Show a Discriminatory

6

Effect.

7

Plaintiffs repeatedly contend they were targeted for business license

8 inspections because they and their clientele are African-American. See. e.g. , FAC

9 '11'111 (alleging that inspections at Hair Shack and Fades Unlimited were "racially
10 targeted"); 'II 6 ("The above raids by the MVPD trampled Plaintiffs' right to Equal

II Protection under the Fourteenth Amendment to the United States Constitution, ...

12 providing that the government cannot target individuals or businesses for

13 investigation on the basis of race."); '1138 ("Defendants' actions deprived Plaintiffs

14 of their right to equal protection under the law by selecting Plaintiffs' businesses

15 for search and inspection on the basis of Plaintiffs' race and the race of the

16 owners, employees and clientele at Plaintiffs' businesses."). But under the first

17 prong of Iqbal's two-pronged approach, such naked assertions of racial targeting

18 are not entitled to the assumption of truth and cannot, in themselves, sustain a

19 claim for relief. Iqbal, 129 S.Ct. at 1951.

20

Under the second prong of the Iqbal analysis, Plaintiffs' factual allegations

21 do not plausibly give rise to an equal protection claim because they are focused on

22 too narrow a period of time, are "merely consistent with" liability, and do not

23 describe disparate treatment.

24 25 26 27 28
8

MEMORANDUM OF POINTS AND AUTHORITIES

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 16 of 25

a. The Complaint's focns on the events of a single day is

I

too narrow to establish selective enforcement.

2

To state a selective enforcement claim based on an impermissible

3 classification by race, a plaintiff must allege facts showing a general practice of

4 discriminatory enforcement not confined to a single incident.

5

In Uniled Siaies v. Bourgeois, 964 F.2d 935, 936-37 (9th Cir. 1992), an

6 African American man was arrested as part of a two-day, multi-district sweep of

7 suspected gang members and later convicted ofa firearms violation. Id. at 936-37.

8 Before trial, Bourgeois sought to raise a selective enforcement defense, but the

9 district court denied his request for discovery. Id. at 937. On appeal from the

10 conviction, Bourgeois contended he was entitled to discovery based on the fact

II that, of the more than 100 persons arrested during the two-day sweep in his area,

12 only ten of those arrested were prosecuted for firearms violations and all ten were

13 African American. Id. at 936, 940. He argued that "[c]omrnon sense,

14 demographic evidence and statistical probability strongly suggest[ed] ... that the

15 govemment could as readily have identified and prosecuted non-blacks for

16 firearms violations." Id. at 940. But the Ninth Circuit rejected Bourgeois's

17 arguments, holding that his two-day focus was too narrow to raise a colorable

18 claim that others similarly situated had not been prosecuted because there was "no

19 showing that the goverrunent does not generally prosecute felons of all races who

20 possess firearms." Id. at 940.

21

Plaintiffs' selective enforcement claim is, if anything, even more narrowly

22 focused than the one at issue in Bourgeois. It is based exclusively on six

23 inspections conducted on a single day. FAC" 4, 23 .' But, as in Bourgeois, the

24 inspections conducted on one day in April 2008 do not, and cannot, in themselves

25
, Plaintiffs do not allege that Code Enforcement officers took part in the 26 early 2008 inspection at Fades Unlimited. As for the late 2007 inspection of Fades 27 UnlImited, the Complaint makes no allegations as to whether any other business
license inspections were conducted on the same day. Because Plaintiffs allege no 28 "control group" for the late 2007 inspection of Fades Unlimited, they necessarily
fail to plead a discriminatory effect with regard to that inspection.
9

MEMORANDUM OF POINTS AND AUTHORITIES

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 17 of 25

reasonably suggest that the officers who authorized and participated in those

I inspections chose the inspections sites because of race. To make such a showing,

2 Plaintiffs would have to allege additional facts from which the Court could

3 reasonably infer that a classification had, in fact, been made, e.g., (i) that the

4 defendants conducted business license inspections infrequently, suggesting that

5 the pattern on April 2 reflected a one-time decision that can be evaluated in

6 isolation; or (ii) that inspections over a longer period of time reflect the same

7 perceived pattern of April 2. However, the Complaint contains neither of these

8 allegations-nor any others-that could allow the Court reasonably to infer that

9 Officers Longdyke or Miller inspected Hair Shack and Fades Unlimited on April

10 2, but avoided inspecting other barber shops, because of the owners' or clientele's

II race. See Iqbal, 129S.Ct.at 1949.

12

\3

b. Because the actions Plaintiffs allege are consistent

14

with lawful conduct, they do not plausibly establish

15

an actionable discriminatory effect.

16

Plaintiffs allege that the barber shops inspected on April 2 "were used by

17 members of the Afiican American community as social centers." FAC ~ 3; see

18 also id. ~ 21. They further allege that Hair Shack "allowed customers to play

19 cards and dominoes in a back room not used for barbering." Id. ~ 22. Finally,

20 Plaintiffs contend that MVPD, Board, "and/or" Code Enforcement supervisors

21 were responsible for selecting the barber shops to be inspected on April 2. Id.

22 ~ 35. These allegations reasonably suggest that Plaintiffs' barber shops were

23 selected for inspection, not by Officers Longdyke and Miller because their patrons

24 were Afiican-American, but instead by MVPD or Board supervisors because the

25 shops' use as social gathering spots-including the use of back rooms for card and

26 domino playing- violated California's Barbering and Cosmetology Act.' See,

27

28

' It is worth noting that Plaintiffs own allegations underscore the lawful

purpose of the inspections. For example, the Complaint admits that the April 2

to

MEMORANDUM OF POINTS AND AUTHORITIES

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 18 of 25

e.g., Cal. Bus. & Prof. Code § 7350 (making it a misdemeanor "to permit any room

I or part thereof' in a barber shop "to be used for residential purposes or for any

2 other purpose that would tend to make the room unsanitary, unhealthy, or unsafe,

3 or endanger the health and safety of the consuming public"). This non-racial

4 selection criterion could, given the circumstances alleged in the Complaint,

5 produce a disparate, though incidental, impact on African-Americans on this

6 particular occasion.

7

But the Supreme Court has held that such a claim is, at best, "merely

8 consistent with" liability and, thus, "stops short of the line between possibility and

9 plausibility of entitlement to relief." Iqbal, 129 S.C!. at 1949 (citing Twombly,

\0 550 U.S. at 557) (internal quotation marks omitted). Consequently, it cannot

II survive a motion to dismiss. Id.

12

13

c. Plaintiffs' Complaint lacks allegations even

14

suggesting Officers Longdyke and Miller took

15

different action against otber, non-African American

16

barbers.

17

The Complaint does not allege that Officers Longdyke or Miller participated

18 in the business license inspection at the one non-African American barber shop on

19 April 2. See, e.g., FAC ~~ 4,23,33. In addition, Plaintiffs do not allege that the

20 Officers on any other occasion conducted business license inspections of African

21 American barber shops differently from non-African American barber shops or

22 businesses. Indeed, the Complaint lacks any factual allegations about the

23 Officers' "usual" conduct during business license inspections, which are necessary

24 to show that the Officers' conduct during the Hair Shack and Fades Unlimited

25

26 inspections at Hair Shack and Fades Unlimited found violations related to "routine 27 issues concerning maintenance and storage of barbering supplies and equipment."
FAC ~ 3. Nor do Plaintiffs allege that it was irrational or unfounded for Moreno 28 Valley Code Enforcement Officers to conduct business license inspections of their
barber shops.
11

MEMORANDUM OF POINTS AND AUTHORITIES

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 19 of 25

inspections on April 2 was, as Plaintiffs contend, ''unusually aggressive." FAC 1

I 4.

2

3

2. Plaintiffs' Allegations Do Not Show Discriminatory Intent

4

To state a claim under § 1983 against a government official in his or her

5 individual capacity, a claimant's pleadings must show that the official, "through

6 [his or her] own individual actions, has violated the Constitution." Iqbal, 129 S.

7 Ct. at 1948. To show discriminatory purpose, a plaintiff must establish that a

8 decision-maker ''undert[ook] a course of action because of, not merely in spite of,

9 [the action's] adverse effects upon an identifiable group." Iqbal, 129 S. Ct. at

10 1948 (citing Personnel Administrator ofMass. v. Feeney, 442 U.S. 256, 279, 99 S.

II Ct. 2282, 2296, 60 L. Ed. 2d 870, 887 (1979» (internal quotation marks omitted).

12

But Plaintiffs' Complaint does not allege facts sufficient to allow the Court

13 plausibly to infer that either Officer Longdyke or Officer Miller was in any way

14 involved in selecting Hair Shack or Fades Unlimited for inspection on April 2. To

15 the contrary, Plaintiffs' own allegations show that neither Officer Longdyke nor

16 Officer Miller made, or even had authority to make, the decision to inspect Hair

17 Shack, Fades Unlimited, or any other barber shop on April 2. According to the

18 Complaint, that decision was "initiated and undertaken at the request of MVPD

19 officers," FAC 13, and ultimately made by the Officers' supervisors:

20

Upon information and belief, based on the open and deliberate

manner in which the raids were carried out, the need for multi-agency

21

coordination, and the unusual nature of the raids, it can be inferred

22

that supervisors at Code Enforcement, MVPD (or the Sheriff's Del'artrnent) and/or the Board approved in advance the manner in

23

which the raids would be conducted, which businesses would be selectedfor raid, or the manner in which businesses would be

24

selectedfor raids. These supervisors number among the Doe Defendants. FAC 1 35 (emphasis added).

25 Furthermore, the Complaint is devoid of other factual allegations that would

26 permit the Court to draw the inference that, when conducting business license

27 inspections at Plaintiffs' barber shops, Officers Longdyke and Miller acted upon a

28

12

MEMORANDUM OF POINTS AND AUTHORITIES

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 20 of 25

discriminatory animus. See Rosenbaum, 484 F.3d at 1152-53. For example,

1 Plaintiffs do not claim that either Officer uttered a racial slur or made derogatory

2 remarks about the barbers' or clientele's race. Nor do they claim that either

3 Officer has on any other occasion engaged in conduct that could be interpreted as

4 racist.

5

Because Plaintiffs specifically claim that Code Enforcement, MVPD, and

6 Board supervisors made the decision to inspect Plaintiffs' barber shops, and

7 because the Complaint otherwise lacks allegations that might show Officers

8 Longdyke and Miller acted with a discriminatory intent, Plaintiffs fail to plead

9 facts necessary to state a claim for an equal protection violation against those

10 Officers. Freeman, 68 F.3d at 1188; Rosenbaum, 484 F.3d at 1153.

11

12 IV. PLAINTIFFS' FIRST CAUSE OF ACTION SHOULD BE DISMISSED

13

BECAUSE OFFICERS LONGDYKE AND MILLER ARE ENTITLED

14

TO QUALIFIED IMMUNITY

15

As local law enforcement and administrative officials sued personally for

16 money damages, Officers Longduke and Miller may assert a qualified immunity

17 defense. See Anderson v. Creighton , 483 U.S. 635,638-39, 107 S. Ct. 3034, 3038,

18 97 L. Ed. 2d 523, 530 (1987).

19

Qualified immunity is "an immunity from suit rather than a mere defense to

20 liability [and thus] is effectively lost if a case is erroneously permitted to go to

21 trial." Mitchellv. Forsyth, 472 U.S. 511, 526,105 S. Ct. 2806,2816,86 L. Ed. 2d

22 411 , 425 (1985). For this reason, the Supreme Court has ruled that resolution of

23 the qualified immunity defense should be made at the earliest possible stage in

24 litigation. Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 536, 116 L. Ed. 2d

25 589,595 (1991). Indeed, the Supreme Court has specifically directed that,

26 "[uJnless the plaintiffs allegations state a claim of violation of clearly established

27 law, a defendant pleading qualified immunity is entitled to dismissal before the

28 commencement of discovery." Behrens v. Pelletier, 516 U.S. 299, 306, 116 S. Ct.

13

MEMORANDUM OF POINTS AND AlITHORlTlES

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 21 of 25

834, 839, 133 L. Ed. 2d 773, 784 (1996) (internal quotation marks and citations

I omitted).

2

Officers Longdyke and Miller are entitled to qualified immunity if either: (i)

3 the facts alleged in Plaintiffs' Complaint fail to make out a violation of a

4 constitutional right; or (ii) that right allegedly violated was not "clearly

5 established" at the time of the Officers' alleged misconduct. Pearson v. Callahan.

6 129 S. Ct 808, 816-818, 172 L. Ed. 2d 565, 576 (2009). The Court may begin its

7 qualified immunity analysis with either of these determinations. !d. at 818.

8

As discussed above, see supra pp. 4-12, the allegations in Plaintiffs '

9 Complaint do not make out an equal protection violation. Even if they did, it was

10 not "clearly established" in April 2008 that the conduct alleged in Plaintiffs'

II Complaint constituted an equal protection. While it may have been apparent at

12 that time that local governments may not selectively enforce the law against

13 certain citizens because of their race, it certainly was not clear that law

14 enforcement actions conducted on a single day which disproportionately affect

15 persons of a particular class could, in and of themselves, constitute an equal

16 protection violation. See Bourgeois, 964 F.2d at 940. Officers Longdyke and

17 Miller are therefore entitled to qualified immunity from Plaintiffs' First Cause of

18 Action.

19 III

20 III

21 III

22 III

23 III

24 III

25 III

26 III

27 III

28 III

14

MEMORANDUM OF POINTS AND AUTHORITIES

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 22 of 25

V. CONCLUSION For the reasons discussed above, Plaintiffs' fail to state an equal protection
2 claim against Officers Longdyke and Miller. Also, those Officers are entitled to 3 qualified immunity from Plaintiffs' equal protection claim. Accordingly, Officers 4 Longdyke and Miller respectfully request that this Court dismiss Plaintiffs' First 5 Cause of Action against them. Fed. R. Civ. P. 12(b)(6).

6 7 DATED: July 6, 2009 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23
24

LA FOLLETTE, JOHNSON, DEHAAS, FESLER & AMES
OFFICE OF THE CITY ATTORNEY, CITY OF MORENO VALLEY
GREINES, MARTIN, STEIN & RICHLAND LLP
BY:__\~ lI.\-A-~u:h:1c\ :r'~Ax"n=t~ :h=on:y-B=ro=w:n--__ Attorneys for Defendants DENNIS LONGDYKE and LORI MILLER

25 26

27 28
15

MEMORANDUM OF POINTS AND AUTHORITIES

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 23 of 25
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 5900 Wilshire Boulevard. 12th Floor, Los Angeles, California 90036.
On July 6, 2009, I served the foregoing document described as: MOTION OF DEFENDANTS DENNIS LONGDYKE AND LORI MILLER TO DISMISS FIRST AMENDED COMPLAINT UNDER FRCP 12(b)(6) on the parties in this action by serving:
(SEE ATTACHED SERVICE LIST)

(X) By Envelope - by placing 0 the original (Xl a true copy thereof enclosed in sealed
envelopes addressed as above and delivering such envelopes:

(X) By Mail: As follows : I am "readily fami liar" with this finn's practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with United States Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinaI)' course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than I day after date ofdeposit for mailing in affidavit.

o By Facsimile Transmission: On

at _ _.m., I caused the above-named

document to be transmitted by facsimile transmission telephonically to the offices of the

addressee(s) at the facsimile number(s) so indicated above, The transmission was reported as

complete and without error. A copy of the transmission report properly issued by the

transmitting facsimile machine is attached hereto.

Executed on July 6, 2009, at Los Angeles, California.

() (State) I declare under penalty of perjury under the laws of the State of Califomi a that the foregoing is true and correct.

(X) (Federal) I declare that I am employed by the office of a member of the bar of this court at whose direction the service was made.

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 24 of 25
Re:Gordon, et.al. v. City of Moreno Valley. et. a1. United States District Court Case No.: ED CV 09-00688 SGL (Ssx)
SERVICE LIST
Peter Bibring Mark Rosenbaum Peter J. Eliasberg ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 Attorneys for Plaintiffs Kevon Gordon, Ronald Jones, Raymond Barnes, Quincy Brown
Stacy Shartin Rishi Puri Seyfarth Shaw LLP 2029 Century Park East Suite 3300 Los Angeles, CA 9006/-3063 Attorneys for Plaintiffs Kevon Gordon, Ronald Jones, Raymond Barnes, Quincy Brown
John M. Porter Lewis, Brisbois, Bisgaard & Smith 650 East HospitalityLane, Suite 600 San Bernardino, CA 92408 Attorneys for Defendants Stan Sniff, Rick Hall
Christopher Lockwood Arias & Lockwood 225 West Hospitality Lane, Suite 314 San Bernardino, CA 92408 Attorneys for Defendants Stan Sniff, Rick Hall, Arlene Bauby, Eric Brewer, County of Riverside, Robert Duckett, Seth Harnett, Mario Herrera, Anthony Johnson, Richard Hutson, Christopher Gastinger
Michael A. Bell La Follette, Johnson, Dehaas, Fesler & Ames A Professional Corporation 2280 Market Street, Suite 140 Riverside, California 92501 Attorneys for Defendant City of Moreno Valley
Robert D. Herrick City Attorney, City of Moreno Valley Robert L. Hansen Assistant City Attorney, City of Moreno Valley 14177 Frederick Street Moreno Valley, CA 92552 Attorneys for Defendant City of Moreno Valley

Case 5:09-cv-00688-SGL-SS Document 54 Filed 07/06/2009 Page 25 of 25
Diane De Kervor Deputy Attorney General San Diego Licensing Section CAAG - Office of the Attorney General I to West A Street Suite 1100 PO Box 85266 San Diego, CA 92186-5266 Attorneys for Defendant Kristy Underwood

 
 Case 5:09-cv-00688-JZ -SS Document 16 Filed 06/05/09 Page 1 of 19 Page ID #:75

1 John M. Porter, SBN 62427 LEWIS, BRISBOIS, BISGAARD & SMITH LLP
2 650 E. Hosp'itality Lane, Suite 600 San Bernardino, CA 92408
3 Phone: (909) 387-1130 Fax: (909) 387-1138
4
Christopher D. Lockwood, SBN 110853 5 Arias & Lockwood
225 W. Hospitality Lane, Suite 314 6 San Bernardino, CA 92408
Phone: (909) 890-0125 7 Fax: (909) 890-0185

8 Attorneys for defendants County of Riverside, Stan Sniff, Rick Hall

9

10

11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13

"<t

~ 00 14 KEVON GORDON, RONALD JONES,

~ .-=: 0

RAYMOND BARNES, QUINCY

oo;:t:I;J". <~t 15 BROWN,

~~<

u .:3 u. 16

Plaintiffs,

CASE NO. EDCV 09-688 SGL (SSx)
NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED COJvlPLAINT; MEMORANDUM OF

~ 0
~

......0........"°S0 .g! ;

_ 17

v.

POINTS AND AUTHORITIES

~ ~ ~E [/l 0..
18
- - ---~-~---T9

CITY 9F MORENQ VALLEY, a
-~F¥li~k~-rtfBriiic~m:Y----

DATE: July 6, 2009 TIME: 10:00
_______ROQM~l_ _ ___ _ ____________________________ _

~

CHIEF OF THE MORENO VALLEY

20 POLICE DEPARTMENJ; in his

official c_'!Pacity; KRIST r

21 UNDERWOOD, EXECUTIVE

OFFICER OF THE CALIFORNIA

22 BOARD OF BARBERING AND .

COSMETOLOGY, in her official

23 capacity; STAN SNIFF, RIVERSIDE

t COUNTY SHERIFF in his official
24 caJ?_afiry~ TONY HE STERBERG,

25 DMEINLNLlE~~LSOENTGHDHYAKRETNLEOTRTI6

ROBERl DUCKETT, MARl

26 ~Wo~rp~~~~R,

27 CHRISTOPHER GASTINGER, RICHARD HUTSON? JOE BROWN,
28 XOCHI CARMARGu, ARLENE

1

Case 5:09-cv-00688-JZ -SS Document 16 Filed 06/05/09 Page 2 of 19 Page ID #:76

1 BAUBY, and DOES 1-20, in their

individual capacities, 2 Defendants.

3

Defendants

I

4

5

Please take notice that on July 6,2009, at 10:00 a.m., in courtroom 1,

6 defendants County of Riverside, Stan Sniff, and Rick Hall will move the court for

7 an order dismissing the following portions of the first amended complaint:

8

1. The third claim for relief.

9

2. The fourth claim for relief.

10

3. The fifth claim for relief.

11

4. The prayer for injunctive relief.

12

The motion shall be based on the attached memorandum of points and

13 authorities and arguments of counsel. 14 DATED: June 5, 2009

ARIAS & LOCKWOOD

15

16

17

- -- -

18
- ---- ~ - -
19

MEET AND CONFER .__________ - - - - - - -- --------- ~-

~-

... .. ..-.-.--- .. ------~---

-.~-

- - - ------- - - - ---C--O-M - -P-L- I- A - -N--CE-··----~---~-

0 _____ • ___

_

20

I sent a draft motion to dismiss the original complaint to plaintiffs' counsel

21 which included these same issues. After reviewing it, he decided to amend, and we

22 stipUlated that no response was required to the original complaint.

23

After receipt of the first amended complaint I sent a meet and confer letter,

24 followed by another draft motion to dismiss. Plaintiffs' counsel declined to dismiss

25 the claims addressed in this motion.

26

27

28

11

Case 5:09-cv-00688-JZ -SS Document 16 Filed 06/05/09 Page 3 of 19 Page ID #:77

1 2 I 3 II 4 III

TABLE OF CONTENTS Summary of Argument .......................................... 1 Summary of Plaintiffs' Allegations ................................ 1 Summary of Claims for Relief .................................... 2

5 IV 6 7 V
8 9
10
11
12 13 VI 14 15 16
17

Portions of a Complaint Which Do Not State a Claim for Relief May Be Dismissed .................................................... 2 The Third and Fourth Claims for Relief and the Prayer for Injunctive Relief Should Be Dismissed ........................................... 3 A. Allegations of the Third and Fourth Claims . . . . . . . . . . . . . . . . . . . . . . . 3 B. Federal Law ................................................ 4 C. California Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 D. Application of the Law to the First Amended Complaint ............ 9 The Fifth Claim for Relief Should Be Dismissed. . . . . . . . . . . . . . . . . . . . . 10 A. To the Extent this Claim Seeks Injunctive Relief, it Should Be Dismissed for the Same Reasons as the Third and Fourth Claims . . . . . . . . 10 B. California Law ............................................. 11 C. Federal Law ............................................... 12

18 Conclusion ........................................................ 13

19

20

21

22

23

24

25

26

27

28

111

Case 5:09-cv-00688-JZ -SS Document 16 Filed 06/05/09 Page 4 of 19 Page ID #:78

1

TABLE OF AUTHORITIES

2 Federal Cases

3 American Dietaids Co. v. Celebrezze,

4

317 F.2d 658 (2nd Cir. 1963) ..................................... 11

5 Beacon Theaters, Inc. v. Westover,

6

359 U.S. 500 (959) ............................................ 13

7 C & S Management, LLC v. Superior Canopy Corp.,

8

2008 U.S.Dist.Lexis 100800 (N.D.Inc. 2008)........................ 12

9 City of Los Angeles v. Lyons,

10

461 U.S. 95 (1983) ............................................. 4

11 Dairy Queen, Inc. v. Wood,

12

369 U.S. 469 (1962) ........................................... 13

13 Durovic. v. Palmer,

14

342 F.2d 634 (7th Cir. 1965) ..................................... 11

15 Gulf Ins. Co. v. First Bank,

16

2008 U.S.Dist.Lexis 53563 (B.D. Cal. 2008) ........................ 12

17 Hodgers-Durgin v. DeLaVina,

18

199 F.3d 1037 (9th Cir. en banc 1999) .............................. 6

19 In re Iraq and Afghanistan Detainees -- -- ------ -- -- -- --- .. LitigaiIon~----~-------------~---- ------ ---------- ------ ~~-----~----- -~-- ---~--------

---------~---------.-

20

479 F.Supp.2d 85 (D.D.C. 2007) ................................. 11

21 Jerome-Duncan, Inc. v. Auto-By-TeL LLC,

22

989 F.Supp. 838 (B.D.Mich. 1997) ................................ 12

23 Lytle v. Household Mfg, Inc.,

24

494 U.S. 545, 553 (1990)........................................ 13

25 Pantry, Inc. v. Stop-N-Go Foods, Inc.,

26

777 F.Supp. 713 (S.D. Ind. 1991) ................................. 12

27 Shum v. Intel Corp.,

28

499 F.3d 1272 (Fed. Cir. 2007) ................................... 13

IV

Case 5:09-cv-00688-JZ -SS Document 16 Filed 06/05/09 Page 5 of 19 Page ID #:79

1 Weststeyn Dairy 2. v. Eades Commodities Co.,

2

280 F.Supp.2d 1044 (E.D.Cal. 2003) ............................. 11

3 Xoxide, Inc. v. Ford Motor Co.,

4

448 F.Supp.2d 1188 (C.D. Cal. 2006) ............................. 12

5

6 California Cases

7 Baluyut v. Superior Court,

8

12 Cal.4th 826 (1996) .......................................... 11

9 East Bay Municipal Utility District v. California Department of Forestry & Fire,

10

43 Cal.AppAth 1113 (1996) ..................................... 9

11 Gafcon, Inc. v. Ponser & Associates,

12

98 Cal.AppAth 1388 (2002) ..................................... 12

13 Intel Corp. v. Hamadi,

14

30 Cal.4th 1342 (2003) .......................................... 9

15 People v. Gemmell,

16

162 Cal.AppAth 958 (2008) .................................... 11

17 Roberts v. Los Angeles Bar Association,

18

105 Cal.AppAth 604 (2003) .................................... 12

19 Russell v. Douvan,

20

112 Cal.AppAth 399 (2003) ...................................... 9

21 Travers v. Louden,

22

254 Cal.App.3d 926 (1967) ..................................... 12

23
24 Federal Statutes and Rules 25 28 U.S.C. § 2201 ................................................... 12 26 F.R.Civ.P. Rule 12(b)(6) .............................................. 2

27

28

v

Case 5:09-cv-00688-JZ -SS Document 16 Filed 06/05/09 Page 6 of 19 Page ID #:80

1 California Statutes 2 Code of Civil Procedure § 1060 ....................................... 11 3 Code of Civil Procedure § 1061. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

4 5

6

7

8

9 10

11

12

13 14

15

16

17

18

--- - - - " - - - --- .---.--------.--~
19

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.. .. .. ----_._-------_..__ .. _.._---"---- - ." -.-.--~-

~---

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._-------

..

---

--_ ._-----_ _-------- .... -- .. -----.. .. ----.-.---.--.-~.-

---.-

..

"-"------ -----

----

.. _---

20

21
22

23

24

25
26

27

28

VI

Case 5:09-cv-00688-JZ -SS Document 16 Filed 06/05/09 Page 7 of 19 Page ID #:81

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

I

3

SUMMARY OF ARGUMENT

4

This lawsuit is based on alleged events on a single day over a full year ago.

5 Nevertheless, the first amended complaint contains two claims for relief which

6 request injunctive relief asking for unspecified changes in policies. An injunction

7 may be granted only if there is something ongoing or threatened which will cause

8 irremediable injury absent an injunction. No ongoing conduct is alleged and there

9 is no allegation of any likelihood of future injuries of any kind. These claims for

10 relief and the corresponding prayer for injunctive relief should be dismissed.

11

The first amended complaint also contains a claim for declaratory relief. To

12 the extent that claim seeks injunctive relief, it should be dismissed for the same

13 reasons. The remaining portions duplicate the substantive causes of action and are

14 completely redundant. The entire declaratory relief claim should be dismissed.

15

16

II

17

SUMMARY OF PLAINTIFFS' ALLEGATIONS

18

Plaintiffs allege that on April 2, 2008, officers of the "City of Moreno Valley

- -~- ~- ~~-1~9 -Police~Dep~artment,"ract1ng in~conJunctTon with-Si:iie- and-locarInspeCiors,----~---~~--------

20 conducted "raid-style" inspections of several barbershops. C,-r 3) Plaintiffs allege

21 that five of the six barbershops inspected on that date were owned by, and catered

22 to, African-Americans. C,-r 4, 19)

23

Plaintiffs also allege that "MVPD officers" had inspected one of the

24 barbershops in late 2007 or early 2008 and again in early 2008. C,-r 26) During the

25 first of these inspections, officers questioned employees and customers, ran warrant

26

27

lThere is no City of Moreno Valley police department, but simply a

28 substation of the Sheriffs Department of the County of Riverside. See paragraphs

13 and 14 of the first amended complaint.

1

Case 5:09-cv-00688-JZ -SS Document 16 Filed 06/05/09 Page 8 of 19 Page ID #:82

1 checks, and searched the house of one barber with his consent. (~27) During the 2 second of these inspections, officers did a cursory visual inspection, collected 3 identifications, and ran warrant checks. (~28) There is no allegation that the prior 4 inspections targeted any group of barbershops.

5

6

III

7

SUMMARY OF CLAIMS FOR RELIEF

8

1. Violation of the equal protection clause of the 14th amendment based on

9 selective enforcement based on race. The only relief expressly listed in this claim is

10 damages, but the prayer includes injunctive relief which may be based in part based

11 on this claim.

12

2. Violation of the 4th amendment by unreasonable searches. Again, the only

13 relief expressly listed in this claim is damages, but the prayer includes injunctive

14 relief which may be based in part on this claim.

15

3. Violation of California Constitution, Article I, § 7, for injunctive relief

16 only.

17

4. Violation of California Constitution, Article I, § 13 for injunctive relief

18 only.

_._- -

-----_. __.- - - -
19

~----- --5~-Declaratory-reHef,appareiitly-basea-on-ootlistateariafederarlaw:-------------

20

21

IV

22 PORTIONS OF A COMPLAINT WHICH DO NOT STATE A CLAIM FOR

23

RELIEF MAY BE DISMISSED

24

F.R.Civ.P. Rule 12(b)(6).

25 III

26 III

27 III

28 III

2

Case 5:09-cv-00688-JZ -SS Document 16 Filed 06/05/09 Page 9 of 19 Page ID #:83

1

V

2 THE THIRD AND FOURTH CLAIMS FOR RELIEF AND THE PRAYER

3

FOR INJUNCTIVE RELIEF SHOULD BE DISMISSED

4

The third and fourth claims seek injunctive relief based on California law.

5 The prayer also seeks injunctive relief; it is not clear whether this is limited to the

6 third and fourth claims and whether it is based only on California law or also on

7 federal law.

8

There are no allegations of any ongoing conduct and no allegation that

9 plaintiffs have any reasonable basis for believing that anything will occur in the

10 future absent an injunction. There is no basis for injunctive relief under either

11 federal or California law.

12 A. ALLEGATIONS OF THE THIRD AND FOURTH CLAIMS

13

In the third claim, plaintiffs allege: the actions of "defendants" violated the

14 right to be free from- unreasonable searches under Article I, § 13 of the California 15 Constitution. (~48) The use of "threats, intimidation and coercion" violated

16 "rights guaranteed to Plaintiffs by the United States and California Constitutions."

17 (~49)

18

In the fourth claim, plaintiffs allege: "Defendants" violated the equal

( I 7 ~ --_. - ~- -~ --~- --- -1- -9---p-- ;~tecti~~-p~o~isions-o-fArticle

of~the- CalifomiaConstltuffon~ -(~ 5 f)'Tlie----- ----

20 use of "threats, intimidation and coercion" violated "rights guaranteed to Plaintiffs

21 by the United States and California Constitutions." (~52)

22

Neither of these claims requests any type of relief. However, both are labeled

23 as seeking injunctive relief only, and the prayer includes the following:

24

As to Defendants Hall and Sniff, an injunction prohibiting racial

25

profiling and the conduct of administrative searches as described

26

herein. (First amended complaint, 12/26/-27)

27

The third and fourth claims are only brought against defendants Underwood,

28 Hall and Sniff.

3

Case 5:09-cv-00688-JZ -SS Document 16 Filed 06/05/09 Page 10 of 19 Page ID #:84

1 B. FEDERAL LAW

2

Although these claims are based solely on state law, plaintiffs cannot bring

3 them in federal court unless they have standing to do so. Settled law holds that they

4 lack standing.

5

City of Los Angeles v. Lyons, 461 U.S. 95 (1983), is directly on point. In

6 that case the plaintiff alleged that he had been stopped by city officers and for no

7 reason whatsoever they used a chokehold on him. The district court granted an

8 injunction against the use of chokeholds and the Ninth Circuit affirmed. The

9 Supreme Court reversed and held that the claim for injunctive relief should have

10 been dismissed based on lack of standing to assert it.

11

It goes without saying that those who seek to invoke the

12

jurisdiction of the federal courts must satisfy the threshold requirement

13

imposed by Art. III of the Constitution by alleging an actual case or

14

controversy. [Citations]. Plaintiffs must demonstrate a "personal stake

15

in the outcome" in order to "assure that concrete adverseness which

16

sharpens the presentation of issues" necessary for the proper resolution

17

of constitutional questions. [Citation] Abstract injury is not enough.

18

The plaintiff must show that he "has sustained or is immediately in

- ~-- ---~---i9-- ------danger-ofsustafning-someclirecfinjiiry"--as-tneresurfof1ne~challengea---------- --~--

20

official conduct and the injury or threat of injury must be both "real

21

and immediate," not "conjectural" or "hypothetical." [Citations]

22

23

No extension of O'Shea and Rizzo is necessary to hold that

24

respondent Lyons has failed to demonstrate a case or controversy with

25

the City that would justify the equitable relief sought. [Footnote]

26

Lyons' standing to seek the injunction requested depended on whether

27

he was likely to suffer future injury from the use of the chokeholds by

28

police officers. Count V of the complaint alleged the traffic stop and

4

Case 5:09-cv-00688-JZ -SS Document 16 Filed 06/05/09 Page 11 of 19 Page ID #:85

1 2 3 4 5 6 7 8 9 10
11
12
13
14 15 16 17 18
----.~ - - - - -------
19 20 21 22 23 24 25 26 27 28

choking incident five months before. That Lyons may have been

illegally choked by the police on October 6, 1976, while presumably

affording Lyons standing to claim damages against the individual

officers and perhaps against the City, does nothing to establish a real

and immediate threat that he would again be stopped for a traffic

violation, or for any other offense, by an officer or officers who would

illegally choke him into unconsciousness without any provocation or

resistance on his part. The additional allegation in the complaint that

the police in Los Angeles routinely apply chokeholds in situations

where they are not threatened by the use of deadly force falls far short

of the allegations that would be necessary to establish a case or

controversy between these parties.

In order to establish an actual controversy in this case, Lyons

would have had not only to allege that he would have another

encounter with the police but also to make the incredible assertion

either (1) that all police officers in Los Angeles always choke any

citizen with whom they happen to have an encounter, whether for the

purpose of arrest, issuing a citation, or for questioning, or (2) that the

----

-----------------~---------~------------.

-- -

- - - - --- - - - - - -------------- -- --_.._-------

City ordered or authorized police officers to act in such manner.

