1 PETER J. ELIASBERG (S.B.No. 189110) ACLU FOUNDATION OF
2 SOUTHERN CALIFORNIA 1616 Beverly Boulevard
3 Los Angeles, CA 90026 Telephone: (213) 977-9500
4 Facsimile: (213) 250-3919

5 DELLA BAHAN (S.B. No. 88649) PUJA BATRA (S.B. No. 206218)
6 PETER BIBRING (S.B. No. 223981) BAHAN & ASSOCIATES
7 140 South Lake Avenue, Suite 230 Pasadena, California 91101
8 Telephone: (626) 796-5100 Facsimile: (626) 796-9895
9
DIETER C. DAMMEIER (S.B. No. 188759) 10 MICHAEL A. MCGILL (S.B. No. 231613)
LACKIE & DAMMEIER LLP 11 367 North Second Avenue
Upland, CA 91786 12 Telephone: (909) 985-4003
Facsimile: (909) 985-3299
13

14 Attorneys for Plaintiffs

15

16

UNITED STATES DISTRICT COURT

17

CENTRAL DISTRICT OF CALIFORNIA, EASTERN DIVISION

18

19

STEVEN TRUJILLO, JEFF QUON, | ED CV 04-01015 VAP (SGLx)

20 CRAIG ANSMAN, WILL RIVERA, |

SCOTT ANDERSON, ROBERT

|

21 BERNHARD, and CRAIG PEFFERLE , | FIRST AMENDED COMPLAINT

on behalf of themselves and all others | FOR DAMAGES

22 similarly situated,

|

| JURY TRIAL DEMANDED

23

Plaintiffs,

|

| CLASS ACTION

24

|

v.

| [42 U.S.C. § 1983; UNITED

25

| STATES CONSTITUTION,

CITY OF ONTARIO, A Municipal

| AMEND. IV; CALIFORNIA

26 Corporation; CITY OF ONTARIO

| CONSTITUTION ART. I, § 1;

POLICE DEPARTMENT, A Department | INVASION OF PRIVACY]

27 Thereof; LLOYD SCHARF, Individually |

and as Chief of Ontario Police

|

28 Department; TONY DEL RIO,

|

1

1 Individually and as a Captain for the |

Ontario Police Department; BRAD

|

2 SCHNEIDER, Individually and as a |

Sergeant for the Ontario Police

|

3 Department; JOE SIFUENTES, and |

DOES 1 THROUGH 10, inclusive,

|

4

|

Defendants.

|

5

_________________________________

6

7

8

JURISDICTION AND VENUE

9

1. This case concerns defendants’ surreptitious installation of a video

10 camera in the men’s locker room in the Ontario Police Department. Defendants

11 captured plaintiffs on videotape in various states of undress. Defendants’ actions

12 constitute a grievous violation of the right to privacy guaranteed by the United

13 States Constitution, the California Constitution, and state common law for which

14 plaintiffs are entitled to general, exemplary and punitive damages. This court has

15 subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal

16 question), 28 U.S.C. §1343 (civil rights) and 28 U.S.C. § 1367 (supplemental

17 jurisdiction). Venue is proper in the Central District of California under 28 U.S.C.

18 § 1391(b)(2) in that the wrongs alleged herein occurred within the City of Ontario,

19 County of San Bernardino, within the Central District.

20

21

PARTIES

22

2. PLAINTIFFS were, and are at all times relevant, residents of San

23 Bernardino, Orange, and Riverside Counties. At all times relevant PLAINTIFFS

24 were members of the City of Ontario Police Department.

25

3. PLAINTIFF STEVEN TRUJILLO is a Sergeant with the Ontario

26 Police Department, where he has served for nineteen years. During his tenure, he

27 has been awarded a Medal of Valor, two Unit Excellence Awards, an Individual

28 Excellence Award, and a SWAT ribbon for seventeen years of service. Sergeant

2

1 Trujillo appears a number of times on the videotapes surreptitiously recorded by

2 defendants in the men’s locker room of the Ontario Police Department.

3

4. PLAINTIFF JEFF QUON, is a Sergeant with the Ontario Police

4 Department, where he has served for twenty-three years. He appears on the

5 videotape numerous times, including in his underwear

6

5. PLAINTIFF CRAIG ANSMAN is an Officer with the Ontario Police

7 Department where he has served for almost fifteen years. He previously worked

8 for three years as a policeman in Monterrey Park. While with the Ontario Police

9 Department, Officer Ansman has earned numerous awards including the

10 Meritorious Award, and the Unit Excellence Award. The California Firefighters

11 Association also awarded him a Medal of Honor for pulling a woman out of a

12 burning building. Mr. Ansman appears on the videotape numerous times.

13

6. PLAINTIFF WILL RIVERA is a Corporal with the Ontario Police

14 Department, where he has worked for approximately fifteen years. Corporal

15 Rivera has received a Lifesaving Award, a Bravery Award, a Heroism Award, and

16 was Officer of the Year in the early 1990s. Mr. Rivera appears on the videotape

17 several times.

18

7. PLAINTIFF SCOTT ANDERSON is a Detective with the Ontario

19 Police Department, where he has served for more than fifteen years. Detective

20 Anderson has received an award of excellence, has twice been named Officer of

21 the Year, has once been named Corporal of the Year, and is a member of the

22 Airport Narcotics Unit of the Year. Mr. Anderson appears on the videotape

23 several times.

24

8. PLAINTIFF ROBERT BERNHARD is a Sergeant with the Ontario

25 Police Department, where has served since 1977. During his time with the

26 Department, Sgt. Bernhard has earned two Life-Saving Ribbons and a Meritorious

27 Award. He is a member of the Airport Narcotics Unit of the Year. Mr. Bernhard

28 appears on the videotape numerous times.

3

1

9. PLAINTIFF CRAIG PEFFERLE is a Corporal with the Ontario

2 Police Department. He has worked for the Department for nine years. During that

3 time he has been received a Mothers Against Drunk Driving (MADD) Award and

4 several letters of appreciation from other agencies. Mr. Pefferle appears on the

5 videotape numerous times.

6

10. DEFENDANT CITY OF ONTARIO (“City”) is a duly constituted

7 municipal corporation operating under the laws of the State of California. At all

8 times relevant herein for all purposes connected with management of the Ontario

9 Police Department, defendant City of Ontario acted directly through its Chief of

10 Police, Lloyd Scharff Captain Tony Del Rio, Sergeant Brad Schneider, and Does 1

11 through 20 inclusive. Then-Police Chief Lloyd Scharff, who was delegated the

12 policy-making authority with respect to the City of Ontario Police Department,

13 adopted and ratified each of the decisions of the defendants as named herein as its

14 own policies, customs, practices or decisions, as if the same had been promulgated

15 directly by the City, except as expressly appears herein to the contrary.

16

11. DEFENDANT ONTARIO POLICE DEPARTMENT (“Police

17 Department”) is a subdivision and agency of the City of Ontario. The Police

18 Department is an operating department of the City and charged with the

19 responsibility of providing public safety for the City of Ontario.

20

12. DEFENDANT LLOYD SCHARFF was at all times relevant the Chief

21 of Police for the City of Ontario. Scharff is sued individually and in his capacity

22 as the Chief of Police for the City of Ontario. In doing the things alleged herein,

23 Scharff acted under the color of state law, within the course and scope of his

24 employment, and as an official policy-maker of the City of Ontario. Scharff was at

25 all times relevant, an official of defendant City of Ontario, vested with

26 policy-making authority over personnel actions such as the ones at issue in this

27 complaint.

28

13. DEFENDANT TONY DEL RIO was at all times relevant a

4

1 Lieutenant or Captain for the Ontario Police Department. Tony Del Rio is sued

2 individually and in his capacity as a Captain for the Police Department of the City

3 of Ontario.

4

14. DEFENDANT BRAD SCHNEIDER was at all times relevant a

5 Sergeant for the Ontario Police Department. Brad Schneider is sued individually

6 and in his capacity as a Sergeant for the Police Department of the City of Ontario.

7

15. DEFENDANT JOE SIFUENTES was at all times relevant a private

8 person not employed by the City of Ontario but hired on a contract basis to

9 perform services for the City of Ontario. Joe Sifuentes is employed as a

10 surveillance video installer in the City of Upland, California, and helped install the

11 surveillance camera in the ceiling of the men’s locker room in the Ontario Police

12 Department.

13

16. DEFENDANT DOES 1 through 10, (“DOES”) inclusive, are not

14 known or identified at this time. On information and belief, PLAINTIFFS allege

15 that each DOE is in some manner responsible for the wrongs alleged herein, and

16 that each such defendant advised, encouraged, participated in, ratified, directed or

17 conspired to do, the wrongful acts alleged herein. When the true names and

18 capacities of said defendants become known, plaintiffs will seek relief to amend

19 this Complaint to show their true identities in place of their fictitious names as

20 DOES 1 through 10.

21

22

CLASS ACTION ALLEGATIONS

23

17. Named plaintiffs seek damages on their own behalf and on behalf of

24 all other persons similarly situated, pursuant to Fed. R. Civ. P. Rule 23(b)(3). The

25 class is composed of all persons who were employed by the Ontario Police

26 Department or volunteered for the Ontario Police Department and used the

27 Department’s men’s locker room during the period in which the surveillance

28 equipment was operated.

5

1

18. Plaintiffs are informed and believe, and on that basis allege, that the

2 class defined in the foregoing paragraph numbers approximately 240 people.

3 Approximately 125 persons have been identified on the one videotape that

4 Plaintiffs have seen. Numerous other persons appear who cannot be identified.

5 Approximately 220 sworn officers worked for the Ontario Police Department in

6 1996 and had occasion to use the men’s locker room. In addition, approximately

7 another 20 people, such as youth members of the Police Explorers program, used

8 the men’s locker room.

9

19. Questions of law and fact common to the members of the plaintiff

10 class predominate over issues affecting only individual members. These common

11 questions include:

12

a. whether defendants, without plaintiffs’ knowledge, installed

13 hidden surveillance equipment in the Ontario Police Department men’s locker

14 room that captured video recordings of plaintiffs, and other police officers and

15 department employees and volunteers, engaging in the ordinary conduct of a

16 locker room.

17

b. whether plaintiffs possessed a reasonable expectation of

18 privacy in the Ontario Police Department’s men’s locker room under the Fourth

19 Amendment to the United States Constitution, Article I § 1 of the Constitution of

20 the State of California, and under the common law of the State of California;

21

c. whether defendants’ conduct constituted an unreasonable

22 intrusion into plaintiffs’ privacy in violation of the Fourth Amendment to the

23 United States Constitution;

24

d. whether defendants’ conduct constituted a serious invasion of

25 plaintiffs’ privacy in violation of Article I § 1 of the Constitution of the State of

26 California; and

27

e. whether defendants’ conduct was highly offensive to a

28 reasonable person so as to constitute an intrusion into private places, conversation,

6

1 or matter under the common law of the State of California.

2

20. The claims of the named plaintiffs are typical of the claims of the

3 class members.

4

21. The named plaintiffs will fairly and adequately protect the interests of

5 the class.

6

22. The named plaintiffs have no interest that is now or may be

7 potentially antagonistic to the interests of the class.

8

23. The attorneys representing the plaintiffs are experienced civil rights

9 attorneys and are considered able practitioners of federal court litigation.

10

24. No other litigation concerning this matter has been filed by any

11 members of the class.

12

25. Having the claims of all class members adjudicated in this judicial

13 district where all the named plaintiffs live, and where the vast majority of the

14 unnamed class members also reside, is desirable for the plaintiff class and also will

15 help conserve the resources of the Court by avoiding multiple cases concerning

16 the same events.

17

26. For all these and other reasons, a class action is superior to other

18 available methods for the fair and efficient adjudication of the controversy set

19 forth in this Complaint.

20

21

FACTS COMMON TO ALL COUNTS

22

27. Plaintiffs have at all times relevant to this complaint been employees

23 of the defendant City.

24

28. In approximately 1996, defendant Brad Schneider arranged for the

25 installation of a hidden surveillance camera in the City of Ontario Police

26 Department locker room (the “locker room”).

27

29. The surveillance camera was concealed in the ceiling of the locker

28 room and provided a view of the door and the adjacent lockers and dressing area.

7

1 The surveillance camera was connected to a video tape recorder located in a

2 nearby office.

3

30. Defendant Schneider arranged for the installation under supervision

4 of others, including, but not limited to, Scharff. Scharff, as the Chief of Police and

5 Department Head, was at all relevant times charged with making policy decisions

6 such as the one herein alleged. Schneider arranged for the installation of the

7 surveillance equipment by Joe Sifuentes, a non-employee of the defendant City,

8 who was employed as an installer.

9

31. The surveillance camera itself was obtained from defendant Tony Del

10 Rio and was property of the Narcotics Division for the City of Ontario Police

11 Department.

12

32. The monitoring equipment installed by defendants electronically

13 recorded video images of plaintiffs in their ordinary conduct in the locker room.

14

33. In approximately Spring of 2003, the surveillance camera was

15 discovered, along with at least one known videotape.

16

34. The videotape has been reviewed by the plaintiffs and employees of

17 the defendant City of Ontario.

18

35. The videotape displayed surreptitious recording of the plaintiffs as

19 they engaged in the ordinary conduct of a locker room, including ranging states of

20 undress.

21

36. Prior to the discovery of the camera, plaintiffs believed that the locker

22 room was private and not subject to monitoring by anyone. Plaintiffs reasonably

23 believed that they could not be seen by anyone who was not in the locker room at

24 the time. Plaintiffs conducted themselves accordingly by using the locker room to

25 change clothes.

26

37. Plaintiffs have all times relevant to this action conducted themselves

27 in a manner consistent with an actual expectation of privacy in the locker room.

28 The plaintiffs at no time consented or waived their expectation of privacy.

8

1

38. The defendants, in committing the acts complained of herein, acted

2 pursuant to a policy, practice or custom of the City of Ontario. At all times, the

3 defendants were aware of their acts and omissions or should have been aware,

4 specifically their failure to comply with statutory and constitutional procedural

5 and substantive requirements, and consequently the violations of law that derived

6 thereof.

7

39. At all times relevant to this action, the defendants acted without

8 lawful authority, including, but not limited to, a lawfully obtained warrant or court

9 order permitting such conduct, and without legal justification.

10

40. Defendants Scharff, Del Rio, Schneider, and Sifuentes acted

11 despicably, with the intent to harm, oppress and deprive plaintiffs of their rights

12 under the United States and California Constitutions, and the common law right to

13 privacy entitling plaintiffs to punitive damages in an amount to be proven at trial.

14

41. Plaintiffs are entitled to an award of reasonable attorney fees as

15 allowed by law, including, without limitation, under 42 U.S.C. § 1988 and

16 California Code of Civil Procedure § 1021.5.

17

FIRST CAUSE OF ACTION

18 Fourth Amendment to the United States Constitution; 42 U.S.C. § 1983

19

42. Plaintiffs re-allege and incorporate herein all the allegations in the

20 preceding paragraphs.

21

43. Plaintiffs had a reasonable expectation of privacy while engaged in

22 regular and usual conduct for a locker room, in that they reasonably believed that

23 they were free from observation by those not present in the locker room and were

24 not subject to video surveillance or recording. Plaintiffs’ privacy interest is one

25 recognized by the relative customs of the time and place, the occupation of the

26 plaintiffs and the habits of society.

27

44. Plaintiffs also had a subjective expectation of privacy while engaged

28 in regular and usual conduct for a locker room, in that they each believed that they

9

1 were free from observation by those not present in the locker room and were not

2 subject to video surveillance or recording.

3

45. Defendants’ actions were unreasonable to the plaintiffs and to the

4 senses of ordinary persons. Defendants’ conduct contravenes all boundaries of

5 decency and standards of a civilized society.

6

46. Defendants, by installing video surveillance in the locker room and

7 surreptitiously recording video images of plaintiffs in ranging states of undress as

8 alleged herein, violated the plaintiff’s rights to be free from unreasonable searches

9 and seizures under the Fourth Amendment to the United States Constitution, and

10 are therefore liable to plaintiffs under 42 U.S.C. § 1983.

11

SECOND CAUSE OF ACTION

12

California Constitution Art. I, § 1

13

47. Plaintiffs re-allege and incorporate herein all the allegations in the

14 preceding paragraphs.

15

48. Plaintiffs maintained at all times relevant to this action, a specific,

16 legally protected privacy interest. That interest is to be free from invasions of

17 privacy, including surreptitious video monitoring and recording, while engaged in

18 conduct usual and regular for a locker room.

19

49. Plaintiffs had a reasonable expectation of privacy while engaged in

20 regular and usual conduct for a locker room, in that they reasonably believed that

21 they were free from observation by those not present in the locker room and were

22 not subject to video surveillance or recording. Plaintiffs’ privacy interest is one

23 recognized by the relative customs of the time and place, the occupation of the

24 plaintiffs and the habits of society.

25

50. The defendants’ conduct, as alleged herein, constitutes an egregious

26 breach of social norms underlying the privacy right and a serious invasion of

27 plaintiffs’ privacy.

28

51. Defendants, by installing video surveillance in the locker room and

10

1 surreptitiously recording video images of plaintiffs, including some images of

2 plaintiffs in ranging states of undress as alleged herein, invaded said privacy right

3 as protected by the Constitution of the State of California, Article I, Section 1.

4

52. Plaintiffs Anderson, Bernhard and Pefferle filed tort claims on behalf

5 of themselves and Roes 1-250 against all Defendants, except Mr. Sifuentes, under

6 California Government Code § 900 et seq. with the City of Ontario on July 15,

7 2004 alleging a violation of California Constitution Art. I, § 1. The City rejected

8 the claim by letter dated August 5, 2004.

9

53. Plaintiffs Trujillo and Quon filed tort claims against all Defendants,

10 except Mr. Sifuentes, under California Government Code § 900 et seq. with the

11 City of Ontario on August 20, 2004, alleging a violation of California Constitution

12 Art. I, § 1. Their claim was denied by letters dated August 25, 2004.

13

54. Plaintiffs Ansman and Rivera, as well as all others similarly situated,

14 filed tort claims against all Defendants, except Mr. Sifuentes, under California

15 Government Code § 900 et seq. with the City of Ontario on August 20, 2004,

16 alleging a violation of California Constitution Art. I, § 1. Their claim was denied

17 by letter dated August 25, 2004.

18

THIRD CAUSE OF ACTION

19

Common Law Invasion of Privacy

20

55. Plaintiffs re-allege and incorporate herein all the allegations in the

21 preceding paragraphs.

22

56. Plaintiffs had a reasonable expectation of privacy while engaged in

23 regular and usual conduct for a locker room, in that they reasonably believed that

24 they were free from observation by those not present in the locker room and were

25 not subject to video surveillance or recording. Plaintiffs’ privacy interest is one

26 recognized by the relative customs of the time and place, the occupation of the

27 plaintiffs and the habits of society.

28

57. Plaintiffs have a right to avoid disclosure of confidential personal

11

1 information, including the surveillance of said plaintiffs while in ranging states of

2 undress, and to be free from invasions of said right, while engaged in conduct

3 regular and usual for a locker room.

4

58. Defendants’ actions were unreasonable and highly offensive to the

5 Plaintiffs, and to the senses of ordinary persons. Defendants’ conduct contravenes

6 all boundaries of decency and standards of a civilized society.

7

59. Defendants, by installing video surveillance in the locker room and

8 surreptitiously recording video images of plaintiffs in ranging states of undress as

9 alleged herein, invaded plaintiffs’ right to privacy and intruded upon plaintiffs’

10 private matters and are therefore liable to plaintiffs under the laws of the State of

11 California.

12

60. Plaintiffs Anderson, Bernhard and Pefferle filed tort claims on behalf

13 of themselves and Roes 1-250 against all Defendants, except Mr. Sifuentes, under

14 California Government Code § 900 et seq. with the City of Ontario on July 15,

15 2004, alleging a violation of the common law right to privacy. The City rejected

16 the claim by letter dated August 5, 2004.

17

61. Plaintiffs Trujillo and Quon filed tort claims against all Defendants,

18 except Mr. Sifuentes, under California Government Code § 900 et seq. with the

19 City of Ontario on August 20, 2004, alleging a violation of the common law right

20 to privacy. Their claim was denied by letter dated August 25, 2004.

21

62. Plaintiffs Ansman and Rivera, as well as all others similarly situated,

22 filed tort claims against all Defendants, except Mr. Sifuentes, under California

23 Government Code § 900 et seq. with the City of Ontario on August 20, 2004,

24 alleging a violation of the common law right to privacy. Their claim was denied

25 by letter dated August 25, 2004.

26

27

28

12

1

PRAYER FOR RELIEF

2 WHEREFORE, plaintiffs pray for the following relief:

3

1. General, special, and exemplary damages against all Defendants

4

according to proof;

5

2. Punitive damages against Defendants Scharff, Del Rio, Schneider,

6

and Sifuentes;

7

3. Costs of suit;

8

4. Attorneys’ fees under 42 U.S.C. § 1988, California Code of Civil

9

Procedure § 1021.5, California Government Code § 800, and

10

otherwise as permitted by law; and

11

5. Such other and further relief as the Court deems just and proper.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

13

1
2 Dated: October 28, 2004
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

Respectfully Submitted Peter J. Eliasberg ACLU Foundation of
Southern California Della Bahan Puja Batra Peter Bibring Bahan & Associates Dieter C. Dammeier Michael A. McGill Lackie & Dammeier LLP ATTORNEYS FOR PLAINTIFFS _____________________________ By: Peter Eliasberg _____________________________ By: Peter Bibring _____________________________ By: Mike Lackie
14

1

DEMAND FOR JURY TRIAL

2

Pursuant to Federal Rule of Civil Procedure 38, plaintiffs hereby demand a

3 jury trial.

4

5 Dated: October __, 2004

Respectfully Submitted

6

Peter J. Eliasberg

7

ACLU Foundation of

Southern California

8

Della Bahan

9

Puja Batra

Peter Bibring

10

Bahan & Associates

11

Dieter C. Dammeier

Michael A. McGill

12

Lackie & Dammeier LLP

13

ATTORNEYS FOR PLAINTIFFS

14

_____________________________

15

By: Peter Eliasberg

16

17

18

19

20

21

22

23

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15

 
 -:;.

• Case 5:04-cv-01015-VAP-PJW
1!

Document 20

•Filed 04/14/2005

Page 1 of 16

1 2
'i,
ENTERED 5 6 APR I 42005

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FILED CLERK, U $, DISTRICT COURT

APR 1 4 2005

CENTRAL DISTRICT. of CALIFORNIA

EASTERN DIVISION

DEPUTY

f}7~5. i·r~l<~ .Pi~uI~.sD.~ MOSOISFTCllAlCITONCUOFUORRTNIA ~rT,:TITED STATES DISTRICT COURT OEPUTY

9

CENTRAL DISTRICT OF CALIFORNIA

10

11 STEVEN TRUJILLO; et al., )

)

12

Plaintiffs, )

)

13

v.

)

)

14 CITY OF ONTARIO, etc; et)

al. ,

)

15

)

>J-:I
',f(l/-)

16

Defendants. )
)

Case No. EDCV 04-1015VAP (SGLx)

[Motion
2005.]

filed

on

M, arch

7,

ORDER GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

rna .1) (") 1 7
Oi~z 18

Plaintiffs' Motion for Class Certification came

~~ 19 before the Court for hearing on April 11, 2005. After

~m 20 reviewing and considering all papers filed in support of,

.n:""Btl o:::zt 21 and in opposition to, the Motion, as well as the
~~ 22 arguments advanced by counsel at the hearing, the Court

h;~ 23 GRANTS Plaintiffs' Motion for Class Certifica icmx;KETED ON eN

~~.... m 24
-< 25

I. BACKGROUND

APR 148

26

Plaintiffs filed their Complaint on Augus~~~~~=t~O,

27 and their First Amended Complaint ("FAC") on Octob

28 2004. Plaintiffs are officers of the City of On

• Case 5:04-cv-01015-VAP-PJW

Document 20

•Filed 04/14/2005

Page 2 of 16

1 Police Department ("OPD"). [PAC ~~ 3-9. J They allege
2 that in 1996, Defendants secretly installed a video
n 3 camera in the OPD men's locker room. [rd. I, 28-32.)

4 They claim: (1) violation of the Fourth Amendment to the 5 United States Constitution, pursuant to 42 U.S.C. § 1983; 6 (2) violation of Article I, Section 1 of the California

7 Constitution; and (3) common law invasion of privacy.

8

9

Plaintiffs now move for certification of a class of

10 "[alII persons who were employed by the Ontario Police

11 Department or volunteered for the Ontario Police

12 Department and used the Department's men's locker room

13 during the period in which the surveillance equipment was

14 installed." [Plaintiffs' Memorandum of Points and 15 Authorities in Support of Motion for Class Certification

16 ("PIs.' Mem. II) at 1. J Pla"intiffs filed their Motion for

17 Class Certification on March 7, 2005. Defendants filed 18 their Opposition ("Opp'n") on March 21, 2005, and

19 Plaintiffs filed a Reply on April 4, 2005.

20

21

II. LEGAL STANDARD

22

Under Federal Rule of Civil Procedure 23, in order to

23 bring a class action, a plaintiff must demonstrate:

24

(1) the class is so numerous that joinder of all

members is impracticable ["numeroslty"l, (2)

25

there are questions of law or fact common to the

class ["commonality"], (3) the claims or

26

defenses of the re~resentative parties are

ty,pical of the clalms or defenses of the class

27

['tYl(icality"], and (4) the representative

partles will fairly and adequately protect the

28

2

• Case 5:04-cv-01015-VAP-PJW

Document 20

•Filed 04/14/2005

Page 3 of 16

1

interests of the class ["adequacy of

representation") .

2

3 Fed. R. Civ. P. 23 (a) .

4

5

In addition to these prerequisites, a plaintiff must

6 satisfy one of the prongs of Federal Rule of Civil

7 Procedure 23(b) in order to maintain a class action.

8 Where, as here, a plaintiff moves for class certification

9 under Rule 23 (b) (3), the plaintiff must prove that

10

the questions of law or fact common to the

members of the class predominate over any

11

questions affecting only individual members, and

that a class action is superior to other

12

available methods for the fair and efficient

adjudication of the controversy. The matters

13

pertinent to the findings include: (A) the

lnterest of members of the class in individually

14

controlling the prosecution or defense of

separate actions; (B) the extent and nature of

15

any litigation concerning the controversy

already commenced by or against members of the

16

classi (C) the desirability or undesirability of

concentrating the litigation of the claims in

17

the particular forumi (D) the difficulties

likely to be encountered in the management of a

18

class action.

19 Fed. R. Civ. P. 23 (b) (3).

20

21

While a plaintiff seeking to maintain a class action

22 bears the burden of making a prima facie showing on each

23 of the necessary Rule 23 elements, "an extensive

24 evidentiary showing . . . is not required." Blackie v.

25 Barrack, 524 F.2d 891, 901 (9th Cir. 1975). Rather, a

26 court ruling on a class certification motion must make an

27 "informed judgment on each of [Rule 23's] requirements."

28

3

• Case 5:04-cv-01015-VAP-PJW

Document 20

•Filed 04/14/2005

Page 4 of 16

1 Id. at 901 n.17. A court may consider both the

2 allegations in a plaintiff's complaint as well as

3 extrinsic material in deciding whether to certify a

4 class. See id. at 900-01,901 n.17.

5

6

III. DISCUSSION

7 A. Class Certification

8

The Court considers each of the factors necessary for

9 class certification below.

10

11

1. Nwnerosity

12

Although the absolute number of class

members is not the sole determining factor,

13

where a class is large in numbers, joinder will

usually be impracticable. Where the class is

14

not so numerous, however, the number of class

members does not weigh as heavily in determining

15

whether joinder would be infeasible. In the

latter sltuation, other factors such as the

16

geographical diversity of class members . . .

should be considered ln determining

17

impracticability of joinder.

18 Jordan v. Los Angeles County, 669 F.2d 1311, 1319 (9th

19 Cir. 1982), vacated on other grounds by 459 U.S. 810

20 (1982).1

21

22

Plaintiffs satisfy the numerosity requirement. The

23 First Amended Complaint avers that 125 people have been

24 identified on a surveillance video obtained by Plaintiffs

25

26 1 Vacated decisions remain persuasive authority if
27 sound. See In re Taffi, 68 F.30 306, 310 (9th Cir. 1995) i Orhorhaghe v. INS, 38 F.3d 488, 493 n.4 (9th Cir.
28 1994).

4

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1 and that the proposed class consists of 240 people. (FAC 2 ~ 18.] Plaintiff Steven Trujillo attests to viewing one 3 video and identifying 125 OPD employees. [Declaration of 4 Steven Trujillo ("Trujillo Declo"), in Declarations in 5 Support of Plaintiffs' Motion ~~ 3-4.1 These numbers 6 diminish the significance of Defendants' allegation that

7 the proposed class is geographically cohesive, [Opp'n at

8 5-6J, and strongly suggest that it is impracticable to

9 join all class members. See Jordan, 669 F.2d at 1319.

10

11

In addition, according to Mr. Trujillo, at least 100

12 of those on the videotape remain OPD employees.

13 [Trujillo Decl. ~ 4.] This raises the possibility of

14 employment retaliation against individual class members

15 who file suit and militates in favor of finding joinder

16 impracticable. See, e.g., Mullen v. Treasure Chest

17 Casino, LLC, 186 F. 3d 620, 625 (5th Cir. 1999) (district

18 court "reasonably presumed that [] potential class

19 members still employed by [the defendant) might be

20 unwilling to sue individually or join a suit for fear of

21 retaliation," and this consideration supported finding

22 numerosity).

23

24

As well as asserting that the proposed class lacks

25 geographical diversity, Defendants argue that the 26 reduction in the number of named plaintiffs from the 27 initial Complaint to the First Amended Complaint is 28

5

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1 evidence that "plaintiffs appear not able to sustain the

2 numbers of members they allege." [Opp' n at 6.) This

3 argument is without merit. Defendants cite no authority

4 indicating that a change in the number of named

5 plaintiffs signifies a lack of numerosity. In any event,

6 Defendants acknowledge they have no explanations for the

7 change in the number of named plaintiffs. [~id.l

8

9

In fact, 11 of the 12 people who were named

10 plaintiffs in the Complaint put are not named in the

11 First Amended Complaint have declared that they believed

12 it was unnecessary to remain named plaintiffs in light of

13 the decision to seek class certification and that they

14 still support the lawsuit. [See, e.g., Declaration of 15 Ronald Dupuis, in Declarations in Support of Plaintiffs' 16 Reply ~~ 3-5.] Thus, the change in the number of named

17 plaintiffs does not represent an erosion of potential

18 class members' support and has no relevance for the

19 numerosity inquiry.

20

21

2. Commonality

22

The commonality requirement is construed

23 permissively. See Hanlon v. Chrysler Corp., 150 F.3d 24 lOll, 1019 (9th Cir. 1998). Thus, "[alll questions of 25 fact and law need not be common to satisfy the rule. The

26 existence of shared legal issues with divergent factual

27 predicates is sufficient, as is a common core of salient

28

6

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1 facts coupled with disparate legal remedies within the

2 class." Id.

3

4

Plaintiffs clearly meet the demand of commonality.

5 The claims of the proposed class members all "stem from

6 the same source If: the OPD' s alleged placement of 7 surveillance equipment in its men's locker room. See id.
a at 1019-20. This is "sufficient factual commonality to

9 satisfy the minimal requirements of Rule 23 (a) (2) ." Id.

10 at 1020.

11

12

Defendants' characterization of proposed class

13 members' claims as "disparate and unique" because "not

14 all of the employees are present on the videotape in the 15 same amount of time, or in the same stage of dress"

16 merits little consideration. [Opp'n at 7, 8.J The 17 extent to which any particular proposed class member is 18 on the videotape and his degree of undress bear on 19 damages. "The amount of damages is invariably an

20 individual question and does not defeat class action

21 treatment. II Blackie, 524 F.2d at 905.

22

23

3. Typicality

24

"[Al plaintiff's claim is typical if it arises from

25 the same event or practice or course of conduct that

26 gives rise to the claims of other class members and his

27 or her claims are based on the same legal theory."

28

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1 Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992) 2 (quotation marks and citation omitted); O'Connor v.

3 Boeing North American, Inc., 184 F.R.D. 311, 332 (C.D.

4 Cal. 1998); Haley v. Medtronic, Inc., 169 F.R.D. 643, 649 5 (C.D. Cal. 1996). Put more generally, "[uJnder the

6 rule's permissive standards, representative claims are 7 'typical' if they are reasonably co-extensive with those

8 of absent class members; they need not be substantially

9 identical." Hanlon, 150 F. 3d at 1020.

10

11

Named Plaintiffs' claims are typical of those of the

12 proposed class. Like the claims of members of the

13 proposed class, named Plaintiffs' claims arise from the

14 alleged installation of surveillance equipment in the OPD 15 men's locker room and are based on the right under the 16 Fourth Amendment to the U.S. Constitution to be free from

17 unreasonable searches and seizures; the right to privacy 18 under the California Constitutioni and California common

19 law's privacy guarantee.

20

21

Defendants contend that named Plaintiffs' claims are

22 not typical because the proposed class includes OPD 23 volunteers. [Opp' n at 10.J while of course employees' 24 claims against an employer might not be typical of

25 volunteers' claims in some instances, the claims of OPD

26 employees appear coextensive with those of OPD volunteers
27 II II
28

8

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1 under the circumstances that Plaintiffs allege here. 2 Defendants offer no arguments to the contrary.

3

4

As for Defendants' insistence that the "proposed

5 class representatives do not have direct claims against

6 each defendant II and thus their claims are not typical,

7 this is simply not the case. Named Plaintiffs

8 specifically aver the involvement of each Defendant in

9 the allegedly unlawful conduct, [see FAC ~~ 28, 30,

10 31,38), and named Plaintiffs and proposed class members

11 have the same claims, on the same grounds, against the

12 same Defendants.

13

14

4. Adequacy of Representation

15

"Resolution of two questions determines legal

16 adequacy: (1) do the named plaintiffs and their counsel

17 have any conflicts of interest with other class members

18 and (2) will the named plaintiffs and their counsel

19 prosecute the action vigorously on behalf of the class?"

20 Hanlon, 150 F. 3d at 1020.

21 I I I I

22 I I I I

23 I I I I

24 I I I I

25 II II

26 I I I I

27 I I I I

28

9

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1

The Court perceives no conflicts of interest."

2 Named Plaintiffs will "fairly and adequately protect the

3 interests of the class." Fed. R. Civ. P. 23 (a) i see Gen.

4 Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n.13

5 (1982) (commonality and typicality requirements "tend to

6 merge with the adequacy-of-representation requirement").

7 Plaintiffs' counsel are competent. [See Declarations of

8 Della Bahan, Peter J. Eliasberg, Michael D. Lackie, in

9 Declarations in Support of Plaintiff's Motion.]

10 Accordingly, the Court finds that Plaintiffs satisfy this

11 requirement.

12

13

5. Predominance of Common Questions of Law or Fact

14

and Superiority of a Class Action

15

Common questions of law and fact predominate over

16 questions affecting only individual members. The

17 critical legal and factual issues are the same for all

18 members of the proposed class, including whether

19 Defendants secretly installed surveillance equipment in

20 the OPD men's locker roomj whether proposed class members

21 possessed a reasonable expectation of privacy in the OPD

22 men's locker room; and whether Defendants' alleged

23

24

2 Based on the reduction in the number of named

plaintiffs from the Complaint to the First Amended

25 Complaint, Defendants maintain that there are "clearly

established conflicts of interest within the class"

26 precluding adequate representation. [Opp' n at 11.] As

the Court has already explained, this change in the

27 number of named plaintiffs has nothing whatsoever do with

conflicts among'proposedclass members. See supra Part

28 III.A.1.

10

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1 conduct violated the Fourth Amendment, the California 2 Constitution, or California common law. 3 [FAC ~ 19.J

3 The individualized questions address the amount of time 4 for which proposed class members were recorded and the

5 degree of proposed class members' exposure on any 6 videotapes that were made. These questions relate to

7 damages and therefore, as previously noted, do not 8 prevent class certification. See Blackie, 524 F.2d at

9 905. 10

11

A class action in this instance is superior to the

12 adjudication of individual claims. JUdicial economy

13 obviously favors a class action over more than 100 14 individual suits. In addition, a class action will 15 permit proposed class members who remain OPD employees to

16 prosecute claims they might otherwise hesitate to bring

17 because they fear retaliation by the OPD.

18

19

Defendants contend that a class action is not

20 superior to other forms of adjudication here because

21 Plaintiffs could use a "test case" to determine the

22 merits of their claims. [Opp' n at 12.J Defendants,

23 however, do not indicate why a test case would be 24 preferable in this instance, and Plaintiffs argue

25 persuasively that a "test case" would be an inferior

26
27 3 Defendants note the predominance requirement,
28 [Opp'n at 7J, but do not discuss it.

11

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1 method of resolution, not least because the statute of

2 limitations would continue to run for the other proposed

3 class members. 4

4

5

Consideration of the factors enumerated in Rule

6 23(b) (3) confirms that common questions predominate and

7 that a class action is superior to other methods of

8 adjudicating this dispute. See Hanlon, 150 F.3d at 1023

9 ("non-exclusive factors listed in Rule 23 (b) (3) (]

10 potentially apply to both the predominance and

11 superiority inquiries") .

12

13

As in Hanlon, "[flrom either a judicial or litigant

14 viewpoint, there is no advantage in individual members

15 controlling the prosecution of separate actions. There

16 would be less litigation or settlement leverage,

17 significantly reduced resources and no greater prospect

18 for recovery." rd. Plaintiffs are unaware of any other

19 pending litigation involving the use of surveillance

20 equipment in the OPD men's locker room, and Defendants

21 have pointed to none. [PIs.' Mem. at 11; Opp'n at 12.)

22 Concentrating the litigation in this forum is desirable

23 because all Defendants and most members of the proposed

24

25

4 The statute of limitations for the proposed class

members' § 1983 claims, for example, is one year. See

26 Taylor v. Regents of Univ. of Cal., 993 F.2d 710, 7~

(9th Cir. 1993). Thus, proposed class members' § 1983

27 claims might well be time-barred by the time a "test

case" was resolved.

28

12

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1 class are here. [See PIs.' Mem. at 11-12; Trujillo Declo 2 ~ 4.] Finally, a class action in this case does not pose

3 any particular management problems.

4

5

6. Conclusion

6

The Court finds that Plaintiffs have satisfied the

7 requirements of Rule 23 and certifies the following class

8 on all three of Plaintiffs' claims: all persons who were

9 employed by the Ontario Police Department or volunteered

10 for the Ontario Police Department, used the Department's

11 men's locker room during the period in which the

12 surveillance equipment was installed, and were recorded

13 by the surveillance equipment. 5

14

15 B. Appointment of Class Counsel

16

Upon certifying a class, a court must appoint class

17 counsel who will "fairly and adequately represent the

18 interests of the class." Fed. R. Civ. P. 23 (c) (1) (B),

19 (g) (1) (A) - (B) .

20

In appointing class counsel, the court [] must

cons~der:

21

• the work counsel has done in identifying or

investigating potential claims in the act~on,

22

• counsel's experience in handling class

actions, other complex litigation, and claims of

23

the type asserted In the action,

• counsel's knowledge of the applicable law, and

24

25

26

5 This formulation of the class differs from that

proposed by Plaintiffs in their Motion because the Court

27 discerns no basis for liability if a putative plaintiff

was,not at some point recorded by the surveillance

28 eqUlpment.

13

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1

• the resources counsel will commit to

representing the class; [and]

2

[] may conslder any other matter pertinent to

counsel's ability to fairly and adequately

3

represent the interests of the class . , .

4 Fed. R. Civ. P. 23 (g) (1) (C) .

5

6

Named Plaintiffs' counsel, Della Bahan, Peter J.

7 Eliasberg, and Michael Lackie, move jointly to be

8 appointed class counsel. [PIs.' Mem. at 14 -16.] Ms.

9 Bahan does not specify the work she has already done in 10 this action; however, her declaration establishes that 11 she has experience handling class action, employment, and

12 civil rights cases. [Declaration of Della Bahan, in 13 Declarations in Support of Plaintiffs' Motion ~ 3.] She 14 declares that her firm has the resources necessary to 15 prosecute this case and that she and her firm are "fully 16 committed to vigorously representing the plaintiffs." 17 [Id. ~~ 8, 9.) The Court is satisfied that Ms. Bahan

18 will "fairly and adequately represent the interests of 19 the class" and appoints her class counsel.

20

21

Mr. Eliasberg has worked on this case for "many

22 months," speaking with named Plaintiffs and proposed

23 class members. [Declaration of Peter J. Eliasberg, in

24 Declarations in Support of Plaintiffs' Motion ~ 7.J He

25 has been counsel in class actions alleging civil rights 26 violations. [Id. ~ 6.J He declares that the American 27 Civil Liberties Union Foundation for Southern California,
28

14

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1 where he is Managing Attorney, has sufficient resources
2 to represent the proposed class. [Id. H 3, 8.J The

3 Court finds that Mr. Eliasberg will "fairly and

4 adequately represent the interests of the class" and

5 appoints him class counsel.

6

7

Mr. Lackie has spent a "substantial amount of time"

8 meeting with named Plaintiffs and proposed class members.

9 [Declaration of Michael Lackie, in Declarations in
10 Support of Plaintiffs' Motion ~ 6.1 He has acted as
11 counsel in at least one other class action. [Id. ~ 4.J 12 His law practice focuses on the rights of public

13 employees, and his firm represents over 70 public 14 employee unions on various matters. [Id. ~ 3.J He 15 declares that his firm has adequate resources to 16 represent the proposed class. [.l£L.. ~ 7. J The Court 17 finds that Mr. Lackie will "fairly and adequately 18 represent the interests of the class" and appoints him

19 class counsel.

20

21 C. Notice to Class Members

22

For any class certified under Rule 23(b) (3), the

court must direct to class members the best

23

notice practicable under the circumstances,

including individual notice to all members who

24

can be identified through reasonable effort. The

notice must concisely and clearly state in

25

plain, easily understood language:

26

• the nature of the action,

• the definition of the class certified,

27

• the class claims, issues, or defenses,

28

15

Case 5:04-cv-01015-VAP-PJW
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1

• that a class member may enter an a~pearance

through counsel if the member so deslres,

2

• that the court will exclude from the class any

member who requests exclusion, stating when and

3

how members may elect to be excluded, and

• the binding effect of a class judgment on

4

class members under Rule 23(c) (3).

5 Fed. R. civ. P. 23 (c) (2) (B) .

6

7

Plaintiffs have not suggested a plan for "the best

8 notice practicable under the circumstances," nor have

9 they lodged with the Court a proposed notice of pendency

10 of class action. The Court therefore orders Plaintiffs

11 to file such a plan and lodge the requisite notice no

12 later than April 15, 2005.

13

14

IV. CONCLUSION

15

For the foregoing reasons, Plaintiffs' Motion for

16 Class Certification is GRANTED. Della Bahan, Peter J.

17 Eliasberg, and Michael Lackie are appointed class

18 counsel. plaintiffs shall file a notice plan and lodge a

19 proposed notice of pendency of class action no later than

20 April 20, 2005. Defendants may file any objections to

21 the notice plan and notice of pendency of class action no

22 later than April 27, 2005.

23

24 IT IS SO ORDERED.

.¥ 25
26 Dated:

111, 'l.-op(

27

28

~I V: '. c.. (II..... ~
'l)-'VIRGINIA PHILLIPS
United States District Judge

16

 
 • Case 5:04-cv-01015-VAP-PJW

Document 92

1

2 1Ir-'"'rrl:.:Cm~vIlEE"RR"E"D,,,".t"A=SiTImTr-;;'IlN

3

K U.S. DISTRICT COURT

Filed 04/14/2006 Page 1 of 81
~ SPednOd ')'
Enter Closed _ J8-5IJS·6 _
JS-2IJS-) _
Sean Only_ \\() II

4 APR I 72IJOO

FILED CLERK, U.S. DISTRICT COURT

APR 14 axJ6

7
8

UNITED STATES DISTRICT

;;~ER:~ ~~

DISTRICT DIVISION

.~fS!Yf~oLeIF"OuRNTIYA

THIS CQ STITUTES NOTICE OF ENTS~NTRAL DISTRICT OF CALIFORNIA

AS RE'a IRED BY FRCp, RULE 77(d)

10

)

)

11 STEVEN TRUJILLO; et al. ,) Case No. EDCV 04-1015-

) VAP(SGLx)

12

Plaintiffs, }

) [Motions filed on February

13

v.

) 21, 2006]

}

14 CITY OF ONTARIO, A

) AMENDED ORDER DENYING IN

Municipal Corporation; ) PART AND GRANTING IN PART

15 et al.,

) PLAINTIFFS' AND DEFENDANTS'

) MOTIONS FOR SUMMARY JUDGMENT

16

Defendants. )

)

17

18

Plaintiffs' and Defendants' Motions for summary

19 Judgment came before this Court for hearing on March 20,

20 2006. After reviewing and considering all papers filed

21 in support of, and in opposition to, the Motions, as well

22 as the arguments advanced by counsel at the hearing, the

23 Court GRANTS IN PART and DENIES IN PART Plaintiffs' and

24 Defendants' Motions for Summary Judgment.

25

26

I. BACKGROUND

27

Plaintiffs filed their Complaint on August 13, 2004,

28 and their First Amended Complaint ("FAC") "on October 28,

W, OCKEIEllllN eM-. '

,,'

'

APR I 7 200S

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1 2004. Plaintiffs are officers of the City of Ontario 2 Police Department ("OPD"). [FAC ~~ 3- 9.] They allege

3 that in 1996, Defendants secretly installed a video 4 camera in the OPD' s men's locker room. [Id. ~ ~ 1, 285 32.]

6

7

The Court granted Plaintiffs' Motion for Class

8 Certification on April 14, 2005, certifying the following

9 class: "[A] 11 persons who were employed by the Ontario

10 Police Department or volunteered for the Ontario Police

11 Department, used the Department's men's locker room 12 during the period in which the surveillance equipment was

13 installed, and were recorded by the surveillance

14 equipment." [April 14, 2005, Order Granting Plaintiffs' 15 Motion for Class Certification at 13.J 16

17

Plaintiffs filed a Second Amended Complaint ("SAC")

18 on September 29, 2005, adding Michael Thompson. [compare

19 SAC ~~ 15 and 30 with FAC ~~ 15 and 30.] The Second

20 Amended Complaint alleges the following Claims: (1)

21 violation of the Fourth Amendment to the United States

22 Constitution, pursuant to 42 U.S.C. § 1983; (2) violation 23 of Article I, Section 1 of the California Constitution;

24 and (3) cornmon law invasion of privacy.

25 / / /

26 / / /

27 / / /

28

2

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1

On October 17, 2005, counsel entered into a

2 Stipulation to Dismiss Defendant Joe Sifuentes with

3 prejudice from this action.

4

5

On February 21, 2006, Plaintiffs filed a Notice of

6 Motion For Partial Summary Judgment ("PIs.' Notice") and

7 a Memorandum of Points and Authorities in Support of

8 Plaintiffs' Motion for Partial Summary Judgment ("PIs.

9 Mem. P. & A."), and lodged concurrently a Statement of

10 Uncontroverted Facts and Conclusions of Law. Plaintiffs

11 move for partial summary judgment on liability against

12 Defendants Brad Schneider, Michael Thompson, and the City

13 of Ontario. [PIs. Notice at 2.J On March 6, 2006,

14 Defendants filed an Opposition to Plaintiffs' Motion for

15 Pretrial [sic] summary Judgment ("Defs.' OPP' n") . 16 Plaintiffs filed a Reply Memorandum of Points and

17 Authorities in Support of Plaintiffs' Motion for Partial

18 Summary Judgment ("PIs.' Reply") on March 13, 2006.

19

20

On February 21, 2006, Defendants filed a Notice of

21 Motion and Motion for Summary Judgment and/or Summary

22 Adjudication and a Memorandum of Points and Authorities

23 in Support of Motion for summary Judgment/summary

24 Adjudication of Issues (IIDefs.' Mem. P. & A. II). On March

25 6, 2006, Plaintiffs filed a Memorandum of Points and

26 Authorities in Support of Opposition to Defendants'

27 Motion for Summary Judgment ("PIs.' Opp'n") and a

28

3

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1 Statement of Undisputed Material Facts and Responses to 2 Defendants' Statement of Undisputed Material Facts 3 concerning Defendants' Motion for Summary Judgment. 4 Defendants filed their Reply ("Defs . 'Reply") on March 5 13, 2006.

6

7

II. LEGAL STANDARD

8

A motion for summary judgment shall be granted when

9 there is no genuine issue as to any material fact and the

10 moving party is entitled to judgment as a matter of law.

11 Fed. R. Civ. P. 56(c)i Anderson v. Liberty Lobby. Inc.,

12 477 U.S. 242, 247-48 (1986). The moving party must show

13 that "under the governing law, there can be but one

14 reasonable conclusion as to the verdict." Anderson, 477

15 U.S. at 250.

16

17

Generally, the burden is on the moving party to

18 demonstrate that it is entitled to summary judgment.

19 Margolis v. Ryan, 140 F.3d 850, 852 (9th cir. 1998) ;

20 Retail Clerks Union Local 648 v. Hub Pharmacy. Inc., 707

21 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears

22 the initial burden of identifying the elements of the

23 claim or defense and evidence that it believes

24 demonstrates the absence of an issue of material fact.

25 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

26 / / /
27 / / / 28

4

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1

Where the moving party has the burden at trial, "that

2 party must support its motion with credible evidence

3 . that would entitle it to a directed verdict if not

4 controverted at trial." Celotex, 477 U.S. at 331. The

5 burden then shifts to the non-moving party "and requires

6 that party . . . to produce evidentiary materials that

7 demonstrate the existence of a 'genuine issue' for trial.

8 . . . " Id.; Anderson, 477 U.S. at 256; Fed. R. Civ. P.

956(e).

10

11

A genuine issue of material fact will exist "if the

12 evidence is such that a reasonable jury could return a

13 verdict for the non-moving party." Anderson, 477 U. S. at

14 248. In ruling on a motion for summary judgment, the

15 Court construes the evidence in the light most favorable

16 to the non-moving party. Barlow v. Ground, 943 F. 2d

17 1132, 1135 (9th Cir. 1991); T.W. Elec. Servo Inc. v. pac.

18 Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir.

19 1987).

20

21

III. UNCONTROVERTED FACTS

22

The following material facts have been adequately

23 supported by the moving parties and are uncontroverted.

24 They are "admitted to exist without controversy" for the

25 purposes of these Motions.1 See L.R. 56-3.

26

27

1 Defendants' Proposed Fact 15 is unsupported by the

evidence. Defendants' Proposed Facts 3 and 18 are

28

(continued... )

5

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1

In 1996 and 1997, the OPD was located at 200 North

2 Cherry Avenue. [Stipulation of undisputed Facts and

3 Stipulation as to Admissibility of Certain Documents for

4 Motions for Summary Judgment and Partial Summary Judgment

5 ("Stipulation") lodged on February 21, 2006.] In July 6 1996, OPD Officer Bret Larson ("Larson") filed a police 7 report stating that his flashlight had been recently 8 stolen from the men's locker room. [Stipulation.] The

9 theft investigation was assigned to Defendant OPD 10 Detective Brad Schneider ("Schneider"). [Stipulation. ] 11 In addition to the theft of the flashlight, Defendant 12 schneider had heard rumors of other thefts in the locker

13 room. [Deposition of Brad Schneider ("Schneider Depo.")

14 at 153:1-153:5.] 15

16

Sometime in 1996, as part of the investigation,

17 Defendant Schneider arranged with Defendant Michael

18 Thompson ("Thompson"), a non-employee of OPD and long 19 time personal friend of Defendant Schneider, to have a

20 surveillance camera (" the camera") installed behind a 21 ceiling tile near one of the entrances to the locker 22 room. [Stipulation, Schneider Depo. at 184:5-185:24,

23 Deposition of Michael Thompson ("Thompson Decl.") at

24

25

1 ( ••• continued)

26 immaterial to the Court's resolution of the issues

~resented in these Motions. Plaintiffs' Proposed Fact 36

27 lS immaterial to the Court's resolution of the issues

presented in these Motions.

28

6

• Case 5:04-cv-01015-VAP-PJW

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1 10:11-11:19.] The camera was installed behind the tile 2 in such a way that it was concealed from view.

3 [Stipulation.] Defendant Thompson knew that the camera

4 would record the male officers changing clothes in the

5 locker room; however, he was unaware that the videotaping 6 was "unlawful." [Deposition of Michael Thompson

7 ("Thompson Depo.lI) at 13:15-13:17, 17:17-19:1,40:5-41:1,

8 44:2-44:20.]

9

10

The camera was connected to a time-lapse video

11 cassette recorder ("the VCR") located in the office of 12 the Communications Sergeant. [Stipulation.] No one from

13 the OPD attempted to obtain a warrant, or obtained a

14 warrant, for covert or overt video surveillance of the 15 locker room. [Stipulation.]

16

17

All sworn male officers below the rank of Lieutenant

18 who worked out of the North Cherry Avenue building, as

19 opposed to off-site locations such as the airport

20 narcotics unit, had a locker in the men's locker room.

21 [Stipulation.] While the locker room contained showers,

22 toilets, urinals, and sinks, the camera recorded only the 23 area around Larson's locker. [Stipulation.] Defendant

24 schneider placed a "bait" bag in the area of Larson's 25 locker because it was an area furthest from the showers 26 and bathroom area and was a central area where the

27 / / /

28

7

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1 officers mingled while in the locker room. [Schneider

2 Depo. at 157:11-157:20.]

3

4

Defendant Schneider told the investigators from the

5 Sheriffs' Department that he remembered putting the bait

6 bag out over a single weekend, that nothing was taken,

7 and he was not sure if another member of the OPD took

8 over the investigation after he was promoted.

9 [Declaration of Peter Eliasberg ("Eliasberg Decl.") at

10 Ex. 4, 9-11 of 17 in Declarations in Support of

11 Plaintiffs' opposition to Defendants' Motion for summary 12 Judgment (" pIs.' Decl. in Opp' n").] Defendant Schneider 13 never placed a tape from the VCR into evidence. [Id. at 14 12 of 17.] 15

16

Officers regularly changed, showered, and used the

17 sinks, toilets, and urinals in the locker room, whereas

18 the general public used restroom facilities located in

19 the lobby of the building. [Stipulation. ] Suspects,

20 arrestees, and persons being questioned had no access to

21 the locker room. [stipulation.] 22

23

The. locker room was self-contained and accessible

24 through one of two doors. [Stipulation. ] Persons in the

25 hallway outside the locker room could not see into it, 26 unless one of the doors was held open. [Stipulation.]

27 Suspects, arrestees, and persons being questioned had no

28

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1 access to the hallway outside the locker room.

2 [Stipulation.]

3

4

There were no signs in the locker room or anywhere

5 else in the OPD North Cherry Avenue Building announcing

6 that the locker room was subject to video, audio, or

7 photographic surveillance. [Stipulation.] OPD employees

8 were never informed by OPD management, either orally or

9 in 'writing, that they might be subject to video, audio,

10 or photographic surveillance in the locker room.

11 [Stipulation.]

12

13

While OPD was in the process of moving out of the

14 North Cherry Building, Officer Dan Harris ("Harris")

15 found a tape ("the tape") in the VCR containing recorded

16 images of the locker room and watched it in April or May

17 2003. [Stipulation.] Harris did not inform anybody at

18 the OPD about the tape until late August or September

19 2003, when he informed Plaintiffs Trujillo and Jeff Quon

20 ("Quon"). [Declaration of Daniel Harris ("Harris Decl.")

21 at ~ 3, Declaration of Steven Truj illo ("Truj illo Decl.") 22 at ~ 3, Declaration of Jeff Quon ("Quon Decl.") at ~ 3 in

23 PIs.' Decl. in Opp'n.] Messrs. Quon, Harris, .and

24 Trujillo did not inform anyone else in the OPD about the

25 tape until February 2004, which is when its exsitance

26 became generally known at OPD. [Harris Decl. at ~ 3,

27 Trujillo Decl. at ~ 4, Quon Decl. at ~ 5, Declaration of

28

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1 Scott Anderson ("Anderson Decl.") at ~ 5 in pIs.' Decl. 2 in Opp'n.] Members of the Ontario Police Officers 3 Association, the Ontario Police Management Group, and a

4 representative of the Department watched the tape. 5 [Stipulation.]

6

7

The tape contains frames with the following date

8 stamps: 11/14/96, 12/16/96, 12/17/96, 12/18/96, and

9 12/19/96. [Stipulation.] The tape depicts the same

10 portion of the locker room throughout, and displays

11 several officers within the OPD in various states of 12 undress. [Stipulation, Truj illo Decl. at ~ 3 in

13 Declaration and Exhibit in Support of Plaintiffs' Motion 14 for Partial Summary Judgment (" PIs.' Decl. & Ex.") .]

15

16

The North Cherry Avenue building had three floors:

17 The main floor, which contained the lobby; the basement,

18 which contained the locker room; and a partial floor

19 above the main floor, which contained the emergency 20 operations center. [Truj illo Decl. at ~ 4 in PIs.'

21 Declo & Ex.] The general public had unimpeded access to 22 the lobby only, which contained a sitting area and 23 restrooms. [Id.] To gain access to other parts of the 24 building, employees and non-employees of OPD had to enter 25 through locked glass doors. [Id.] Non-employees of OPD

26 had to be buzzed through the doors by an OPD employee and 27 escorted throughout the building. [Id.] The general

28

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1 public had very little access to the other areas of the 2 building, especially the locker area. [rd. at ~~ 4-5.]

3 Non-employees of OPD might enter the locker room to

4 perform maintenance functions or to use the facilities

5 when performing services in the communications room.

6 [Ex. C, Deposition of Robert Bernhard ("Bernhard Depo. II)

7 at 14:13-15:12 in Declaration of Bruce Disenhouse
8 ("Disenhouse Decl. II) .J

9

10

At least one female officer was permitted to use the

11 male locker room; however, she took precautions to make

12 sure that no men were present in the locker room before

13 she entered and that no one would enter the locker room

14 while she was changing. [Declaration of Kathy Janzen at 15 ~ 3 in PIs.' Decl. in opp'n.J

16

17

The following are less intrusive methods that could

18 have been used to attempt to recover the flashlight or

19 investigate the theft of a flashlight and other items

20 from the locker room: (1) sending out a memorandum

21 requesting return of the flashlight; (2) having the shift

22 officer check each officer's flashlight at the beginning 23 of the shift; (3) placing a bait item coated with

24 "ultraviolet" powder to detect who took the bait item;

25 and (4) if there was an identified suspect, setting a

26 bait item in the locker room before the suspect was to

27 enter and checking the locker room immediately after the

28

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1 suspect left. [Anderson Decl. at ~~ 7-10, Trujillo Decl.

2 at ~~ 9-12 in PIs.' Dec. &: Ex.]

3

4

During the relevant time period, Defendant Tony Del

5 Rio ("Del Rio") was a Lieutenant in the OPD. [Ex. F,

6 Deposition of Tony Del Rio ("Del Rio Depo.") at 16:16-

7 16: 24 in Disenhouse Decl.] Defendant Lloyd Scharf was

8 the Chief of Police for the City of Ontario during the

9 relevant time period. [Deposition of Lloyd Scharf

10 ("Scharf Depo.") at 21:16-21:23.] Defendant City of

11 Ontario ("City") is a municipality. [SAC ~ 10.]

12

13

Plaintiffs Scott Anderson ("Anderson"), Robert

14 Bernard ("Bernard"), and Craig Pefferle (llpefferle ll )

15 filed a tort claim against all Defendants except Michael

16 Thompson on July 15, 2004. [Ex. B in Disenhouse Decl.]

17 Plaintiffs Trujillo, Quon, Craig Ansman ("Ansman"), and

18 Will Rivera (IIRivera") filed tort claims against all

19 Defendants except Michael Thompson on August 23, 2004,

20 and Plaintiffs Trujillo and Quon filed applications for

21 permission to file a late claim pursuant to Government

22 Code § 911.4 on the same day. [Id.]

23

24

Each named Plaintiff believed that they would not be

25 secretly video taped while in the locker room. 2

26

27

2 while this fact was not presented in Plaintiffs'

Statement of undisputed Facts and Conclusions of Law as

28

(continued ... )

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1 [Anderson Decl. at ~ 4, Declaration of Craig Ansman

2 ("Ansman Decl.") at ~ 4, Declaration of Robert Bernhard

3 ("Bernhard Decl.") at ~ 4, Declaration of Craig Pefferle 4 ("Peffe:rle Decl.") at ~ 4, Quon Decl. at ~ 4, Declaration

5 of will Rivera ("Rivera Declo") at ~ 4, Truj illo Declo at

6 ~ 6 in PIs.' Declo and Ex.J

7

8

IV. CONTROVERTED PACTS

9

Defendants have presented evidence that Defendant Del

10 Rio did not provide the camera for the search and was

11 unaware of the covert video surveillance until it was

12 generally known; however, Plaintiffs have presented

13 sufficient evidence controverting Defendants' evidence.

14 [Compare Ex. F, Del Rio Depo. at 79:2-79:14, 83:2-83:21,

15 102:15-18 in Disenhouse Decl. with Anderson Decl. at ~ 4,

16 Ansman Decl. at ~ 3 in PIs.' Declo in Opp'n.]

17

18

Defendants have also presented evidence that

19 Defendant Scharf did not authorize or have knowledge of

20 the covert video surveillance until after it was publicly

21 known; however, Plaintiffs have presented sufficient

22 evidence to controvert Defendants' evidence. [Compare

23 Scharf Depo. at 52:4-52-13 with Schneider Depo. at 95:14-

24

25

2( ••• continued)

26 part of their Motion, it was included in plaintiffs'

Statement of Undisputed Material Facts and Responses to

27 Defendants' Statement of Undisputed Material Facts as

part of their Opposition to Defendants' Motion.

28 Defendants have not objected to this proposed fact.

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1 96:3, 96:7-96:19, Deposition of Patrick McMahon at 26:1-

2 26:16, Scharf Depo. at 24:23-25:15, 55:24-55:6, 74:23-

3 74:25, 116:17-117:3, 123:8-123:17, Deposition of Eliseo

4 Sifuentes, Jr. at 50:24-51:6, 51:9-51:19.]

5

6

V. DISCUSSION

7 A. Violation of the Fourth Amendment

8

The Fourth Amendment provides the people a right lito

9 be secure in their persons, houses, papers, and effects, 10 against unreasonable searches and seizures . . . ." 3

11 U.S. Const. amend. IV. The seminal case interpreting

12 the Fourth Amendment, Katz v. United States, 389 U.S. 347

13 (1967), held the following:

14

15

[T]he Fourth Amendment protects people, not

16

places. What a person knowingly exposes to the

17

public, even in his own home or office, is not a

18

subject of Fourth Amendment protection. But

19

what he seeks to preserve as private, even in an

20

area accessible to the public, may be

21

constitutionally protected.

22 / / /

23 / / / 24

25 3 It is a well-settled princi~le of constitutional
26 law that the Fourth Amendment applles to state action through the Fourteenth Amendment. New Jersey v. T.L.O.,
27 469 U.S. 325, 334 (1985) (citing Elkins v. United States, 364 U.S. 206, 213 (1960».
28

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1 Id. at 351-52 (citations omitted). Justice Harlan aptly

2 defined the test, in his concurring opinion, concerning

3 whether a person is protected by the Fourth Amendment: A

4 person must have a subjective expectation of privacy and

5 the expectation must be one that society is prepared to

6 recognize as reasonable. Id. at 361 (Harlan, J.,

7 concurring), Smith v. Maryland, 442 U.S. 735, 740 (1979).

8 "The test of legitimacy is not whether the individual

9 chooses to conceal assertedly private activity, [r]ather,

10 the correct inquiry is whether the government's intrusion

11 infringes upon the personal and societal values protected

12 by the Fourth Amendment. II Oliver v. United States, 466

13 U.S. 170, 182 (1984).

14

15

1. Subjective Expectations of Privacy

16

Plaintiffs contend that they had a subjective

17 expectation of privacy because by using a non-public

18 locker room for private conduct -- showering, changing

19 clothes, and using the toilets and urinals they

20 demonstrated their desire to perform these activities

21 privately. [Pls.' Mem. P. & A. at 5.]

22

23

Defendants assert that Plaintiffs have failed to

24 present evidence that they took actions to preserve their

25 privacy from other people while in the communal locker

26 room. [Defs.' Opp' n at 9.]

27 / / /

28

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l O n e has a subjective expectation of privacy if one 2 has taken efforts to preserve something as private. Bond 3 v. United States, 529 U.S. 334, 338 (2000) (holding that 4 placing an object in an opaque bag and placing the bag 5 above your seat while on a bus is sufficient to establish 6 a subjective expectation of privacy) (quoting Smith, 442 7 U.S. at 740); United States v. Nerber, 222 F.3d 597, 603 8 (9th Cir. 2000) (finding a subjective expectation of 9 privacy in a hotel room when a person closed the door, 10 drew the blinds, and exercised dominion in the room).

11

12

Here, Plaintiffs have presented sufficient evidence

13 that they performed activities such as changing clothes

14 and showering in the locker room and had a subjective

15 expectation of privacy to be free from covert video

16 surveillance. [Stipulation; Anderson Decl. at ~ 4,

17 Ansman Decl. at ~ 4, Bernhard Decl. at ~ 4, Pefferle

18 Decl. at ~ 4, Quon Decl. at ~ 4, Rivera Decl. at ~ 4,

19 Truj illo Decl. at ~ 6 in PIs. I Decl. and Ex.] That

20 Plaintiffs chose to perform these activities in an area

21 specifically designed to protect their privacy instead of

22 a public area establishes that they had taken measures to

23 preserve these activities as private.

24

25

Defendants argue that Plaintiffs failed to take

26 actions to protect their private activities because they

27 "freely changed clothes" in the presence of others, but

28

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1 that fact is immaterial. [Defs.' Opp' n at 9.] First,

2 Plaintiffs took measures that significantly limited the 3 number of people who could observe their private 4 activities. second, Defendants' argument defies logic:

5 A person can have a subjective expectation of privacy 6 that he or she will not be covertly recorded, even though 7 he or she knows there are other people in the locker 8 room; just as a person can have a subjective expectation

9 that his or her home will not be searched by the

10 authorities, even if he or she has invited friends into 11 his or her home. Third, as will be discussed below, 12 Plaintiffs are not asserting that they had a subjective

13 privacy expectation from the other officers present in 14 the locker room; rather, they subjectively expected that 15 they were free from covert video surveillance.

16

17

Thus, plaintiffs' use of a locker room to change

18 clothes is sufficient to establish that no reasonable

19 jury could find that they did not take measures to

20 preserve their actions as private.

21

22

2. Objective Bxpectations of Privacy

23

Although there is no "talisman" that determines

24 whether society will find a person's expectation of

25 privacy reasonable, a court may consider (1 ) the nature

26 III

27 III

28

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1 of the search, (2) where the search takes place,4 (3) the

2 person's use of the place, (4) our societal understanding

3 that certain places deserve more protections than others,

4 and (5) the severity of the search. See O'Connor v.

5 Ortega, 480 U.S. 709, 715 (1987)5; Nerber, 222 F.3d at

6 599-602.

7

8

a. Nature of the Search

9

Plaintiffs argue that Defendants address mere

10 abstract concepts of privacy, rather than the specific

11 and relevant question of whether or not Plaintiffs had a

12 reasonable expectation that they would not be covertly

13 videotaped while in the locker room. [PIs.' Opp' n at 3.J

14

15

16

The nature of the challenged state activity must be

17 defined before the Court determines whether a person has

18 a reasonable expectation of privacy from that activity,

19 because the reasonableness of a search can differ

20 according to the context. Smith, 442 U.S. at 741,

21 0 ' Connor, 48 0 U. S . at 715.

22

23 4 While the Fourth Amendment "protects people rather
24 than places, . . . 'the extent to which the Fourth Amendment protects people may depend upon where those
25 people are. '" Nerber, 222 F.3d at 599 (quoting Minnesota v. Carter, 525 U.S. 83, 88 (1998)), United States v.
26 Gonzalez, 328 F.3d 543, 547 (9th Cir. 2003).

27

5 A court may consider the intentions of the Framers

of the Fourteenth Amendment; neither party here, however,

28 raises such an argument. O'Connor, 480 U.S. at 715.

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1

The nature of the intrusion can affect whether a

2 person has a reasonable expectation of privacy; while a

3 person may not have such an expectation from one type of

4 search, he or she reasonably may expect privacy with

5 respect to another. See Katz, 389 U.S. at 351-52

6 (holding that a person in a glass phone booth has a

7 reasonable expectation that his or her conversation will

8 not be intercepted, but he or she does not have a

9 reasonable expectation that people will not view his or

10 her actions while in the booth); Bond, 529 U.S. at 338-39

11 ("When a bus passenger places a bag in an overhead bin,

12 he expects that other passengers or bus employees may

13 move it for one reason or another . . . . He does not

14 expect that other passengers or bus employees will, as a

15 matter of course, feel the bag in an exploratory

16 manner.") i United States v. Taketa, 923 F. 2d 665, 676

17 (9th Cir. 1991) (finding that while a person might not

18 have a general privacy interest in another person's

19 office, he or she may have an expectation against being

20 videotaped in it).

21

22

It is undisputed that the nature of the search here

23 was covert video surveillance of the OPD's men's locker

24 room. The camera was hidden from sight behind a ceiling

25 tile with cables running to a VCR in the communications

26 sergeant's Office. [Stipulation.] While the camera was

27 / / /

28

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1 located in the locker room, however, it only recorded the

2 area around Larson's locker. [Stipulation.]

3

4

Thus, the issue before the Court is whether

5 PI~intiffs had a reasonable expectation of privacy from

6 covert video surveillance, not whether they had a 7 reasonable expectation of privacy in general while in the

8 locker room.

9

10

b. Place of Search and Plaintiffs' Use of the Place

11

Searched

12

Plaintiffs assert that they had a reasonable

13 expectation of privacy against covert video surveillance

14 while in the locker room because common sense dictates 15 that while minimal intrusions of privacy are expected in

16 a locker room, no person could reasonably expect to be 17 secretly videotaped. [PIs.' Mem. P. & A. at 6.] 18 Plaintiffs argue that a locker room is a non-public area 19 used for private activities of showering, changing

20 clothes, and using the toilets and urinals. [Id. at 5.] 21

22

Defendants respond that Defendants Schneider and

23 Thompson did not violate Plaintiffs' Fourth Amendment

24 rights because Plaintiffs had a diminished, if any, 25 expectation of privacy while in the locker room. [Defs.' 26 Opp' n at 4, Defs.' Reply at 3.] Defendants argue that 27 the need for institutional security at a police station

28

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1 belies Plaintiffs' "common sense intuition" argument for

2 the reasonablility of Plaintiffs' expectation of privacy.

3 [Defs.' Opp'n at 5-7.]

4

5

Defendants also argue that (1) the continual flow of

6 visitors and fellow employees in the unlocked locker room

7 makes any expectation of privacy unreasonable, (2) while

8 Plaintiffs may hold a reasonable expectation of privacy

9 in the contents of their lockers, society does not

10 recognize an expectation of privacy for public areas such

11 as communal locker rooms, (3) the locker room here is

12 similar to locker rooms for school athletic teams, in

13 which courts have stated there is no reasonable

14 expectation of privacy, and (4) Plaintiffs routinely

15 changed clothes in the presence of one another and

16 overall police culture requires police officers to work

17 in close quarters such that it would be unreasonable to

18 believe that a locker room affords absolute privacy.

19 [Defs.' Mem. P. & A. at 8-9, Defs.' Opp'n at 7-8, Defs.'
20 Reply at 4.1

21

22

Plaintiffs counter that while a locker room is not as

23 exclusively private as a personal bedroom, it is not open

24 to the public at large either. [PIs.' Opp' n at 2, PIs.'

25 Reply at 1.] Plaintiffs assert that (1) they do not have

26 a diminished expectation of privacy in a locker room just

27 because they work at a police station, and (2) the

28

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1 communal nature of the locker room does not make their 2 expectation of privacy from covert video surveillance any 3 less reasonable, because there is a difference between 4 solitude and privacy. [Pls.' Opp'n at 2-3,Pls.' Reply 5 at 3-5.]

6

7

Here, Plaintiffs used the locker room to perform

8 private activities such as changing clothes and showering

9 and, indeed, the camera recorded Plaintiffs in various

10 states of undress. Plaintiffs aptly concede that minimal

11 intrusions are likely to occur and that they have no

12 reasonable expectation of privacy from those intrusions.

13 This does not diminish the reasonableness of a person's

14 expectation to be free from covert video surveillance.

15 See Taketa, 923 F.2d at 677 (finding that zones of

16 privacy may be created within which people may not

17 reasonably be videotaped, even when they do not own or

18 control the place searched or might not be able

19 reasonably to challenge a search at some other time or by

20 some other means) .6 Plaintiffs need not have an

21

22

6 In Taketa, the Court held that "[v]ideotaping of

suspects in public places, such as banks, does not

23 violate the Fourth Amendment; the police may record what

they normallr may view with the naked eye." 923 F.3d at 677. It cou d be argued that the covert video

24 surveillance was lawful because Defendant Schneider could

have stood and observed the same conduct that the camera

25 recorded in the locker room. This argument, however, is

26 premised on an overly broad interpretation of Taketa.

Taketa establishes that the police may record what the public can normally observe. It has been established 27 that the public could not observe Plaintiffs' conduct in

28

(continued ... )

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1 expectation of total privacy in order to have a

2 reasonable expectation that they will not be recorded

3 surreptitiously while changing clothes in a locker room.

4 Id. at 673 (IIPrivacy does not require solitude . . . .

5 [A]ccess of others does not defeat [people's] expectation

6 of privacy. II); Nerber, 222 F. 3d at 604 (IIEven if one

7 cannot expect total privacy while alone in another

8 person's hotel room (i. e., a maid might enter, someone

9 might peek through a window, or the host might reenter

10 unannounced), this diminished privacy interest does not

11 eliminate society's expectation to be protected from the

12 severe intrusion of having the government monitor private

13 activities through hidden video cameras. II) .

14

15

Defendants' assertion that the supreme Court in

16 O'Connor, 480 U.S. at 709, found a reasonable expectation

17 in a public employee's desk and cabinets, but "was not

18 prepared to do so for the office itself, II is an

19 overstatement of the authority. [Defs.' Mem. P. & A. at

20 8, Defs.' opp'n at 7.] In O'Connor, the Court held that

21 the following:

22

23

The Court of Appeals concluded that Dr. Ortega

24

had a reasonable expectation of privacy in his

25

office, and five Members of this Court agree

26

27

6( ••• continued)

28 the locker room.

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1

with that determination.

. On the basis of

2

this undisputed evidence, we accept the

3

conclusion of the Court of Appeals that Dr.

4

Ortega had a reasonable expectation of privacy

5

at least in his desk and file cabinets. 7

6

7 480 U.S. at 718. The holding in O'Connor does not

8 support Defendants' assertion.

9

10

Moreover, even if the Supreme Court has not

11 recognized a public employee's expectation of privacy in

12 his office, it does not follow that this precedent will

13 be extended to a locker room. Significant weight was

14 given to the relationship between an office and the

15 overall workplace, ~ at 715-16, which simply does not

16 apply to the locker room here. Also, the conduct in a

17 locker room is inherently more private than that which

18 takes place in a shared or private office.

19

20

Defendants also rely in vain on Sacramento County

21 Deputy Sheriffs' Assoc. v. county of Sacramento, 51 Cal.

22 App. 4th 1468 (1996), for the proposition that the locker

23 room's presence in a police station diminishes

24 Plaintiffs' expectation of privacy.

25

26

7 The search in O'Connor involved an extensive

search of a public employee's desk and cabinet within his

27 office; thus, there was no reason for the Court to

decide whether there was a reasonable expectation in his

28 office generally. O'Connor, 480 U.S. at 713-14.

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1

In Sacramento County, the Court found that there was

2 a long history of diminished privacy expectations in

3 prison because of security concerns, and that while the

4 other cases focused on inmates or visitors, their

5 holdings also applied to employees. Id. at 1478-83. A

6 shared office, out of public view, which was integral for

7 recording and releasing inmates' property, was held not

8 to be a private area partly because of the need for jail

9 security. Id. at 1482. Nevertheless, the court stated

10 that "deputy sheriffs may have a reasonable expectation

11 of privacy against being videotaped in certain portions

12 of the jail, such as the deputies' bathroom or locker

13 room (areas set aside for private activity). II Id. 14

15

While the facts here bear some similarity to those in

16 Sacramento County -- video surveillance in locations used

17 by employees not visible to the public where personal

18 belongings were stored -- there is a fundamental

19 difference between a locker room and a shared office.

20 Indeed, the Sacramento county Court recognized this

21 difference when it noted that deputies may have a 22 reasonable expectation of privacy in bathrooms and locker

23 rooms at a correctional facility.

24

25

conveniently, Defendants do not address this

26 language; instead, they analogize our case to Sacramento

27 County by using generalizations about institutional 28

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1 security because police stations and correctional 2 facilities are both governmental institutions with close 3 proximity to detained criminals. [Defs.' Opp'n at 6.] 4 Moreover, Defendants discuss the search location at such 5 a level of abstraction -- police stations and correction 6 facilities rather than locker rooms and shared 7 offices, that their reliance on Sacramento county is 8 unfounded.

9

10

Defendants' final contention, that the police locker

11 room is similar to a school athletic locker room where

12 athletes have no reasonable expectation of privacy, is

13 equally unpersuasive. [Id... at 8.] While courts have

14 found that student athletes have diminished expectations

15 of privacy because sports involve changing clothes and

16 showering in locker rooms that do not have individual

17 dressing rooms, no partition or curtains between shower

18 heads, or doors on some toilet stalls, these cases

19 involved athletes' reasonable expectations concerning

20 consented-to drug testing and not covert video

21 surveillance. 8 See« e. g., Vernonia School Dist. 47J v.

22 Acton, 515 U.S. 646, 657 (1995). Defendants cite this

23 case for the proposition that the Supreme Court has held

24

25

8 The holding in Vernonia is also distinguishable

26 from the facts here because the searches in Vernonia were

motivated by "the government's responsibility . . . as

27 guardian ana tutor of children entrusted to ltS care,"

and were found to be minimally intrusive. 515 U.S. at

28 658, 665.

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1 that there is no reasonable expectation of privacy in a

2 locker room; the Vernonia decision does not so hold.

3 [Defs.' Reply at 3.]

4

5

c. Societal understanding of Place Searched

6

Plaintiffs assert that their expectation to be free

7 from covert video surveillance has been recognized by

8 state law. [PIs.' Mem. P. & A. at 8 n.2.]

9

10

California has enacted several laws that prohibit or

11 regulate conduct in locker rooms and restrooms. See.

12 e.g., Cal. Penal Code §§ 647(k), 653(n); Cal. Labor Code

13 435. While the laws concerning video surveillance in

14 locker rooms were enacted after the relevant conduct in

15 this case, they represent society's understanding that a

16 locker room is a private place requiring special

17 protection.

18

19

d. Severity of the Search

20

Plaintiffs assert there is sufficient authority

21 holding that covert video surveillance constitutes an

22 extremely intrusive search. [PIs.' Mem. P. & A. at 6.]

23 Plaintiffs also assert that the intrusiveness of the

24 search was compounded because (1) Plaintiffs were never

25 notified that video surveillance, either covert or overt,

26 would be conducted, and (2) the locker room was not open

27 to suspects or arrestees. [I.d... at 8.] Plaintiffs

28

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1 contend that while covert video surveillance may not be

2 unreasonable in certain circumstances, it remains a

3 highly intrusive search technique. [PIs.' Opp'n at 3,

4 PIs.' Reply at 5.J

5

6

Defendants counter that the covert video surveillance

7 was not excessive because (1) it was not per se

8 unconstitutional, (2) there was no physical contact being

9 made, (3) the camera did not rove, (4) it did not record

10 the most private areas in the locker room, such as the

11 showers, (5) the surveillance only lasted a few days, (6)

12 it contained no audio, and (7) the tapes were not

13 improperly distributed. [Defs.' Mem. P. & A. at 11-12,

14 Defs.' Opp'n at 10-11, Defs.' Reply at 5.]

15

16

A court may take into account the severity of the

17 intrusion when analyzing whether a person's expectation

18 of privacy is reasonable. Nerber, 222 F.3d at 600.

19 Here, the parties take drastically different positions on

20 the severity of the covert video surveillance.

21 Plaintiffs' position that covert video surveillance is

22 particularly intrusive, however, is well supported by

23 authority9 and more persuasive. The Ninth Circuit has

24

9 Several cases discuss the severity of video

25 surveillance.

d State v. Ko me'ian, 970 F.2d 536,

26 551 (9th Cir. 1992) Kozinski, J., concurring) ("[E]very

court considering the issue has noted, video surveillance

27 can result in extraordinarily serious intrusions into

personal privacy."); United States v. Falls, 34 F.3d

28

(continued ... )

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1 held specifically that II [h] idden video surveillance is 2 one of the most intrusive investigative mechanisms

3 available to law enforcement. The sweeping,

4 indiscriminate manner in which video surveillance can

5 intrude upon us, regardless of where we are, dictates

6 that its use be approved only in limited circumstances. II

7 Nerber, 222 F.3d at 603. Moreover, Defendants provided

8 no notice to Plaintiffs that their conduct in the locker

9 room might be recorded. 10

11

While Defendants' position that visual searches are

12 less invasive than tactile searches is supported by

13 authority, Bond, 529 U.S. at 338 (quoting Terry v. Ohio,

14 392 U.S. 1, 17 (1968)), it is a general proposition that

15 fails to take into account the intrusiveness of recording

16 of someone's actions. See United States v. Gonzalez, 328 17 F.3d 543, 548 (9th Cir. 2003) (IIA person has a stronger

18 claim to a reasonable expectation of privacy from video

19 surveillance than against a manual search. II). The act of

20 recording Plaintiffs while in the locker room with the

21 "unblinking lens of [a] camera" distinguishes this search 22

23

9 ( ••• continued)

24 674, 680 (8th Cir. 1994) (lilt is clear that silent video surveillance . . . results in a very serious, some say

25 Orwellian, invasion of privacy."); United States v. Cuevas-Sanchez, 821 F.2a 248, 251 (5th Cir. 1987)

26 (holding that a camera monitoring all of a person's

activity "l?rovokes an immediate negative visceral 27 reaction: ~ndiscriminate video surveillance raises the
spectre of the Orwellian state.").

28

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1 from an average visual search and is far more intrusive

2 than a search of someone's property. Taketa, 923 F.2d at

3 677. Moreover, that the video surveillance here could

4 have been conducted in a more intrusive manner, recording

5 the officers in the showers, having an audio component,

6 or having a roving camera, in no way diminishes the

7 severity of the search.

8

9

Thus, considering the totality of the circumstances

10 and the relevant authority, Plaintiffs had a reasonable 11 expectation of privacy from covert video surveillance

12 while in the locker room. 13

14

3. Reasonableness of the Search

15

Defendants assert that even if Plaintiffs had a

16 reasonable expectation of privacy, the covert video

17 surveillance was constitutional because it was a 18 reasonable search by an employer under O'Connor. [Defs. ' 19 Mem. P. & A. at 10, Defs.' Opp'n at 9, Defs.' Reply at 20 4.] Defendants argue that Defendants Schneider's and 21 Thompson's conduct was necessary to maintain

22 institutional security and the integrity of OPD because

23 it was prompted by the theft of Larson's flashlight.

24 [Defs.' Mem. P. & A. at 11, Defs.' Opp'n at 10.] 25

26

Defendants also assert that there is no evidence. to

27 establish that Defendants Del Rio or Scharf had personal 28

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1 knowledge or were in any way involved with the search.

2 [Defs.' Mem. P. & A. at 12.]

3

4

Plaintiffs respond that Defendants' reliance on the

5 reasonableness standard set forth in O'Conner directly

6 contradicts Ninth Circuit authority. [PIs.' Reply at 5-

7 6.] They argue that this search was not an investigation

8 of work-related employee misconduct, but part of a

9 criminal investigation stemming from a criminal complaint

10 filed by Larson, and that detectives from the detective

11 bureau investigate crimes, but do not conduct internal

12 investigations. [PIs.' Opp' n at 5, PIs.' Reply at 5- 6. ]

13

14

To determine the reasonableness of a search requires

15 "'balanc[ing] the nature and quality of the intrusion on

16 the individual's Fourth Amendment interests against the

17 importance of the governmental interests alleged to

18 justify the intrusion. '" O'Connor, 480 U.S. at 719

19 (citing United States v. Place, 462 U.S. 696, 703

20 (1983)). It is well-settled that searches without

21 consent or authorized by a warrant are unreasonable,

22 except in certain circumstances. Id. (quoting Mancusi v.

23 DeForte, 392 U.S. 364, 370 (1968). A search by a public

24 employer for noninvestigatory, work-related purposes and

25 for investigations of work-related misconduct, however,

26 are judged by a reasonable cause, not a probable cause,

27 standard. Id. at 725-26 (finding that a public

28

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1 employer's interest in searching employees is

2 substantially different than the interest of law

3 enforcement because an employer is trying to ensure that

4 its agency operates effectively and efficiently) .

5

6

A public employer's search for evidence of criminal

7 conduct, on the other hand, does not benefit from the

8 reasonableness standard set forth in O'Connor. Taketa,

9 923 F.2d at 675 (holding that a law enforcement agency

10 can not "cloak itself in its public employer robes" when

11 searching for evidence to be used in a criminal

12 prosecution).

13

14

In Taketa, DEA agents physically searched the office

15 of Thomas O'Brien, a state agent working in the DEA's

16 airport office because there was suspicion he was

17 misusing "pen registers." l.!i.... at 668-69. While after
,
18 searching his office and finding evidence of misconduct,

19 the agents installed a hidden video camera to record

20 O'Brien's activities. Id. at 669. The court held that

21 it was not "unreasonable for the DEA agents to enter

22 O'Brien's office as a part of the internal investigation

23 that was directed at uncovering evidence of a DEA

24 employee's misuse of a pen register i" however, "the video

25 surveillance was not an investigation of work-related

26 employee misconduct . .

It was, rather, a search for

27 evidence of criminal conduct." Id. at 674-75. The

28

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1 Taketa and O'Connor holdings can be interpreted as 2 stating that when a law enforcement agency, as a public 3 employer, has reasonable cause to suspect a specific 4 employee of misconduct, it can conduct a minimal search 5 to confirm those suspicions; on the other hand, when a 6 law enforcement agency orchestrates a search to gain 7 direct evidence of a specific employee's confirmed 8 misconduct, it is not acting as an employer.

9

10

Plaintiffs have presented sufficient evidence that

11 the purpose of the search here was to gain evidence of

12 criminal conduct for a later prosecution. The covert

13 video surveillance was initiated because of Larson's

14 criminal complaint concerning the theft of his

15 flashlight. [Schneider Depo. at 101:8-101:18.] The

16 criminal complaint was given a case number, listed the

17 Penal Code section that was violated, had the

18 "prosecution desired" box checked, and was assigned to

19 Defendant Schneider, from the detective bureau. [~at

20 Ex. 112.] In other words, the procedures followed here

21 were the same that would have been followed had a person

22 filed a criminal complaint concerning a petty theft in a

23 private employer's office.

24

25

Defendant Schneider's search was not an attempt to

26 confirm suspicions of specific misconduct of an OPD

27 officer because there was no specific suspect. Defendant

28

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1 Schneider used the video surveillance as part of a

2 "sting" operation to lure the unknown thief into

3 committing another petty theft.

4

5

Defendants present no evidence that the motivation

6 for this search was to ensure that OPD operated

7 effectively and efficiently. They merely make a

8 conclusory assertion that this search was a governmental

9 search designed to investigate violations of workplace

10 rules and that Defendant schneider's sole focus was

11 institutional security and maintenance. [Defs.' Mem. P.

12 & A. at 10, Defs.' Opp'n at 9-10.] That Larson was a

13 fellow police officer and the theft took place on OPD

14 property does not automatically establish that this

15 search was an employer search to investigate misconduct.

16 Not only does this assertion disregard the holding in

17 Taketa, but to adopt Defendants reasoning would be to

18 create a per se rule that when a law enforcement agency

19 is investigating crimes by its employees or on its

20 property, the probable cause standard does not apply.

21

22

Thus, no reasonable jury could conclude that this

23 search was an employer search designed to discover

24 employee misconduct; the court concludes the search would

25 be governed by the probable cause standard.

26 / / / 27 / / /
28

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1

4. Conclusion

2

Plaintiffs have satisfied their burden of

3 demonstrating that there are no genuine issues of

4 material fact whether their Fourth Amendment rights were

5 violated. No reasonable jury could find that Plaintiffs

6 did not have a reasonable expectation of being free from

7 covert video surveillance while in OPD's locker room, or

8 that the search was reasonable under the probable cause

9 standard without a warrant. Plaintiffs' Motion for

10 Summary Judgment is granted to the extent that it

11 requests a finding of liability against Defendant

12 schneider on the Fourth Amendment claim. Defendants'

13 Motion for Summary Judgment is denied to the extent that

14 it requests a judgment that Defendant Schneider, Del Rio,

15 and Scharf10 did not violate Plaintiffs' Fourth Amendment

16 rights.

17

18 B. Qualified Immunity

19

n[G]overnment officials performing discretionary

20 functions generally are shielded from liability for civil

21 damages insofar as their conduct does not violate clearly

22 established statutory or constitutional rights of which a

23 reasonable person would have known." Harlow v.

24 Fitzgerald, 457 U.S. 800, 818 (1982). Plaintiffs need

25

26
10 As to Defendants Del Rio and Scharf, there are 27 ~enuine issues of material fact concerning their
~nvolvement and knowledge of this search. ~ Section 28 IV.

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1 not cite a case specifically on point establishing the 2 official action as unlawful, but they must establish that

3 in light of pre-existing law the unlawfulness of

4 Defendants I actions is apparent. Anderson v. Creighton,

5 483 U. S. 635, 640 (1987). "The contours of the right

6 must be sufficiently clear that a reasonable official

7 would understand that what he is doing violates that

8 right." lJ:L.

9

10

These issues, the existence of clearly established

11 law and whether the defendant acted reasonably in light 12 of the clearly established law, are questions of law. 13 Elder v. Holloway, 510 U.S. 510, 516 (1994) i Hunter v. 14 Bryant, 502 U.S. 224, 228 (1991). In Harlow, the Court 15 stated: 16

17

On summary judgment, the judge appropriately may

18

determine, not only the currently applicable

19

law, but whether that law was clearly

20

established at the time an action occurred. If

21

the law at that time was not clearly

22

established, an official could not reasonably be

23

expected to anticipate subsequent legal

24

developments, nor could he fairly be said to

25

"know" that the law forbade conduct not

26

previously identified as unlawful .... If the

27

law was clearly established, the immunity

28

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1

defense ordinarily should fail, since a

2

reasonably competent public official should know

3

the law governing his conduct. Nevertheless, if

4

the official pleading the defense claims

5

extraordinary circumstances and can prove that

6

he neither knew nor should have known of the

7

relevant legal standard, the defense should be

8

sustained. But again, the defense would turn

9

primarily on objective factors.

10

11 Harlow, 457 U.S. at 818-19. If an officer's actions are

12 objectively reasonable under the circumstances and in

13 light of the clearly established law, then qualified

14 immunity should be found. Anderson, 483 U.S. at 641. 15 "If the officer's mistake as to what the law requires is 16 reasonable, however, the officer is entitled to the

17 immunity defense." Saucier v. Katz, 533 U.S. 194, 205 18 (2001).

19

20

1. Constitutional Violation

21

Defendants contend that Defendant Schneider is

22 protected by qualified immunity because Plaintiffs have

23 not established a Fourth Amendment violation. [Defs. '

24 Opp'n at 11-14.]

25

26

This argument fails because as discussed above in

27 Section V.A, there are no genuine issues of material fact

28

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1 concerning whether Defendant Schneider violated

2 Plaintiffs' Fourth Amendment rights.

3

4

2. Clearly Established Law

5

Plaintiffs argue that the law concerning covert video

6 surveillance was clearly established in 1996. [PIs. '

7 Mem. P. & A. at 10.J They assert that although no

8 authority is on point, numerous cases have held that

9 video surveillance is particularly intrusive on people's

10 privacy interests and that a reasonable officer would

11 have recognized that covert video surveillance of a

12 locker room without a warrant violates the Fourth

13 Amendment. [Id. at 10-12.J

14

15

Defendants counter that the law concerning covert

16 video surveillance of a locker room was not clearly 17 established in 1996. [Defs.' Opp' n at 14.J They argue

18 that California law did not require a warrant for video

19 surveillance of a locker room until January 1, 1999, and

20 that there is no federal authority on point. ~ at 14-

21 15.] Defendants also assert that there is no bright line

22 test to determine if a search is reasonable under

23 O'Conner. [Defs.' Mem. P. & A. at 10.J

24

25

Plaintiffs respond that whether or not the O'Conner

26 reasonableness standard applies, it was "apparent" that 27 Defendant Schneider's actions violated the Fourth

28

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1 Amendment under existing authority. [PIs.' Reply at 6-

2 7.J

3

4

In 1996, the general principles and tests concerning

5 the Fourth Amendment were clearly established, see. e. g. ,

6 Katz, 389 D.S. at 351-52, and there were numerous cases

7 holding that video surveillance is a significant

8 intrusion on people's privacy. See Taketa, 923 F.2d at

9 677, Koyomejian, 970 F.2d at 551; Falls, 34 F.3d at 680;

10 Cuevas-Sanchez, 821 F.2d at 251. Most importantly, in

11 1991, the Ninth Circuit held that covert video

12 surveillance of a person in a shared office violated the

13 Fourth Amendment. Taketa, 923 F.2d at 678. While there

14 were no decided cases concerning warrantless, covert 15 video surveillance in a locker room, as discussed above, 16 the level of privacy is inherently greater in a locker

17 room compared to an office. Thus, it would have been

18 apparent to a reasonable officer in 1996 that a covert

19 video search of a locker room likely would violate the 20 Fourth Amendment.

21

22

In light of the Court's ruling in section V.A.3, it

23 is immaterial that the 0' Connor test requires a case-by-

24 case analysis. Also, that the precise contours of video

25 surveillance and the Fourth Amendment are still not

26 defined today, Gonzalez, 328 F.3d at 548, does not

27 suffice to rebut that in 1996, it would have been 28

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1 apparent to a reasonable officer that the search here

2 likely violated the Fourth Amendment.

3

4 C. Monell Claim

5

Defendants assert that Defendants City and OPD cannot

6 be liable under the doctrine of respondeat superior for

7 any § 1983 violation of its employees, unless the

8 constitutional violation was pursuant to a policy,

9 custom, or practice of Defendant City. [Defs.' Mem. P. &

10 A. at 13, Defs.' Reply at 6-7.] Defendants contend that

11 Plaintiffs have failed to allege a "particular" policy,

12 custom, or practice which caused the constitutional

13 violation. [Defs.' Mem. P. &A. at 13.]

14

15

Plaintiffs respond that the case law and Defendant

16 Scharf's deposition testimony establish that he was the

17 official policy maker for Defendant OPD, which suffices

18 to establish liability for Defendant City under § 1983. 19 [Pls.' Opp'n at 6.] plaintiffs contend that Defendant

20 Scharf knew about and authorized the covert surveillance.

21 [Id. at 7-8.] 22

23

Defendants argue that the excerpts of the deposition

24 testimony cited by Plaintiffs are taken out of context

25 and insufficient to establish a Monell claim. [Defs. ' 26 Reply at 8-9.J

27 / / /

28

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1

A municipality may not be held liable for the

2 Constitutional torts of its officers under a respondeat

3 superior theory. See Monell v. Dep't of Soc. Serv., 436

4 U.S. 658, 691 (1978). A plaintiff in a § 1983 case can 5 establish municipal liability in one of three ways. ~

6 Gillette v . Delmore, 979 F. 2d 1342, 1346 (9th Cir. 1992).

7 "First, the plaintiff may prove that a city employee

8 committed that alleged constitutional violation pursuant 9 to a formal governmental policy or a longstanding

10 practice or custom which constitutes the standard

11 operating procedure of the local governmental entity."

12 Id. (internal quotations omitted) (citing Jett v. Dallas

13 Indep. Sch. Dist., 491 U.S. 701, 737 (1989) i Monell, 436 14 U.S. at 690-91). A plaintiff cannot demonstrate the 15 existence of a municipal policy or custom based solely on

16 a single occurrence of unconstitutional action by a 17 non-policymaking employee. See McDade v. West, 223 F.3d

18 1135, 1141 (9th Cir. 2000) ("Only if a plaintiff shows 19 that his injury resulted from a I permanent and well 20 settled I practice may liability attach for injury 21 resulting from a local government custom.") (quoting 22 Thompson v. City of 1012 Ang§les, 885 F.2d 1439, 1444 (9th 23 Cir. 1989)).

24

25

"Second, the plaintiff may establish that the

26 individual who committed the constitutional tort was an

27 official with 'final policy-making authority I and that 28

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1 the challenged action itself constituted an act of 2 official governmental policy. 11 Gillette, 979 F. 2d at 3 1346 (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 4 480-81 (1986); MCKinley v. city of Eloy, 705 F.2d 1110,

5 1116 (9th Cir. 1983)). "Third, the plaintiff may prove

6 that an official with final policy-making authority

7 ratified a subordinate's unconstitutional decision or

8 action and the basis for it." Gillette, 979 F. 2d at

9 1346-47 (citing City of St. Louis v. Praprotnik, 485 U.S.

10 112, 127 (1988); Hammond v. county of Madera, 859 F.2d

11 797, 801-02 (9th Cir. 1988)). 12

13

Defendants correctly argue that there is no evidence

14 in the record that Plaintiffs' injuries resulted from a 15 policy, practice, or custom of Defendant City; however, 16 Plaintiffs' Monell claim is not premised on such a

17 theory. Plaintiffs' Monell theory is that Defendant 18 Scharf, as a policy maker for Defendant City, authorized 19 or otherwise ratified the unconstitutional search.

20 [PIs.' Opp' n at 6.] Defendants have not satisfied their

21 initial burden of showing that there are no genuine
22 issues of material fact concerning Plaintiffs' Monell
23 claim.
24 III 25 III 26 III 27 III
28

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1

Accordingly, the court denies Defendants' Motion to

2 the extent that it requests judgment on Plaintiffs'

3 Monell claim against Defendant City. 11

4

5 D. Supervisor Liability Under § 1983

6

Additionally, Defendants contend that Defendants

7 Scharf and Del Rio are liable, as supervising officers,

8 under § 1983 only if they played an affirmative part in

9 the alleged action, or knew of the constitutional

10 violation and failed to prevent it. [Defs.' Mem. P. & A.

11 at 14, Defs. I Reply at 7.] Defendants argue that

12 Defendants Scharf and Del Rio played no role and had no

13 knowledge of the covert video surveillance. [Defs.' Mem.

14 P. & A. at 15.]

15

16

Plaintiffs respond that Defendants Scharf and Del Rio

17 are liable because there is evidence that they

18 participated in or had direct knowledge of the violation

19 and failed to stop it. [PIs.' Opp 'n at 9.] Concerning

20 Defendant Scharf's involvement, Plaintiffs argue that (1)

21 Defendant Schneider was told by John Johnson, the

22 Sergeant in charge of Internal Affairs and who reported

23 directly to Defendant Scharf, that the covert

24 surveillance was authorized, (2) Joe Sifuentes, who did

25 wiring for the OPD computers, was told by Defendant

26

27
11 Plaintiffs did not move for summary judgment on 28 this issue.

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1 Scharf that "Oh, it's you that's taking it down," when

2 Sifuentes was spooling wires that were connected to the

3 camera before its presence was known, (3) Defendant

4 Scharf himself testified in his deposition that he would

5 normally be consulted before such surveillance was

6 initiated, and (4) although Defendant Scharf testified

7 that it would be his understanding that a warrant would

8 be required, after the lawsuit was filed, he told

9 Defendant Schneider that there was nothing to worry about

10 and Defendant schneider did nothing wrong. [Id. at 7-8.]

11

12

As to Defendant Del Rio, Plaintiffs contend that he

13 had knowledge of the covert videotaping because (1)

14 Defendant Schneider's police report had a handwritten 15 note that the equipment was from Defendant Del Rio, (2)

16 the only unit that had a camera like the one used was the

17 narcotics unit, which Defendant Del Rio oversaw, and (3)

18 the stated policy in the unit was that Defendant Del Rio

19 would have to authorize a loan of equipment to another

20 unit. [Id.]

21

22

Defendants respond that Plaintiffs merely rely on

23 "attenuated supposition upon supposition" in arguing that

24 Defendants Scharf and Del Rio had knowledge of or 25 participated in the covert video surveillance. [Defs. ' 26 Reply at 8.]

27 / / /

28

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1

Under § 1983, supervisors can only be held liable if

2 "they play an affirmative part in the alleged deprivation

3 of constitutional rights." Graves v. City of Coeur

4 D'Alene, 339 F.3d 828, 848 (9th Cir. 2003) (quoting Rise

5 v. Oregon, 59 F.3d 1556, 1563 (9th Cir. 1995). This

6 means the supervisor has to "set in motion a series of

7 acts by others . . . , which he knew or reasonably should

8 have known, would cause others to inflict the

9 constitutional injury." Id. (quoting Larez v. City of

10 Los Angeles, 946 F.2d 630,646 (9th Cir. 1991)).

11

12

Defendants have satisfied their initial burden of

13 presenting evidence that Defendants Scharf and Del Rio

14 played no affirmative role in this search. Plaintiffs,

15 however, have presented evidence that it was the normal

16 operational protocol for Defendant Scharf to have

17 knowledge of such a search. Also, there is evidence that

18 it was normal operational protocol that Defendant Del Rio

19 had to approve the use of the camera used here. Further,

20 evidence has been presented upon which an inference can

21 be made that Defendant Scharf had knowledge of the covert

22 video surveillance before its existence was publicly

23 known. AS the non-moving party on this issue, all

24 inferences are to be drawn in Plaintiffs' favor. Thus,

25 Plaintiffs have satisfied their resulting burden by

26 presenting evidence that successfully controverts

27 Defendants' evidence, creating genuine issues of material

28

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1 fact concerning Defendants Scharf's and Del Rio's 2 knowledge and involvement.

3

4

Therefore, the court denies Defendants' Motion to the

5 extent that it requests judgment in favor of Defendants 6 Scharf and Del Rio on plaintiffs' § 1983 claim.

7

8 E. Defendant Thompson Acted Under Color of State Law for

9

Purposes of the Fourth Amendment and § 1983

10

Plaintiffs contend that Defendant Thompson, even

11 though he is a private actor, nonetheless acted under the

12 "color of law" for § 1983 purposes. [PIs.' Mem. P. & A.