Although Count V alleged that the City authorized the use of the

control holds in situations where deadly force was not threatened, it

did not indicate why Lyons might be realistically threatened by police

officers who acted within the strictures of the City's policy. If, for

example, chokeholds were authorized to be used only to counter

resistance to an arrest by a suspect, or to thwart an effort to escape, any

future threat to Lyons from the City's policy or from the conduct of

police officers would be no more real than the possibility that he would

again have an encounter with the police and that either he would

5

Case 5:09-cv-00688-JZ -SS Document 16 Filed 06/05/09 Page 12 of 19 Page ID #:86

1

illegally resist arrest or detention or the officers would disobey their

2

instructions and again render him unconscious without any

3

provocation. [Footnote]

4

5

Lyons fares no better if it be assumed that his pending damages

6

suit affords him Art. III standing to seek an injunction as a remedy for

7

the claim arising out of the October 1976 events. The equitable remedy

8

is unavailable absent a showing of irreparable injury, a requirement

9

that cannot be met where there is no showing of any real or immediate

10

threat that the plaintiff will be wronged again -- a "likelihood of

11

substantial and immediate irreparable injury." [Citation] The

12

speculative nature of Lyons' claim of future injury requires a finding

13

that this prerequisite of equitable relief has not been fulfilled.

14

Absent a sufficient likelihood that he will again be wronged in a

15

similar way, Lyons is no more entitled to an injunction than any other

16

citizen of Los Angeles; and a federal court may not entertain a claim

17

by any or all citizens who no more than assert that certain practices of

18

law enforcement officers are unconstitutional. [Citations] This is not

_. "---- ~ --- ----"---- --- - --
19

-.. tosuggesfthafsuc!1-undi.fferenfiatecfclalmssnoura-nofDe-tal<en--·-·-- -..--..------ --

20

seriously by local authorities. Indeed, the interest of an alert and

21

interested citizen is an essential element of an effective and fair

22

government, whether on the local, state, or national level. [Footnote]

23

A federal court, however, is not the proper forum to press such claims

24

unless the requirements for entry and the prerequisites for injunctive

25

relief are satisfied.

26

In Rodgers-Durgin v. DeLaVina, 199 F.3d 1037 (9th Cir. en banc 1999), the

27 Ninth Circuit emphasized another element any plaintiff must meet in order to obtain

28 injunctive relief. In that case two plaintiffs, both of whom are American citizens,

6

Case 5:09-cv-00688-JZ -SS Document 16 Filed 06/05/09 Page 13 of 19 Page ID #:87

1 alleged that when they were improperly stopped by Border Patrol agents. They

2 sought injunctive relief against future stops by Border Patrol agents. The court

3 assumed without deciding that standing had been shown, but found no basis for

4 injunctive relief since there was no showing of irreparable injury.

5

Nonetheless, even if we assume that plaintiffs have asserted

6

sufficient likelihood of future injury to satisfy the "case or

7

controversy" requirement of Article III standing to seek equitable

8

relief, we find that plaintiffs are not entitled to equitable relief because

9

of the second, alternative ground advanced in Lyons: "The equitable

10

remedy is unavailable absent a showing of irreparable injury, a

11

requirement that cannot be met where there is no showing of any real

12

or immediate threat that the plaintiffs will be wronged again - a

13

'likelihood of substantial and immediate irreparable injury.'" [Citation

14

and footnote]

15

The Supreme Court has repeatedly cautioned that, absent a threat

16

of immediate and irreparable harm, the federal courts should not enjoin

17

a state to conduct its business in a particular way. [Citations] In

18

O'Shea, the Court focused on considerations of federalism, explaining

---- --i proper ~~ ~-~- -~

9 --~---th~aT"theneecrfor-a

balancebetweensfa:feal1(rfe-derarauth-ority~~~-- --~ ~-~

20

counsels restraint in the issuance of injunctions against state officers

21

engaged in the administration of the States' criminal laws in the

22

absence of irreparable injury which is both great and immediate."

23

[Citation] Of particular concern in that case was maintaining the

24

delicate balance between "federal equitable power and State

25

administration of its own law," [citation], and determining whether the

26

relief sought "would disrupt the normal course of proceedings in the

27

state courts ... [and] would require for its enforcement the continuous

28

supervision by the federal court over the conduct of [state officers] in

7

Case 5:09-cv-00688-JZ -SS Document 16 Filed 06/05/09 Page 14 of 19 Page ID #:88

1

the course of future criminal trial proceedings[.]" [Citation] As the

2

Court explained in O'Shea, "[a] federal court should not intervene to

3

establish the basis for future intervention that would be so intrusive

4

and unworkable." [Citation]

5

6

In Lyons, O'Shea and Rizzo, the Supreme Court required the

7

plaintiffs~o show a likelihood of substantial and immediate irreparable

8

injury in order to give appropriate consideration to the values of

9

federalism. It is not clear from the Supreme Court's opinions that

10

separation of powers concerns counsel against injunctive relief as·

11

strongly as do federalism concerns, but it is at least clear that they are

12

relevant and significant. ...

13

We hold that Mr. Lopez and Ms. Rodgers-Durgin have not

14

demonstrated a sufficient likelihood of injury to warrant equitable

15

relief. Mr. Lopez drives between 400 and 500 miles a week and sees

16

Border Patrol agents nearly every day. Ms. Rodgers-Durgin drives

17

between Rio Rico and Nogales at least four or five times a week and

18

--

-

~.

-- - -.---.-~

-----

19

sees Border Patrol agents "all over the place" whenever she travels.

. -sfoppea -once-- . --. ---- . --yeCrv.rr~Lop-ezan~cCMs.-Hoagers~Durginweieeach

only

-~-

20

in 10 years. Based on plaintiffs' own factual record, we believe that it

21

is not sufficiently likely that Mr. Lopez or Ms. Rodgers-Durgin will

22

again be stopped by the Border Patrol. In the absence of a likelihood of

23

injury to the named plaintiffs, there is no basis for granting injunctive

24

relief that would restructure the operations of the Border Patrol and

25

that would require ongoing judicial supervision of an agency normally,

26

and properly, overseen by the executive branch. 199 F.3d at 1042-

27

1044.

28 III

8

Case 5:09-cv-00688-JZ -SS Document 16 Filed 06/05/09 Page 15 of 19 Page ID #:89

1 C. CALIFORNIA LAW

2

California law also provides that an injunction cannot be issued absent an

3 ongoing problem in need of enjoining. Intel Corp. v. Hamadi, 30 Cal.4th 1342,

4 1352 (2003) ("in order to obtain injunctive relief the plaintiff must ordinarily show 5 that the defendant's wrongful acts threaten to cause irreparable injuries, ones that

6 cannot be adequately compensated in damages"); East Bay Municipal Utility

7 District v. California Department of Forestry & Fire, 43 Cal.AppAth 1113, 1126 8 (1996) ("An injunction properly issues only where the right to be protected is clear,

9 injury is impending and so immediately likely as only to be avoided by issuance of

10 the injunction"); Russell v. Douvan, 112 Cal.AppAth 399,401 (2003)

11 ("Consequently, injunctive relief lies only to prevent threatened injury and has no

12 application to wrongs that have been completed. [Citation.] It should neither serve 13 as punishment for past acts, nor be exercised in the absence of any evidence 14 establishing the reasonable probability the acts will be repeated in the future... 15 .'Thus, to authorize the issuance of an injunction, it must appear with reasonable 16 certainty that the wrongful acts will be continued or repeated.' [Citation]").

17 D. APPLICATION OF THE LAW TO THE FIRST AMENDED

18 COMPLAINT

--- - ---- - - ._- .--.-~------.19

-~--······-···Under federaTlaw~-aplaIntiffTaa(s-stanaing-tOseeK-injunctivereIiefbasea-on--

20 past events absent a basis for believing that the plaintiff will be injured in the future 21 by the same defendant as a result of similar events. Under both federal and

22 California law, an injunction may not be issued absent (1) an ongoing or reasonably

23 threatened violation of the plaintiff s rights which (2) is likely to cause irremediable

24 injury and (3) which would be remedied by an injunction.

25

None of these basic elements are met. The last acts alleged in the complaint

26 were on April 2, 2008, more than a year ago. There is no allegation of any ongoing

27 problem. There are no allegations of any basis for believing that the plaintiffs are at

28 all likely to suffer any future injuries of any kind.

9

Case 5:09-cv-00688-JZ -SS Document 16 Filed 06/05/09 Page 16 of 19 Page ID #:90

----"-- --~ ----"--

1

In short, plaintiffs lack standing to seek injunctive relief and no facts are

2 alleged to support injunctive relief. The third and fourth claims for relief, along

3 with the prayer for injunctive relief, should be dismissed.

4

5

VI

6

THE FIFTH CLAIM FOR RELIEF SHOULD BE DISMISSED

7

The fifth claim seeks declaratory relief under a vague combination of federal

8 and California law. Other than incorporation of the allegations of prior claims, the

9 entire allegations are:

10

There is a real and actual controversy between Plaintiffs and

11

Defendants regarding whether Defendants may take actions as alleged

12

herein. Plaintiffs contend that Defendants have violated the

13

Constitution and laws of the United States and California. Plaintiffs

14

anticipate that Defendants will deny these contentions. Plaintiffs fear

15

that they will again be subjected to such unlawful and unconstitutional

16

actions. They seek a judicial declaration that Defendants' conduct has

17

deprived, and continues to deprive, Plaintiffs of their rights under the

18

Constitution and laws of the United States. (~54)

19

The-fifth claim doesnofspeCiry-wllicllaefendanfsagainsfwliomdeClarafory-----

20 relief is sought. This claim also fails under both federal and California law.

21 A. TO THE EXTENT THIS CLAIM SEEKS INJUNCTIVE RELIEF, IT

22 SHOULD BE DISMISSED FOR THE SAME REASONS AS THE THIRD

23 AND FOURTH CLAIMS

24

This claim seeks a declaration that "Defendants' conduct ... continues to

25 deprive, Plaintiffs of their rights under the Constitution and laws of the United

26 States." They contend they "fear that they will again be subjected to such unlawful

27 and unconstitutional actions." This appears to be an inartful way of requesting an

28 injunction against some unspecified ongoing conduct.

10

Case 5:09-cv-00688-JZ -SS Document 16 Filed 06/05/09 Page 17 of 19 Page ID #:91

1

No ongoing conduct is alleged; again, the last alleged event is April 2, 2008,

2 more than a year ago. To the extent this is a request for an injunction against future

,.,
.)

conduct based on past events, that request should be dismissed for the same reasons

4 that the third and fourth claims should be dismissed. See In re Iraq and Afghanistan

5 Detainees Litigation, 479 F.Supp.2d 85, 118-119 (D.D.C. 2007) (request for

6 declaratory relief based on past conduct must meet the same showing of a likely

7 future injury as for injunctive relief). Past actions are not a basis for declaratory

8 relief absent a reason to believe there will be similar actions in the future.

9 American Dietaids Co. v. Celebrezze, 317 F.2d 658 (2nd Cir. 1963); Durovic. v. 10 Palmer, 342 F.2d 634 (7th Cir. 1965).

11 B. CALIFORNIA LAW

12

Code of Civil Procedure § 1060 authorizes a court to grant declaratory relief

13 concerning rights under a contract, with respect to real property or watercourses, or

14 "his or her rights with respect to another." However, a court should not grant

15 declaratory relief "where its declaration or determination is not necessary or proper

16 at the time under all the circumstances." Code of Civil Procedure § 106l.

17

Under California law, the law applicable to selective enforcement and to

18 search and seizure is essentially the same as federal law. Baluyut v. Superior Court,

_.. _" -

_____ __0- - - ~ ~____

--

19

-f2Cal.4tli 820,-S31 =832 (1990J(Citing-staie-andIeaerarcase-s-aoourselective ------ .

--..--

20 enforcement interchangeably); People v. Gemmell, 162 Cal.AppAth 958, 963

21 (2008) (the 4th amendment and California Constitution, article I, § 13 provide

22 similar guarantees concerning searches).

23

Under California law, a request for declaratory relief which simply overlaps

24 with a claim for damages or injunctive relief should be dismissed, because

25 resolution of the substantive claim inherently resolves the claim for declaratory

26 relief as well. Weststeyn Dairy 2. v. Bades Commodities Co., 280 F.Supp.2d 1044,

27 1090 (B.D.Cal. 2003) ("They do not show that declaratory relief would be different

28 from the rights that will be determined by decision on their substantive claims and

11

-~--.--

- - - - - - - . - - - - - - .. .--.~-----.---

..

..

Case 5:09-cv-00688-JZ -SS Document 16 Filed 06/05/09 Page 18 of 19 Page ID #:92

1 entitlement to money damages, the ultimate remedy they seek. Plaintiffs do not

2 establish what rights and duties need to be declared that will not be resolved by

3 their other claims. Defendant is entitled to summary judgment on the declaratory

4 relief claim."); Travers v. Louden, 254 Cal.App.3d 926 (1967) (action for

5 declaratory relief was properly dismissed when damages afforded a complete

6 remedy); Gafcon, Inc. v. Ponser & Associates, 98 Ca1.AppAth 1388, 1404 (2002)

7 ("Because declaratory relief operates prospectively only, rather than to redress past

8 wrongs, Gafcon's remedy as against Ponsor lies in pursuit of a fully matured cause

9 of action for money, if any exists at all"); Roberts v. Los Angeles Bar Association,

10 105 Ca1.AppAth 604,619 (2003) (declaratory relief is not a proper remedy when

11 only past actions are at issue); Gulf Ins. Co. v. First Bank, 2008 U.S.Dist.Lexis
12 53563, * 15-16 (B.D. Cal. 2008) (declaratory relief dismissed because it presented

13 no issues that would not be resolved by the substantive claims).

14 C. FEDERAL LAW

15

28 U.S.C. § 2201 limits declaratory relief to actual and present controversies.

16 Bven then, a district court has discretion whether to grant declaratory relief.

17 Xoxide, Inc. v. Ford Motor Co., 448 F.Supp.2d 1188 (C.D. Cal. 2006) ("Under both

18 California and federal law, the Court is vested with discretion in determining

-- --- ~

-- -_._-

19 whether-declaratory-reIieriS necessaryorp-roper-giverithe-particuTar-Circumsiances--- -

20 presented to the Court.").

21

A claim for declaratory relief should be dismissed when it duplicates a

22 substantive claim for damages which will fully resolve the issues. Pantry, Inc. v.

23 Stop-N-Go Foods, Inc., 777 F.Supp. 713, 717~718 (S.D. Ind. 1991); Jerome-

24 Duncan, Inc. v. Auto-By-TeL LLC, 989 F.Supp. 838, 840 (B.D.Mich. 1997); C & S
25 Management LLC v. Superior Canopy Corp., 2008 U.S.Dist.Lexis 100800, * 30-31

26 (N.D.Inc. 2008).

27

The Seventh Amendment guarantees the right to trial by jury. When there are

28 some issues triable to the court and some to the jury, all common factual issues

12

--------~--------~~------~--------

Case 5:09-cv-00688-JZ -SS Document 16 Filed 06/05/09 Page 19 of 19 Page ID #:93

1 must be tried to the jury first, and the court is then bound by the jury's 2 determination. It is a direct violation of the Seventh Amendment to reverse the

3 order of trial. Beacon Theaters, Inc. v. Westover, 359 U.S. 500 (959); Dairy Queen,

4 Inc. v. Wood, 369 U.S. 469 (1962); Shum v. Intel Corp., 499 F.3d 1272, 1276 (Fed.

5 Cir. 2007); Lytle v. Household Mfg, Inc., 494 U.S. 545, 553 (1990).

6

The Seventh Amendment requires the substantive claims to be resolved in

7 advance of the declaratory relief claim. The resolution of the substantive claims

8 will inherently resolve the declaratory relief claim.

9

10

CONCLUSION

11

For all the foregoing reasons, it is respectfully submitted that the third,

12 fourth, and fifth claims should be dismissed, and that the prayer for injunctive relief

13 should be dismissed.
14 DATED: June 12r.:.-.-::2-009

ARIAS & LOCKWOOD

15

16

B Ch~ ;i~ st~ o~> ac- k-- w0- 0d-­:=:>

17

Attomeys:f()fQefendants County of

Riverside, Stan Sniff, Rick Hall

18

19

20

21

22

23

24

25

26

27

28

13

 
 Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 1 of 26 Page ID #:130

1 EDMUND G. BROWN JR. Attorney General of California
2 JAMES M. LEDAKIS Supervising Deputy Attorney General
3 DIANE DE KERVOR Deputy Attorney General
4 State Bar No. 174721 110 West A Street, Suite 1100
5 San Diego, CA 92101 P.O. Box 85266
6 San Diego, CA 92186-5266 Telephone: (619) 645-2611
7 Fax: (619) 645-2061 E-mail: diane.dekervor@doj.ca.gov
8 Attorneys for Defendant

9 IN THE UNITED STATES DISTRICT COURT

10 FOR THE CENTRAL DISTRICT OF CALIFORNIA

11 EASTERN DIVISION

12

KEVON GORDON, RONALD JONES, 13 RAYMOND BARNES,

ED CV 09-00688 SGL SSx

QUINCY BROWN 14

DEFENDANT UNDERWOOD’S Plaintiffs, MEMORANDUM OF POINTS

15

v.

AND AUTHORITIES IN SUPPORT OF MOTION TO

16 CITY OF MORENO VALLEY, a Municipal Corporation; COUNTY OF

DISMISS FIRST AMENDED COMPLAINT

17 18 19

RIVERSIDE; RICK HALL, CHIEF OF THE MORENO VALLEY POLICE DEPARTMENT, in his Official Capacity; KRISTY UNDERWOOD, EXECUTIVE OFFICER OF THE CALIFORNIA

Date: July 13, 2009 Time: 10:00 a.m. Courtroom: 1 Judge: Hon. Stephen G. Larson

BOARD OF BARBERING AND

20 COSMETOLOGY, in her Official

Capacity; STAN SNIFF, RIVERSIDE

21 COUNTY SHERIFF, in his Official

Capacity; TONY HEISTERBERG, 22 DENNIS LONGDYKE, LORI MILLER,
SETH HARTNETT, ROBERT 23 DUCKETT, MARIO HERRERA, ERIC
BREWER, ANTHONY JOHNSON, 24 CHRISTOPHER GASTINGER,

RICHARD HUTSON, JOE BROWN, 25 XOCHI CAMARGO, ARLENE BAUBY,
and DOES 1-20, in their individual 26 capacities,

27

Defendants.

28

ED CV 09-00688 SGL SSx

Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 2 of 26 Page ID #:131

1

TABLE OF CONTENTS

2 Page
3

4 Introduction................................................................................................................ 1 California’s regulation of barbershops ...................................................................... 2
5 Standards on Motion to Dismiss................................................................................ 3

6 Argument ................................................................................................................... 4

7

I. The claims for injunctive relief should be dismissed because plaintiffs lack standing to bring such claims. ....................................... 4

8

II. The third cause of action should be dismissed because plaintiffs

have failed to allege a violation of their right to equal protection

9

under the law. ........................................................................................ 5

10

A. Plaintiffs have alleged no facts demonstrating an intent or purpose to discriminate against the barbershops based

11

upon race..................................................................................... 6

B. Even if the court finds that plaintiffs have stated an equal

12

protection claim, defendant Underwood should be

dismissed from the claim. ........................................................... 8

13

III. The fourth cause of action should be dismissed because

14

plaintiffs have failed to allege a violation of their right to protection from unreasonable searches. ................................................ 9

15

A. Administrative inspections of licensed barbershops do not

require a warrant. ...................................................................... 10

16

B. Warrantless searches of barbershops pursuant to the

17

barbering act are reasonable. .................................................... 12

C. Plaintiffs have failed to allege how the board’s april 2,

18

2008 inspections of the barbershops were not reasonable ....... 16

19

IV. The California Civil Code section 52.1 allegations should be dismissed because plaintiffs have failed to allege facts

20

supporting a claim for violation of their rights or that the alleged violation was accomplished by means of threats, intimidation, or

21

coercion. .............................................................................................. 17

V. The fifth cause of action should be dismissed because plaintiffs’

22

claim for declaratory relief is not ripe................................................. 18

23 Conclusion ............................................................................................................... 20

24

25

26

27

28

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1 2 3 CASES

TABLE OF AUTHORITIES

Page

4 Arnold v. International Business Machines Corp.

5

637 F.2d 1350 (9th Cir.1981).................................................................................................... 9

6 Baker v. McCollan
443 U.S. 137

7

99 S. Ct. 2689

61 L. Ed. 2d 433 (1979) ............................................................................................................ 3
8

Balistreri v. Pacifica Police Department

9

901 F.2d 696 (9th Cir. 1988)..................................................................................................... 3

10 Beliveau v. Caras

11

873 F. Supp. 1393 (C.D. Cal. 1995).......................................................................................... 3

12 Bell Atl. Corp. v. Twombly

550 U.S. 544

13

127 S. Ct. 1955

167 L. Ed. 2d 929 (2007) ...................................................................................................... 3, 7
14

15

Colonnade Catering Corp. v. U.S., 397 U.S. 72

16

90 S. Ct. 774

25 L. Ed. 2d 60 (1970)

17

182 A.L.R. Fed. 467 (2002) ................................................................................................... 11

18 City and County of San Francisco v. Ballard
136 Cal. App. 4th 381 (2006) ................................................................................................. 17
19

20

City of Los Angeles v. Lyons 461 U.S. 95

21

103 S. Ct. 1660

75 L. Ed. 2d 675 (1983) ............................................................................................................ 4

22

Colonnade Catering Corp. v. U.S.

23

397 U.S. 72

24

90 S. Ct. 774 25 L. Ed. 2d 60 (1970) ...................................................................................................... 11, 12

25 Cornwell v. Hamilton

26

80 F. Supp. 2d 1101 (S.D. Cal. 1999) ....................................................................................... 2

27

28

ii

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1

TABLE OF AUTHORITIES

2 3 Donovan v. Dewey

(continued)

Page

4

452 U.S. 594 101 S. Ct. 2534

5

69 L. Ed. 2d 262 (1981) .................................................................................................... 10, 16

6 Doyle v. Board of Barbering Examiners

219 Cal. App. 2d 504 (1963)............................................................................................... 2, 14

7

East Bay Municipal Utility District v. Ca. Dept. of Forestry and Fire

8

43 Cal. App. 4th 1113 (1996) ................................................................................................... 5

9 Griffiths v. Superior Court

10

96 Cal. App. 4th 757 (2002), review denied (June 12, 2002) ................................................... 6

11 Hodgers-Durgin v. de la Vina
199 F.3d 1037 (9th Cir. 1999)................................................................................................. 19

12
Ingersoll v. Palmer

13

43 Cal. 3d 1321 (1987) ........................................................................................................... 16

14 Intel Corp. v. Hamai

15

30 Cal. 4th 1342 (2003) ............................................................................................................ 5

16

Jones v. Kmart 17 Cal. 4th 329 (1998) ............................................................................................................ 17

17
Lee v. City of Los Angeles

18

250 F.3d 668 (9th Cir. 2001)..................................................................................................... 6

19 Mullis v. U.S. Bankruptcy Court
828 F.2d 1385 (9th Cir. 1987)................................................................................................... 3
20

21

New York v. Burger 482 U.S. 691

22

107 S. Ct. 2636

96 L. Ed. 2d 601(1987) ............................................................................................... 12, 13, 16

23

People v. Calvert

24

18 Cal. App. 4th 1820 (1993) ................................................................................................. 11

25 People v. Easley

26

90 Cal. App. 3d 440 (1979)..................................................................................................... 11

27 People v. Potter
128 Cal. App. 4th 611 (2005) ................................................................................................. 11
28

iii
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1

TABLE OF AUTHORITIES

2

(continued)

Page

3 Rizzo v. Goode

4

423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976) .......................................................... 4, 5

5

Smith v. Los Angeles County Bd. of Supervisors 104 Cal. App. 4th 1104 (2002) ............................................................................................... 16

6
Stogner v. Com. of Ky.

7

638 F. Supp. 1 (W.D.Ky. 1985) .............................................................................................. 12

8 Texas v. U.S.

523 U.S. 296

9

118 S. Ct. 1257

10

140 L. Ed. 2d 406 (1998) ........................................................................................................ 19

11 U.S. v. Argent Chem. Labs, Inc.
93 F.3d 572 (9th Cir. 1996)............................................................................................... 10, 13

12
U.S. v. Biswell

13

406 U.S. 311

92 S. Ct. 1593

14

32 L. Ed. 2d 87 (1972) ................................................................................................ 10, 11, 14

15 U.S. v. V-1 Oil Co.

16

63 F.3d 909 (9th Cir. 1995)..................................................................................................... 14

17 Van Ort v. Estate of Stanewich

92 F. 3d 831 (9th Cir.1996)................................................................................................... 8, 9

18

Venegas v. County of Los Angeles

19

32 Cal. 4th 820 (2004) ............................................................................................................ 17

20 Village of Arlington Heights v. Metropolitan Housing Dev. Corp.

21

429 U.S. 252

97 S. Ct. 555

22

50 L. Ed. 2d 450 (1977) ............................................................................................................ 7

23 STATUTES

24 42 United States Code

25

§ 1983............................................................................................................................... passim

26

27

28

iv
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Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 6 of 26 Page ID #:135

1

TABLE OF AUTHORITIES

2

(continued)

3 California Business & Professions Code

Page

4

§ 7301-7444.1 ........................................................................................................................... 2 § 7303.1............................................................................................................................... 2, 13

5

§ 7313............................................................................................................................... passim

§ 7316........................................................................................................................................ 2

6

§ 7317........................................................................................................................................ 2

§ 7346.................................................................................................................................. 2, 15

7

§ 7347.................................................................................................................................. 2, 15

8

§ 7348............................................................................................................................ 2, 12, 15 § 7349............................................................................................................................ 2, 12, 15

9

§ 7353............................................................................................................................... passim

10
California Civil Code
11 § 52.1................................................................................................................................... 1, 17, 18

12 CONSTITUTIONAL PROVISIONS

13 California Constitution

14

Amendment and Article I, § 13...................................................................................... 1, 9, 16 Article 1, § 7 ..................................................................................................................... 1, 5, 9

15
United States Constitution

16

Article III................................................................................................................................... 4

Fourth Amendment ................................................................................................. 9, 10, 11, 16
17

18 COURT RULES

19

Federal Rules of Civil Procedure Rule 12(b)(6) ......................................................................................................................... 3, 7

20

21 OTHER AUTHORITIES

22 182 A.L.R. Fed. 467 (2002) .......................................................................................................... 11

23 Cal. Code Regs.

24

§ 978........................................................................................................................................ 12

25

26

27

28

v
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Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 7 of 26 Page ID #:136

1

Defendant Kristy Underwood, sued in her Official Capacity as Executive

2 Officer of the Board of Barbering and Cosmetology, submits the following

3 Memorandum of Points and Authorities in support of her Motion to Dismiss the

4 claims against her in Plaintiffs’ First Amended Complaint.

5

INTRODUCTION

6

This is a 42 U.S.C. § 1983 action brought for declaratory and injunctive relief.

7 On April 2, 2008, two licensed barbershops (Fades Unlimited and Hair Shack),

8 along with four others in the same Moreno Valley neighborhood, were inspected by

9 California Board of Barbering and Cosmetology (“Board”) inspectors, in

10 conjunction with the Moreno Valley Police and City of Moreno Valley Inspectors.

11 Plaintiffs Ronald Jones, Raymond Barnes, and Quincy Brown are Board-licensed

12 barbers or cosmetologists who worked at two of the shops during the inspections.

13 Plaintiff Kevon Gordon owns Hair Shack. Both shops were cited by the Board for

14 various violations.

15

Plaintiffs bring this action against the City of Moreno Valley, the County of

16 Riverside, the Police Chief, the police officers, the code enforcement officers, as

17 well as the Sheriff and Board inspectors who participated in the inspections

18 (hereinafter the “Municipal Defendants”) and Kristy Underwood, in her Official

19 Capacity as the Executive Officer of the Board.

20

Based upon the events alleged in the First Amended Complaint (“FAC”),

21 Plaintiffs allege that Defendant Underwood (1) violated their rights under Article 1,

22 section 13 of the California Constitution and California Civil Code § 52.1 by

23 subjecting the licensed barbershops to “unreasonable searches” and (2) violated

24 their rights to equal protection under Article 1, section 7 of the California

25 Constitution and California Civil Code § 52.1. As to Defendant Underwood,

26 Plaintiffs seek an injunction “prohibiting the conduct of administrative searches as

27 described” in the FAC. The Fifth Cause of Action also seeks unspecified

28

1

Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 8 of 26 Page ID #:137

1 declaratory relief against unspecified Defendants. The claims against Defendant

2 Underwood in the FAC should be dismissed for failure to state a claim.

3

CALIFORNIA’S REGULATION OF BARBERSHOPS

4

The laws governing the regulation of barbers and barbershops are contained in

5 the Barbering and Cosmetology Act, California Business & Professions Code (“Cal.

6 Bus. & Prof. Code”) §§ 7301-7444.1 and California Code of Regulations (“Cal.

7 Code Regs.”), tit. 16, div. 9, §§ 901-999. The Board oversees the licensing and 8 discipline of barbers, cosmetologists, and barbershops.1 Public protection is the

9 highest priority for the Board in exercising its licensing, regulatory, and

10 disciplinary functions. Cal. Bus. & Prof. Code § 7303.1.

11

The practice of barbering and cosmetology is defined in California Business

12 and Professions Code section 7316. Only licensed professionals may practice

13 barbering and cosmetology. Cal. Bus. & Prof. Code §7317. The board also issues

14 “establishment” licenses to barbershops. An establishment is any premises,

15 building, or part of a building where an activity licensed by the Board is practiced.

16 Cal. Bus. & Prof. Code §§ 7346- 7347. An establishment must always be under the

17 charge of an individual licensed by the Board and all individuals providing

18 professional services at the establishment (except student interns) must be licensed.

19 Cal. Bus. & Prof. Code §§7348 and 7349. The Barbering Act provides that the

20 Board shall engage in random and targeted inspections of establishments to ensure

21 compliance with applicable laws relating to public health and safety and the

22 conduct and operation of licensed establishments. Cal. Bus. & Prof. Code §§7313

23 and 7353.

24

25

26
1 Courts have upheld the state’s right to regulate the occupations of barbering and
27 cosmetology under its police power. Cornwell v. Hamilton, 80 F. Supp. 2d 1101, 1104 (S.D. Cal.
1999); Doyle v. Board of Barbering Examiners, 219 Cal. App. 2d 504, 507 (1963).
28

2

Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 9 of 26 Page ID #:138

1

STANDARDS ON MOTION TO DISMISS

2

Rule 12(b)(6) of the Federal Rules of Civil Procedure (“FRCP”) tests the legal

3 sufficiency of the claims alleged in the pleadings. “Dismissal can be based on the

4 lack of a cognizable legal theory or the absence of sufficient facts alleged under a

5 cognizable legal theory.” Balistreri v. Pacifica Police Department, 901 F.2d 696,

6 699 (9th Cir. 1988). Defendants are entitled to prevail, as a matter of law, where

7 there are no allegations of facts which show the violation of a federally protected

8 right. Baker v. McCollan, 443 U.S. 137, 140, 99 S. Ct. 2689, 61 L. Ed. 2d 433

9 (1979). All inferences reasonably drawn from these alleged facts are construed in

10 favor of the non-moving party. However, a court need not accept as true

11 allegations that contradict facts which may be judicially noticed by the court.

12 Mullis v. U.S. Bankruptcy Court, 828 F.2d 1385, 1388 (9th Cir. 1987). Moreover,

13 the Court need not accept as true conclusory allegations or legal characterizations

14 nor accept unreasonable inferences or unwarranted deductions of fact. Beliveau v.

15 Caras, 873 F. Supp. 1393, 1395-96 (C.D. Cal. 1995).

16

Furthermore, the factual allegations must show a right to relief that is more

17 than mere speculation. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955,

18 1965, 167 L. Ed. 2d 929 (2007). In its decision last month, the Supreme Court

19 strongly reaffirmed that a complaint stated in conclusory terms may not withstand a

20 Rule 12(b)(6) motion to dismiss. Ashcroft vs. Iqbal, 556 U.S. 1937, 1949-1950,

21 129 S. Ct. 1937 (May 18, 2009) (Reversing district court's denial of Rule 12(b)(6)

22 motion to dismiss and the affirmance of that denial by the court of appeals because

23 plaintiff's complaint of discrimination at the hands of the government contained

24 conclusions, but no facts).

25 ///

26 ///

27 ///

28 ///

3

Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 10 of 26 Page ID #:139

1

ARGUMENT

2 I. THE CLAIMS FOR INJUNCTIVE RELIEF SHOULD BE DISMISSED BECAUSE PLAINTIFFS LACK STANDING TO BRING SUCH CLAIMS.
3

4

The only claim for relief in the prayer directed to Defendant Underwood is for

5 “an injunction prohibiting the conduct of administrative searches as described

6 herein.” (FAC ¶ 55b) Plaintiffs do not establish standing for injunctive relief

7 because the FAC does not allege sufficient facts to show an imminent injury.

8

In City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d

9 675 (1983), Defendant police officers applied a chokehold to plaintiff after stopping

10 him for a Vehicle Code violation. The chokehold rendered him unconscious and

11 damaged his larynx. The lower court entered an injunction limiting the use of

12 chokeholds. The Supreme Court held that the plaintiff lacked standing to seek an

13 injunction against the use of chokeholds because he failed to allege that the threat

14 of future injury was both real and immediate. His claims of past exposure to illegal

15 conduct did not mandate injunctive relief. Id. at 105-106. Because plaintiff’s

16 allegations concerning his previous injury did not show a real and immediate threat

17 of similar police misconduct in the future, he failed to allege a case or controversy

18 as required by Article III of the U.S. Constitution. Id. at 101-102.

19

In Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976), a

20 class action was brought on behalf of minority citizens and Philadelphia residents

21 against the Mayor, City Managing Director, and Police Commissioner of

22 Philadelphia. The complaint alleged the defendants encouraged police activity

23 violating constitutional rights of citizens and failed to act in a manner that would

24 prevent this activity. The lower court ordered petitioners to submit a

25 comprehensive program for improvement of handling citizens' complaints which

26 was incorporated into a final judgment. The Supreme Court reversed the decision

27 finding that 42 U.S.C. §1983 should not be extended to fashion “prophylactic

28 procedures for a state agency.” Id. at 378.

4

Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 11 of 26 Page ID #:140

1

Plaintiffs have brought this action alleging that their rights were violated by an

2 inspection one time one year ago. Other than alleging that they suffered from one

3 allegedly unreasonable search one time last year, Plaintiffs have made no showing

4 of any danger of a real and immediate threat of future injury to them.

5

Plaintiffs allege that the municipal Defendants have made statements in the

6 press that the sweeps are a “city issue” and “not a one-time event.” (FAC ¶ 8).

7 Even if these statements were made, they do not support a finding of a reasonable

8 threat to Plaintiffs’ rights that is likely to cause irreparable injury and that can only

9 be resolved by an injunction. Furthermore, with respect to an injunction aimed at

10 the Board, Plaintiffs do not state any facts regarding concern about future

11 inspections by Board inspectors nor do they allege any real or immediate threat that

12 the Board would participate in future allegedly “unreasonable” inspections.

13

Plaintiffs fail to state any facts establishing a real and immediate threat that the

14 Board will engage in any wrongdoing against them in the future. Accordingly, any

15 injunction by the Court prohibiting future inspections on these facts would amount

16 to the very “prophylactic procedure” that the Rizzo Court counseled against. Rizzo 17 v. Goode, 423 U.S. at 378.2 Because Plaintiffs have failed to establish a case or

18 controversy entitling them to injunctive relief, the claim should be dismissed.