13 at 12.] Plaintiffs argue that Defendant Thompson

14 conspired with Defendant schneider to deprive Plaintiffs

15 of their Fourth Amendment rights because he knew that

16 officers used the locker room to change clothes.when he

17 installed the camera. [Id.] Plaintiffs assert that

18 Defendants Thompson and Schneider had the purpose of

19 secretly monitoring OPD's officers in a private location. 20 [Id. at 14.]

21

22

Defendants respond that there was no conspiracy

23 between Defendants Thompson and Schneider to violate

24 Plaintiffs' rights because they never had the required 25 "meeting of the minds." [Defs.' Opp' n at 17.] 26 Defendants aver that while Defendant Thompson installed 27 the camera knowing that people would be changing clothes 28

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1 in the locker room, he was under the impression that the 2 installation was approved by Defendant Schneider's 3 supervisors. [Id. at 17-18.] Defendants also contend 4 that if Defendant Thompson did act under the color of 5 state law, then he is entitled to qualified immunity. 12 6 [Defs.' Mem. P. &A. at 16.]

7

8

Plaintiffs counter that they have presented

9 sufficient evidence that Defendant Thompson had knowledge

10 of, and participated in, the unlawful act, and his

11 ignorance of the law provides no defense for his actions.

12 [Pls.' Reply at 9.]

13

14

Whether a private party engaged in state action is a

15 highly factual question. Brunette v. Humane Society of

16 Ventura County, 294 F.3d 1205, 1209 (9th Cir. 2002)

17 (citing Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir.

18 1983)). There are four tests to determine if private

19 action actually constitutes state action: Joint action,

20 symbiotic relationship, public functions, governmental

21 / / /

22 / / /

23 / / /

24

25

12 Defendants are incorrect for two reasons: (1)

26 private parties do not enjoy qualified immunity

Richardson v. McKnight, 521 U.S. 399( 412 (1997), wyatt

27

v. co

c nc

eorlne1l

504 U.S. ng covert

158, 164-169 (1992)! and (2) the aw video surveillance 1n a locker room was

28 clearly established. See Section V.B, supra.

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1 coercioni 13 , 14 only one test need be satisfied. Id. at

2 1210; Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir.

3 2003); Brentwood Academy v. Tennessee Secondary School

4 Athletic Ass'n, 531 U.S. 288, 303 (2001) (" [T]he

5 implication of state action is not affected by pointing

6 out that the facts might not loom large under a different

7 test.").

8

9

1. Joint Action

10

A joint action exists when the private party is a

11 "willful participant" with the State or its agents in

12 activity that deprives a person of their constitutional

13 rights, Brunette, 294F.3d at 1210 (citing Dennis v.

14 Sparks, 449 U.S. 24, 27 (1980)), and the private party's

15 actions are "inextricably interwined" with the State I s

16 actions. Id. (citing Mathis v. Pac. Gas & Elec. Co., 75

17 F.3d 498, 503 (9th Cir. 1996)). A showing that a private

18

19 13 Plaintiffs argue that Defendant Thompson's
20 actions satisfy only the joint action test.

21

14 Another panel of the Ninth Circuit held that

22 there are the following four tests: (1) public function,

23

(2) joint coercion,

aancdtio(n4~

(3) governmental compulsion or governmental nexus. Kirtley, 326 F.3d

at 1092. While the Kirtley Court defines the public

24 function test the same way as the Brunette Court, what it

names the "joint action test" is defined similarly to the

25 Brunette Court's "symbiotic relationship test." Compare

Kirtley, 326 F.3d at 1093-94 with Brunette, 294 F.3d at

26 1213-14. Also, the Kirtley Court's "nexus" test is

similar to the Brunette Court's "joint action test."

27 com~are Kirtley, 326 F.3d at 1094-95 with Brunette, 294

F.3 at 1211-13. This Court will use the "joint action"

28 test as defined in Brunette.

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1 party and state actors conspired to violate a person's

2 constitutional rights will satisfy the joint action test

3 as well. Id.

4

5

To show a conspiracy between private and state actors

6 for § 1983 purposes, there must be an agreement or

7 meeting of the minds to violate a person's constitutional

8 rights. Fonda v. Gray, 707 F.2d 435, 438 (9th Cir.

9 1983) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,

10 152 (1970)). A private party's mere acquiescence to the

11 unconstitutional demands of a state actor is

12 insufficient; however, it is also not necessary to show

13 that a private party knew the exact parameters of the

14 plan. Id. "A private party need only share the general

15 conspiratorial obj ective." J.d... "[T] he accused must have

16 had a specific intent to do an unlawful act or to do a

17 lawful act by unlawful means." People v. Bowman, 156

18 Cal. App. 2d 784, 797 (1958).

19

20

In Fonda, the Federal Bureau of Investigation ("FBI")

21 requested that a bank turn over Fonda's bank records.

22 Fonda, 707 F.2d at 436-37. After first requesting that

23 the FBI seek a warrant, the Bank turned over the records

24 after they were told it was a matter of national

25 security. J.d... The Court held that no conspiracy existed

26 because the bank employees were unaware of the

27 government's objectives in destroying Fonda's credibility

28

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1 when they turned over the records and the bank employees

2 had no affirmative duty to learn the government's 3 objectives. Id. at 438.

4

5

Here, the facts concerning Defendant Thompson's

6 involvement are not disputed; however, the parties 7 disagree about their legal effect. As discussed above in

8 Section III, it is uncontroverted that Defendant Thompson

9 installed the surveillance equipment in the locker room

10 at the request of Defendant Schneider, he subjectively 11 knew that people used the locker room to change their 12 clothes, and he was told by Defendant Schneider that 13 Defendant Schneider had obtained approval for the

14 installation of the camera from his supervisors.

15 [Thompson Depo. at 10:16-10:22, 13:15-13:17, 14:4-14:6.]

16

17

As discussed above in Section V.A, the unlawful act

18 here was the covert video surveillance of Plaintiffs in

19 the locker room, not the mere act of installing recording

20 equipment in the locker room. Defendants' evidence, 21 making all inferences in the light most favorable to 22 Defendants, the non-moving party on this issue, 23 establishes that Defendants Schneider and Thompson simply 24 conspired to install a camera in the locker room. 25 Thompson's subjective knowledge that the officers would 26 be changing their clothes in the locker room does not 27 suffice to establish that he was aware of Defendant 28

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1 Schneider's general objective to record Plaintiffs

2 covertly while in the locker room. While Defendant 3 Thompson need not know every detail of the conspiracy, 4 here, there is no evidence that he acted with the intent 5 of furthering the general conspiratorial goal.

6

7

The facts here resemble those in Fonda, i.e., the

8 evidence establishes that Defendant Thompson acquiesced

9 to Defendant Schneider's request to install the camera.

10 There is no evidence that Defendant Thompson was aware of

11 Defendant Schneider's improper objectives and Defendant

12 Thompson was under no duty to discover these improper 13 obj ectives .15

14

15

Thus, the Court denies Plaintiffs' Motion to the

16 extent that it requests judgment against Defendant

17 Thompson on Plaintiffs' § 1983 claim. While the Court

18 finds that there is insufficient evidence before it that

19 Defendants Schneider and Thompson conspired, Defendants'

20 Motion does not move for judgment for Defendant Thompson

21 on this ground. [Defs.' Mem. P. & A. at 16.J

22 / / /

23 / / /

24 / / /

25

26

15 The Court notes that while conspiracy is only one

theory of establishing joint action, Plaint~ffs have not

27 argued that Defendant Thompson was a willful participant

with the state actors whose actions were "inextricably

28 interwined" with the State.

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1 F. . Defendant Thompson's Good Faith Defense

2

Defendants contend Defendant Thompson is protected

3 from liability by a "good faith defense" because (1) he

4 simply assisted his friend install a video camera, which

5 he thought was approved by Defendant Schneider's

6 supervisors, (2) there is no evidence he knew his

7 actions were illegal, and (3) he thought his actions were

8 legal because he performed them at the direction of a

9 police officer and there was no state law banning such

10 actions at the time. [Defs.' Mem. P. & A. at 16-17,

11 Defs.' Opp 'n at 18-19.J 12

13

Plaintiffs respond that the Supreme court and the

14 Ninth Circuit have never recognized a good faith defense

15 for a private party who conspires with a state actor to

16 violate someone's civil rights. [PIs.' Opp'n at 10, 17 PIs.' Reply at 9.J Plaintiffs contend that the

18 establishment of a good faith defense would be improper

19 because the policy rationale for why qualified immunity

20 does not apply to private parties belies any argument for

21 a good faith defense. [PIs.' Opp' n at 10.]

22 Specifically, Plaintiffs contend that since private

23 parties do not have the same accountability to the public

24 as actual government employees, the establishment of a 25 good faith defense would serve to encourage, not

26 discourage, private parties from engaging in joint action

27 / / /

28

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1 with the government that may deprive people of their

2 constitutional rights. [Id. at 10.]

3

4

Defendants counter that (1) the Supreme court and the

5 Ninth Circuit have held that there "may" be a good faith

6 defense for private parties sued pursuant to § 1983, (2)

7 the defense is recognized by other circuits, and (3)

8 Plaintiffs have presented no evidence that Defendant 9 Thompson did not act in good faith when installing the

10 camera at Defendant Schneider's request. [Defs.' Reply

11 at 9-11.]

12

13

The Supreme Court and the Ninth Circuit never have

14 explicitly recognized a good faith defense for private

15 parties sued pursuant to § 1983. In holding that private

16 actors did not enjoy qualified immunity, the Supreme

17 Court stated the following: 18

19

[w]e do not foreclose the possibility that private

20

defendants faced with § 1983 liability. . could be

21

entitled to an affirmative defense based on good

22

faith and/or probable cause or that § 1983 suits

23

against private, rather than governmental, parties

24

could require plaintiffs to carry additional burdens.

25

Because those issues are not fairly before us,

26

however, we leave them for another day.

27 / / /

28

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1 wyatt, 504 U.S. at 169. Citing Wyatt, the Ninth Circuit

2 declined to apply qualified immunity to private actors,

3 holding it did not foreclose the possibility of a private

4 party asserting a good faith defense. Jensen v. Lane 5 County, 222 F.3d 570, 580 n.5 (9th Cir. 2000).

6

7

Defendants advance no grounds why this Court should

8 adopt a good faith defense for a private party; mere

9 assertion that both the Supreme Court and the Ninth

10 Circuit have not foreclosed the possibility of such a 11 defense, and that other circuits apply it, is woefully

12 insufficient. Moreover, they suggest no standards by

13 which this Court should apply such a defense, except for

14 citing a Third Circuit case for the proposition that the

15 private actor's subjective state of mind is relevant.

16 [Defs. I Mem. P. & A. at 16 (citing Jordan v. Fox. 17 Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1277 (3d

18 Cir. 1994).J Such conclusory arguments do not persuade

19 the Court that a good faith defense should be applied

20 here.

21

22

Nevertheless, despite Defendants' unpersuasive

23 arguments on this issue, the Court will further examine

24 it. 25

26

In Harlow, the Supreme Court changed the long-

27 standing standard that an officer who pled a "qualified"

28

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1 or "good faith" defense had to satisfy both subjective 2 and objective elements. Harlow, 457 U.S. at 815-19. The 3 Court held that the need for an officer to prove his 4 subjective belief resulted in protracted litigation on 5 insubstantial claims. Id. at 815-19. The Harlow Court 6 formulated the modern, purely objective, "qualified 7 immunityl1 16 as discussed above in Section V. B to provide 8 greater protections for officers.

9

10

The Supreme Court in Wyatt held that qualified

11 immunity's broad protections are not transferable to

12 private parties because the general rationales of

13 qualified immunity are not applicable. 504 U.S. at 167-

14 68. The Court stated as follows,

15

16

Qualified immunity strikes a balance between

17

compensating those who have been injured by

18

official conduct and protecting government's

19

ability to perform its traditional functions.

20

Accordingly, we have recognized qualified

21

immunity for government officials where it was

22

necessary to preserve their ability to serve the

23

public good or to ensure that talented

24

candidates were not deterred by the threat of

25

26 16 The Harlow Court's qualified immunity theory was
27 not a defense to liability as the old concept was, but was an immunity from suit, like absolute immunity.
28 Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

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1

damages suits from entering public service. In

2

short, the qualified immunity recognized in

3

Harlow acts to safeguard government, and thereby

4

to protect the public at large, not to benefit

5

its agents.

6

7 Id. (quotation marks and citations omitted). It was

8 after this analysis that the Court concluded that a

9 private party may assert a good faith defense. ~ at

10 169.

11

12

Harlow's creation of a new form of broad qualified

13 immunity, and Wyatt's failure to extend such a protection

14 to private parties, have not overruled the good faith

15 defense that existed before these decisions. In other

16 words, the law concerning a private party's defense to §

17 1983 remains unchanged from the law as it existed pre-

18 Harlow. This interpretation does not answer the question

19 whether a private party was permitted to bring a pre-

20 Harlow good faith defense in this situation.

21

22

The Court need not answer it, however, because the

23 good faith defense asserted by Defendant Thompson would

24 include both subjective and objective components. 17 As

25

26

17 If a good faith defense consisted of a purely

objective standard it would be the equivalent of the

27 Harlow qualified immunit¥ defense. If the good faith

defense was merely a subJective standard, this would

28

(continued... )

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1 discussed above in Section V.B, the law concerning covert 2 video surveillance was clearly established in 1996. 3 Thus,' even if Defendant Thompson could assert a pre4 Harlow good faith defense, he does not satisfy the 5 objective aspect of the test.

6

7

Accordingly, the court denies Defendants' Motion to

8 the extent it requests judgment for Defendant Thompson.

9

10 G. Statute of Limitations on Plaintiffs State Law Claims

11

Defendants contend that Plaintiffs' claims are barred

12 for failure to comply with the California Tort Claims

13 Act, which requires that a written claim for damages be

14 brought within six months of the injury. [Defs.' Mem. P.

15 & A. at 18, Defs.' Opp'n at 19-20.] Defendants argue

16 that the injury occurred when Harris discovered the video

17 tape in April or May 2003, and that Plaintiffs' claims

18 were submitted on July 15, 2004, and August 20, 2004,

19 more than one year after the tape was discovered.

20 Accordingly, Defendants assert the claims are untimely.

21 [Defs.' Mem. P. & A. at 19.]

22

23

Plaintiffs respond that their claims are not barred

24 under the California Tort Claims Act because (1) Harris

25 did not tell Plaintiffs Trujillo or Quon about the tape

26

27

17( ••• continued)

essentiall¥ create an "ignorance of the law" defense,

28 which is wJ.dely disapproved.

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1 until August or September 2003, and they filed a tort

2 claim and a petition to file a late tort claim on August

3 20, 2004, and (2) the rest of the class was not aware of

4 the tape until February 2004. [PIs. 1 Opp' n at 14.] 5 Plaintiffs contend that Defendants' argument that the

6 statute of limitations began to accrue on the date Harris

7 discovered the tape is unsupported by authority because

8 the limitations period does not begin to accrue until

9 Plaintiffs knew or should have known about the injury:

10 August or September 2003 for Plaintiffs Trujillo and

11 Quon, and February 2004 for the rest of the class.

12 [PIs.' Opp'n at 14-15.] Plaintiffs also argue that

13 Defendants waived the statute of limitations defense by

14 denying their claims on the merits. [rd. at 16.] 15

16

Defendants counter that Harris knew or should have

17 known of the injury when he discovered the tape and 18 watched it and that it is immaterial that the rest of the

19 named Plaintiffs or class Plaintiffs were aware of the

20 injury. [Defs.' Reply at l3.] 21

22

California law requires that a tort claim be filed

23 within six months of the cause of action'S accrual. Cal.

24 Gov. Code § 911.2(a). A cause of action accrues when the 25 plaintiff discovers his or her injury and the negligent

26 cause thereof. Rivas v. Safety-Kleen Corp., 98 Cal. App.

27 4th 218, 224 (2002). " [T]he limitations period begins 28

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1 once the plaintiff . . has notice or information of

2 circumstances to put a reasonable person on inquiry .

3 A plaintiff need not be aware of the specific 'facts'

4 necessary to establish the claim; that is a process

5 contemplated by pretrial discovery. Once the plaintiff

6 has a suspicion of wrongdoing, and therefore an incentive

7 to sue, she must decide whether to file suit or sit on

8 her rights. II Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103,

9 1110-11 (1988). In other words, lithe plaintiff is

10 charged with this awareness as of the date he or she

11 suspects or should suspect that the injury was caused by

12 someone' s wrongful act. II Brandon G. v. Gray, 111 Cal. 13 App. 4 th 29, 35 (2003).

14

15

Plaintiffs correctly argue that it would be illogical

16 for the statute of limitations for Plaintiffs' claims to

17 begin to accrue when Harris discovered the video in April

18 or May 2003. They had no reason to believe their Fourth

19 Amendment rights were violated because Harris did not

20 inform them about the tape. Accordingly, the limitation

21 period for Plaintiffs Trujillo and Quon began to accrue

22 in August or September 2003, when Harris informed them

23 about the videotaping. The statute of limitations for

24 the remaining Plaintiffs' claims began to accrue in 25 February 2004, when the surveillance became publicly

26 known.

27 / / /

28

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1

Plaintiffs Anderson's, Bernard's, and Pefferle'sB

2 tort claim filed on July 15, 2004, was filed within the

3 limitations period, as it was filed within six months of

4 February 2004. Plaintiffs Trujillo's and Quon's claim, 5 while filed on August 23, 2004, was filed with a proper

6 application for an extension of time. [Eliasberg Decl.

7 at Ex. 1 in PIs.' Decls. in Opp'n.] Plaintiffs 8 Trujillo's and Quon's claim was denied on the merits,

9 which establishes that their application for an extension 10 of time was accepted.19 [Id. at Ex. 2.] Thus, Plaintiffs

11 Trujillo's and Quon's claim was filed before the 12 limitations period expired.

13

14
18 The tort claim was also filed by steven Hurst, 15 Jim Renstrom, Ron Dupuis, Keith Henderson, and Nicko
Carcich. [Ex. B in Disenhouse Decl.] That the tort
16 claim listed Does 1-250 does not establish that it was filed on behalf of the class.
17
19 California Government Code § 911.8 states as 18 follows:

19

(a) Written notice of the board's action upon

the ap~lication shall be given in the manner

20

prescr1bed by Section 915.4.

21

(b) If the application is denied, the notice

22

shall include a warning in substantially the

following form: . . .

23

"If you wish to file a court action on this

24

matter, you must first petition the appropriate

court for an order relieving you from the

25

provisions of Government Code Section 945.4

(claims presentation requirement). See

26

Government Code Section 946.6. Such petition must be filed with the court within six (6)

27

months from the date ¥our application for leave

to present a late cla1m was denied.. "

28

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1

While it is unclear whether Plaintiff Ansman's and

2 the class's tort claim filed on August 23, 2004, was

3 filed timely /0 Defendants have waived any statute of

4 limitations defense. If Plaintiff Ansman's and the

5 class's tort claim was filed untimely, Defendant City was

6 required to notify them that their claim was untimely. 7 Cal. Gov. Code § 911. 3 (a) .21 Failure to provide this 8 notice to Plaintiff Anaman and the class waived

9 Defendants' statute of limitations defense. Cal. Gov. 10 Code § 911.3(b).22

11

20 There is no evidence in the record about the 12 specific date the surveillance became public knowledge, 13 other than the month of February 2004. If Plaintiffs
should have known of the surveillance on February 1, 14 2004, then the tort claim filed with the City on August
23, 2004, is untimely. On the other hand, if the 15 limitations period began to accrue on February 26, 2004,
then the tort claim would have been timely.

16

21 California Government Code § 911.3(a) states as

17 follows:

18

When a claim that is required by section 911.2 to be presented not later than six months after

19

accrual of the cause of action is presented after such time without the application provided

20

in Section 911.4, the board or other person designated by it may, at any time within 45 days

21

after the claim is presentea, give written notice to the person presenting the claim that

22

the claim was not filed timely and that it is being returned without further action.

23

22 California Government Code § 911.3(b) states as

24 follows:

25

Any defense as to the time limit for ~resenting a claim described in subdivision (a) ~s waived

26

by failure to give the notice set forth in subdivision (a) within 45 days after the claim

27

is presented, except that no notice need be given and no waiver shall result when the claim

28

(continued ... )

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1

Defendants' Motion is denied to the extent it asserts

2 Plaintiffs did not comply with the notice requirement of

3 the California Tort Claims Act.

4

5 H. Right to privacy Guaranteed by Article I, Section 1

6

of the California Constitution

7

Plaintiffs argue that Defendants Schneider and

8 Thompson violated the right to privacy guaranteed by

9 Article I, Section 1 of the California Constitution

10 because their actions constituted a serious invasion of a

11 legally protected privacy interest. [PIs.' Mem. P. & A.

12 at 15-16.] Plaintiffs contend that they had a legally

13 protected privacy right because (1) general social norms

14 recognize a right to be free from covert video

15 surveillance, and (2) California law protects people from

16 video surveillance in locker rooms. Ild.... at 16 -17. ]

17 Plaintiffs also argue that this intrusion was a serious

18 invasion of their privacy rights because, by installing a

19 camera hidden behind ceiling tiles and running cable to a

20 VCR in an office 50 feet away, the invasion was careful

21 and deliberate; and the invasion was "sustained and wide-

22 ranging": The existing tape spanned three full days and

23 / / /

24

25

22 ( ••• continued)

26

as presented fails to state either an address to which the person presenting the claim desires

27

notices to be sent or an address of the claimant.

28

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1 captured officers wearing only underwear or a towel. 2 [Id. at 17-18.]

3

4

Defendants respond that while the California

5 Constitution may provide a broader standard for what is a

6 reasonable expectation of privacy, Plaintiffs have failed

7 to establish that their expectation was reasonable and

8 legally protected under California law. [Defs.' Opp'n at

9 20, Defs.' Reply at 14.] Defendants argue that (1) the

10 California statute prohibiting covert video surveillance

11 without a warrant was not enacted until 1999, (2)

12 Plaintiffs' reliance on California authority establishing

13 that people have a reasonable expectation of privacy when

14 urinating for a drug test is distinguishable from this 15 situation, and (3) California Penal Code § 647(k) has no

16 bearing on the issues raised in these Motions because it 17 was not effective until after the camera was installed,

18 and the purpose behind that law is to discourage people

. 19 from videotaping people in various stages of undress

20 without a legitimate purpose. [Defs. I Mem. P. & A. at 21 20, Defs. I Opp'n at 20-21, Defs.' Reply at 14, 21.] 22

23

Plaintiffs counter that while Labor Code § 435 might

24 not have been enacted until 1999, Defendants do not

25 adequately address Penal Code § 647(k), which makes it a

26 misdemeanor to view a person in a changing room with a 27 camera with the intent on invading their privacy. [PIs. '

28

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1 Opp'n at 17.] Plaintiffs also contend that Defendants 2 need not commit a crime for them to infringe on a legally 3 protected right because privacy law protects Plaintiffs' 4 rights to be free from surreptitious video recording. S [Id. at 17-18.]

6

7

Article 1, Section 1 of the California constitution

8 states that "[a]l1 people are by nature free and

9 independent and have inalienable rights. Among these are

10 enjoying and defending life and liberty, acquiring,

11 possessing, and protecting property, and pursuing and

12 obtaining safety, happiness, and privacy."

13

14

To establish a claim under the California

15 constitution, a plaintiff must establish the following:

16 "(1) a legally protected privacy interest; (2) a

17 reasonable expectation of privacy in the circumstances;

18 and (3) conduct by defendant constituting a serious

19 invasion of privacy." Hill v. National Collegiate

20 Athletic Assn., 7 Cal.4th 1, 39-40 (1994). The first

21 element is a question of law, and the last two elements

22 are mixed questions of law and fact. Id. at 40

23 (citations omitted). Defendants can prevail on a

24 California Constitution privacy claim by negating anyone

25 of the three elements or establishing that the "invasion

26 of privacy is justified because it substantively furthers

27 one or more countervailing interests." Id. In the case 28

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1 that Defendants attempt to assert the affirmative defense 2 of countervailing interests, Plaintiffs may "rebut a 3 defendant's assertion of countervailing interests by

4 showing there are feasible and effective alternatives to

5 defendant's conduct which have a lesser impact on privacy 6 interests." Id.

7

8

1. Legally Protected Privacy Interest

9

"Legally recognized privacy interests are generally

10 of two classes: (1) interests in precluding the 11 dissemination or misuse of sensitive and confidential 12 information ("informational privacy") i and (2) interests 13 in making intimate personal decisions or conducting 14 personal activities without observation, intrusion, or 15 interference (llautonomy privacy")." Id. at 35. Legally 16 protected privacy rights stem from common law, federal 17 and state constitutional development, and statutory 18 enactments. lSi.. at 36.

19

20

As discussed above in Section V.A, the Court finds

21 that Plaintiffs retained a Fourth Amendment right to be

22 free from covert video surveillance while in Defendant

23 OPD's men's locker room. This guaranteed right under the 24 United States Constitution establishes a legally 25 protected right of privacy. Defendants' argument that 26 there was no specific statute prohibiting such 27 surveillance at the time is irrelevant. The holding in

28

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1 Hill makes clear that a legally protected privacy right

2 can be derived from other sources than statutory

3 enactments. .ld.....

4

5

2. A Reasonable Expectation of Privacy

6

A reasonable expectation of privacy is context

7 dependentj customs, practices, and the physical setting

8 of the search may affect the reasonableness of a person's

9 privacy expectations. Id. at 36.

10

11

As discussed in Section V.A.2, Plaintiffs had a

12 reasonable expectation of privacy from covert video

13 surveillance in the locker room.

14

15

3. Conduct constituting A Serious Invasion of

16

privacy

17

"Actionable invasions of privacy must be sufficientl

18 serious in their nature, scope, and actual or potential

19 impact to constitute an egregious breach of the social

20 norms underlying the privacy right." Id. at 37. 21

22

Again, as discussed above in Section V.A.2, the

23 intrusion on Plaintiffs' privacy was severe.

24

25

4. Countervailing Interests

26

Defendants contend that no liability exists for a

27 breach of the state constitutional right to privacy

28

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1 because the search was a narrowly defined and limited

2 employer investigation of a theft and was used to

3 maintain a secure and operational police force. [Defs. ' 4 Mem. P. & A. at 20-21/ Defs.' Opp'n at 21/ Defs.' Reply 5 at 15-16.]

6

7

Plaintiffs counter that the seriousness of the

8 intrusion here requires that Defendants have a more

9 significant countervailing interest to justify the

10 intrusion than an investigation of a single theft of a

11 flashlight. [PIs.' Mem. P. & A. at 18/ PIs.' Opp'n at

12 18.] Plaintiffs assert that while Defendants cast their

13 search as serving their interest in a "secure and 14 operational police force/" the only evidence before the 15 court is that the search was designed to investigate and 16 resolve a misdemeanor offense. [PIs.' Reply at 11.] As

17 to Defendants' assertions that this investigation was 18 motivated by institutional security/ Plaintiffs retort

19 that after the bait bag was placed in the locker room and

20 not stolen/ Defendant Schneider (1) did not know if the

21 investigation continued/ (2) did not log the tape into

22 evidence / and (3) did not review the tape. [PIs.' Opp' n

23 at 19.J

24

25

"Invasion of a privacy interest is not a violation of

26 the state constitutional right to privacy if the invasion

27 is justified by a competing interest . . . Conduct

28

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1 alleged to be an invasion of privacy is to be evaluated

2 based on the extent to which it furthers legitimate and

3 important competing interests." Hill, 7 Cal.4th at 38.

4

5

First, Defendants' assertion that the covert video

6 surveillance was used to maintain a secure and operation

7 police force is unsupported and belied by Defendants' own

8 evidence and arguments. For example, if the covert video

9 surveillance was needed to maintain an operational police

10 force, why only conduct the surveillance for one weekend

11 and why focus the camera on one specific area of the

12 locker room? The relationship between covertly recording

13 a small portion of a locker room and maintaining

14 operational efficiency is tenuous at best.

15

16

Even assuming for the sake of argument that the

17 surveillance was motived by Defendants' legitimate

18 interest of maintaining a secure and operational police

19 force, the invasion of Plaintiffs' privacy from the

20 covert video surveillance far outweighs this interest.

21

22

Also, Plaintiffs have rebutted Defendants'

23 countervailing interest defense because they have

24 presented evidence from two experienced detectives that

25 other feasible and effective alternatives to covert video 26 surveillance exist. [Anderson Decl. at ~~ 7-10, Trujillo 27 Decl. at ~~ 9-12 in PIs.' Dec. & Ex.] Defendants have

28

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1 failed to present evidence to rebut Plaintiffs' evidence 2 and their arguments for why Plaintiffs' evidence should 3 be disregarded are unconvincing. [Defs.' Opp'n at 22-23,

4 Defs.' Reply at 16-17.J

5

6

Thus, balancing the purported governmental interest

7 against the severity of the intrusion and the

8 availability of other less intrusive means, no reasonable

9 jury could find that Defendants' intrusion was justified.

10

11

Accordingly, there are no genuine issues of material

12 fact concerning whether Plaintiffs' California

13 Constitutional right to privacy was violated by 14 Defendants Schneider and Thompson. As discussed above, 15 there are material issues of genuine fact as to 16 Defendants Del Rio's and Scharf's involvement in the

17 search. Further, under California Government Code § 18 815.2(a), which holds a City liable for the injuries

19 caused by its employees acting in the scope of their

20 employment, Defendant City is liable for Defendant

21 Schneider I s violation of the California Constitution. 22

23

As will be discussed below, Defendants Schneider,

24 Thompson, and City may enjoy immunity from this 25 violation, however.
26 III 27 II/
28

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1 I. Common Law Tort: Invasion of Privacy

2

Plaintiffs argue that Defendants Thompson's and

3 Schneider's installation of the camera in the locker room

4 intruded on a place in which Plaintiffs had a reasonable

5 expectation of privacy because (1) there is a California

6 Penal Code that prohibits installing hidden cameras in

7 changing and dressing rooms, and (2) covert video

8 surveillance in locker room is highly intrusive. [PIs. ' 9 Mem . P. & A . at 21 - 24 . ]

10

11

Defendants' only counter is to argue that Plaintiffs

12 did not have a reasonable expectation of privacy while in

13 the locker room because it was freely accessible to 14 officers, females, and civilians. [Defs.' Mem. P. & A. 15 at 21.]

16

17

The cause of action for the tort of intrusion has the

18 following two elements: "(1) intrusion into a private

19 place, conversation or matter, (2) in a manner highly

20 offensive to a reasonable person." Sanders v. American

21 Broadcasting Companies. Inc., 20 Cal.4th 907, 914 (1999). 22

23

1. Intrusion Into A Private Place, Conversation, or

24

Matter

25

Merely being observed or recorded is insufficient to

26 establish the tort of intrusion; rather, the intrusion 27 must be a penetration into a "zone of physical or sensory

28

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1 privacy surrounding" in which a person has an objectively

2 reasonable expectation of seclusion or solitude. Id. at 3 914-15. An objective expectation of privacy, however,

4 need not mean absolute or complete privacy. Id. at 915.

5 That a limited number of people might observe one's 6 conduct in a certain place, does not diminish the

7 reasonableness of the expectation of privacy in that 8 place. Shulman v. Group W Productions. Inc., 18 Cal.4th 9 200, 232-33 (1998); Sanders, 20 Cal. 4th at 916 ("Although

10 the intrusion tort is often defined in terms of

11 'seclusion'. . the seclusion referred to need not be

12 absolute. Like 'privacy,' the concept of 'seclusion' is

13 relative. The mere fact that a person can be seen by 14 someone does not automatically mean that he or she can 15 legally be forced to be subject to being seen by 16 everyone.") (quotation marks and citations omitted) . 17

18

For the reasons discussed in Section V.A.2, the

19 locker room was a place where Plaintiffs had an

20 objectively reasonable expectation of privacy.

21

22

2. Offensiveness of Intrusion

23

To determine the offensiveness of an intrusion, a

24 court should consider the "circumstances of the 25 intrusion, including its degree and setting and the 26 intruder's motives and objectives." Shulman, 18 cal.4th 27 at 236 (quotation marks omitted). 28

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1

As set forth repeatedly in this Order, the nature of

2 the intrusion here is severe. Neither Defendants'

3 evidence nor their arguments present a sufficient

4 justification for the use of covert video surveillance in

5 a locker room, especially for the type of crime

6 investigated and the availability of less intrusive

7 alternatives.

8

9

Thus, the Court grants Plaintiffs' request for

10 summary judgment against Defendants Schneider, Thompson,

11 and the City on their common law tort of invasion of

12 privacy.

13

14

As will be discussed below, Defendant Schneider,

15 Thompson, and City may enjoy immunity for this violation,

16 however.

17

18 J. Immunity under California Government Code

19

Defendants assert that Defendant Schneider is

20 protected under California Government Code § 820.2

21 because his decision to conduct covert surveillance in

22 the locker room was pursuant to discretion vested in him

23 as a detective. [Defs.' Mem. P. & A. at 22, Defs.' Reply

24 at 18.] Also, Defendants contend that Defendants Scharf

25 and Del Rio are immune under section 820.2 because they

26 were acting pursuant to discretion vested in their

27

28

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1 positions. [Defs.' Mem. P. & A. at 22-23, Defs.' Reply 2 at 19.] •

3

4

Defendants also contend that section 821.6 provides

5 immunity for officers who violate another person's rights

6 when they are investigating criminal activity. [Defs. ' 7 Mem. P. & A. at 23, Defs.' Reply at 19-20.] Defendants

8 assert that the City and OPD are immune under section

9 815.2(b) because they are not liable for acts done by

10 employees who are immune. [Defs.' Mem. P. & A. at 23.]

11

12

Plaintiffs respond that section 820.2 does not

13 provide Defendant Schneider immunity because his decision

14 to conduct covert surveillance in the locker room was not

15 a "basic policy decision." [PIs. Opp' n at 21.] 16 Plaintiffs argue that Defendants Schneider's, Scharf's,

17 and Del Rio's violations are not protected under section

18 821.6 because their investigation did not lead to an 19 actual criminal proceedings. Plaintiffs contend that (1)

20 to extend this immunity to illegal actions taken by a

21 police officer that did not result in a criminal

22 proceeding would immunize police officers from claims

23 such as excessive force, race-based arrests, and other

24 egregious crimes, and (2) section 821.6 should be limited 25 to malicious prosecution claims and not other torts.

26 [Id. at 22-25.J 27

28

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1

1. Immunity Under California Government Code §

2

820.2

3

California Government Code § 820.2 states as follows:

4

5

Except as otherwise provided by statute, a

6

public employee is not liable for an injury

7

resulting from his act or omission where the act

8

or omission was the result of the exercise of

9

the discretion vested in him, whether or not

10

such discretion be abused.

11

12

A discretionary act requires a conscious balancing of

13 risks and advantages when making basic policy decisions,

14 see Bell v. State of Californi~ 63 Cal. App. 4th 919,

15 929 (1998); it does not protect operational or 16 ministerial decisions that implement policies. Martinez

17 v. City of Los Angeles, 141 F.3d 1373, 1379 (9th Cir.

18 1998) (citing Johnson v. State of Californig. 69 Cal. 2d

19 782, 796 (1968)). A ministerial act is an act pursuant

20 to an order, or an act where a person had no choice.

21 McCorkle v. City of Los Angele~ 70 Cal.2d 252, 261

22 (1969). An operational act is one in which the person

23 who made the decision, implemented the decision. See ~ 24

25

Moreover, even when one person makes a discretionary

26 decision, this immunity should be applied narrowly and

27 limited to "areas of quasi-legislative policy-making .

28

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1 . [which] are sufficiently sensitive to call for judicial

2 abstention from interference that might even in the first

3 instance affect the coordinate body's decision-making

4 process, and should be no greater than is required to

5 give legislative and executive policymakers sufficient

6 breathing space in which to perform their vital

7 policymaking functions." Barner v. Leeds, 24 Cal. 4th 8 676, 685 (2000) (quotations and citations omitted) .

9 Routine discretionary decisions as part of a person's

10 normal job duties are not covered by this immunity.

11 Sanborn v. Chronicle Pub. Co., 18 Cal.3d 406, 415 (1976)

12 (holding that a decision by the clerk of a city to talk

13 to the press was not a sufficient decision to warrant

14 immunity).

15

16

Here, Defendants have not satisfied their initial

17 burden of showing that Defendant Schneider's decision was

18 discretionary, as defined by California authority. 19 Defendants' argument that the decision to implement the

20 covert video surveillance was in his discretion as the

21 lead investigator might be correct; however, this does

22 not automatically lead to immunity. Decisions on how to

23 proceed with an investigation are routine ones, as part

24 of Defendant Schneider's employment. Hence, Defendant

25 Schneider does not enjoy immunity under section 820.2.

26 / / /

27 / / / 28

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1

2. Immunity Pursuant to California Government Code

2

§ 821.6

3

California Government Code § 821.6 states as follows:

4

5

A public employee is not liable for injury

6

caused by his instituting or prosecuting any

7

judicial or administrative proceeding within the

8

scope of his employment, even if he acts

9

maliciously and without probable cause.

10

11

Immunity under section 821.6 has been interpreted as

12 providing immunity for officers conducting investigations

13 because an investigation is an essential step in

14 initiating formal proceedings.23 Aroylou R. v. County of

15

23 At the hearing, Plaintiffs argued that the Court 16 should disregard the holding in Aroylou and apply a narrow

interpretation of Sullivan v. County of Los Angeles, 12

17 Cal.3d 710, 719-722 (1974) (holding that section 826.1 is

18 limited to claims of malicious prosecution and does not

1 apply to claims of false arrest), and As ari v. City of
Los Angeles, 15 Cal.4th 744, 752 (1997) same). Such a

19 narrow application of section 821.6 is unfounded. First,

20 the California Supreme Court case which section 821.6

codified stated: "When the duty to investigate crime and

21 to institute criminal proceedings is lodged with any

public officer, it is for the best interests of the

22 community as a whole that he be protected from harassment

in the performance of that duty. The efficient

23 functioning of our system of law enforcement is dependent

largely upon the investigation of crime and the

24 accusation of offenders by properly trained officers. A

breakdown of this system at the investigative or

25 accusatory level would wreak untold harm." white v.

Towers, 37 Cal.2d 727, 729 (1951). Moreover, several

26 courts have rejected such a narrow application of section

821.6. See, e.g., Randle v. City ang County of San

27 Francisco, 186 Cal. App. 3d 449, 456 (1986) (holding that

while section 821.6 is principally used to immunize

28

(continued... )

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1 Riverside, 28 Cal. App. 4th 1205, 1210-11 (1994) ("Since 2 the acts of which [plaintiff] complains are incidental to

3 the investigation of the crimes, and since investigation

4 is part of the prosecution of a judicial proceeding,

5 those acts were committed in the course of the

6 prosecution of that proceeding.") ; Baughman v. State of

7 California, 38 Cal. App. 4th 182, 192 (1995) (citing

8 Amylou, the Court held that section 821. 6 "shields

9 investigative officers from liability for injuries

10 suffered by witnesses or victims during an investigation.

11

Officers are also immune from claims made by those

12 who are not the actual targets of the investigation of

13 the prosecution, but who happen to be injured by

14 decisions an officer makes during the course of such

15 investigation."); Jenkins v. County of Orange, 212 Cal.

16 App. 3d 278, 284 (1989) (holding that a social worker is 17 protected from liability under section 821.6 for her

18 conduct in a child abuse investigation); Kemmerer v.

19

20

23 ( ••• continued)

21 Defendants from malicious prosecution claims, it is not

limited to that use, and that Sullivan should be narrowly

22 read to prohibit section 821.6 in false arrest claims

only); Jenkins v. county of orange 212 Cal. Ap~. 3d 278,

23 283 (1989) (holding that section 821.6 is not l~mited to

claims of malicious prosecution and listing several other

24 California Court of Appeal cases which have also held

that section 821.6 is not limited); Martinez v. City of

25 Los Angeles, 141 F.3d 1373, 1381 (9th Cir. 1998) (holding

that section 821.6 protects officers from claims of

26 negligence in their investigations which lead to an

arrest) .

27

28

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1 County of Fresno, 200 Cal. App. 3d 1426, 1436-37 (1988).

2 Moreover, section 821.6 provides immunity even if the

3 injuries were suffered by a non-target of the

4 prosecution. Id. at 1211.

5

6

Here, the search was part of the overall

7 investigation concerning the theft of Larson's flashlight

8 and is protected by the broad immunity of section 821.6.

·9 Plaintiffs' argument that the Court should limit section

10 821.6 immunity only to investigations that result in

11 prosecutions is unpersuasive and unsupported by existing

12 authority.

13

14

Plaintiffs correctly point out that to provide

15 immunity to officers who conduct investigations that do

16 not result in judicial proceeding may at times result in

17 injustices. California courts, however, have accepted

18 such a consequence. " , [I] n the end [it is] better to

19 leave unredressed the wrongs done by dishonest officers

20 than to subject those who try to do their duty to the

21 constant dread of retaliation.'" lll... at 1213 (quoting

22 Hardy v. Vial, 48 Cal.2d 577, 583 (1957)). 23

24

Moreover, the distinction that Plaintiffs request

25 itself poses dangers. Whether an investigation leads to

26 an actual formal proceeding bears no relation to the

27 underlying injury. See Ingram v. Flippo, 74 Cal. App. 28

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14th 1280, 1293 (1999) (finding that whether or not a

2 prosecution was actually initiated in not a meaningful 3 distinction). Plaintiffs' argument would permit an 4 officer who severely intruded on a witness's rights 5 during an investigation to enjoy immunity if, by chance, 6 a suspect was apprehended and prosecuted; however, an

7 officer who arguably infringed on a witness's rights

8 would not enjoy immunity because a suspect was not 9 apprehended and no prosecution ensued. If such a 10 distinction were created, an officer would have an

11 incentive to violate a person's rights drastically -- for

12 example, mistreat a witness who had potentially valuable

13 information -- to ensure that a prosecution would ensue 14 and provide immunity for his unlawful actions. If 15 Plaintiffs' distinction were to be adopted, there would

16 also be an incentive for a police officer who has

17 violated a person's constitutional rights to arrest and 18 prosecute any suspect in order to enjoy immunity for the 19 officer's prior illegal conduct.

20

21

Finally, Plaintiffs' textual argument fails because

22 while the statute used the term "prosecution" of a

23 "judicial" proceeding, California courts have interpreted

24 these words broadly, such that the start of an

25 investigation satisfies this requirement. See id. at 26 1210.

27 / / / 28

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1

Accordingly, while Defendant Schneider violated

2 Plaintiffs' rights under state law, Defendant is immune

3 from liability for Plaintiffs' state law claims. Also,

4 while Defendants Scharf's and Del Rio's involvement are

5 disputed, even if they were involved, they would be

6 immune as well. Defendants, however, have not satisfied

7 their burden that Defendant Thompson would enjoy immunity

8 under section 821.6 because he is a private actor:4

9

10

3. Defendant City's Immunity Pursuant to Government

11

Code § 815.2

12

California Government Code § 815.2(b) states as

13 follows: "Except as otherwise provided by statute, a

14 public entity is not liable for an injury resulting from

15 an act or omission of an employee of the public entity

16 where the employee is immune from liability."

17

18

In light of the Court's ruling as to Defendants

19 Schneider's, Del Rio's, Scharf's immunity under section

20 821.6, Defendant City is immune from liability.

21 / / /

22 / / /

23 / / /

24

25 24 The text of section 821.6 provides immunity for
26 public employees only. Defendants have neither argued that Defendant Thompson is an emplo¥ee of the City of
27 Ontario, nor have they cited authorlty that section 821.6 provides immunity for private actors working at the
28 direction of public employees.

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1

VI. CONCLUSION

2

For the foregoing reasons, plaintiffs' Motion is

3 granted to the extent that it requests partial summary

4 adjudication on liability against Defendant Schneider on

5 Plaintiffs' § 1983 claim, and Defendant Thompson on

6 Plaintiffs' California constitutional right to privacy

7 and common law tort of intrusion claims. Plaintiffs •

8 Motion is denied as to the remaining grounds.

9 Defendants' Motion is granted to the extent it requests

10 judgment on behalf of all Defendants except Defendant

11 Thompson on Plaintiffs' state law claims. Defendants'

12 Motion is denied as to the remaining grounds.

13
r 14
15 Dated: A I 11:\12-00&
16

't~' GI.NI~~AL<A-. .~HILLIPS
United States District Judge

17

18

19

20

21

22

23

24

25

26

27

28

81

 
 Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 1 of 33

1 PETER J. ELIASBERG (S.B.No. 189110) E-mail: peliasberg@aclu-sc.org
2 PETER BIBRING (S.B. No. 223981) E-mail: pbibring@aclu-sc.org
3 ACLU FOUNDATION OF SOUTHERN CALIFORNIA
4 1313 W. 8th Street Los Angeles, CA 90017
5 Telephone: (213) 977-9500 Facsimile: (213) 977-5299
6 DAN STORMER (S.B. No. 101967)
7 E-mail: dstormer@hadsellstormer.com ANNE RICHARDSON (S.B. No. 151541)
8 E-mail: arichardson@hskrr.com RADHIKA SAINATH (S.B. No. 259318)
9 E-mail: radhika@hskrr.com HADSELL STORMER KEENY
10 RICHARDSON & RENICK, LLP 128 N. Fair Oaks Avenue, Suite 204
11 Pasadena, CA 91103 Telephone: (626) 585-9600
12 Facsimile: (626) 577-7079

13 Attorneys for Plaintiffs

14

UNITED STATES DISTRICT COURT

15

CENTRAL DISTRICT OF CALIFORNIA, EASTERN DIVISION

16

ROBERT BERNHARD, et al,

) Case No.: ED CV 04-01015 VAP

17

) (PJWx)

Plaintiffs,

)

18

) PLAINTIFFS’ NOTICE OF MOTION

) AND MOTION FOR PRELIMINARY

19

v.

) APPROVAL OF CLASS ACTION

) SETTLEMENT; MEMORANDUM

20 CITY OF ONTARIO, et al.,

) OF POINTS AND AUTHORITIES,

) DECLARATIONS, AND EXHIBITS

21

Defendants.

) IN SUPPORT THEREOF

)

22

) [DECLARATIONS ATTACHING

) BILLING RECORDS FILED

23

) SEPARATELY UNDER SEAL TO BE

______________________________ ) REVIEWED IN CAMERA BY THE

24

COURT]

25

Hearing: April 6, 2009

26

Time:

9:00 a.m.

Courtroom: 2

27

28

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 2 of 33

1 TO THE COURT AND TO ALL PARTIES AND THEIR ATTORNEY(S) OF

2 RECORD:

3

PLEASE TAKE NOTICE that on April 6, 2009, at 9:00 a.m. or as soon

4 thereafter as the matter may be heard in Courtroom 2 in the courtroom of the

5 Honorable Virginia Phillips of the above-entitled court, located at Twelfth Street,

6 Riverside, California, Plaintiffs will move for preliminary approval of a class

7 action settlement in this case. The motion will be based on Federal Rule of Civil

8 Procedure 23, 42 U.S.C. §1988 and California Code of Civil Procedure 1021.5, the

9 foregoing notice, points and authorities, and declarations and exhibits filed

10 concurrently herewith, and the pleadings, records and files in this action.

11

12 DATED: March 16, 2009 13 14

ACLU FOUNDATION OF SOUTHERN CALIFORNIA HADSELL STORMER KEENY RICHARDSON & RENICK, LLP

15

By

/s/

16

Peter Bibring

Attorney for Plaintiffs

17

18

19

20

21

22

23

24

25

26

27

28

1

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 3 of 33

1

TABLE OF CONTENTS

2 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3 1. SUMMARY OF THE CASE AND THE PARTIES’ ALLEGATIONS . . . 1

4 2. SUMMARY OF THE PROPOSED SETTLEMENT . . . . . . . . . . . . . . . . . . 2

5

A. Class Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

6

B. Total Settlement Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

7

C. Payment of Standard Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

8

D. Additional Compensation for Active Litigants . . . . . . . . . . . . . . . . . 3

9

E. Attorney’s Fees and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

10

F. Administration of Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

11

G. Notice to the Class . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

12 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

13 A. THE SETTLEMENT IS FAIR, REASONABLE, AND ADEQUATE . . . 5

14

1. Preliminary Approval of The Settlement is Proper . . . . . . . . . . . . . . 5

15

2. Additional Compensation for Named Plaintiffs . . . . . . . . . . . . . . . . 9

16 B. THE ATTORNEYS FEES AND COSTS REQUEST OF $1,210,000 IS FAIR AND REASONABLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
17 1. The Amount of Hours Worked Is Reasonable . . . . . . . . . . . . . . . . . 16
18 2. The Hourly Rates Are Reasonable . . . . . . . . . . . . . . . . . . . . . . . . . . 18
19 C. ATTORNEYS FEES CLAIMED BY LACKIE & DAMMEIER . . . . . . . 23
20 D. PLAINTIFFS’ LITIGATION EXPENSES ARE RECOVERABLE . . . . . 24
21 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
22

23

24

25

26

27

28

i

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 4 of 33

1

TABLE OF AUTHORITIES

2 FEDERAL CASES

3

Armstrong v. Board of School Directors,

471 F. Supp. 800 (E.D. Wis. 1979), aff'd, 616 F.2d 305, 325 (7th Cir.

4

1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

5

Barjon v. Dalton,

132 F.3d 496 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

6

Blum v. Stenson,

7

465 U.S. 886 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 18, 20

8

Bradburn Parent Teacher Store, Inc. v. 3M,

513 F. Supp. 2d 322 (E.D. Pa.. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

9

Bynum v. District of Columbia,

10

412 F. Supp. 2d 73 (D. D.C. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

11

Calderon v. Witvoet,

112 F.3d 275 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

12

Class Plaintiffs v. Seattle,

13

955 F.2d 1268 (9th Cir.), cert. denied, 506 U.S. 953 (1992) . . . . . . . . . 6

14

Connor v. Winter,

519 F. Supp. 1337 (S.D. Miss. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . 25

15

Copeland v. Marshall,

16

641 F.2d 880 (D.C. Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

17

Cotton v. Hinton,

559 F.2d 1326 (5th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

18

Crawford Fitting Co. v. J. T. Gibbons, Inc.,

19

482 U.S. 437 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

20

Cullen v. Whitman Medical Corp.,

197 F.R.D. 136 (E.D.Pa. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

21

Cunningham v. County of Los Angeles,

22

879 F.2d 481 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

23

Davis v. City and County of San Francisco,

976 F.2d 1536 (9th Cir. 1992), vacated in part on other grounds . 17, 20

24

Davis v. Mason County,

25

927 F.2d 1473 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

26

Enterprise Energy Corp. v. Columbia Gas Transmission Corp.,

137 F.R.D. 240 (S.D.Ohio,1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

27

28

ii

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1

In re FPI/Agretech Securities Litigation,

105 F.3d 469 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2

Fernando v. Hotel Nikko Saipan,

3

1992 U.S. Dist. LEXIS 10228 (D. N. 1992) . . . . . . . . . . . . . . . . . . . . . 24

4

Fischel v. Equitable Life Assur. Society of U.S.,

307 F.3d 997 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

5

Gates v. Deukmejian,

6

987 F.2d 1392 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

7

Guam Social of Obstetricians and Gynecologists v. Ada,

100 F.3d 691 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

8

Harris v. Marhoefer,

9

24 F.3d 16 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

10

Hensley v. Eckerhart,

461 U.S. 424 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16

11

Herold v. Hajoca Corp.,

12

864 F.2d 317 (4th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

13

Ingram v. The Coca-Cola Co.,

200 F.R.D. 685 (N.D.Ga.2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

14

InvesSys, Inc. v. McGraw-Hill Cos., Ltd.,

15

369 F.3d 16 (1st Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

16

In re Jiffy Lube Securities Litigation,

Fed. Sec. L. Rep. (CCH) ¶ 94,859 (D.Md. 1990) . . . . . . . . . . . . . . . . . . 6

17

Keith v. Volpe,

18

643 F. Supp. 37 (C.D. Cal. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Kerr v. Screen Actors Guild,

19

526 F.2d 67 (9th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

20

Missouri v. Jenkins,

491 U.S. 274, 105 L. Ed. 2d 229, 109 S. Ct. 2463 (1989) . . . . . . . . . . 24

21

In re Mulberry Phosphates, Inc.,

22

151 B.R. 948 (Bankr. M.D. Fla. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . 24

23

Officers for Justice v. Civil Serv. Commission of San Francisco,

688 F.2d 615 (9th Cir. 1982), cert. denied, 459 U.S. 1217 (1983) . . . . 6

24

Perkins v. Mobile Housing Board,

25

847 F.2d 735 (11th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

26

Powers v. Eichen,

229 F.3d 1249 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

27

28

iii

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 6 of 33

1

RMED Intern., Inc. v. Sloan's Supermarkets, Inc.,

2003 WL. 21136726 (S.D. N.Y. 2003). . . . . . . . . . . . . . . . . . . . . . . .10

2

Rode v. Dellarciprete,

3

892 F.2d 1177 (3rd Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

4

In re S. Ohio Correctional Facility,

175 F.R.D. 270 (S.D.Ohio 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

5

Smith v. Tower Loan of Miss., Inc.,

6

216 F.R.D. 338 (D.Miss. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

7

Stanford Daily v. Zurcher,

64 F.R.D. 680 ( 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

8

Thornberry v. Delta Airlines, Inc.,

9

676 F.2d 1240 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

10

Torrisi v. Tuscon Electric Power Co,

8 F.3d 1370 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

11

In re Union Carbide Corp. Consumer Products Business Securities

12

Litigation,

718 F. Supp. 1099 (S.D.N.Y.,1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

13

14

United Steelworkers of America v. Phelps Dodge Corp.,

896 F.2d 403 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

15

Van Vraken v. Atlantic Richfield Co.,

16

901 F. Supp. 294 (N.D.Cal.1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

17

Wehr v. Burroughs Corp.,

619 F.2d 276 (3rd Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

18

Wellman v. Dickinson,

19

497 F. Supp. 824 (S.D.N.Y. 1980), aff'd, 682 F.2d 355 (2d Cir. 1982) . 6

20 STATE CASES

21

Couche v. Coons,

(Superior Court, Santa Clara County, CA 2002). . . . . . . . . . . . . . . . . 8

22

Croft v. Barger,

23

(Superior Court of Fulton County, GA 2002). . . . . . . . . . . . . . . . . . . .7

24

Doe v. B.O.S. Guard Services

(St. Louis, MO 1990). . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . 8.