19 II. THE THIRD CAUSE OF ACTION SHOULD BE DISMISSED BECAUSE

PLAINTIFFS HAVE FAILED TO ALLEGE A VIOLATION OF THEIR RIGHT

20

TO EQUAL PROTECTION UNDER THE LAW.

21

The Third Cause of Action alleges that Defendant Underwood violated the

22 rights of Plaintiffs to equal protection under the laws under Article I, Section 7 of

23 the California Constitution. (FAC ¶¶ 47-49.) The Barbering Act provides that the

24 Board shall engage in random and targeted inspections of establishments to ensure

25 compliance with applicable laws relating to public health and safety and the

26

2 Although it is unclear whether Plaintiffs’ claim for injunctive relief is based upon federal

or state law, California similarly requires a showing of irreparable and impending injury to justify
27 injunctive relief. Intel Corp. v. Hamai, 30 Cal. 4th 1342, 1352 (2003); East Bay Municipal Utility

District v. Ca. Dept. of Forestry and Fire, 43 Cal. App. 4th 1113, 1126 (1996).
28

5

Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 12 of 26 Page ID #:141

1 conduct and operation of licensed establishments. Cal. Bus. & Prof. Code §§ 7313

2 and 7353. Plaintiffs have not alleged that the statute permitting the inspections of

3 the subject barbershops facially discriminated against them on the basis of race.

4 The statute mandates inspections of all licensed establishments and is neutral on its

5 face.

6

In the case of a neutral statute, to state a viable equal protection claim under

7 section 1983 “a plaintiff must show that the defendants acted with an intent or

8 purpose to discriminate against the plaintiff based upon membership in a protected

9 class.” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001).3 Plaintiffs

10 have alleged no facts from which this Court may find discriminatory intent or

11 purpose.

12

A. Plaintiffs Have Alleged No Facts Demonstrating An Intent Or

Purpose To Discriminate Against The Barbershops Based Upon

13

Race.

14

The basis of Plaintiffs’ equal protection claim is the factually unsupported

15 statements that the April 2, 2008 Moreno Valley barbershop inspections “targeted

16 African American barbershops” and were “racially targeted raids.” (FAC ¶ 1.) As

17 support for these blanket accusations, Plaintiffs allege that five of the six

18 barbershops inspected that day were owned, operated, and primarily frequented by

19 African Americans. (FAC ¶ 4.) This fact alone, even if true, does not demonstrate

20 discriminatory intent on the part of the Defendants.

21

If the Defendants set out to discriminate against African American

22 barbershops, why did they inspect one shop that was allegedly neither owned,

23 operated, or primarily frequented by African Americans? Furthermore, given that

24 all of the inspected shops were in the Moreno Valley area, Plaintiffs have failed to

25

26
3 Since the Equal Protection Clauses in the United States Constitution and the California
27 Constitution guarantee substantially similar rights, courts analyze them in a similar fashion.
Griffiths v. Superior Court, 96 Cal. App. 4th 757, 775 (2002), review denied (June 12, 2002).
28

6

Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 13 of 26 Page ID #:142

1 allege facts reflecting that Defendants specifically targeted only Moreno Valley

2 shops that were owned, operated, or primarily frequented by African Americans.

3

Even if the Court were to find the allegations in the FAC sufficient to show

4 disparate impact in the enforcement of the inspection statute, proof of

5 discriminatory intent is still required to show that state action having a disparate

6 impact violates the Equal Protection Clause. See, Village of Arlington Heights v.

7 Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S. Ct. 555, 50 L. Ed. 2d

8 450 (1977); City of Cuyahoga Falls, Ohio v. Buckeye Community Hope

9 Foundation, 538 U.S. 188, 194, 97 S. Ct. 555, 50 L. Ed. 2d 450 (2003).

10

Plaintiffs next allege that five of the six shops were owned, operated, and

11 frequented by African Americans, which is a “stark disparity” and this disparity

12 coupled with the “unusually aggressive conduct of the MVPD during the raid style

13 inspections indicate that Defendants’ decision to target these business [sic] in the

14 manner they did was based, in part or in whole, on the race of the barbers and their

15 clientele.” (FAC ¶ 4.) However, more facts would have to be alleged to

16 demonstrate the “stark disparity” which Plaintiffs suggest is shown by the mere

17 allegation that five of the six inspected shops in Moreno Valley were owned,

18 operated, and frequented by African Americans. These facts are lacking to

19 demonstrate an intent to discriminate against African American barbershops.

20

Nor does the unsupported allegation of “unusually aggressive conduct” by the

21 police provide any indicia of intent to racially discriminate against Plaintiffs. In

22 Ashcroft vs. Iqbal, 556 U.S. at 1949-1950, the Supreme Court clarified that a

23 section 1983 complaint with conclusory allegations of discrimination should be

24 dismissed pursuant to Rule 12(b)(6). To state a claim, parties must “plead

25 sufficient factual matter to show that petitioners adopted and implemented the

26 detention policies at issue not for a neutral, investigative reason but for the purpose

27 of discriminating on account of race, religion or natural origin." Id. at 1948; Bell

28 Atl. Corp. v. Twombly, 550 U.S. at 555 (a pleading that merely recites the elements

7

Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 14 of 26 Page ID #:143

1 of a cause of action, labels, conclusions, and assertions with no factual support is

2 inadequate).

3

Here, Plaintiffs have failed to allege any facts supporting their allegation of

4 racial discrimination. The Court need not accept Plaintiffs’ conclusory allegations

5 of discrimination as true. Ashcroft vs. Iqbal, 556 U.S. at 1949-1950 [for purposes

6 of a motion to dismiss, a court need not accept a “legal conclusion couched as

7 factual allegation” as true]. Accordingly, the third cause of action should be

8 dismissed for failure to state a claim.

9

B. Even If The Court Finds That Plaintiffs Have Stated An Equal

Protection Claim, Defendant Underwood Should Be Dismissed

10

From The Claim.

11

Even if the Court finds that the Plaintiffs have stated an equal protection claim

12 arising from the inspections, the Court should dismiss the claim against Defendant

13 Underwood. In the FAC, Plaintiffs fail to make any particularized allegations

14 against Defendant Underwood, as the Executive Officer of the Board.

15

Plaintiffs allege that there were two prior warrantless searches of the same

16 shops allegedly undertaken by the Municipal Defendants. (FAC ¶¶ 5- 6, ¶¶ 26-28,

17 ¶¶ 32-34.) There is no allegation that the alleged prior searches targeted any group

18 of barbershops. Plaintiffs do not allege that the Board was aware of or involved in

19 these alleged prior searches. Plaintiffs do allege that the April 2, 2008 joint

20 inspections of the shops “was initiated and undertaken at the request of MVPD

21 officers.” (FAC ¶ 3.) Plaintiffs finally allege that the “unusually aggressive

22 conduct of the MVPD during the raid style inspections indicate that Defendants’

23 decision to target these business [sic] in the manner they did was based, in part or in

24 whole, on the race of the barbers and their clientele.” (FAC ¶ 4.) None of these

25 conclusory allegations are adequate to state a claim against the Defendants and

26 none of these allegations are directed at Defendant Underwood.

27

In order to be liable under section 1983, a Defendant must cause the

28 deprivation of one or more of the plaintiff's constitutional rights. See, Van Ort v.

8

Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 15 of 26 Page ID #:144

1 Estate of Stanewich, 92 F. 3d 831, 836-37 (9th Cir.1996). "Traditional tort law

2 defines intervening causes that break the chain of proximate causation." Id.

3 Plaintiffs must allege some facts reflecting that Defendant Underwood in some way

4 caused them harm. See, Arnold v. International Business Machines Corp., 637

5 F.2d 1350, 1355 (9th Cir.1981) [liability under section 1983 claim attaches when

6 defendant directly or indirectly causes the deprivation, but the defendant's acts must

7 be the proximate cause of the injury]. Plaintiffs make no particularized allegations

8 here.

9

California’s Barbering Act makes no distinction with respect to the race of any

10 licensee or of its employees or customers. The legislative scheme merely mandates

11 that inspections take place to ensure compliance with the Barbering Act and Health

12 and Safety laws. The only allegation here is that the Board of Barbering and

13 Cosmetology inspected these two shops on April 2, 2008. Because Plaintiffs have

14 failed to make any particularized allegations against Defendant Underwood as the

15 Executive Officer of the Board of intent or purpose to discriminate against

16 Plaintiffs on the basis of their race, their equal protection claim against her should

17 be dismissed.

18 III. THE FOURTH CAUSE OF ACTION SHOULD BE DISMISSED BECAUSE

PLAINTIFFS HAVE FAILED TO ALLEGE A VIOLATION OF THEIR RIGHT

19

TO PROTECTION FROM UNREASONABLE SEARCHES.

20

The Fourth Cause of Action alleges that Defendant Underwood violated the

21 rights of Plaintiffs to be free from unreasonable searches under Article I, Section 7

22 of the California Constitution. (FAC ¶¶ 47-49.) Although their claim is not

23 entirely clear, Plaintiffs do not seem to be alleging that inspection by the Board’s

24 inspectors violated their rights, nor that the Board must have a warrant to engage in 25 regular administrative inspections.4 FAC ¶ 24 [“the officers never claimed that they

26

4The second cause of action alleging Fourth Amendment violations against other

defendants alleges “unreasonable warrantless searches” (FAC ¶ 43) whereas the fourth cause of
27 action against Defendant Underwood under the California Constitution merely alleges

“unreasonable searches.” (FAC ¶ 51).
28

9

Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 16 of 26 Page ID #:145

1 had a warrant to conduct a search and never produced a warrant.”] Rather, the

2 claim appears to be that the resulting search was constitutionally unreasonable.

3 Plaintiffs have failed to allege adequate facts to support their claim.

4

A. Administrative Inspections Of Licensed Barbershops Do Not

Require A Warrant.

5

6

The April 2, 2008, Board inspections of the licensed barbershops were

7 conducted without a warrant. The inspections were done pursuant to the Barbering

8 Act, which provides that the Board shall engage in random and targeted inspections

9 of establishments to ensure compliance with applicable laws relating to public

10 health and safety and the conduct and operation of licensed establishments. Cal.

11 Bus. & Prof. Code §§7313 and 7353.

12

The United States Supreme Court has held that the prohibition against

13 unreasonable searches contained in the Fourth Amendment does apply to

14 administrative inspections of private commercial property. Donovan v. Dewey, 452

15 U.S. 594, 599, 101 S. Ct. 2534, 69 L. Ed. 2d 262 (1981). However, statutory

16 schemes authorizing warrantless, administrative searches of commercial property

17 do not necessarily violate the Fourth Amendment. See, e.g., U.S. v. Biswell, 406

18 U.S. 311, 317, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972) [warrantless search of gun

19 dealer’s locked store room during business hours as part of inspection pursuant to

20 gun control laws was not unreasonable]; U.S. v. Argent Chem. Labs, Inc., 93 F.3d

21 572, 575 (9th Cir. 1996) [warrantless search of facility manufacturing veterinary

22 drugs upheld.]

23

The latitude that courts grant to conduct warrantless inspections of commercial

24 property reflects the lower expectation of privacy that business owners have in their

25 commercial property than they would in their home, and that privacy interests in

26 their commercial property may be adequately protected by regulatory schemes

27 authorizing warrantless inspections. Donovan v. Dewey, 452 U.S. at 598-602

28 [warrantless inspections by federal mine inspectors of underground mines and stone

10

Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 17 of 26 Page ID #:146

1 quarries to insure compliance with health and safety standards did not violate

2 Fourth Amendment]; U. S. v. Biswell, 406 U.S. at 316. In particular, warrantless

3 administrative inspections may be permissible in closely or pervasively regulated

4 businesses which have long been subject to close supervision and inspection. Id. at 5 316.5 An individual who accepts a license to run such a business does so with the

6 knowledge that their business is subject to statutorily permitted administrative 7 inspections. Ibid.6

8

Although California courts have never decided whether barbering

9 establishments are closely or pervasively regulated, they clearly fit within this

10 exception, as they have been subject to close government supervision pursuant to

11 the Barbering Act, a statutory scheme enacted to protect the public health and

12 welfare, since the Act was enacted in 1939. An analysis by a court in the western

13 district of Kentucky is persuasive in this regard because its statutory scheme

14 mirrors California’s Barbering Act:

15

The court holds that barbering and barber shops are regulated and licensed

16 industries such that the Board may conduct routine inspections of barbershops

17 without a search warrant. Everyone who practices barbering, teaches barbering, or

18 operates a barbershop must obtain a license from the state. . . . The Board is

19 authorized to prescribe rules and regulations pertaining to health and sanitation, the

20 location of barbershops, and the quantity and quality of equipment, supplies, and

21 materials required in barbershops. . . . Statutory sanitation requirements cover

22 details as miniscule as providing a relaundered towel for each customer and placing

23 a strip of cotton or towel around each patron's neck…. Failure to comply with the

24

5See generally, Ann K. Wooster, Validity of Warrantless Administrative Inspection of

Business That is Allegedly Closely or Pervasively Regulated; Cases Decided Since Colonnade
25 Catering Corp. v. U.S., 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970), 182 A.L.R. Fed. 467

(2002).

26

6 California Courts recognize this same exception. See People v. Potter, 128 Cal. App.

4th 611, 618 (2005) [warrantless search of auto repair shop pursuant to Vehicle Code]; People v.
27 Calvert, 18 Cal. App. 4th 1820, 1827-1829 (1993); People v. Easley, 90 Cal. App. 3d 440, 443

(1979).
28

11

Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 18 of 26 Page ID #:147

1 rules and regulations of the Board is grounds for license revocation. . . . Since

2 barbering is closely regulated, supervised, and inspected by the state, it is not

3 unreasonable for the Board to conduct warrantless inspections to protect the health

4 and safety of the public. (Citations omitted.)

5

Stogner v. Com. of Ky., 638 F. Supp. 1 (W.D.Ky. 1985) [Barbering board may

6 conduct warrantless inspections of a barbershop, including occupied barbering

7 booths]; citing U.S. v. Biswell, 406 U.S. 311 and Colonnade Catering Corp. v. U.S.,

8 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970).

9

Barbershops are pervasively regulated in order to insure that establishments

10 only employ licensed professionals and that the services that are provided and the

11 establishment itself is operated pursuant to the health and safety standards set forth

12 in the Barbering Act.7 An establishment must always be under the charge of an

13 individual licensed by the Board and all individuals providing professional services

14 at the establishment (except student interns) must be licensed. Cal. Bus. & Prof.

15 Code §§ 7348 and 7349. Accordingly, the owners and barbers at licensed

16 barbershops have minimal expectations of privacy in their shops and a warrant is

17 not required in the ordinary course of an administrative inspection.

18

B. Warrantless Searches of Barbershops Pursuant to the

Barbering Act Are Reasonable.

19

20

Even in the case of closely regulated or pervasively regulated commercial

21 premises searches, courts hold that the ensuing warrantless search must be carried

22 out in accordance with a regulatory scheme that provides a constitutionally

23 adequate substitute for a warrant. In New York v. Burger, 482 U.S. 691, 107 S. Ct.

24 2636, 96 L. Ed. 2d 601(1987) (warrantless search of automobile junkyard held

25

7 See, e.g., Cal. Code Regs. §978 [minimum supplies], § 979 [disinfecting non-electrical

instruments and equipment], § 980 [disinfecting electrical instruments], § [procedures for
26 cleaning and disinfecting whirlpool footspas], § 981 [instruments and supplies], § 983 [personal

cleanliness], § 984 [disease and infestation], § 985 [neck strips], § 987 [towels], § 989 [prohibited
27 hazardous substances], § 991 [invasive procedures], § 992 [skin peeling], § 993 [prohibited

instruments], § 994 [cleanliness and repair], § 995 [building standards].
28

12

Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 19 of 26 Page ID #:148

1 permissible), the Supreme Court held that a warrantless search is reasonable if three

2 conditions are satisfied: 1) the underlying regulatory scheme advances a substantial

3 government interest; 2) warrantless inspections are "necessary" to further the

4 regulatory scheme; and 3) the inspection program provides a "constitutionally

5 adequate substitute for a warrant." Burger, 482 U.S. at 702-703. The regulatory

6 statute must perform the two basic functions of a warrant: it must advise the owner

7 of the commercial premises that the search is being made pursuant to the law and

8 has a properly defined scope, and it must limit the discretion of the inspecting

9 officers. Burger, 482 U.S. at 703; see also Argent Chem. Labs., 93 F.3d at 576.

10

Each of these conditions are met here. First, the underlying regulatory scheme

11 advances a substantial government interest. In this case, the Barbering Act

12 provides that public protection is the highest priority for the Board in exercising its

13 licensing, regulatory, and disciplinary functions. Cal. Bus. & Prof. Code § 7303.1.

14 Public protection is advanced by the inspection program, in that it insures that every

15 licensee complies with the health and safety requirements which protect consumers

16 from the spread of disease and potential injury.

17

The basic reason for licensing of barbers is to protect the public from the

18

'transmission of disease in view of the personal touch and contacts

19

manifested and exercised in the barber business' and to avoid injury to the

20

customer which might result from the service performed. This is

21

accomplished by requiring that barbers have certain education and

22

experience to assure knowledge of the possible effects of procedures

23

(such as massage) and equipment (cutting instruments) and cosmetic and

24

other agents (such as dyes) which they use on customers; the regulation

25

and enforcement of sanitary procedures and conditions in shops; and the

26

disciplining of licentiates whose continued practice would constitute a

27

threat to the public. Demands of the Barber Board for a demonstration of

28

competence in the performance of barbering service is a by-product of

13

Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 20 of 26 Page ID #:149

1

the licensing statute oriented toward public health. …

2 Doyle v. Board of Barber Examiners, 219 Cal. App. 2d at 508.

3

Second, warrantless inspections are necessary to further this regulatory

4 scheme. The Barbering Act provides that the Board shall engage in random and

5 targeted inspections of establishments to ensure compliance with applicable laws

6 relating to public health and safety and the conduct and operation of licensed

7 establishments. Cal. Bus. & Prof. Code §§7313 and 7353. The inspections are

8 random and unannounced so that the barbershops are not given an opportunity to

9 remedy violations prior to the arrival of the inspectors. As in other unannounced

10 warrantless inspections of highly regulated industries, advance notice of inspections

11 could permit those violating the law to “temporarily correct violations and frustrate

12 enforcement efforts." U.S. v. V-1 Oil Co., 63 F.3d 909, 911-912 (9th Cir. 1995).

13

In finding that warrantless searches of a gun dealers locked storeroom during

14 business hours was reasonable, the Supreme Court stated in Biswell that:

15

Here, if inspection is to be effective and serve as a credible deterrent,

16

unannounced, even frequent, inspections are essential. In this context,

17

the prerequisite of a warrant could easily frustrate inspection; and if the

18

necessary flexibility as to time, scope, and frequency is to be preserved,

19

the protections afforded by a warrant would be negligible.

20 Biswell, 406 U.S. at 316.

21

These factors also apply to barbershops where the shop could be cleaned,

22 instruments sanitized, forbidden instruments hidden, and towels laundered in time

23 to make an otherwise dirty shop pass inspection if licensees had advance notice of

24 the inspection. Furthermore, requiring a warrant for each inspection would pose an

25 administrative burden that would hinder inspections by already overwhelmed

26 government agencies.

27

Third, the Barbering Act provides a constitutionally adequate substitute for a

28 warrant because it advises the owners of the commercial premises that the search is

14

Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 21 of 26 Page ID #:150

1 being made pursuant to the law. The board licenses barbershops. Cal. Bus. & Prof.

2 Code §§ 7346- 7347. Barbershops must always be under the charge of an

3 individual licensed by the Board and all individuals providing professional services

4 at the establishment (except student interns) must be licensed. Cal. Bus. & Prof.

5 Code §§ 7348 and 7349. The Barbering Act and regulations specify very detailed

6 regulations regarding the operation of barbershops, including the proper storage and

7 cleaning of equipment. The Barbering Act provides that the Board shall engage in

8 random and targeted inspections of establishments to ensure compliance with

9 applicable laws relating to public health and safety and the conduct and operation of

10 licensed establishments. Cal. Bus. & Prof. Code §§ 7313 and 7353. Accordingly,

11 any licensee working at a licensed establishment, such as Plaintiffs here, are well

12 aware that the Board could come in at any time for an unannounced inspection of

13 the shop and that if any violations are found, the individual barbers and the

14 establishment may be cited.

15

Every licensee must know the health and safety requirements for his own work

16 station, and establishment owners know they are responsible for the entire premises.

17 Furthermore, licensees have full knowledge that every beauty salon and barbershop

18 in California is subject to unannounced, random, or targeted inspection at any time.

19 Licensees understand they are entering into a highly regulated vocation for the

20 protection of consumers and themselves.

21

Violations of the Barbering Act result in citations, as was the case here. These

22 citations provide a deterrent effect that insure shops are motivated to be in

23 compliance with the strict health and safety provisions of the Act or suffer

24 discipline.

25

Finally, the Barbering Act properly defines the scope of its inspections which

26 limit the discretion of the inspectors during the inspection. In particular, section

27 7313 identifies who may perform inspections for the board, the timing of such

28 inspections, and the scope of the inspections. Pursuant to these statutes, Plaintiffs

15

Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 22 of 26 Page ID #:151

1 were clearly on notice that the shops were subject to lawful periodic inspections.

2 See Burger, 482 U.S. at 703; Donovan, 452 U.S. at 600.

3

C. Plaintiffs Have Failed To Allege How The Board’s April 2, 2008

Inspections Of The Barbershops Were Not Reasonable

4

5

Even if the Court were to find that a warrant was not necessary for the Board

6 to engage in the inspection of Plaintiffs’ establishments, and that warrantless

7 searches of barbershops pursuant to the Barbering Act are reasonable, the issue 8 remains whether the actual search of these establishments was reasonable. 8

9 Plaintiffs allege that the manner in which the searches took place was

10 “unreasonable.” (FAC ¶ 51.)

11

The facts supporting this claim are scant and none of them are directed toward

12 the conduct of the Board inspectors performing the inspections of the barbershops.

13 In particular, Plaintiffs allege that the police “acted in conjunction with … the

14 Board and . . . Code Enforcement, under the ruse of conducting ordinary health and

15 business inspections. The raid-style searches that ensued, however, were more

16 intrusive in nature and scope than justified in any ordinary business inspection.”

17 (FAC ¶ 3.) They further allege that “the MVPD officers [were] armed with

18 handguns and wore bullet proof vests” (FAC ¶ 3 ), that the MVPD officers “ran

19 into” or “rushed into” the shops (FAC ¶¶ 24, 25), and that they “blocking the

20 entrance so no one could enter or leave. MVPD officers questioned employees and

21 customers, collected drivers licenses from them, and ran warrant checks on them.”

22 (FAC ¶ 25) Plaintiffs’ further allege that “[w]hen plaintiff Brown expressed his

23 objections to the searches, an officer handcuffed him, took him to the police car…”

24 (FAC ¶ 25)

25

8 The California Supreme Court has made clear that"[t]he touchstone for all issues under

the Fourth Amendment and article I, section 13 of the California Constitution is reasonableness."
26 Ingersoll v. Palmer, 43 Cal. 3d 1321, 1329 (1987). The right to be free from unreasonable

searches under Article I, section 13 of the California Constitution parallels the Fourth
27 Amendment inquiry into the reasonableness of a search. See e.g., Smith v. Los Angeles County

Bd. of Supervisors, 104 Cal. App. 4th 1104, 1123-1124 (2002).
28

16

Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 23 of 26 Page ID #:152

1

Because Plaintiffs have failed to allege any facts to support a claim that the

2 Board’s administrative inspection of the licensed barbershops was unreasonable,

3 the claim for injunctive relief against Defendant Underwood should be dismissed.

4 IV. THE CALIFORNIA CIVIL CODE SECTION 52.1 ALLEGATIONS SHOULD BE

DISMISSED BECAUSE PLAINTIFFS HAVE FAILED TO ALLEGE FACTS

5

SUPPORTING A CLAIM FOR VIOLATION OF THEIR RIGHTS OR THAT THE

ALLEGED VIOLATION WAS ACCOMPLISHED BY MEANS OF THREATS,

6

INTIMIDATION, OR COERCION.

7

In the Third and Fourth Causes of Action, Plaintiffs allege that Defendant

8 Underwood deprived Plaintiffs of their California constitutional rights through

9 threats, intimidation, and coercion or threats thereof. (FAC ¶¶ 47-52.) California

10 Civil Code section 52.1 provides that any individual whose exercise or enjoyment

11 of rights secured by the Constitution or laws of the United States, or of rights

12 secured by the Constitution or laws of this state, has been interfered with, or

13 attempted to be interfered with by threats, intimidation, or coercion, or attempts to

14 interfere by threats, intimidation, or coercion, may institute and prosecute in his or

15 her own name and on his or her own behalf a civil action for damages, injunctive

16 relief, and other appropriate equitable relief to protect the peaceable exercise or

17 enjoyment of the right or rights secured.

18

In order to prevail on such a claim, Plaintiffs must show that (1) their rights

19 have been interfered with or attempted to be interfered with and (2) that that

20 interference or attempted interference took place by threat, intimidation, or

21 coercion. Jones v. Kmart, 17 Cal. 4th 329, 334 (1998); Venegas v. County of Los

22 Angeles, 32 Cal. 4th 820, 843 (2004). A claim that fails to allege conduct that rises

23 to the level of a threat of violence or coercion should be dismissed. City and

24 County of San Francisco v. Ballard, 136 Cal. App. 4th 381, 408-409 (2006).

25

As argued above, Plaintiffs have failed to state a claim for a violation of their

26 rights under either the federal or state constitution. Also, there are no facts

27 supporting an allegation that the Board engaged in any conduct involving threats,

28 intimidation, or coercion.

17

Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 24 of 26 Page ID #:153

1

The allegations regarding the police officers who accompanied the Board

2 inspectors and code enforcement officers at the inspections are similarly conclusory

3 and do not support their Third and Fourth Causes of Action. They are set forth in

4 the FAC as follows: (FAC ¶ 3 [“the MVPD officers armed with handguns and

5 wore bullet proof vests”], ¶ 24 [“MVPD officers wearing bulletproof vests and side

6 arms ran into the shop”], ¶ 25 [“MVPD officers, accompanied by Code

7 Enforcement and Board inspectors, rushed into Fades Unlimited, blocking the

8 entrance so no one could enter or leave. MVPD officers questioned employees and

9 customers, collected drivers licenses from them, and ran warrant checks on them”],

10 ¶ 25 [“When plaintiff Brown expressed his objections to the searches, an officer

11 handcuffed him, took him to the police car…”].

12

Because there are no facts alleged supporting any allegations of threats,

13 coercion, or intimidation with respect to the Board’s conduct in the administrative

14 inspection of the licensed barbershops, the California Civil Code section 52.1 claim

15 fails and the Third and Fourth Causes of Action should be dismissed.

16 V. THE FIFTH CAUSE OF ACTION SHOULD BE DISMISSED BECAUSE PLAINTIFFS’ CLAIM FOR DECLARATORY RELIEF IS NOT RIPE
17

18

The Fifth Cause of Action makes a vague claim for seeking some declaration

19 as to all of the Defendants that Defendants’ conduct has deprived, and continues to

20 deprive, Plaintiffs of their rights under the Constitution and laws of the United

21 States. Plaintiffs allege that they anticipate Defendants will deny their contentions

22 and that they will be subject to such unlawful and unconstitutional actions. (FAC

23 ¶¶ 53-54)

24

No allegation of a violation of federal law has been made as to Defendant

25 Underwood. Accordingly, declaratory relief regarding the violation of federal law

26 should be dismissed as to her. Furthermore, as argued above, Defendants have

27 only made allegations regarding a single incident, one year ago. They have failed

28 to allege any likelihood of future injury. Plaintiffs’ failure to establish a likelihood

18

Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 25 of 26 Page ID #:154

1 of future injury renders their claim for declaratory relief unripe as to future,

2 hypothetical conduct by the Defendants. Hodgers-Durgin v. de la Vina, 199 F.3d

3 1037, 1044 (9th Cir. 1999).

4

In suits seeking both declaratory and injunctive relief against a

5

defendant's continuing practices, the ripeness requirement serves the

6

same function in limiting declaratory relief as the imminent-harm

7

requirement serves in limiting injunctive relief.

8 Ibid.

9

Thus, for the same reason that there is no imminent future injury that justifies

10 prospective injunctive relief, the Plaintiffs' claim for declaratory relief should also

11 be denied. Texas v. U.S., 523 U.S. 296, 300, 118 S. Ct. 1257, 140 L. Ed. 2d 406

12 (1998) [“A claim is not ripe for adjudication if it rests upon ‘contingent future

13 events that may not occur as anticipated, or indeed may not occur at all.’”].

14 Plaintiffs’ declaratory relief claim, which seems to really request injunctive relief

15 from the Court, should be dismissed.

16

17

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Case 5:09-cv-00688-JZ -SS Document 22 Filed 06/11/09 Page 26 of 26 Page ID #:155

1 CONCLUSION
2 For the foregoing reasons, Defendant Underwood respectfully requests that the
3 Third, Fourth, and Fifth Causes of Action against her should be dismissed, and that
4 the claim for injunctive relief against her should be dismissed.
5

6 Dated: June 11, 2009

Respectfully submitted,

7

EDMUND G. BROWN JR.

Attorney General of California

8

JAMES M. LEDAKIS

Supervising Deputy Attorney General

9

10

/s/ Diane De Kervor

11

DIANE DE KERVOR

Deputy Attorney General

12

Attorneys for Defendant

13 SD2009804016
80369870.doc
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 Case 5:09-cv-00688-JZ -SS Document 21 Filed 06/11/09 Page 1 of 3 Page ID #:122

1 EDMUND G. BROWN JR. Attorney General of California
2 JAMES M. LEDAKIS Supervising Deputy Attorney General
3 DIANE DE KERVOR Deputy Attorney General
4 E-mail: diane.dekervor@doj.ca.gov State Bar No. 174721
5 110 West A Street, Suite 1100 San Diego, CA 92101
6 P.O. Box 85266 San Diego, CA 92186-5266
7 Telephone: (619) 645-2611 Fax: (619) 645-2061
8 Attorneys for Defendant Kristy Underwood,
9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE CENTRAL DISTRICT OF CALIFORNIA
11 EASTERN DIVISION
12

13 KEVON GORDON, RONALD JONES, ED CV 09-00688 SGL SSx

14 15

RAYMOND BARNES, QUINCY BROWN

Plaintiffs,

NOTICE OF MOTION AND MOTION TO DISMISS FIRST

v.

AMENDED COMPLAINT

16 CITY OF MORENO VALLEY, a

17

Municipal Corporation; COUNTY OF RIVERSIDE; RICK HALL, CHIEF OF

18

THE MORENO VALLEY POLICE DEPARTMENT, in his Official Capacity;

19

KRISTY UNDERWOOD, EXECUTIVE OFFICER OF THE CALIFORNIA

20

BOARD OF BARBERING AND COSMETOLOGY, in her Official

21

Capacity; STAN SNIFF, RIVERSIDE COUNTY SHERIFF, in his Official

22

Capacity; TONY HEISTERBERG, DENNIS LONGDYKE, LORI MILLER,

23

SETH HARTNETT, ROBERT DUCKETT, MARIO HERRERA, ERIC

24

BREWER, ANTHONY JOHNSON, CHRISTOPHER GASTINGER,

25

RICHARD HUTSON, JOE BROWN, XOCHI CAMARGO, ARLENE BAUBY,

26

and DOES 1-20, in their individual capacities,

27

Defendants.

28

1

Case 5:09-cv-00688-JZ -SS Document 21 Filed 06/11/09 Page 2 of 3 Page ID #:123

1

TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:

2

Please take notice that on July 13, 2009, at 10:00 a.m., in Department 1 of the

3 United States Courthouse located at 3470 Twelfth Street, Riverside, California,

4 Defendant Kristy Underwood will move the Court for an order pursuant to Federal

5 Rules of Civil Procedure, Rule 12(b)(6) dismissing her from the Third, Fourth and

6 Fifth causes of action as well as the prayers for injunctive and declaratory relief in

7 the First Amended Complaint on the following grounds:

8

1. Plaintiffs lack standing to seek injunctive relief because they do not allege

9 sufficient facts to establish an imminent injury.

10

2. Third Cause of Action: Plaintiffs have failed to allege a violation of their

11 right to equal protection under the California Constitution.

12

3. Fourth Cause of Action: Plaintiffs have failed to allege a violation of their

13 right to freedom from unreasonable searches under the California Constitution.

14

4. Fifth Cause of Action: Plaintiffs’ claim for declaratory relief is not ripe.

15

5. Third and Fourth Causes: Plaintiffs have failed to allege facts to support

16 claims under California Civil Code section 52.1.

17

The motion will be based on this Notice of Motion and Motion, the

18 accompanying Memorandum of Points and Authorities, the record of this action,

19 and such other matters as the Court deems appropriate.

20

21

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25

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27

28

2

Case 5:09-cv-00688-JZ -SS Document 21 Filed 06/11/09 Page 3 of 3 Page ID #:124

1 This motion is made following the conference of counsel pursuant to Central

2 District Local Rule 7-3, which took place on June 2 and 3, 2009.

3

4 Dated: June 11, 2009 5 6 7

Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California JAMES M. LEDAKIS Supervising Deputy Attorney General

8 9 10 11 12
SD2009804016
13 50423596.doc 14

/s/ DIANE DE KERVOR DIANE DE KERVOR Deputy Attorney General Attorneys for Defendant Kristy Underwood, Executive Officer of the California Board of Barbering & Cosmetology

15

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3

 
 Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 1 of 32 Page ID #:475

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION

9

10 KEVON GORDON, RONALD

) Case No. EDCV-09-688-SGL (SSx)

JONES, RAYMOND BARNES, and )

11 QUINCY BROWN,

)

)

12

Plaintiffs,

)

)

13

v.

) ORDER GRANTING DEFENDANTS'

) MOTION TO DISMISS BUT WITH LEAVE

14 CITY OF MORENO VALLEY;

) TO AMEND (DOCKET #54); ORDER

COUNTY OF RIVERSIDE; RICK

) DENYING DEFENDANT'S MOTION TO

15 HALL, Chief of the Moreno Valley

) DISMISS (DOCKET #21); ORDER

Police Department; KRISTY

) HOLDING IN ABEYANCE RULING ON

16 UNDERWOOD, Executive Officer of ) DEFENDANTS' MOTION TO DISMISS

the California Board of Barbering and ) PENDING COMPLETION OF

17 Cosmetology; STAN SNIFF,

) JURISDICTIONAL DISCOVERY (DOCKET

Riverside County Sheriff; TONY

) #16)

18 HEISTERBERG; DENNIS

)

LONGDYKE; LORI MILLER; SETH )

19 HARTNETT; ROBERT DUCKETT;

)

MARIO HERRERA; ERIC BREWER; )

20 ANTHONY JOHNSON;

)

CHRISTOPHER GASTINGER;

)

21 RICHARD HUTSON; JOE BROWN; )

XOCHI CARMARGO; and ARLENE )

22 BAUBY,

)

)

23

Defendants.

)

______________________________ )

24

25

This case arises from a series of warrantless “raid-style searches” all performed

26 under the auspices of an administrative health and safety inspection of mostly African

27 American-run barbershops in the City of Moreno Valley on April 2, 2008, by local police, in

28 coordination with state and local inspectors.