25

Marlahan v. Glass,

26

(Superior Court of Siskiyou County, CA 1989). . . . . . . . . . . . . . . . . . 8

27

28

iv

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 7 of 33

1

Martinez v. United

(19th Judicial Dist. Ct. Division H, East Baton Rouge, LA 2000) . . . .8

2

Mitchell v. Lewis

3

(13th Judicial Dist. Ct., Delaware County, OK 1999). . . . . . . . . . . . . .7

4

Rainville v. Alersis Risk Management,

(Kent County, RI 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

5

Tarby v. Kaufman,

6

(Waterbury Judicial Dist. CT 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . 8

7

Topor v. State of New York

(Court of Claims, New York 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . .8

8

Turney v. Kenny,

9

(Superior Court of Napa County, CA 1999). . . . . . . . . . . . . . . . . . . . . 8

10

UAW v. Midland Steel Products,

(Court of Common Pleas, Cuyahoga County OH 1991) . . . . . . . . . . . 8

11

STATUTES

12

28 U.S.C. § 1920 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

13

Fed. R. Civ. P. 23(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

14

Fed. R. Civ. P. 54(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

15

MISCELLANEOUS

16

Eisenberg & Miller, Incentive Awards to Class Action Plaintiffs: An

17

Empirical

Study, 53 UCLA L. Rev. 1303, 1307 (2006) . . . . . . . . . . . . . . . . . . 9, 10

18

Manual for Complex Litigation (Second) . . . . . . . . . . . . . . . . . . . . . . . . . . .6

19

Manual for Complex Litigation (Third) (1995) . . . . . . . . . . . . . . . . . . . . . . 6

20

21

22

23

24

25

26

27
v
28

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1

INTRODUCTION

2

By this motion, Plaintiffs Steve Trujillo, et al., seek preliminary court

3 approval of the class action settlement set forth in the proposed Settlement

4 Agreement submitted herewith as Exhibit 1, and a preliminary determination that

5 the settlement is in good faith and is reasonable and fair to the parties and the

6 members of the Plaintiff class.

7 1. SUMMARY OF THE CASE AND THE PARTIES’ ALLEGATIONS

8

Plaintiffs brought this action in 2004 to challenge the covert video

9 surveillance conducted by members of the Ontario Police Department in the men’s

10 locker room at the police station in 1996. The original complaint was filed in

11 August, 2004 by the law firm of Lackie & Dammeier on behalf of 20 named

12 individuals. It was not designated a class action and included no class allegations.

13 Subsequently, in October, 2004, the ACLU Foundation of Southern California,

14 along with the law firms of Lackie & Dammeier and Bahan & Associates filed an

15 amended complaint that added some plaintiffs and omitted some of the initial

16 plaintiffs. The amended complaint was designated a class action and included

17 class allegations. In the Complaint, Plaintiffs allege that Defendants violated the

18 Fourth Amendment of the United States Constitution, the California Constitutional

19 right to privacy, and the common law tort of intrusion.

20

The Court granted plaintiffs’ motion for class certification on April 14,

21 2005. In its order, the Court designated the ACLU, Bahan & Associates and

22 Lackie & Dammeier as co-lead counsel under FRCP 23(g).

23

Defendants moved to disqualify the law firm of Lackie & Dammeier in

24 June, 2005, on the ground that the firm had represented Defendant Brad Schneider

25 at an interview conducted by members of the San Bernardino County Sheriff’s

26 Department as part of an investigation of the video surveillance that is the subject

27 of this action. The Court granted the motion to disqualify on August 17, 2005.

28

1

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1

On April 14, 2006, the Court granted partial summary judgment to plaintiffs

2 against Defendant Brad Schneider on the Fourth Amendment claim, and against

3 Michael Thompson on the two state law claims. Defendants appealed the denial

4 of qualified immunity to the Ninth Circuit on an interlocutory basis. The Ninth

5 Circuit affirmed by order dated March 13, 2008.

6

The Fourth Amendment claims against the remaining defendants and all

7 claims for damages were set for trial on Feb. 17, 2009. The Ontario City Council

8 approved settlement on that date, resulting in a written Settlement Agreement,

9 which was signed and put on the record on February 18, 2009. See Exhibit 1.

10 2. SUMMARY OF THE PROPOSED SETTLEMENT

11

A. CLASS CERTIFICATION

12

The settlement class consists of “All persons who were employed by the

13 Ontario Police Department or volunteered for the Ontario Police Department, used

14 the Department’s men’s locker room during the period in which the surveillance

15 equipment was installed, and were recorded by the surveillance equipment.”

16 (Court’s April 14, 2005 Order at page 13:8-13).

17

B. TOTAL SETTLEMENT FUND

18

The total settlement amount is Two Million, Seven Hundred Fifty Thousand

19 Dollars ($2,750,000). Of that amount, plaintiffs propose that $1,540,000 be paid

20 to class members, and $1,210,000 be paid to plaintiffs’ attorneys Hadsell Stormer

21 Keeny Richardson & Renick, ACLU, and former co-lead counsel, Bahan &

22 Associates, as fees and costs

23

C. PAYMENT OF STANDARD CLAIMS

24

The Settlement Agreement does not provide for a specific distribution of

25 funds to the class members. Plaintiffs request that the primary mechanism for

26 settlement involve cash payment to members of the Plaintiff class in the amount of

27 $10,000 per class member.

28

2

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 10 of 33

1

D. ADDITIONAL COMPENSATION FOR ACTIVE LITIGANTS

2

In recognition of the significantly increased risks and burdens undertaken

3 by the named plaintiffs and class representatives, and those class members who

4 were previously named as plaintiffs, the settlement provides additional

5 compensation in the amount of $10,000 each to the previously named plaintiffs (of

6 which there are twelve) and $30,000 each to the named class representative

7 plaintiffs who were named on the first amended complaint and continued as

8 named plaintiffs to the conclusion of this matter (of whom there are six). This

9 compensation shall be in addition to the $10,000 they are entitled to receive as

10 class members. As plaintiffs set forth below, the additional compensation is well

11 within the range of incentive awards approved by federal courts in this Circuit and

12 elsewhere and is fair and reasonable when evaluated under the applicable criteria.

13

E. ATTORNEY’S FEES AND COSTS

14

The settlement agreement provides for the payment of attorneys’ fees using

15 the lodestar method. The fees and costs will be paid from the total settlement

16 fund. Plaintiffs’ counsel have concurrently submitted their unredacted billing

17 records to be filed under seal and reviewed by the Court in camera. Payment of

18 these sums shall extinguish Plaintiffs’ claims for all costs and for all fees incurred

19 for all work performed by counsel in this case from its inception through its

20 conclusion. Defendants previously agreed that they would not oppose plaintiffs’

21 counsel request for fees based on the lodestar method so long as the amount

22 sought was 50% or less of the total settlement amount.

23

The fee award contemplated by the Settlement Agreement in this case is

24 presumptively reasonable under Ninth Circuit precedent. The Court has broad

25 discretion in assessing the reasonableness of attorneys’ fees in class actions.

26 Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000); In re FPI/Agretech

27 Securities Litigation, 105 F.3d 469, 472 (9th Cir. 1997).

28

3

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 11 of 33

1

Here, Plaintiffs’ counsel achieved a more than just settlement for the class,

2 enabling each class member to recover a minimum of $10,000 as recovery for his

3 emotional distress damages as a result of having been the victim of surreptitious

4 video surveillance by the City of Ontario.

5

This settlement was achieved after years of discovery, litigation, appellate

6 proceedings, protracted negotiation, and trial preparations up to the very brink of

7 trial. Plaintiffs’ counsels’ work is not quite complete, since they will have to

8 spend time overseeing the correct addresses for the Notice to the Class, filing a

9 motion in support of final Court approval of the agreement, which would include

10 responses to objections, if any, and time at the Fairness Hearing itself. The work

11 performed to date has been substantial and has resulted in a settlement with great

12 potential benefit to the class.

13

F. ADMINISTRATION OF CLAIMS

14

The parties have agreed that the City of Ontario will send out the Notices to

15 Class Members and, following approval of the settlement, the checks to the class

16 members. Any checks that are not cashed will be submitted to a Cy Pres fund, to

17 be distributed to: Electronic Frontier Foundation, a nonprofit organization

18 specializing among other things in issues of privacy in the electronic age.

19

G. NOTICE TO THE CLASS

20

After preliminary approval, notice should be mailed to class members

21 promptly, but in no event later than April 13, 2009. Attached hereto as Exhibit 2

22 is a true and correct copy of the proposed notice. The notice will inform class

23 members of the terms of the Settlement; their right to object to the settlement; and

24 their right to be heard at the final hearing on the fairness of the settlement.

25

The Notice advises each class member that they have three options. Those

26 options are: (1) file a claim form and receive payment in the amount of either

27 $10,000, $20,000, or $40,000, depending on their status as unnamed class

28

4

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 12 of 33

1 members, former named plaintiffs, or named class representatives; (2) do nothing,

2 i.e., do not file a claim form, and their share of the settlement will revert to cy pres

3 fund; or (3) object on or before May 11, 2006 to the proposed settlement by filing

4 a written objection or notice to appear with the court at the Motion for Final

5 Approval which will be set for June, 2009.

6

The Manual for Complex Litigation 2d states that if a proposed settlement

7 appears to be the product of serious, informed, non-collusive negotiations, has no

8 obvious deficiencies, does not improperly grant preferential treatment to class

9 representatives or segments of the class, and falls within the range of possible

10 approval, then the court should direct that notice be given to the class of a formal

11 fairness hearing, at which evidence may be presented in support of and in

12 opposition to the settlement. Id. § 30.44.

13

Notice in this case is to be sent to the last known addresses of each current

14 and former class member. Defendants have provided to plaintiffs the envelopes

15 that were returned after the original Notice to the Class was sent, and plaintiffs

16 will shortly provide defendants with updated contact information for those

17 individuals, which shall be used to contact those individuals. The number of class

18 members is approximately 124. As to those notices returned to the City as

19 undeliverable, the City will conduct a reasonable investigation, including a Skip

20 Trace, and send additional notices to all recent addresses obtained through that

21 process. The parties are confident that this notice by mailing to the last known

22 address and to more recent addresses obtained through reasonable investigation is

23 the best means available to reach class members.

24

ARGUMENT

25 A. THE SETTLEMENT IS FAIR, REASONABLE, AND ADEQUATE

26

1. Preliminary Approval of The Settlement is Proper

27

Federal Rule of Civil Procedure 23(e) provides that “[a] class action shall

28

5

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 13 of 33

1 not be dismissed or compromised without the approval of the court . . .” Approval

2 under 23(e) involves a two-step process in which the court first determines

3 whether a proposed class action settlement deserves preliminary approval and

4 then, after notice is given to class members, whether final approval is warranted.

5 See Manual for Complex Litigation (Third) § 30.41 (1995), at 236-37. While the

6 Court will have the opportunity to revisit the issue of fairness at the final fairness

7 hearing after considering any objections that may be filed by class members and

8 reviewing the results of the claims administration process, the question now before

9 the Court is whether the accompanying Settlement Agreement appears to be the

10 product of serious, informed, non-collusive negotiations, has no obvious

11 deficiencies, does not improperly grant preferential treatment to class

12 representatives or segments of the class, and falls within the range of possible

13 approval. If so, then the Court should grant preliminary approval and order notice

14 be given to the class. See Manual for Complex Litigation (Second), § 30.44.1

15

A court should generally presume fairness at the preliminary stage of

16 approval so long as the settlement is recommended by experienced class counsel

17 after arm’s-length bargaining. In re Jiffy Lube Securities Litigation, Fed.

18 Sec.L.Rep. (CCH) ¶ 94,859 (D.Md. 1990); Wellman v. Dickinson, 497 F.Supp.

19 824 (S.D.N.Y. 1980), aff’d, 682 F.2d 355 (2d Cir. 1982); Armstrong v. Board of

20

21

1 A settlement should receive final approval if it is fundamentally fair,

22 adequate and reasonable." Class Plaintiffs v. Seattle, 955 F.2d 1268, 1276 (9th

Cir.), cert. denied, 506 U.S. 953 (1992). This determination, to be made after the

23 hearing on the parties’ joint motion for final approval, requires a balancing of

several factors which may include, among others, some or all of the following: the

24 strength of Plaintiffs' case; the risk, expense, complexity, and likely duration of

further litigation; the risk of maintaining class action status throughout the trial;

25 the amount offered in settlement; the extent of discovery completed, and the stage

of the proceedings; the experience and views of counsel; the presence of a

26 governmental participant; and the reaction of the class members to the proposed

settlement. Torrisi v. Tuscon Electric Power Co, 8 F.3d 1370, 1376 (9th Cir.

27 1993); Officers for Justice v. Civil Serv. Comm'n of San Francisco, 688 F.2d 615,

625 (9th Cir. 1982), cert. denied, 459 U.S. 1217 (1983). Plaintiffs will brief these

28 factors, as well as respond to objections, if any, at the final approval stage.

6

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 14 of 33

1 School Directors, 471 F.Supp. 800 (E.D. Wis. 1979), aff’d, 616 F.2d 305, 325 (7th

2 Cir. 1980); Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977).

3

This Agreement is the product of arms-length, non-collusive negotiations

4 after almost five years of hard-fought litigation. See Declaration of Peter

5 Eliasberg at ¶ 20. The formal and informal discovery plaintiffs counsel had

6 conducted gave them the ability to make a thorough assessment of the strengths

7 and weaknesses of their case. Id. at ¶ 21. The settlement agreement was

8 negotiated with the help of representatives of the Plaintiff class. Id. at ¶ 22.

9 Plaintiffs’ counsel worked extensively to keep Plaintiffs abreast of significant

10 developments through a series of meetings with both the named Plaintiffs and a

11 significant number of unnamed class members. Id. at ¶ 22. The City of Ontario’s

12 City Manager recommended the settlement and the City Council approved it.

13

Nothing in the substance of the settlement indicates obvious deficiencies.

14 The amount of $10,000 is a fair award for each class member. Each class member

15 sought only emotional distress damages, which are notoriously hard to predict,

16 and can range greatly depending on each jury’s particular valuation. No class

17 member had documentary evidence of any special damages.

18

The settlement amount is reasonable when evaluated in light of both jury

19 awards for other similar cases and the risks inherent in submitting to the jury a

20 case where the only damages are emotional distress damages. In comparable

21 invasion of privacy cases, the results have been wide-ranging. A number of cases

22 have resulted in $0, or quite small per plaintiff damages awards. See, e.g., Croft v.

23 Barger, (Superior Court of Fulton County, GA 2002) (plaintiff challenged

24 employer’s use of a video surveillance camera at work, which she was unaware of

25 and which allegedly caught her in some private moments – $0 award, Defendant

26 found not liable). Others resulted in a nominal damages award fee. See, e.g.,

27 Mitchell v. Lewis (13th Judicial Dist. Ct., Delaware County, OK 1999) (employer,

28

7

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 15 of 33

1 suspecting the validity of employee’s workers compensation claim, hired private

2 investigators to conduct undercover surveillance of plaintiff including videotaping

3 him at his home – $1 nominal damages compensatory award); UAW v. Midland

4 Steel Products (Court of Common Pleas, Cuyahoga County OH 1991) (defendant

5 employer placed video surveillance camera on rooftop to monitor union meetings

6 – jury awarded $160,000 total for 330 union members, for an average award of

7 just under $500 per person).

8

In other cases, awards for similar conduct have been more significant. See.

9 e.g. Martinez v. United (19th Judicial Dist. Ct. Division H, East Baton Rouge, LA

10 2000) (Defendant intercepted and taped private phone conversations without

11 consent – jury awarded 3 plaintiffs $12,000 each for a total of $36,000); Marlahan

12 v. Glass (Superior Court of Siskiyou County, CA 1989) (plaintiffs were teenaged

13 guests at B&B. Defendant admitted that he secretly used a concealed camera in a

14 bathroom to videotape visitors – jury awarded $40,000 total to the two plaintiffs);

15 Topor v. State of New York (Court of Claims, New York 1997) (plaintiff noticed a

16 hole in the shower wall at a state park, from which someone was watching her –

17 jury awarded $25,000 for emotional distress); Turney v. Kenny (Superior Court of

18 Napa County, CA 1999) (defendant placed a concealed video camera in the

19 women’s locker room and taped women while changing and showering – jury

20 awarded $25,224 for emotional, economic, and punitive damages); Doe v. B.O.S.

21 Guard Services (St. Louis, MO 1990) (security guards videotaped dancers while

22 changing clothes in the dressing room – jury awarded $36,000 each combined

23 emotional and punitive damages for a total of $432,000); Rainville v. Alersis Risk

24 Management (Kent County, RI 1997) (defendants implemented unlawful

25 investigation techniques in conjunction with plaintiff’s workers’ compensation

26 claim – jury awarded $65,000); ; Couche v. Coons (Superior Court, Santa Clara

27 County, CA 2002) (ex-husband charged with making illegal video and audio

28

8

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 16 of 33

1 recordings of ex-wife – jury awarded $215,000 in combined punitive and

2 compensatory damages); Tarby v. Kaufman (Waterbury Judicial Dist. CT 1997)

3 (employer set up video camera to record and view plaintiff, an employee, while

4 she was using the restroom – jury awarded $360,000).

5

The settlement amount per plaintiff is well within the range of these awards.

6 It is, therefore, presumptively reasonable. See In re Union Carbide Corp.

7 Consumer Products Business Securities Litigation, 718 F.Supp. 1099, 1104

8 (S.D.N.Y.,1989)(“The fact that the settlement amount may equal but a fraction of

9 potential recovery does not render the settlement inadequate.”). Moreover, Barry

10 Litt, a well-known and respected civil rights lawyer has opined that this settlement

11 represents an excellent result for the plaintiff class, given the difficultly of

12 obtaining large jury awards in cases where the sole basis for damages is emotional

13 distress. Declaration of Barrett S. Litt. ¶ 18.

14

2. Additional Compensation for Named Plaintiffs

15

The proposed additional compensation, known as incentive awards, for the

16 current named plaintiffs, as well as those named plaintiffs on the initial complaint,

17 is consistent with a fair, just and adequate settlement. “‘Courts routinely approve

18 incentive awards to compensate named plaintiffs for the services they provided

19 and the risks they incurred during the course of the class action litigation.’” Cullen

20 v. Whitman Med. Corp., 197 F.R.D. 136, 145 (E.D.Pa. 2000) (quoting In re S.

21 Ohio Corr. Facility, 175 F.R.D. 270, 272 (S.D.Ohio 1997)); accord Smith v.

22 Tower Loan of Miss., Inc., 216 F.R.D. 338, 368 (D.Miss. 2003) “Courts commonly

23 permit payments to class representatives above those received in settlement by

24 class members generally.”); see also Eisenberg & Miller, Incentive Awards to

25 Class Action Plaintiffs: An Empirical Study, 53 UCLA L.Rev. 1303, 1307

26 (2006)(finding courts granted incentive awards in 28% of cases sampled).

27

The size of the incentive awards – $30,000 to the current named plaintiffs

28

9

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 17 of 33

1 and $10,000 to the named plaintiffs on the initial complaint – is also consistent

2 with the range of incentive awards approved by other federal judges in class action

3 cases. For example, in employment discrimination and employment class actions,

4 which are the most representative samples due to the threat to the named plaintiffs

5 of economic loss from retaliation, law professors Eisenberg and Miller found that

6 the average incentive awards in those samples were about $12,000 and $70,000

7 respectively. See Eisernberg & Miller, Incentive Awards, 55 UCLA L.Rev. at

8 1353. Plaintiffs have found numerous cases where courts have approved incentive

9 awards far larger than those proposed here. See, e.g., Bradburn Parent Teacher

10 Store, Inc. v. 3M, 513 F. Supp.2d 322 (E.D. Pa.. 2007)(incentive award of $75,000

11 to one named plaintiff); Bynum v. District of Columbia, 412 F. Supp. 2d 73 (D.

12 D.C. 2006)(incentive awards of $200,000 divided among six named plaintiffs);

13 RMED Intern., Inc. v. Sloan's Supermarkets, Inc., 2003 WL 21136726 (S.D. N.Y.

14 2003)(incentive award of $25,000 to one named plaintiff); Ingram v. The

15 Coca-Cola Co., 200 F.R.D. 685 (N.D.Ga.2001)(incentive award of $300,000 to

16 each of four named plaintiffs); Van Vraken v. Atl. Richfield Co., 901 F. Supp. 294,

17 299 (N.D.Cal.1995)(incentive award of $50,000 to one named plaintiff);

18 Enterprise Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240,

19 251 (S.D.Ohio,1991)(incentive award of $50,000 to six named plaintiffs).

20

In determining whether incentive awards are proper and proportionate,

21 courts examine: (1) the risk to the class representative in commencing suit, both

22 financial and otherwise; (2) the notoriety and personal difficulties encountered by

23 the class representative; (3) the amount of time and effort spent by the class

24 representative; (4) the duration of the litigation and; (5) the personal benefit (or

25 lack thereof) enjoyed by the class representative as a result of the litigation. See

26 Van Vraken, 901 F. Supp. at 299. Most of the relevant factors weigh in favor of

27 the proposed incentive awards.

28

10

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 18 of 33

1

Both sets of named plaintiffs faced a reasonable risk of retaliation. Such a

2 risk is inherent in cases when plaintiffs sue their employer. The risk was

3 particularly acute here, because a jury has recently concluded that the Ontario

4 Police Department had impermissibly retaliated against Steve Trujillo, one of the

5 named plaintiffs here, for his being a plaintiff in another Fourth Amendment suit

6 against the department. See Trujillo v. City of Ontario -- ED CV 04-00569 SGL;

7 Declaration of Steven Trujillo ¶ 31.

8

In addition, a number of officers in the management position in the Ontario

9 Police Department made comments to the named plaintiffs that indicated that their

10 role in this case would harm their careers in the department. For example, on the

11 day that there was a press conference to announce the filing of the first amended

12 complaint, Craig Pefferle’s supervisor, Sergeant Dean Brown told him, Scott

13 Anderson, and Nicko Carcich, who was a named plaintiff on the initial complaint

14 and spoke at the press conference, that “they had just shot their careers in the foot”

15 and that if the department’s past practices were any indication, “they would never

16 be promoted.” Declaration of Craig Pefferle ¶ 11. After the amended complaint

17 was filed, Captain Mendez told Jim Renstrom, one of the named plaintiffs in the

18 initial complaint, that as long as Mendez is in the department named plaintiff

19 Craig Ansman would “never go anywhere in the Ontario Police Department” and

20 “he will make sure of that.” Declaration of Craig Ansman ¶ 13. Since the filing of

21 the case, Mendez has twice written the word “No”on the staff evaluation sheet

22 concerning potential assignments – once to a gang unit and once to motorcycle

23 duty, both of which Ansman was seeking but did not obtain. Ansman did not

24 receive the gang unit assignment even though Captain Evans told he had gotten

25 the top score in the oral interview. Id. at ¶ 14

26

The current named plaintiffs not only faced financial risks from bringing

27 this suit, but they have also actually incurred financial costs. After plaintiffs

28

11

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 19 of 33

1 discovered during the course of discovery that Joe Sifuentes had not installed the

2 surveillance equipment but had instead removed some of the cables used with the

3 surveillance equipment, they sought to negotiate with him a stipulated dismissal

4 that would result in his no longer being a defendant. Mr. Sifuentes refused to

5 stipulate to dismissal and indicated that he would seek attorneys fees if Plaintiffs

6 moved for his dismissal under FRCP 41(a)(1)(A)(ii). Plaintiffs and their counsel

7 concluded that the safest course was to negotiate a settlement that provided for a

8 stipulated dismissal and payment of some attorneys fees. In the end, the named

9 plaintiffs each paid $225 out of their own pockets. See Eliasberg Decl. ¶ 23. The

10 named plaintiffs have also each incurred substantial travel expenses going to Los

11 Angeles or Pasadena to meet with their attorneys and attend depositions. Id.

12

The named plaintiffs have also endured a substantial amount of ridicule for

13 their role in this case. For example, members of the department, including high

14 ranking officers in the department have referred to the named plaintiffs by a

15 variety of insulting names including: “the dirty dozen,” “the hated eight,” “Al

16 Quaeda,” and “the Taliban.” Decl’s of Anderson ¶¶ 12-14; Ansman ¶ 12; Bernhard

17 ¶¶ 15-17; Pefferle ¶ 10; Rivera ¶ 11; Trujillo ¶¶ 14-19; .

18

The named plaintiffs, and many of the initial named plaintiffs, spent

19 significant amounts of time on this matter, time that unnamed class members did

20 not spend. This expenditure of time weighs heavily in favor of the proposed

21 incentive awards. Each of the named plaintiffs performed the following tasks that

22 took substantial amounts of time:

23 • 24
• 25 26 27 • 28

Had their depositions taken and worked with their attorneys to prepare for their depositions; Attended three mediation sessions, one with then-Magistrate Judge Larson, one at JAMS with former federal district court Judge Lourdes Baird, and one in Ontario with Retired State Court Justice Richard Neal; Submitted at least one declaration in support of plaintiffs’ motion for class certification, plaintiffs’ motion for summary adjudication, or in opposition

12

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 20 of 33

1

to defendants’ motion for summary judgment;

2 • attended at least two sessions with their attorneys in preparation for testifying at trial;
3 • participated in countless phone calls either as a group or individually with

4

their lawyers to discuss strategy, potential settlements and other ongoing

5

litigation matters;

• provided a wide variety of informal discovery to their attorneys on the

6

policies and practices of the department.

7 • spent time responding to inquiries for unnamed class members concerning

8

the status of the case.

Decl’s of Anderson ¶¶ 4-10; Ansman ¶¶ 4-10; Bernhard ¶¶ 3-13; Pefferle ¶¶ 3-9;

9

Rivera ¶¶ 4-10; Trujillo ¶¶ 3-13.

10

Beyond these tasks, which all the named plaintiffs performed, the named

11

plaintiffs performed a variety of other time consuming tasks such as working with

12

their lawyers on preparation for depositions; attending depositions and conferring

13

with their lawyers during breaks about potential follow up questions; and

14

reviewing documents produced during discovery. See, e.g., Anderson Decl. ¶ 6

15

(Anderson attended depositions of Brad Schneider, Tony Del Rio, Steve Duke,

16

Lloyd Scharf, and Eric Hopley); Ansman Decl. ¶ 6 (Ansman attended depositions

17

of Chief Doyle, Lloyd Scharf, Joe Sifuentes, Steve Duke, Eric Hopley and Tony

18

Del Rio); Trujillo Decl. ¶ 8 (Trujillo attended depositions of Brad Schneider,

19

Chief Doyle, Michael Thompson, Lloyd Scharf, and Pat McMahon);

20

Many of the named plaintiffs on the initial complaint also spent a

21

substantial amount of time on the case, which justifies their incentive award under

22

the factors set forth in the Van Vraken case. For example, all the original named

23

plaintiffs, save one, submitted declarations in support of the motion for class

24

certification. Eliasberg Decl. ¶ 24. Steve Hurst and Rick Carroll also submitted

25

declarations in support of either plaintiffs’ motion for partial summary judgment

26

or for use during depositions. Id. A number of the original named plaintiffs,

27

including Mike Bors, Rick Carrol, Ron Dupuis, Steve Guderian, Keith Henderson,

28

13

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 21 of 33

1 Steve Hurst and Fred Ruiz, spent a substantial amount of time being interviewed

2 by plaintiffs’ lawyers, and reviewing draft responses, to respond to defendants’

3 damages discovery. Id. Steve Hurst, Ron Dupuis, Keith Henderson, and Rick

4 Carroll each met with plaintiffs’ lawyers on two or more occasions to prepare to

5 testify at trial. Id.

6 B. THE ATTORNEYS FEES AND COSTS REQUEST OF $1,210,000 IS FAIR AND REASONABLE
7 The settlement agreement in this case provides that the attorneys fees’
8 award is part of the total settlement amount, and will be determined with reference
9 to the lodestar method of calculation. In order to determine what constitutes a
10 reasonable award, the Supreme Court has held that “[t]he most useful starting
11 point for determining the amount of a reasonable fee is the number of hours
12 reasonably expended on the litigation multiplied by a reasonable hourly rate.”
13 Hensley v. Eckerhart, 461 U.S. 423, 433 (1983.) This calculation, known as the
14 lodestar, is “presumed to be the reasonable fee.” Blum v. Stenson, 465 U.S. 886,
15 897 (1984).2 This presumption applies in the context of class action settlements.
16 See Fischel v. Equitable Life Assur. Society of U.S., 307 F.3d 997, 1007 (9th Cir.
17 2002).
18 The award of attorneys’ fees is within the court’s discretion, taking into
19 consideration the following factors, set forth in Kerr v. Screen Actors Guild, 526
20

21

22

2 Courts frequently award a substantial multiplier to the lodestar amount to

compensate the difficulty and complexity of litigation, the undesirability of a case,

23 the success rate, and, in common fund cases, the risks of nonrecovery. See Fischel

v. Equitable Life Assur. Society of U.S., 307 F.3d 997, 1008 (9th Cir. 2002) ("It is

24 an established practice in the private legal market to reward attorneys for taking

the risk of non-payment by paying them a premium over their normal hourly rates

25 for winning contingency cases." ); Guam Soc. of Obstetricians and Gynecologists

v. Ada, 100 F.3d 691, 697 (9th Cir. 1996). These multipliers can be substantial.

26 See, e.g., 4 Newberg on Class Actions, § 14:6 at 578 (4th ed. 2002) ("Multiples

ranging from one to four frequently are awarded in common fund cases when the

27 lodestar method is applied."); Fishcel, 307 F.3d at 1008 (approving 1.5 multiplier

for success rate); Guam Soc., 100 F.3d at 697 (upholding multiplier of 2.0 due to

28 undesirability of case).

14

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 22 of 33

1 F.2d 67, 70 (9th Cir. 1975): 1) the time and labor required; 2) the novelty and

2 difficulty of questions involved; 3) the skill requisite to perform the legal service

3 properly; 4) the preclusion of other employment by the attorney due to acceptance

4 of the case; 5) the customary fee; 6) whether the fee is fixed or contingent; 7) time

5 limitations imposed by the client or the circumstances; 8) the amount involved and

6 the results obtained; 9) the experience, reputation, and ability of the attorneys; 10)

7 the ‘undesirability’ of the case; 11) the nature and length of the professional

8 relationship with the client; and 12) awards in similar cases.

9

Many of these factors are subsumed within the initial lodestar

10 determination, however. Thus, it is only in the rare case should consideration of

11 these factors result in adjustment to the lodestar. See Cunningham v. County of

12 Los Angeles, 879 F.2d 481, 487 (9th Cir. 1988). To the extent these factors would

13 militate in favor of adjustment, the adjustment would be an upward one from the

14 base lodestar. For example, the contingent nature of the case and experience, skill,

15 and reputation of the attorneys for the plaintiff class would weigh in favor of

16 upward adjustment if plaintiffs sought such an adjustment – which they do not.

17

As is set forth in detail below, plaintiffs’ counsel’s lodestar totals

18 $1,294,454.40, reflecting $567,246.50 in fees by the ACLU of Southern

19 California, $587,163.65 by Hadsell Stormer Keeny Richardson & Renick LLP,

20 and $140,044.25 by Bahan & Associates, after the exercise of billing judgment.

21 The unreimbursed costs incurred by all three offices total $59,598.91. However,

22 plaintiffs' counsel have agreed to limit the total award of fees and costs sought to

23 $1.21 million, in order to provide the relief described above to the class members.

24 Should this Court reject any portion of the award to the class members, plaintiffs

25 ask that that amount go to the attorneys so long as it does not bring the amount

26 received by the attorneys above their lodestar amount plus costs. Conversely,

27 should this Court reject any portion of plaintiffs’ attorneys fees requested,

28

15

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 23 of 33

1 plaintiffs request that the remainder be allocated to the class members.

2

1. The Amount of Hours Worked Is Reasonable

3

To support this motion and the specific request for fees, plaintiffs’ counsel

4 have submitted the Declarations of Dan Stormer, Peter Eliasberg, and Della

5 Bahan, which describe the work done by both the Hadsell firm and the ACLU, as

6 well as the work done by Bahan & Associates.

7

At the Court’s request, plaintiffs’ counsel have also submitted their actual

8 billing records under seal, to be reviewed by this Court in camera, attached to the

9 Supplemental Declarations of Anne Richardson, Peter Eliasberg, and Della Bahan.

10

The time set forth in this motion is for time spent through March 13, 2009,

11 and does not include the time that will be spent through the filing of this motion,

12 in preparation of any reply, and at oral argument, or for time spent on the notice

13 and for final approval. Counsel estimate that such additional tasks will cost

14 approximately another $75,000 in fees.

15

The declarations constitute sworn evidence that the attorneys actually

16 expended the time for which compensation is sought. “Sworn testimony that, in

17 fact, it took the time claimed is evidence of considerable weight on the issue of the

18 time required in the usual case. . . . “ Perkins v. Mobile Housing Board, 847 F.2d

19 735, 738 (11th Cir. 1988). For a court to deny compensation, “it must appear that

20 the time claimed is obviously and convincingly excessive under the

21 circumstances.” Id. (emphasis added). “The applicant need not detail how each

22 minute was expended; rather counsel should identify "the general subject matter of

23 his time expenditures." Hensley, 461 U.S. at 437, n. 12.

24

As another court has put it, "a fee petition should include 'some fairly

25 definite information as to the hours devoted to various general activities, e.g.,

26 pretrial discovery, settlement negotiations, and the hours spent by various classes

27 of attorneys, e.g., senior partners, junior partners, associates." Rode v.

28

16

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 24 of 33

1 Dellarciprete, 892 F.2d 1177, 1190 (3rd Cir. 1990). "However, 'it is not necessary

2 to know the exact number of minutes spent nor the precise activity to which each

3 hour was devoted nor the specific attainments of each attorney.'" Id., at 1190. In

4 Rode, the court rejected the argument that billing entries such as "settlement" and

5 "miscellaneous research, telephone conversations, and conferences concerning

6 facts, evidence, and witnesses" were insufficiently specific. 892 F.2d at 1191, and

7 n. 13. See generally Davis v. City and County of San Francisco, 976 F.2d 1536,

8 1542 (9th Cir. 1992) (rejecting argument that billing records were insufficiently

9 specific, emphasizing that Supreme Court's decision in Hensley requires only that

10 counsel “identify the general subject matter of his time expenditures”), vacated in

11 part on other grounds, 984 F.2d 345 (9th Cir.1993).

12

Moreover, plaintiffs have exercised billing judgment in this request for fees.

13 Attorneys at HSKRR went through and deleted certain entries - approximately 40

14 hours - performed by attorneys, law students, and paralegals on this case which

15 could arguably be considered redundant or unnecessary. In addition, HSKRR has

16 not included time spent by an attorney or paralegal who worked fewer than 10

17 hours on the case. The firm also has not included the minimal time spent on the

18 case before the case came down from the court of appeals. Finally, HSKRR

19 deducted an overall 5% of its attorneys and paralegal hours, in order to avoid any

20 duplication or redundancies.

21

The ACLU has, among other things, deleted any time spent by lawyers,

22 paralegals or law students who billed less than 10 hours on the case, and is not

23 seeking compensation for more than 30 hours spent by

, a 1995 law

24 school graduate who worked on a variety of tasks in the six weeks prior to the

25 scheduled trial date. Overall, the ACLU’s exercise in billing judgment has

26 resulted in an approximately 6.5 % reduction in the fees sought. Eliasberg Decl.

27

Bahan and Associates has not included time spent by staff who worked less

28

17

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 25 of 33

1 than 10 hours on the case. In addition, the firm has deducted an overall 5% from

2 the hours of its attorneys and paralegals who billed more than ten hours on the

3 matter, to avoid any duplication or redundancies. Bahan Decl. ¶¶ 12, 13.

4

In evaluating whether plaintiffs’ fees are reasonable, the Court must

5 consider the nature of the defense mounted by Defendants. See Copeland v.

6 Marshall, 641 F. 2d 880, 904 (D.C. Cir. 1980)(“[a party] cannot litigate

7 tenaciously and then be heard to complain about the time necessarily spent by the

8 plaintiff in response.” ) (en banc); see also Stanford Daily v. Zurcher, 64 F.R.D.

9 680, 683 n.2 ( 1974) (finding no ground for exclusion of any of attorneys’ time in

10 calculating reasonable attorneys’ fees where “[t]he large number of hours

11 expended by plaintiffs’ attorneys was necessitated not only by their claims but also

12 from a need to counter the defendants’ numerous affirmative defenses to the

13 complaint and various motions”)). As the Court is well aware, this case lasted for

14 almost five years, during which defendants, inter alia, deposed all the named

15 plaintiffs, opposed plaintiffs’ motion for class certification, opposed plaintiffs’

16 motion for partial summary judgment, filed their own motion for summary

17 judgment, and propounded written discovery on all unnamed class members.

18

Finally, much of the billing in this case (and indeed, most of the billing by

19 the Hadsell firm) took place after the third and final attempt at mediation, on

20 November 7, 2008, had failed and the parties had to prepare in earnest for trial.

21

2. The Hourly Rates Are Reasonable

22

In Blum v. Stenson, 465 U.S. 886, 895 & n.1 (1984), the Supreme Court

23 explained that “reasonable fees under § 1988 are to be calculated according to the

24 prevailing market rates in the relevant community.” Ordinarily, the reasonable

25 rate is determined based on the legal market in the community where the district

26 court sits. See Davis v. Mason County, 927 F.2d 1473, 1488 (1991). In this case,

27 the district judge sat in the United States District Court for the Central District of

28

18

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 26 of 33

1 California in Riverside. Even if there is some difference in the rates between the

2 Riverside and Los Angeles, where the principal courthouse for the Central District

3 is located, Plaintiffs are nonetheless entitled to Los Angeles rates. A prevailing

4 plaintiff is entitled to rates “outside the forum” “‘if local counsel was unavailable,

5 either because they are unwilling or unable to perform because they lack the

6 degree or experience, expertise, or specialization required to handle the case

7 properly’” Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997) (quoting Gates v.

8 Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992)).

9

Here, the evidence demonstrates that local counsel capable of handling this

10 major class action litigation through trial and appeal were unavailable. Carol

11 Sobel, and Barry Litt, two of the foremost civil rights litigators in the state have

12 submitted declaration attesting to the scarcity of attorneys in Riverside who are

13 capable of handling significant civil rights class actions such as this. Sobel Decl.,

14 at ¶¶15-16; Litt Decl.¶20. Nora Quinn, an extremely experienced and active

15 attorney practicing in the Inland Empire, has also submitted a declaration attesting

16 to the lack of attorneys in Riverside or San Bernardino Counties who could litigate

17 such a matter. Quinn Decl., ¶ 9. By contrast, the law firms of Hadsell Stormer

18 Keeny Richardson & Renick LLP (formerly Hadsell & Stormer, Inc.), and the

19 ACLU Foundation of Southern California have specialized expertise in class

20 action civil rights litigation. Eliasberg Decl. passim; Stormer Decl., passim.

21

Moreover, the Ninth Circuit Court of Appeal has already evaluated an

22 interim fee request made by the ACLU for time spent on the appeal. The ACLU’s

23 fee motion explained that the ACLU was seeking compensation at Los Angeles

24 market rates because of the unavailability of local counsel capable of handling a

25 class action civil rights matter of this size. The Ninth Circuit granted the fee

26

27

28

19

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 27 of 33

1 motion in its entirety.3 See Exhibit 2 attached to the Eliasberg Decl. Accordingly,

2 Plaintiffs are entitled to attorneys’ fees at Los Angeles market rates.

3

In determining the prevailing market rate, the Court should pay “close

4 attention” to “the fees charged by ‘lawyers of reasonably comparable skill,

5 experience, and reputation.’” Davis, 976 F.2d at 1545-46 (quoting Blum, 465 U.S.

6 at 895). In this case, the attached declarations of Peter Eliasberg, Dan Stormer,

7 Anne Richardson, Della Bahan, Barrett S. Litt, Douglas Mirell, and Carol Sobel

8 demonstrate that the hourly rates requested by Plaintiffs for each attorney and

9 paralegal are in line with the market rates in the Los Angeles legal community for

10 similar services performed by attorneys of comparable skill, experience, and

11 reputation. See Litt Decl. ¶¶14-26; Sobel Decl. ¶¶5-17. See United Steelworkers

12 of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990)(“Affidavits of

13 the plaintiffs’ attorney and other attorneys regarding prevailing fees in the

14 community, and rate determinations in other cases, particularly those setting a rate

15 for plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.”).4

16 Attorney/paralegal Grad. Year

17 Dan Stormer

1974

18

19 Della Bahan

1979

Allan Ides

1979

20 Anne Richardson 1989

21

22 Peter Eliasberg 1994

Billing Rate $800
$695 $695 $575
$525

Hours Billed Total Sought After Deductions

301.10

228,836*

68 10.5 345.6 less 2.1 = 343.5 639.9

44,897.00* 7,297.50 187,636.88*
335,947.50

23

24

3 Plaintiffs have exercised care to ensure that none of the time for which the

25 Ninth Circuit awarded compensation to the ACLU in its interim fee order is

included in the table above or the billing records attached to Mr. Eliasberg’s

26 supplement declaration filed under seal.

27

4 Because this litigation has taken almost five years, Plaintiffs are entitled to

a fee award at current, rather than historic rates. See, e.g., Gates v. Deukmejian,

28 987 F.2d 1392, 1406-07 (9th Cir. 1992).

20

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 28 of 33

1 Ahilan 2 Arulanantham 3 Puja Batra
Lisa Holder 4 Peter Bibring 5 (at ACLU)

6

Peter Bibring (at Bahan)

7 Lori Rifkin

1999
1999 2000 2002
2002
2004

$425
$425 $400 $375
$375
$335

8 Nagwa Ibrahim 2007

$275

9 Radhika Sainath 2008

$250

10

Law Students (ACLU)

11 Law Students

12 (HSKRR)

Experienced 13 paralegals

(ACLU) 14 Experienced

15

Paralegals (HSKRR)

16 Mid-level

17

paralegal (HSKRR)

18 Entry-level

19

paralegal (HSKRR)

$200 $200 $175 $175 $150 $100

20 (*) reflects total after 5% reduction.

86 99.6 167.68 174.1 154.2 101 64.10 81.60 320.3 35.80 138.68
213.90
58.55
212.00

36,550.00 44,897.00* 63,718.40* 65,287.50 54933.75* 33,835.00 16,746.12* 19,380.00* 64,060.00 6,802* 24,269.00
35,560.88*
8,343.38*
20,140.00*

21

Plaintiffs are requesting compensation for Peter Eliasberg, who has been

22 one of the lead counsel throughout this litigation, at the rate of $525 an hour. Mr.

23 Eliasberg is the Managing Attorney of the ACLU of Southern California and a

24 leading civil rights attorney in the region. Plaintiffs are requesting compensation

25 for Allan Ides, Ahilan Arulanantham, Peter Bibring, and Lori Rifkin of the ACLU

26 in the amount of $695, $400, $375 and $335, respectively. See Declaration of

27 Peter Eliasberg, ¶¶ 3-6 & 25. These rates are all eminently reasonable in light of

28

21

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 29 of 33

1 their experience, skill, and expertise. Mirell Decl. ¶¶ 6, 8-10, 13-14; Litt Decl.

2 ¶26; Sobel Decl. ¶¶7-11.

3

In 2008, in preparation for trial, plaintiffs brought in the law firm of Hadsell

4 Stormer Keeny Richardson & Renick. Plaintiffs are requesting compensation for

5 Dan Stormer, one of the leading civil rights lawyers in California at the rate of

6 $800 per hour. (Stormer Decl., ¶13.) They are also seeking compensation for

7 Anne Richardson, a partner in his law firm, at the rate of $575 per hour; and for

8 associates of the firm at the rate of $400 - $250 per hour. (Stormer Decl., ¶13;

9 Richardson Decl. ¶5.)

10

Plaintiffs are also seeking the time spent by the law firm of Bahan &

11 Associates at the rates of $695 for Della Bahan, $425 for Puja Batra, and $375 for

12 Peter Bibring. Bahan Decl. ¶10.

13

Rates billed by other lawyers in the Los Angeles market who have similar

14 experience and do civil litigation demonstrate that $800 per hour is eminently

15 reasonable for Mr. Stormer. Mr. Stormer is regularly included in the 100 most

16 influential attorneys in the State of California. He has been the recipient of dozens

17 of awards and regularly teaches master classes at law schools and legal seminars

18 throughout the country on trials and litigation. Stormer Decl. at ¶¶3-11. He is

19 recognized as among the finest civil rights attorneys in both California and the

20 country. Litt Declaration ¶14, Mirell Decl. ¶5. He has already been awarded his

21 $800 an hour rate by Judge Consuelo Marshall in a class action lawsuit that went

22 to verdict in 2007. See Stormer Decl. ¶ 77.

23

According to Douglas Mirell, a partner in the litigation department at Loeb

24 & Loeb in Los Angeles, partners with a comparable level of skill experience as

25 Mr. Stormer would be billed in the range of $750-$800 an hour. Mirell Decl. ¶5.

26

The National Law Journal’s 2007 survey of billing rates at the 250 largest

27 firms in the country provides the following information: at Loeb & Loeb, partner

28

22

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 30 of 33

1 rates range from $425-$875 and associate rates range from $240-$500; at Manatt

2 Phelps & Phillips, LLP, partner rates were in the range of $520-$785 and associate

3 billing rates were in the range of $265-$480; at Sheppard Mullin, Richter &

4 Hampton LLP, partner rates were in the range of $425-$795 and associate billing

5 rates were in the range of $260-$550; at Greenberg Traurig, partner billing rates

6 were in the range of $300-$1000 and associate billing rates were in the range of

7 $175-$505. Litt Decl. ¶24. See also Sobel Decl. Exhs. 4 &5 (NLJ survey 2008

8 rates).

9

Plaintiffs’ request for Ms. Richardson to be compensated at the rate of $575

10 is also eminently reasonable. Ms. Richardson is a 1989 graduate from Stanford

11 Law School with numerous awards, experience teaching Civil Rights Litigation at

12 two law schools, and an excellent reputation as a civil rights lawyer. (See

13 Richardson Decl., ¶¶6-8; Mirell Decl. ¶7, Sobel Decl. ¶12, 17 and Litt Decl., ¶14.)

14 Other law firms bill partners with comparable experience at between $600-$625 an

15 hour. Mirell Decl. ¶7.

16

Plaintiffs also seek compensation for the amount of time billed by various

17 associates (at varying rates as set forth in the attached declarations) and law clerks

18 and paralegals who served on the case at rates of $100 through $200, depending

19 on experience. Richardson Decl. ¶5; Eliasberg Decl. ¶¶ 7-10.Their rates are well

20 within the range of rates billed for associates and paralegals with their level of

21 experience. Mirell Decl. ¶¶10-15; Sobel Decl. ¶¶14-17; Litt Decl. ¶¶25-26.

22 C. ATTORNEYS FEES CLAIMED BY LACKIE & DAMMEIER

23

The previously disqualified attorneys Lackie & Dammeier have filed a lien

24 in this matter for $907,500. Plaintiffs have also informed a partner at Lackie &

25 Dammeier, at the Court’s request, that if that firm wants to seek fees, it must file a

26 motion by March 16, 2009 Assuming Lackie & Dammeier files a motion for fees,

27 plaintiffs request that the Court rule on the validity of the lien along with their

28

23

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 31 of 33

1 motion. Plaintiffs also request that this Court rule on the amount to which Lackie

2 & Dammeier would be eligible, if the Court’s disqualification order is reversed,

3 and also if it is sustained, so that the amount in dispute will be fixed as to them.

4 D. PLAINTIFFS’ LITIGATION EXPENSES ARE RECOVERABLE

5

Fed. R. Civ. P. 54(d)(1) provides that “[e]xcept when express provision

6 therefor is made either in a statute of the United States or in these rules, costs other

7 than attorneys’ fees shall be allowed as of course to the prevailing party unless the

8 court otherwise directs . . ..” The types of costs that may be awarded under Rule

9 54(d) are limited to those listed in 28 U.S.C. § 1920. Crawford Fitting Co. v. J. T.

10 Gibbons, Inc., 482 U.S. 437, 441-42 (1987), superseded by statute on other

11 grounds as stated in Fernando v. Hotel Nikko Saipan, 1992 U.S. Dist. LEXIS

12 10228, at *3 (D. N. 1992). Local Rule 54-4 lists the items taxable as costs.