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 2 of 32 Page ID #:476

1

Presently before the Court are three motions filed by various defendants to dismiss

2 some or all of the claims contained in the complaint.

3

For the reasons set forth below, the Court GRANTS (subject to certain proviso) the

4 individual Code Enforcement defendants' motion to dismiss, but DENIES the remainder of

5 the motions to dismiss as either prematurly filed or requiring further factual development

6 before their merits can be resolved.

7

I. FACTUAL ALLEGATIONS

8

A. The Barbershops

9

Plaintiffs Kevon Gordon and Ronald Jones (both of whom are African American)

10 have operated the Hair Shack, a barbershop located in Moreno Valley, California, since

11 1987. Although the Hair Shack serves a variety of clients, the majority are African

12 American. The front lobby to the establishment is decorated with posters showing sample

13 haircuts, all of which use African American models. Moreover, the magazines on display

14 in the lobby for customers to peruse are directed to an African American readership,

15 including Ebony, Hip Hop Soul, King, Smooth Hair, and Source.

16

Fades Unlimited operated as a barbershop in Moreno Valley from 2003 until 2008.

17 During 2007 and 2008, plaintiffs Raymond Barnes and Quincy Brown (both of whom are

18 also African American) worked at Fades Unlimited as barbers on an independent

19 contractor basis, paying a weekly fee for a station at the barbershop and retaining all

20 proceeds generated from haircut services provided to their clients. Like Hair Shack, most

21 of the clientele at Fades Unlimited were African American. Indeed, the name “Fades

22 Unlimited” itself refers to a type of haircut, a “fade,” that is popular among African

23 American men. Inside the lobby to the barbershop there were pictures of sample haircuts,

24 all or substantially all of which used African American models. The lobby also contained,

25 like at the Hair Shack, magazines directed toward an African American readership.

26 Moreover, art on the walls at the barbershop represented African American subjects.

27

In addition to hair cut services, both of these barbershops served as a community

28 and social center for African American residents in Moreno Valley. For instance, on

2

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 3 of 32 Page ID #:477

1 weekends customers at the Hair Shack often remained to socialize after their hair cuts

2 were finished, and long-time customers would stop by to talk without getting a haircut at

3 all. To that end, the Hair Shack allowed customers to play cards and dominoes in a back

4 room on the premises not used for barbering.

5

B. The April 2, 2008, Raid-Style Administrative Inspections

6

On April 2, 2008, officers from the Moreno Valley Police Department (“MVPD”),

7 acting in conjunction with state inspectors from the California Department of Consumer

8 Affairs Board of Barbering and Cosmetology (the “Board”) and local inspectors from the

9 City of Moreno Valley Code and Neighborhood Services Division (“Code Enforcement”),

10 conducted unannounced administrative health and safety inspections on six barbershops

11 in Moreno Valley. Five of the six barbershops inspected (which included the Hair Shack

12 and Fades Unlimited) were owned and operated by African Americans and served

13 primarily an African American clientele.1

14

During the raid on the Hair Shack, two MVPD police cars pulled up to the front of

15 the shop, while another police patrol car pulled into the alley behind the establishment.

16 Approximately five MVPD officers wearing bulletproof vests and carrying firearms ran into

17 the barbershop, accompanied by three Board inspecotrs and two inspectors from Code

18 Enforcement. One MVPD officer stood in the front doorway while others entered the

19 barbering area and the back room of the shop where customers played cards and

20 dominoes. The MVPD officer in the alley guarded the back door to the Hair Shack from his

21 patrol car, presumably to prevent customers and/or barbers inside the shop from trying to

22 escape the "administrative inspection" from the rear exit. None of the officers ever claimed

23 that they had a warrant to conduct a search, nor was a warrant ever produced.

24

For approximately one half hour, "the MVPD, Code Enforcement, and Board

25 officers" and inspectors conducted an extensive search of the Hair Shack, “including areas

26

27

1 No information has been provided as to the nature of the sixth barbershop that

28

was inspected on April 2, 2009, either as to its ownership or the clientele who frequented it.

3

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 4 of 32 Page ID #:478

1 where no barbering was performed,” and “questioned employees and customers.” (First

2 Am. Compl. ¶ 24 (emphasis added)). “During the search, MVPD officers followed Board

3 [inspectors] closely and looked in the drawers and cabinets as [the inspectors] opened

4 them and searched their contents.” (Id). It is alleged that “the search” conducted on April

5 2, 2008, “was more extensive and intrusive than" had been used in "any ordinary business

6 inspection" to "determine compliance with barbering or business regulations.” (First Am.

7 Compl. ¶¶ 3, 24). Moreover, it is further alleged that all the previous inspections

8 conducted at the establishments in question took place in a "peaceful nature" without "any

9 physical threat" manifested by either the barbers or patrons. (Id.)

10

The raid on Fades Unlimited contained many of the same hallmarks as that at the

11 Hair Shack.2 MVPD officers, again wearing bulletproof vests and armed with hand guns,

12 accompanied by Code Enforcement and Board inspectors, rushed into the establishment

13 and blocked the entrance so that no one could enter or leave. MVPD officers questioned

14 employees and customers, collected drivers licenses from them, and ran warrant checks

15 on them. Likewise, officers and inspectors conducted an extensive search of the shop,

16 with MVPD officers following closely behind and looking in the drawers and cabinets as

17 inspectors opened them and searched their contents. (First Am. Compl. ¶ 25). When

18 plaintiff Brown expressed his objections to the nature of the inspections, an officer

19 handcuffed him, took him to a patrol car in the parking lot, placed him handcuffed in the

20 back of the vehicle, and told him they had found an outstanding warrant. After about ten

21 minutes, officers released Brown and allowed him back inside the barbershop.

22

This was not the first time that Fades Unlimited had been inspected by the MVPD.

23 On two previous occasions, once in late 2007 and then again in early 2008, Fades

24 Unlimited “had been subjected” to “warrantless ‘inspections’ . . . once by MVPD officers [by

25 themselves] and once by MVPD officers along with one Code Enforcement [inspector].”

26

27

2 It is further alleged that "the inspections conducted at the other [three] African-

28

American businesses on April 2, 2008, were . . . similarly invasive and intrusive." (Id. ¶ 29).

4

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 5 of 32 Page ID #:479

1 (Id. ¶ 5). During the late 2007 inspection, “MVPD officers demanded identification from 2 barbers and customers, ran warrant [checks], and searched through drawers and

3 containers.” (Id.). Moreover, MVPD officers “took one of the barbers to his residence, 4 searched it with his consent, and returned him to the shop.” (Id. ¶ 27). During the 5 inspection conducted in early 2008, a Code Enforcement inspector accompanied a MVPD

6 officers to Fades Unlimited and “conducted a cursory visual inspection of the shop.” (Id. ¶ 7 28). Once again MVPD officers collected identification from all the barbers inside the store 8 and ran warrant checks against them during the “inspection.” (Id.)

9

It is alleged that these “raid-style” health and safety inspections on April 2, 2008,

10 “produced no evidence of wrongdoing other than routine issues concerning maintenance

11 and storage of barbering supplies and equipment.” (Id. ¶ 3). Moreover, it is alleged that

12 this joint operation on April 2, 2008, “was initiated and undertaken at the request of MVPD 13 officers.” (Id.) It is further alleged that, given the need for multi-agency coordination and 14 the unusual nature of the raids themselves, “supervisors at Code Enforcement, MVPD (or

15 the Sheriff’s Department) and/or the Board approved in advance the manner in which the 16 raids would be conducted, which businesses would be selected for raid, or the manner in 17 which businesses would be selected for raids.” (Id. ¶ 35).

18

Business declined percepitously at both the Hair Shack and Fades Unlimited

19 following these raids. (Id. ¶¶ 3, 31).

20

C. The Aftermath

21

The raids that took place on April 2, 2008, provoked a public outcry among

22 members of the local community, leading to several media stories and a community

23 meeting with the Mayor of Moreno Valley. In comments to the media and to the public,

24 “the Mayor, City Council members, and [the police chief] defended the raids as legitimate 25 law enforcement operations.” (Id. ¶ 30). The Riverside County Sheriff’s Department 26 characterized the raids as a “City issue.”3 (Id.) One Code Enforcement inspector told

27

3 The Riverside County Sheriff's Department "operates the MVPD pursuant to a

28

(continued...)

5

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 6 of 32 Page ID #:480

1 members of the press that his department would continue to conduct such sweeps in the

2 future, saying, “This is not a one-time event.” (Id.)

3

Plaintiffs later filed the instant civil rights lawsuit alleging that their federal and state

4 constitutional rights had been violated, namely, their right against racial discrimination by

5 the State (and its agents) and their right to be free from unreasonable warrantless

6 searches by the State (and its agents). Plaintiffs’ lawsuit seeks relief in the form of

7 compensatory damages against the City, the County, and the various individual MVPD,

8 Code Enforcement and Board officers or inspectors involved in the raids themselves.

9 Moreover, plaintiffs seek injunctive relief against the Riverside County Sheriff, the Moreno

10 Valley Police Chief, and the head of the Board barring further “racial profiling and the

11 conduct of administrative searches” (and/or a declaration that, to the extent “state statutes

12 and regulations authorized [such] conduct,” those statutes and regulations are

13 “unconstitutional” under the Fourth Amendment). As explained in their opposition papers,

14 the purpose for the requested “injunctive relief [was] to insure that future business

15 inspections would not take on the appearance of criminal raids.” (Opp. at 1).

16

Various defendants have since filed motions to dismiss which, when considered in

17 the aggregate, seek dismissal of the entirety of plaintiffs’ complaint, arguing that the

18 complaint’s request for prospective injunctive relief is barred as plaintiffs cannot

19 demonstrate they have standing to seek such relief, that the allegations pled do not

20 demonstrate that the “raid-style” administrative inspections were motivated by plaintiffs’

21 race, and that the inspections themselves (including the manner in which they were

22 conducted) are constitutionally permissible. The Court addresses each argument in turn.

23

II. ANALYSIS

24

A. Standing for Requested Injunctive Relief

25

Article III to the United States Constitution limits the power of federal courts to

26

27

3(...continued) contract to provide police services to the City of Moreno Valley," and accordingly "remains

28

responsible" in part for the MVPD's "policies and procedures" as well as "the discipline of officers assigned to the MVPD, who remain employees . . . of the County." (Id. ¶ 14).

6

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 7 of 32 Page ID #:481

1 actual “cases” and “controversies” among the litigants before it. U.S. Const. Art. III, sect.

2 2.4 To demonstrate such an actual controversy is presented, a plaintiff must show that he

3 or she has a “personal stake in the outcome” of the litigation. City of Los Angeles v.

4 Lyons, 461 U.S. 95, 101 (1983). Insofar as a request for injunctive relief is concerned, a

5 plaintiff meets this test by demonstrating that the injury or the threat of future injury which

6 he or she seeks to enjoin from occurring at the hands of defendants "as a result of the

7 challenged official conduct" is "both 'real and immediate,' not 'conjectural' or 'hypothetical.'"

8 Id. at 102. These "case-or-controversy considerations 'obviously shade into those

9 determining whether the complaint states a sound basis for equitable relief.'" Id. at 103

10 (quoting O'Shea v. Littleton, 414 U.S. 488, 499 (1974)). Notably, an equitable remedy,

11 such as injunctive relief, "is unavailable absent a showing of irreparable injury, a

12 requirement that cannot be met where there is no showing of any real or immediate threat

13 that the plaintiffs will be wronged again." Id. at 111.

14

Here, the parties focus on whether a showing of future injury has been met given

15 that the present request for injunctive relief is predicated upon the assertion that plaintiffs

16 will face more of these raid-style inspections going forward. As explained by defendants,

17 the "last acts alleged in the complaint were on April 2, 2008, more than a year ago.

18 [Without an] allegation of any ongoing problem" there is no "basis for believing that the

19 plaintiffs are at all likely to suffer any future injuries of any kind." (Mot. Dismiss at 9).

20

For plaintiffs to have standing to support the issuance of injunctive relief in the

21 context of an assertion of the prospect of future injury, there must be some "realistic

22 threat" or "danger" that the injury will actually occur, id. at 106 n.7; Babbitt v. United Farm

23

4 Although defendants have raised the standing question under the auspices of Rule

24

12(b)(6), the more appropriate lens by which to view the pleadings and the arguments raised thereunder is by way of Rule 12(b)(1). See 15 JAMES WM. MOORE, MOORE’S

25

FEDERAL PRACTICE § 101.30[1] at 101-19 (3rd ed. 2009) (“the issue of standing should be raised by a motion to dismiss for lack of jurisdiction over the subject matter” per “Fed. R.

26

Civ. P. 12(b)(1)”). Moreover, although it is not clear from the pleadings whether the requested injunctive relief is based solely or in tanderm with state and federal claims, given

27

that what is needed to establish standing to seek injunctive relief is the same under both California and federal law, compare Easyriders Freedom F.I.G.H.T v. Hannigan, 92 F.3d

28

1486, 1495 (9th Cir. 1996) with Intel Corp. v. Hamidi, 30 Cal.4th 1342, 1352 (2003), the Court will address the question under the rubric of federal case law on standing.

7

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 8 of 32 Page ID #:482

1 Workers, 422 U.S. 289, 298 (1979); the "mere possibility of future injury" is not enough.

2 Gospel Missions of America v. City of Los Angeles, 328 F.3d 548, 555 (9th Cir. 2003).

3 Thus, “claims that are deemed too speculative to support the injury component of standing

4 often depend on a chain of speculative contingencies that must occur for the alleged injury

5 to manifest itself.” MOORE'S FEDERAL PRACTICE § 101.40[4][b][ii] at 101-42 (citing Whitmore

6 v. Arkansas, 495 U.S. 149, 155, 157 (1990) and Lee v. Oregon, 107 F.3d 1382, 1388 (9th

7 Cir. 1997)). This “chain of speculative contingencies” principle has manifested itself in a

8 line of cases where the injury sought to be enjoined is “dependent on the plaintiff either

9 committing or being charged with a crime in the future or otherwise coming into contact

10 with law enforcement.” Id. at 101-44; see also Hodgers-Durgin v. De La Vina, 199 F.3d

11 1037, 1041-42 (9th Cir. 1999) (en banc) ("unlike in Lyons, in this case there is no string of

12 contingencies necessary to produce an injury").

13

For example, in Lyons, 461 U.S. at 101-102, 105, 107, an allegation that a plaintiff

14 was illegally choked while being arrested certainly gave “plaintiff standing to sue for

15 damages, but it did not” by itself “give him standing to seek an injunction barring the police

16 from using the choke hold in the future,” even if “police officers in that area routinely

17 applied choke holds regardless of whether the officers were threatened by the use of

18 deadly force.” As explained by the Supreme Court, for Lyons to have faced this prospect

19 of injury again the future, he would not only have to show "that he would have another

20 encounter with the police but also . . . make the incredible assertion [that] either . . . all

21 police officers in Los Angeles always choke any citizen with whom they happen to have an

22 encounter [whatever its purpose] or that the City order[s] or authorize[s] police officers to

23 act in such a manner." Id. at 105-106; see also Hodgers-Durgin, 199 F.3d at 1042 ("In

24 Lyons, further injury would have required another stop by the police, followed by post-stop

25 behavior culminating in a choke-hold").

26

It is in this vein that courts have held that the “likelihood of a future injury cannot be

27 based solely on the defendant’s conduct in the past.” MOORE'S FEDERAL PRACTICE

28 § 101.40[4][d] at 101-47 (emphasis added). But as with much in the law, past encounters

8

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 9 of 32 Page ID #:483

1 with the challenged conduct are not completely irrelevant to the standing inquiry. As one

2 well-respected treatise has summarized:

3

The likelihood of injury-causing conduct being repeated,

causing future injury to the plaintiff [so as to warrant

4

prospective injunctive relief], depends in part on whether the

conduct was random and who committed it. An allegation of

5

future injury based on a predicted repetition of random or

unauthorized acts of a third party that caused injury in the past

6

will probably be deemed too speculative to satisfy the injury-in

fact requirement. In contrast, when the acts that caused the

7

past injury were authorized by, or were part of a policy of, the

defendant, it is significantly more likely that the actions, and

8

thus the injury, will recur.

9

MOORE’S FEDERAL PRACTICE at 101-48 to 101-49 (3rd ed. 2009); see also Lyons, 461

10 U.S. at 105-106.

11

Thus, in Hodgers, the Ninth Circuit "assumed" that a case or controversy existed on

12 account of the allegation that there existed a policy to pull over individuals driving along the

13 border without cause, 199 F.3d at 1042 ("in this case, another stop of the sort alleged by

14 plaintiffs would itself constitute further injury"), but ultimately concluded that the particular

15 plaintiffs could not demonstrate"a sufficient likelihood of" such injury occurring because the

16 record demonstrated that the plaintiffs, despite constantly traversing the area where this

17 program had been put in place for years by defendants, had only been subjected to such a

18 stop once. Id. at 1044 (despite driving in the affected geographical area "four or five times

19 a week" and "see[ing] Border Patrol agents nearly every day," plaintiffs "were each

20 stopped only once in 10 years").

21

Here, the only evidence plaintiffs have been able to produce or allege to

22 demonstrate that they face the real prospect of injury in the future on account of these

23 raid-style inspections are that (1) they were subjected to these raids on April 2, 2008; (2)

24 that such similar-style inspections had been conducted before on Fades Unlimited in late

25 2007 and early 2008; and (3) the comment to the press from one Code Enforcement

26 inspector that such inspections were not a “one-time event.” As explained in its opposition

27 papers: “[T]hese raids were carefully and deliberately planned, conducted in a consistent

28 manner, and defended afterwards by officials who promised they would recur. . . .

9

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 10 of 32 Page ID #:484

1 [T]hese plaintiffs need no string of contingencies to face such raids again --- indeed the

2 raid’s harm lies in the fact they targeted barbers who were doing nothing more than

3 lawfully operating respected businesses. . . . Plaintiffs need not violate any law or engage

4 in any altercation with defendants to be subjected to the defendants' unlawful conduct. All

5 that is needed [to face this harm again] is another unlawful search.” (Opp. at 2, 8

6 (emphasis added); ). But that is the very problem with the allegations in the complaint as

7 currently stated: Without some indication that these raid-style inspections (not just

8 inspections in general) are part of some formal or sub-rosa policy of one or more of the

9 defendants, there is simply nothing here to rebut the conclusion that, should one or more

10 of these plaintiffs and/or barbershops encounter such a raid in the future, it will be nothing

11 more than one of those predicated on the repetition of an otherwise random act. See

12 Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir. 2001) (noting that standing may be shown

13 by proof that, “at the time of the injury, a written policy” existed and “the injury stems from

14 that policy” or “the harm is part of a ‘pattern of officially sanctioned . . . behavior”). Simply

15 put, there must be something indicating that the conduct sought to be enjoined (namely,

16 the raid-style inspections) will reoccur and that it also has some real, ongoing link

17 purposefully directed to plaintiffs.

18

Although plaintiffs are certainly correct that they would have standing if they were

19 members of a group or class that is “the specific focus of a law or policy,” (Opp. at 7 (citing

20 Thomas v. County of Los Angeles, 978 F.2d 504, 508 (9th Cir. 1992)), but nowhere in their

21 complaint have they alleged that such a law or policy (formal or informal) is in place

22 authorizing these raid-style inspections and that such inspections are being directed to

23 African-American barbershops. Unlike in Lyons, plaintiffs in this case would not “need to

24 violate any law or engage in any altercation with defendants to be subjected to” a raid-style

25 inspection, (Opp. at 8), but there is simply no indication that such a raid would occur on a

26 regular or periodic basis, as opposed to its occurrence being the product of random

27 chance. Plaintiffs attempt to fill this vacuum by noting that barbershops are “subject to

28 lawful periodic inspections” by Board and Code Enforcement inspectors, (Opp. at 8

10

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 11 of 32 Page ID #:485

1 (emphasis added)); however, it is not to inspections per se that plaintiffs’ complaint is

2 directed, but instead it is the particular form some inspections have taken, namely, the

3 raid-style inspection in this context which they claim is unlawful. Thus this case is unlike

4 Hodgers-Durgin where any stop made by Border Patrol agents was alleged to be unlawful;

5 here, plaintiffs admit at the outset that defendants can lawfully subject their premises to

6 inspections. The likelihood of later, lawful inspections occurring cannot be bled into or

7 otherwise used to bolster the likelihood that the former, allegedly unlawful raid-style

8 inspections will occur. Without any indication that this particular form of inspections will

9 occur on periodic basis, such as again would be the case if they were instituted as part of

10 some policy or practice by the MVPD, Code Enforcement, and/or the Board, there is

11 simply nothing here to show that the likelihood of any injury plaintiffs may suffer in the

12 future would be anything but a conjectured possibility.

13

Nonetheless there is some indication in the complaint that these raid-style

14 inspections may be part of some recent formal or informal policy: The inspections

15 conducted on April 2, 2008, were not the first time defendants have engaged in such a

16 practice. Fades Unlimited was subjected to similar types of inspections in late 2007 and

17 once again in early 2008. Moreover, the comment from a Code Enforcement official,

18 following the uproar caused by the April 2, 2008, “inspections,” that these raid-style

19 "sweeps" were not a “one-time event” could suggest that there may be a larger, authorized

20 program going on here. However, the suggestion that such a policy could be in place is no

21 substitute for an allegation actually demonstrating that there is one in place or, at least, an

22 allegation from which it can be inferred that such policy does in fact exist.

23

This brings the Court to the last and, ultimately, most salient point --- it is entirely too

24 early in this case to conclude whether or not a policy or practice is in place that would put

25 the plaintiffs in real danger of being continually subjected to these raid-style inspections as

26 part of the otherwise routine inspections of their business establishments authorized by

27 statute. The decision in many of the standing cases cited to by the parties occurred after

28 an evidentiary hearing (or upon the submission of declarations and evidence in conjunction

11

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 12 of 32 Page ID #:486

1 with a preliminary injunction motion) or on a motion for summary judgment after discovery

2 had been completed in the case. See Lyons, 461 U.S. at 99-100 (decision made after

3 evidentiary hearing on preliminary injunction motion); Hodgers-Durgin, 199 F.3d at 1039

4 (decision tendered on a motion for summary judgment); Thomas, 978 F.2d at 506-07

5 (decision rendered after submission of "volumes of declarations and affidavits" on

6 preliminary injunction motion). It is on this basis that plaintiffs have requested that the

7 Court afford them the opportunity to conduct further jurisdictional discovery on this issue

8 before the Court conclusively rules on the matter (should it determine that the present

9 allegations in the complaint are insufficient to establish standing, which the Court at this

10 point finds is the case). (Opp. at 2 (noting that “detailed factual allegations to support [an]

11 allegation of [policy,] custom or practice may not be possible prior to discovery, when facts

12 supporting standing for injunctive relief are in the hands of defendants”) & 12-13 (“Plaintiffs

13 have not had the opportunity to conduct discovery on (1) the genesis of the raid-

14 inspections, (2) whether the policy of targeting African-Americans-owned barbershops was

15 recently enacted, (3) whether the City has used similar raid-inspections on other types of

16 business establishments, and (4) evidence regarding a pattern or practice of defendants

17 conducting joint raid-inspections with the Board or Code Enforcement”)). In essence,

18 plaintiffs seek an opportunity to further flesh out the factual details before a decision is

19 made.

20

Given the serious possibilities raised by the allegations now in the complaint that

21 such a policy or practice may exist, and given that the evidence needed to properly allege

22 that fact one way or the other rest largely in the hands of defendants, the Court at this time

23 will hold in abeyance ruling on those portions of defendants’ motions seeking to dismiss

24 the third, fourth, and fifth claims as well as the prayer for injunctive relief for the next ninety

25 (90) days while the parties engage in jurisdictional discovery related solely to whether it

26 can be established that these raid-style inspections of local barbershops in Moreno Valley

27

28

12

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 13 of 32 Page ID #:487

1 are part of some policy or program of the City, County, and/or the Board.5 Upon the

2 completion of this jurisdictional discovery, the parties are thereafter directed to schedule

3 with the Court an evidentiary hearing at which each side will be allowed to present

4 evidence disclosed during the discovery process on the question. Cf. MOORE'S FEDERAL

5 PRACTICE §101.35 at 101-27 (noting that courts are permitted to hold evidentiary hearings

6 before rendering final decision on standing).

7

B. Equal Protection

8

Two things need to be shown to state a race discrimination civil rights claim: The

9 act or conduct complained of must have had a discriminatory impact, and that the

10 discrimination was intentional.6 See Washington v. Davis, 426 U.S. 229, 239-41 (1976).

11

1. Discriminatory Impact

12

Citing that “five of the six barbershops . . . selected as targets for [these] raid-style

13 inspections on April 2, 2008, were owned, operated, and primarily frequented by African

14 Americans,” (First Am. Compl. ¶ 4), plaintiffs have alleged that in using such "unusually

15 aggressive" raids on their businesses the decision to do so was made “on the basis of

16

17

18

5 Defendants response to plaintiffs request for jurisdictional discovery request is confused. They argue that somehow the discovery that the Court will allow to proceed

19

would only concern plaintiffs’ injuries and damages from the 2008 search, so that none of the evidence unearthed during the process “can show likely future actions by defendants

20

or future injury to plaintiffs.” (Reply at 7). Such a contention misses the mark of what would be the proper scope of such discovery. It most certainly would not solely be about

21

what injuries or damages plaintiffs’ suffered as a result of the April 2, 2008, searches, but instead will focus on defendants and any and all policies or practices they have in place,

22

and the nature of the inspections defendants have engaged in both prior to and after the alleged inspections in the Complaint. Defendants' fall-back position -- that no discovery

23

should proceed because plaintiffs have failed to present any evidence that may indicate ongoing misconduct -- is again refuted by the Code Enforcement official’s comment and

24

the fact that similar such raids had taken place prior to those on April 2, 2008. Admittedly, such “facts” are not enough by themselves to warrant a finding of standing, but they are

25

certainly suggestive enough that such a policy or practice may indeed exist as to warrant permitting discovery on that issue before making a final decision.

26

6 The same analysis applies to equal protection claims, like here, brought under

27

California's state constitution, Cal. Const., Art. I, § 7, as under the United States Constitution. See Barnes-Wallace v. Boy Scouts of America, 275 F. Supp. 2d 1259, 1281

28

(S.D. Cal. 2003). Accordingly, the Court's analysis of federal precedent applies equally to the merits of plaintiffs' state equal protection claims.

13

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 14 of 32 Page ID #:488

1 [their] race and the race of the owners, employees, and clientele at [their] businesses.”

2 (Id.)

3

Defendants argue that discriminatory impact cannot be shown from such a

4 statistical analysis because its focus is confined solely to what happened on April 2, 2008,

5 which it is argued is “too narrow a time period” to establish liability. For this proposition,

6 defendants cite to United States v. Bourgeois, 964 F.2d 935, 940 (9th Cir. 1992), where the

7 Ninth Circuit turned aside a selective enforcement defense raised by a criminal defendant

8 (who noted that of the 100 or so people arrested during the sweeps only ten were

9 prosecuted for firearms violations and all ten were African American) picked up on a

10 firearms violation after a two-day, multi-district sweep of suspected gang members. Id.

11 (where defense put forward was "that the government could as readily have identified and

12 prosecuted non-blacks for firearms violations" but instead "for this operation, the

13 government appears to have investigated gun stores in predominantly black

14 neighborhoods and otherwise identified black, but not non-black felons who purchased

15 guns"). As explained by the Ninth Circuit there was simply no showing by the criminal

16 defendant in that case that the government “does not generally prosecute felons of all

17 races who possess firearms.” Id. To focus simply on one investigation could tend to

18 distort what would otherwise be a neutral application of the law:

19

As a policy matter, Bourgeois' narrow time focus is untenable.

If adopted, it would severely limit law enforcement efforts

20

directed at specific groups of criminals. As both parties note,

many gangs and criminal groups are racially homogeneous.

21

Operations targeted at Wall Street bankers, alien smugglers, or

any of the gangs listed by Bourgeois . . . are likely to result in

22 the prosecution of several people of the same race. This, in itself, does not suggest the

prosecution decisions were based on race. . . . The government need not provide

23 discovery on a selective prosecution claim simply because law enforcement officials

focused for a short time on a racially homogeneous criminal group[, rather such concerns

24 are raised] by long-term targeting of one gang to the exclusion of others whose members

are equally culpable and apprehensible.

25

Defendants' reliance on this case is misplaced. To begin, plaintiffs' discrimination

26

claim is not one centered on the selective enforcement of the laws ( the issue addressed in

27

Bourgeois); such would be the case if a complaint was raised that health and safety

28

14

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 15 of 32 Page ID #:489

1 inspections that are “generally” done or permitted at barbershops were being exclusively

2 conducted at African-American owned establishments. Instead plaintiffs' racial

3 discrimination claim is based on the allegation that the manner and form of the particular

4 inspections conducted at their establishments were well-outside the norm from those

5 administrative inspections defendants had “generally” conducted in the past at other

6 barbershops.7 As ably explained by plaintiffs’ counsel: "[Defendants] paint a distorted

7 picture of plaintiffs' claim, erroneously asserting that it arises solely from the fact that

8 defendants selected plaintiffs for ordinary business license inspections, not from the fact

9 that defendants targeted plaintiffs for these unusually aggressive searches. However, the

10 complaint could not be clearer that plaintiffs' discrimination claim is based not just on the

11 fact of the searches, but on the unusually aggressive manner in which they were

12 executed." (Opp. at 9 (emphasis added)).

13

Thus to require some longer time span for comparison with other typical health and

14 safety inspections conducted at barbershops in Moreno Valley is both equally misguided

15 and unilluminating. The atypical nature and manner of the inspections at issue places this

16 case well beyond the confines of selective enforcement cases typified by Bourgeois, all of

17 which are predicated on targeted enforcement of otherwise generally applicable criminal

18 laws against a particular group. Again, in Bourgeois the conduct complained as

19 discriminatory (the enforcement of federal firearms statutes) occurred regularly, such that

20 consideration of racial disparities in the performance of the conduct across a longer time

21 frame would be more instructive than taking what occurred in the enforcement of the law in

22 isolation on a single day or a single operation would provide. As conceded by plaintiffs,

23

24

7 Defendants' contention that the complaint cannot be read as alleging that law enfocement and inspectors did not treat other businesses in this fashion is mistaken.

25

(Defs' Reply at 5 ("Plaintiffs are essentially asking the Court to cure this deficiency in the pleadings by inferring an allegation of discriminatory treatment from their characterization

26

of the inspections as 'unusually agressive'")). Again reading paragraphs 3 and 24 in the complaint together clearly indicates that “the search” conducted on April 2, 2008, “was

27

more extensive and intrusive than" had been used in "any ordinary business inspection" to "determine compliance with barbering or business regulations.” (First Am. Compl. ¶¶ 3,

28 24). That is all that is needed for the inference to take shape.

15

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 16 of 32 Page ID #:490

1 “[i]f the only discriminatory treatment plaintiffs alleged had been that they were visited by

2 Code Enforcement for ordinary inspection, [defendants] might rightfully argue that they

3 could not allege discrimination on the basis of a single day’s inspections, and must look to

4 the pattern of ordinary Code Enforcement inspections over a longer period of time. But

5 plaintiffs focus on the single day of inspections because, as alleged in the complaint, the

6 businesses visited that day were subjected to ‘unusually aggressive . . . raid-style

7 inspections’ . . . .” (Opp. at 11). Again, a fair reading of plaintiffs' complaint demonstrates

8 that one of the central allegations therein is that these "raid-style" inspections had not been

9 used on any other barbershops in the past (save for Fades Unlimited) except at by and

10 large African-American owned barbershops.

11

2. Discriminatory Intent

12

This leads to the question of the sufficiency of the allegations in the complaint for

13 establishing discriminatory intent. Here, there is more than the disparate impact (namely,

14 that five out of the six establishments hit by these inspections were owned and frequented

15 by African Americans); here there is the additional allegation that these inspections were

16 more intrusive than those that had previously been conducted by the agencies involved. It

17 is this additional fact --- the "unusually aggressive" or intrusive nature of the inspections

18 themselves (the contours of which are recited in great detail in the complaint, see First Am.

19 Compl. ¶¶ 24-28) --- from which it is argued by plaintiffs that it can be inferred that there

20 was a discriminatory intent in performing the inspections, the inference presumably being

21 that defendants engaged in a form of racial profiling of African American barbershops

22 perceiving them as somehow a den of criminal activity simply because they are owned and

23 frequented by African American men.8

24

25

8 Plaintiffs argue that the one other non-African American barbershop could have been searched by “mistake, convenience, or an attempt to cover-up discriminatory intent

26

or other unlawful purpose.” (Opp. at 8). Given that plaintiffs need not prove that the search “rested solely on racially discriminatory purposes,” Village of Arlington Heights v.

27

Metro. Housing Dev. Corp., 429 U.S. 252, 265-66 (1977), defense counsel's notation that one non-African American barbershop was also subjected to these raid-style inspections is

28

not as probative, see infra, of the plausibility of their proffered alternative explanation. (Def's Reply at 2-3).

16

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 17 of 32 Page ID #:491

1

Defendants argue that such a factual allegation is insufficient to sustain an equal

2 protection claim because, even if the allegation is taken as true, it “does not make out a

3 plausible, as opposed to merely possible, equal protection violation.” (Mot. Dismiss at 1).

4 That gradation in likelihood is considered all-important to defendants because of recent

5 Supreme Court case law on what constitutes a sufficiently plead factual allegation to

6 survive a Rule 12(b)(6) motion to dismiss. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

7 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

8

In Iqbal the Supreme Court set forth a two-pronged approach by which courts were

9 to review the sufficiency of allegations in a complaint. First, a court reviews the complaint

10 and discounts any allegations therein that amount to little more than “threadbare recitals of

11 the elements of a cause of action, supported by mere conclusory statements.” 129 S.Ct.

12 at 1949. A complaint must include “more than an unadorned, the-defendant-unlawfully-

13 harmed-me accusation.” Id. Next, the court examines the remaining allegations to

14 determine whether they “state a plausible claim for relief,” with the understanding that such

15 allegations are accepted as being true and any reasonable inferences that arise therefrom

16 are to be accorded in the pleader's favor. Id. at 1950. A claim is plausible, as opposed to

17 merely possible, if its factual content “allows the court to draw the reasonable inference

18 that the defendant is liable for the misconduct alleged.” Id. at 1949. In contrast, a

19 complaint alleging facts that are “merely consistent with a defendant’s liability, stops short

20 of the line between possibility and plausibility of entitlement to relief.” Id.

21

Thus, in Iqbal, the Supreme Court found the plaintiffs’ allegation that the “arrest[]

22 and detention [of] thousands of Arab Muslim men . . . [by the federal government] as part

23 of its investigation of the events of September 11, 2001” could not plausibly infer

24 purposeful unlawful discrimination on the government's part because an “obvious

25 alternative explanation” existed: Given that the mastermind and perpetrators of the

26 September 11th attacks were Arab, “a legitimate policy directing law enforcement to arrest

27 and detain individuals because of their suspected link to the attacks would produce a

28 disparate, incidental impact on Arab Muslims.” Id. at 1951. Nor did the plaintiffs' allegation

17

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 18 of 32 Page ID #:492

1 that, after being arrested, the government placed them in highly restrictive conditions of

2 confinement sufficiently infer a discriminatory intent as such an action could be plausibly

3 explained in a non-discriminatory manner: That "the Nation's top law enforcement officers,

4 in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the

5 most secure conditions available until the suspects could be cleared of terrorist activity."