13

In addition to attorneys’ fees and costs recoverable under Rule 54-4,

14 Plaintiffs are entitled to recover their out-of-pocket expenses normally billed to

15 fee-paying clients. See Harris v. Marhoefer, 24 F. 3d 16, 19 (9th Cir. 1994)

16 (under federal fee-shifting statutes, out-of-pocket expenses normally billed to a

17 client are recoverable as part of fees award); Calderon v. Witvoet, 112 F.3d 275

18 (7th Cir. 1997) (travel and meal expenses recoverable); Missouri v. Jenkins, 491

19 U.S. 274, 285-89, 105 L. Ed. 2d 229, 109 S. Ct. 2463 (1989); Herold v. Hajoca

20 Corp., 864 F.2d 317, 323 (4th Cir. 1988). Electronic research fees are ordinarily

21 recoverable. See InvesSys, Inc. v. McGraw-Hill Cos., Ltd., 369 F.3d 16, 22-23 (1st

22 Cir. 2004); see also In re Mulberry Phosphates, Inc., 151 B.R. 948 (Bankr. M.D.

23 Fla. 1992) (holding that litigation expenses such as clerical expenses, postage,

24 express mail services, and computer time do not constitute overhead when the firm

25 uses a “user fee billing system,” as is the case here, in which the firms bill clients

26 only for specific expenses related to services performed on behalf of the client).

27 (Stormer Decl., ¶). Plaintiffs have incurred costs and related non-taxable litigation

28

24

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 32 of 33

1 expenses consisting of $46,730.20 in charges for which they seek reimbursement.5

2 (Richardson Decl., ¶23; Eliasberg Decl., ¶.) Those costs are as follows:

3 Type of Cost 4

HSKRR

ACLU of Bahan & Total/All So. Cal. Associates Firms

5 Filing Fees (LR 54-4.1) 6 Reporter’s Transcripts

$110.00 $15.30

$66.00

$110.00 $81.3

7 (LR 54-4.5)

8 Other Transcripts

9 Depositions (LR 54-4.6) 10 Witness Fees (LR 54-4.7)
Costs of Enhancing 11 VideoTape and Making
Clips to Show Class 12 Members (LR 54-4.13)

13 Deposition Videography
14 Expert Fees 15 Mediation Fees
Photocopying/Fax 16 Service

17

Legislative History Documents

18 Computer-aided 19 Research

20

Delivery/messenger charges

21 Postage

22 Travel/meals

$1070.00 $282.36
$6,512.83
$5,034.54 $7,056.50
$535.90 $239.00
$61.86 $606.30

$2,462.13 $8,621.24
$68.00 $350.73
$1,686.00 $4,275.00
$613.20 $693.30
$5,694.42
$2,083.94

$2,462.13 $6,614.48 $16,305.72
$350.36 $6,863.56

$577.75
$1,750.00 $197.89

$577.75 $6,720.54 $6,025.00 $7,867.59

$693.30

$535.90

$436.00 $6,369.42

$61.86 $262.40 $2,952.64

23

24

5 The related litigation expenses reasonably include: (1) travel expenses, including lodging, car rental and meals. Keith v. Volpe, 643 F. Supp. 37, 43 (C.D.

25

Cal. 1985); Thornberry v. Delta Airlines, Inc., 676 F.2d 1240, 1244 (9th Cir. 1982); (2) photocopying expenses and messenger service, Thornberry, 676 F.2d at

26

1244; (3) postage, Volpe, 643 F. Supp. at 43; Connor v. Winter, 519 F. Supp. 1337, 1345 (S.D. Miss. 1981); (4) express mail, Connor, 519 F. Supp. at 1345; (5)

27

telephone charges, Volpe, 643 F. Supp. at 43; Thornberry, 676 F.2d at 1244; and (6) computer-aided research, Wehr v. Burroughs Corp., 619 F.2d 276, 284 (3rd

28 Cir. 1980).

25

Case 5:04-cv-01015-VAP-PJW Document 237 Filed 03/16/2009 Page 33 of 33

1 Conference calls 2 Parking/Mileage 3 Express Mail 4 Total

$10.26 $1,212.36
$122.33 $22,869.54

$73.00 $26,686.96

$160.86 $43.03
$10,042.41

$10.26 $1,446.22
$165.36 $59,598.91

5 CONCLUSION

6

For the reasons stated herein, Plaintiffs respectfully request that this Court

7 preliminarily approve the proposed settlement of $2,750,000; the proposed

8 distribution of the settlement, including the incentive awards, to the class

9 members; attorneys’ fees and costs in the amount of $1,210,000 and approve the

10 proposed notice to the class.

11

12 DATED: March 16, 2009 13 14

ACLU FOUNDATION OF SOUTHERN CALIFORNIA HADSELL STORMER KEENY RICHARDSON & RENICK, LLP

15

By

/s/

Peter Bibring

16

Attorney for Plaintiffs

17

18

19

20

21

22

23

24

25

26

27

28

26

 
 Case 5:04-cv-01015-VAP-PJW Document 258-2 Filed 04/15/2009 Page 1 of 27

1 PETER J. ELIASBERG (S.B.No. 189110)

2 E-mail: peliasberg@aclu-sc.org PETER BIBRING (S.B. No. 223981)
3 E-mail: pbibring@aclu-sc.org

4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA
5 1313 W. 8th Street

6 Los Angeles, CA 90017 Telephone: (213) 977-9500
7 Facsimile: (213) 977-5297

8 Attorneys for Plaintiffs Steve Trujillo, et al.
9

10

Celeste Brustowicz, Esq. Jim Rinos, Esq.

11 RINOS & MARTIN, LLP

12

17862 17th Street, Suite 104 Tustin, CA 92780

13 Telephone: (714) 734-0400

14

Facsimile: (714) 734-0480 Attorneys for Defendant

15 City of Ontario, Lloyd Scharf, Tony

16 Del Rio, and Michael Thompson

17 (Additional Counsel on Next Page)

18

UNITED STATES DISTRICT COURT

19

FOR THE CENTRAL DISTRICT OF CALIFORNIA

20

21 ROBERT BERNHARD, et al.,

22

Plaintiffs,

23

v.

24 CITY OF ONTARIO, et al.,

Case No.: ED CV 04-01015 VAP (PJWx) JOINT STIPULATION OF CLASS ACTION SETTLEMENT AND RELEASE

25

Defendants.

Ctrm: 2, Riverside

Judge: Hon. Virginia Phillips

26

27

28 1 of 25
JOINT STIP. OF CLASS ACTION SETTLEMENT AND RELEASE

Case 5:04-cv-01015-VAP-PJW Document 258-2 Filed 04/15/2009 Page 2 of 27
1 DAN STORMER (#101967) 2 ANNE RICHARDSON (#151541)
HADSELL STORMER KEENY RICHARDSON & RENICK, LLP 3 128 North Fair Oaks Avenue 4 Pasadena, California 91103-3645
Telephone: 626-585-9600 5 Facsimile: 626-577-7079 6 Attorneys for Plaintiffs
Steve Trujillo, et al.
7
8 BRUCE DISENHOUSE KINKLE, RODIGER, AND SPRIGGS
9 3333 Fourteenth Street 10 Riverside, CA 92501
Telephone: (951) 683-2410 11 Facsimile: (951) 683-7759 12 Attorneys for Defendant
Brad Schneider
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 2 of 25
JOINT STIP. OF CLASS ACTION SETTLEMENT AND RELEASE

Case 5:04-cv-01015-VAP-PJW Document 258-2 Filed 04/15/2009 Page 3 of 27

1

2

I.

3

PREAMBLE

4

1. This Class Settlement Agreement (“Settlement” or “Agreement”) is

5 entered into between plaintiffs Steve Trujillo, Scott Anderson, Craig Pefferle, Craig

6 Ansman, Robert Bernhard, and Will Rivera (collectively, the “Named Plaintiffs”)

7 individually and as class representatives on behalf of all individuals defined in

8 Section III of this Agreement (collectively, with the Named Plaintiffs, the “Settling

9 Class”), on the one hand, and defendant The City of Ontario, Lloyd Scharf, Tony Del

10 Rio, Michael Thompson, and Brad Schneider (collectively, “the Defendants”), on the

11 other hand. The Settling Class and the Defendants will be referred to collectively

12 herein as the “Settling Parties.”

13

2. On August 13, 2004, plaintiffs Mike Kelley, Scott Anderson, Robert

14 Bernhard, Will Rivera, Jeff Quon, Steven Trujillo, Steven Hurst, Jim Renstrom, Ron

15 Dupuis, Keith Henderson, Craig Pefferle, Nicko Carcich, Rick Carroll, Salvador

16 Garcia, Christopher Alvarez, Fred Ruiz, Steve Guderian, Mike Bors, and Craig

17 Ansman (the “Original Plaintiffs”) filed an action against the City of Ontario, Brad

18 Schneider, Lloyd Scharf, Tony Del Rio and Joe Sifuentes. On October 28, 2004, the

19 complaint was amended to include class action allegations, and at that time, many of

20 the Original Plaintiffs were taken off the pleadings and replaced by the Named

21 Plaintiffs. On September 29, 2005, plaintiffs filed a second amended complaint,

22 which added Michael Thompson as a defendant in place of Joe Sifuentes. Both the

23 first and second amended complaint list Steve Trujillo as the first plaintiff, and the

24 Court’s decision on summary judgment has the caption Trujillo v. City of Ontario,

25 and bears case number EDCV 04-01015. For purposes of this settlement agreement,

26

27

28 3 of 25
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Case 5:04-cv-01015-VAP-PJW Document 258-2 Filed 04/15/2009 Page 4 of 27
1
the case Trujillo v. City of Ontario, CV 04-0101, shall be referred to as the 2 “Lawsuit”.1
3
3. Both the original and the amended complaints were based on video
4
surveillance that was initiated by Brad Schneider, then a Detective with the City of
5
Ontario Police Department, with the assistance of Michael Thompson in the men’s
6
locker room at the Police Department. Plaintiffs alleged the responsibility of the City
7
and of the other named defendants. Defendants denied liability and damages.
8
4. The Lawsuit generally alleges that the covert videotaping in the men’s
9
locker room violated the privacy of all individuals who used the locker room during
10
the time that the videotaping occurred. The Lawsuit seeks damages, including
11
emotional and punitive damages, attorneys’ fees and costs, interest, and such other
12
relief as the Court may award.
13
5. On April 14, 2005, the Court issued a written order granting the motion
14
certifying a class under FRCP 23(b)(3) defined as follows:
15
all persons who were employed by the Ontario Police Department or
16
volunteered for the Ontario Police Department used the men’s locker room
17
during the period the surveillance equipment was installed and were recorded
18
by the surveillance equipment.
19
6. The Settling Parties attended several mediations prior to trial, none of
20
which resulted in a settlement. Trial was set for February 17, 2009. Immediately
21
prior to trial, the Settling Parties again engaged in settlement discussions, and
22
plaintiffs issued a Demand on or about February 14, 2009. On or about February 17,
23
2009, the Defendants’ counsel informed the Court that Defendants’ counsel and the
24
City Manager would recommend to the City Council that evening that plaintiffs’
25
demand be accepted. That evening, the City of Ontario City Council met and
26
approved settlement in the total amount of $2,750,000. The Plaintiff class is to be
27
1 The Ninth Circuit apparently referred to the original complaint, which listed Bob Bernhard as the first plaintiff, and its
28 decision in this case bears the name Bernhard v. City of Ontario, Ninth Circuit Case No. 06-55736. 4 of 25
JOINT STIP. OF CLASS ACTION SETTLEMENT AND RELEASE

Case 5:04-cv-01015-VAP-PJW Document 258-2 Filed 04/15/2009 Page 5 of 27
1
awarded damages and Enhancement Awards, as described more fully below in
2
Paragraph 31, in the amount of $1.54 million. Attorneys fees and costs are to be
3
awarded on a lodestar basis, out of a separate fund, but with the parties agreeing that
4
the amount of fees and costs will not exceed $1.21 million.
5
7. On February 18, 2009, the Joint Statement of Agreement among the
6
parties was read into the record in open Court in the presence of all the Named
7
Plaintiffs, not including Jeff Quon who does not appear on the videotape and thus is
8
not a class member. All Named Plaintiffs had previously been informed of the terms
9
of the Joint Statement of Agreement and approved them.
10
8. The Settling Parties have agreed to avoid further litigation and to settle
11
and resolve all existing and potential disputes, actions, lawsuits, charges and claims
12
that the Settling Class has or may have against Defendants, arising from the
13
allegations in this lawsuit, as provided more fully herein in paragraph 44. The
14
Named Plaintiffs and their counsel have concluded that the Settlement is fair,
15
reasonable, and in the best interests of the class members and respectfully request that
16
the Settlement be approved by the Court.
17
9. This Agreement shall become effective upon the “Effective Date,” as set
18
forth in Section VI below. The Settling Parties hereby agree to do all things and to
19
engage in all procedures reasonably necessary and appropriate to obtain final Court
20
approval of this Agreement, in consideration for: (a) the payment by the City of
21
Ontario of the consideration described herein, subject to the terms, conditions and
22
limitations of this Agreement; and (b) the release and dismissal with prejudice of all
23
claims by members of the Settling Class; and (c) the releases by Defendants as
24
described in Paragraphs 44-48 of this Agreement.
25
26
27
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Case 5:04-cv-01015-VAP-PJW Document 258-2 Filed 04/15/2009 Page 6 of 27

1

II.

2 PAYMENTS TO THE SETTLING CLASS, CLASS COUNSEL, NAMED PLAINTIFFS, AND THE CLAIMS ADMINISTRATOR
3

4

10. Subject to Court approval, and the provisions of this Agreement, the

5 City of Ontario shall make available two funds, one for $1.54 million for damages

6 and the other for a maximum of $1.21 million for attorneys fees and costs for a total

7 of two million seven hundred fifty thousand and no cents ($2,750,000.00) to be paid

8 in consideration for the settlement and dismissal with prejudice of the Lawsuit and

9 the related release of all claims the members of the Settling Class may have against

10 Defendants, as contained in Paragraphs 44 and 45 of this Agreement.

11

11. The City of Ontario shall deposit $1,540,000 in an interest-bearing

12 escrow account to be established by the City of Ontario and the other $1,210,000 in

13 an interest-bearing escrow account to be established by Class Counsel no later than

14 ten (10) business days after receipt of notice of the Court’s entry of an order of

15 preliminary approval of the settlement. The funds shall remain in said

16 interest-bearing escrow accounts, pending occurrence of the Effective Date as

17 defined in Section VI of the Agreement. The City of Ontario shall not disburse any

18 portion of these funds until after the Effective Date.

19

12. The maximum amount that City of Ontario shall be required to pay for

20 settlement of the Lawsuit shall be $2,750,000. This will cover compensation to the

21 Settling Class, additional compensation, also referred to as incentive awards or

22 Enhancement Awards, to the Named Plaintiffs and Original Plaintiffs, and attorneys’

23 fees and reimbursement of litigation costs and expenses to Class Counsel (as defined

24 in Sections VIII and IX.

25

26

27

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JOINT STIP. OF CLASS ACTION SETTLEMENT AND RELEASE

Case 5:04-cv-01015-VAP-PJW Document 258-2 Filed 04/15/2009 Page 7 of 27

1

III.

2

CLASS CERTIFICATION

3

13. On or about April 11, 2005, the Court certified a class defined as

4 follows: “all persons who were employed by the Ontario Police Department or

5 volunteered for the Ontario Police Department who used the men’s locker room

6 during the period the surveillance equipment was installed and were recorded by the

7 surveillance equipment.” Any putative class members who submitted Opt-Outs in

8 response to any notice regarding this Case will not be deemed to be Class Members in

9 this matter nor receive any compensation therein.

10

14. The individuals who were identified as appearing on the videotape in

11 question by representatives of the Ontario Police Department, the Ontario Police

12 Management Group and the Ontario Police Officers Association are listed in

13 Exhibit A. This exhibit will be submitted separately under seal, in order to protect

14 their identity as peace officers.

15

15. The Settling Parties’ settlement of the Lawsuit, and their rights and

16 obligations hereunder, are contingent upon final approval by the Court of this

17 Agreement as to the Settling Class. The Settling Class recognizes and agrees that – in

18 consideration of the covenants undertaken herein by City of Ontario herein, including,

19 without limitation, City of Ontario’s agreement to pay the full amount of the

20 settlement – this Agreement settles any and all claims, known and unknown

21 concerning the secret video surveillance of the mens’ locker room at the Ontario

22 Police Department headquarters building on North Cherry Avenue in 1996, the

23 Settling Class has or may have against City of Ontario as provided herein.

24

IV.

25

CLASS COUNSEL

26
16. In its April 11, 2005 class certification order, the Court appointed the
27
Peter Eliasberg of the ACLU Foundation of Southern California, Della Bahan of
28
7 of 25

JOINT STIP. OF CLASS ACTION SETTLEMENT AND RELEASE

Case 5:04-cv-01015-VAP-PJW Document 258-2 Filed 04/15/2009 Page 8 of 27

1
Bahan & Associates, and Michael Lackie of Lackie & Dammeier as class counsel

2
pursuant to FRCP 23(g).

3
17. On August 17, 2005, the Court granted Defendants’ motion to

4
disqualify Lackie & Dammeier on the ground that it had a conflict under California

5
Rule of Professional Conduct 3-310(E) because it had previously represented

6
Defendant Brad Schneider in his interview with the San Bernardino County Sheriff’s

7
Department concerning the video surveillance that is the subject of the Lawsuit. The

8
Court held that there was a “substantial relationship” between the subject of the

9
representation of Schneider and the Lawsuit. Accordingly, the Court ordered that

10
Lackie & Dammeier “cease all representation of the Plaintiffs.”

11
18. On July 23, 2008, the Court granted Plaintiffs’ motion to substitute

12
counsel, permitting Bahan & Associates to withdraw and designating Hadsell

13
Stormer Keeny Richardson & Renick LLP as co-lead counsel.

14
19. “Class Counsel” are the ACLU Foundation of Southern California and

15
Hadsell Stormer Keeny Richardson & Renick LLP, as provided by the Court’s class

16
certification order of April 14, 2005 and its subsequent order of July 23, 2008

17
granting plaintiffs’ motion for substitution of class counsel. All notices or

18
correspondence for class counsel are to be sent to Peter Eliasberg, Esq, state bar

19
number 189110, of the ACLU Foundation of Southern California located at 1313 W.

20
Eighth Street, Los Angeles, and Dan Stormer, Esq., state bar number 101967, of

21
Hadsell Stormer Keeny Richardson & Renick LLP, located at 128 North Fair Oaks

22
Avenue, Pasadena, California, as class settlement counsel (“Class Counsel”) with

23
respect to all members of the Settling Class.

24

V.

25

SETTLEMENT APPROVAL PROCEDURES

26

AND NOTICE TO CLASS MEMBERS

27

28 8 of 25
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Case 5:04-cv-01015-VAP-PJW Document 258-2 Filed 04/15/2009 Page 9 of 27
1
20. The Settling Parties’ settlement of the Lawsuit, and their rights and
2
obligations hereunder, are expressly conditioned on both the Court’s preliminary and
3
final approval of this Settlement as to the class defined in Section III of this
4
Agreement. Preliminary approval shall be through the entry of an “Order of
5
Preliminary Approval,” substantially in the form and content of Exhibit B hereto.
6
21. On or before March 16, 2009, Class Counsel shall file a motion with the
7
Court for preliminary approval of the Settlement Agreement. As soon as possible
8
thereafter, and in advance of the Preliminary Approval Hearing date, Class Counsel
9
shall submit this Agreement and supporting papers, which shall set forth the terms of
10
this Agreement, and will include proposed forms of all notices and other documents,
11
as attached hereto, necessary to implement the Settlement Agreement. The Order for
12
Preliminary Approval shall provide for notice of the Agreement and related matters
13
(“Class Notice”) to be sent to the Settlement Class as specified herein. Class Notice
14
shall be in the form attached hereto as Exhibit C, and as further described in
15
Paragraph 29 of this Agreement.
16
22. Not later than ten (10) business days after receipt of notice of the
17
Court’s entry of an Order of Preliminary Approval, and to the extent possible based
18
on the presence of information in its records, City of Ontario shall prepare, in
19
electronic form, a spreadsheet that contains the name, social security number, dates
20
of employment, and last known mailing address of every individual listed on Exhibit
21
A to this Agreement. Class Counsel will also provide all updated address
22
information in their possession with respect to all the individuals listed on Exhibit A.
23
a) City of Ontario shall meet-and-confer with Class Counsel to
24
discuss what information and procedures are reasonable and necessary to give
25
Class Notice, allocate and distribute the Settlement Fund among Class
26
members, and otherwise administer this Agreement.
27
28 9 of 25
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Case 5:04-cv-01015-VAP-PJW Document 258-2 Filed 04/15/2009 Page 10 of 27

1
b) City of Ontario shall also provide a verification to Class Counsel,

2
under penalty of perjury, that the information provided in said spreadsheet will

3
be complete and accurate to the best of its ability to determine from its available

4
records.

5
23. Not later than fifteen (15) business days after completion of the

6
preparation of the spreadsheet and receipt by Class Counsel of the verification as

7
described in Paragraph 22 of this Agreement, the City of Ontario shall mail the Class

8
Notice to all members of the Settling Class whose address information is known.

9
This mailing will be sent by first-class U.S. mail. Before mailing the Class Notice,

10
the City of Ontario shall run the Class member addresses through the U.S. Postal

11
Service’s Change of Address Database.

12
24. The City of Ontario, with the assistance of Class Counsel, shall make

13
such further efforts, as are reasonable and expedient in the their judgment, to provide

14
Class Notice to all members of the Settling Class, and to follow up as appropriate,

15
provided that all such efforts shall be completed by the thirty-fifth (35th) calendar

16
day after the Class Notice is mailed. The City of Ontario shall document all efforts

17
under this Section V, and keep such documentation for a period of four (4) years from

18
the date of the Court’s final approval of the settlement.

19
25. In addition, the City of Ontario will provide notice to all appropriate

20
State Officials in compliance with 28 U.S.C. Section 1715(b), though not required to

21
do so, as the statute post-dates the filing of the complaint in this action.

22

VI.

23

THE EFFECTIVE DATE

24

25

26. This Agreement shall become final and effective (the “Effective Date”)

26 on the occurrence of all of the following events described in subparagraphs a through

27 d of this Paragraph 26:

28 10 of 25
JOINT STIP. OF CLASS ACTION SETTLEMENT AND RELEASE

Case 5:04-cv-01015-VAP-PJW Document 258-2 Filed 04/15/2009 Page 11 of 27
1
a) Entry by the Court of an Order of Preliminary Approval as
2
discussed in Paragraph 21 of this Agreement;
3
b) Defendants’ Counsel’s filing, at or before the Final Approval
4
Hearing, a declaration from the employee or independent contractor of the
5
City of Ontario responsible for mailing the Class Notice Certifying that Class
6
Notice to each member of the Settling Class was sent in accordance with
7
Sections V and VIII of this Agreement and the Order of Preliminary Approval;
8
and
9
c) Entry by the Court of an Order and Judgment Granting Final
10
Approval and dismissing the Lawsuit with prejudice. The parties shall jointly
11
prepare a proposed Order and Judgment to this effect, which shall reflect, inter
12
alia, the dismissal of the Lawsuit with prejudice and the Court’s approval of
13
the settlement pursuant to the terms of this Agreement, including but not
14
limited to the releases set out in Paragraphs 44 and 45. Said proposed Order
15
and Judgment shall be lodged with the Court no later than sixteen (16)
16
calendar days before the Final Approval Hearing.
17
d) The occurrence of the “Effective Date of Judgment,” which shall
18
be deemed to be the last to occur of the following:
19
(i) If an appeal or other review is not sought from the Order
20
and Judgment Granting Final Approval and Dismissing Lawsuit with
21
Prejudice, the sixty-fifth (65th) calendar day after entry of the judgment;
22
or
23
(ii) If an appeal or other review is sought from the Order and
24
Judgment Granting Final Approval and Dismissing Lawsuit with
25
Prejudice by a member of the Settling Class, the day after the trial court’s
26
judgment is affirmed or the appeal or other review is dismissed or denied,
27
28 11 of 25
JOINT STIP. OF CLASS ACTION SETTLEMENT AND RELEASE

Case 5:04-cv-01015-VAP-PJW Document 258-2 Filed 04/15/2009 Page 12 of 27

1
and the judgment is no longer subject to judicial review or other

2
challenge.

3

VII.

4

EFFECT OF NON-APPROVAL, OR

5

FAILURE OF THE EFFECTIVE DATE TO OCCUR

6
27. If any one of the events specified in Section VI do not occur, this
7
Agreement shall be void, and any portion of the Settlement Fund previously
8
deposited in the escrow account described in paragraph 10 above shall immediately
9
be returned to City of Ontario. In such event:
10
a) Nothing in this Agreement shall be construed as a determination,
11
admission, or concession of any substantive or procedural issue in the Lawsuit,
12
and nothing in this Agreement may be offered into evidence in any hearing or
13
trial, or in any subsequent pleading or in any subsequent judicial, arbitral, or
14
administrative proceeding;
15
b) The Settling Parties expressly reserve their rights with respect to
16
the prosecution and defense of the Lawsuit as if this Agreement never existed.
17
VIII.
18

19

DETERMINATION OF THE AMOUNT, PROCESSING,

AND PAYMENT OF CLASS MEMBER CLAIMS, AND ENHANCEMENT

20

AWARDS

21
28. The Class Notice sent to each member of the Class shall be
22
accompanied by a separate Claim Form, which is attached hereto as Exhibit D. The
23
Claim Form shall be individualized for each member of the Settling Class with
24
information reflecting any incentive awards. The Class Notice and Claim Form shall
25
direct that, in order to submit a claim for distribution of a portion of the Settlement
26
Fund, each member of the Settling Class must return the completed Claim Form with
27
a postmark reflecting a date within sixty (60) calendar days from the date of mailing
28
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1
of the Notice and Claim Form (the “Claim Filing Deadline”). The Claim shall be
2
mailed back to Peter Eliasberg, ACLU of Southern California, 1313 W. Eighth Street,
3
Los Angeles, CA 90017. A stamped envelope with said address shall be included
4
with the Notice and Claim Form to facilitate return of Claim Forms by members of
5
the Settling Class, with payment of the costs of said envelope and postage to be made
6
by the City of Ontario.
7
29. The Class Notice shall contain the release and waiver of claims against
8
City of Ontario (including the waiver of California Civil Code § 1542) contained in
9
Paragraphs 44 and 45 of this Agreement, and an easily understood statement alerting
10
putative members of the Settling Class that the individual is executing a release and
11
waiver of all such claims the employee may have against City of Ontario, whether or
12
not he submits a Claim Form.
13
30. Those Class members who have not properly returned a completed
14
Claim Form shall not share in the distribution of any payment, but nevertheless shall
15
be bound by the dismissal with prejudice of the Lawsuit and the release of claims set
16
forth in Paragraphs 44 and 45 of this Agreement.
17
31. The disbursement to each member of the Settling Class who returns a
18
timely and complete Claim Form (the “Member Payment”) shall be a minimum of
19
$10,000 for all members of the class (the “Minimum Payment”), plus an incentive
20
award of either a) $10,000 to those “Original Plaintiffs” who are not also Named
21
Plaintiffs; or b) $30,000 to the Named Plaintiffs, as described more fully below in
22
Paragraph 32 below.
23
32. The City of Ontario recognizes that, at the same time the application for
24
attorneys fees and costs is made under Paragraph 40 below is made, Class Counsel
25
will apply to the Court for an additional award to the Original Plaintiffs of $10,000
26
each, and to the Named Plaintiffs, of an additional $30,000, (with the understanding
27
that no person shall obtain more than $40,000 even if he was both an Original and a
28 13 of 25
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1
Named Plaintiff) as reasonable additional compensation for the time and effort
2
expended by them in connection with the initiation and maintenance of the Lawsuit
3
and in consideration for the general release set out in Paragraphs 44 and 45 (the
4
“Enhancement Award”). City of Ontario will not oppose Class Counsel’s application
5
under this Paragraph 32. Any Enhancement Award will be in addition to the Original
6
and Named Plaintiffs’ Minimum Payment as set forth in Paragraph 31. The Named
7
Plaintiffs, Original Plaintiffs, Class Counsel, and putative or actual members of the
8
Settling Class shall not seek payment of any additional enhancement awards except
9
as set forth herein.
10
33. Any awards pursuant to Paragraphs 31 and 32 will be funded solely and
11
completely from the $1.54 million fund set aside for damages to the Plaintiff Class.
12
34. If the Court does not award the full amount of Enhancement Awards
13
requested by Class Counsel pursuant to Paragraph 32 above, any remaining portion
14
of the requested award shall be allocated to the Member Payment to be received by
15
the Plaintiff class. And the remaining portion of the requested award shall be
16
allocated on an equal per capita distribution, regardless of whether the class member
17
is also an Original Plaintiff or Named Plaintiff.
18
35. The City of Ontario shall provide counsel for the Settling Parties with a
19
Final Accounting and Report of the amount to be distributed to the Class Members
20
not later than ten (10) calendar days after the Effective Date
21
36. The City of Ontario shall make payments pursuant to this Section VIII
22
as soon as possible after the Effective Date but in any event no later than twenty (20)
23
days after the Effective Date.
24
37. The amounts received by the Class Members, Named Plaintiffs, and
25
Original Plaintiffs, will not have any taxes withheld. Class Members, Named
26
Plaintiffs, and Original Plaintiffs will be solely responsible for any taxes owing on
27
the amounts received.
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1
38. Any remainder, for example, any checks sent to Class Members and not
2
cashed after 6 months, shall be allocated Cy Pres to the United States Adaptive
3
Recreation Center (USARC). Should a Settlement Check to a Class Member fail to
4
be cashed or remain undeliverable, there shall be no further obligation to make
5
payment to such Settlement Class Member.
6
IX.
7
ATTORNEYS’ FEES, COSTS AND EXPENSES
8
9
39. The Lawsuit alleges a potential claim for attorneys’ fees and costs pursuant to,
10
inter alia, the 42 U.S.C. § 1988. The Settling Parties agree that any and all such claims for
11
attorneys’ fees and costs have been settled in this Agreement.
12
40. City of Ontario recognizes that Class Counsel will apply to the Court for
13
an award of attorneys’ fees, to be determined by the Court according to the lodestar,
14
as well as an award for reasonable and necessary costs and expenses incurred up to
15
the date of the final approval. City of Ontario will not oppose Class Counsel’s
16
application under this Paragraph so long as the amount sought is not more $1.21
17
million, and Class Counsel’s application under this Paragraph 40 shall be scheduled
18
for determination at the Preliminary Approval Hearing. The Named Plaintiffs, Class
19
Counsel, and putative or actual members of the Settling Class shall not seek payment
20
of attorneys’ fees or reimbursement of costs or expenses except as set forth herein.
21
41. If the Court does not approve the total amount of attorneys’ fees, costs,
22
and/or Enhancement Awards requested by Class Counsel pursuant to Paragraphs 40
23
of this Agreement, any remaining portion of requested amount shall be allocated cy
24
pres to the United States Adaptive Recreation Center (“USARC”).
25
42. The City of Ontario shall make payments pursuant to this Section IX
26
as soon as possible after the Effective Date but in any event no later than twenty (20)
27
calendar days after the Effective Date.
28 15 of 25
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1
43. Any proceedings or Court decisions related to Class Counsel’s

2
application for attorneys’ fees, costs and expenses, and/or Enhancement Awards

3
shall not terminate or cancel this Agreement, or otherwise affect the finality of the

4
Court’s Order and Judgment Granting Final Approval or the settlement of this

5
Lawsuit.

6

X.

7

RELEASES

8
44. In exchange for the consideration, undertakings, and covenants
9
undertaken by City of Ontario in this Agreement, and to the extent permitted by
10
applicable law, the Settling Class hereby releases, discharges, and covenants not to
11
sue The City of Ontario, Lloyd Scharf, Tony Del Rio, Michael Thompson, and Brad
12
Schneider, and all of their respective past and present employees, directors, officers,
13
attorneys, representatives, insurers, agents, successors, and assigns (individually and
14
collectively “the City of Ontario Releasees,”) from and with respect to any and all
15
actions, causes of action, suits, liabilities, claims, and demands whatsoever, and each
16
of them, whether known or unknown, from the beginning of time to April 15, 2009,
17
which the Settling Class, or individual members thereof, has, had, or hereafter may
18
claim to have, against the City of Ontario Releasees, or any of them, which are based
19
on, or in any way related to, violations of the Fourth Amendment of the Constitution,
20
Article I, Section 1 of the California Constitution, the common law claim of Invasion
21
of Privacy, as pertains to the secret videotaping in the Ontario Police Department
22
men’s locker room, or any other allegation contained in, related to, or subsumed by,
23
the Lawsuit (the “Released Claims”). The parties intend the Settling Class’ release to
24
be general and comprehensive in nature and to release all claims and potential claims
25
against the City of Ontario Releasees which were or could have been brought by the
26
Lawsuit to the maximum extent permitted at law. The Released Claims include
27

28 16 of 25
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1
specifically, by way of further description, but not by way of limitation, any and all

2
claims arising out of or in any way related to any:

3
a) Any and all allegations set forth in the pleadings in Case No. CV

4
04-01015 VAP (PJWx), on file with United States District Court for the Central

5
District of California;

6
b) Any and all alleged violations arising out of video surveillance of

7
the inside of the men’s locker room at the City of Ontario Police Department,

8
and/or

9
c) Claims for attorneys’ fees, costs or expenses arising from this

10
lawsuit, and/or any and all claims based on calculations, distributions or

11
payments made in accordance with this Agreement.

12
45. Waiver of California Civil Code Section 1542. All members of the

13
Settling Class (including, without limitation, the Named Plaintiffs) acknowledge

14
and/or are deemed to acknowledge that they may hereafter discover claims or facts in

15
addition to or different from those which they now know or believe to exist with

16
respect to the subject matter of this Agreement and/or this release, and which, if know

17
or suspected at the time of executing this Agreement, may have materially affected

18
this release. Nevertheless, the members of the Settling Class will waive any right,

19
claim, or cause of action that might arise as a result of such different or additional

20
claims or facts. In addition, all members of the Settling Class intend and/or are

21
deemed to intend that this Agreement should be effective as a bar to any and all of the

22
claims released by the Settling Class. In furtherance of this intention, all members of

23
the Settling Class expressly waive any and all rights or benefits conferred on them by

24
the provisions of Section 1542 of the California Civil Code, which provides as

25
follows:

26

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

27

WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO

28

EXIST IN HIS OR HER FAVOR AT THE TIME OF

17 of 25

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1

EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR

2

HER MUST HAVE MATERIALLY AFFECTED HIS OR HER

SETTLEMENT WITH THE DEBTOR.”

3

4 All members of the Settling Class understand fully the statutory language of Civil

5 Code § 1542, and, with this understanding, assume all risks for claims released

6 hereunder that have already arisen or may in the future arise, whether known or

7 unknown, suspected or unsuspected, and specifically waive all rights they may have

8 under California Civil Code § 1542. The members of the Settling Class understand

9 that, if any of the facts relating in any manner to the Lawsuit, or to the release and

10 dismissal of claims as provided in this Agreement, are hereafter found to be other

11 than or different from the facts now believed to be true, they have expressly accepted

12 and assumed that risk and agree that this Agreement and the release of claims

13 contained herein shall nevertheless remain effective. The Settling Class desires and

14 intends, or is are deemed to desire and intend, that this Agreement shall be given full

15 force and effect according to each and all of its express terms and provisions,

16 including those relating to unknown and unsuspected claims, if any, as well as those

17 relating to the claims referred to above.

18

46. In exchange for the consideration, undertakings, and covenants

19 undertaken by the Settling Class in this Agreement, and to the extent permitted by

20 applicable law, the City of Ontario, Lloyd Scharf, Tony Del Rio, Michael Thompson,

21 and Brad Schneider, and all of their respective past and present employees, directors,

22 officers, attorneys, representatives, insurers, agents, successors, and assigns

23 (individually and collectively “the City of Ontario Releasors,”) hereby release,

24 discharge, and covenant not to sue the Settling Class, any of its member including the

25 Named Plaintiffs, its attorneys, representatives, insurers, agents, successors, and

26 assigns (individually and collectively “the Plaintiff Releasees,”) from and with

27 respect to any and all actions, causes of action, suits, liabilities, claims, and demands

28 whatsoever, and each of them, whether known or unknown, from the beginning of
18 of 25
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1
time to April 6, 2009, which the City of Ontario Releasors, or individual members
2
thereof, has, had, or hereafter may claim to have, against the Plaintiff Releasees, or
3
any of them, which are based on, or in any way related to, violations of the Fourth
4
Amendment of the Constitution or State Law Invasion of Privacy, in connection with
5
the videotaping of the men’s locker room, or any other allegation contained in,
6
related to, or subsumed by, the Lawsuit (the “Released Claims”), as well as and all
7
actions, causes of action, suits, liabilities, claims, and demands whatsoever, and each
8
of them, whether known or unknown, which the City of Ontario Releasors, or
9
individual members thereof, has, had, or hereafter may claim to have, against the
10
Plaintiff Releasees, or any of them, which are based on, or in any way related to,
11
Plaintiff Releasees’ filing or prosecution of the Lawsuit. The parties intend the City
12
of Ontario Releasors’ release to be general and comprehensive in nature and to
13
release all claims and potential claims against the Plaintiff Releasees which were or
14
could have been brought by a cross-claim or counter-claim in the Lawsuit to the
15
maximum extent permitted at law. The Released Claims include specifically, by way
16
of further description, but not by way of limitation, any and all claims arising out of
17
or in any way related to any:
18
a) Any and all allegations set forth in the pleadings in Case No. CV
19
04-01015 VAP (PJWx), on file with United States District Court for the Central
20
District of California;
21
b) Any and all alleged violations arising out of video surveillance of
22
the inside of the men’s locker room at the City of Ontario Police Department,
23
and/or
24
c) Claims for either attorneys’ fees, or attorneys’ costs/expenses,
25
arising from this lawsuit, and/or any and all claims based on distributions or
26
payments made in accordance with this Agreement.
27
28 19 of 25
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1
47. The members of the City of Ontario Releasors acknowledge and/or are

2
deemed to acknowledge that they may hereafter discover claims or facts in addition

3
to or different from those which they now know or believe to exist with respect to the

4
subject matter of this Agreement and/or this release, and which, if known or

5
suspected at the time of executing this Agreement, may have materially affected this

6
release. Nevertheless, the members of the City of Ontario Releasors hereby waive

7
any right, claim, or cause of action that might arise as a result of such different or

8
additional claims or facts.

9
48. Waiver of California Civil Code Section 1542. All members of the

10
City of Ontario Releasors (including, without limitation, the Defendants) intend

11
and/or are deemed to intend that this Agreement should be effective as a bar to any

12
and all of the claims released by Paragraphs 46 and 47. In furtherance of this

13
intention, all of the City of Ontario Releasors expressly waive any and all rights or

14
benefits conferred on them by the provisions of Section 1542 of the California Civil

15
Code, which provides as follows:

16

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

17

WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO

18

EXIST IN HIS OR HER FAVOR AT THE TIME OF

EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR

19

HER MUST HAVE MATERIALLY AFFECTED HIS OR HER

20

SETTLEMENT WITH THE DEBTOR.”

21
All members of the City of Ontario Releasors understand fully the statutory language
22
of Civil Code § 1542, and, with this understanding, assume all risks for claims
23
released hereunder that have already arisen or may in the future arise, whether known
24
or unknown, suspected or unsuspected, and specifically waive all rights they may
25
have under California Civil Code § 1542. The members of the City of Ontario
26
Releasors understand that, if any of the facts relating in any manner to the Lawsuit, or
27
to the release and dismissal of claims as provided in this Agreement, are hereafter
28
20 of 25
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1
found to be other than or different from the facts now believed to be true, they have

2
expressly accepted and assumed that risk and agree that this Agreement and the

3
release of claims contained herein shall nevertheless remain effective. The City of

4
Ontario Releasors desires and intends, or is are deemed to desire and intend, that this

5
Agreement shall be given full force and effect according to each and all of its express

6
terms and provisions, including those relating to unknown and unsuspected claims, if

7
any, as well as those relating to the claims referred to above.

8

XII.

9

ADDITIONAL TERMS AND CONDITIONS

10

11

49. Settlement Fair and Reasonable

12

Class Counsel have considerable experience in litigating and settling

13 class actions for violations of constitutional and/or civil rights, and they are

14 sufficiently familiar with the facts of this case and the applicable laws and regulations

15 to make an informed judgment as to the fairness of this Settlement. In light of this

16 experience, and for reasons that will be more fully explained in Class Counsel’s

17 motion for preliminary approval, Class Counsel believe that the settlement terms

18 herein are fair and reasonable with regard to the interests of the Settling Class.

19

50. Settlement the Result of Arm’s-Length Bargaining.

20

The terms of the settlement of this Suit resulted from approximately four

21 and a half years of litigation and numerous settlement discussions at mediations over

22 that time, and a final period of approximately six weeks’ arm’s-length negotiations

23 regarding this Agreement in particular.

24

51. Notices.

25

Except for Class member notices which are required herein to be made

26 to or by the City of Ontario, all notices, requests, demands and other communications

27 related to or in connection with this Agreement shall be in writing, and shall be

28 21 of 25

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1
provided by appropriate method depending on the urgency (e.g., personal delivery,

2
facsimile, overnight delivery, or first-class U.S. mail) to:

3

TO THE SETTLING 4 CLASS:

TO THE CITY OF ONTARIO

5 Dan Stormer

Jim Rinos

6 Hadsell Stormer Keeny Richardson & Renick, LLP

Rinos & Martin 17862 17th Street, Suite 104

7 128 North Fair Oaks

Tustin, CA 92780

8 Avenue Pasadena, California
9 91103-3645

Tel (714) 734-0400 Fax (714) 734-0480

10 Telephone: 626-585-9600 Facsimile: 626-577-7079
11

TO BRAD SCHNEIDER: Bruce Disenhouse

12 Peter Eliasberg ACLU Foundation of
13 Southern California

Kinkle Rodiger & Spriggs 3333 Fourteenth Street Riverside, CA 92501

14 1313 West 8th Street Los Angeles, CA 90017
15 Telephone: 213-977-9500

Tel (951) 683-2410 Fax (951) 683-7759

16 ext 228 Facsimile: 213-977-5299
17

18

52. No Admission of Liability.

19

Nothing herein shall constitute any admission by City of Ontario of

20 wrongdoing or liability or of the truth of any factual allegations in the Lawsuit. To

21 the contrary, City of Ontario has denied and continues to deny each and every

22 material factual, procedural, and/or legal allegation and alleged claim asserted in the

23 Lawsuit.

24

53. Modification by Writing Only.

25

This Agreement, and its terms and Exhibits, may be modified only in a

26 writing signed by all counsel of record for the parties, and will not become effective

27 unless and until approved by the Court or otherwise as ordered by the Court.

28

22 of 25

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1
54. Representations.
2
a) The Named Plaintiffs and Class Counsel represent that they are
3
presently unaware of any other lawsuit or administrative proceeding which alleges
4
any of the claims asserted by the Lawsuit.
5
b) The Named Plaintiffs, on behalf of themselves and the Settling
6
Class, have expressly authorized Class Counsel to take all appropriate action
7
required or permitted to be taken pursuant to this Agreement to effectuate its
8
terms.
9
c) Each attorney executing this Agreement or any of its Exhibits on
10
behalf of any party hereto hereby warrants that full authority to do so has been
11
given by his/her client(s).
12
d) City of Ontario, Class Counsel, and the Named Plaintiffs waive
13
their right to file an appeal, writ, or any challenge whatsoever to the terms of
14
this Agreement; provided, however, that Class Counsel may appeal the Court’s
15
determinations with regard to the requests set out in Paragraphs 32 and 40. This
16
Agreement neither condones nor prohibits an appeal by Plaintiffs’ prior
17
attorneys, Lackie & Dammeier, who have indicated an intent to file an appeal of
18
the Order Disqualifying them as Counsel. Consistent with Paragraph 43,
19
however, any such appeals will have no effect whatsoever on the other terms
20
and provisions of this Agreement, including, by way of example but not of
21
limitation, the releases set out in Paragraphs 44 through 48.
22
e) The Settling Parties represent and agree that none of them has
23
received and/or relied upon any advice and/or representations from the other
24
parties and/or their attorneys as to the necessity for withholding or the taxability
25
of the consideration paid pursuant to this Agreement, whether pursuant to
26
federal, state or local income tax statutes or otherwise.
27
28 23 of 25
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1
55. Further Cooperation.
2
The Settling Parties and their respective counsel of record shall proceed
3
diligently to prepare and execute all documents, to seek the necessary Court
4
approvals, and to do all other things reasonably necessary to conclude this
5
Settlement.
6
56. Construction and Integration.
7
This Agreement, including its exhibits, constitutes the entire agreement
8
and understanding between the parties, and supersedes any previous agreements or
9
understandings between the Settling Parties. No representations, warranties or
10
inducements have been made to any party concerning the subject matter of this
11
Agreement and/or exhibits other than the representations, warranties and covenants
12
contained in such documents. This Agreement and related exhibits shall be
13
construed each as a whole, and with reference to one another, according to their fair
14
meaning and intent. Each of the Settling Parties represent that its/her counsel has
15
participated and cooperated in the drafting and preparation of this Agreement and
16
related exhibits; hence, in any construction to be made of this Agreement and/or
17
exhibits, the same shall not be construed against any party on the basis that said party
18
was the drafter.
19
57. Governing Law.
20
This Agreement and the Exhibits hereto shall be deemed to have been
21
negotiated, executed and delivered, and to be wholly performed, in the State of
22
California. The rights and obligations of the parties under the Agreement shall be
23
construed and enforced in accordance with, and be governed by, the substantive and
24
procedural laws of the Ninth Circuit.
25
58. Counterparts.
26
This Agreement may be executed in one or more faxed counterparts,
27
which may be filed with the Court. All executed counterparts, and each of them, shall
28 24 of 25
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1
be deemed to be one and the same instrument. Once available, a complete set of
2
executed counterparts shall be filed with the Court. Copies of the complete set of
3
executed counterparts may be used for all purposes in lieu of the originals, and shall
4
have the same force and effect as the originals.
5
59. Attorneys’ Fees, Costs and Expenses.
6
Except as otherwise specifically provided for herein, each party shall
7
bear its/her own attorneys’ fees, costs and expenses, taxable or otherwise, incurred by
8
them in or arising out of the Lawsuit, including all costs of administration, notice, and
9
distribution of payments, and shall not seek reimbursement thereof from any other
10
party to this Agreement.
11
60. Continuing Jurisdiction.
12
Except as otherwise specifically provided for herein, the Honorable
13
Virginia Phillips of the Central District of California shall retain jurisdiction to
14
construe, interpret and enforce this Agreement and the settlement, to supervise all
15
notices, the administration of the settlement and this Agreement and distribution of
16
the Settlement Fund, and to hear and adjudicate any dispute arising from or related to
17
the settlement and/or this Agreement.
18
61. Arms-Length Negotiations
19
This agreement is deemed to have been drafted by all parties as a result of an
20
arms length negotiations. It shall not be construed more strictly against one Party
21
than another.
22
62. No Other Agreement
23
This agreement contains all agreements, conditions, promises and covenants
24
among the settling parties regarding the matters set forth in it and supersedes all prior
25
or contemporaneous agreements, drafts, representations or understandings, either
26
oral or written, with respect to the subject matter of the present agreement.
27
28 25 of 25
JOINT STIP. OF CLASS ACTION SETTLEMENT AND RELEASE

Apr 14 0C9ase045::0542-pcv-01015R-IVNAOPS-PJ&WMARDToIcNumLeLnPt 258-2 File7d14047/1354/20004980 Page 26 of 27p.2

1 IN WITNESS WHEREOF, Class Counsel,
2 on behalf of the Plaintiffs Class, and Defendants' duly-authorized representatives
3 accept and agree to the terms of this
4 Agreement and hereby execute it voluntarily and with a full understanding of its
5 consequences.
6

7

HADSELL STORMER

8

KEENY RICHARDSON

9

& RENICK, LLP

10

i/lyjo /

11

By: Dan Stormer

12

Class Counsel and

Date

Attorneys for Plaintiffs

13

Steve Trujillo, et al.

14

15

16

RINDS & MARTIN LLP

17

18

I· II·2!/t//

19

Date

20

21

22 KINKLE RODIGER & 23 SPRIGGS LLP

24

25

26

By: Bruce Disenhouse

Date

Attorneys for Brad

27

Schneider

28

260f25

JOINT STIP. OF CLASS ACTION ~ETTT ,FMRNT ANn RPT P A QP

Case 5:04-cv-01015-VAP-PJW Document 258-2 Filed 04/15/2009 Page 27 of 27

 
 Case 5:04-cv-01015-VAP-PJW Document 237-2 Filed 03/16/2009 Page 1 of 11
EXHIBIT
1

Case 5:04-cv-01015-VAP-PJW Document 237-2 Filed 03/16/2009 Page 2 of 11
(

1 IUNOS & MARTIN, LLP 2 DIMITRIOS C. RINOS- SBN 59919
CELESTE BRUSTOWICZ- SBN 238686 3 17862 17th Street, Suite 104
Tustin, California 92780
4
Telephone: (714) 734-0400- Facsimile: (714) 734-0480 5 E-Mail: cbrustowicz@rmlaw.org

6
Attorneys for Defendants, CITY OF ONTARIO POLICE DEPARTMENT, LLOYD 7 SCHARF, TONY DEL RIO AND MICHAEL THOMPSON

8
UNITED STATES DISTIUCT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10

11 STEVEN TRUJILLO, JEFF QUON;,

) CASE NO: EDCV0401015VAP(PJWx)

CRAIG ANSMAN, WILL RIVERA,
12
SCOTT ANDERSON, ROBERT

) ) ASSIGNED FOR ALL PURPOSES TO:

13 BERNHARD and CRAIG PEFFERLE, ) The Honorable Judge -

) Virginia A. Phillips

14

Plaintiff,

) Complaint Filed: August 13, 2004

15

)

v.
16

) JOINT STATEMENT OF ) AGREEMENT AS PERF.R.C.P.

11 CITY OF ONTARIO POLICE

) RULE 23(e)(2)

DEPARTMENT A Department Thereof, )
18
LLOYD SCHARF, Individually and as )

19 Chief of Ontario Police Department, TONY)

DEL RIO, Individually and as a Captain for)
20
the Ontario Police Department, BRAD )

21 SCHNEIDER, Individually and as a

)

Sergeant for the Ontario Police Department,)

22

JOE SIFUENTES, and DOES 1

)

23 THROUGH 20, lnclusive

)

)

24

Defendants.

)

25 - - - - - - - - - - - - - )

26

27

28 1

JOINT STATEMENT OF AGREEMENT AS PERF.R.C.P. RULE 23(e)(2)

Exhibit 1 Page27

Case 5:04-cv-01015-VAP-PJW Document 237-2 Filed 03/16/2009 Page 3 of 11

TO THIS HONORABLE COURT:

2

The parties to this action have agreed to a proposed settlement subject to court

3

4 approval. The terms and conditions of the proposed settlement are these:

5

Defendant, City of Ontario, California, will pay to plaintiffs and their attorneys

6 the full and true sum of $2,750,000.00 (the total settlement amount) in consideration
7
8 for which the entire action will be dismissed with prejudice as to all defendants, their

9 agents, employees and attorneys with each plaintiff (individually named and class

'10 members) executing a standard form release and agreement, defendants costs and fees
11
to be paid by defendants. The Court, upon motion by plaintiffs and after hearing as
12

13 contemplated by F.R.C.P. Rule 23 (e), will allocate the attorneys fees and costs from

14 the total settlement amount and shall be awarded on a lode star basis and also allocate
15
the settlement proceeds amongst the plaintiffs, that is, the individually named plaintiffs
16

17 and class members.