6 Id. at 1954.

7

Seizing on this, defendants’ position is succinctly stated, “plaintiffs’ complaint

8 contains allegations that raise an obvious lawful alternative explanation for the searches,

9 i.e., that plaintiffs’ permitted their barber shops to be used as social gathering places, a

10 potential violation of the health and safety statute governing barber shops and potential

11 violation of business licensing requirements.” (Mot. Dismiss at 1-2). As rephrased by

12 defendants: “Plaintiffs barbershops were selected for inspection not . . . because their

13 patrons were African American but instead . . . because the shops’ use as social gathering

14 spots --- including the use of back rooms for card and domino playing --- violated” the state

15 licensing law. (Mot. Dismiss at 10-11). The exact provision of the state licensing law for

16 barbershops defendants point to is California Business & Professional Code § 7350, which

17 makes it a misdemeanor “to permit any room or part thereof” in a barber shop “to be used

18 for residential purposes or for any other purpose that would tend to make the room

19 unsanitary, unhealthy or unsafe, or endanger the health and safety of the consuming

20 public.”

21

This "explanation" is simply wrongheaded. Nowhere do defendants even bother to

22 explain how the fact that a barbershop, even one known as a "social gathering place."9

23 would somehow serve as a legitimate explanation justifying why 5 out of 6 "raid-style"

24 inspections conducted on April 2, 2008, were on establishments run and frequented by

25 African Americans. To begin, it is not clear how having a good conversation about topics

26 of the day (as is typified by a "social gathering place"), or partaking in a friendly game of

27

28

9 The Court is unaware of any barbershop that, one some level, is not also a "social gathering place." Such has always been the nature of barbershops.

18

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 19 of 32 Page ID #:493

1 cards or dominoes, somehow amounts to a violation of § 7350 (is talking to friends or

2 playing dominoes considered “unsanitary” or "unhealthy"?).

3

Even setting that aside, these “inspections” were not typical ones (as again alleged

4 in the complaint), but were of a variety more akin to those conducted during criminal

5 sweeps. Defendants cannot offer as an “alternative plausible explanation” for why there is

6 such a great disparity in African American barbershops (with no prior history of violence)

7 being subjected to this atypical form of administrative searches simply on the fact that

8 businesses involved were barbershops which are notoriously "social gathering" places.

9 There is simply a disconnect between the proffered explanation and what is alleged to

10 have occurred; a disconnect that renders their alternative explanation for the disparity as

11 anything but “plausible,” let alone "obvious." As ably remarked by plaintiffs' counsel: Even

12 if "the social aspect of these African American barbershops somehow justified a routine

13 inspection to insure compliance with barbering or business regulations, it would not explain

14 why defendants did not simply conduct such routine inspections, but instead subjected

15 plaintiffs' shops to raids so aggressive" as that alleged in the complaint. (Pls’ Opp. at 14).

16

The only other alternative explanation proffered by defendants is that the particular

17 racial-makeup of the barbershops subjected to these "raid-style" inspections are simply a

18 reflection of the fact that many of the barbershops in the particular part of Moreno Valley

19 that was subjected to these raids were owned and operated by African Americans, not a

20 reflection of defendants' discriminatory intent. As defense counsel explains: "[T]he shops

21 in that geographical area may happen to be primarily owned, owned, operated by, or

22 frequented by African Americans, and thus those were the shops that were involved in the

23 licensing sweep of that geographical area." (Def's Reply at 2). The problem with this

24 "explanation" is that it is predicated entirely on an argument of counsel, not facts alleged in

25 the complaint. There is no mention in the complaint as to the relative proximity to which

26 each of the affected barbershops were to one another, nor does even defense counsel's

27 "explanation" seek to proffer one. Where the barbershops affected all located within a two

28 mile radius, a six mile radius, or something larger? Without these key additional facts, the

19

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 20 of 32 Page ID #:494

1 Court cannot even begin to entertain the obviousness, much less the plausibility, of this

2 alternative explanation. Moreover, this explanation completely ignores the fact that these

3 special raid-style inspections had been conducted on two prior occasions before the ones

4 on April 2, 2008, and each time those earlier inspections were done solely at an African

5 American barbershop, Fades Unlimited. If the impact of these raid-style inspections is

6 attributable solely to the peculiar makeup of the barbershops in the geographical area (yet

7 undefined) in which they took place on the date in question, no explanation exists as to

8 why it is only in this particular area that these special inspections are conducted nor why in

9 the eight times in which the inspections had been performed (including those from late

10 2007 and early 2008) seven of the inspections occurred at barbershops solely owned and

11 operated by African Americans?

12

Counsel for the individual Code Enforcement inspectors next argue that, should any

13 "discriminatory intent" be betrayed by the allegedly atypical nature of the inspections

14 conducted on April 2, 2008, then such intent cannot be imputed to them because those

15 acts were alleged to have been committed solely by MVPD officers or higher ups within the

16 agencies. As to the former point, defense counsel has not read plaintiffs' complaint closely

17 enough. At one point in the complaint it is alleged that "the unusually aggressive conduct

18 of the MVPD during the raid-style inspections" demonstrated that decisions "to target these

19 businesses in the manner they did was based, in part or in whole, on the race of the

20 barbers and their clientele." (First Am. Compl. ¶ 4). Defendants argue that this single

21 allegation "is consistent with the rest of the complaint, which attributes all the allegedly

22 aggressive conduct during the . . . administrative inspections to the MVPD" with the Code

23 Enforcement and Board inspectors' conduct simply limited to tagging along and

24 "accompanying" the MVPD during the inspection. (Defs' Reply at 5, 7). That is simply

25 inaccurate. Elsewhere in the complaint, when speaking of the particular practices used

26 during these inspections themselves that rendered them "unusual," it is alleged that such

27 conduct was committed by "the MVPD, Code Enforcement, and Board officers." (First Am.

28 Compl. ¶ 24 ("For approximately one-half hour, the MVPD, Code Enforcement, and Board

20

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 21 of 32 Page ID #:495

1 officers conducted an extensive search of the Hair Shack, including areas where no

2 barbering was performed, and questioned employees and customers" (emphasis added))

3 & ¶ 25 ("Officers and inspectors conducted an extensive search of the shop [at Fades

4 Unlimited that] was more intrusive than necessary to determine compliance with barbering

5 or business regulations" (emphasis added))). Given that there are specific allegations

6 alleging that Board and Code Enforcement inspectors engaged in the "unusual" aspects of

7 the inspections and that these inspections were conducted almost entirely at African

8 American barber shops (and which had not been conducted against other businesses in

9 the past, save for Fades Unlimited), the Court finds that the allegations in the complaint

10 are sufficient that they could betray a discriminatory intent on the inspectors part.

11

The problem, however, is that there is no indication in the complaint that it was the

12 individual inspectors who made or participated in the decision to so target the African

13 American barbershops in question. Indeed, it is equally possible (and perhaps more likely)

14 that the individual inspector's "participation" in the process was limited to simply being

15 given instructions by their superiors to accompany MVPD officers to pre-approved,

16 designated places to inspect; the where, when, and who would be inspected (and the

17 manner of the inspection) being out of their hands. As noted by defendants, the complaint

18 alleges that the decision to “approve” conducting the raid and which barbershops to

19 inspect was done by “supervisors” at Code Enforcement, MVPD, and/or the Board, (First

20 Am. Compl. ¶ 35), a position for which none of the individual Code Enforcement inspectors

21 held. Moreover, it is alleged that "MVPD officers," not anyone from Code Enforcement or

22 the Board, "initiated" and "requested" this joint operation in the first instance. (First Am.

23 Compl. ¶ 3). From this, the individual defendants argue that since they did not “make” the

24 decision as to which barbershops to conduct the raid on or the nature of any inspection

25 that was to be conducted, no discriminatory intent can be imputed to them. Defendants'

26 argument is persuasive.

27

Although at the pleading stage a plaintiff need only “allege facts that are at least

28 susceptible of an inference of discriminatory intent,” Byrd v. Maricopa County Sheriff’s

21

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 22 of 32 Page ID #:496

1 Department, 565 F.3d 1205 (9th Cir. 2009), nothing in the allegations pled in the complaint

2 are susceptible to the inference that the individual inspectors (to be distinguished from the

3 individual MVPD officers) having a racially discriminatory intent. This is perhaps best

4 illustrated by the bit of fine-splitting of language on plaintiffs’ part in attempting to show

5 such an inferences given the allegations in the complaint. Plaintiffs argue that the section

6 of the complaint cited to by defendants only said the decision to “approve” the raid, how it

7 was carried out, and which businesses to inspect was done by “supervisors,” but that it

8 nowhere alleged who “made the decision” on the particulars that were subsequently

9 “approved.” (Pls' Opp. at 14-15). This factual gap thus leaves the possibility that perhaps

10 the individual inspectors had some input in that regard (as is, at least, explicitly suggested

11 in the complaint with regards to the MVPD officers who "initiated" and "requested" the

12 inspections in question). As stated by plaintiffs: “Approving the decision is not the same

13 as making the decision, and it certainly is not the same as carrying out the raids. This

14 allegation does not suggest that [defendants], who did carry out the raids, did not

15 participate in decisions about what businesses to target or in what manner to conduct the

16 raids, and it certainly does not absolve them for ‘acting in conjunction’ to execute the

17 raids.” (Opp. at 14-15).

18

That may be true, but by the same token there is no allegation in the complaint (nor

19 can one be inferred from those allegations made) that these individual defendants

20 participated in making that decision. The allegation that the inspections were initiated at

21 the request of MVPD officers, in conjunction with the one that even touches upon the

22 subject in question (namely, that "superiors" at the various agencies "approved" the

23 operation, including the nature of the inspections and which businesses were targeted),

24 would actually tend to point in the opposite direction --- that the individual inspectors

25 played no part in the decision-making process with respect to these "raid-style"

26 inspections. There must be some evidence of discriminatory intent and that is precisely

27 what is missing here.

28

22

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 23 of 32 Page ID #:497

1

Counsel for defendant Underwood, the Executive Officer of the Board, correctly

2 observes that there is no allegation in the complaint that Board inspectors or the Board

3 itself were involved in or even apprised of the inspections conducted at Fades Unlimited in

4 late 2007 and early 2008. Nonetheless, such allegations are manifest with respect to the

5 April 2, 2008, inspections. Defendant Underwood demurs on that point as well, arguing

6 that "none of these allegations are directed at" her. (Mot. Dismiss at 8). Put simply,

7 Underwood's counsel seeks to characterize the locus for any discriminatory intent attached

8 to the inspections as entirely local in origin, with the Board (notably at the level in the

9 agency in which she sits) as a peripheral player with no input in the process from which an

10 inference of discriminatory intent could be made. For this reason Underwood's counsel

11 cites to a Ninth Circuit case, Van Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir.

12 1996), that applied traditional tort law to a civil rights claim for the proposition that an

13 intervening cause that breaks the chain of proximate causation defeats any finding of

14 liability; here, it is argued that it was the local officers and agencies that infused any

15 discriminatory intent in an otherwise content neutral inspection regimen.

16

That, however, is not how the complaint is pled. As noted above, it is alleged that

17 "supervisors" at the various agencies, including the Board, "approved in advance" not only

18 the "manner in which the raids would be conducted" but also "which businesses would be

19 selected for raid." Underwood, given her position within the agency, would clearly fall

20 within the category of a supervisor. To equate Underwood's "approval" as little more than

21 signing off on "inspections [that] take place" all the time "to ensure compliance with the

22 Barbering Act," (Mot. Dismiss at 9), is only possible if done to the exclusion of other

23 allegations to the contrary made in the complaint. Thus, the Court need not entertain the

24 question left outstanding in another Ninth Circuit case, Liston v. County of Riverside, 120

25 F.3d 965, 981 n.13 (9th Cir. 1997), about "the extent to which" an individual's act in

26 "obtaining . . . the warrant could result in liability for any unlawful acts of officers who

27 executed it"; here, it is alleged that a supervisor in a position similar to Underwood's signed

28

23

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 24 of 32 Page ID #:498

1 off on the particular method in which the inspections were carried out and businesses that

2 would be inspected.

3

The Court therefore concludes that, as presently alleged, the complaint is

4 insufficient to state a claim that the individual inspectors had a discriminatory intent in

5 carrying out the "raid-style" inspections and hereby DISMISSES the first claim in the

6 complaint against the individual Code Enforcement inspectors --- defendants Heisterberg,

7 Longdyke, and Miller ---- and the individual Board inspectors ---- defendants Joe Brown,

8 Xochi Camargo, and Arlene Bauby. However, because the defect in the complaint can

9 apparently be cured through further amendment, the Court hereby affords plaintiffs leave

10 to amend their complaint within thirty (30) days of the date of this Order to more precisely

11 address the issue of whether (and, if so, how so) the listed individual defendants

12 participated in the decision making process leading to the implementation and conduct on

13 the raid-style inspections in question.10 In all other respects, defendants motions to

14 dismiss plaintiffs' federal and state equal protection claims is DENIED.

15

C. Reasonableness of Raid-Style Inspections

16

17

10 Defendants argument on qualified immunity built entirely on the Ninth Circuit's decision in Bourgeois is unconvincing. (Defs' Mot. Dismiss at 14 ("While it may have been

18

apparent at that time that local governments may not selectively enforce the law against certain citizens because of their race, it certainly was not clear that law enforcement

19

actions conducted on a single day which disproportionately affect persons of a particular class could . . . constitute an equal protection violation"). As noted earlier, the evidence

20

(as opposed to whether a constitutional right has been violated) required to sustain a defense of selective enforcement borrowed from criminal law is, and has been found by

21

other courts before 2008, to be inappropriate for civil rights actions such as that brought by plaintiffs. Moreover, however defendants seek to partition the acts underlying this case

22

(and it must be remembered that the raid-style searches conducted on April 2, 2008, were not the first time such inspections had been conducted), as being factually distinguishable

23

from other cases, it has long been established that targeting African Americans (however, couched, be it as racial profiling or something else) for unusual law enforcement programs

24

is itself illegal. See Bingham v. City of Manhattan Beach, 341 F.3d 939, 948-49 & n.9 (9th Cir. 2003) (articulating constitutional standard applicable to equal protection claims

25

concerning racial profiling). "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful";

26

sometimes the unlawfulness of an act is "apparent" even "in light of" general principles in "pre-existing law." Hope v. Pelzer, 536 U.S. 730, 739 (2002). Thus, "officials can still be

27

on notice that their conduct violates established law even in novel factual circumstances" as even "general statements of the law are not inherently incapable of giving fair and clear

28

warning." Id. at 741. That the defendants allegedly sought to conduct racial profiling for just one day or several months does not alter the unlawfulness of the alleged action itself.

24

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 25 of 32 Page ID #:499

1

Beginning with the passage of the Barbering and Cosmetology Act of 1939,

2 California has established a statutory and regulatory scheme for barbershops directed to

3 health and safety issues; included among that scheme is the ability of code enforcement

4 and state inspectors to subject those establishments to warrantless administrative

5 inspections to ensure that compliance to the regulations is met. See Cal. Bus. & Prof

6 Code §§ 7301-7444.1, and the regulations promulgated thereunder, Title 16, division 9, §§

7 901-999. The Board oversees the licensing and discipline of barbers, cosmetologists, and

8 barbershops; only licensed professionals may practice barbering and cosmetology. See

9 Cal. Bus. & Prof. Code § 7317. The Board also issues "establishment" licenses to

10 barbershops, with an "establishment" defined as any premises, building or part thereof,

11 where an activity licensed by the Board is practiced. See Cal. Bus. & Prof. Code §§ 7346-

12 7347. An establishment must always be under the charge of an individual licensed by the

13 Board and all individuals providing professional services at the establishment (save

14 student interns) must be licensed. See Cal. Bus. & Prof. Code §§ 7348-7349. The

15 Barbering Act also provides that the Board shall engage in random and targeted

16 inspections of establishments to ensure compliance with applicable laws relating to public

17 health and safety and the conduct and operation of licensed establishments. Cal. Bus. &

18 Prof. Code §§ 7313, 7353. Finally, a laundry list of regulations have been promulgated

19 concerning the minutiae of things that take place at barbershops, including mandatory

20 minimum equipment and tools for disposal of hair and used clothes, use of disinfectant and

21 disposal of items between patrons, and the storage of liquids, creams, powders, and

22 cosmetics. See Cal. Code Regs. §§ 978 (minimum supplies), 979 (disinfecting equipment),

23 981 (instruments and supplies), 983 (personal cleanliness), 985 (neck strips), and 987

24 (towels).

25

Plaintiffs do not dispute that barbershops in California are a "closely regulated"

26 businesses, nor that the warrantless inspections authorized thereunder vindicate an

27 important state interest, namely, public health and safety. (Pls’ Opp. at 12 (“plaintiffs do

28 not contest here” that the “business [was] closely regulated by a statutory scheme, and

25

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 26 of 32 Page ID #:500

1 that the scheme [was] informed by a substantial government interest”)); see also Stoger v.

2 Commonwealth of Kentucky, 638 F.Supp. 1 (W.D. KY 1985) (holding that the

3 pervasiveness of the regulatory scheme created by Kentucky's Barbering Act, which is

4 similar in many respects to California's, rendered the barbering business subject to close

5 government supervision so as to lower an owner's expectation of privacy thereto).

6 However, even starting with that as a given does not end the inquiry. See New York v.

7 Burger, 482 U.S. 691, 702 (1987) ("where the privacy interests of the owner are weakened

8 and the governmental interests in regulating particular businesses are concomitantly

9 heightened, a warrantless inspection of commercial premises may well be reasonable

10 within the meaning of the Fourth Amendment" (emphasis added)).

11

Warrantless inspections of such closely regulated businesses that seek to vindicate

12 a substantial state interest must still meet other criteria for them to be considered

13 constitutionally reasonable. Notably, the inspection program put in place by the regulatory

14 scheme "must provide a constitutionally adequate substitute for a warrant." Id. at 703. As

15 explained by the Supreme Court, such a substitute exists if "the regulatory statute . . .

16 advise[s] the owner of the commercial premises that the search is being made pursuant to

17 the law and has a properly defined scope, and it . . . limit[s] the discretion of the inspecting

18 officers." Id. In order to adequately cabin the inspector's discretion, the regulatory scheme

19 "must be 'carefully limited in time, place, and scope.'" Id. (quoting United States v. Biswell,

20 406 U.S. 311, 315 (1972)).

21

It is on this last question concerning the breadth of discretion conferred by

22 California's barbershop regulatory scheme, and whether the conduct of the officers and

23 inspectors in carrying out the raid-style inspections exceeded that discretion, that the

24 parties diverge.

25

Plaintiffs do not seriously dispute that the California Barbering Act and the

26 regulations promulgated thereunder informs the operator of a barbershop "that inspections

27 will be made on a regular basis" so as to leave little doubt that, when such inspections

28 occur, they "do not constitute discretionary acts by a governmental official but are

26

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 27 of 32 Page ID #:501

1 conducted pursuant to statute." Id. at 711. Section 7313(a)(1) of the Barbering Act

2 authorizes inspectors and other authorized representatives to "have access to" and allows

3 them to "inspect any establishment . . . during business hours or at any time in which

4 barbering . . . [is] being performed." To that end, section 7313(a)(2) requires that the

5 Board "maintain a program of random and targeted inspections of establishments to

6 ensure compliance with applicable laws relating to the public health and safety and the

7 conduct and operation of establishments."

8

Nor can it seriously be questioned that the barbershop regulatory scheme places

9 appropriate restraints on the inspector's discretion, at least insofar as the time and place

10 for the inspections. Again, the statute allows inspections to be conducted only "during

11 business hours" or when "barbering . . . [is] being performed" on the premises. See

12 Burger, 482 U.S. at 711 (observing that statutory bar on inspection occurring outside "the

13 regular and usual business hours" was a sufficient limitation on the time in which an

14 inspector could conduct an inspection). Likewise, such inspections can be made only at

15 the barbershops themselves. Id. (holding that limitation of inspections to areas of "vehicle-

16 dismantling and related industries" pursuant to an administrative scheme regulating

17 automobile junkyards sufficiently circumscribed inspector's discretion on place to inspect).

18 This then leaves whether there are sufficient limitations on the scope of the inspections

19 conducted pursuant to the regulatory scheme, and if so, whether the raid-style searches

20 conducted by defendants are within that authorized scope.

21

Plaintiffs argue that California's Barbering Act "sets forth no limitations on the

22 scope" of the inspections it authorizes, including "the manner in which they are conducted

23 or how businesses may be chosen for 'targeted inspections.'" (Opp. at 13). The Court is

24 not entirely convinced. The statute provides that inspections are to be done "to ensure

25 compliance with applicable laws relating to the public health and safety and the conduct

26 and operation of establishments"; namely, the lengthy laundry list of statutory and

27 regulatory provisions covering everything from the licensing of barbers to the minutia of

28 day-to-day tasks at barbershops. The statute directs inspectors to "inspect establishments

27

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 28 of 32 Page ID #:502

1 to reasonably determine compliance levels." Such statutory provisions would appear to

2 limit the purpose of the inspection and the limit of that task. See Biswell, 406 U.S. at 312

3 n.1 (finding regulatory provisions of the Gun Control Act limiting inspection to records and

4 inventory sufficiently confined inspector's discretion as to scope of inspection); Burger, 482

5 U.S. at 711-12 (finding that limitation on the scope of the inspection to "the records, as well

6 as 'any vehicles or parts of vehicles which are subject to the record keeping requirements

7 of this section and which are on the premises'" adequately cabined inspector's discretion).

8 Admittedly, the regulatory scheme does not tie (as in the cases cited) the inspection to

9 particular items (however broadly classified) to be searched; instead, the scope of the

10 inspection that is permitted is made co-extensive with the purpose of the regulatory

11 scheme itself; that is, to ensure compliance with the myriad of statutory and regulatory

12 provisions that put in place to promote health and safety and the proper operation of the

13 establishments. The Court, however, need not resolve this issue, as there is a more

14 obvious constitutional problem with the inspections.

15

Even if a regulatory scheme provides a constitutionally adequate substitute for a

16 warrant, the inspections (like any search be it authorized by a warrant or otherwise) that

17 are actually conducted pursuant to that scheme must still meet "the Fourth Amendment's

18 standard of reasonableness." United States v. Bulacan, 156 F.3d 963, 967 (9th Cir. 1998);

19 see also Lewis v. McMasters, 663 F.2d 954, 955 (9th Cir. 1981) (observing "[a]

20 constrained interpretation of [the provisions of the statutory scheme] is mandated" on

21 account of the "limited exception to the Fourth Amendment warrant requirement for

22 inspections of 'pervasively regulated businesses' All of these cases have recognized the

23 importance of placing reasonable time, place and manner requirements on the inspections.

24 Indeed, in Colonnade, the Court, while it upheld the inspection statute involved, struck

25 down the particular search because it exceeded the bounds of the authorizing statute").

26

Thus, to pass constitutional muster, the manner and method in which the inspection

27 is carried out must be sufficiently tailored to the "administrative goals" and "purposes"

28 animating the regulatory scheme giving rise to the inspection itself. See Bulacan, 156 F.3d

28

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 29 of 32 Page ID #:503

1 at 967 ("To meet the test of reasonableness, an administrative screening search must be

2 as limited in its intrusiveness as is consistent with satisfaction of the administrative need

3 that justifies it"); cf. Burger, 482 U.S. at 715-16. Thus, in Lewis, the Ninth Circuit held that

4 the seizure, removal, and subsequent search of a steel drum filled with metal parts during

5 an administrative inspection of a automobile dismantling yard (authorized by a vehicle

6 registration statutory scheme) was constitutionally unreasonable as it "exceed[ed] the

7 permissible scope of the statute." 683 F.2d at 955. It is this principle that plaintiffs argue

8 was transgressed with the raid-style inspections as defendants "failed to tailor the scope of

9 the administrative inspections to the particular health and safety concerns" underlying the

10 barbering regulatory scheme. Donovan v. Dewey, 452 U.S. 594, 601 (1981). Notably, it is

11 asserted that the method of the inspections, places that were searched, the people that

12 were questioned, and the information sought during these raid-style inspections went well

13 beyond the basic health and sanitation concerns expressed in the Barbering Act and

14 regulations. (Opp. at 15).

15

Defendants' response is not convincing. Defendants are correct that there is

16 nothing unreasonable per se about the presence of police officers during the inspections

17 themselves; police departments are the only agencies that can cite individuals with a

18 misdemeanor for the unlicensed practice of barbering. See Cal. Bus. & Prof. Code

19 § 7317. But that fact does not address the particular point being raised by plaintiffs --- that

20 it was how the inspections were carried out that went beyond the scope of what was

21 permitted under the regulatory scheme. Defendants protest that "there are no facts to

22 support the implication that the search was an effort to uncover criminal activity other than

23 unlicensed practice." (Def's Reply at 9). That assertion, however, is simply not in keeping

24 with the allegations contained in the complaint. If this were little more than a sweep

25 directed to ferreting out individuals practicing barbering without a license (a minor

26 misdemeanor, at best), then why were "warrant checks" performed at some of the

27 establishments (First Am. Compl. ¶ 25); why did police enter the establishments wearing

28 bulletproof vests and carrying firearms (First Am. Compl. ¶¶ 3, 24); why did areas outside

29

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 30 of 32 Page ID #:504

1 those where barbering was performed inspected (First Am. Compl. ¶ 24); why were

2 customers questioned and their identification requested (First Am. Compl. ¶¶ 3, 24, 25);

3 and why was access to and from the barbershops themselves blocked?11 (First Am.

4 Compl. ¶¶ 24, 25). All of these allegations, taken together, bear the tell-tale signs of a

5 general criminal sweep for crimes much more serious than the unlicensed practice of

6 barbering, and certainly more than is needed to catch violations of such mundane matters

7 as the storage of towels, use of disinfectants, or the cleanliness of the barbers themselves.

8 None of these factual allegations are confronted by defendants. Instead, they are ignored

9 in favor of making broad-based conclusory statements that "plaintiffs have not alleged

10 facts to reflect that the Board's inspection went beyond that permitted by the Barbering

11 Act" and that "the facts" alleged "would not make the inspection constitutionally

12 unreasonable." (Def's Reply at 9-10).

13

Defense counsel for the Board's final argument is that none of these allegations

14 concerned (or was alleged to have concerned) conduct done by Board inspectors; rather,

15 those individuals it is argued were alleged to have done little more "than routine

16 inspections." (Def's Reply at 10). Far from it. As noted in the earlier section concerning

17 plaintiffs' equal protection claims, it is alleged in the complaint that, at the Hair Shack, "the

18 MVPD, Code Enforcement, and Board officers conducted an extensive search . . .,

19 including areas where no barbering was performed, and questioned employees and

20 customers." (First Am. Compl. ¶ 24 (emphasis added)). No parsing out between the

21 conduct of MVPD officers and inspectors from the Board (or Code Enforcement) is made.

22 Instead, the complaint lumps all three together as having conducted and participated in the

23 "extensive searches" in question, including the egregious aspects noted earlier by the

24

25

11 The complaint alleges that the other "inspections conducted at the other African-

26

American businesses on April 2, 2008, were conducted in a similarly invasive and intrusive manner." (First Am. Compl. ¶ 29). Defendants lone rebuttal to these allegations is that

27

they concerned what transpired during the late 2007 and early 2008 inspections of Fades Unlimited by MVPD officers. (Def's Reply at 10). That is simply wrong. The allegations

28

noted above all concern what took place during the inspections that were conducted on April 2, 2008, for which all class of defendants partook in carrying out.

30

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 31 of 32 Page ID #:505

1 Court (e.g., inspecting areas where no barbering was performed (a reference perhaps to

2 the backroom at the Hair Shack and questioning customers).

3

In light of these allegations, the inadequacy of the proffered rationale for how the

4 inspections were carried out (as alleged), and the disconnect between the same and the

5 administrative purpose for such inspections to begin with, the Court concludes that

6 plaintiffs have sufficiently pled a claim that the inspections were constitutionally

7 unreasonable. Accordingly, defendant's motion to dismiss the fourth claim in the complaint

8 is DENIED.12

9

III. CONCLUSION

10

To summarize, defendants' motion to dismiss the individual Code Enforcement and

11 Board inspectors with respect to the first claim in the complaint is hereby GRANTED but

12 with plaintiffs afforded leave to amend their complaint within the next thirty (30) days, and

13 in all other respects defendants' motions to dismiss the federal and state equal protection

14 claims in the complaint is DENIED; defendants' motion to dismiss the third, fourth, and fifth

15 claims as well as the prayer for injunctive relief is held in abeyance pending the completion

16 of jurisdictional discovery (which is to take place within the next ninety (90) days) and the

17 holding of a evidentiary hearing; and defendants' motion to dismiss the fourth claim in the

18 complaint is DENIED.

19

IT IS SO ORDERED.

20

21

12 Defendants further conted that, for purposes of plaintiffs' section 52.1 claim, the

22

complaint does not allege any facts that would show that the Board engaged in any conduct involving threats, intimidation, or coercion. (Mot. Dismiss at 17). Such an

23

assertion is mistaken. It is alleged that the Board "approved" ahead of time the manner in which these raid-style inspections would be carried out and to that end it is alleged that

24

MVPD, Code Enforcement, and Board inspectors worked together to prohibit access in and out of the establishments during the inspections; that when one barber voiced

25

objections to the intrusive nature of the inspections he was handcuffed and temporarily detained in a partrol car; and that the MVPD officers who accompanied board inspectors in

26

carrying out these inspections came dressed in their full regalia with bulletproof vests and displaying their firearms. Such acts, again allegedly approved by higher ups within the

27

Board, is sufficient to show that any violation of plaintiffs constitutional rights that occurred was accompanied by threats and intimidation. See Cuviello v. City of Stockton, 2009 U.S.

28

Dist. LEXIS 4896, at *56-57 (E.D. Cal. Jan. 23, 2009); Cole v. Doe, 387 F. Supp. 2d 1084, 1103 (N.D. Cal. 2005).

31

Case 5:09-cv-00688-JZ -SS Document 75 Filed 08/31/09 Page 32 of 32 Page ID #:506

1 Dated: August 31, 2009 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

STEPHEN G. LARSON UNITED STATES DISTRICT JUDGE 32

 
 Case 5:09-cv-00688-JZ -SS Document 106 Filed 06/15/10 Page 1 of 2 Page ID #:1010

1 TATACLU FOUNDATION OF SOUTHERN CALIFORNIA
2 Peter Bibring (SBN 223981) pbibring@aclu-sc.org
3 Mark Rosenbaum (SBN 59940) mrosenbaum@aclu-sc.org
4 Peter J. Eliasberg (SBN 189110) peliasberg@aclu-sc.org
5 1313 West Eighth Street Los Angeles, California 90017
6 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
7
SEYFARTH SHAW LLP 8 Stacy Shartin (SBN 58281)
sshartin@seyfarth.com 9 Rishi Puri (SBN 252718)
rpuri@seyfarth.com 10 2029 Century Park East, Suite 3500
Los Angeles, California 90067-3021 11 Telephone: (310) 277-7200
Facsimile: (310) 201-5219
12
Attorneys for Plaintiffs 13 KEVON GORDON, RONALD JONES
RAYMOND BARNES and QUINCY BROWN
14

15

UNITED STATES DISTRICT COURT

16

CENTRAL DISTRICT OF CALIFORNIA–EASTERN DIVISION

17

18 KEVON GORDON, RONALD JONES ) No. ED CV 09-00688 JZ (SSx)

RAYMOND BARNES and QUINCY )

19 BROWN,

) STIPULATION AND [PXXRXOXPXXOXSXEXXDX]

) ORDER RE SETTLEMENT

20

Plaintiffs,

) BETWEEN PLAINTIFFS AND

) STATE DEFENDANTS

21

v.

)

) Judge:

Hon. Jack Zouhary

22 CITY OF MORENO VALLEY. et al, ) Courtroom: 1

)

23

Defendants.

) Complaint Filed: April 9, 2009

)

24

)

25

26

27

28

STIPULATION RE SETTLEMENT AND DISMISSAL OF STATE DEFENDANTS Case No. ED CV 09-00688 JZ (SSx)

Case 5:09-cv-00688-JZ -SS Document 106 Filed 06/15/10 Page 2 of 2 Page ID #:1011

1

2

ORDER

3

This Court hereby approves the above Stipulation and Release;

4

The Court finds that the payment of $33,000 to Plaintiffs as stated in the

5 Release is a good-faith settlement of the State Defendants’ proportionate share of

6 Plaintiffs’ overall damages in this action. See McDermott, Inc. v. AmClyde, 511

7 U.S. 202, 204 (1994); Franklin v. Kaypro Corp., 884 F.2d 1222, 1229-32 (9th Cir.

8 1989); Restatement (Third) of Torts §16 [Apportionment of Liability] (2000);

9

Any future assessment of damages owed to Plaintiffs in this action will be

10 made as to the proportionate share(s) of the remaining, non-settling Defendants.

11 Following any such award of damages to Plaintiffs in this action, no other

12 Defendant in the action may seek contribution from any of the State Defendants,

13 nor may any other Defendant seek to offset the final damages awarded to Plaintiffs

14 by the amount paid pursuant to the attached Release.

15

The Court shall retain jurisdiction over this settlement for a period of one

16 year for the purpose of enforcing the terms of the Release. See Kokkonen v.

17 Guardians Life Insurance Co. of America, 511 U.S. 375 (1994).

18

IT IS SO ORDERED.

19

20 Dated: _J_u_n_e___1_5_,__2_0_1_0___

21

____s_/__J_a_c_k__Z_o_u_h_a_r_y____________________

Honorable Jack Zouhary

22

United States District Judge

23

24

25

26

27

28
2 STIPULATION RE SETTLEMENT AND DISMISSAL OF STATE DEFENDANTS
Case No. ED CV 09-00688 JZ (SSx)

 
 Case 5:09-cv-00688-JZ -SS Document 102 Filed 06/04/10 Page 1 of 2 Page ID #:998

1 TATACLU FOUNDATION OF SOUTHERN CALIFORNIA
2 Peter Bibring (SBN 223981) pbibring@aclu-sc.org
3 Mark Rosenbaum (SBN 59940) mrosenbaum@aclu-sc.org
4 Peter J. Eliasberg (SBN 189110) peliasberg@aclu-sc.org
5 1313 West Eighth Street Los Angeles, California 90017
6 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
7
SEYFARTH SHAW LLP 8 Stacy Shartin (SBN 58281)
sshartin@seyfarth.com 9 Rishi Puri (SBN 252718)
rpuri@seyfarth.com 10 2029 Century Park East, Suite 3500
Los Angeles, California 90067-3021 11 Telephone: (310) 277-7200
Facsimile: (310) 201-5219
12
Attorneys for Plaintiffs 13 KEVON GORDON, RONALD JONES
RAYMOND BARNES and QUINCY BROWN
14

15

UNITED STATES DISTRICT COURT

16

CENTRAL DISTRICT OF CALIFORNIA–EASTERN DIVISION

17

18 KEVON GORDON, RONALD JONES ) No. ED CV 09-00688 JZ (SSx)

RAYMOND BARNES and QUINCY )

19 BROWN,

) STIPULATION AND [PROPOSED]

) ORDER RE SETTLEMENT

20

Plaintiffs,

) BETWEEN PLAINTIFFS AND

) STATE DEFENDANTS

21

v.