18

Any undistributed funds shall revert to a fy pres fund as approved by the court.

19
tB 20 Dated: February - 2009
21
22

ACL '1U7F) O~

By: J

__..._

PeterEiiaS11efi,2§q~\

Attorneys for Plaintiffs

23

r__ 24 Dated: February_{

2009

HADSELL STORMER, et al., LLP

25

26

Dan Stormer, Esq.

27

Anne Richardson, Esq.

Attorneys for Plaintiffs
28

2

JOINT STATEMENT OF AGREEMENT AS PER F.R.C.P. RULE 23(e)(2)
Exhibit 1 Page28

Case 5:04-cv-01015-VAP-PJW Document 237-2 Filed 03/16/2009 Page 4 of 11 (

Dated: February /9 2009
2

3

Bruce Disenhouse, Esq.
4
Attorneyfor Defendant,

5

Brad Schneider

6

7 Dated: February
8 9 10 11 12 13

2009

imitrios C. Rinas, Esq. Celeste Brustowicz, Esq. Attorneys for Defendants, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio and Michael Thompson

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 3
JOINT STATEMENT OF AGREEMENT AS PER F.R.C.P. RULE 23(e)(2)
Exhibit 1 Page29

Case 5:04-cv-01015-VAP-PJW Document 237-2 Filed 03/16/2009 Page 5 of 11
EXHIBIT
2

Case 5:04-cv-01015-VAP-PJW Document 237-2 Filed 03/16/2009 Page 6 of 11
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA- EASTERN DIVISION

STEVEN TRUJILLO, et al., Plaintiffs,
v.
CITY OF ONTARIO, et al., Defendants.

Case No. ED CV 04-01015 YAP (SGLx)

NOTICE OF SETTLEMENT OF CLASS ACTION LITIGATION

To: All Persons Who Were Employed by or Volunteered with the City of Ontario Police Department, Used the Department's Men's Locker Room During the Period from January 1, 1996 to June 30, 1997, When Surveillance Equipment Was Installed, and Were Recorded by the Surveillance Equipment.

PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS MAY BE AFFECTED BY LEGAL PROCEEDINGS IN THIS LITIGATION.

Your rights may be affected .by a lawsuit pending in this Court, Trujillo, et al., v. City of Ontario, et al., Case No. ED CV 04-1015 YAP (SGLx).

Pursuant to the order dated

of the United States District Court for the Central District of

California, YOU ARE HEREBY NOTIFIED AS FOLLOWS:

A proposed settlement (the "Settlement") has been reached between the pa1iies in this class

action pending in United States District Court for the Central District of California (the "Court"),

brought on behalf of certain individuals who were employed by or volunteered with the City of Ontario

Police Department, used the Department's men's locker room during the period from January 1, 1996 to

June 30, 1997, when surveillance equipment was installed, and were recorded by the surveillance

equipment.

This class action brings claims under the United States and California constitutions, and

essentially contends that the privacy rights of class members were violated when they were videotaped

by a hidden video camera installed in the men's locker room. The Court has certified the case to proceed

as a class action and has determined that the installation and operation of a hidden video camera without

a warrant violated the Fourth Amendment to the United States Constitution, Article I, § 1 of the

California Constitution, and the common law invasion of privacy tort.

.

You have received this notice because review of the videotape indicates that you are a member of

the Settling Class. This notice is designed to inform you of how you can make a claim under the

Settlement, comment in favor of the Settlement or object to the Settlement.

Depending on the actions you take (or don't take), one of two things will happen: (i) ifyou do

not timely submit a Claim Form, and if the Settlement receives final approval from the Court, you will

not receive a payment, claims covered by the Settlement will be extinguished, and you will forfeit your

right to bring or participate in a similar action against the City of Ontario and other Defendants; or (ii) if

you timely submit a Claim Form, and the Settlement receives final approval from the Comi, you will

receive a payment and all claims covered by this Settlement will be extinguished and you will forfeit

your right to bring or participate in a similar action against the City of Ontario and other Defendants.

I. BACKGROUND OF THE CASE

Plaintiffs, officers with the City of Ontario Police Department, charge that in or about 1996,

defendants the City of Ontario Police Department, Chief of Ontario Police Lloyd Scharf, and other

individuals (collectively "Defendants") secretly installed a video camera in the men's locker room in the

Exhibit 2 Page30

Case 5:04-cv-01015-VAP-PJW Document 237-2 Filed 03/16/2009 Page 7 of 11
Ontario Police Department and captured Plaintiffs and other police officers and individuals who used the locker room on videotape in various states of undress. Plaintiffs asked this Court to rule that this conduct violates the right to privacy guaranteed by the United States Constitution, the Califomia Constitution, and Califomia common law and to award damages for harm caused by the video taping as well as exemplary and punitive damages. Plaintiffs have brought suit on behalf of all persons who were employed by the Ontario Police Department or who volunteered for the Department and used the Department's men's locker room during the period in which the surveillance equipment was operated, and were recorded by the surveillance equipment (the "Class" or "Settlement Class").
During legal proceedings, the Court determined that a surveillance camera was installed in the Ontario Police Department's men's locker room, that the surveillance that occurred violated plaintiffs Fourth Amendment rights, the right to privacy under the Califomia Constitution, and the common law protection against invasion of privacy. The Court also ruled that the defendants employed by the City of Ontario were immune from liability for violations of state law, but were not immune from liability for federal constitutional violations, and that Defendant Michael Thompson, who was not employed by the City of Ontario, was liable under state law.
Defendants deny that any policymaker for the City of Ontario knew about the camera at the time
it was installed. In April2005, the Comi certified the case to proceed as a class action and, on June 21, 2005
ordered that potential class members be notified and given the opportunity to opt out of the class action litigation by so mailing a request post-marked by August 6, 2005 (the "Opt-Out Period"). Those individuals who opted out of the class action litigation are not eligible to participate in the Settlement. Those members of the Settlement Class who did not opt out agreed to be bound by the result reached in this litigation, including by a Settlement Agreement.
After litigating and mediating the case, exchanging large amounts of information, and obtaining rulings from both trial and appellate courts on the privacy rights in question, Plaintiffs and Defendants have agreed to a stipu~ated settlement for which they have obtained preliminary Court approval and intend to seek final Court approval pursuant to Federal Rule of Civil Procedure Rule 23. This Settlement represents a compromise and settlement of highly disputed claims. Plaintiffs and Defendants, and their counsel, have concluded that the Settlement is advantageous, considering the risks, uncertainties, and cost to each side of continued litigation. Plaintiffs' counsel has determined that the Settlement is fair, reasonable, and adequate and is in the best interests of the members of the Class. As a member of the Settling Class, you will be bound by the terms of the settlement. Only if you submit a valid and timely Claim Form will you share in the proceeds to be paid under the Settlement, assuming it is approved by the Comi. II. SUMMARY OF THE SETTLEMENT The Settlement provides for the following:
A. Who is included in the Settlement? You are included in the Settlement ifyou meet all ofthe conditions set forth in the beginning of this notice. It is estimated that there are approximately one hundred twenty-five (125) members of the Settling Class. B. Who is representing the Settling Class? The attomeys for the Class ("Class Counsel" or "Plaintiffs' Counsel") are:

Dan Stormer & Anne Richardson Hadsell Stormer Keeny Richardson & Renick, LLP 128 North Fair Oaks Avenue Pasadena, Califomia 91103-3645 Tel.: 626-5 85-9600 Fax: 626-577-7079

Peter Eliasberg & Peter Bibring ACLU of Southem Califomia 1313 W. 8th Street Los Angeles, CA 90017 Tel.: (213) 977-9500 Fax: (213) 977-5297

Exhibit 2 Page31

Case 5:04-cv-01015-VAP-PJW Document 237-2 Filed 03/16/2009 Page 8 of 11
C. What will I receive from the Settlement? Assuming the Settlement receives final approval from the Court, the City of Ontario shall make available a total amount of two million seven hundred fifty thousand dollars and no cents ($2,750,000.00) (the "Gross Settlement Value" or "GSV"). The following amounts shall be deducted from the Gross Settlement Value: (i) Class Counsel's fees and expenses, including expenses in administering the settlement, to the extent approved by the Court; and (ii) the enhanced payments to plaintiffs in this litigation, Steven Tmjillo, Craig Ansman, Will Rivera, Robert Bernhard, Scott Anderson, Craig Pefferle, Salvador Garcia, Steven Hurst, Jim Renstrom, Ron Dupuis, Keith Henderson, Nicko Carcich, Rick Carroll, Christopher Alvarez, Fred Ruiz, Steve Guderian, Mike Kelley, and Mike Bors, as described below, to the extent approved by the Court. The Gross Settlement Value, less these items, will be referred to as the "Net Distributable Amount" or "NDA"). The Net Distributable Amount will be divided equally between all members of the Settling Class. The parties estimate that each member of the Settling Class who submits a timely and valid Claim Form will receive approximately $10,000. Plaintiffs' Counsel shall distribute a settlement payment to each member of the Settling Class who submits an approved Claim Fonn. D. When will I receive my Settlement Payment? The Settlement Payments will be paid after final court approval of the Settlement and after all rights to appeal or review are exhausted or any appeal or review has been resolved in favor of the
Settlement (the "Effective Date"). E. What if I do not want to participate in the Settlement? Through notice of this litigation distributed by order of the Court on June 21, 2005, members of
the Class were given an opportunity to opt out of the class action during the Opt-Out Period between June 21, 2005 and August 6, 2005. Class members who did not opt out at that time will be bound by the Settlement Agreement if it is approved by the Court. Subject to approval by the Court, the unclaimed portion of the settlement fund will be distributed to the Electronic Frontier Foundation, a nonprofit organization specializing among other things in issues of privacy.
F. What if I do not submit a Claim Form? TO RECEIVE YOUR SHARE OF THE SETTLEMENT YOU MUST SUBMIT A VALID AND TIMELY CLAIM FORM. IF YOU DO NOTHING, YOU WILL STILL BE BOUND BY THE TERMS OF THE SETTLEMENT, INCLUDING THE RELEASE OF CLAIMS, EVEN THOUGH YOU WILL NOT RECEIVE A SETTLEMENT PAYMENT. G. Who is Administering this Settlement? Plaintiffs' Counsel and Defendants' counsel will share responsibilities of administration. Plaintiffs' Counsel listed above will calculate payments due to class members, will receive claim forms, and will answer questions about the Settlement. Defendants' counsel will mail claim forms and
distribute checks.
H. Release of Claims. Members of the Settling Class will release the City of Ontario, the City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Sclmeider, and Michael Thompson, and all of its and their respective past and present employees, officials, officers, attorneys, representatives, agents, and assigns (individually and collectively "the City of Ontario Releasees"), from and with respect to any and all actions, causes of action, suits, liabilities, claims, and demands whatsoever, and each of them, whether known or unknown, from the beginning of time to January 31, 2008, which the Settling Class, or individual members thereof, has, had, or hereafter may claim to have, against the City of Ontario or the City of Ontario Police Department, or any of them, which are based on, or in any way related to, violations of the Fourth Amendment to the United States Constitution, Article I, section 1 of the California Constitution, the common law claim of invasion of privacy, as pertains to the secret videotaping in the Ontario Police Department men's locker room from January 1, 1996 to June 30, 1997, or any other allegation contained in, related to, or subsumed by, the Lawsuit (the "Released Claims"). The parties intend the Settling Class' release to be general and comprehensive in nature and to release all
Exhibit 2 Page32

Case 5:04-cv-01015-VAP-PJW Document 237-2 Filed 03/16/2009 Page 9 of 11
claims and potential claims against the City of Ontario Releasees which were or could have been brought by the Lawsuit to the maximum extent permitted at law. The Released Claims include specifically, by way of further description, but not by way of limitation, any and all claims arising out of or in any way related to: (a) any and all allegations set forth in the pleadings in Case No. 04~CV-01015 VAP, on file with the United States District Court for the Central District of California, Eastern Division; (b) any and all alleged violations arising out of video surveillance of the inside of the men's locker room at the City of Ontario Police Department and/or (c) claims for attorneys' fees, attorneys' costs/expenses, and/or any and all claims based on calculations, distributions or payments made in accordance with this Agreement. The members of the Settling Class acknowledge and/or are deemed to acknowledge that they may hereafter discover claims or facts in addition to or different from those which they now know or believe to exist with respect to the subject matter of this Agreement and/or this release, and which, ifknown.or suspected at the time of executing this Agreement, may have materially affected this release. Nevertheless, the members of the Settling Class will waive any right, claim, or cause of action that might arise as a result of such different or additional claims or facts. In addition, all members of the Settling Class intend and/or are deemed to intend that the Settlement should be effective as a bar to any and all of the claims released by the Settling Class. In furtherance of this intention, all members of the Settling Class expressly waive any and all rights or benefits conferred on them by the provisions of Section 1542 of the California Civil Code, which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR."
I. What Does that Mean? The language above means, basically, that if you are a member of the Settlement Class, and the Court approves the Settlement, you will release all claims you may have against the City of Ontario. which pertain or relate to the types of claims that were brought in the Lawsuit, and you will accordingly forfeit the right to bring or participate in any such claim. If you submit a valid and timely Claim Fonn, then you will receive a Settlement Payment in exchange for this release.
J. Class Representatives. In addition to their share as participating members of the Settling Class, and subject to the Court's approval, plaintiffs Steven Trujillo, Craig Ansman, Will Rivera, Robert Bernhard, Scott Anderson, and Craig Pefferle shall each receive a thirty thousand dollar and no cent ($30,000.00) enhancement for their services as named plaintiffs through the duration of this litigation. In addition, plaintiffs Steven Hurst, Jim Renstrom, Ron Dupuis, Keith Henderson, Nicko Carcich, Rick Carroll, Christopher Alvarez, Salvador Garcia, Fred Ruiz, Steve Guderian, Mike Kelley, and Mike Bors shall each receive a ten thousand dollar and no cent ($10,000.00) enhancement for their services as named plaintiffs in the original complaint, prior to the filing of the first amended complaint. As explained above, this payment will be deducted from the Gross Settlement Value pursuant to the Settlement prior to arriving at the Net Distributable Amount.
K. Attorneys' Fees. Class Counsel will seek approval from the Court for payment of attorneys' fees and costs and expenses incurred, based on the time Class Counsel spent and prevailing billing rates, in the amount of up to one-half(50%) ofthe Gross Settlement Value, or one million three hundred seventy-five thousand dollars and no cents ($1,375,000.00). If approved by the Court, these fees will be deducted from the Gross Settlement Value pursuant to the Settlement prior to arriving at the Net Distributable Amount. Class Counsel believes the amount for costs and attorneys' fees requested is fair and reasonable, and Defendants have agreed not to oppose their request for that amount. III. PLAINTIFF AND CLASS COUNSEL SUPPORT THE SETTLEMENT. Steven Trujillo, Craig Ansman, Will Rivera, Robert Bernhard, Scott Anderson, and Craig Pefferle, as Class Representatives and Class Counsel support this Settlement. Their reasons include the
Exhibit 2 Page33

Case 5:04-cv-01015-VAP-PJW Document 237-2 Filed 03/16/2009 Page 10 of 11
inherent risk of a trial on the merits and the inherent delays and uncertainties associated with litigation. Based on their experience litigating similar cases, Class Counsel believe that further proceedings in this case, including a trial and probable appeals, would be expensive and protracted. No one can confidently predict how the various legal questions at issue, including the amount of damages, would ultimately be resolved. Therefore, upon careful consideration of all of the facts and circumstances of this case, Plaintiffs Steven Trujillo, Craig Ansman, Will Rivera, Robert Bernhard, Scott Anderson, and Craig Pefferle, and Class Counsel believe that the Settlement is fair, reasonable, and adequate. IV. WHAT ARE YOUR RIGHTS AS A MEMBER OF THE SETTLING CLASS?
Plaintiffs Steven Trujillo, Craig Ansman, Will Rivera, Robert Bernhard, Scott Anderson, and Craig Pefferle, as Class Representatives and Class Counsel represent your interests as a member of the Settling Class. Ifyou did not file an opt-out during the Opt-Out Period, you are a part of the Settling Class, and you will be bound by the tenns of the Settlement as described above and as more fully discussed in the Settlement Agreement on file with the Court. As a member of the Settling Class, any final judgment that may be entered by the Court pursuant to the Settlement will effectuate a release of your claims against the City of Ontario and the other released parties as described above. As a member of the Settling Class, you will not be responsible for the payment of attorneys' fees or reimbursement of litigation expenses unless you retain your own counsel, in which event you will be responsible for your own attorneys' fees and costs.
A. Claiming Your Share of the Settlement To receive a share of the Settlement proceeds, you must complete and sign the enclosed Claim Form and mail it via first class mail to the Class Counsel at the following address:

Anne Richardson ATTN: Trujillo v. Ontario Claims Hadsell Stormer Keeny Richardson & Renick, LLP 128 North Fair Oaks Avenue Pasadena, California 91103

To be valid, the Claim Form must be completed in full, signed by you under penalty of perjury. The Claim Form must be received no later than - - - -
A member of the Settling Class who does not mail a Claim Form in the manner and by the deadlines specified above will not receive a share of the Settlement proceeds but will still be bound by
the release. B. Commenting in Favor of the Settlement You may, but are not required to, comment in favor of the Settlement. If you wish to comment in
favor of the Settlement, your comments must be in writing and mailed via first class mail, on or before _ _ _ _ _,to all ofthe following:

Celeste Brustowicz Rinos & Martin LLP 17862 17th Street, Suite 104 Tustin, CA 92780
Bruce E. Disenhouse Kinkle Rodiger & Spriggs 3~33 Fourteenth Street Riverside, CA 92501

Anne Richardson Hadsell Stormer Keeny
Richardson & Renick, LLP 128 North Fair Oaks Avenue Pasadena, California 91103

Your written comments must include your full name, address, and dates of your employment at the Ontario Police Department and must reference this case, Trujillo, et al., v. City of Ontario, et al., Case
Exhibit 2 Page34

Case 5:04-cv-01015-VAP-PJW Document 237-2 Filed 03/16/2009 Page 11 of 11

No. ED CV 04-1015 VAP (SGLx). In addition, your written comments must indicate whether you intend

to appear at the Final Approval Hearing scheduled for

at 8:30a.m. PLEASE DO NOT

TELEPHONE THE COURT, COUNSEL, OR THE CITY OF ONTARIO.

C. Objecting to the Settlement.

If you are dissatisfied with any of the te1ms of the Settlement, you may object to the Settlement.

Any objection to the Settlement must be in writing and must explain, in clear and concise terms, the

basis for your objection. In addition, in order to be considered, your objection must be mailed via first

class mail on or before

to the following:

Celeste Brustowicz Rinos & Martin LLP 17862 17th Street, Suite 104 Tustin, CA 92780
Bruce E. Disenhouse Kinkle Rodiger & Spriggs 3333 Fomieenth Street Riverside, CA 92501

Anne Richardson Hadsell Stormer Keeny
Richardson & Renick~ LLP 128 North Fair Oaks Avenue Pasadena, California 91103

Your written comments must include your full name, address, and dates of your employment at

the Ontario Police Department and must reference this case, Trujillo, et al., v. City ofOntario, et al.,

Case No. ED CV 04-1015 VAP (SGLx). In addition, your written comments must indicate whether you

intend to appear at the Final Approval Hearing scheduled for

at 8:30a.m. PLEASE DO

NOT TELEPHONE THE COURT, COUNSEL, OR THE CITY OF ONTARIO.

Any member of the Settling Class who does not object to the Settlement in the manner described

above will be deemed to have waived any objections and will be foreclosed from making any objection

(whether by appeal or otherwise) to the Settlement. If the Comi rejects your objection, you will still be

bound by the terms of the Settlement with respect to covered claims.

V. FINAL SETTLEMENT APPROVAL HEARING

The Comi will hold a final approval hearing in the United States District Court for the Central

District of California, Eastern Division, 3470 Twelfth Street, Riverside, California, before the Honorable

Virginia A. Phillips, on _ _ at_ a.m./p.m., to determine whether the Settlement should be finally

approved as fair, reasonable, and adequate. The Court will also be asked to approve Class Counsel's

request for costs and attorneys' fees and the enhancements paid to the Class Representatives. The

hearing may be postponed without further notice to the Class. It is not necessary for you to appear at this

hearing.

VI. GETTING MORE INFORMATION

The above is a summary of the basic tenns of the Settlement. For the precise terms and

conditions of the Settlement, you are refened to the Joint Settlement Agreement, which will be on file

with the Court. The pleadings and other records in this litigation including the Settlement Agreement,

may be examined at any time during regular business hours in the Central District of California, Eastern

Division, 3470 Twelfth Street, Riverside, California, or you may contact the Plaintiffs' Counsel.

PLEASE DO NOT TELEPHONE THE COURT, DEFENDANT'S COUNSEL, OR THE CITY

OF ONTARIO FOR INFORMATION REGARDING THIS SETTLEMENT OR THE CLAIM

PROCESS.

BY ORDER OF THE COURT.

Dated:

HON. VIRGINIA A. PHILLIPS UNITED STATES DISTRICT JUDGE

Exhibit 2 Page35

 
 Case 5:04-cv-01015-VAP-PJW Document 275 Filed 05/14/2009 Page 1 of 7

1
PETER J. ELIASBERG (S.B.No. 189110)
2 E-mail: :Qeliasberg@ac1u-sc.org PETER BIBRING {S.B. No. 223981)
3 E-mail: pbibringCiV.ac1u-sc.org ACLU FOUNDAl'ION OF
4 SOUTHERN CALIFORNIA 1313 W. 8th Street
5 Los Angeles CA 90017 Telephone: (213) 977-9500
6 FacsImile: (213) 977-5297 Attorneys for Plaintiffs
7 Steve Trujillo, et al.

8 Celeste Brustowicz, Esq. Jim Rinos, Esq.
9 RINOS & MARTIN, LLP 17862 17th Stree~ Suite 104
10 Tustin, CA 9278u Telephone: (714) 734-0400
11 FacsImile: (714) 734-0480 Attorneys for Defendant
12 City of Ontario, Lloyd Scharf, Tony Del Rio, and Michael Thompson
13
(Additional Counsel on Next Page)
14

15

UNITED STATES DISTRICT COURT

16

FOR THE CENTRAL DISTRICT OF CALIFORNIA

17

18 ROBERT BERNHARD, et 19 al.,

20

Plaintiffs,

21

v.

22
CITY OF ONTARIO, et ai.,
23

24

Defendants.

Case No.: ED CV 04-01015 VAP (PJWx)
ro'm~~~f~PMt~~
CLASS ACTION SETTLEMENT AND RELEASE
Ctrm: 2, Riverside Judge: Hon. Virginia Phillips

25

26

27

28

LA #570073 vI
[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT

Case 5:04-cv-01015-VAP-PJW Document 275 Filed 05/14/2009 Page 2 of 7

1 R~fI?M11&<g6g} i9lJ 1541)
2 HADSELL STORMER KEENY RICHARDSON & RENICK, LLP 128 North Fair Oaks Avenue
3 Pasadena, California 91103-3645 Telephone: 626-585-9600
4 FacsImile: 626-577-7079 Attorneys for Plaintiffs
5 Steve Trujillo, et al. 6 BRUCE DISENHOUSE
KINKLE, RODIGER, AND SPRIGGS 7 3333 Fourteenth Street
Riverside, CA 92501 8 Telephone: (951) 683-2410
FacsImile: (951) 683-7759 9 Attorneys for Defendant
Brad Schneider
10 11 12 13 14 15 16 17 18 19
20
21
22
23 24 25
26
27
28

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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT

Case 5:04-cv-01015-VAP-PJW Document 275 Filed 05/14/2009 Page 3 of 7

1

The Plaintiffs' Motion for an order granting preliminary approval of the settlement of this

2 action, certifying the proposed class for settlement purposes only, approving the form of notice

3 to the class, and setting a final approval hearing, came on for hearing in Courtroom 2 of this

4 Court on April 6, 2009. The defendants filed a response to the motion but did not oppose the

5 material terms of the proposed settlement. In addition, the motion for attorneys fees of Lackie

6 & Dammeier came on for hearing at the same time and day. No opposition or reply was filed to

7 that document.

8

Having read the motion, the points and authorities, and the declarations filed by the

9 parties, this Court finds that the proposed settlement appears fair, reasonable and adequate, and

10 that a hearing should be held after notice to the Plaintiff Class of the proposed settlement to

11 determine if the Settlement Agreement and settlement are fair, reasonable and adequate, and if a

12 Settlement Approval order and Final Judgment should be entered in this action based upon the

13 Settlement Agreement;

14

IT IS THEREFORE ORDERED THAT:

15

1. This Order incorporates by reference the parties' Stipulated Settlement

16 Agreement, and all terms defined herein shall have the same meaning as set forth in the

17 Stipulated Settlement Agreement ("Settlement Agreement").

18

2. The Settlement Agreement and the settlement contained therein are preliminarily

19 approved as fair, reasonable and adequate.

20

3. A hearing ("Settlement Fairness Hearing" or "Final Approval Hearing" ) shall be

21 held before this Court in Courtroom 2 of the above encaptioned court located at Twelfth Ave., .AlAAINSi" 1. Y
22 Riverside, California on J.mk _ , 2009 at 10:00 a.m., to determine: whether the proposed

23 settlement of the Class Action on the terms and conditions provided for in the Settlement

24 Agreement is fair, reasonable and adequate; whether said settlement should be finally approved

25 by the Court; and whether the Order and Final Judgment, as provided in the Settlement

26 Agreement, should be entered herein. The Court may adjourn or continue the Settlement

27 Fairness Hearing without further notice to the Settlement Class.

28

LA #570073 v1

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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT

Case 5:04-cv-01015-VAP-PJW Document 275 Filed 05/14/2009 Page 4 of 7

1

4. The Court hereby approves, as to fonn and content, the Class Notice and Claim

2 Fonns annexed as Exhibits C and D respectively to the Settlement Agreement and the List of

3 Class Members filed under seal as Exhibit A.

4

5. The Court finds that the publication of the Class Notice for Publication and the

5 mailing of the Class Notice and Claim Fonn substantially in the manner and fonn as set forth in

6 the Settlement Agreement and this Order meet the requirements of Fed. Rule Civ. Proc. 23 and

7 28 U.S.C. Section 1715 and due process, and is the best notice practicable under the

8 circumstances, and shall constitute due and sufficient notice to all persons entitled thereto.

9

6. Mail delivery shall be by First Class mail, postage prepaid, by the City of Ontario,

10 costs to be paid by the City of Ontario. The Class Notice and Claim Fonn shall be mailed to the

11 last known address of the Settlement Class member as reflected in Defendants' records as of the

12 date of mailing or as provided to defendants by plaintiffs based on their most recent infonnation.

13 Any Class Notices returned to the city of Ontario as non-deliverable shall be sent to the

14 forwarding address affixed to the returned Class Notice, if any. If no forwarding address is

15 affixed to the returned Class Notice, the City of Ontario shall make one further attempt to locate

16 the individual by any reasonable means. If after this attempt, the City of Ontario is unable to

17 locate the individual(s), the Defendants shall infonn Class Counsel of the Class Members who

18 have not been located and allow Class Counsel another 30 days to locate and provide the City

19 with a valid address. A final attempt will then be made by First Class mail to that address. After

20 that final attempt, defendants shall be deemed to have fully satisfied their obligation to provide

21 the Class Notice to the affected member ofthe Settlement Class.

22

7. The Court hereby finds that Class Members, as that tenn is defined in the

23 Settlement Agreement, who wish to participate in the settlement provided for in the Settlement

24 Agreement must complete, sign and return by mail the Claim Fonn (attached as Exhibit D to the

25 Settlement Agreement) to the Class Counsel, in accordance with the instructions and deadline

26 specified on the Claim Fonn no later than 60 days after mailing of Class Notice and Claim Fonn.

27 The City of Ontario will forthwith send out the checks to the Class Members, as provided in the

28 Settlement Agreement, from the $1,540,000 allocation.

LA #570073 vI

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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT

Case 5:04-cv-01015-VAP-PJW Document 275 Filed 05/14/2009 Page 5 of 7

1

8. On the date provided below, the appropriate official of the City of Ontario shall

2 file a sworn statement evidencing its compliance with the provisions of this Preliminary Order

3 and the tenns of the Settlement Agreement.

4

9. Plaintiffs' Attorney Fees and Costs from the $1,210,000 allocation shall be

5 approved per separate order of this court. ~~~~~\1~~'~~J::tft~fl1v finn of Lackie & ~

6 Dammeier.;6 u-tV\.1..t.cl ~ ~ DV"dt-( clMt-d ;\t~ l?,1.--ooi .

7

10. Any Settlement Class Member who has not timely elected to be excluded from

8 the Settlement Class, and who timely objects to the proposed settlement, including any

9 application for attorney fees and expenses and incentive awards to the named Plaintiffs, may

10 appear at the Settlement Fairness Hearing in person or through counsel to show cause why the

11 proposed settlement should not be approved as fair, reasonable and adequate or why the Order

12 and Final Judgment should or should not be entered on the proposed Settlement Agreement.

13

11. No Settlement Class Member or any other person shall be heard or entitled to

14 contest the approval of the tenns and conditions of the proposed settlement, or, if approved, the

15 Order and Final Judgment to be entered by the Court, unless the Settlement Class Member filed

16 hislher objections, papers and briefs with the Clerk of this Court as specified in the Class Notice.

17 In order to be valid, the objections must state the name and number of this action, and the papers

18 must be filed with the Clerk of this Court and served on counsel no later than 30 days after

19 mailing of Class Notice and Claim Fonn. Copies of any written objections, papers, or briefs
r 20 contesg g ~u6~nmjnd~x(V~ed with this Court and served ey l'efs8H81 eleli'18fY 8f by
21 First Class Regular U.S. M~t! following: Hadsell Stonner Keeny Richardson & Renick,

22 Attn. Dan Stonner, 128 North Fair Oaks Avenue, Pasadena, California 91103; ACLU of

23 Southern California, Attn. Peter Eliasberg, 1313 W. Eighth Street, Los Angeles, CA 90017,
24 Rinos & Martin LLP, Attn. Celeste Brustowicz, 17862 1i h Street, Tustin, California 92780 and

25 Kinkle Rodiger & Spriggs, Attn.: Bruce Disenhouse, 3333 Fourteenth Street, Riverside,

26 California 92501.

27

12. Any Settlement Class Member who does not make hislher objection in the manner

28 provided for in this order shall be deemed to have waived such objection and shall forever be

LA #570073 vI

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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT

Case 5:04-cv-01015-VAP-PJW Document 275 Filed 05/14/2009 Page 6 of 7

1 foreclosed from making any objection to or appeal of the fairness, reasonableness or adequacy of

2 the proposed Settlement, to the calculation and distribution of any Settlement Award or an

3 enhancement payment to a named Plaintiff, and to the award of fees and costs to Class Counsel,

4 and all other costs as set forth in the Settlement Agreement, the Preliminary Order, and the Order

5 and Final Judgment.

6

13. All other proceedings in this action are stayed and suspended until further order of

7 this Court, except such actions as may be necessary to implement the Settlement Agreement and

8 this Order.

9

14. The Court reserves the right to adjourn or continue the date of the Settlement

10 Fairness Hearing without further notice to the Settlement Class, and retains jurisdiction to

11 consider all further applications arising out of or connected with the proposed settlement.

12

15. In the event the proposed settlement as provided in the Settlement Agreement is

13 not approved by the Court, or for any reason the parties fail to obtain a Settlement Approval

14 order and Final Judgment as contemplated in the Settlement Agreement, or the Settlement

15 Agreement is terminated or voided pursuant to its terms, the Settlement Agreement and all orders

16 in connection therewith shall become null and void and of no further force and effect, and shall

17 not be used or referred to for any purpose whatsoever. In such event, the Settlement Agreement,

18 and all negotiations and proceedings relating thereto shall be withdrawn without prejudice as to

19 the rights of any and all parties thereto.

20

16. Dates for performance:

21

(a) The parties shall provide the necessary information to the City of Ontario for

22 publishing the Class Notice for Publication and mailing the Class Notice and Claim Form to
'tlt~ 23 members of the settlement class by . ,2009.

24

(b) City of Ontario shall mail the Class Notice and Claim Form to class members

10

25 in English within J..t business days from receipt of the list from the Class Counsel.

26

(c) Objections to the settlement by class members are to be in writing and filed

27 no later than 30 days after mailing of Class Notice and Claim Form and served on Plaintiffs'

28 Class Counsel and Defendants' counsel.

LA #570073 vI

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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT

Case 5:04-cv-01015-VAP-PJW Document 275 Filed 05/14/2009 Page 7 of 7

(,0

1

(d) Claim Fonns must be postmarked no later than~days after mailing of Class

2 Notice and Claim Fonn to be effective.

~lMt 1-,~.

3

(d) Final Approval Hearing/Settlement Fairness Hearing is to be held on~_,

4 2009 at! 0:00 a.m.

5

(e) The City of Ontario shall file with this court and serve on Plaintiffs' Class

6 Counsel a sworn written report detailing its compliance with the tenns of this Order and the

7 Settlement Agreement, including the publication of the Class Notice for Publication, the mailing

8 of the Class Notice and Claim Fonn to class members, the number of written requests for

9 exclusion received, and the number of claim fonns received. The report shall be filed no later

10 than seven court days prior to the Final Approval Hearing! Settlement Fairness Hearing.

11

(f) Defendants to file their papers in support of settlement by fourteen court days

12 prior to the Final Approval Hearing/Settlement Fairness Hearing.

13

(g) Response to objections, if any, of class members are to be filed by five court

14 days prior to the Final Approval Hearing/Settlement Fairness Hearing.

15

IT IS SO ORDERED.

f1r1L-t, 16
17 DATE:

'lUoj

18

~
~
'" Hon. Virginia Phillip
d States District Court udge

19

20

21

22

23

24

25

26

27

28

LA #570073 vI

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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT

 
 Case 5:04-cv-01015-VAP-PJW Document 277 Filed 06/11/2009 Page 1 of 11

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

11 STEVEN TRUJILLO; JEFF )

QUON; CRAIG ANSMAN; WILL )

12 RIVERA; SCOTT ANDERSON; )

ROBERT BERNHARD; CRAIG )

13 PEFFERLE,

)

)

14

Plaintiffs, )

)

15

v.

)

)

16 CITY OF ONTARIO, et al. )

Defendants. )

17 ________________________ )

Case No. EDCV 04-1015VAP(SGLx)
[Motion filed on March 16, 2009]
ORDER CONDITIONALLY GRANTING MOTION REGARDING ATTORNEYS' FEES AND COSTS PENDING FINAL APPROVAL OF SETTLEMENT AGREEMENT

18 Plaintiffs' Motion for Preliminary Approval of the
19 Settlement and the Motion for Attorneys' Fees of the ACLU
20 and Hadsell Stormer ("Motion"), filed March 16, 2009,
21 came before the Court for hearing on April 6, 2009. The
22 Court has reviewed and considered all papers filed in
23 support of the Motion, as well as the arguments advanced
24 by counsel at the hearing and in supplementary materials
25 filed with the Court.1
26

27

28 1Several submissions did not comply with Local Rule
11-5.3, which requires the use of tabs.

Case 5:04-cv-01015-VAP-PJW Document 277 Filed 06/11/2009 Page 2 of 11

1

In separate orders the Court granted preliminary

2 approval of the settlement and denied attorney's fees to

3 Lackie & Dammeier. The Court hereby GRANTS the Motion as

4 to the attorney's fees ON THE CONDITION that the

5 settlement receives final approval.

6

7

I. BACKGROUND

8

A plaintiff class of approximately 125 police

9 officers and others, represented by four law firms over

10 the course of five years, seeks a judicial determination

11 of the reasonable amount of its attorneys' fees. On the

12 morning of the first day of trial, the parties settled

13 their dispute, and the written settlement agreement

14 provides for reimbursement of fees and costs. Plaintiffs

15 now apply to the Court for approval of attorneys' fees

16 and costs.

17

18

II. LEGAL STANDARD

19

Attorney's fees in a section 1983 case are governed

20 by 42 U.S.C. section 1988, which provides: "In any

21 action or proceeding to enforce a provision of section[]

22 . . . 1983 . . . the court, in its discretion, may allow

23 the prevailing party . . . a reasonable attorney's fee as

24 part of the costs . . . ." 42 U.S.C. § 1988(b). "The

25 purpose of § 1988 is to ensure effective access to the

26 judicial process for persons with civil rights

27

28

2

Case 5:04-cv-01015-VAP-PJW Document 277 Filed 06/11/2009 Page 3 of 11

1 grievances." Hensley v. Eckerhart, 461 U.S. 424, 429

2 (1983) (quotation marks omitted).

3

4

The analysis of an attorney's fee award is twofold.

5 The Court must first determine whether or not the party

6 seeking fees is the prevailing party. Fischer v. SJB-

7 P.D., Inc., 214 F.3d 1115 (9th Cir. 2000). A plaintiff

8 is the prevailing party when the legal relationship

9 between the parties is altered so that "the plaintiff can

10 force the defendant to do something he otherwise would

11 not have to do" – such as pay a settlement. Id. at 1118.

12 A plaintiff may be the prevailing party though he

13 settles, rather than prevails at trial. See Maher v.

14 Gagne, 448 U.S. 122, 129-30 (1980).

15

16

Next, the Court determines whether or not the amount

17 requested is a reasonable one. Fischer, 214 F.3d at

18 1115. "In determining a reasonable attorney's fee, the

19 district court's first step is to calculate a 'lodestar'

20 by multiplying the number of hours it finds the

21 prevailing party expended on the litigation by a

22 reasonable hourly rate. . . In determining what

23 constitutes a reasonable fee, the district court should

24 take into account the factors set forth in Kerr v. Screen

25 Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975)."

26 McGrath v. County of Nevada, 67 F.3d 248, 252 (9th Cir.

27 1995). Then, Court decides whether to increase or

28

3

Case 5:04-cv-01015-VAP-PJW Document 277 Filed 06/11/2009 Page 4 of 11

1 decrease the lodestar amount by evaluating those Kerr

2 factors "not already subsumed in the initial

3 calculation." McGrath, 67 F.2d at 252.

4

5

The Kerr factors are: time and labor required; the

6 novelty and difficulty of the questions involved; the

7 skill needed to perform the legal service properly; the

8 preclusion of other employment by the attorney due to

9 acceptance of the case; the customary fee, whether the 10 fee is fixed or contingent2; time limitations imposed by

11 the client or the circumstances; the amount involved and

12 the results obtained; the experience, reputation, and

13 ability of the attorney; the "undesirability" of the

14 case; the nature and length of the professional

15 relationship with the client; and awards in similar

16 cases. Id.

17

18

III. DISCUSSION

19

Here Plaintiffs are the prevailing parties because

20 they may now force the Defendants to pay the settlement

21 amount, so long as the Settlement Agreement receives

22 final approval. See Fischer, 214 F.3d at 1119.

23

24

25

26

2Although this factor is mentioned in Kerr the Court

does not consider it as the Supreme Court disapproved of

27 this practice in City of Burlington v. Dague, 505 U.S.

557 (1992) (attorneys' fees under Solid Waste Disposal

28 Act and the Clean Water Act).

4

Case 5:04-cv-01015-VAP-PJW Document 277 Filed 06/11/2009 Page 5 of 11

1

The Court must determine a reasonable fees award

2 based on the reasonable hourly rate for class counsel and

3 the number of hours spent. The requests of three firms

4 are now before the Court: (1) the American Civil

5 Liberties Union Foundation ("ACLU"); (2) Hadsell Stormer

6 Keeny Richardson & Rennick ("Hadsell Stormer"); (3) Bahan

7 & Associates. Attorneys' fees and costs are to be paid

8 from a fund of $1,210,000. Defendants have agreed not to

9 oppose any request for attorneys' fees so long as the

10 amount sought is 50% or less of the total settlement.

11 (Mot. 4.) Defendants have not objected to the requested

12 attorneys' fees.

13

14

Here, the requests of Bahan & Associates, the ACLU,

15 and Hadsell Stormer, including anticipated future bills,

16 and excluding costs, exceed the available funds. As

17 discussed at the April 6, 2009 hearing, the Court

18 presumes class counsel will appropriate amongst

19 themselves the difference between the amounts awarded and

20 the fund available.

21

22

The Court has reviewed in detail all of the

23 declarations submitted by and on behalf of the attorneys

24 and other billing professionals, as well as all other

25 supporting evidence regarding market rates, the

26 attorneys' experience, expertise, and reputations and all

27 other factors relevant under Kerr. Many of the counsel

28

5

Case 5:04-cv-01015-VAP-PJW Document 277 Filed 06/11/2009 Page 6 of 11

1 at the ACLU, Hadsell Stormer, and Bahan & Associates have

2 stellar educational and employment histories and have

3 been recognized with various awards for their work.

4 Considering the rate prevailing in the Central District

5 for similar work performed by attorneys of comparable

6 skill, experience, and reputation, the Court finds the

7 billing rates set forth below reasonable.

8

9

The Court also has reviewed and analyzed the tasks

10 described in every monthly billing summary submitted.

11 After doing so, the Court finds it appropriate to reduce

12 the number of hours for which Plaintiffs seek to recover

13 attorneys' fees. Specifically, the Court reduces fees

14 for tasks for which excessive time was spent, such as on

15 basic research performed by student interns, for tasks of

16 a secretarial nature, and tasks the Court deems

17 unnecessary, duplicative, or excessive.

18

19

The Court awards class counsel an additional $30,000

20 for preparation and appearance at the hearing on the

21 motion for final approval, distribution of funds to class

22 members, and other tasks reasonably related to obtaining

23 payment for the class. The Court presumes class counsel

24 will appropriate this amount among themselves.

25

26

27

28

6

Case 5:04-cv-01015-VAP-PJW Document 277 Filed 06/11/2009 Page 7 of 11

1

1. ACLU

2

The ACLU seeks $567,246.50 in attorneys' fees

3 incurred before the April 6, 2009, hearing, and

4 $42,013.28 for fees incurred since. For the reasons

5 explained below, the Court awards the ACLU $513,520.

6

7

The Court approves Eliasberg's work at $500 per hour

8 and approves 682.1 hours' work for a total of $341,050.

9

10

The ACLU seeks compensation for Ahilan Arulanantham's

11 work at $425 per hour; the Court approves $400 as a

12 reasonable rate, 75.6 as a reasonable number of hours,

13 and $30,240 as a reasonable total fee for his work.

14

15

The Court approves Peter Bibring's ("Bibring") work

16 at the ACLU at the rate of $375 per hour as requested;

17 Lori Rifkin's ("Rifkin") work at $335 per hour as

18 requested; and the work of experienced ACLU paralegals at

19 $175 per hour as requested. The Court finds Bibring

20 reasonably spent 166.2 hours on this matter; that Rifkin

21 reasonably spent 100 hours, and that experienced

22 paralegals at the ACLU reasonably spent 138.61 hours.

23 Accordingly, the total approved fee for Bibring's work at

24 the ACLU is $62,325; for Rifkin, $33,500.00; and for the

25 experienced paralegals $24,256.75.

26

27

28

7

Case 5:04-cv-01015-VAP-PJW Document 277 Filed 06/11/2009 Page 8 of 11

1

The ACLU has requested compensation for the work of

2 law students at $200 per hour. The Court awards the ACLU

3 $135 per hour for the work of the students. The Court

4 finds the law students reasonably spent a total of 117.4

5 hours on this matter, and awards a fee of $15,849 for

6 their work.

7

8

The ACLU also seeks compensation at the rate of $695

9 per hour for 10.5 hours of work by Professor Allan Ides

10 ("Ides"), who assisted with writing a portion of a brief.

11 The Court finds $600 to be the reasonable hourly rate for

12 Ides. The Court approves all of his 10.5 hours as

13 reasonable. The ACLU shall be awarded $6,300 for his

14 work.

15

16

2. Hadsell Stormer

17

Hadsell Stormer seeks $587,163.65 in attorneys' fees

18 for work before the Court's April 6, 2009 hearing and

19 $48,222 for work since, a total of $635,385.65. (Mot.

20 15.) The Court awards Hadsell Stormer $607,768 in

21 attorneys' fees.

22

23

The Court finds $700 per hour is a reasonable rate

24 for Dan Stormer's ("Stormer") work. Stormer demonstrates

25 exceptional qualifications and experience and provides

26 evidence his requested rate of $800 is within the range

27 of billing rates at the 250 largest Los Angeles firms.

28

8

Case 5:04-cv-01015-VAP-PJW Document 277 Filed 06/11/2009 Page 9 of 11

1 Stormer shows several courts have granted fee requests

2 for attorneys of his skill and experience in the $700 to

3 $800 range. The Court finds 322.5 of Stormer's hours

4 reasonably spent and accordingly awards Hadsell Stormer

5 $225,750 for his work.

6

7

Hadsell Stormer requests compensation for Anne

8 Richardson's ("Richardson") work at the rate of $575 per

9 hour. The Court finds compensation at $550 per hour

10 reasonable and that she reasonably spent 399.6 hours on

11 this matter. Accordingly, the Court awards $219,780 for

12 Richardson's work.

13

14

Likewise, the Court finds the reasonable rate for

15 Lisa Holder's ("Holder") work is $375, that Holder

16 reasonably spent 161.68 hours on this matter, and that

17 Hadsell Stormer shall be awarded $60,630 for Holder's

18 efforts.

19

20

The Court finds the requested $275 per hour

21 compensation for Nagwa Ibrahim's ("Ibrahim") work, and

22 $250 per hour for Radhika Sainath's ("Sainath") work,

23 reasonable. The Court approves 56 hours of Ibrahim's

24 time as reasonably spent on this matter and likewise

25 finds 78.1 of Sainath's time compensable. The Court

26 accordingly awards $15,400 for Ibrahim's work and $19,525

27 for Sainath's labors.

28

9

Case 5:04-cv-01015-VAP-PJW Document 277 Filed 06/11/2009 Page 10 of 11

1

The Court declines to award Hadsell Stormer $200 per

2 hour for the work of law students. (See Richardson Decl.

3 ¶ 13.) Rather, the Court finds compensation at the rate

4 of $135 per hour reasonable, finds law students

5 reasonably worked 35.8 hours on his matter and awards

6 $4,833 for their work.

7

8

The Court approves Hadsell Stormer's request for $175

9 per hour for experienced paralegals, finds 200 hours'

10 work reasonable, and awards $35,000 for their work.

11

12

Likewise, the Court approves $150 per hour for mid-

13 level paralegals at Hadsell Stormer, as requested, finds

14 42 of their hours were reasonably spent on this matter,

15 and awards $6,300 for their work.

16

17

As to entry-level paralegals at Hadsell Stormer, the

18 Court finds $100 per hour for their work reasonable,

19 finds they reasonably worked 205.5 hours on this matter,

20 and awards Hadsell Stormer $20,550.00 for their work.

21

22

3. Bahan & Associates

23

Bahan & Associates requests $140,044.25 in attorneys'

24 fees. (Bahan Decl. ¶ 15.) The Court approves

25 $128,475.00.

26

27

28

10

Case 5:04-cv-01015-VAP-PJW Document 277 Filed 06/11/2009 Page 11 of 11

1

The Court finds $600 to be the reasonable hourly

2 compensation for Bahan, as stated in the tentative

3 ruling, based on her decades of experience and record of

4 success with multi-million dollar settlements in

5 employment cases. The Court finds she reasonably spent

6 68 hours on this case and awards Bahan & Associates

7 $40,800 for her work.

8

9

The Court awards Bahan & Associates $375 per hour for

10 the work of Puja Batra in light of the relative dearth of

11 information about her work. She reasonably spent 97.2

12 hours on this matter, so Bahan & Associates is awarded

13 $36,450. The Court awards fees for Bibring's work at the

14 rate of $375 per hour, as requested, and approves 136.6

15 of his hours at Bahan & Associates; the reasonable fee

16 for his labors is $51,255.00.

17

18

IV. CONCLUSION

19

The Court GRANTS the Motion for Attorneys Fees filed

20 on behalf of the ACLU, Hadsell Stormer, and Bahan &

21 Associates ON THE CONDITION THAT the Court grants final

22 approval to the Settlement Agreement.

23

24 Dated: June 11, 2009 25

VIRGINIA A. PHILLIPS United States District Judge

26

27

28

11

 
 Case 5:04-cv-01015-VAP-PJW Document 293 Filed 08/19/2009 Page 1 of 3

1 RINOS & MARTIN,LLP 2 DIMITRIOS C. RlNOS - SBN 59919
CELESTE BRUSTOWICZ - SBN 238686 3 17862 17th Street, Suite 104 4 Tustin, California 92780
Telephone: (714) 734-0400 - Facsimile: (714) 734-0480 5 E-Mail: cbrustowicz@rmlaw.org

6
Attorneys for Defendants, CITY OF ONTARIO POLICE DEPARTMENT, LLOYD
7 SCHARF, TONY DEL RIO AND MICHAEL THOMPSON

8
UNITED STATES DISTRICT COURT
9

10

CENTRAL DISTRICT OF CALIFORNIA

11 STEVEN TRUJILLO, JEFF QUON;,

) CASE NO:

12 CRAIG ANSMAN, WILL RIVERA,

) EDCV04010J SVAP(PJWx)

SCOTT ANDERSON, ROBERT

)

13 BERNHARD and CRAIG PEFFERLE, )

14

) (PROPeSEe(o'RDER RE:

Plaintiff,

) SETTLEMENT CHECK

15

) DISTRIBUTION TO CLASS

v.
16

) MEMBERS & ALLOCATION OF ) FUNDS SET ASIDE FOR

17 CITY OF ONTARIO POLICE

) ENHANCEMENT AWARDS NOT

18 DEPARTMENT A Department Thereof, ) SOUGHT BY ORlGINAL

LLOYD SCHARF, Individually and as ) PLAINTIFFS

19 Chief of Ontario Police Department, TONY)

20 DEL RIO, Individually and as a Captain for) (Filed Concurrently with Ex Parte

the Ontario Police Department, BRAD ) Application and Stipulation by the

21 SCHNEIDER, Individually and as a

) Parties Thereto)

22 Sergeant for the Ontario Police Department, )

JOE SIFUENTES, and DOES 1

)

23 THROUGH 20, Inclusive

)

24

)

Defendants.