)

) Judge:

Hon. Jack Zouhary

22 CITY OF MORENO VALLEY. et al, ) Courtroom: 1

)

23

Defendants.

) Complaint Filed: April 9, 2009

)

24

)

25

26

27

28

STIPULATION RE SETTLEMENT AND DISMISSAL OF STATE DEFENDANTS Case No. ED CV 09-00688 JZ (SSx)

Case 5:09-cv-00688-JZ -SS Document 102 Filed 06/04/10 Page 2 of 2 Page ID #:999

 
 Case 5:09-cv-00688-JZ -SS Document 112 Filed 11/05/10 Page 1 of 2 Page ID #:1025

1 ACLU FOUNDATION OF SOUTHERN CALIFORNIA
2 Peter Bibring (SBN 223981) pbibring@aclu-sc.org
3 Mark Rosenbaum (SBN 59940) mrosenbaum@aclu-sc.org
4 Peter J. Elias6erg (SBN 189110) peliasbergralaclu-sc.org
5 1313 WesfEighth Street Los Angeles, California 90017
6 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
7
SEYFARTH SHAW LLP 8 Stacy Shartin (SBN 58281)
sshartin@se),farth.com 9 Ris~i Pun (SBN 252718)
q:lUnralseyfarth.com 10 2029 'Century Park East, Suite 3500
Los Angeles, California 90067-3021 11 Telephone: (310) 277-7200
Facsimile: (310) 201-5219
12
Attorneys for Plaintiffs 13 KEVON GORDON, RONALD JONES
RAYMOND BARNES and QUINCY BROWN
14

15

UNITED STATES DISTRICT COURT

16

CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION

17

18 KEVON GORDON, RONALD JONES RAYMOND BARNES and QUINCY
19 BROWN,

20

Plaintiffs,

21

v.

22 CITY OF MORENO VALLEY. et ai,

No. ED CV 09-00688 JZ (SSx)

STIPULATION AND (PROPOSED] ORDER RE SETTLEMENT BETWEEN PLAINTIFFS AND COUNTY DEFENDANTS

Judge:

Hon. Jack Zouhary

Courtroom: 1

23

Defendants.

Complaint Filed: April 9, 2009

24 -------~

25

26

27

28

4813-8357-8375.1
STIPULATION RE SETTLEMENT AND DISMISSAL OF COUNTY DEFENDANTS

Case 5:09-cv-00688-JZ -SS Document 112 Filed 11/05/10 Page 2 of 2 Page ID #:1026

STIPULATION

2

WHEREAS Plaintiffs Kevon Gordon, Ronald Jones, Raymond Barnes, and

3 Quincy Brown (Plaintiffs), and Defendants County of Riverside, Stan Sniff, Rick

4 Hall, Eric Brewer, Anthony Johnson, Seth Hartnet, Robert Duckett, Mario Herrera,

5 Richard Hutson, and Christopher Gastinger (County Defendants) have entered into

6 a settlement and Plaintiffs have executed a Full Release of Claims, a copy ofwhic

7 is attached as Exhibit 1 (Release);

8

Plaintiffs and County Defendants stipulate and agree that the settlement

9 amount is intended to be in settlement of County Defendants' proportionate share

10 of Plaintiffs' overall damages in this action. See McDermott, Inc. v. AmClyde, 511

II U.S. 202, 204 (1994); Franklin v. Kaypro Corp., 884 F.2d 1222, 1229-32 (9th Cir.

12 1989); Restatement (Third) a/Torts §16 [Apportionment of Liability] (2000);

13

The settlement and Release are contingent on the Court approving this

14 Stipulation and ordering that following any future award of damages in this action,

IS no other Defendant may seek contribution from County Defendants, or any offset

16 from final damages awarded to Plaintiffs;

17

The Court shall retain jurisdiction for four years after the date of this

18 settlement to enforce the terms of the Release.

~ 19 IT IS SO STIPULATED.
20 Dated: !\-- 10i(')

<:- :::•• ~:':,:S=::~\c::-

21

Peter Bibring

. )

22

23
24

Dated:

II ~2 ~20t'\)

"1L ACLU Foundation of Southern Cailfornia
Counsel for Plaintiffs
J-~ !lYrf...,
John M. Porter

25

Lewis Brisbois Bisgaard & Smith LLP

26

Counsel for defendants County of Riverside, Stan Sniff,

Rick Hall, Eric Brewer, Anthony Johnson, Seth Hartnet,

27

Robert Duckett, Mario Herrera, Richard Hutson, and

28

Christopher Gastinger (Defendants).

C:\DOClJME~I\Portcr\LOCALS~I\Tcmp\XPGrpWjsc\Stip & Order rc County Dcfs,doc

1

STIPULATION RE SETTLEMENT AND DISMISSAL OF COUTY DEFENDANT

 
 Case 5:09-cv-00688-JZ -SS Document 112-1 Filed 11/05/10 Page 1 of 8 Page ID #:1027
EXHIBIT 1

Case 5:09-cv-00688-JZ -SS Document 112-1 Filed 11/05/10 Page 2 of 8 Page ID #:1028

RELEASE OF ALL CLAIMS

This Release is given by Kevan Gordon, Ronald Jones, Raymond Barnes, and QUincy Brown (Plaintiffs), in favor of County ojRiverside, Stan Sniff Rick Hall, Eric Brewer, Anthony Johnson, Seth Hartnet, Robert Duckett, Mario Herrera, Richard Hutson, and Christopher Gastinger (Defendants).
2. Claims
2.1 Plaintiffs filed an action in the United States District Court, Central District of California, Eastern Division, No. ED CV 09-00688 JZ (SS), titled Gordon, el al. v. City of Moreno Valley, ef al. (Action).
2.2 Plaintim and Defendants wish to resolve all disputes and claims between them, illcluding those arising [TOm andlor relating in any way to the Action.
3, Settlement Terms
3.1 The settlement underlying this Release is a compromise of disputed claims and is not an admission by any party of any liability. Defendants specifically deny violation of thc laws of equal protection) search and seizure, and/or any other law, statutory or othen.visc,
3.2 Defendants agree to pay Plaintiffs $32,500 in damages and $66,500 in costs and attorneys' fees, in. full satisfaction of aU claims, rights, damages, costs, expenses, attomeysY fees, and otlIer compensation of any kind which Plaintiffs have, or may have, against Dcfendants, including but not Iilllited to those arising from 01' relating in any way to the Action, A single settlement check in the amount $99,000 will be made payable to "ACLU Foundation of Southern California Trust Account."
3.3 Plaintiffs and Defendants agree that the payment of damages, costs, and fees is for Defendants' proportionate share of the damages Plaintiffs suffered. See McDermott, Inc. v. AmClyde, 511 U.S. 202,204 (1994); Fran/din v. Kaypro Corp., 884 F.2d 1222, 1229-
32 (9th Cir. 1989); Restatement (Third) 0/ Torts § 16 [Apportionment of Liability]
(2000). The underlying settlement and this Release are contingent on the Coun ordering that the settlement payment is for Defendants' proportionate share, and that nO othcr defendant in the Action may seek contribution from Defi:mdant, or an offset from final damages awarded Plaintiffs, as set forth in the Stipulation and Proposed Order re Settlement Approval to be submitted to the Court in the Action.
3.3.1 As all additional consideration of this settlement, the Riverside County Sheriffs Department will" continue its training of conunand stafIby having each cOlmnand staff member attend the Museum of Tolerance "Tools for Tolerance for Law Enforcement and Criminal Justicel1 program within 4 years of the date of this settlement. For purposes of this provision, "command staff"} means every swom officer of the Riverside Sheriff's Departlll_ent holding the rank captaln or above.

4351-6566-9127.l

Page 1 of 1

Case 5:09-cv-00688-JZ -SS Document 112-1 Filed 11/05/10 Page 3 of 8 Page ID #:1029

3.3.2

As additional consideration of this settlement, the Riverside County Sheriff's Department will arrange to send a delegation of personnel from its Professional Standards Bureau to the Los Angeles Police Department ("LAPD") Internal Affairs Group for an overview andlor discussion oflhe LAPD's recent changes to its handling of biased policing complaint investigations and adjudications. Subject to the availability the LAPD, such a delegation shall be sent within 90 days of the date of this settlement.

3.4 Plaintiffs and their attorneys represent that the settlement payment has or will be allocated between them by their mutual agreement. However, the inability of Plaintiffs and their attorneys to agree to an allocation shall not constitute grounds to rescind or otherwise withdraw from the underlying settlement andlor this Release.

3.5 Plaintiffs and their attomeys agree to execute such tax and related fOlms required by Defendants for this Release. Defendants' counsel shall forward such forms to Plaintiffs' counsel for completion. The settlement payment shall be made within 21 days after approval by the Board of Supervisors of the County of Riverside, or 21 days afler defense counsel receives all closing paperwork from plaintiffs, or 21 days after the Court enters an order approving the underlying settlement (see Paragraph 3.3), whichever occurs last.

3.6 Plaintiffs agree that neither Plaintiffs nor their attorneys have relied on any representations as to the tax consequences of the underlying settlement andlor this Release. Plaintiffs further agree that if any taxing authority detennines that any part of the settlement is taxable, Plaintiffs will be solely responsible for all such taxes. Plaintiffs further agrec to indemnify and hold harmless Defendants from liability to any taxing authority, and from any claims made in any administrative or judicial action to collect taxes from Defendants. If a proceeding is instituted against Defendants, Defendants will give Plaintiffs notice of the proceedings at their last known addresses and Plaintiffs will be obligated to' defend and indemnify Defendants.

3.7 PlaintitIs. for themselves, their re1atives, heirs, successors, assigns, attorneys, agents, and representatives, release and forever discharge Defendants, the County of Riverside, and all of their successors, assigns, employees, agents, officers, insurers, auxiliary organizations, and representatives, from all complaints, actions, causes of actions, in law or equity, suits, administrative claims, attomeysl fees, debts, liens, demands, damages, injunctive relief, costs, expenses, agreements, promises, obligations or liabilities of any kind whatsoever, whether known or unknown, which they have or may have, arising out of or peliaining to the incidents dcscribed in the factual allegations of the Action.

3.8 Plaintiffs agree to take all steps and execute all documents reasonably necessary to accomplish the dismissal with prejudice of the Action.
3.9 The parties acknowledge that there have been no other promises made between them about tbe settlement of the claims described above.
3.10 Plaintiffs acknowledge the provisions of California Civil Code section 1542, which they expressly waive. That statute states:

4851-6566--9127.1

Page 2 of2

Case 5:09-cv-00688-JZ -SS Document 112-1 Filed 11/05/10 Page 4 of 8 Page ID #:1030

A general reJease does not extend In cwims which tile creditor doe.. not know or suspect to exist in iii. or IIer favor at lite time ~f executing the release, wllich if Imown hy ',im or her must Itave
materially affected llis or her settlement with the debtor.

3.11 Plaintiffs acknowledge that they have been represented by counsel and that they have read and understand the content ofthis Release and have voluntarily ·entered into it.

3.12 This Release shan be interpreted under the laws oftl,e State ofCalif<:>rnia.

3.13 The parties shall bear their own costs, expenses, and attorneys' fees.

3.14 This Release constitutes the entire understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings.

3.15 Modifications andlor amendments to this Release must be in writing signed by Plaintiffs and Defendants.

3,16 Plaintiffs and Defendants agree that the Court in the Action shall retain jurisdiction oyer the underlying settlement and this Release for a period of four years from the date the Court
enters an order approving 1be underlying settlement for the purpose of entorcing same.

3.17 11lis Release may be signed in counterparts.

For Plaintills:
Dated: 1-dvO-iO

yvOnGOrdon

Dated:

Rona Id Jones

Dated:
Dated: _ _ _ _ _ _ _ _ _ __ For Defendants: Dated:

Raymond Barnes
Quincy Brown
Jeff Ashworth, Senor Liability Claims Adjuster County ofRiverside

485J-6$66~9J27.1

Page 3 of3

r'd

o

o

Case 5:09-cv-00688-JZ -SS Document 112-1 Filed 11/05/10 Page 5 of 8 Page ID

09/22/2010 09:12 FAX

#:1031

<!J 001

A general release does not extend to cltdms w/tich the ueditor does not kllow or suspect to exist tn his or IlerJaIlOr (It the time oJ
executing the release, which If kllown by him or her //lust have
mater/aUy aflected his or her aetliemellt with the debtor.

3.11 Plaintiffs acknowledge that they have been represented by coun$el and that they have read and understand the content ofthis Release and have voluntarily entered into it.

3.t 2 This Release shall be interpreted under the laws ofthe State of CalifornIa.

3.13 The parties shall bear their own cosm, expenses, and attorneys' fees.

3.14 This Release constitutes the entire understanding and agreement of the parties and

supersedes all prior or contemporaneous agreements or understandings.

_ . ... .... -.

3.15 Modifications and/or amendments to this Release must be in writing signed by Plaintiffs

alJd Defendanm.

3.16 Plaintiffs and Defendanw agree that the Court iit the Action shall ,..,tainjurisdictlon over the underlying settlement and this Release for a period of thur years from the date the Court enters an order approving the underlying settlement for the purpose of enforcing same.

3.17 This Release may be signed in counterparts.

For Plaintiffs:

Dated:

Kevon Gordon

Dated: 9-d..6-IO

Pated: Dated: For Defendants: Dated:
4!Sl-6506-9127J

Raymond Barnes
Quincy Brown
Jeff Ashworth. Senor Liability Claims Adjuster County ofRiverside
Page 30f3

Case 5:09-cv-00688-JZ -SS Document 112-1 Filed 11/05/10 Page 6 of 8 Page ID

Sop 22 10 05:39a Barnes

#:1032

9519245239

p.1

A general release does nol extend to claims which the creditor
does not know or suspect to exi.t ill his or herfavor at t/,e time of
executing the release, which if known by ilim or her must have
materially affected his or her sel//ellleni Wit/I tile debtor.

3.11 Plaintiff.. acknowledge that they have been represented by counsel and tbat they have read and understand the content ofthis Release and have voluntarily entered into it.

3.12 This Release shall be interpreted under the laws ofthe State of California. 3.13 The parties shall bear their own cosls, e~penses, and attorneys' fees.

3.14 This Release constitutes the entire understanding and agreement of rl,e parties and supersedes all prior or contemporaneous agreements or understandings.

3.15 Modifications andlor amendments to this Release must be in writing signed by Plaintiffs and Delendants.

3.16 Plaintiffs and Defendants agree that the Court in the Action shall retain jurisdiction over
the underlying settlement and this Release for a period of four years fTom the date the Court
enters an order approving the underlying settlement for the purpose of enforcing same.

3.17 This Release may be signed in counterparts.

For Plaintiffs:

Dated:

Kevon Gordon

Dated:

Ronald Jones

l ' Dated:

'7_._0_ _-,-1_0_ _

,eJiJ~ St--
Ray nd Barnes

Dated:
fQr..Qefendants: Dated:

Quincy Brown
Jeff Ashworth, Senor Liability Claims Adjuster County of Riverside

4851-65<i6-9127.1

Page 3 of3

Case 5:09-cv-00688-JZ -SS Document 112-1 Filed 11/05/10 Page 7 of 8 Page ID #:1033

A gelleral release does not extend to clailWi which the cre4itor
doe.> not know or suspect 10 exM in his or herfavor at the time of
executillg Ihe releas~ which if known by him or her mllst have
materially affected his or her st#tlement with the debtor.

3.11 Plaintiffs acknowledge that they have been represented by counsel and that they have read and understand the content ofthis Release and have volUntarily entered into it.

3.12 111is Release shall be interpreted under the laws of the State ofCalifornia..

3.13 The parties shall beat their OWl! costs, expenses, and attorneys' fees.

3.14 This Release constitutes the entite undewtandlng and agreement of the pmties and supersedes all prior or contemporaneous agreements or understandings.

3.15 Modifications andlor amendments to this Release must be in wtiting signed by Plaintiffs and Defendants.

3. t6 Plaintiffs and Defendants agree that the Court in the Mtion shall retain jurisdiction over
the underlying settlement and this Release for a period of four years Ii'om the date the Cowt enters an order approving the underlying settlement fOl the purpose ofenforcing sarne.

3.17 This Release may be signed in counterparts.

For Plaintift'S:

Dated:

Kevon Gordon

Dated:

Ronald Jones

Dated: Dated:
til Z(fD For Defendants:
Dated:

Raymond Barnes
QUinCY BroWl!
tJ.,~/ eff Ashworth, Senor Liability Claims Adjuster County ot'Rivel'side

4851·65<\6·9127.1 10 38~d

Page 3 00
30I~~O X303;l

S0EL-81>6--605

Case 5:09-cv-00688-JZ -SS Document 112-1 Filed 11/05/10 Page 8 of 8 Page ID #:1034

Approved as to [mm: Dated:
Dated: Se~.1S, 2010
Dated:

Attorney for Plaintiffs
John . POlter Attorney for County of Riverside

4851·6566·9127. !

Page 4 of4

 
 Case 5:09-cv-00688-JZ -SS Document 114 Filed 11/09/10 Page 1 of 11 Page ID #:1037

1 ACLU FOUNDATION OF SOUTHERN CALIFORNIA
2 Peter Bibring (SBN 223981) pbibring@aclu-sc.org
3 Mark Rosenbaum (SBN 59940) mrosenbaum@aclu-sc.org
4 Peter J. Elias6erg (SBN 189110) peliasbergralaclu-sc.org
5 1313 WesfEighth Street Los Angeles, California 90017
6 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
7
SEYFARTH SHAW LLP 8 Stacy Shartin (SBN 58281)
sshartin@se),farth.com 9 Ris~i Pun (SBN 252718)
q:lUnralseyfarth.com 10 2029 'Century Park East, Suite 3500
Los Angeles, California 90067-3021 11 Telephone: (310) 277-7200
Facsimile: (310) 201-5219
12
Attorneys for Plaintiffs 13 KEVON GORDON, RONALD JONES
RAYMOND BARNES and QUINCY BROWN
14

JS-6

15

UNITED STATES DISTRICT COURT

16

CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION

17

18 KEVON GORDON, RONALD JONES RAYMOND BARNES and QUINCY
19 BROWN,

20

Plaintiffs,

21

v.

22 CITY OF MORENO VALLEY. et ai,

No. ED CV 09-00688 JZ (SSx)

STIPULATION AND (PXRXXOXPXOXXSXEXDX] ORDER RE SETTLEMENT BETWEEN PLAINTIFFS AND COUNTY DEFENDANTS

Judge:

Hon. Jack Zouhary

Courtroom: 1

23

Defendants.

Complaint Filed: April 9, 2009

24 -------~

25

26

27

28

4813-8357-8375.1
STIPULATION RE SETTLEMENT AND DISMISSAL OF COUNTY DEFENDANTS

Case 5:09-cv-00688-JZ -SS Document 114 Filed 11/09/10 Page 2 of 11 Page ID #:1038

STIPULATION

2

WHEREAS Plaintiffs Kevon Gordon, Ronald Jones, Raymond Barnes, and

3 Quincy Brown (Plaintiffs), and Defendants County of Riverside, Stan Sniff, Rick

4 Hall, Eric Brewer, Anthony Johnson, Seth Hartnet, Robert Duckett, Mario Herrera,

5 Richard Hutson, and Christopher Gastinger (County Defendants) have entered into

6 a settlement and Plaintiffs have executed a Full Release of Claims, a copy ofwhic

7 is attached as Exhibit 1 (Release);

8

Plaintiffs and County Defendants stipulate and agree that the settlement

9 amount is intended to be in settlement of County Defendants' proportionate share

10 of Plaintiffs' overall damages in this action. See McDermott, Inc. v. AmClyde, 511

II U.S. 202, 204 (1994); Franklin v. Kaypro Corp., 884 F.2d 1222, 1229-32 (9th Cir.

12 1989); Restatement (Third) a/Torts §16 [Apportionment of Liability] (2000);

13

The settlement and Release are contingent on the Court approving this

14 Stipulation and ordering that following any future award of damages in this action,

IS no other Defendant may seek contribution from County Defendants, or any offset

16 from final damages awarded to Plaintiffs;

17

The Court shall retain jurisdiction for four years after the date of this

18 settlement to enforce the terms of the Release.

~ 19 IT IS SO STIPULATED.
20 Dated: !\-- 10i(')

<:- :::•• ~:':,:S=::~\c::-

21

Peter Bibring

. )

22

23
24

Dated:

II ~2 ~20t'\)

"1L ACLU Foundation of Southern Cailfornia
Counsel for Plaintiffs
J-~ !lYrf...,
John M. Porter

25

Lewis Brisbois Bisgaard & Smith LLP

26

Counsel for defendants County of Riverside, Stan Sniff,

Rick Hall, Eric Brewer, Anthony Johnson, Seth Hartnet,

27

Robert Duckett, Mario Herrera, Richard Hutson, and

28

Christopher Gastinger (Defendants).

C:\DOClJME~I\Portcr\LOCALS~I\Tcmp\XPGrpWjsc\Stip & Order rc County Dcfs,doc

1

STIPULATION RE SETTLEMENT AND DISMISSAL OF COUTY DEFENDANT

Case 5:09-cv-00688-JZ -SS Document 114 Filed 11/09/10 Page 3 of 11 Page ID #:1039
EXHIBIT 1

Case 5:09-cv-00688-JZ -SS Document 114 Filed 11/09/10 Page 4 of 11 Page ID #:1040

RELEASE OF ALL CLAIMS

This Release is given by Kevan Gordon, Ronald Jones, Raymond Barnes, and QUincy Brown (Plaintiffs), in favor of County ojRiverside, Stan Sniff Rick Hall, Eric Brewer, Anthony Johnson, Seth Hartnet, Robert Duckett, Mario Herrera, Richard Hutson, and Christopher Gastinger (Defendants).
2. Claims
2.1 Plaintiffs filed an action in the United States District Court, Central District of California, Eastern Division, No. ED CV 09-00688 JZ (SS), titled Gordon, el al. v. City of Moreno Valley, ef al. (Action).
2.2 Plaintim and Defendants wish to resolve all disputes and claims between them, illcluding those arising [TOm andlor relating in any way to the Action.
3, Settlement Terms
3.1 The settlement underlying this Release is a compromise of disputed claims and is not an admission by any party of any liability. Defendants specifically deny violation of thc laws of equal protection) search and seizure, and/or any other law, statutory or othen.visc,
3.2 Defendants agree to pay Plaintiffs $32,500 in damages and $66,500 in costs and attorneys' fees, in. full satisfaction of aU claims, rights, damages, costs, expenses, attomeysY fees, and otlIer compensation of any kind which Plaintiffs have, or may have, against Dcfendants, including but not Iilllited to those arising from 01' relating in any way to the Action, A single settlement check in the amount $99,000 will be made payable to "ACLU Foundation of Southern California Trust Account."
3.3 Plaintiffs and Defendants agree that the payment of damages, costs, and fees is for Defendants' proportionate share of the damages Plaintiffs suffered. See McDermott, Inc. v. AmClyde, 511 U.S. 202,204 (1994); Fran/din v. Kaypro Corp., 884 F.2d 1222, 1229-
32 (9th Cir. 1989); Restatement (Third) 0/ Torts § 16 [Apportionment of Liability]
(2000). The underlying settlement and this Release are contingent on the Coun ordering that the settlement payment is for Defendants' proportionate share, and that nO othcr defendant in the Action may seek contribution from Defi:mdant, or an offset from final damages awarded Plaintiffs, as set forth in the Stipulation and Proposed Order re Settlement Approval to be submitted to the Court in the Action.
3.3.1 As all additional consideration of this settlement, the Riverside County Sheriffs Department will" continue its training of conunand stafIby having each cOlmnand staff member attend the Museum of Tolerance "Tools for Tolerance for Law Enforcement and Criminal Justicel1 program within 4 years of the date of this settlement. For purposes of this provision, "command staff"} means every swom officer of the Riverside Sheriff's Departlll_ent holding the rank captaln or above.

4351-6566-9127.l

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Case 5:09-cv-00688-JZ -SS Document 114 Filed 11/09/10 Page 5 of 11 Page ID #:1041

3.3.2

As additional consideration of this settlement, the Riverside County Sheriff's Department will arrange to send a delegation of personnel from its Professional Standards Bureau to the Los Angeles Police Department ("LAPD") Internal Affairs Group for an overview andlor discussion oflhe LAPD's recent changes to its handling of biased policing complaint investigations and adjudications. Subject to the availability the LAPD, such a delegation shall be sent within 90 days of the date of this settlement.

3.4 Plaintiffs and their attorneys represent that the settlement payment has or will be allocated between them by their mutual agreement. However, the inability of Plaintiffs and their attorneys to agree to an allocation shall not constitute grounds to rescind or otherwise withdraw from the underlying settlement andlor this Release.

3.5 Plaintiffs and their attomeys agree to execute such tax and related fOlms required by Defendants for this Release. Defendants' counsel shall forward such forms to Plaintiffs' counsel for completion. The settlement payment shall be made within 21 days after approval by the Board of Supervisors of the County of Riverside, or 21 days afler defense counsel receives all closing paperwork from plaintiffs, or 21 days after the Court enters an order approving the underlying settlement (see Paragraph 3.3), whichever occurs last.

3.6 Plaintiffs agree that neither Plaintiffs nor their attorneys have relied on any representations as to the tax consequences of the underlying settlement andlor this Release. Plaintiffs further agree that if any taxing authority detennines that any part of the settlement is taxable, Plaintiffs will be solely responsible for all such taxes. Plaintiffs further agrec to indemnify and hold harmless Defendants from liability to any taxing authority, and from any claims made in any administrative or judicial action to collect taxes from Defendants. If a proceeding is instituted against Defendants, Defendants will give Plaintiffs notice of the proceedings at their last known addresses and Plaintiffs will be obligated to' defend and indemnify Defendants.

3.7 PlaintitIs. for themselves, their re1atives, heirs, successors, assigns, attorneys, agents, and representatives, release and forever discharge Defendants, the County of Riverside, and all of their successors, assigns, employees, agents, officers, insurers, auxiliary organizations, and representatives, from all complaints, actions, causes of actions, in law or equity, suits, administrative claims, attomeysl fees, debts, liens, demands, damages, injunctive relief, costs, expenses, agreements, promises, obligations or liabilities of any kind whatsoever, whether known or unknown, which they have or may have, arising out of or peliaining to the incidents dcscribed in the factual allegations of the Action.

3.8 Plaintiffs agree to take all steps and execute all documents reasonably necessary to accomplish the dismissal with prejudice of the Action.
3.9 The parties acknowledge that there have been no other promises made between them about tbe settlement of the claims described above.
3.10 Plaintiffs acknowledge the provisions of California Civil Code section 1542, which they expressly waive. That statute states:

4851-6566--9127.1

Page 2 of2

Case 5:09-cv-00688-JZ -SS Document 114 Filed 11/09/10 Page 6 of 11 Page ID #:1042

A general reJease does not extend In cwims which tile creditor doe.. not know or suspect to exist in iii. or IIer favor at lite time ~f executing the release, wllich if Imown hy ',im or her must Itave materially affected llis or her settlement with the debtor.

3.11 Plaintiffs acknowledge that they have been represented by counsel and that they have read and understand the content ofthis Release and have voluntarily ·entered into it.

3.12 This Release shan be interpreted under the laws oftl,e State ofCalif<:>rnia.

3.13 The parties shall bear their own costs, expenses, and attorneys' fees.

3.14 This Release constitutes the entire understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings.

3.15 Modifications andlor amendments to this Release must be in writing signed by Plaintiffs and Defendants.

3,16 Plaintiffs and Defendants agree that the Court in the Action shall retain jurisdiction oyer the underlying settlement and this Release for a period of four years from the date the Court enters an order approving 1be underlying settlement for the purpose of entorcing same.

3.17 11lis Release may be signed in counterparts.

For Plaintills:
Dated: 1-dvO-iO

yvOnGOrdon

Dated:

Rona Id Jones

Dated:
Dated: _ _ _ _ _ _ _ _ _ __ For Defendants: Dated:

Raymond Barnes
Quincy Brown
Jeff Ashworth, Senor Liability Claims Adjuster County ofRiverside

485J-6$66~9J27.1

Page 3 of3

r'd

o

o

Case 5:09-cv-00688-JZ -SS Document 114 Filed 11/09/10 Page 7 of 11 Page ID #:1043
09/22/2010 09:12 FAX <!J 001

A general release does not extend to cltdms w/tich the ueditor does not kllow or suspect to exist tn his or IlerJaIlOr (It the time oJ
executing the release, which If kllown by him or her //lust have
mater/aUy aflected his or her aetliemellt with the debtor.

3.11 Plaintiffs acknowledge that they have been represented by coun$el and that they have read and understand the content ofthis Release and have voluntarily entered into it.

3.t 2 This Release shall be interpreted under the laws ofthe State of CalifornIa.

3.13 The parties shall bear their own cosm, expenses, and attorneys' fees.

3.14 This Release constitutes the entire understanding and agreement of the parties and

supersedes all prior or contemporaneous agreements or understandings.

_ . ... .... -.

3.15 Modifications and/or amendments to this Release must be in writing signed by Plaintiffs

aud Defendanm.

3.16 Plaintiffs and Defendanw agree that the Court iit the Action shall ,..,tainjurisdictlon over the underlying settlement and this Release for a period of thur years from the date the Court enters an order approving the underlying settlement for the purpose of enforcing same.

3.17 This Release may be signed in counterparts.

For Plaintiffs:

Dated:

Kevon Gordon

Dated: 9-d..6-IO

Pated: Dated: For Defendants: Dated:
4!Sl-6506-9127J

Raymond Barnes
Quincy Brown
Jeff Ashworth. Senor Liability Claims Adjuster County ofRiverside
Page 30f3

Case 5:09-cv-00688-JZ -SS Document 114 Filed 11/09/10 Page 8 of 11 Page ID #:1044

Sop 22 10 05:39a Barnes

9519245239

p.1

A general release does nol extend to claims which the creditor
does not know or suspect to exi.t ill his or herfavor at t/,e time of
executing the release, which if known by ilim or her must have
materially affected his or her sel//ellleni Wit/I tile debtor.

3.11 Plaintiff.. acknowledge that they have been represented by counsel and tbat they have read and understand the content ofthis Release and have voluntarily entered into it.

3.12 This Release shall be interpreted under the laws ofthe State of California. 3.13 The parties shall bear their own cosls, e~penses, and attorneys' fees.

3.14 This Release constitutes the entire understanding and agreement of rl,e parties and supersedes all prior or contemporaneous agreements or understandings.

3.15 Modifications andlor amendments to this Release must be in writing signed by Plaintiffs and Delendants.

3.16 Plaintiffs and Defendants agree that the Court in the Action shall retain jurisdiction over
the underlying settlement and this Release for a period of four years fTom the date the Court
enters an order approving the underlying settlement for the purpose of enforcing same.

3.17 This Release may be signed in counterparts.

For Plaintiffs:

Dated:

Kevon Gordon

Dated:

Ronald Jones

l ' Dated:

'7_._0_ _-,-1_0_ _

,eJiJ~ St--
Ray nd Barnes

Dated:
fQr..Qefendants: Dated:

Quincy Brown
Jeff Ashworth, Senor Liability Claims Adjuster County of Riverside

4851-65<i6-9127.1

Page 3 of3

Case 5:09-cv-00688-JZ -SS Document 114 Filed 11/09/10 Page 9 of 11 Page ID #:1045

A gelleral release does not extend to clailWi which the cre4itor
doe.> not know or suspect 10 exM in his or herfavor at the time of
executillg Ihe releas~ which if known by him or her mllst have
materially affected his or her st#tlement with the debtor.

3.11 Plaintiffs acknowledge that they have been represented by counsel and that they have read and understand the content ofthis Release and have volUntarily entered into it.

3.12 111is Release shall be interpreted under the laws of the State ofCalifornia..

3.13 The parties shall beat their OWl! costs, expenses, and attorneys' fees.

3.14 This Release constitutes the entite undewtandlng and agreement of the pmties and supersedes all prior or contemporaneous agreements or understandings.

3.15 Modifications andlor amendments to this Release must be in wtiting signed by Plaintiffs and Defendants.

3. t6 Plaintiffs and Defendants agree that the Court in the Mtion shall retain jurisdiction over
the underlying settlement and this Release for a period of four years Ii'om the date the Cowt enters an order approving the underlying settlement fOl the purpose ofenforcing sarne.

3.17 This Release may be signed in counterparts.

For Plaintift'S:

Dated:

Kevon Gordon

Dated:

Ronald Jones

Dated: Dated:
til Z(fD For Defendants:
Dated:

Raymond Barnes
QUinCY BroWl!
tJ.,~/ eff Ashworth, Senor Liability Claims Adjuster County ot'Rivel'side

4851·65<\6·9127.1 10 38~d

Page 3 00
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Case 5:09-cv-00688-JZ -SS Document 114 Filed 11/09/10 Page 10 of 11 Page ID #:1046

Approved as to [mm: Dated:
Dated: Se~.1S, 2010
Dated:

Attorney for Plaintiffs
John . POlter Attorney for County of Riverside

4851·6566·9127. !

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Case 5:09-cv-00688-JZ -SS Document 114 Filed 11/09/10 Page 11 of 11 Page ID #:1047

ORDER

2

This Court hereby approves the above Stipulation and Release;

3

The Court finds that the payment of $99,000 to Plaintiffs as stated in the

4 Release is a good-faith settlement of the County Defendants' proportionate share

5 of Plaintiffs' overall damages in this action. See McDermott, Inc. v. AmClyde, 5]1

6 U.S. 202, 204 (1994); Franklin v. Kaypro Corp., 884 F.2d 1222,1229-32 (9th Cir.
7 1989); Restatement (Third) a/Torts §16 [Apportionment of Liability1(2000);

8

Any future assessment of damages owed to Plaintiffs in this action will be

9 made as to the proportionate share(s) of the remaining, non-settling Defendants.

10 Following any such award of damages to Plaintiffs in this action, no other

11 Defendant in the action may seek contribution from any of the State Defendants,

12 nor may any other Defendant seek to offset the final damages awarded to Plaintiffs

13 by the amount paid pursuant to the attached Release.

14

The Court shall retain jurisdiction over this settlement for a period of four

15 years solely for the purpose of enforcing the terms of the Release. See Kokkonen v.
16 Guardians Life Insurance Co. 0/America, 511 U. S. 375 (1994).

17

IT IS SO ORDERED.

18 19 Dated: November 9, 2010 20 21

s/ Jack Zouhary
Honorable Jack Zouhary United States District Judge

22

23

24

25

26

27

28

C:\DOCUME-l \Portcr\LOCALS-l\Tcmp\XPGrpWisc\Stip & Order rc County Dcfs.doc

 
 Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 1 of 23 Page ID #:534
EXHIBIT 1

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 2 of 23 Page ID #:535

1 EDMUND G. BROWN JR. Attorney General of California
2 LINDA K. SCHNEIDER Supervising Deputy Attorney General
3 WILLIAM A. BUESS Deputy Attorney General
4 State Bar No. 134958 110 West A Street, Suite 1100
5 San Diego, CA 92101 P.O. Box 85266
6 San Diego, CA 92186-5266 Telephone: (619) 645-2039
7 Fax: (619) 645-2012 E-mail: William.Buess@doj.ca.gov
8 Attorneys for Defendant Kristy Underwood, Executive Officer of the Board of Barbering &
9 Cosmetology

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE CENTRAL DISTRICT OF CALIFORNIA

12

EASTERN DIVISION

13

14

KEVON GORDON, RONALD

ED CV 09-00688 SGL SSx

15 JONES, RAYMOND BARNES,

QUINCY BROWN,

SETTLEMENT AND GENERAL

16

RELEASE AGREEMENT

Plaintiffs,

17

v.

Judge: The Honorable Stephen G.

18

Larson

Action Filed: 4/8/2009

19 CITY OF MORENO VALLEY, A

MUNICIPAL CORPORATION; ET AL.,

20

Defendants.

21

22

PARTIES

23 This Settlement and General Release Agreement (hereinafter “Agreement”) is
24

25 made and entered into by plaintiffs Kevon Gordon, Ronald Jones, Raymond

26 Barnes, Quincy Brown (hereinafter “Plaintiffs”) and defendant Kristy Underwood, 27

28

1

Exhibit 1 - Page 2

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 3 of 23 Page ID #:536

1 Executive Officer of the California Board of Barbering and Cosmetology

2 (hereinafter “Defendant Underwood”).
3

4

RECITALS

5

On April 8, 2009, plaintiffs Kevon Gordon, Ronald Jones and Raymond

6 Barnes filed a civil Complaint in the United States District Court for the Central
7

8 District of California Eastern Division, case number EDCV 09-00688SGL(SSx).

9 (hereinafter “Action”) captioned, “Kevon Gordon, Ronald Jones, Raymond Barnes, 10
Plaintiffs vs. City of Moreno Valley; City of Moreno Valley Police Department; 11 12 Rick Hall, Chief of The Moreno Valley Police Department, in his official capacity;

13 Kristy Underwood, Executive Officer of the California Board of Barbering And 14
Cosmetology, in her official capacity; Stan Sniff, Riverside County Sheriff, in his 15 16 official capacity; and Does 1-10, Defendants”.

17

On May 22, 2009, in the same Action, plaintiffs Kevon Gordon, Ronald

18 Jones, Raymond Barnes, and new plaintiff Quincy Brown filed a First Amended
19

20 Complaint captioned, “Kevon Gordon, Ronald Jones, Raymond Barnes, Quincy

21 Brown Plaintiffs, vs. City of Moreno Valley, a Municipal Corporation; County of
22 23 Riverside; Rick Hall, Chief of The Moreno Valley Police Department, in his

24 official capacity; Kristy Underwood, Executive Officer of the California Board of

25 Barbering And Cosmetology, in her official capacity; Stan Sniff, Riverside County
26 27 Sheriff, in his official capacity; Tony Heisterberg, Dennis Longdyke, Lori Miller,

28 Seth Hartnett, Robert Duckett, Mario Harrera, Eric Brewer, Anthony Johnson,

2 Exhibit 1 - Page 3

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 4 of 23 Page ID #:537

1 Christopher Gastinger, Richard Hutson, Joe Brown, Xochi Carmargo, Arlene

2 Bauby, and Does 1-20, in their individual capacities, Defendants.”
3

4

In the Action, Plaintiffs allege that Defendant Underwood violated certain

5 federal and California state laws, and seek injunctive and declaratory relief. 6
Defendant Underwood denies all liability. Plaintiffs and Defendant Underwood 7 8 have reached an agreement for the resolution of the Action against Defendant

9 Underwood only.

10 AGREEMENT
11

12

Plaintiffs, and each of them, and Defendant Underwood agree, represent and

13 authorize as follows: 14
1. This Settlement is a compromise of disputed claims, and the obligations 15 16 under this Agreement are not to be construed as an admission of liability on the part

17 of Defendant Underwood, by whom liability is expressly denied. Further, this
18 Agreement is not to be construed as an admission on the part of Plaintiffs that their
19

20 claims against Defendant Underwood lack merit. However, in the interest of

21 avoiding additional financial obligations, costs and fees, and the difficulty and
22 23 uncertainty associated with this litigation, the Plaintiffs and Defendant Underwood

24 enter into this Agreement.

25

2. This Agreement is to be a complete and final resolution of all claims,

26

27 differences, disputes and causes of action between Plaintiffs and Defendant

28 Underwood pertaining to the circumstances or events which are alleged in the

3

Exhibit 1 - Page 4

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 5 of 23 Page ID #:538

1 Action. This Agreement contains the entire and final agreement between the 2
Plaintiffs and Defendant Underwood. This Agreement is intended by the parties to 3 4 be an integrated writing representing the complete, final, and exclusive embodiment

5 of their agreement. It supersedes any and all prior or contemporaneous agreements, 6
understandings, discussions, negotiations, representations, and commitments 7 8 whether written or oral. Any other representations, agreements, discussions,

9 negotiations, commitments or understandings between the Plaintiffs, Defendant 10
Underwood and their agents, representatives, or attorneys not embodied within this 11 12 Agreement shall be of no force and effect. This Agreement may not be altered,

13 amended, modified, supplemented, or otherwise changed except by a writing

14 executed by an authorized representative of each of the undersigned.
15

16

3. This Agreement extends to all claims, differences, disputes and causes of

17 action of every nature and kind whatsoever, now known or unknown, suspected or
18 unsuspected, relating to the incident and matters alleged by Plaintiffs in the Action,
19

20 including any and all claims for costs, attorney fees, expenses, liens, other fees, or

21 interest incurred by or in this Action. It is understood and agreed that this
22 23 Agreement is intended to be a full and final compromise, release and settlement of

24 all claims, demands, actions, causes of action, known or unknown, suspected or

25 unsuspected, relating to the incident and matters alleged by Plaintiffs in the Action,
26 27 and, as a further consideration and inducement for this Agreement, the undersigned

28 Plaintiffs and Defendant Underwood expressly waive the provisions of Section

4

Exhibit 1 - Page 5

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 6 of 23 Page ID #:539

1 1542 of the California Civil Code, which reads as follows: “A general release does 2
not extend to claims which the creditor does not know or suspect to exist in his 3 4 favor at the time of executing the release, which if known by him must have
5 materially affected his settlement with the debtor.” 6
4. In consideration of Defendant Underwood directing the inclusion, by the 7 8 end of calendar year 2009, of policy clarifications in the Inspector Manual for the
9 Board of Barbering and Cosmetology, specifically, Anti-Discrimination Policy in 10
Enforcement Actions, Joint Inspections with Outside Agencies, and Special 11 12 Inspection Procedures (attached hereto collectively as Exhibit A), and training
13 thereon commencing by the end of calendar year 2009 and continuing in the regular 14
training cycle; together with the payment made by the end of calendar year 2009 to 15 16 the “ACLU Foundation of Southern California” in the amount of $62,910.30 in
17 total, constituting attorney fees and costs, Plaintiffs hereby completely release, 18
waive, and forever discharge Defendant Underwood from any and all past, present 19 20 or future claims, differences, disputes and causes of action of every nature and kind
21 whatsoever whether based in federal or California state tort law, contract law or any 22 23 other theory of recovery, which Plaintiffs now have, or which may hereafter accrue
24 or otherwise be acquired, on account of, or may in any way arise out of, or which
25 are the subject of this Action, including without limitation any and all known or 26 27 unknown claims for compensatory losses of any nature, punitive damages, attorney
28 fees and costs of litigation, liens of any nature of Plaintiffs individually or

5

Exhibit 1 - Page 6

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 7 of 23 Page ID #:540

1 collectively, or their representatives, heirs, assigns, successors in interest, agents, 2
employees, partners, or any other natural person or entity, which have resulted or 3 4 may result from the alleged acts or omissions of Defendant Underwood in that

5 certain incident and matters alleged by Plaintiffs in the Action including without 6
limitation, all of those matters which were raised or could have been raised in this 7 8 Action.

9

Defendant Underwood also hereby releases, waives, and forever discharges

10 Plaintiffs Kevon Gordon, Ronald Jones, Raymond Barnes, Quincy Brown from
11

12 claims, differences, disputes and causes of action of every nature and kind whether

13 based in federal or California tort or contract law or any other theory of recovery, 14
brought by Defendant Underwood, which she now has, or which may hereafter 15 16 accrue or otherwise be acquired, on account of, or may in any way arise out of this

17 Action, including without limitation any and all known or unknown claims for
18 compensatory losses of any nature, punitive damages, attorney fees and costs of
19

20 litigation, liens of any nature against Defendant Underwood individually or

21 collectively with other defendants in this Action, or her representatives, heirs,
22 23 assigns, successors in interest, agents, partners, or any other natural person or

24 entity, which have resulted or may result from the alleged acts or omissions in the

25 matters alleged by Plaintiffs in the Action including, without limitation, all of those
26 27 matters which were raised or could have been raised in this Action.

28

This Agreement shall apply to Defendant Underwood and her respective

6

Exhibit 1 - Page 7

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 8 of 23 Page ID #:541

1 agents, associates, representatives, affiliates, predecessors, successors and assigns,

2 and all other persons and entities.
3

4

Plaintiffs and Defendant Underwood agree that this Settlement and General

5 Release Agreement does not apply to any administrative action, including citations 6
or other enforcement methods, taken against Plaintiffs individually or collectively 7 8 or to Plaintiffs’ business entities, whether the adjudication of such is completed or

9 remains pending, arising out of the factual circumstances of this Action. 10
Further, Plaintiffs and Defendant Underwood agree that this Settlement and 11 12 General Release Agreement does not apply to necessary actions undertaken by

13 Plaintiffs or Defendant Underwood to enforce this Settlement and General Release

14 Agreement.
15

16

Plaintiffs, individually and collectively, hereby acknowledge and agree that

17 the payment of the above-mentioned total amount of $62,910.30 constituting
18 attorney fees and costs, is to be made payable to their attorney of record, the
19

20 “ACLU Foundation of Southern California.” Plaintiffs, individually and

21 collectively, also agree to hold Defendant Underwood harmless in any action, claim
22 23 or dispute arising out of the circumstances of payment of these funds to their

24 attorney of record or the distribution of paid funds under this Agreement.

25

5. The Plaintiffs represent that they individually and collectively are the sole

26

27 possessors of the claims or causes of action being settled and released, and that they

28 have not otherwise individually or collectively transferred said claims or causes of

7

Exhibit 1 - Page 8

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 9 of 23 Page ID #:542

1 action. 2
6. The Plaintiffs agree that they will not, individually or collectively, at any 3 4 time hereafter, commence, maintain or prosecute any action at law or otherwise, or

5 assert any claim against Defendant Underwood and/or execute or enforce any 6
judgment against Defendant Underwood herein released, for damages, losses or for 7 8 equitable relief relating to the matters herein released.

9

7. Upon receipt of the payment of $62,910.30, Plaintiffs hereby authorize

10 and direct their respective attorneys of record to immediately dismiss with prejudice
11

12 the above described action, case number EDCV 09-00688 SGL(SSx) pending in the

13 United States District Court for the Central District of California, as to Defendant

14 Underwood.
15

16

8. If Plaintiffs or Defendant Underwood fail to comply with the obligations

17 contained in this Agreement, the Plaintiffs and Defendant Underwood shall meet
18 and confer within ten (10) court days of discovering the alleged noncompliance to
19

20 allow an opportunity to explain the noncompliance and take reasonable corrective

21 measures to come into compliance.

22

23

Failing a resolution to alleged noncompliance through the opportunity to

24 meet and confer, Plaintiffs and Defendant Underwood may properly notice and file

25 all appropriate motions for relief in accordance with the Federal Rules of Civil
26 27 Procedure. Plaintiffs and Defendant Underwood agree that each party shall be

28 solely responsible for their own attorney fees and costs incurred in any action to

8

Exhibit 1 - Page 9

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 10 of 23 Page ID #:543

1 enforce this Agreement. 2
The Court will retain jurisdiction for a period of three (3) years for the sole 3 4 purpose of enforcing this Agreement.

5

9. Plaintiffs, individually and collectively, shall indemnify, defend and

6 forever hold harmless Defendant Underwood, her agents, representatives,
7

8 employees, agencies, heirs and assigns, attorneys, representatives, and successors

9 from all claims, damages or liabilities, fees, attorney fees and costs, actions and 10
litigation, administrative proceedings and decisions, judgments, penalties and taxes, 11 12 that may arise or result from any and all liens of any nature whatsoever related to

13 the circumstances attributed to the allegations, claims, causes of action, now known 14
or unknown in this Action, and with respect to such liens, and the lien-holder(s), its 15 16 agents, representatives, employees, attorneys, officers, heirs and assigns, affiliates,

17 predecessors or successors in interest.
18 10. Plaintiffs, individually and/or collectively, shall be solely responsible for
19

20 any and all liens assigned to Plaintiffs of any nature that may have arisen out of the

21 circumstances attributed to the allegations, claims, causes of action, now known or
22 23 unknown, in this action.

24

11. This Agreement may be executed in counterpart form and a signed

25 counterpart transmitted by facsimile shall be effective, valid, and enforceable as if it
26 27 were the original.

28

12. The undersigned hereby acknowledge that they individually have

9

Exhibit 1 - Page 10

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 11 of 23 Page ID #:544

1 discussed this Settlement and General Release Agreement with counsel, who has 2
explained this document, and acknowledge that they understand all of the terms and 3 4 conditions of this Agreement and that this is a total and final settlement and

5 compromise of all claims against Defendant Underwood. Plaintiffs individually 6
and Defendant Underwood consent to and authorize this Agreement. 7

8 Date:
9 10

______________________________ Kevon Gordon, Plaintiff

11 Date: 12

______________________________ Ronald Jones, Plaintiff

13 14 Date: 15

______________________________ Raymond Barnes, Plaintiff

16 Date:
17
18

______________________________ Quincy Brown, Plaintiff

19 Date: 20

______________________________ Peter Bibring, Attorney for Plaintiffs

21

22 Date: 23

______________________________ Rishi Puri, Attorney for Plaintiffs

24 Date:
25
26

______________________________ Kristy Underwood, Defendant

27

28

10

Exhibit 1 - Page 11

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 12 of 23 Page ID #:545
Exhibit 1 - Page 12

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 13 of 23 Page ID #:546
Exhibit 1 - Page 13

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 14 of 23 Page ID #:547
Exhibit 1 - Page 14

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 15 of 23 Page ID #:548

discussed this Settlement and General Release Agreement with counsel, who has 2
explained this document, and acknowledge that they understand all of the terms and 3 4 conditions of this Agreement and that this is a total and final settlement and
compromise of all claims against Defendant Underwood. Plaintiffs individually 6
and Defendant Underwood consent to and authorize this Agreement.

8 Date:
10 11 Date: \2 13 14 Date:
16 . Date:
17
18 ' 19 Date: 20 21 22 Date:
— J
24 25 26 ' 27 28

Kevon Gordon, Plaintiff Ronald Jones, Plaintiff Raymond Barnes, Plaintiff Quincy Brown, Plaintiff Peter Bibring, Attorney for PlainrH Rishi Puri, Attorney for Plaintiffs Kristy Underwood, Defendant

10

Exhibit 1 - Page 15

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 16 of 23 Page ID #:549
Exhibit 1 - Page 16

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 17 of 23 Page ID #:550
Exhibit 1 - Page 17

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 18 of 23 Page ID #:551
Exhibit 1 - Page 18

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 19 of 23 Page ID #:552
Exhibit 1 - Page 19

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 20 of 23 Page ID #:553

1

EXHIBIT A

2 Anti-Discrimination Policy in Enforcement Actions
3

4

Joint Inspections with Outside Agencies

5

Special Inspection Procedures

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27 SD2009804016 28 80399932.doc

12

Exhibit 1 - Page 20

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 21 of 23 Page ID #:554
ANTI-DISCRIMINATION POLICY IN ENFORCEMENT ACTIONS The Board of Barbering and Cosmetology (“BBC”), and its employees, agents and representatives, are expected to adhere to the anti-discrimination policies embodied in the various laws of the United States of America and the State of California such as California Constitution Article I, Section 31 which states in part: “(a) The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” The BBC reaffirms the State of California’s laws concerning the rights of all citizens and the fundamental reassertion of antidiscrimination as embodied in California laws and regulations such as Civil Code section 51, et seq., in its operations. As such, the BBC, its employees, agents and representatives shall not discriminate on the basis of race, color, ethnicity, ancestry, national origin, sex, sexual orientation, disability, marital status, medical condition, or religion in carrying out its legislative priority of public protection as stated in Business and Professions Code section 7303.1 and the BBC Mission Statement: “To ensure the health and safety of California consumers by promoting ethical standards and by enforcing the laws of the beauty industry.” All inspections are to be tailored to accomplish the administrative goals and purposes of the BBC. The BBC and its employees, agents and representatives shall not undertake any enforcement functions or make any enforcement decisions, including inspections, against any licensee on the basis of unlawful discrimination. The BBC shall forbid the use of race or other characteristics as a criteria in enforcement actions, except with respect to descriptions of specific individuals.
Exhibit 1 - Page 21

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 22 of 23 Page ID #:555
JOINT INSPECTIONS WITH OUTSIDE AGENCIES
For any joint inspection that involves the participation of any agency other than the Board of Barbering and Cosmetology or the Division of Investigation, including other federal, state or local governmental entities, and their employees, agents, and representatives, the inspection shall be classified as a “Directed Inspection,” in accordance with Inspector Manual, “INSPECTION TYPE (REASON) TABLE FOR SITE INSPECTION RECORD.”
Complaints about conduct that does not violate the requirements of the Business & Professions Code on Barbering and Cosmetology, or BBC regulations, will not provide the basis for directed inspection by the Board.
Any joint inspection must be authorized by the Executive Officer of the Board of Barbering and Cosmetology as set forth below. Initially, the Enforcement Manager or designee shall investigate the reasons for participation of the BBC with the other agency(ies). The Enforcement Manager or designee shall consider the propriety of the joint inspection and the necessity of placing limitations on the joint inspection. The Enforcement Manager shall forward his or her findings to the BBC Executive Officer or his or her designee for a final decision as to whether the joint inspection is approved, disapproved, or approved with limitations.
The Executive Officer shall ensure that any joint inspection is conducted to accomplish the administrative goals and purposes of the BBC. In making the final decision, the Executive Officer shall verify:
1. That the inspection is pursuant to the Barbering and Cosmetology Act and Regulations;
2. That the participation of the BBC in any inspection narrowly accomplishes only the administrative goals and purposes of the BBC. BBC inspection activity is not to be used as a pretext for the accomplishment of any other law enforcement purpose by either the BBC or another agency, and;
3. That the inspection does not violate any federal or state laws, regulations, or policies of the BBC.
The BBC will only conduct authorized inspections necessary to determine compliance with the licensing, health and safety standards set forth in the Barbering and Cosmetology Act and Regulations. The participation of BBC officers in a Joint Inspection is not to be used to justify warrantless inspection of the businesses by other law enforcement agencies that would not otherwise be entitled to conduct a warrantless inspection, unless such inspection narrowly accomplishes the goals and purposes of the BBC. The BBC alone shall determine the nature and frequency of, as well as the authorized personnel participating in inspections permitted under the Barbering and Cosmetology Act and Regulations.
Exhibit 1 - Page 22

Case 5:09-cv-00688-JZ -SS Document 81-2 Filed 12/17/09 Page 23 of 23 Page ID #:556
SPECIAL INSPECTION PROCEDURES A. PRE-INSPECTION INFORMATION When the BBC has information that a possible personnel safety issue might arise, e.g., information concerning or a history of previous physical resistance, violence or threatened violence at the establishment or from individual licensees or patrons, or in circumstances that may required the issuance of a criminal citation, the appropriate BBC Inspection Program Supervisor should request the inspection be completed or accompanied by Division of Investigation personnel. The request should be made through the Enforcement Manager, and must be approved by the Executive Officer. B. INADVERTENT DISCOVERY OF POSSIBLE CRIMINAL ACTIVITY In the event that the BBC inspector uncovers evidence of possible criminal activity unrelated to BBC operations, e.g., presence of illegal drugs or other illegal substances; weapons, the BBC inspector should (1) note the evidence without informing any other individual during the inspection, (2) complete the administrative inspection if possible, (3) report the discovery to the Inspection Program Supervisor after departing the establishment. In the event that the BBC inspector is confronted by a hostile, argumentative, threatening, or violent individual, whether that individual be a licensee, non-licensed operator, owner, agent, customer or third person, and the BBC inspector has a belief that his/her personal safety is or may be in danger, the inspector should (1) leave the premises immediately, (2) call 911, (3) report to the Inspection Program Supervisor immediately after notifying 911.
Exhibit 1 - Page 23

 
 Case: 5:09-cv-00688-JZ -SS As of: 04/14/2011 11:20 PM PDT 1 of 18 (SSx), CLOSED, DISCOVERY
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA (Eastern Division − Riverside)
CIVIL DOCKET FOR CASE #: 5:09−cv−00688−JZ −SS

Kevon Gordon et al v. City of Moreno Valley et al Assigned to: Judge Jack Zouhary Referred to: Magistrate Judge Suzanne H. Segal Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/08/2009 Date Terminated: 11/09/2010 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Kevon Gordon

represented by Mark D Rosenbaum ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213−977−9500 x224 Fax: 213−977−5297 Email: mrosenbaum@aclu−sc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Bibring ACLU Foundation of Southern California 1313 West Eight St Los Angeles, CA 90017 213−977−9500 Email: pbibring@aclu−sc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter J Eliasberg ACLU Foundation of Southern California 1313 W 8th Street Los Angeles, CA 90017 213−977−9500 Fax: 213−977−5297 Email: peliasberg@aclu−sc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rishi Puri Sheppard, Mullin, Richter &Hampton 333 S. Hope Street 43rd Floor Los Angeles, CA 90071 213−620−1780 Fax: 213−620−1398 Email: rpuri@sheppardmullin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stacy D Shartin Seyfarth Shaw LLP 2029 Century Park East Suite 3500 Los Angeles, CA 90067−3021 310−277−7200 Fax: 310−201−5219 Email: sshartin@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:09-cv-00688-JZ -SS As of: 04/14/2011 11:20 PM PDT 2 of 18

Plaintiff Ronald Jones
Plaintiff Raymond Barnes
Plaintiff Quincy Brown

represented by Mark D Rosenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Bibring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rishi Puri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy D Shartin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark D Rosenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Bibring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rishi Puri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy D Shartin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark D Rosenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Bibring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:09-cv-00688-JZ -SS As of: 04/14/2011 11:20 PM PDT 3 of 18

Peter J Eliasberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rishi Puri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy D Shartin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant City of Moreno Valley a Municipal Corporation
Defendant Rick Hall Chief of the Moreno Valley Police Department, in his official capacity

represented by Michael A Bell LaFollette Johnson DeHaas Fesler and Ames 2280 Market Street Suite 140 Riverside, CA 92501 951−275−9192 Fax: 951−275−9249 Email: mbell@ljdfa.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Bibring (See above for address) TERMINATED: 03/30/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Dakin Herrick City of Moreno Valley 14177 Frederick Street Moreno Valley, CA 92552 951−413−3000 Fax: 951−413−3034 Email: bobh@moval.org TERMINATED: 04/23/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Towery Coates Greines Martin Stein and Richland LLP 5900 Wilshire Blvd 12th Floor Los Angeles, CA 90036−3697 310−859−7811 Fax: 310−276−5261 Email: tcoates@gmsr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher D Lockwood Arias and Lockwood 225 West Hospitality Lane Suite 314 San Bernardino, CA 92408 909−890−0125

Case: 5:09-cv-00688-JZ -SS As of: 04/14/2011 11:20 PM PDT 4 of 18

Fax: 909−890−0185 Email: christopher.lockwood@ariaslockwood.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John M Porter Lewis Brisbois Bisgaard &Smith LLP 650 East Hospitality Lane Suite 600 San Bernardino, CA 92408 909−387−1130 Fax: 909−387−1138 Email: porter@lbbslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Bibring (See above for address) TERMINATED: 03/30/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kristy Underwood Executive Officer of the California Board of Barbering and Cosmetology, in her official capacity TERMINATED: 12/18/2009

represented by Diane Elisabeth De Kervor CAAG − Office of the Attorney General 110 West A Street Suite 1100 P O Box 85266 San Diego, CA 92186−5266 619−645−2611 Fax: 619−645−2061 Email: diane.dekervor@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Bibring (See above for address) TERMINATED: 03/30/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Alan Buess CAAG − Office of Attorney General of California 110 West A Street Suite 1100 San Diego, CA 92101 619−645−2039 Email: docketingsdawt@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Sheriff Stan Sniff Riverside County Sheriff, in his official capacity

represented by Christopher D Lockwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John M Porter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Bibring (See above for address) TERMINATED: 03/30/2010

Case: 5:09-cv-00688-JZ -SS As of: 04/14/2011 11:20 PM PDT 5 of 18

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Does 1−20

represented by Peter Bibring (See above for address) TERMINATED: 03/30/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant County of Riverside

represented by Christopher D Lockwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Bibring (See above for address) TERMINATED: 03/30/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Tony Heisterberg in his individual capacity

represented by Michael A Bell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Anthony Brown AUSA − Office of US Attorney 312 North Spring Street 12th Floor Los Angeles, CA 90012 213−894−4586 Fax: 213−894−0141 Email: Anthony.Brown@usdoj.gov TERMINATED: 02/03/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Bibring (See above for address) TERMINATED: 03/30/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Leroy Hansen City of Moreno Valley 14177 Frederick Street Moreno Valley, CA 92552 951−413−3000 Fax: 951−413−3034 Email: bobha@moval.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Dakin Herrick (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Towery Coates (See above for address)

Case: 5:09-cv-00688-JZ -SS As of: 04/14/2011 11:20 PM PDT 6 of 18

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Dennis Longdyke in his individual capacity

represented by Michael A Bell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Anthony Brown (See above for address) TERMINATED: 02/03/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Bibring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Leroy Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Dakin Herrick (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Towery Coates (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Lori Miller in her individual capacity

represented by Michael A Bell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Anthony Brown (See above for address) TERMINATED: 02/03/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Bibring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Leroy Hansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Dakin Herrick (See above for address) TERMINATED: 04/23/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:09-cv-00688-JZ -SS As of: 04/14/2011 11:20 PM PDT 7 of 18

Timothy Towery Coates (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Seth Harnett in his individual capacity

represented by Christopher D Lockwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Bibring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Robert Duckett in his individual capacity

represented by Christopher D Lockwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Bibring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Mario Herrera in his individual capacity

represented by Christopher D Lockwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Bibring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Eric Brewer

represented by Christopher D Lockwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Bibring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Anthony Johnson, − in his individual capacity

represented by Christopher D Lockwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Bibring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

Case: 5:09-cv-00688-JZ -SS As of: 04/14/2011 11:20 PM PDT 8 of 18

Christopher Gastinger in his individual capacity

represented by Christopher D Lockwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Bibring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Richard Hutson in his individual capacity

represented by Christopher D Lockwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Bibring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Joe Brown, − in his individual capacity TERMINATED: 07/23/2010

represented by Peter Bibring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard F Wolfe CAAG Office of Attorney General of California 110 West A St, Ste 1100 P O Box 85266 San Diego, CA 92186−5266 619−645−2482 Fax: 619−645−2012 Email: richard.wolfe@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Xochi Carmargo individual capacity TERMINATED: 07/23/2010

represented by Peter Bibring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard F Wolfe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Arlene Bauby in her individual capacity TERMINATED: 07/23/2010

represented by Peter Bibring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard F Wolfe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:09-cv-00688-JZ -SS As of: 04/14/2011 11:20 PM PDT 9 of 18

Date Filed 04/08/2009
04/08/2009 04/08/2009 04/14/2009 04/16/2009
04/16/2009
04/16/2009
04/16/2009
04/20/2009
04/29/2009 04/29/2009 04/30/2009 04/30/2009 04/30/2009

# Docket Text
1 COMPLAINT against defendants City of Moreno Valley, Rick Hall, Kristy Underwood, Stan Sniff, Does.(Filing fee $ 350) Jury demanded., filed by plaintiffs Raymond Barnes, Kevon Gordon, Ronald Jones.(mrgo) (Additional attachment(s) added on 4/9/2009: # 1 Civil Cover Sheet, # 2 Summons, # 3 CV−18) (mrgo). (Entered: 04/09/2009)
20 DAY Summons Issued re Complaint − (Discovery) 1 as to defendants City of Moreno Valley, Rick Hall, Kristy Underwood, Stan Sniff, Does. (mrgo) (Entered: 04/09/2009)
2 NOTICE of Interested Parties filed by plaintiffs Raymond Barnes, Kevon Gordon, Ronald Jones, (mrgo) (mrgo). (Entered: 04/09/2009)
3 STANDING ORDER by Judge Stephen G. Larson, READ THIS ORDER CAREFULLY. IT CONTROLS THE CASE AND DIFFERS IN SOME RESPECTS FROM THE LOCAL RULES. (am) (Entered: 04/15/2009)
4 PROOF OF SERVICE Executed by Plaintiff Raymond Barnes, Kevon Gordon, Ronald Jones, upon Rick Hall served on 4/13/2009, answer due 5/3/2009. The Summons and Complaint were served by Personal service, by FRCP rule 4 statute, upon Rocio Foster, Subpoena Clerk. Due Dilligence declaration No. Original Summons Not returned. (Bibring, Peter) (Entered: 04/16/2009)
5 PROOF OF SERVICE Executed by Plaintiff Raymond Barnes, Kevon Gordon, Ronald Jones, upon City of Moreno Valley served on 4/13/2009, answer due 5/3/2009. The Summons and Complaint were served by Personal service, by FRCP Rule 4 statute, upon Meg Itagaki, Sr. Office Assistant. Due Dilligence declaration No. Original Summons Not returned. (Bibring, Peter) (Entered: 04/16/2009)
6 PROOF OF SERVICE Executed by Plaintiff Raymond Barnes, Kevon Gordon, Ronald Jones, upon Stan Sniff served on 4/13/2009, answer due 5/3/2009. The Summons and Complaint were served by Personal service, by FRCP Rule 4 statute, upon Lester Harvey. Due Dilligence declaration No. Original Summons Not returned. (Bibring, Peter) (Entered: 04/16/2009)
7 PROOF OF SERVICE Executed by Plaintiff Raymond Barnes, Kevon Gordon, Ronald Jones, upon Moreno Valley Police Department The Summons and Complaint were served by Personal service, by FRCP Rule 4 statute, upon Rocio Foster, Subpoena Clerk. Due Dilligence declaration No. Original Summons Not returned. (Bibring, Peter) (Entered: 04/16/2009)
8 PROOF OF SERVICE Executed Raymond Barnes, Kevon Gordon, Ronald Jones, upon Kristy Underwood served on 4/10/2009, answer due 4/30/2009. The Summons and Complaint were served by Personal service, by FRCP Rule 4 statute, upon Teresa Rieker, Assistant to Kristy Underwood. Due Dilligence declaration No. Original Summons Not Returned. (Bibring, Peter) (Entered: 04/20/2009)
9 NOTICE of Appearance filed by attorney Diane Elisabeth De Kervor on behalf of Defendant Kristy Underwood (De Kervor, Diane) (Entered: 04/29/2009)
10 STIPULATION for Extension of Time to File Answer, FIRST STIPULATION Extending Time to Answer the complaint as to Kristy Underwood answer now due 5/26/2009, filed by Defendant Kristy Underwood.(De Kervor, Diane) (Entered: 04/29/2009)
11 NOTICE of Appearance filed by attorney Christopher D Lockwood on behalf of Defendants Rick Hall, Stan Sniff (Lockwood, Christopher) (Entered: 04/30/2009)
12 NOTICE of Appearance filed by attorney Michael A Bell on behalf of Defendant City of Moreno Valley (Bell, Michael) (Entered: 04/30/2009)
13 FIRST STIPULATION Extending Time to Answer the complaint as to City of Moreno Valley answer now due 5/26/2009, filed by Defendant City of Moreno Valley.(Bell, Michael) (Entered: 04/30/2009)

Case: 5:09-cv-00688-JZ -SS As of: 04/14/2011 11:20 PM PDT 10 of 18

04/30/2009 05/22/2009
06/05/2009 06/09/2009 06/09/2009 06/10/2009 06/10/2009 06/11/2009 06/11/2009 06/11/2009 06/11/2009 06/11/2009 06/11/2009 06/11/2009 06/12/2009
06/17/2009

14 FIRST STIPULATION Extending Time to Answer the complaint as to Rick Hall answer now due 5/26/2009; Stan Sniff answer now due 5/26/2009, filed by defendants Rick Hall; Stan Sniff.(Lockwood, Christopher) (Entered: 04/30/2009)
15 FIRST AMENDED COMPLAINT against defendants County of Riverside, Tony Heisterberg, Dennis Longdyke, Lori Miller, Seth Harnett, Robert Duckett, Mario Herrera, Eric Brewer, Anthony Johnson, Christopher Gastinger, Richard Hutson, Joe Brown, Xochi Carmargo, Arlene Bauby, Quincy Brown. Amending Complaint − (Discovery), Complaint − (Discovery) 1 , filed by plaintiffs Quincy Brown, Raymond Barnes, Kevon Gordon, and Ronald Jones. (gg) (Entered: 05/26/2009)
16 NOTICE OF MOTION AND MOTION to Dismiss first amended complaint filed by defendants Rick Hall, Stan Sniff, County of Riverside. Motion set for hearing on 7/6/2009 at 10:00 AM before Judge Stephen G. Larson. (Lockwood, Christopher) (Entered: 06/05/2009)
17 ANSWER to Amended Complaint, 15 filed by Defendant City of Moreno Valley.(Bell, Michael) (Entered: 06/09/2009)
18 NOTICE of Interested Parties filed by Defendant City of Moreno Valley, (Bell, Michael) (Entered: 06/09/2009)
19 NOTICE of interested parties filed by defendants Rick Hall, Stan Sniff, County of Riverside. (Lockwood, Christopher) (Entered: 06/10/2009)
20 NOTICE of Change of Attorney Information for attorney Rishi Puri counsel for Plaintiffs Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones. Changing Address to 2029 Century Park East, Suite 3500. Filed by Co−Counsel for Plaintiffs Rishi Puri (Puri, Rishi) (Entered: 06/10/2009)
21 NOTICE OF MOTION AND MOTION to Dismiss First Amended Complaint filed by Defendant Kristy Underwood. Motion set for hearing on 7/13/2009 at 10:00 AM before Judge Stephen G. Larson. (Attachments: # 1 Proposed Order)(De Kervor, Diane) (Entered: 06/11/2009)
22 MEMORANDUM in Support of MOTION to Dismiss First Amended Complaint 21 filed by Defendant Kristy Underwood. (De Kervor, Diane) (Entered: 06/11/2009)
23 Notice of Interested Parties filed by Defendant Kristy Underwood, (De Kervor, Diane) (Entered: 06/11/2009)
24 CERTIFICATE OF SERVICE filed by Defendant Kristy Underwood, re Memorandum in Support of Motion 22 , MOTION to Dismiss First Amended Complaint 21 , Certificate/Notice of Interested Parties 23 served on 06/11/09. (De Kervor, Diane) (Entered: 06/11/2009)
25 ANSWER to Amended Complaint, 15 JURY DEMAND. filed by Defendant Kristy Underwood.(De Kervor, Diane) (Entered: 06/11/2009)
26 CERTIFICATE OF SERVICE filed by Defendant Kristy Underwood, re Answer to Complaint 25 served on 06/11/09. (De Kervor, Diane) (Entered: 06/11/2009)
27 JOINDER in MOTION to Dismiss First Amended Complaint 21 filed by Defendants Rick Hall, Stan Sniff, County of Riverside. (Lockwood, Christopher) (Entered: 06/11/2009)
28 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Title pae is missing. RE: Proof of Service (subsequent documents) 24 , Proof of Service (subsequent documents) 26 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (am) (Entered: 06/12/2009)
29 SCHEDULING MEETING OF COUNSEL, ORDER Pursuant to FRCP 16,26(f) by Judge Stephen G. Larson: Scheduling Conference set for 8/31/2009 01:30 PM. (ad) (Entered: 06/18/2009)