)

25

)

26
TO ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD:
27

28
[PROPOSED1 ORDER RE: SETTLEMENT CHECK DISTRIBUTION TO CLASS MEMBERS & ALLOCATION OF FUNDS SET ASIDE FOR ENHANCEMENT AWARDS NOT SOUGHT BY ORIGINAL PLAINTIFFS

Case 5:04-cv-01015-VAP-PJW Document 293 Filed 08/19/2009 Page 2 of 3

IT IS HEREBY ORDERED THAT:
2
(1) Counsel for defendants, CITY OF ONTARIO POLICE DEPARTMENT,
3
4 LLOYD SCHARF, TONY DEL RIO AND MICHAEL THOMPSON, shall issue one
5 check to Class Counsel in the amount of $1.54 million for damages to the Plaintiff
6
Class (which will be separate from and in addition to any check issued to Class
7
8 Counsel for attorneys fees and costs);

9

(2) Class Counsel shaH issue checks to the individual class members from the

10
$1.54 million for damages to the Plaintiff Class; and
11

12

(3) The $20,000 provided for in the $1.54 million settlement fund for

13 Enhancement Awards, but not sought by Original Plaintiffs Salvador Garcia and Jim
14
Renstrom, shall be distributed cy pres to the United States Adaptive Recreation Center.
15
16 This clarification of the settlement agreement does not affect the adequacy of the

17 notice provided to the class under FRCP 23(e), or the fairness of the settlement as a
18
whole, because the notice did not specify the exact amount to be received by class
19
members who filed claim forms and were not entitled to incentive awards. The notice
20
21 stated only that they would receive "approximately $10,000." See, e.g., Torrisi v.
22
Tucson Elec. Power Co., 8 F.3d 1370, 1374 (9th )993) (notice to class sufficient if it
23
24 sets forth only the total settlement amount and a fonnula for computing recoveries); In

25 re Cement and Concrete Antitrust Litigation, 817 F.2d 1435, 1440 (9th Cir. 1987)

26
(Due process does not require that class notice "recite the language of every provision
27

28

2

[PROPOSED] OROER RE: SETTLEMENT CHECK DISTRIBUTION TO CLASS MEMBERS & ALLOCATION OF FUNDS SET ASIDE FOR ENHANCEMENT AWARDS NOT SOUGHT BY ORIGINAL PLAINTIFFS

Case 5:04-cv-01015-VAP-PJW Document 293 Filed 08/19/2009 Page 3 of 3

of a proposed settlement agreement. Notice is satisfactory if it generally describes the

2
terms of the settlement in sufficient detail to alert those with adverse viewpoints to
3
investigate and to come forward and be heard.") (internal quotation omitted).
4

5

6 DATED: ~ lQ)We:1
7
8

E OF THE UNITED STATES ICT COURT, CENTRAL

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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3

[PROPOSED) ORDER RE: SETILEMENT CHECK DISTRIBUTION TO CLASS MEMBERS &ALLOCATION OF FUNDS SET ASiDE"FOR
ENHANCEMENT AWARDS NOT SOUGHT BY ORIGINAL PLAINTIFFS

 
 Case 5:04-cv-01015-VAP-PJW Document 298 Filed 08/24/2009 Page 1 of 16

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5

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8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

11 STEVEN TRUJILLO, et al. )

Plaintiffs, )

12

)

v.

)

13

)

CITY OF ONTARIO, et al. )

14

Defendants. )

________________________ )

15

Case No. EDCV 04-1015VAP(SGLx)
[Motion filed on August 3, 2009]
ORDER GRANTING FINAL APPROVAL OF SETTLEMENT

16

17

Plaintiffs' Motion for Final Approval of the

18 Settlement ("Mot.") was filed August 3, 2009. The

19 Settlement includes the "Joint Stipulation of Class

20 Action Settlement and Release" and exhibits attached

21 thereto, all filed on April 15, 2009. ("Settlement

22 Agreement.") The Settlement also includes modifications

23 of the Settlement Agreement by: (1) the Court's May 14,

24 2009 Order Re Joint Stipulation of Class Action

25 Settlement and Release; (2) the Court's May 18, 2009

26 Minute Order granting preliminary approval of the

27 Settlement Agreement ("May 18, 2009 Minute Order"); (3)

28 the Court's orders in response to the parties' ex parte

Case 5:04-cv-01015-VAP-PJW Document 298 Filed 08/24/2009 Page 2 of 16

1 application of June 8, 2009 (re no publication of class

2 notice) as well as the parties' stipulations of July 2,

3 2009 (service of revised claim forms), July 22, 2009 (no

4 incentive payments for Salvador Garcia ("Garcia") or Jim

5 Renstrom ("Renstrom")), and August 10, 2009 (distribution

6 of checks by Class Counsel, incentive payments not

7 claimed by Garcia and Renstrom distributed via cy pres).

8

9

Defendants Michael Thompson, City of Ontario, Ontario

10 Police Department, Lloyd Scharf, Tony Del Rio, and Brad

11 Schneider ("Defendants") filed a Statement in Support of

12 Settlement on August 4, 2009. On August 13, 2009, the

13 City of Ontario Risk Manager, Ann Richey, filed a

14 declaration regarding Defendants' compliance with the

15 Settlement.

16

17

On August 17, 2009, the parties lodged a Revised

18 Proposed Order Granting Final Approval of Class Action

19 Settlement and Judgment ("Revised Proposed Order") but

20 the Settlement does not require its use. (See Settlement

21 Agreement ¶ 26(c).)

22

23

I. BACKGROUND

24 A. Procedural History

25

The Law firm of Lackie & Dammeier filed the original

26 Complaint in August 2004 on behalf of Robert Bernhard

27 ("Bernhard"), Scott Anderson ("Anderson"), Steven Hurst

28

2

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1 ("Hurst"), Renstrom, Ron Dupuis ("Dupuis"), Keith

2 Henderson ("Henderson"), Craig Pefferle ("Pefferle"),

3 Nicko Carcich ("Carcich"), Rick Carroll ("Carroll"),

4 Garcia, Christopher Alvarez ("Alvarez"), Fred Ruiz

5 ("Ruiz"), Steve Guderian ("Guderian"), Mike Kelley

6 ("Kelley"), and Mike Bors ("Bors") as individuals.

7

8

In October of 2004, Lackie & Dammeier, with the

9 American Civil Liberties Union ("ACLU") and Bahan &

10 Associates, filed a First Amended Complaint ("FAC") on

11 behalf of Steven Trujillo ("Trujillo"), Jeff Quon

12 ("Quon"), Craig Ansman ("Ansman"), Will Rivera

13 ("Rivera"), Anderson, Bernhard, and Pefferle

14 (collectively "Plaintiffs"), as representatives of a

15 purported class. Trujillo, Ansman, Rivera, Anderson,

16 Bernhard, and Pefferle served as Class Representatives.

17 (Settlement Agreement ¶ 1.)

18

19

The Court granted Plaintiffs' motion for class

20 certification pursuant to Fed. R. Civ. P. 23(b)(3) in

21 April 2005, designating Della Bahan ("Bahan"), Peter

22 Eliasberg ("Eliasberg"), and Michael Lackie ("Lackie") as

23 co-lead counsel of a class consisting of "[a]ll persons

24 who were employed by the Ontario Police Department or

25 volunteered for the Ontario Police Department, used the

26 Department's men's locker room during the period in which

27 the surveillance equipment was installed, and were

28

3

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1 recorded by the surveillance equipment." (Order Granting

2 Mot. for Class Certification 2, 16.)

3

4

The Court granted Defendants' motion to disqualify

5 Lackie & Dammeier as counsel in August 2005 and in May

6 2009 denied that firm attorney's fees. (August 17, 2005

7 Minute Order Granting Defs.' Mot. to Disqualify Counsel;

8 May 13, 2009 Minute Order Den. Lackie & Dammeier's Mot.

9 for Att'y Fees.)

10

11

In April, 2006, the Court heard cross-motions for

12 summary judgment and granted summary adjudication in

13 favor of Plaintiffs. (Amended Order Den. In Part and

14 Granting In Part Pls.' and Defs.' Mots. for Summ. J. 1.)

15 Defendants appealed the Court's denial of qualified

16 immunity and the Ninth Circuit affirmed.

17

18

In the summer of 2008, the Court permitted Bahan &

19 Associates to withdraw as counsel and appointed Hadsell

20 Stormer Keeny Richardson & Renick ("Hadsell Stormer") as

21 co-class counsel. (July 23, 2008 Order Granting Mot. for

22 Substitution of Class Counsel 2.) Since then, Hadsell

23 Stormer and Eliasberg of the ACLU have served as Class

24 Counsel. (Id. at 6.)

25

26

The parties prepared for trial during the latter part

27 of 2008 and into February, 2009. On the morning of the

28

4

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1 first day of trial, they announced they had reached a

2 settlement of their dispute.

3

4

In May 2009 the Court gave preliminary approval to

5 the Settlement. The Court found the proposed notice and

6 claim form met the requirements of Rule 23 and due

7 process and were the best notice practicable. (Order Re

8 Joint Stipulation of Class Action Settlement and Release

9 ¶ 5.)

10

11

Accordingly, notice was sent to class members. (Id.;

12 May 18, 2009 Minute Order.) Class Counsel received the

13 claim forms. With defense counsel, they sought and

14 obtained several adjustments to the claim forms and

15 procedures which now form part of the Settlement, as

16 described above.

17

18 B. Settlement Terms

19

The Settlement creates two non-reversionary funds

20 totaling $2.75 million: a $1.54 million fund for payments

21 to class members and a $1.21 million fund for attorneys'

22 fees and costs. (Settlement Agreement ¶¶ 6, 10.) Class

23 Counsel will distribute funds as follows: (1) $10,000 to

24 each class member who submitted a claim form timely; (2)

25 an additional $10,000 (for $20,000 total) to ten of the

26

27

28

5

Case 5:04-cv-01015-VAP-PJW Document 298 Filed 08/24/2009 Page 6 of 16

1 twelve persons1 who were named as plaintiffs in the

2 original Complaint but not the FAC; (3) an additional

3 $30,000 (for $40,000 total) to the six Class

4 Representatives. (Mot. 11.)

5

6

Garcia and Renstrom could have been eligible, as

7 persons named as plaintiffs in the original Complaint but

8 not the FAC, for $10,000 incentive payments. The $20,000

9 unclaimed by Garcia and Renstrom, as well as any portion

10 of the $2.54 million remaining after the distribution of

11 the monies provided for in the Settlement, will be

12 distributed to the United States Adaptive Recreation

13 Center ("USARC"). (Order Granting Stipulation for

14 Settlement Check Distribution to Class Members and

15 Allocation of Funds Set Aside for Enhancement Awards Not

16 Sought by Original Pls.; Settlement Agreement ¶ 38.)

17

18

Pursuant to the Settlement, the claim forms were to

19 be mailed no later than Monday, June 8, 2009, objections

20 filed no later than July 8, 2009, and claim forms

21 postmarked no later than August 7, 2009. (May 18, 2009

22 Minute Order at 2.) The parties complied with these

23 provisions. (Richey Decl. ¶¶ 2-3; Lebano Decl. ¶¶ 2-7.)

24

25

26

27 1 Hurst, Dupuis, Henderson, Carcich, Carroll,
28 Alvarez, Ruiz, Guderian, Kelley, and Bors.

6

Case 5:04-cv-01015-VAP-PJW Document 298 Filed 08/24/2009 Page 7 of 16

1

Defendants at paragraph 25 of the Settlement

2 Agreement agreed to provide notice to state officials as

3 provided by the Class Action Fairness Act ("CAFA"), 28

4 U.S.C. section 1715(b), although such notice was not

5 required by law because this action was filed before CAFA

6 became effective. 28 U.S.C. § 1332; Class Action

7 Fairness Act, Pub. L. 109-2 § 9 (2005). At the hearing

8 on this matter Defendants confirmed they complied with 28

9 U.S.C. section 1715(b).

10

11

Pursuant to an order filed in response to the

12 parties' July 2, 2009 stipulation, the Court permitted

13 class members who received claim forms with errors to

14 submit their claim forms no later than August 18, 2009 or

15 August 21, 2009, depending on the reason a revised claim

16 for was needed. Nevertheless, Class Counsel received

17 claim forms timely from all 121 class members.

18

19

II. LEGAL STANDARD

20

Rule 23(e) of the Federal Rules of Civil Procedure

21 provides that the "claims, issues, or defenses of a

22 certified class may be settled, voluntarily dismissed, or

23 compromised only with the court's approval." Rule

24 23(e)(2) further states: "If the proposal would bind

25 class members, the court may approve it only after a

26 hearing and on finding that it is fair, reasonable, and

27 adequate."

28

7

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1

To determine whether the settlement is adequate and

2 reasonable, the Court balances several factors, which may

3 include:

4

the strength of plaintiffs' case; the

risk, expense, complexity, and likely

5

duration of further litigation; the risk

of maintaining class action status

6

throughout the trial; the amount offered

in settlement; the extent of discovery

7

completed, and the stage of the

proceedings; the experience and views of

8

counsel; the presence of a governmental

participant; and the reaction of the

9

class members to the proposed settlement.

10 Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1291
11 (9th Cir. 1992).
12

13 III. DISCUSSION
14 For the reasons below, the Court finds the Settlement
15 is fair, adequate, reasonable, in the best interests of
16 the class as a whole, and satisfies Rule 23 of the
17 Federal Rules of Civil Procedure and due process
18 requirements. See id.
19

20 A. Fairness, Adequacy, and Reasonableness of Settlement
21 1. Arms-length negotiations
22 The parties engaged in extensive negotiations,
23 including at least three mediation sessions presided over
24 by currently-serving or retired judicial officers. The
25 Court is satisfied the Settlement is the product of arms-
26 length negotiation. (Mot. 8-9; Declaration of Peter
27 Eliasberg ("Eliasberg Decl.") ¶¶ 3-4.)
28

8

Case 5:04-cv-01015-VAP-PJW Document 298 Filed 08/24/2009 Page 9 of 16

1

2. The strength of Plaintiffs' case, including the

2

risk, expense, complexity and likely duration

3

of further litigation and the amount offered in

4

settlement

5

Plaintiffs obtained summary adjudication in their

6 favor regarding the liability of certain Defendants to

7 the class. The trial would have been devoted largely to

8 assessing damages and the liability of Defendants who

9 supervised persons already found liable, indicating a

10 strong likelihood Plaintiffs would recover.

11

12

Nevertheless, class members sought only emotional

13 distress damages and no class member could produce proof

14 of visits to mental health professionals or other

15 documentary evidence of special damages. (Mot. 10; Pls.'

16 Mot. for Preliminary Approval of Class Action Settlement

17 4, 7.) Thus, damages in this case were somewhat

18 uncertain, making the range of reasonable recovery above

19 zero but difficult to define.

20

21

The Settlement is within the range of awards in other

22 cases involving video surveillance. (Mot. 8-10.)

23 Accordingly, Plaintiffs have satisfied this requirement.

24

25

26

27

28

9

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1

3. The extent of discovery completed, and the

2

stage of the proceedings

3

The parties completed sufficient discovery to permit

4 an informed settlement – indeed, discovery was complete

5 at the time settlement was achieved. The parties briefed

6 and argued cross motions for summary adjudication,

7 pursued appellate litigation, and arrived in Court

8 prepared to try their case to a jury.

9

10

4. The reaction of the class members to the

11

proposed settlement

12

The reaction of the class has been very favorable.

13 All 121 class members submitted claim forms timely.

14 (Lebano Decl. ¶¶ 2-4; Mot. 11; Revised Proposed Order ¶

15 4; Declaration of Ann Richey, City of Ontario Risk

16 Manager, Re: Compliance with Preliminary Order and

17 Settlement Agreement ("Richey Decl.") ¶ 5.) Accordingly,

18 the rate of class members submitting claim forms exceeds

19 99%.

20

21

No objections appear on the Court's docket. One

22 class member, Darryl Bolke ("Bolke"), sent a

23 communication objecting to the Settlement to the ACLU

24 only, a copy of which the ACLU furnished to the Court.

25 (Lebano Decl. ¶ 8 (Lebano received communication from

26 Bolke attached to Bolke's claim form), Ex. 1 (copy of

27 Bolke submission).) One other person may have sent a

28

10

Case 5:04-cv-01015-VAP-PJW Document 298 Filed 08/24/2009 Page 11 of 16

1 similar communication to Class Counsel and defense

2 counsel but the Court has not received a copy of this

3 submission. (Revised Proposed Order ¶ 2 (reporting "one"

4 document "sent by another Class Member both to

5 Defendants' Counsel and Class Counsel").)

6

7

The Court cannot conclude these communications comply

8 with the conditions for objections enumerated in the

9 Settlement as they were not provided to all parties'

10 counsel and served on the Court. (Settlement Agreement

11 Ex. C at 6; May 18, 2009 Minute Order at 2.) Even

12 assuming, without deciding, that these statements could

13 properly be considered objections, the communication of

14 which the Court has a copy, from Bolke, does not change

15 the result reached by the Court.

16

17

Bolke disagrees with the class' receipt of money

18 rather than other relief. (Lebano Decl. Ex. 1.) This is

19 an objection which would apply to many settlements and

20 does not, by itself, show the terms of this settlement to

21 be unfair or inadequate.

22

23

Accordingly, the overall reaction of the class to the

24 settlement has been positive and shows strong support for

25 granting final approval.

26

27

28

11

Case 5:04-cv-01015-VAP-PJW Document 298 Filed 08/24/2009 Page 12 of 16

1

2

5. Whether disparate treatment of class members is

3

justified and the propriety of incentive awards

4

to class representatives and former plaintiffs

5

The criteria the Court may consider in determining

6 whether to make an incentive award include:

7

1) the risk to the class representative

in commencing suit, both financial and

8

otherwise; 2) the notoriety and personal

difficulties encountered by the class

9

representative; 3) the amount of time and

effort spent by the class representative;

10

4) the duration of the litigation and; 5)

the personal benefit (or lack thereof)

11

enjoyed by the class representative as a

result of the litigation.

12

Van Vranken v. Atlantic Richfield Co., 901 F. Supp. 294,

13

299 (N.D. Cal. 1995).

14

15 After reviewing the evidence before it, including
16 that submitted in support of preliminary approval, the
17 Court concludes: (1) the $10,000 incentive payments to
18 ten of the persons named in the original Complaint
19 (Kelley, Hurst, Dupuis, Henderson, Carcich, Carroll,
20 Alvarez, Ruiz, Guderian, Bors) are reasonable; (2) the
21 $30,000 incentive payments to the Class Representatives
22 are reasonable.
23

24 The $10,000 incentive payments to the aforementioned
25 ten persons named in the original Complaint are supported
26 by the evidence before the Court of the contributions
27 these persons made to the prosecution of the litigation
28

12

Case 5:04-cv-01015-VAP-PJW Document 298 Filed 08/24/2009 Page 13 of 16

1 or the risk of retaliation they experienced, which were

2 not shared by the class as a whole. (See Declaration of

3 Peter Eliasberg in Support of Pls.' Mot. for Preliminary

4 Approval of Class Action Settlement ("3/17/09 Eliasberg

5 Decl.") ¶ 24; Declaration of Craig Pefferle in Support of

6 Pls.' Mot. for Preliminary Approval of Class Settlement

7 ("3/16/09 Pefferle Decl.") ¶ 11; Declaration of Craig

8 Ansman in Support of Pls.' Mot. for Preliminary Approval

9 of Class Settlement ("3/16/09 Ansman Decl.") ¶ 13.)

10

11

The $30,000 incentive payments to the six Class

12 Representatives are also justified by the substantial

13 time these persons contributed to the litigation, the

14 significant contributions they made, which benefitted the

15 class as a whole, and the personal risk, notoriety, and

16 difficulties they experienced in serving as Class

17 Representatives. (Mot. 12-13; Declaration of Robert

18 Bernhard in Support of Pls.' Mot. for Preliminary

19 Approval of the Class Settlement ("3/16/09 Bernhard

20 Decl.") ¶¶ 3-11, 15; 3/16/09 Pefferle Decl. ¶¶ 3-12;

21 Declaration of Will Rivera in Support of Pls.' Mot. for

22 Preliminary Approval of Class Settlement ("3/16/09 Rivera

23 Decl.") ¶¶ 3-12; 3/13/09 Anderson Decl. ¶¶ 3-17; 3/16/09

24 Ansman Decl. ¶¶ 3-10.)

25

26

Bolke, the class member who wrote to the ACLU, does

27 not agree with the disparity between the work performed

28

13

Case 5:04-cv-01015-VAP-PJW Document 298 Filed 08/24/2009 Page 14 of 16

1 by some class members, particularly some of those named

2 in the original Complaint who did not act as Class

3 Representatives, and the monies they will receive. He

4 does not name who should receive less money or why but

5 suggests Trujillo should decide who will receive

6 incentive awards. (Lebano Decl. Ex. 1 at 3.)

7

8

Bolke is the only person of 121 class members to

9 raise this point and does not give particularized facts

10 to call into question the detailed evidence Plaintiffs

11 submitted to support the incentive awards. (See Mot. 12-

12 13.) Accordingly, the Court finds the disparate

13 treatment of class members pursuant to the Settlement is

14 justified.

15

16

6. Whether the class was fairly and accurately

17

represented during negotiations

18

Plaintiffs' counsel included attorneys specializing

19 in civil rights issues and in trial litigation. Class

20 Representatives participated in three mediations as well

21 as the negotiations which immediately preceded

22 settlement. (Mot. 8; 3/16/09 Eliasberg Decl. ¶¶ 22-23;

23 see, e.g., 3/16/09 Bernhard Decl. ¶ 4; 3/16/09 Pefferle

24 Decl. ¶ 3; 3/16/09 Rivera Decl. ¶ 4.) The Court

25 concludes the class was fairly and accurately represented

26 during negotiations.

27

28

14

Case 5:04-cv-01015-VAP-PJW Document 298 Filed 08/24/2009 Page 15 of 16

1

2

7. The experience and views of class counsel

3

Plaintiffs' counsel included attorneys from among the

4 nation's foremost civil rights organizations and

5 prominent trial attorneys; class members participated in

6 mediations and settlement negotiations. (See 3/16/09

7 Eliasberg Decl. ¶ 24; see, e.g., 3/16/09 Bernhard Decl.

8 ¶¶ 3-4; 3/16/09 Rivera Decl. ¶ 4.) Class Counsel support

9 the settlement. The Court concludes counsel is

10 competent, experienced, and not subject to influence by

11 the opposing party.

12

13

8. Scope of claims released

14

The factors listed in Seattle are not exclusive. See

15 955 F.2d at 1291. Here the parties revised the language

16 in the Settlement Agreement pursuant to the Court's

17 concern that the language releasing claims was too broad.

18 The Court finds the language in the Settlement

19 reasonable, fair, and adequate.

20

21 B. Adequacy of Notice to the Class

22

When granting preliminary approval, the Court found

23 the proposed notice and claim form met the requirements

24 of Fed. R. Civ. P. 23 and due process and were the best

25 notice practicable. (Order Re Joint Stipulation of Class

26 Action Settlement and Release ¶ 5.) After approving four

27 modifications to the notice and administration

28

15

Case 5:04-cv-01015-VAP-PJW Document 298 Filed 08/24/2009 Page 16 of 16

1 procedures, sought on an ex parte basis or pursuant to

2 stipulations, the Court confirms this finding.

3 Plaintiffs submit evidence they contacted each class

4 member and that at least 120 of 121, or over 99% of the

5 class, submitted claim forms. (Lebano Decl. ¶¶ 2-4.)

6

7

IV. CONCLUSION

8

For the above reasons, the Court GRANTS the Motion,

9 gives final approval to the Settlement, and DISMISSES the

10 action WITH PREJUDICE. All class members (not including

11 those who opted out timely after the Court's April 14,

12 2005 class certification order) shall be bound by this

13 Order.

14

15

The Court has given final approval to the settlement.

16 Accordingly the Court GRANTS the motion for attorney's

17 fees as provided in the Court's June 11, 2009 Order,

18 which conditionally granted attorney's fees.

19

20

The Court reserves and maintains jurisdiction over

21 this settlement and its provisions, and the distribution

22 of the funds.

23

24

25 Dated: August 24, 2009 26

VIRGINIA A. PHILLIPS United States District Judge

27

28

16

 
 -. FILED Case 5:04-cv-01015-VAP-PJW Document 110 Filed 04/07/2008 Page 1 of 10

•

.t

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APR 072008
MOLLY C. DWYER, CLERK OF COURT U.s. COURT OF APPEALS

ROBERT BERNHARD; SCOTT ANDERSON; CRIAG PEFFERLE; CRAIG ANSMAN; WILL RIVER; JEFF QUON; STEVEN TRUJILLO,

No. 06-55736 D.C. No. CV-04-01015-VAP

Plaintiffs - Appellees

MANDATE

v.

CITY OF ONTARIO, a Municipal corporation,

Defendant

and

CITY OF ONTARIO POLICE DEPARTMENT, a Department thereof; LLOYD SCHARF, individually and as Chief of Ontario Police Department; TONY DEL RIO, individually and as Captain of Ontario Police Department; BRAD SCHNEIDER, individually and as Sergeant of Ontario Police Department; MICHAEL THOMPSON,

Defendants - Appellants

The judgment of this Court, entered 3/13/08, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure.

Case 5:04-cv-01015-VAP-PJW Document 110 Filed 04/07/2008 Page 2 of 10
· t
FOR THE COURT:
Molly C. Dwyer Clerk of Court
\~
By: Syni\ha Fuller Deputy Clerk

Case 5:04-cv-01015-VAP-PJW Document 110

FILED Filed 04/07/2008 Page 3 of 10

""\""\"

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS

MAR 132008

CATHu.Ys.AC. OCUARTTI

ERS0rt CLERK
OF APPeALS

FOR THE NINTH CIRCUIT

ROBERT BERNHARD; SCOTT ANDERSON; CRIAG PEFFERLE; CRAIG ANSMAN; WILL RIVER; JEFF QUON; STEVEN TRUJILLO,
Plaintiffs - Appellees,
v.
CITY OF ONTARIO, a Municipal corporation,
Defendant,
and
CITY OF ONTARIO POLICE DEPARTMENT, a Department thereof; LLOYD SCHARF, individually and as Chief of Ontario Police Department; TONY DEL RIO, individually and as Captain of Ontario Police Department; BRAD SCHNEIDER, individually and as Sergeant of Ontario Police Department; MICHAEL THOMPSON,
Defendants - Appellants.

No. 06-55736 D.C. No. CV-04-01015-VAP
MEMORANDUM *

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Case 5:04-cv-01015-VAP-PJW Document 110 Filed 04/07/2008 Page 4 of 10
Appeal from the United States District Court for the Central District of California
Virginia A. Phillips, District Judge, Presiding Argued and Submitted February 6,2008 Pasadena, California
Before: PREGERSON and WARDLAW, Circuit Judges, and LEIGHTON**, District Judge.
Plaintiffs are several officers in the Ontario Police Department. They brought this action under 42 U.S.C. § 1983 against various Defendants, including former Ontario Police Detective Brad Schneider ("Schneider"), alleging that Schneider violated their Fourth Amendment rights by arranging for the warrantless, covert video surveillance of their employee locker room while investigating a reported flashlight theft. On partial summary judgment, the district court held that Schneider had violated the Fourth Amendment and that he was not entitled to qualified immunity. Schneider filed this interlocutory appeal.
The parties are familiar with the facts of this case, and we do not repeat them here. We review de novo the district court's qualified immunity determination on summary judgment. See Boyd v. Benton County, 374 F.3d 773, 778 (9th Cir.
** The Honorable Ronald B. Leighton, United States District Judge for the Western District of Washington, sitting by designation.
2

Case 5:04-cv-01015-VAP-PJW Document 110 Filed 04/07/2008 Page 5 of 10
2004). We have jurisdiction under 28 U.S.C. § 1291, see Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), and we affirm.
"The determination of whether a law enforcement officer is entitled to qualified immunity involves a two-step analysis." Moreno v. Baca, 431 F.3d 633, 638 (9th Cir. 2005) (citing Saucier v. Katz, 533 U.S. 194,201 (2001)). First, we must determine whether the officer's conduct violated a constitutional right. See id. If we find that the officer violated a constitutional right, we next consider whether that right was clearly established at the time the alleged violation occurred. See id.
The undisputed facts demonstrate that Schneider violated Plaintiffs' Fourth Amendment right to be free from unreasonable searches. Whether a particular governmental intrusion constitutes an "unreasonable search" depends on whether the persons searched had an expectation of privacy against the intrusion, and whether that privacy expectation was reasonable. See Bond v. United States, 529 U.S. 334, 338 (2000); United States v. Nerber, 222 F.3d 597, 599 (9th Cir. 2000). Here, Plaintiffs clearly expected that they would not be secretly videotaped in their locker room. There were no signs in the locker room, or anywhere else in the building, announcing that the locker room was subject to video, audio, or photographic surveillance. Plaintiffs were never informed by management, either
3

Case 5:04-cv-01015-VAP-PJW Document 110 Filed 04/07/2008 Page 6 of 10
orally or in writing, that they might be subject to such surveillance. They engaged in private activities in the locker room, such as changing clothes, using the bathroom, and showering. 1 See Bond, 529 U.S. at 338 (holding that plaintiffs must show that they sought "to preserve something as private" to satisfy the subjective part of the Fourth Amendment inquiry (internal quotation marks and alteration omitted)). Finally, each Plaintiff submitted a declaration stating that he had a subjective expectation of privacy against the covert video surveillance of the locker room. Accordingly, we find that Plaintiffs had an expectation of privacy against Schneider's search.
We also find that Plaintiffs' expectation was "one that society is prepared to recognize as reasonable." Bond, 529 U.S. at 338 (internal quotation marks omitted). Although there is no "talisman that determines in all cases those privacy expectations that society is prepared to accept as reasonable," 0 'Connor v. Ortega, 480 U.S. 709, 715 (1987) (plurality opinion), here, the totality of the circumstances weighs in Plaintiffs' favor. First, Schneider's intrusion, installing a covert video surveillance camera in the locker room, was severe. See Nerber, 222 F.3d at 603
1 Schneider argues that the presence of other officers in the locker room belies Plaintiffs' subjective expectation of privacy. However, as we have previously noted, "[p]rivacy does not require solitude." United States v. Taketa, 923 F.2d 665, 673 (9th Cir. 1991). That Plaintiffs expected to undress in front of their colleagues does not mean that they expected to undress for the camera.
4

Case 5:04-cv-01015-VAP-PJW Document 110 Filed 04/07/2008 Page 7 of 10
(finding that the nature of the governmental intrusion is a factor courts should consider, and "[h]idden video surveillance is one of the most intrusive investigative mechanisms available to law enforcement"). Second, the place searched - an employee locker room - was not open to the public and was used for private behavior. See Minnesota v. Carter, 525 U.S. 83, 88 (1998) ("[T]he extent to which the Fourth Amendment protects people may depend upon where those people are." (internal quotation marks omitted». Finally, common sense dictates that reasonable persons, including police officers, do not expect to be secretly videotaped by other police officers while changing clothes in their workplace locker rooms. See 0 'Connor, 480 U.S. at 715 (explaining that "our societal understanding that certain areas deserve the most scrupulous protection from government invasion" is a relevant Fourth Amendment factor). Accordingly, we
5

Case 5:04-cv-01015-VAP-PJW Document 110 Filed 04/07/2008 Page 8 of 10
conclude that Plaintiffs' expectation of privacy was reasonable, and that
Schneider's search was not.2
Because we find that Schneider's conduct violated Plaintiffs' Fourth
Amendment rights, we next consider whether those rights were clearly established
in 1996. We hold that, as of 1996, no reasonable officer would have believed that
Schneider's conduct was constitutional.
First, several courts, from this Circuit and elsewhere, had recognized prior to
1996 that secret video surveillance is especially intrusive on the privacy interests
protected by the Fourth Amendment. See, e.g., United States v. Koyomejian, 970
F.2d 536,551 (9th Cir. 1992) (Kozinski, J., concurring) ("As every court
considering the issue has noted, video surveillance can result in extraordinarily
2 Schneider argues that his use of video surveillance constituted a "public employer search," subject to the relaxed "reasonableness" standard articulated by a plurality of the Supreme Court in O'Connor v. Ortega. See O'Connor, 480 U.S. at 722-25 (holding that government employers need not comply with the warrant and probable cause requirements of the Fourth Amendment to conduct certain types of legitimate, work-related, non-investigatory searches). This argument fails for two reasons. First, the undisputed facts demonstrate that Schneider conducted his search as part of a criminal investigation. Thus, 0 'Connor does not apply. Second, Schneider's search was broader than necessary. Therefore, even if O'Connor's "reasonableness" standard did apply, Schneider's actions would fall short of it. See Schowengerdt v. Gen. Dynamics Corp., 823 F.2d 1328, 1336 (9th Cir. 1987) (explaining that an 0 'Connor search is too broad "[i]f less intrusive methods were feasible, or if the depth of the inquiry or the extent of the seizure exceeded that necessary for the government's legitimate purposes, such as its interest in security").
6

Case 5:04-cv-01015-VAP-PJW Document 110 Filed 04/07/2008 Page 9 of 10
serious intrusions into personal privacy."); United States v. Taketa, 923 F.2d 665, 677 (9th Cir. 1991) (finding that warrantless video surveillance of an office violated the Fourth Amendment rights of those who were recorded, including a person recorded in an office that was not his); United States v. Falls, 34 F.3d 674, 680 (8th Cir. 1994) ("It is clear that silent video surveillance results ... in a very serious, some say Orwellian, invasion of privacy."); United States v. Mesa-Rincon, 911 F.2d 1433, 1443 (lOth Cir. 1990) ("Because of the invasive nature of video surveillance, the government's showing of necessity must be very high to justify its use."); United States v. Cuevas-Sanchez, 821 F.2d 248,251 (5th Cir. 1987) ("[I]ndiscriminate video surveillance raises the spectre of the Orwellian state."). The basic principle articulated in these cases - that covert video surveillance is highly intrusive and justifiable only in rare circumstances - was sufficient to put Schneider on notice that warrantless covert video surveillance of a locker room would violate the Fourth Amendment.
Moreover, in 1991, this Circuit held that the covert video surveillance of an employee in his co-worker's office violated the Fourth Amendment. See Taketa, 923 F.2d at 677. For obvious reasons, the privacy expectation against video surveillance in one's own locker room is greater than in another's office. Unlike most offices, employee locker rooms are usually same-sex. They do not have
7

Case 5:04-cv-01015-VAP-PJW Document 110 Filed 04/07/2008 Page 10 of 10
· '
windows and are typically inaccessible to the public. Furthermore, people do not regularly engage in the private behavior of changing clothes, using the bathroom, or showering within their offices. Accordingly, if an office is a place where people have a privacy interest against covert video surveillance, a locker room is also such a place. Thus, our decision in Taketa provided Schneider with fair warning that his actions would violate the Fourth Amendment. See Hope v. Pelzer, 536 U.S. 730, 741 (2002) ("[O]fficials can still be on notice that their conduct violates established·law even in novel factual circumstances .... [T]he salient question ... is whether the state of the law ... gave [the defendant] fair warning that [his] alleged treatment ... was unconstitutional.").
For the foregoing reasons, the district court's denial of qualified immunity is AFFIRMED.
8

 
 Case 5:04-cv-01015-VAP-PJW Document 114 Filed 05/13/2008 Page 1 of 2

UNITED STATES COURT 0F APPEALS FOR THE NINTH CIRCUIT

FILED
MAY 132008
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

ROBERT BERNHARD; SCOTT ANDERSON; CRIAG PEFFERLE; CRAIG ANSMAN; WILL RIVER; JEFF QUON; STEVEN TRUJILLO,
Plaintiffs - Appellees,
v.
CITY OF ONTARIO, a Municipal corporation,
Defendant,
and
CITY OF ONTARIO POLICE DEPARTMENT, a Department thereof LLOYD SCHARF, individually and as Chief of Ontario Police Department; TONY DEL RIO, individually and as Captain of Ontario Police Department; BRAD SCHNEIDER, individually and as Sergeant of Ontario Police Department; MICHAEL THOMPSON,
Defendants - Appellants.

No. 06-5rz~ D.C. No. CV-04-01015-VAP Central District of California, Riverside
ORDER
~M~AY i13·mJI ,. CAUfORNt'" ') PUTY

.Case 5:04-cv-01015-VAP-PJW Document 114 Filed 05/13/2008 Page 2 of 2
, Before: PREGERSON and WARDLAW, Circuit Judges, and LEIGHTON: District Judge. We grant Plaintiffs-Appellees' unopposed motion for an extension of time to file a reply brief and to submit additional billing records. After reviewing the parties' submissions, we grant Plaintiffs-Appellees' request for interim attorneys' fees under 42 U.S.C. § 1988. We award attorneys' fees of$44,703.26 and "fees on fees" of $7,847 in favor of Plaintiffs-Appellees and against Defendants-Appellants. A certified copy of this order sent to the district court shall serve to amend this court's mandate.
* The Honorable Ronald B. Leighton, United States District Judge for the Western District of Washington, sitting by designation.

 
 Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 1 of 49
(PJWx), CLOSED, DISCOVERY, PROTORD
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA (Eastern Division − Riverside)
CIVIL DOCKET FOR CASE #: 5:04−cv−01015−VAP−PJW

Robert Bernhard et al v. City of Ontario et al Assigned to: Judge Virginia A. Phillips Referred to: Magistrate Judge Patrick J. Walsh Case in other court: 9th CCA, 06−55736 Cause: 42:1983 Civil Rights Act
Plaintiff
Robert Bernhard

Date Filed: 08/13/2004 Date Terminated: 08/24/2009 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Anne K Richardson Hadsell Stormer Kenney Richardson Renick LLP 128 North Fair Oaks Ave Suite 204 Pasadena , CA 91103−3664 626−585−9600 Fax: 626−577−7079 Email: arichardson@hskrr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dan Stormer Hadsell Stormer Keeny Richardson and Renick LLP 128 North Fair Oaks Avenue Suite 200 Pasadena , CA 91103 626−585−9600 Fax: 626−577−7079 Email: dstormer@hadsellstormer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Della Bahan Bahan &Associates 125 University Avenue, Suite 102 Berkeley , CA 94710 510−845−0740 Fax: 510−845−3654 Email: db@bahanlaw.com TERMINATED: 07/23/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dieter C Dammeier Lackie Dammeier and McGill APC 367 North Second Ave Upland , CA 91786 909−985−4003 Fax: 909−985−3229 Email: dieter@policeattorney.com TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael A McGill Lackie Dammeier and McGill 367 North Second Ave Upland , CA 91786 909−985−4003 Fax: 909−985−3299

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 2 of 49

Email: mcgill@policeattorney.com TERMINATED: 08/17/2005 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

Puja Batra Bahan &Associates 125 University Avenue Berkeley , CA 94710 510−845−0740 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Scott Anderson

represented by Anne K Richardson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dan Stormer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Della Bahan (See above for address) TERMINATED: 07/23/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dieter C Dammeier (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A McGill (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Bibring (See above for address) LEAD ATTORNEY

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 3 of 49

ATTORNEY TO BE NOTICED

Peter J Eliasberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Puja Batra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Steven Hurst TERMINATED: 10/28/2004

represented by Dieter C Dammeier (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A McGill (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Jim Renstrom TERMINATED: 10/28/2004

represented by Dieter C Dammeier (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A McGill (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Ron Dupuis TERMINATED: 10/28/2004

represented by Dieter C Dammeier (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A McGill (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Keith Henderson TERMINATED: 10/28/2004

represented by Dieter C Dammeier (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A McGill (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 4 of 49

ATTORNEY TO BE NOTICED

Plaintiff Craig Pefferle

represented by Anne K Richardson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dan Stormer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Della Bahan (See above for address) TERMINATED: 07/23/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dieter C Dammeier (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A McGill (See above for address) TERMINATED: 08/17/2005 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

Puja Batra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Nicko Carcich TERMINATED: 10/28/2004

represented by Dieter C Dammeier (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A McGill (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Rick Carroll TERMINATED: 10/28/2004

represented by Dieter C Dammeier (See above for address) TERMINATED: 08/17/2005

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 5 of 49

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A McGill (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Salvador Garcia TERMINATED: 10/28/2004

represented by Dieter C Dammeier (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A McGill (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Christopher Alvarez TERMINATED: 10/28/2004

represented by Dieter C Dammeier (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A McGill (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Fred Ruiz TERMINATED: 10/28/2004

represented by Dieter C Dammeier (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A McGill (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Steve Guderian TERMINATED: 10/28/2004

represented by Dieter C Dammeier (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A McGill (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 6 of 49

Mike Kelley TERMINATED: 10/28/2004

represented by Dieter C Dammeier (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A McGill (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Mike Bors TERMINATED: 10/28/2004

represented by Dieter C Dammeier (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A McGill (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
ROES 1−250 TERMINATED: 10/28/2004

represented by Michael A McGill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Craig Ansman

represented by Anne K Richardson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dan Stormer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Della Bahan (See above for address) TERMINATED: 07/23/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dieter C Dammeier (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A McGill (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Bibring (See above for address) LEAD ATTORNEY

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 7 of 49

ATTORNEY TO BE NOTICED

Peter J Eliasberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Puja Batra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Will Rivera

represented by Anne K Richardson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dan Stormer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Della Bahan (See above for address) TERMINATED: 07/23/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dieter C Dammeier (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A McGill (See above for address) TERMINATED: 08/17/2005 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

Puja Batra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jeff Quon

represented by Anne K Richardson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dan Stormer (See above for address)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 8 of 49

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Della Bahan (See above for address) TERMINATED: 07/23/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dieter C Dammeier (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A McGill (See above for address) TERMINATED: 08/17/2005 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

Puja Batra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Steven Trujillo

represented by Anne K Richardson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dan Stormer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Della Bahan (See above for address) TERMINATED: 07/23/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dieter C Dammeier (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A McGill (See above for address) TERMINATED: 08/17/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 9 of 49

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
Puja Batra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant City of Ontario A Municipal Corporation
Defendant City of Ontario Police Department A Department Thereof
Defendant

represented by Bruce E Disenhouse Kinkle Rodiger and Spriggs 3333 14th St 2nd Fl Riverside , CA 92501 951−683−2410 Email: bdisenhouse@krsattys−riv.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celeste Brustowicz Rinos and Martin East Building 17862 East 17th Street, Suite 104 Tustin , CA 92780 714−734−0400 Email: cbrustowicz@rmlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Bernatz Martin Rinos and Martin LLP 17682 East 17th St Suite 104 Tustin , CA 92780 714−734−0400 Email: firm@rmlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bruce E Disenhouse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celeste Brustowicz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 10 of 49

Lloyd Scharf Individually and as Chief of Ontario Police Department

Bruce E Disenhouse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Celeste Brustowicz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Bernatz Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Tony Del Rio Individually and as a Captain for Ontario Police Department

represented by Bruce E Disenhouse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Celeste Brustowicz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Bernatz Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Brad Schneider Individually and as a Sergeant for Ontario Police Department

represented by Bruce E Disenhouse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Celeste Brustowicz Rinos and Martin 17862 East 17th Street, Suite 104 Tustin , CA 92780 714−734−0400 Email: cbrustowicz@rmlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Joe Sifuentes TERMINATED: 09/29/2005

represented by Mark John Tundis Mark Tundis Law Offices 984 West Foothills Boulevard, Suite A Upland , CA 91786 909−985−9643 Fax: 909−985−3381 Email: mjtesq@msn.com TERMINATED: 05/10/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
DOES 1 through 20, inclusive

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 11 of 49

Defendant Michael Thompson

represented by Celeste Brustowicz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Bernatz Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce E Disenhouse (See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/13/2004
08/13/2004 08/13/2004
08/13/2004 08/16/2004 10/28/2004
10/28/2004

#

Docket Text

1 COMPLAINT against defendants City of Ontario, City of Ontario Police Department, DOES, Tony Del Rio, Lloyd Scharf, Brad Schneider, Joe Sifuentes(Filing fee $150.00) Jury Demanded, filed by plaintiffs Christopher Alvarez, Scott Anderson, Robert Bernhard, Mike Bors, Nicko Carcich, Rick Carroll, Ron Dupuis, Salvador Garcia, Steve Guderian, Keith Henderson, Steven Hurst, Mike Kelley, Craig Pefferle, ROES, Jim Renstrom, Fred Ruiz.(de, ) (Entered: 08/16/2004)

20 Day Summons Issued re Complaint − (Discovery), Complaint − (Discovery) 1 as to City of Ontario, City of Ontario Police Department, DOES, Tony Del Rio, Lloyd Scharf, Brad Schneider, Joe Sifuentes. (de, ) (Entered: 08/16/2004)

2 CERTIFICATION AND NOTICE of Interested Parties filed by Plaintiffs Christopher Alvarez, Scott Anderson, Robert Bernhard, Mike Bors, Nicko Carcich, Rick Carroll, Ron Dupuis, Salvador Garcia, Steve Guderian, Keith Henderson, Steven Hurst, Mike Kelley, Craig Pefferle, ROES, Jim Renstrom, Fred Ruiz. (de, ) (Entered: 08/16/2004)

FAX number for Attorney Dieter C Dammeier, Michael Andrew McGill is 909−985−3299. (de, ) (Entered: 08/16/2004)

3 STANDING ORDER by Judge Virginia A. Phillips,(am, ) (Entered: 08/18/2004)

4 FIRST AMENDED COMPLAINT against defendants City of Ontario, City of Ontario Police Department, DOES, Tony Del Rio, Lloyd Scharf, Brad Schneider, Joe Sifuentes ; Party Nicko Carcich; Rick Carroll; Ron Dupuis; Salvador Garcia; Steve Guderian; Keith Henderson; Steven Hurst; Mike Kelley; ROES; Jim Renstrom; Fred Ruiz; Christopher Alvarez and Mike Bors terminated amending Complaint − (Discovery); Demand for jury trial,filed by plaintiffs Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo, Scott Anderson, Robert Bernhard, Craig Pefferle (am, ) (Entered: 11/01/2004)

20 Day Summons Issued re Amended Complaint, 4 as to City of Ontario, City of Ontario Police Department, Tony Del Rio, Brad Schneider, Joe Sifuentes. (am, ) (Entered: 11/01/2004)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 12 of 49

12/17/2004 12/17/2004 01/06/2005 02/23/2005
03/07/2005
03/07/2005 03/07/2005 03/21/2005 03/28/2005 04/04/2005 04/04/2005
04/11/2005

5 CERTIFICATE of Interested Parties filed by Defendants City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider. (de, ) (Entered: 12/22/2004)
6 ANSWER to Complaint − (Discovery) 1 with JURY DEMAND filed by defendants City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider.(de, ) (Entered: 12/22/2004)
7 ORDER SETTING SCHEDULING CONFERENCE by Judge Virginia A. Phillips: Scheduling Conference set for 3/28/2005 01:30 PM before Honorable Virginia A. Phillips.(th) (Entered: 01/10/2005)
8 STIPULATION AND ORDER by Judge Virginia A. Phillips : The time for plaintiffs to file their motion for class certification is extended until 3/7/05; Defendants have until 3/21/05 to file their opposition to the motion; Plaintiffs have until 4/4/05 to file their reply if any; Scheduling Conference set for 4/11/2005 01:30 PM before Honorable Virginia A. Phillips; The motion for class certification will be heard on 4/11/05 at 10:00 a.m. or 1:30 pm. depending on the Court's schedule.(am, ) (Entered: 02/24/2005)
9 NOTICE OF MOTION AND MOTION for Class Certification filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. Motion set for hearing on 4/11/2005 at 10:00 AM before Honorable Virginia A. Phillips. Lodged Proposed Order. (am, ) (Entered: 03/08/2005)
10 MEMORANDUM in Support of MOTION for Class Certification 9 filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 03/08/2005)
11 DECLARATIONS in support of MOTION for Class Certification 9 filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 03/08/2005)
12 MEMORANDUM in Opposition to MOTION for Class Certification 9 filed by defendants City of Ontario, Lloyd Scharf, Tony Del Rio, Brad Schneider. (am, ) (Entered: 03/22/2005)
13 JOINT REPORT Rule 26(f) Discovery Plan filed; estimated length of trial 10 days. (am, ) (Entered: 03/29/2005)
14 REPLY MEMORANDUM OF POINTS AND AUTHORITIES in support of MOTION for Class Certification 9 filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 04/05/2005)
15 DECLARATIONS in support of plaintiffs reply memorandum of points and authorities in support of MOTION for Class Certification 9 filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 04/05/2005)
16 MINUTES OF Scheduling Conference held before Judge Virginia A. Phillips: The settlement conference shall be conducted no later than 8/31/05. The Court approves the ADR−01 Form, Settlement Procedures No 1 appear before

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 13 of 49

04/11/2005
04/11/2005 04/13/2005 04/14/2005
04/14/2005 04/15/2005 04/20/2005 04/25/2005
05/09/2005 05/09/2005

Magistrate Judge assigned to the case. The trial schedule, motion and discovery cutoff dates will be set forth in a separate civil scheduling order to be filed and served on counsel by the clerk. (am, ) (Entered: 04/12/2005)
17 SCHEDULING ORDER by Judge Virginia A. Phillips: Non Expert Discovery cut−off 9/30/2005.Expert Discovery Cut−off 11/30/05; Non−discovery Motions due by 1/23/2006. Pretrial Conference set for 3/13/2006 02:00 PM before Honorable Virginia A. Phillips. Jury Trial set for 3/28/2006 08:30 AM before Honorable Virginia A. Phillips. (am, ) (Entered: 04/12/2005)
18 MINUTES OF Motion Hearing held before Judge Virginia A. Phillips: MOTION to Class Certification 9 . Court issues a tentative ruling, hears oral argument and takes the matter under submission. Court Reporter: Phyllis Preston. (am, ) (Entered: 04/12/2005)
19 ORDER by Judge Virginia A. Phillips GRANTING the NOTICE AND REQUEST of Settlement Procedure Selection (Sp1)to Appear Before Magistrate Judge for settlement proceedings.(am, ) (Entered: 04/14/2005)
20 ORDER by Judge Virginia A. Phillips : granting 9 Motion for Class Certification. Della Bahan, Peter Eliasberg and Michael Lackie are appointed class counsel. Plaintiffs shall file a notice plan and lodge a proposed notice of pendency of class action no later than 4/20/05. Defendants may file any objections to the notice plan and notice of pendency of class action no later than 4/27/05.(am, ) (Entered: 04/14/2005)
PLACED IN FILE − NOT USED re proposed order lodged 3/7/05 granting motion for class certification submitted by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (mrgo, ) (Entered: 04/18/2005)
21 MEMORANDUM of Points and Authorities in Support of proposed Notice of Pendency of Class Action filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (mrgo, ) (Entered: 04/18/2005)
22 SETTLEMENT CONFERENCE ORDER, by Judge Stephen G. Larson. Settlement Conference set for 8/4/2005 02:30 PM before Magistrate Judge Stephen G. Larson (See document for further details). (de, ) (Entered: 04/20/2005)
23 PROOF OF SERVICE Executed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo, upon Joe Sifuentes served on 4/20/2005, answer due 5/10/2005. The Summons and Complaint were served by Personal service, by Federal statute, upon Jos Sifuentes. Due Dilligence declaration not attached. Original Summons not returned. (am, ) (Entered: 04/26/2005)
24 ANSWER to First Amended Complaint, 4 Jury Trial Demanded filed by defendant Joe Sifuentes.(am, ) (Entered: 05/10/2005)
25 NOTICE of Interested Parties filed by Defendant Joe Sifuentes. (am, ) (Entered: 05/10/2005)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 14 of 49

05/09/2005 06/01/2005 06/17/2005 06/21/2005 06/22/2005 06/24/2005
06/28/2005
07/01/2005 07/06/2005
07/07/2005 07/08/2005