Case: 5:09-cv-00688-JZ -SS As of: 04/14/2011 11:20 PM PDT 11 of 18

06/18/2009 06/18/2009 06/23/2009 06/23/2009 06/23/2009 06/24/2009
06/24/2009
06/24/2009
06/24/2009
06/24/2009
06/24/2009
06/24/2009

30 ANSWER to Amended Complaint, 15 filed by defendants Rick Hall, Stan Sniff, County of Riverside.(Lockwood, Christopher) (Entered: 06/18/2009)
31 STIPULATION to Continue motion to dismiss from 7/6/09 to 7/13/09 Re: MOTION to Dismiss first amended complaint 16 filed by defendants Rick Hall, Stan Sniff, County of Riverside. (Attachments: # 1 Proposed Order)(Lockwood, Christopher) (Entered: 06/18/2009)
32 ANSWER to Amended Complaint, 15 filed by defendants Seth Harnett, Robert Duckett, Mario Herrera, Eric Brewer, Anthony Johnson, Christopher Gastinger, Richard Hutson.(Lockwood, Christopher) (Entered: 06/23/2009)
33 JOINDER in MOTION to Dismiss First Amended Complaint 21 filed by Defendants Seth Harnett, Robert Duckett, Mario Herrera, Eric Brewer, Anthony Johnson, Christopher Gastinger, Richard Hutson. (Lockwood, Christopher) (Entered: 06/23/2009)
34 OPPOSITION OPPOSITION re: MOTION to Dismiss First Amended Complaint 21 filed by Plaintiffs Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones. (Puri, Rishi) (Entered: 06/23/2009)
35 PROOF OF SERVICE Executed by Plaintiff Raymond Barnes, Kevon Gordon, Quincy Brown, upon County of Riverside served on 6/12/2009, answer due 7/2/2009. The Summons and Complaint were served by Personal Service service, by FRCP Rule 4 statute, upon Maria Vasquez, City Clerk. Due Dilligence declaration No. Original Summons not returned with POS. (Bibring, Peter) (Entered: 06/24/2009)
36 PROOF OF SERVICE Executed by Plaintiff Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones, upon Eric Brewer served on 6/16/2009, answer due 7/6/2009. The Summons and Complaint were served by Substituted Service service, by FRCP Rule 4 statute, upon Lester Harvey, Investigator. Due Dilligence declaration yes. Original Summons not returned with POS. (Attachments: # 1 Exhibit POS by Mail, # 2 Affidavit)(Bibring, Peter) (Entered: 06/24/2009)
37 PROOF OF SERVICE Executed by Plaintiff Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones, upon Dennis Longdyke served on 6/15/2009, answer due 7/5/2009. The Summons and Complaint were served by Substituted Service service, by FRCP Rule 4 statute, upon Jane Halsted, City Clerk. Due Dilligence declaration yes. Original Summons Not returned with POS. (Attachments: # 1 Exhibit POS by Mail, # 2 Affidavit)(Bibring, Peter) (Entered: 06/24/2009)
38 PROOF OF SERVICE Executed by Plaintiff Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones, upon Lori Miller served on 6/15/2009, answer due 7/5/2009. The Summons and Complaint were served by Substituted Service service, by FRCP Rule 4 statute, upon Jane Halsted, City Clerk. Due Dilligence declaration attached. Original Summons not returned with POS. (Attachments: # 1 Exhibit POS by Mail, # 2 Affidavit)(Bibring, Peter) (Entered: 06/24/2009)
39 PROOF OF SERVICE Executed by Plaintiff Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones, upon Richard Hutson served on 6/16/2009, answer due 7/6/2009. The Summons and Complaint were served by substituted service service, by FRCP Rule 4 statute, upon Lester Harvey, Investigator. Due Dilligence declaration attached. Original Summons Not returned with POS. (Attachments: # 1 Exhibit POS by Mail, # 2 Affidavit)(Bibring, Peter) (Entered: 06/24/2009)
40 PROOF OF SERVICE Executed by Plaintiff Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones, upon Christopher Gastinger served on 6/16/2009, answer due 7/6/2009. The Summons and Complaint were served by Substituted Service service, by FRCP Rule 4 statute, upon Lester Harvey, Investigator. Due Dilligence declaration attached. Original Summons not returned with POS. (Attachments: # 1 Exhibit POS by Mail, # 2 Affidavit)(Bibring, Peter) (Entered: 06/24/2009)
41 PROOF OF SERVICE Executed by Plaintiff Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones, upon Mario Herrera served on 6/16/2009, answer due 7/6/2009. The Summons and Complaint were served by Substituted Service service, by FRCP Rule 4 statute, upon Lester Harvey, Investigator. Due Dilligence

Case: 5:09-cv-00688-JZ -SS As of: 04/14/2011 11:20 PM PDT 12 of 18

06/24/2009
06/24/2009
06/24/2009
06/24/2009
06/24/2009 06/25/2009 06/25/2009
06/26/2009 07/01/2009 07/02/2009 07/06/2009 07/06/2009 07/06/2009

declaration attached. Original Summons not returned with POS. (Attachments: # 1 Exhibit POS by Mail, # 2 Affidavit)(Bibring, Peter) (Entered: 06/24/2009)
42 PROOF OF SERVICE Executed by Plaintiff Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones, upon Anthony Johnson served on 6/16/2009, answer due 7/6/2009. The Summons and Complaint were served by Substituted Service service, by FRCP Rule 4 statute, upon Lester Harvey, Investigator. Due Dilligence declaration attached. Original Summons not returned with POS. (Attachments: # 1 Exhibit POS by Mail, # 2 Affidavit)(Bibring, Peter) (Entered: 06/24/2009)
43 PROOF OF SERVICE Executed by Plaintiff Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones, upon Robert Duckett served on 6/16/2009, answer due 7/6/2009. The Summons and Complaint were served by Substituted Service service, by FRCP Rule 4 statute, upon Lester Harvey, Investigator. Due Dilligence declaration attached. Original Summons Not returned with POS. (Attachments: # 1 Exhibit POS by Mail, # 2 Affidavit)(Bibring, Peter) (Entered: 06/24/2009)
44 PROOF OF SERVICE Executed by Plaintiff Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones, upon Seth Harnett served on 6/16/2009, answer due 7/6/2009. The Summons and Complaint were served by Substituted Service service, by FRCP Rule 4 statute, upon Lester Harvey, Investigator. Due Dilligence declaration attached. Original Summons Not returned with POS. (Attachments: # 1 Exhibit POS by Mail, # 2 Affidavit)(Bibring, Peter) (Entered: 06/24/2009)
45 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Local Rule 7.1−1 No Certification of Interested Parties and/or no copies RE: Answer to Complaint 32 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (am) (Entered: 06/24/2009)
46 OPPOSITION to MOTION to Dismiss first amended complaint 16 filed by Plaintiffs Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones. (Bibring, Peter) (Entered: 06/24/2009)
47 Notice of Interested Parties filed by defendants Seth Harnett, Robert Duckett, Mario Herrera, Eric Brewer, Anthony Johnson, Christopher Gastinger, Richard Hutson, (Lockwood, Christopher) (Entered: 06/25/2009)
48 ORDER by Judge Stephen G. Larson, Re MOTION to Dismiss by Defendants Sniff and Hall 21 : it is ordered that the motion to dismiss filed by defendants Sniff and Hall is continued to 8/10/2009 at 10:00 AM. It is further ordered that the briefing schedule for the motion is: Plaintiffs will file their opposition to the Motion to Dismiss by June 24, 2009. Defendants Sniff and Hall will file their reply to plaintiffs' opposition by July 2, 2009. (ad) (Entered: 06/25/2009)
49 REPLY in support of MOTION to Dismiss first amended complaint 16 filed by Defendants Rick Hall, Stan Sniff, County of Riverside. (Lockwood, Christopher) (Entered: 06/26/2009)
50 REPLY in support of MOTION to Dismiss First Amended Complaint 21 filed by Defendant Kristy Underwood. (De Kervor, Diane) (Entered: 07/01/2009)
51 RESPONSE BY THE COURT TO NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS and ORDER by Clerk of Court. The document is accepted as filed RE: Answer to Complaint 32 . (mrgo) (Entered: 07/06/2009)
52 NOTICE of Appearance filed by attorney Michael Anthony Brown on behalf of Defendants Dennis Longdyke, Lori Miller (Brown, Michael) (Entered: 07/06/2009)
53 Notice of Interested Parties filed by Defendants Dennis Longdyke, Lori Miller, identifying City of Moreno Valley. (Brown, Michael) (Entered: 07/06/2009)
54 NOTICE OF MOTION AND MOTION to Dismiss First Amended Complaint filed by Defendants Dennis Longdyke, Lori Miller. Motion set for hearing on 8/17/2009 at 10:00 AM before Judge Stephen G. Larson. (Brown, Michael) (Entered: 07/06/2009)

Case: 5:09-cv-00688-JZ -SS As of: 04/14/2011 11:20 PM PDT 13 of 18

07/06/2009 07/09/2009
07/21/2009 07/21/2009 07/21/2009 08/03/2009 08/07/2009 08/07/2009 08/07/2009 08/10/2009
08/10/2009 08/11/2009 08/11/2009 08/12/2009 08/14/2009

55 NOTICE OF LODGING filed re MOTION to Dismiss First Amended Complaint 54 (Brown, Michael) (Entered: 07/06/2009)
56 MINUTES OF IN CHAMBERS ORDER held before Judge Stephen G. Larson re: MOTION to Dismiss First Amended Complaint 21 , and MOTION to Dismiss first amended complaint 16 . In the interest of judicial economy, the above−mentioned motions are continued to August 17, 2009, at 10:00 a.m.( Motion set for hearing on 8/17/2009 at 10:00 AM before Judge Stephen G. Larson.) (mrgo) (Entered: 07/09/2009)
57 WAIVER OF SERVICE Returned Executed filed by Plaintiff Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones. upon Joe Brown waiver sent by Plaintiff on 6/9/2009, answer due 8/8/2009. Waiver of Service signed by Richard Wolfe. (Bibring, Peter) (Entered: 07/21/2009)
58 WAIVER OF SERVICE Returned Executed filed by Plaintiff Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones. upon Xochi Carmargo waiver sent by Plaintiff on 6/9/2009, answer due 8/8/2009. Waiver of Service signed by Richard Wolfe. (Bibring, Peter) (Entered: 07/21/2009)
59 WAIVER OF SERVICE Returned Executed filed by Plaintiff Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones. upon Arlene Bauby waiver sent by Plaintiff on 6/9/2009, answer due 8/8/2009. Waiver of Service signed by Richard Wolfe. (Bibring, Peter) (Entered: 07/21/2009)
60 Opposition Opposition re: MOTION to Dismiss First Amended Complaint 54 By Longdyke and Miller filed by Plaintiffs Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones. (Bibring, Peter) (Entered: 08/03/2009)
61 ANSWER to Amended Complaint, 15 Answer to First Amended Complaint, and Demand for Jury filed by Defendants Joe Brown, Xochi Carmargo, Arlene Bauby.(Wolfe, Richard) (Entered: 08/07/2009)
62 JOINDER in MOTION to Dismiss First Amended Complaint 21 Joinder of Defendants Brown, Camargo, and Bauby in Defendant Underwood's Motion to Dismiss First Amended Complaint filed by Defendants Joe Brown, Xochi Carmargo, Arlene Bauby. (Wolfe, Richard) (Entered: 08/07/2009)
63 NOTICE filed by Defendants Joe Brown, Xochi Carmargo, Arlene Bauby. Notice of Interested Parties (Wolfe, Richard) (Entered: 08/07/2009)
64 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Incorrect event selected. Correct event to be used is NOTICES/Certificate of Interested Parties. RE: Notice (Other) 63 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (am) (Entered: 08/10/2009)
65 REPLY in support of MOTION to Dismiss First Amended Complaint 54 filed by Defendants Dennis Longdyke, Lori Miller. (Brown, Michael) (Entered: 08/10/2009)
66 NOTICE of Appearance filed by attorney Michael A Bell on behalf of Defendant Tony Heisterberg (Bell, Michael) (Entered: 08/11/2009)
67 STIPULATION for Joinder in MOTION to Dismiss First Amended Complaint 54 filed by defendant Tony Heisterberg. (Attachments: # 1 Proposed Order)(Bell, Michael) (Entered: 08/11/2009)
68 RESPONSE BY THE COURT TO NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS and ORDER by Clerk of Court. The document is accepted as filed RE: Notice (Other) 63 . (mrgo) (Entered: 08/12/2009)
69 NOTICE of Change of Attorney Information for attorney William A Buess counsel for Defendant Kristy Underwood. Adding William A. Buess as attorney as counsel of record for Kristy Underwood for the reason indicated in the G−06 Notice. Filed by Defendant Kristy Underwood (Buess, William) (Entered: 08/14/2009)

Case: 5:09-cv-00688-JZ -SS As of: 04/14/2011 11:20 PM PDT 14 of 18

08/14/2009 08/17/2009 08/19/2009 08/20/2009
08/21/2009 08/31/2009 08/31/2009 11/04/2009
11/04/2009 11/10/2009

70 JOINT REPORT Rule 26(f) Discovery Plan ; estimated length of trial 10 days, filed by Plaintiffs Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones, Defendants City of Moreno Valley, Rick Hall, Kristy Underwood, Stan Sniff, Does, County of Riverside, Tony Heisterberg, Dennis Longdyke, Lori Miller, Seth Harnett, Robert Duckett, Mario Herrera, Eric Brewer, Anthony Johnson, Christopher Gastinger, Richard Hutson, Joe Brown, Xochi Carmargo, Arlene Bauby.. (Bibring, Peter) (Entered: 08/14/2009)
73 MINUTES OF Motion Hearing held before Judge Stephen G. Larson RE: MOTION to Dismiss First Amended Complaint 21 , MOTION to Dismiss First Amended Complaint 54 , and MOTION to Dismiss first amended complaint 16 . Court hears oral argument and takes the matter under submission. Court Reporter: Maria Bustillos. (mrgo) (Entered: 08/20/2009)
71 PROOF OF SERVICE Executed by Plaintiff Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones, upon Tony Heisterberg served on 8/6/2009, answer due 8/26/2009. The Summons and Complaint were served by Substituted service, by FRCP Rule 4 statute, upon Tim Heisterberg. Due Dilligence declaration is attached. Original Summons not returned. (Attachments: # 1 Exhibit Proof of Mail Service, # 2 Affidavit Reasonable Diligence)(Bibring, Peter) (Entered: 08/19/2009)
72 ORDER PERMITTING DEFENDANT TONY HEISTERBERG TO JOIN IN THE MOTION OF DEFENDANTS DENNIS LONGDYKE AND LORI MILLER TO DISMISS PLAINTIFFS FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 12(b)(6) by Judge Stephen G. Larson, re Stipulation for Joinder 67 . IT IS ORDERED that defendant TONY HEISTERBERG may join in the pending motion of defendants DENNIS LONGDYKE (LONGDYKE) and LORI MILLER (MILLER) to dismiss plaintiffs First Amended Complaint (FAC) as his responsive pleading to the FAC by filing a Notice of Joinder of said motion. IT IS HEREBY FURTHER ORDERED that neither plaintiffs nor defendant TONY HEISTERBERG may file any additional papers in favor of, or in opposition to, the pending motion to dismiss filed by LONGDYKE and MILLER. (mrgo) (Entered: 08/20/2009)
74 JOINDER in MOTION to Dismiss First Amended Complaint 54 filed by Defendants City of Moreno Valley, Tony Heisterberg, Dennis Longdyke, Lori Miller. (Bell, Michael) (Entered: 08/21/2009)
75 ORDER by Judge Stephen G. Larson: denying defendant's 21 Motion to Dismiss ; granting defendant's 54 Motion to Dismiss but with leave to amend; holding in abeyance ruling on defendant's 16 Motion to Dismiss pending completion of jurisdictional discovery. Plaintiffs are afforded leave to amend their complaint within the next thirty (30) days. (See document for further specifics) (mrgo) (Entered: 08/31/2009)
76 MINUTES OF Scheduling Conference not held before Judge Stephen G. Larson. Court and counsel meet and confer regarding status of the case. Court clarifies its order of August 31, 2009, stating that counsel should focus on discovery related to the jurisdictional issue; however, nothing in the Courts order should be taken to suggest that it excludes other areas of discovery to the extent that judicial or litigation economy would not be served.Court Reporter: Theresa Lanza. (mrgo) (Entered: 09/04/2009)
77 TRANSCRIPT for proceedings held on Monday, August 31, 2009; 1:53 PM. Court Reporter: Theresa Lanza, phone number www.theresalanza.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 11/25/2009. Redacted Transcript Deadline set for 12/5/2009. Release of Transcript Restriction set for 2/2/2010. (Lanza, Theresa) (Entered: 11/04/2009)
78 NOTICE OF FILING TRANSCRIPT filed for proceedings Monday, August 31, 2009; 1:53 PM (Lanza, Theresa) (Entered: 11/04/2009)
79 Joint STIPULATION to Extend Discovery Cut−Off Date to 01/22/2010 filed by Plaintiff Raymond Barnes, City of Moreno Valley, Kevon Gordon, Rick Hall,

Case: 5:09-cv-00688-JZ -SS As of: 04/14/2011 11:20 PM PDT 15 of 18

11/16/2009 12/17/2009 12/18/2009 12/23/2009
12/30/2009 01/04/2010
01/08/2010
01/11/2010 01/14/2010 01/14/2010
01/15/2010

Kristy Underwood, Stan Sniff, Does, Quincy Brown, County of Riverside, Tony Heisterberg, Dennis Longdyke, Lori Miller, Seth Harnett, Robert Duckett, Mario Herrera, Ronald Jones, Eric Brewer, Anthony Johnson, Christopher Gastinger, Richard Hutson, Joe Brown, Xochi Carmargo, Arlene Bauby. (Attachments: # 1 Proposed Order)(Bibring, Peter) (Entered: 11/10/2009)
80 ORDER by Judge Justin L. Quackenbush, re Stipulation to Extend Discovery Cut−Off Date, 79 . ( Jurisdictional Discovery cut−off extended to 1/22/2010.) (mrgo) (Entered: 11/17/2009)
81 STIPULATION to Dismiss Defendant Kristy Underwood filed by Plaintiff Raymond Barnes, Kevon Gordon, Kristy Underwood, Quincy Brown, Ronald Jones. (Attachments: # 1 Exhibit Settlement, # 2 Proposed Order)(Bibring, Peter) (Entered: 12/17/2009)
82 ORDER by Judge Virginia A. Phillips, re Stipulation to Dismiss Party 81 . This Court ORDERS that all plaintiffs' claims against defendant Kristy Underwood be dismissed with prejudice. (mrgo) (Entered: 12/21/2009)
83 NOTICE OF MOTION AND MOTION to Dismiss First Cause of Action to First Amended Complaint as to Defendants Heisterberg, Miller and Longdyke filed by DEFENDANTS Tony Heisterberg, Dennis Longdyke, Lori Miller. Motion set for hearing on 1/25/2010 at 10:00 AM before Judge Stephen G. Larson. (Attachments: # 1 Declaration of Michael Bell, # 2 Exhibit A and B, # 3 Exhibit C thru E, # 4 Exhibit F thru O, # 5 Proposed Order)(Bell, Michael) (Entered: 12/23/2009)
84 STIPULATION to Continue Hearing Date on Defendant's Motion to Dismiss from 1/25/2010 to 2/1/2010 filed by Plaintiffs Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones. (Attachments: # 1 Proposed Order)(Bibring, Peter) (Entered: 12/30/2009)
85 ORDER by Judge Virginia A. Phillips CONTINUING the MOTION of Defendants Heitserberg, Longyke and Miller to Dismiss Plaintiff's First Cause of Action Pursuant to FRCP 41(b) 83 : the hearing on the Motion is continued to 2/1/2010 at 10:00 AM. Plaintiffs' brief in opposition will be due Monday 1/11/2010 and defendants' reply brief will be due Tuesday 1/9/2010. IT IS SO ORDERED. (ad) (Entered: 01/06/2010)
86 MINUTES OF IN CHAMBERS ORDER RE: MOTION HEARING held before Judge Audrey B. Collins re: MOTION to Dismiss First Cause of Action to First Amended Complaint as to Defendants Heisterberg, Miller and Longdyke 83 . The motion hearing set for January 25, 2010, at 10:00 a.m., is vacated pending reassignment and parties will be notified. Counsel are directed to follow filing procedures indicated in the existing Standing Order issued in your case until you receive notification of reassignment. (mrgo) (Entered: 01/08/2010)
87 Opposition re: MOTION to Dismiss First Cause of Action to First Amended Complaint as to Defendants Heisterberg, Miller and Longdyke 83 filed by Plaintiffs Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones. (Attachments: # 1 Declaration)(Bibring, Peter) (Entered: 01/11/2010)
88 EX PARTE APPLICATION for Protective Order for Precluding Plaintiffs from Deposing City of Moreno Valley Council Member William Batey filed by Defendants City of Moreno Valley, Tony Heisterberg, Dennis Longdyke, Lori Miller. (Attachments: # 1 Exhibit A through B, # 2 Exhibit C thru K, # 3 Proposed Order)(Bell, Michael) (Entered: 01/14/2010)
90 ORDER OF THE CHIEF JUDGE (#10−007) approved by Judge Audrey B. Collins. IT IS ORDERED, with the concurrence of the Case Management and Assignment Committee, that the following case be reassigned from the calendar of Judge Stephen G. Larson to the calendar of Judge Jack Zouhary for all further proceedings. The case number will now reflect the initials of the transferee Judge EDCV 09−688 JZ (SSx). (mrgo) (Entered: 01/15/2010)
89 MEMORANDUM in Opposition to EX PARTE APPLICATION for Protective Order for Precluding Plaintiffs from Deposing City of Moreno Valley Council Member William Batey 88 filed by Plaintiffs Raymond Barnes, Kevon Gordon,

Case: 5:09-cv-00688-JZ -SS As of: 04/14/2011 11:20 PM PDT 16 of 18

01/15/2010 01/15/2010
01/19/2010 01/19/2010 01/20/2010 03/29/2010
03/30/2010 03/31/2010
04/07/2010 04/22/2010

Quincy Brown, Ronald Jones. (Bibring, Peter) (Entered: 01/15/2010)
91 ORDER SETTING HEARING ON DEFENDANTS EX PARTE APPLICATION FOR A PROTECTIVE ORDER by Magistrate Judge Suzanne H. Segal. The Court sets Defendants' "Ex Parte Application For A Protective Order Precluding Plaintiffs From Deposing City of Moreno Valley Council Member William H. Batey, II" for a hearing on Tuesday, January 19, 2010, at 10:00 a.m. in Courtroom 23, Spring Street Courthouse. (ag) (Entered: 01/15/2010)
92 MINUTES OF IN CHAMBERS ORDER RE: ASSIGNMENT OF CASE held before Judge Jack Zouhary: This action has been reassigned to the HONORABLE JACK ZOUHARY, District Judge, Sitting by Designation. Please substitute the initials JZ in place of the initials SGL. The case number will now read: EDCV 09−00688−JZ. As documents are routed using the judges initials, it is important to use the correct initials on all subsequent filings. Judge Zouhary's Courtroom Deputy Clerk, Carol Bethel, can be reached at (419) 213−5679 or (419) 213−5675. (mrgo) (Entered: 01/19/2010)
93 REPLY In Support Of MOTION to Dismiss First Cause of Action to First Amended Complaint as to Defendants Heisterberg, Miller and Longdyke 83 filed by Defendants Tony Heisterberg, Dennis Longdyke, Lori Miller. (Brown, Michael) (Entered: 01/19/2010)
94 MEMORANDUM AND ORDER by Magistrate Judge Suzanne H. Segal DENYING CITY OF MORENO VALLEY'S EX PARTE APPLICATION FOR PROTECTIVE ORDER PRECLUDING THE DEPOSITION OF FORMER MAYOR WILLIAM H. BATEY, II (see Order for specifics). (dhl) Modified on 1/19/2010 (dhl). (Entered: 01/19/2010)
95 OPPOSITION OPPOSITION re: MOTION to Dismiss First Cause of Action to First Amended Complaint as to Defendants Heisterberg, Miller and Longdyke 83 Supplemental Declaration of Rishi Puri filed by Plaintiffs Raymond Barnes, Kevon Gordon, Quincy Brown, Ronald Jones. (Puri, Rishi) (Entered: 01/20/2010)
96 ORDER by Judge Jack Zouhary: The Court will hold a Status Phone Conference on Wednesday, March 31, 2010 at 11:30 a.m. PDT (2:30 p.m. EDT). During that conference, the Court shall rule on pending Motions; and counsel should be prepared to discuss the status of discovery and to set a firm case schedule, including a trial date. Counsel are instructed to call Chambers at (419) 213−5675 to obtain the call−in number and advise who will be attending the conference. (am) (Entered: 03/29/2010)
97 STATUS REPORT JOINT filed by Plaintiff Kevon Gordon. (Shartin, Stacy) (Entered: 03/30/2010)
98 MINUTES OF Motion Hearing held before Judge Jack Zouhary RE: MOTION to Dismiss First Cause of Action to First Amended Complaint as to Defendants Heisterberg, Miller and Longdyke 83 , and MOTION to Dismiss first amended complaint 16 . Defendants Motion to Dismiss (Doc. No. 16) is denied without prejudice. Defendants Motion to Dismiss pursuant to Rule 41(b) (Doc. No. 83) is denied. Defendants Heisterberg, Longdyke, and Miller shall file Answers to the First Amended Complaint within ten (10) days. Upon agreement of the parties, Defendant Christopher Gastinger is dismissed from the case. If appropriate, parties shall stipulate to a replacement Defendant.Court Reporter: None. (mrgo) (Entered: 03/31/2010)
99 ANSWER to Amended Complaint, 15 filed by defendant Tony Heisterberg, Dennis Longdyke, Lori Miller.(Bell, Michael) (Entered: 04/07/2010)
100 ORDER by Judge Jack Zouhary: The Court has set a Settlement Conference for Thursday, June 3, 2010 at 10:30 a.m. (PDT) in Courtroom 1, United States District Court, George E. Brown, Jr. United States Courthouse, 3470 Twelfth Street, 2nd Floor, Riverside, California 92501−3801. Lead Counsel and Parties, or a representative with full authority to negotiate and settle, are to appear in person. Further, each party shall submit an ex parte letter summarizing the settlement position to the Judge Zouharys Chambers by fax (419−213−5680) no later than Friday, May 28, 2010. (am) (Entered: 04/22/2010)

Case: 5:09-cv-00688-JZ -SS As of: 04/14/2011 11:20 PM PDT 17 of 18

04/23/2010 06/03/2010 06/04/2010 06/07/2010 06/10/2010 06/15/2010
07/22/2010 07/23/2010 08/06/2010
10/18/2010

101 NOTICE of Change of Attorney Information for attorney Michael A Bell counsel for Defendants City of Moreno Valley, Tony Heisterberg, Dennis Longdyke, Lori Miller. Robert D. Herrick will no longer receive service of documents from the Clerks Office for the reason indicated in the G−06 Notice.Robert D. Herrick is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G−06 Notice. Filed by Defendants City of Moreno Valley, Longdyke, Miller and Heisterberg (Bell, Michael) (Entered: 04/23/2010)
105 MINUTES OF Settlement Conference held before Judge Jack Zouhary: Settlement Conference held on June 3, 2010. Progress made. With consent of all parties, the Court will conduct followup efforts over the next few weeks. In the interim, further discovery is stayed pending the outcome of these discussions. (am) (Entered: 06/11/2010)
102 STIPULATION for Settlement filed by Plaintiffs Raymond Barnes, Quincy Brown, Kevon Gordon, Ronald Jones. (Attachments: # 1 Exhibit Signed Release, # 2 Proposed Order)(Bibring, Peter) (Entered: 06/04/2010)
103 RESPONSE filed by Defendant County of Riversideto Stipulation for Settlement 102 and proposed order (Lockwood, Christopher) (Entered: 06/07/2010)
104 RESPONSE IN SUPPORT OF STIPULATION AND PROPOSED ORDER RE SETTLEMENT (Docket #102) filed by Plaintiffs Raymond Barnes, Quincy Brown, Kevon Gordon, Ronald Jones. (Bibring, Peter) (Entered: 06/10/2010)
106 STIPULATION AND ORDER RE SETTLEMENT BETWEEN PLAINTIFFS AND STATE DEFENDANTS by Judge Jack Zouhary: The Court finds that the payment of $33,000 to Plaintiffs as stated in the Release is a good−faith settlement of the State Defendants proportionate share of Plaintiffs overall damages in this action. See McDermott, Inc. v. AmClyde, 511 U.S. 202, 204 (1994); Franklin v. Kaypro Corp., 884 F.2d 1222, 1229−32 (9th Cir. 1989); Restatement (Third) of Torts §16 [Apportionment of Liability] (2000); Any future assessment of damages owed to Plaintiffs in this action will be made as to the proportionate share(s) of the remaining, non−settling Defendants. Following any such award of damages to Plaintiffs in this action, no other Defendant in the action may seek contribution from any of the State Defendants, nor may any other Defendant seek to offset the final damages awarded to Plaintiffs by the amount paid pursuant to the attached Release. The Court shall retain jurisdiction over this settlement for a period of one year for the purpose of enforcing the terms of the Release. (am) (Entered: 06/15/2010)
107 STIPULATION to Dismiss Defendant Arlene Bauby, Joe Brown, Xochi Carmargo filed by Plaintiff Raymond Barnes, Quincy Brown, Kevon Gordon, Ronald Jones. (Attachments: # 1 Proposed Order Dismissing Defendants)(Bibring, Peter) (Entered: 07/22/2010)
108 ORDER DISMISSING CLAIMS AGAINST BROWN,BAUBY, AND CARMAGO with prejudice by Judge Jack Zouhary, re Stipulation to Dismiss Party 107 , Xochi Carmargo, Arlene Bauby and Joe Brown terminated. (mrgo) (Entered: 07/23/2010)
109 MINUTES OF Status Conference held before Judge Jack Zouhary: The Court conducted a Status Phone Conference on August 6, 2010. The Court reviewed the status of this case with counsel. After discussion, the Court agreed to stay further discovery while settlement discussions can continue. Discovery is stayed until Friday, September 3, 2010. In−Person Conference set for Tuesday, November 2, 2010 at 3:00 p.m. to be held at the U.S. Court of Appeals, 125 South Grand Avenue, Pasadena, California 91105 (room location to be determined at a later date). Trial is set for Monday, February 14, 2011. (am) (Entered: 08/06/2010)
110 ORDER by Judge Jack Zouhary: An in−person Status Conference is scheduled for Tuesday, November 2, 2010 at 3:00 p.m. to be held at the U.S. Court of Appeals, 125 South Grand Avenue, Pasadena, California 91105 (Conference Room on the Mezzanine). Lead counsel and parties, or a representative with full authority to negotiate and settle, are to appear in person. Further, each party shall submit an ex parte letter summarizing the settlement position to the Judges Chambers by fax (419−213−5680) by Thursday, October 28, 2010. (am) (Entered: 10/18/2010)

Case: 5:09-cv-00688-JZ -SS As of: 04/14/2011 11:20 PM PDT 18 of 18

11/02/2010 11/03/2010
11/05/2010 11/09/2010 02/03/2011
02/04/2011 02/07/2011

113 MINUTES OF STATUS CONFERENCE (held &completed) before Judge Jack Zouhary. Court and counsel discuss the status of the case. A settlement offer was approved thy the County of Riverside. The parties shall notified chambers by December 8, 2010 on the status of the case and if any settlement can be reached. Court Reporter: Gary George. (lom) (Entered: 11/08/2010)
111 NOTICE of Change of Attorney Information for attorney Rishi Puri counsel for Plaintiffs Raymond Barnes, Quincy Brown, Kevon Gordon, Ronald Jones. Changing Firm Name to Sheppard, Mullin, Richter &Hampton LLP, 333 S. Hope Street, 43rd Fl., Los Angeles, CA 90071. Changing e−mail to rpuri@sheppardmullin.com. Adding Rishi Puri as attorney as counsel of record for Kevon Gordon, Ronald Jones, Raymond Barnes, Quincy Brown for the reason indicated in the G−06 Notice. Filed by Defendants Kevon Gordon, Ronald Jones, Raymond Barnes, Quincy Brown (Puri, Rishi) (Entered: 11/03/2010)
112 STIPULATION for Settlement Between Plaintiffs and County Defendants filed by Plaintiff Raymond Barnes, Quincy Brown, Kevon Gordon, Ronald Jones. (Attachments: # 1 Exhibit Release, # 2 Proposed Order)(Bibring, Peter) (Entered: 11/05/2010)
114 STIPULATION AND ORDER RE SETTLEMENT BETWEEN PLAINTIFFS AND COUNTY DEFENDANTS by Judge Jack Zouhary. (See document for specifics) (Made JS−6. Case Terminated.) (mrgo) (Entered: 11/09/2010)
115 NOTICE of Change of Attorney Information for attorney Timothy Towery Coates counsel for Defendants City of Moreno Valley, Tony Heisterberg, Dennis Longdyke, Lori Miller. Michael Anthony Brown will no longer receive service of documents from the Clerks Office for the reason indicated in the G−06 Notice.Michael Anthony Brown is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G−06 Notice. Filed by Defendants City of Moreno Valley, Tony Heisterberg, Dennis Longdyke and Lori Miller (Coates, Timothy) (Entered: 02/03/2011)
116 STIPULATION to Dismiss defendant City of Moreno Valley, Tony Heisterberg, Dennis Longdyke, Lori Miller filed by Plaintiff Quincy Brown, Ronald Jones, Kevon Gordon, Raymond Barnes. (Attachments: # 1 Exhibit Release, # 2 Proposed Order)(Bibring, Peter) (Entered: 02/04/2011)
117 ORDER DISMISSING CLAIMS AGAINST DEFENDANTS CITY OF MORENO VALLEY, HEISTERBERG, LONGDYKE, MILLER by Judge Jack Zouhary, re Stipulation to Dismiss Party, 116 . The Court finds that the payment of $10,000 to Plaintiffs as stated in the Release of Claims is a good−faith settlement of the City Defendants proportionate share of Plaintiffs overall damages in this action. See McDermott, Inc. v. AmClyde, 511 U.S. 202, 204 (1994); Franklin v. Kaypro Corp., 884 F.2d 1222, 1229−32 (9th Cir. 1989); Restatement (Third) of Torts §16 [Apportionment of Liability] (2000). No other Defendant in this action may seek contribution from any of the City Defendants. The Court shall retain jurisdiction over this settlement for a period of three months for the purpose of enforcing the terms of the Release. See Kokkonen v. Guardians Life Insurance Co. of America, 511 U.S. 375 (1994). This action and all defendants to this action having been dismissed by stipulation pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), the Clerk is directed to close the file. (mrgo) (Entered: 02/07/2011)