26 DEMAND for Jury Trial filed by defendant Joe Sifuentes.. (am, ) (Entered: 05/10/2005)
27 STIPULATION AND PROTECTIVE ORDER re addresses and telephone numbers by Judge Virginia A. Phillips (am, ) (Entered: 06/03/2005)
28 NOTICE OF MOTION AND MOTION to Disqualify Plaintiffs' Counsel Dieter Dammeier and Michael McGill filed by defendants City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider. Motion set for hearing on 7/11/2005 at 10:00 AM before Honorable Virginia A. Phillips. (mrgo, ) (Entered: 06/20/2005)
29 ORDER approving form and method of notice of pendency of class action by Judge Virginia A. Phillips,(am, ) (Entered: 06/22/2005)
TRANSMITTAL of documents: Certifed copy of Order of Remand to San Bernardino County Superior Court.(am, ) (Entered: 06/22/2005)
30 EX PARTE APPLICATION to Vacate Notice of Motion and Motion to Disqualify Counsel of Record; Memorandum of points and authorities; and declarations of Michael A. McGill, Peter Eliasberg and Peter Bibring filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 06/27/2005)
31 NOTICE OF MOTION AND MOTION to Disqualify Counsel of Record of Lackie &Dammeier; Memorandum of points and authorities; declaration of Bruce E. Disenhouse; declaration of Sergeant Brad Schneider in support thereof filed by defendants City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider. Motion set for hearing on 7/25/2005 at 10:00 AM before Honorable Virginia A. Phillips. (am, ) (Entered: 06/29/2005)
32 MINUTES OF IN CHAMBERS ORDER by Judge Virginia A. Phillips: Granting plaintiffs 6/24/05 Ex aprte application to vacate defendants 6/17/05 motion to disqualify counsel. The hearing on the refiled motion is now set for 7/25/05 @ 10:00 a.m. (am, ) (Entered: 07/05/2005)
33 EX PARTE APPLICATION for Order to Vacate Defendants Notice of Motion and Motion to Disqualify Counsel of Record; Memorandum of points and authorities; and declaration of Michael A. McGill filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. Lodged Proposed Order. (am, ) (Entered: 07/07/2005)
34 OPPOSITION to EX PARTE APPLICATION to Vacate Defendants Notice of Motion and Motion to Disqualify Counsel of Record 33 ; Declaration of Bruce E. Disenhouse filed by defendants City of Ontario, Lloyd Scharf, Tony Del Rio, Brad Schneider. (am, ) (Entered: 07/08/2005)
35 MINUTES OF IN CHAMBERS ORDER by Judge Virginia A. Phillips: EX PARTE APPLICATION for Order to Vacate Defendants Notice of Motion and Motion to Disqualify Counsel of Record 33 (am, ) (Entered: 07/11/2005)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 15 of 49

07/08/2005 07/11/2005 07/18/2005 07/25/2005
07/26/2005 07/26/2005 07/29/2005 07/29/2005 08/17/2005 08/18/2005

PLACED IN FILE − NOT USED re Proposed Order granting ex parte relief and vacating defendants notice of motion and motion to disqualify cousnel of record submitted by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 07/11/2005)
36 MEMORANDUM in Opposition to MOTION to Disqualify Counsel 31 ; Declaration of Michael A. McGill, Anthony Snodgrass, Michael D. Lackie, Peter Bibring, and Peter Eliasberg in support thereof filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 07/12/2005)
37 REPLY to opposition to MOTION to Disqualify Counsel one of the counsel of Lackie &Dammeier 31 ; Memorandum of points and authorities; declaration of Bruce E. Disenhouse; Declaration of Sergeant Brad Schneider in support thereof filed by defendants City of Ontario Police Department, Tony Del Rio, Brad Schneider. (am, ) (Entered: 07/19/2005)
38 MINUTES OF Motion Hearing held before Judge Virginia A. Phillips RE: MOTION to Disqualify Counsel one of the counsel of Lackie &Dammeier 31 . Counsel shall file further briefs regarding whether defendants Motion to disqualify implicates the other law firms currently representing the plaintiffs. The briefs shall be filed no later that 7/29/05 and defendants motion to disqualify counsel of record shall stand submitted on the timely filed documents. Court Reporter: Phyllis Preston. (am, ) (Entered: 07/25/2005)
39 NOTICE of non−opposition filed by defendant Eliseo Sifuentes. (am, ) (Entered: 07/26/2005)
PLACED IN FILE − NOT USED re proposed order granting ex parte relief lodged 6/24/05 submitted by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (mrgo, ) (Entered: 07/28/2005)
40 SUPPLMENTAL MEMORANDUM in Opposition to MOTION to Disqualify Counsel 31 filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Jeff Quon, Steven Trujillo. (am, ) (Entered: 08/01/2005)
41 SUPPLEMENTAL BRIEF re MOTION to Disqualify Counsel one of the counsel of Lackie &Dammeier 31 ; Memorandum of points and authorities in support thereof filed by defendants City of Ontario, Lloyd Scharf, Tony Del Rio, Brad Schneider. (am, ) (Entered: 08/01/2005)
42 MINUTES OF IN CHAMBERS ORDER by Judge Virginia A. Phillips: GRANTING MOTION to Disqualify Counsel one of the counsel of Lackie &Dammeier 31 . Lackie &Dammeier is directed to cease all respresentation of plaintiffs and to turn over to its co−counsel all files related to the prosecution of plaintifffs action. (am, ) (Entered: 08/18/2005)
43 STIPULATION AND ORDER. IT IS HEREBY STIPULATED that the mandatory settlement conference may be continued to 9/20/05 at 10:00 AM in the courtroom of the Honorable Stephen G Larson. IT IS SO ORDERED, by Judge Stephen G. Larson. (de, ) (Entered: 08/22/2005)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 16 of 49

08/26/2005 08/26/2005 09/13/2005
09/15/2005
09/19/2005 09/26/2005 09/29/2005
09/29/2005 10/07/2005

44 TRANSCRIPT filed for proceedings held on 4/11/05. Court Reporter: Phyllis A. Preston. (am, ) (Entered: 08/29/2005)
45 RECEIPT OF REPORTERS TRANSCRIPT of proceedings for the following dates: 4/11/05,re Transcript 44 : Court Reporter: Phyllis Preston (am, ) (Entered: 08/29/2005)
46 STIPULATION AND ORDER CONTINUING NON−EXPERT DISCOVERY CUT−OFF AND EXPERT DISCLOSURE DEADLINES. IT IS HEREBY STIPULATED AS FOLLOWS: 1. The non−expert discovery cut−off may be extended until 11/30/05. 2. The last date for hearing of discovery motions may be extended until 12/12/05. 3. October 14, 2005 will be the last day to serve all initial expert disclosures. 4. November 3, 2005 will be the last day to serve all rebuttal expert disclosures. IT IS SO ORDERED, by Judge Virginia A. Phillips. (de, ) (Entered: 09/14/2005)
47 MINUTES: (IN CHAMBERS) ORDER AND NOTICE RESETTING TIME FOR SETTLEMENT CONFERENCE. Counsel are notified that due to the congestion of the courts trial calendar, the settlement conference scheduled before Magistrate Judge Stephen G Larson on 9/20/05, is hereby reset from 10:00 AM to 2:30 PM, in courtroom #1 of the above−entitled court. IT IS SO ORDERED, by Judge Stephen G. Larson. Court Reporter: None. (de, ) (Entered: 09/16/2005)
48 MINUTES OF IN CHAMBERS ORDER by Judge Virginia A. Phillips: Thecourt hereby ORDERS the settlement conference VACATED. Counsl are requested to consult with each other and thereafter, to contact the deputy clerk to reset the matter on the courts calendar as soon as possible. (am, ) (Entered: 09/20/2005)
49 NOTICE of filing of Opt−Outs to be excluded from action (Set One) filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 09/27/2005)
50 STIPULATION TO PERMIT FILING OF PLAINTIFFS SECOND AMENDED COMPLAINT ORDER AND SECOND AMENDED COMPLAINT. The parties hereby STIPULATE to permit the filing of the attached Second Amended Complaint. The parties further STIPULATE that by agreeing to this stipulation, Defendant Joe Sifuentes does not waive any right or claim he may have to seek costs or attorneys fees under FCRP 41(a)(2), 42 USC 1988, or any other provision of law, upon dismissal of Mr Sifuentes from this action. IT IS SO ORDERED, by Judge Virginia A. Phillips. (de, ) (Entered: 09/30/2005)
51 SECOND AMENDED COMPLAINT against defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider; Party Joe Sifuentes terminated amending Complaint − (Discovery) 1 , filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo (de, ) (Entered: 09/30/2005)
53 ANSWER to Second Amended Complaint, 51 Demand for jury trial filed by defendants Michael Thompson, City of Ontario, Lloyd Scharf, Tony Del Rio, Brad Schneider.(am, ) (Entered: 10/12/2005)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 17 of 49

10/11/2005 10/11/2005 10/11/2005 10/13/2005 10/17/2005
10/17/2005 10/17/2005
10/18/2005 10/18/2005 10/19/2005

MINUTES (In Chambers) ORDER AND NOTICE RESETTING DATE FOR SETTLEMENT CONFERENCE Counsel are notified that a Settlement Conference is hereby set for 11/1/2005 01:30 PM, in courtroom #1 before Magistrate Judge Stephen Larson.Tape #: None. (dts, ) (Entered: 10/11/2005)
52 NOTICE OF CLERICAL ERROR: Due to clerical error Minute Order dated 10/11/05 did not receive a docket entry number. Re: Reset Hearings (dts, ) (Entered: 10/11/2005)
54 AMENDED CERTIFICATION of Interested Parties filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider. (am, ) (Entered: 10/12/2005)
55 STIPULATION AND PROTECTIVE ORDER by Judge Stephen G. Larson : re payroll and telephone records (see document for detailed information)(am, ) (Entered: 10/14/2005)
59 STIPULATION TO DISMISS DEFENDANT JOE SIFUENTES WITH PREJUDICE. Plaintiffs and Defendant, Joe Sifuentes, have reached a mutually acceptable agreement concerning resolution of any claims Plaintiffs alleged against Mr Sifuentes and any claims Mr Sifuentes had against Plaintiffs, accordingly, pursuant to FRCP 41(a)(ii), the parties hereby STIPULATE to dismiss Defendant Joe Sifuentes with prejudice. IT IS SO ORDERED, by Judge Virginia A. Phillips. (de, ) (Entered: 10/21/2005)
60 STIPULATION CONCERNING NOTICE TO UNNAMED CLASS MEMBER, KATHY JANZEN. It is hereby STIPULATED by Ms Janzen and the parties that Ms Janzen has received adequate notice of the pendency of this class action. IT IS SO ORDERED, by Judge Virginia A. Phillips. (de, ) (Entered: 10/21/2005)
61 STIPULATION TO EXTEND TIME FOR INITIAL EXPERT DISCLOSURES AND ORDER. The parties hereby STIPULATE as follows: 1) The cut off date for initial expert disclosures is extended through 10/28/05; and 2) The cut off date for rebuttal expert disclosures is extended through 11/17/05; and 3) After the production of the rebuttal expert disclosures, the parties will agree to produce for deposition any rebuttal expert on reasonable notice, which may be less than ten days. or on one of the following days − November 28, 29, or 30, so that both Defendants and Plaintiffs have a reasonable opportunity to depose the other sides rebuttal expert. IT IS SO ORDERED, by Judge Virginia A. Phillips. (de, ) (Entered: 10/21/2005)
56 ANSWER to Second Amended Complaint, 51 Demand for jury trial filed by defendants City of Ontario, City of Ontario Police Department.(am, ) (Entered: 10/19/2005)
57 AMENDED CERTIFICATE of Interested Parties filed by Defendants City of Ontario, City of Ontario Police Department. (am, ) (Entered: 10/19/2005)
58 STIPULATION AND ORDER by Judge Virginia A. Phillips: That pursuant to FRCP 30(a)(2)(A) both th defendants and plaintiffs be permitted to take up to fifteen deposition as part of fact discovery in this mattter.(am, ) (Entered: 10/20/2005)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 18 of 49

11/01/2005
11/23/2005 12/01/2005 12/02/2005 12/16/2005 12/27/2005
01/04/2006 02/21/2006
02/21/2006 02/21/2006

62 MINUTES: SETTLEMENT CONFERENCE. A settlement conference was held. No settlement was reached. Counsel agreed to adjourn the settlement discussions for today but will continue to discuss the matter in good faith in private. The Court ORDERS counsel to file every 30 days a report on their ongoing settlement negotiations with this court, such reports shall be submitted under seal for in camera review. Counsel will contact the deputy clerk to set the matter back on calendar for further settlement discussions should counsel believe it would be fruitful. IT IS SO ORDERED, by Judge Stephen G. Larson. Court Reporter: None. (de, ) (Entered: 11/02/2005)
63 STIPULATION AND ORDER by Judge Virginia A. Phillips: The non−expert discovery cut−off may be extended until 12/20/05.(am, ) (Entered: 11/28/2005)
66 ORDER from 9th CCA. Petitioners have not demonstrated that this case warrants the intervention of this Court by means of the extraordinary remedy of mandamus. Accordingly, the petition is denied, CCA # 05−75335. Order received in this district on 12/5/2005. (jp, ) (Entered: 12/08/2005)
64 NOTICE of Filing under seal of Joint Request for further mediation filed by plaintiffs (am, ) (Entered: 12/05/2005)
67 STIPULATION AND PROTECTIVE ORDER re Internal Affairs Log by Magistrate Judge Stephen G. Larson (see document for further information)(am, ) Modified on 12/19/2005 (am, ). Modified on 12/19/2005 (am, ). (Entered: 12/19/2005)
68 STIPULATION AND ORDER by Judge Virginia A. Phillips: Expert Discovery cut−off 12/15/2005. Fact Discovery cut−off 2/15/06. Date for hearing on any dispositive motions continued to 3/13/06 @ 10:00 A.M. Pretrial Conference continued for 4/10/2006 02:00 PM before Judge Virginia A. Phillips. Jury Trial continued for 4/25/2006 08:30 AM before Judge Virginia A. Phillips.(am, ) (Entered: 12/28/2005)
69 JOINT REPORT REGARDING PRIVATE MEDIATION filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (mrgo, ) (Entered: 01/05/2006)
70 NOTICE OF MOTION AND MOTION for Summary Judgment, and or MOTION for Summary Adjudication of issues; Memorandum of points and authorities in support filed by defendants Michael Thompson, City of Ontario, Lloyd Scharf, Tony Del Rio, Brad Schneider. Motion set for hearing on 3/13/2006 at 10:00 AM before Judge Virginia A. Phillips. Lodged Proposed Order. (am, ) Modified on 2/22/2006 (am, ). (Entered: 02/22/2006)
71 DECLARATION of Bruce E. Disenhouse in support of MOTION for Summary Judgment, and or MOTION for Summary Adjudication of issues 70 filed by defendants Michael Thompson, City of Ontario, Lloyd Scharf, Tony Del Rio, Brad Schneider. (am, ) (Entered: 02/22/2006)
72 SEPARATE STATEMENT of undisputed facts filed by Defendants Michael Thompson, City of Ontario, Lloyd Scharf, Tony Del Rio, Brad Schneider (am, ) (Entered: 02/22/2006)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 19 of 49

02/21/2006
02/21/2006 02/21/2006 02/21/2006 02/27/2006
03/06/2006 03/06/2006 03/06/2006 03/06/2006 03/06/2006 03/13/2006

73 NOTICE OF MOTION AND MOTION for Partial Summary Judgment filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. Motion set for hearing on 3/13/2006 at 10:00 AM before Judge Virginia A. Phillips. Lodged Proposed Statement and Order. (am, ) (Entered: 02/22/2006)
74 MEMORANDUM in Support of MOTION for Partial Summary Judgment 73 filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 02/22/2006)
75 DECLARATIONS AND EXHIBITS in support of plaintiffs MOTION for Partial Summary Judgment 73 filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 02/22/2006)
76 NOTICE of lodging deposition Transcript of Michael L. Thompson filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 02/22/2006)
77 STIPULATION AND ORDER by Judge Virginia A. Phillips: Extending the time of filing opposition briefs to Plaintiffs Motion for Partial Summary Judgment and Defendants Motion for Summary Judgment to 3/6/06 and the date for the hearing on the Motions to 3/20/2006 at 10:00 PM before Judge Virginia A. Phillips. Reply briefs to be filed on 3/13/06.(am, ) (Entered: 03/01/2006)
78 OPPOSITION to Plaintifffs MOTION for Partial Summary Judgment 73 ; Memorandum of points and authorities in support thereof; declaration of Bruce E. Disenhouse filed by defendants Michael Thompson, City of Ontario, Lloyd Scharf, Tony Del Rio, Brad Schneider. (am, ) (Entered: 03/06/2006)
79 STATEMENT of of undisputed material facts and responses to defendants statement of undisputed material facts concerning defendants MOTION for Summary Judgment 70 filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 03/06/2006)
80 MEMORANDUM in Opposition to Defendants MOTION for Summary Judgment 70 filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 03/06/2006)
81 DECLARATIONS in support of plaintiffs opposition to Defendants MOTION for Summary Judgment 70 filed by plaintifs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 03/06/2006)
82 NOTICE of lodging depositon transcripts filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 03/06/2006)
83 REPLY MEMORANDUM OF POINTS AND AUTHORITIES in support of Plaintiffs MOTION for Partial Summary Judgment 73 filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman,

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 20 of 49

03/13/2006 03/13/2006 03/15/2006 03/15/2006 03/16/2006 03/16/2006 03/20/2006
03/21/2006
03/22/2006

Will Rivera, Jeff Quon, Steven Trujillo. (am, ) Modified on 3/13/2006 (am, ). (Entered: 03/13/2006)
84 DECLARATIONS in support of REPLY MEMORANDUM OF POINTS AND AUTHORITIES in support of Plaintiffs MOTION for Partial Summary Judgment 73 filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 03/13/2006)
85 REPLY to plaintiffs opposition to defendants MOTION for Summary Judgment 70 filed by defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider. (am, ) (Entered: 03/13/2006)
PLACED IN FILE − NOT USED re Amended Reply to plaintiffs opposition to defendants motion for summary judgment submitted by defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider. (am, ) (Entered: 03/22/2006)
PLACED IN FILE − NOT USED re Corrected plaintiffs Reply Memorandum of pints and authorities in support of plaitniffs motion for partial summary judgment submitted by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 03/22/2006)
86 ORDER by Judge Virginia A. Phillips Stricking from the record SEPARATE STATEMENT of undisputed facts 72 (am, ) (Entered: 03/17/2006)
87 TABLE OF CONTENTS AND TABLE OF AUTHORITIES TO AMENDED REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION for Summary Judgment 70 filed by defendants Michael Thompson, City of Ontario, Lloyd Scharf, Tony Del Rio, Brad Schneider. (am, ) (Entered: 03/17/2006)
88 MINUTES OF Motion Hearing held before Judge Virginia A. Phillips: RE: Defendants MOTION for Summary Judgment, and or MOTION for Summary Adjudication of issues; and Plaintiffs MOTION for Partial Summary Judgment. Court issues a tentative ruling hears oral argument and takes the matter under submission. Status Conference set for 4/7/2006 at 11:00 AM before Judge Virginia A. Phillips.Court Reporter: Phyllis Preston. (am, ) (Entered: 03/24/2006)
PLACED IN FILE − NOT USED re Stipulation to permit plaintiffs to file a corrected reply memorandum of points and authorities in support o their motion for partial summary judgment and to allow defendants to withdraw their reply brief and file a reply brief in compliance with the courts standing order submitted by defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider. (am, ) (Entered: 03/22/2006)
PLACED IN FILE − NOT USED re Stipulation and Proposed Order extending dates from compliance with Local Rule 16 and resetting pretrial conference and trial date submitted by plaintiff and defendants. (am, ) (Entered: 03/24/2006)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 21 of 49

03/30/2006
03/30/2006 04/06/2006 04/06/2006 04/06/2006 04/06/2006 04/10/2006 04/10/2006 04/14/2006

89 ORDER by Judge Virginia A. Phillips, DENYING IN PART AND GRANTING IN PART Plaintiffs MOTION for Partial Summary Judgment 73 , and Defendants MOTION for Summary Judgment 70 . Plaintiffs Motion is granted to the extent that it requests partial summary adjudication on liability against Defendant Schneider on plaintiffs 1983 claim. Plaintiffs Motion is denied as to the remaining grounds. Defendants motion is granted to the extent it request judgment on behalf of all defendants on plaintiffs state law claims. Plaintiffs motion is denied as to the remaining grounds. (am, ) (Entered: 04/04/2006)
90 STIPULATION AND ORDER of undisputed facts and stipulation as to admissibility of certain documents for Motions for Summary and Partial Summary Judgment by Judge Virginia A. Phillips (See document for further information) (am, ) (Entered: 04/04/2006)
PLACED IN FILE − NOT USED re Proposed Order granting plaintiffs motion for partial summary judgment and denying defendants motion for summary judgment submitted by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 04/11/2006)
PLACED IN FILE − NOT USED re Plaintiffs Statement of uncontroverted facts and conclusions of law in support of plaintiffs motion for partial summary judgment submitted by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 04/11/2006)
PLACED IN FILE − NOT USED re Proposed Order granting motion for summary judgment and or summary adjudiciation submitted by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (am, ) (Entered: 04/11/2006)
PLACED IN FILE − NOT USED re Proposed Order granting motion for summary judgment and or summary adjudiciation submitted by defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider. (am, ) (Entered: 04/19/2006)
91 MINUTES: STATUS CONFERENCE. Court and counsel confer regarding status of the case. The trial date of 4/25/06, is ordered VACATED, by Judge Virginia A. Phillips. Court Reporter: Phyllis Preston. (de, ) (Entered: 04/11/2006)
Trial date of 4/25/06 is ordered VACATED (de, ) (Entered: 04/11/2006)
92 AMENDED ORDER DENYING IN PART AND GRANTING IN PART PLAINTIFFS AND DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT 70 73 . For the foregoing reasons (See document for details), Plaintiffs Motion is granted to the extent that it requests partial summary adjudication on liability against Defendant Schneider on Plaintiffs 1983 claim, and Defendant Thompson on Plaintiffs California constitutional right to privacy and common law tort of the remaining grounds. Defendants Motion is granted to the extent it requests judgment on behalf of all Defendants except Defendant Thompson on Plaintiffs state law claims. Defendants Motion is denied as to the remaining grounds,

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 22 of 49

04/21/2006 04/28/2006 05/10/2006
05/17/2006
05/17/2006 05/17/2006 05/19/2006 06/01/2006 06/01/2006 06/01/2006 06/02/2006
06/19/2006 08/18/2006

by Judge Virginia A. Phillips. (de, ) (Entered: 04/17/2006)
93 REQUEST for Certification for Interlocutory Appeal filed by plaintiffs (jag, ) (Entered: 04/26/2006)
94 REQUEST for Certification for Interlocutory Appeal filed by defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider. (am, ) (Entered: 05/04/2006)
95 NOTICE of Change of Attorney Information: Attorney Mark John Tundis will no longer receive service of documents from the Clerks Office for the reason indicated in the G−06 Notice. Mark John Tundis is no longer attorney of record in this case for the reason indicated in the G−06 Notice. Filed by defendant Joe Sifuentes (am, ) (Entered: 05/17/2006)
96 NOTICE OF APPEAL to 9th CCA filed by defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider. Appeal of Order 92 Filed On: 04/14/06; Entered On: 04/17/06. Filing fee $ 455. Billed. cc: Bruce E. Disenhouse; Peter J. Eliasberg; Della Bahan. (cbr, ) (Entered: 05/19/2006)
Civil Appeals Docketing Statement received from defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider forwarded to 9th CCA. RE: Appeal to Circuit Court 96 (cbr, ) (Entered: 05/19/2006)
97 TRANSCRIPT DESIGNATION AND ORDERING FORM For Dates: 03/20/06, 04/10/06; Court Reporter: P. Preston; Re: Appeal to Circuit Court 96 (cbr, ) (Entered: 05/19/2006)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re: Appeal to Circuit Court 96 (cbr, ) (Entered: 05/19/2006)
99 ORDER by Judge Virginia A. Phillips: GRANTING Defendant Michael Thompson's REQUEST for interlocutory appeal 94 (am, ) (Entered: 06/02/2006)
100 ORDER by Judge Virginia A. Phillips GRANTING REQUEST for Certification for Interlocutory Appeal 93 (am, ) (Entered: 06/02/2006)
APPEAL FEE PAID: re Appeal to Circuit Court, 96 as to Defendant Michael Thompson; Receipt Number: 85652 in the amount of $455. (dmap, ) (Entered: 06/05/2006)
98 NOTIFICATION by Circuit Court of Appellate Docket Number 06−55736. 9th CCA regarding Appeal to Circuit Court 96 Filed on: 5/17/06 Entered on: 5/19/06. Filed by Lloyd Scharf, Tony Del Rio, Michael Thompson, City of Ontario Police Department, Brad Schneider. (lr, ) (Entered: 06/02/2006)
101 TRANSCRIPT DESIGNATION AND ORDERING FORM For Dates: 03/20/06, 04/10/06; Court Reporter: P. Preston; Re: Appeal to Circuit Court 96 . (cbr, ) (Entered: 08/21/2006)
102 ORDER from 9th CCA filed, CCA # 06−80080. Order received in this district on 08/21/06. The petition for permission to file an interlocutory appeal pursuant to 28 U.S.C 1292(b) is denied as untimely. (cbr, ) (Entered:

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 23 of 49

08/18/2006
09/21/2006 10/25/2006 10/30/2006 12/27/2006 12/27/2006 12/28/2007

08/25/2006)
103 ORDER from 9th CCA filed as to Appeal to Circuit Court, 96 filed by Lloyd Scharf,, Tony Del Rio,, Michael Thompson,, City of Ontario Police Department,, Brad Schneider,, CCA # 06−55736. Order received in this district on 8/24/06. The parties' joint motion to stay appellate proceedings pending this court's disposition of petition Nos. 06−80072 and 06−80080 is granted. This appeal is stayed until 10/6/06. (dmap, ) (Entered: 08/29/2006)
104 ORDER from 9th CCA filed as to Appeal to Circuit Court, 96 filed by Lloyd Scharf, Tony Del Rio, Michael Thompson,, City of Ontario Police Department, Brad Schneider, CCA # 06−80072. Order received in this district on 9/25/06. The petition for permission to appeal pursuant 28 U.S.C is denied. (lr, ) (Entered: 09/28/2006)
105 NOTICE of Change of Attorney Information: changing address to 125 University Avenue, Berkeley, CA 94710, changing telephone number to 510−845−0740changing fax number to 510−845−3654. for attorney Della Bahan. Filed by plaintiff Robert Bernhard, Mike Kelley, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo and the plaintiff class (stsh, ) (Entered: 11/03/2006)
106 NOTICE of Change of Attorney Information: changing address to 125 University Avenue, Berkeley, CA 94710, changing telephone number to 510−845−0740, changing fax number to 510−845−3654. for attorney Della Bahan. Filed by plaintiff Robert Bernhard, Mike Kelley, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo and the plaintiff class (stsh, ) (Entered: 11/03/2006)
107 RECORD ON APPEAL sent to Circuit Court re: Appeal number, 06−55736 Record consists of 1 through 4 volumes, 1 transcripts re Appeal to Circuit Court, 96 (car, ) (Entered: 12/27/2006)
108 APPEAL RECORD sealed documents sent to Circuit Court re: Appeal number, 06−55736. 1 documents were sent with this transmittal. Document numbers S0065. (car, ) (Entered: 12/27/2006)
109 MINUTES OF IN CHAMBERS ORDER AMENDING STANDING ORDER held before Judge Virginia A. Phillips: Effective January 1, 2008, electronic filing ("e−filing") will be mandatory for allnew and pending civil cases in the United States District Court for the Central Districtof California. Information about the Court's Electronic Case Filing system isavailable on the Court's website at www.cacd.uscourts.gov/cmecf. The "e−filing" of all documents required to be "e−filed" in this matter pursuant toGeneral Order No. 07−08 shall be completed by 4:00 p.m. on the date due. Anydocuments "e−filed" after 4:00 p.m. on the date due will be considered late and maybe stricken by the Court.Counsel shall provide one conformed courtesy copy of any "e−filed" document.With the exception of reply briefs for motions on the Court's hearing calendar, suchcourtesy copies shall be delivered no later than noon of the day following "e−filing."Courtesy copies of reply briefs, however, shall be provided by 5:00 p.m. on the dayof filing, and shall be delivered to the "Courtesy Box," located outside of Courtroom2 on the 2nd floor at the United States District Court, 3470 Twelfth Street,

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 24 of 49

04/07/2008 04/17/2008
04/24/2008 04/30/2008 05/13/2008
06/27/2008

Riverside,California 92501. (am) (Entered: 12/28/2007)
110 MANDATE of 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 96 , CCA # 06−55736. The Judgment of District Court is AFFIRMED. Mandate received in this district on 04/10/08. (cbr) (Entered: 04/16/2008)
111 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 96 filed by Tony Del Rio, Brad Schneider, Lloyd Scharf, City of Ontario Police Department, Michael Thompson, CCA # 06−55736. The Order is Appellees' unopposed motion for attorneys' fees is granted. Pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. 1988, attorneys' fees in the amount of $44,703.26 are awarded in favor of appellees Robert Bernhard, et al. and against appellants City of Ontario, el al. A copy of this order sent to the district court shall serve to amend this court's mandate. Order received in this district on 4/21/08. (lr) (Entered: 04/23/2008)
113 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 96 filed by Tony Del Rio, Brad Schneider, Lloyd Scharf, City of Ontario Police Department, Michael Thompson, CCA # 06−55736. The Order is The April 17, 2008 order awarding attorneys' fees is hereby vacated. Appellees' motion for attorneys' fees will be addressed by separate order. A copy of this order sent to the district court shall serve to amend this court's mandate. Order received in this district on 4/28/08. (lr) (Entered: 05/05/2008)
112 NOTICE of Change of Attorney Information for attorney Peter Bibring counsel for Plaintiff Steven Trujillo. Changing address to 1313 W. 8th Street, Los Angeles, CA 90017. Changing fax to 213−977−5297. Filed by Plaintiff Peter Bibring, Peter Eliasberg (Bibring, Peter) (Entered: 04/30/2008)
114 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 96 filed by Tony Del Rio, Brad Schneider, Lloyd Scharf, City of Ontario Police Department, Michael Thompson, CCA # 06−55736. Plaintiffs−Appellees' unopossed motion for an extension of time to file a reply brief and to submit additional billing records is granted. Plaintiff's−Appellees' request for interim attorneys' fees is granted. Attorney's fees of $44,703.26 and "fees on fees' of $7,847 are awarded in favor of Plaintiffs−Appellees and against Defendants−Appellants. A Certified copy of this order sent to the district court shall serve to amend this court's mandate. Order received in this district on 5/13/08. (car) (Entered: 05/21/2008)
115 NOTICE OF MOTION AND MOTION to Substitute attorney Dan Stormer, Anne Richardson in place of attorney Della Bahan filed by Plaintiff Steven Trujillo. Motion set for hearing on 7/21/2008 at 10:00 AM before Judge Virginia A. Phillips. (Attachments: # 1 Memorandum of Points and Authorities in Support of Plaintiffs' Unopposed Motion to Permit Della Bahan of Bahan &Associates to Withdraw as Co−Class Counsel and to Designate Hadsell Stormer Keeny Richardson and Rennick as Co−Counsel, # 2 Declaration Declarations in Support, # 3 Proposed Order Proposed Order)(Bibring, Peter) (Entered: 06/27/2008)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 25 of 49

06/30/2008 07/11/2008 07/15/2008 07/21/2008
07/23/2008
07/24/2008
07/25/2008 07/31/2008

116 NOTICE OF NON−OPPOSITION TO THE MOTION TO SUBSTITUTE filed by Defendant Brad Schneider. (Disenhouse, Bruce) (Entered: 06/30/2008)
117 REQUEST to Substitute attorney Rinos and Martin in place of attorney Kinkle, Rodiger and Spriggs filed by Defendants City of Ontario, Tony Del Rio, Lloyd Scharf, Michael Thompson Michael Thompson, City of Ontario, Lloyd Scharf, Tony Del Rio. Request set for hearing on 8/11/2008 at 10:00 AM before Judge Virginia A. Phillips. (Attachments: # 1 Proposed Order On Request for Approval of Substitution fo Attorney)(Martin, Linda) (Entered: 07/11/2008)
118 APPEAL RECORD RETURNED from 9th CCA Received: Volume(s): 1 thru 4; Transcripts(s): 1 and 1 sealed document; RE: Appeal Record Sent to USCA (A−26) 107 (cbr) (Entered: 07/23/2008)
119 MINUTES OF PLAINTIFFS UNOPPOSED MOTION TO PERMIT DELLA BAHAN &ASSOCIATES TO WITHDRAW AS CO−CLASS COUNSEL AND DESIGNATE HADSELL STORMER KEENY RICHARDSON ANDRENNICK AS CO−CLASS COUNSEL AND AMEND PREVIOUS CLASS CERTIFICATION ORDERMotion Hearing held before Judge Virginia A. Phillips: Court issues a tentative ruling, hears oral argument and takes the matter(s) undersubmission.Court Reporter: Phyllis Preston. (am) (Entered: 07/24/2008)
122 ORDER GRANTING MOTION FOR SUBSTITUTION OF CLASS COUNSEL 115 . For the foregoing reasons, the Court GRANTS Plaintiffs' Motion. Della Bahan of Bahan &Associates is permitted to withdraw as class counsel. The Court appoints the law firm of Hadsell Stormer Keeny Richardson &Rennick, LLP as co−class counsel for the Plaintiffs class along with Peter J Eliasberg of the ACLUFoundation of Southern California. The Courts April 14, 2005 Order Granting Motion for Class Certification is amended accordingly (See document for further details), by Judge Virginia A. Phillips. (de) (Entered: 07/28/2008)
120 NOTICE OF REASSIGNMENT OF CASE due to Unavailability of Judicial Officer filed. The previously asssigned Magistrate Judge is no longer available. Pursuant to directive of the Chief Magistrate Judge and in accordance with the rules of this Court, the case has been returned to the Clerk for reassignment. This case has been reassigned to Magistrate Judge Patrick J. Walsh for any discovery and/or post−judgment matters that may be referred. Case number will now read ED CV 04−1015 VAP (PJWx). (la) Mailed hard copies − due to problems with PRO Se addresses. (Entered: 07/24/2008)
121 NOTICE OF CLERICAL ERROR: Due to clerical error: The Case Management system failed to electronically notify the parties of docket entry number 120. Notice of Reassignment of Case Due to Unavailablility of Judicial Officer (G−74) (MJ) 120] (la) Mailed hard copies − due to problems with PRO Se addresses. (Entered: 07/25/2008)
123 NOTICE OF NON−OPPOSITION to REQUEST to Substitute attorney Rinos and Martin in place of attorney Kinkle, Rodiger and Spriggs 117 filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Bibring, Peter)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 26 of 49

08/08/2008 08/14/2008 09/29/2008 11/19/2008
12/01/2008 12/01/2008
12/02/2008 12/03/2008

(Entered: 07/31/2008)
125 MINUTES OF IN CHAMBERS ORDER held before Judge Virginia A. Phillips re REQUEST to Substitute attorney Rinos and Martin in place of attorney Kinkle, Rodiger and Spriggs 117 . the Request to Substitute Attorney hearing set for August 11, 2008, at 10:00 a.m., is hereby VACATED. (gg) (Entered: 08/08/2008)
126 ORDER GRANTING Request for Approval of Substitution of Attorney by Judge Virginia A. Phillips re REQUEST to Substitute attorney Rinos and Martin in place of attorney Kinkle, Rodiger and Spriggs 117 . (gg) (Entered: 08/14/2008)
127 STATUS REPORT (Joint) on Settlement Negotiations filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo, Defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider. (Bibring, Peter) (Entered: 09/29/2008)
128 NOTICE of Change of Attorney Information for attorney Celeste Brustowicz counsel for Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. Adding Celeste Brustowicz as attorney as counsel of record for City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Michael Thompson for the reason indicated in the G−06 Notice. Filed by Defendants City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Michael Thompson (Brustowicz, Celeste) (Entered: 11/19/2008)
129 NOTICE OF MOTION AND MOTION to Compel Disclosure of Absent Class Members' Contact Information Pursuant to FRCP 23(d) filed by Plaintiff Robert Bernhard. (Attachments: # 1 Exhibit A thru J, # 2 Declaration Declaration of Anne Richardson, # 3 Declaration Declaration of Peter J. Eliasberg)(Richardson, Anne) (Entered: 12/01/2008)
130 NOTICE OF MOTION AND MOTION to Correct MOTION to Compel Disclosure of Absent Class Members' Contact Information Pursuant to FRCP 23(d) MOTION to Compel Disclosure of Absent Class Members' Contact Information Pursuant to FRCP 23(d) 129 filed by Plaintiff Robert Bernhard. Motion set for hearing on 12/22/2008 at 10:00 AM before Judge Virginia A. Phillips. (Attachments: # 1 Exhibit A thru J, # 2 Declaration Declaration of Anne Richardson, # 3 Declaration Declaration of Peter J. Eliasberg)(Richardson, Anne) (Entered: 12/01/2008)
131 MINUTES OF IN CHAMBERS ORDER RESETTING MOTION HEARING DATE held before Judge Virginia A. Phillips: COUNSEL ARE NOTIFIED that on the Court's own motion, hearing on plaintiffs motion to compel disclosure of absent class Members contact information, pursuant to FRCP 23(d), is hereby reset from December 22, 2008, to December 29, 2008, at 10:00 a.m.before Judge Virginia A. Phillips (am) (Entered: 12/02/2008)
132 EX PARTE APPLICATION to Shorten Time for Hearing filed by Defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Attachments: # 1 Proposed Order on Ex Parte application of City of Ontario Police Department, Lloyd

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 27 of 49

12/03/2008 12/04/2008 12/04/2008 12/04/2008

Scharf, Tony Del Rio and Mike Thompson to Shorten Time for Hearing on Their Motion to Continue Trial Date)(Brustowicz, Celeste) (Entered: 12/03/2008)
133 NOTICE OF MOTION AND MOTION to Continue Trial Date from February 17, 2009 to 60 days Re: EX PARTE APPLICATION to Shorten Time for Hearing 132 filed by Defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Attachments: # 1 Proposed Ntc of Mtn &Mtn to Continue Trial by Defendants, # 2 Exhibit Exhibits A &B of Defendants' Proposed Mtn. to Continue Trial, # 3 Exhibit Exhibits C &D of Defendants' Proposed Mtn. to Continue Trial, # 4 Exhibit Exhibits E &F of Defendants' Proposed Motion to Continue Trial, # 5 Proposed Order on Motion to Continue Trial Date by Defendants)(Brustowicz, Celeste) (Entered: 12/03/2008)
134 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: The proposed motion cannot be filed until leave of Court is granted. Instead it should be an attachment to the ex parte application or submitted as an attachment to a Notice of Lodging. RE: MOTION to Continue Trial Date from February 17, 2009 to 60 days Re: EX PARTE APPLICATION to Shorten Time for Hearing 132 MOTION to Continue Trial Date from February 17, 2009 to 60 days Re: EX PARTE APPLICATION to Shorten Time for Hearing 132 MOTION to Continue Trial Date from February 17, 2009 to 60 days Re: EX PARTE APPLICATION to Shorten Time for Hearing 132 133 . 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. (mrgo) (Entered: 12/04/2008)
135 OPPOSITION TO EX PARTE APPLICATION OF CITY OF ONTARIO POLICE DEPARTMENT, LLOYD SCHARF, TONY DEL RIO AND MIKE THOMPSON TO SHORTEN TIME FOR HEARING ON THEIR MOTION TO CONTINUE TRIAL DATE opposition re: MOTION to Continue Trial Date from February 17, 2009 to 60 days Re: EX PARTE APPLICATION to Shorten Time for Hearing 132 MOTION to Continue Trial Date from February 17, 2009 to 60 days Re: EX PARTE APPLICATION to Shorten Time for Hearing 132 MOTION to Continue Trial Date from February 17, 2009 to 60 days Re: EX PARTE APPLICATION to Shorten Time for Hearing 132 133 filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Attachments: # 1 Exhibit Scheduling Order, # 2 Exhibit Order Extending Disc Cutoff &Hearing Date, # 3 Exhibit Email with Opp Counsel, # 4 Exhibit Efiling Deficiency Notice)(Bibring, Peter) (Entered: 12/04/2008)
136 NOTICE OF LODGING filed re EX PARTE APPLICATION to Shorten Time for Hearing 132 (Attachments: # 1 Proposed Motion to Continue Trial, # 2 Exhibit A &B to Defendants' Motion to Continue Trial, # 3 Declaration C &D of Defendants' Proposed Motion to Continue Trial, # 4 Exhibit E &F of Defendants' Proposed Motion to Continue Trial, # 5 Proposed Order On Defendants' Proposed Motion to Continue Trial)(Brustowicz, Celeste) (Entered: 12/04/2008)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 28 of 49

12/05/2008 12/05/2008
12/08/2008 12/08/2008 12/08/2008 12/10/2008
12/18/2008

137 REPLY Defendants' Reply to Plaintiffs Opposition EX PARTE APPLICATION to Shorten Time for Hearing 132 filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Brustowicz, Celeste) (Entered: 12/05/2008)
140 MINUTES OF In Chambers Conference held before Magistrate Judge Patrick J. Walsh: Plaintiffs have brought a motion to compel disclosure of the contact information of absent class members. For the following reasons, the motion is denied.Local Rule 37−2.2 requires any party wishing to pursue a discovery motion to meet and confer with opposing counsel and to prepare a joint stipulation setting forth the issues that are unresolved and the parties positions on the issues. Local Rule 37−2.4 provides that the Court will not consider any discovery motion in the absence of a joint stipulation under 37−2.2, unless opposing counsel has refused to cooperate. It appears from Plaintiffs motion that Plaintiffs counsel has not complied with Rule 37 and that Defendants counsel has not failed to cooperate. For those reasons, the motion is denied. (im) (Entered: 12/08/2008)
138 NOTICE OF NON−OPPOSITION MOTION to Continue Trial Date from February 17, 2009 to 60 days Re: EX PARTE APPLICATION to Shorten Time for Hearing 132 MOTION to Continue Trial Date from February 17, 2009 to 60 days Re: EX PARTE APPLICATION to Shorten Time for Hearing 132 MOTION to Continue Trial Date from February 17, 2009 to 60 days Re: EX PARTE APPLICATION to Shorten Time for Hearing 132 133 filed by Defendant Brad Schneider. (Disenhouse, Bruce) (Entered: 12/08/2008)
139 Joint REQUEST to Seal Exhibits attached to Notice of Filing of Opt Out to be Excluded from Action, Set One filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Brustowicz, Celeste) (Entered: 12/08/2008)
141 MINUTES OF IN CHAMBERS ORDER ORDER DENYING APPLICATION TO SHORTENTIME held before Judge Virginia A. Phillips re: EX PARTE APPLICATION to Shorten Time for Hearing 132 . The Court DENIES the Application (am) (Entered: 12/10/2008)
142 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Incorrect event selected. Correct event is under "Other Filings" − Stipulations. Proposed Document was not submitted as separate attachment. RE: Joint REQUEST to Seal Exhibits attached to Notice of Filing of Opt Out to be Excluded from Action, Set One 139 . 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. (mrgo) (Entered: 12/10/2008)
143 NOTICE OF MOTION AND MOTION for Reconsideration re In Chambers Conference,,, 140 filed by plaintiff Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. Motion set for hearing on 1/8/2009 at 11:00 AM before Magistrate Judge Patrick J. Walsh. (Attachments: # 1 Proposed Order Granting Reconsideration of Order)(Bibring, Peter) (Entered: 12/18/2008)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 29 of 49

12/18/2008 12/18/2008 12/22/2008 12/22/2008 12/23/2008 12/26/2008 12/29/2008 12/31/2008
12/31/2008

144 MEMORANDUM in Support of MOTION for Reconsideration re In Chambers Conference,,, 140 MOTION for Reconsideration re In Chambers Conference,,, 140 143 filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Bibring, Peter) (Entered: 12/18/2008)
145 MEMORANDUM in Support of MOTION for Reconsideration re In Chambers Conference,,, 140 MOTION for Reconsideration re In Chambers Conference,,, 140 143 correcting docket #144 filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Bibring, Peter) (Entered: 12/18/2008)
146 NOTICE OF MOTION AND MOTION to Bifurcate Punitive Damages filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. Motion set for hearing on 1/12/2009 at 10:00 AM before Judge Virginia A. Phillips. (Attachments: # 1 Proposed Order For Bifurcation of Punitive Damages)(Brustowicz, Celeste) (Entered: 12/22/2008)
147 JOINDER filed by Defendant Brad Schneider joining in MOTION to Bifurcate Punitive Damages 146 . (Disenhouse, Bruce) (Entered: 12/22/2008)
148 MEMORANDUM in Opposition to MOTION for Reconsideration re In Chambers Conference,,, 140 MOTION for Reconsideration re In Chambers Conference,,, 140 143 filed by Defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Brustowicz, Celeste) (Entered: 12/23/2008)
149 JOINDER filed by Defendant Brad Schneider joining in MEMORANDUM in Opposition to Motion, 148 . (Disenhouse, Bruce) (Entered: 12/26/2008)
150 OPPOSITION to MOTION to Bifurcate Punitive Damages 146 PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR BIFURCATION OF PUNITIVE DAMAGES filed by Plaintiff Robert Bernhard. (Richardson, Anne) (Entered: 12/29/2008)
151 REPLY In Support Of MOTION for Reconsideration re In Chambers Conference,,, 140 MOTION for Reconsideration re In Chambers Conference,,, 140 143 filed by Plaintiffs Jim Renstrom, Ron Dupuis, Keith Henderson, Craig Pefferle, Nicko Carcich, Rick Carroll, Salvador Garcia, Robert Bernhard, Christopher Alvarez, Fred Ruiz, Steve Guderian, Mike Kelley, Mike Bors, ROES, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo, Steven Hurst. (Attachments: # 1 Declaration of Peter J. Eliasberg)(Bibring, Peter) (Entered: 12/31/2008)
152 NOTICE OF MOTION AND MOTION to Compel Answers to Interrogatories of Unnamed Classmembers filed by Defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. Motion set for hearing on 1/22/2009 at 11:00 AM before Magistrate Judge Patrick J. Walsh. (Attachments: # 1 Proposed Order, # 2 Motion to Compel Interrogatories (2), # 3 Motion to Compel Interrogatories (3), # 4 Motion to Compel Interrogatories (4), # 5 Motion to Compel Interrogatories (5), # 6 Motion to Compel Interrogatories

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 30 of 49

12/31/2008
12/31/2008
01/02/2009 01/02/2009 01/02/2009 01/05/2009 01/05/2009 01/06/2009

(6), # 7 Motion to Compel Interrogatories (7), # 8 Motion to Compel Interrogatories (8), # 9 Motion to Compel Interrogatories (9), # 10 Motion to Compel Interrogatories (10), # 11 Motion to Compel Interrogatories (11))(Brustowicz, Celeste) (Entered: 12/31/2008)
153 NOTICE OF MOTION AND MOTION for Admissions of Unnamed Classmembers filed by Defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. Motion set for hearing on 1/22/2009 at 11:00 AM before Magistrate Judge Patrick J. Walsh. (Attachments: # 1 Proposed Order, # 2 Motion to Compel Requests for Admissions (2), # 3 Motion to Compel Requests for Admissions (3), # 4 Motion to Compel Requests for Admissions (4), # 5 Motion to Compel Requests for Admissions (5), # 6 Motion to Compel Requests for Admissions (6), # 7 Motion to Compel Requests for Admissions (7), # 8 Motion to Compel Requests for Admissions (8))(Brustowicz, Celeste) (Entered: 12/31/2008)
154 NOTICE OF MOTION AND MOTION to Produce documents Unnamed Classmembers filed by Defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. Motion set for hearing on 1/22/2009 at 11:00 AM before Magistrate Judge Patrick J. Walsh. (Attachments: # 1 Proposed Order, # 2 Motion to Compel Production (2), # 3 Motion to Compel Production (3), # 4 Motion to Compel Production (4), # 5 Motion to Compel Production (5), # 6 Motion to Compel Production (6), # 7 Motion to Compel Production (7), # 8 Motion to Compel Production (8), # 9 Motion to Compel Production (9))(Brustowicz, Celeste) (Entered: 12/31/2008)
155 JOINDER in MOTION for Admissions of Unnamed Classmembers 153 filed by Defendant Brad Schneider. (Disenhouse, Bruce) (Entered: 01/02/2009)
156 JOINDER in MOTION to Compel Answers to Interrogatories of Unnamed Classmembers 152 filed by Defendant Brad Schneider. (Disenhouse, Bruce) (Entered: 01/02/2009)
157 JOINDER in MOTION to Produce documents Unnamed Classmembers 154 filed by Defendant Brad Schneider. (Disenhouse, Bruce) (Entered: 01/02/2009)
158 REPLY to Plaintiffs' Opposition MOTION to Bifurcate Punitive Damages 146 filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Brustowicz, Celeste) (Entered: 01/05/2009)
159 SUPPLEMENT to MOTION to Produce documents Unnamed Classmembers 154 , MOTION to Compel Answers to Interrogatories of Unnamed Classmembers 152 , MOTION for Admissions of Unnamed Classmembers 153 filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Brustowicz, Celeste) (Entered: 01/05/2009)
160 EX PARTE APPLICATION to Supplement Defendants Opposition to Plaintiffs Motion for Reconsideration re MEMORANDUM in Opposition to Motion, 148 , MOTION for Reconsideration re In Chambers Conference,,, 140 MOTION for Reconsideration re In Chambers Conference,,, 140 143 , Reply (Motion related),

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 31 of 49

01/06/2009 01/06/2009 01/06/2009

Reply (Motion related), Reply (Motion related) 151 , Memorandum in Support of Motion, 145 filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Attachments: # 1 Proposed Order)(Brustowicz, Celeste) (Entered: 01/06/2009)
161 NOTICE OF LODGING filed re EX PARTE APPLICATION to Supplement Defendants Opposition to Plaintiffs Motion for Reconsideration re MEMORANDUM in Opposition to Motion, 148 , MOTION for Reconsideration re In Chambers Conference,,, 140 MOTION for Reconsideration re In Chambers C EX PARTE APPLICATION to Supplement Defendants Opposition to Plaintiffs Motion for Reconsideration re MEMORANDUM in Opposition to Motion, 148 , MOTION for Reconsideration re In Chambers Conference,,, 140 MOTION for Reconsideration re In Chambers C EX PARTE APPLICATION to Supplement Defendants Opposition to Plaintiffs Motion for Reconsideration re MEMORANDUM in Opposition to Motion, 148 , MOTION for Reconsideration re In Chambers Conference,,, 140 MOTION for Reconsideration re In Chambers C 160 (Attachments: # 1 Proposed Order, # 2 Proposed Supplemental Memorandum in Opposition to Plaintiffs' Motion for Reconsideration)(Brustowicz, Celeste) (Entered: 01/06/2009)
162 MINUTES OF In Chambers Order Denying Plaintiffs Motion For Reconsideration of Order Denying Motion to Compel Disclosure of Absent Class Members Contact Information Pursuant to FRCP 23(d) held before Magistrate Judge Patrick J. Walsh: On December 5, 2008, the Court issued an order denying Plaintiffs motion to compel disclosure of the contact information of absent class members because Plaintiffs counsel had failed to comply with Local Rule 37, which requires the parties to meet and confer regarding discovery motions and file a joint stipulation setting forth those issues which the parties could not resolve in their meet and confer. On December 18, 2008, Plaintiffs filed a motion for reconsideration, asking the Court to reconsider the December 5th ruling. Plaintiffs argue that they are not required to follow Local Rule 37 because their motion is not a discovery motion, but, rather, one brought under Federal Rule of Civil Procedure 23(d), citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978). Assuming, without deciding, that Plaintiffs motion is not a discovery motion, the motion for reconsideration is denied. The district judge has referred only discovery issues to the magistrate judge. Thus, if this is not a discovery motion, the magistrate judge is without authority to rule on it. (im) (Entered: 01/06/2009)
163 MINUTES OF IN CHAMBERS ORDER (1) VACATING JANUARY 12, 2009 HEARING ON MOTION FOR BIFURCATION OF PUNITIVE DAMAGES; (2) SETTING HEARING OF MOTION FORBIFURCATION OF PUNITIVE DAMAGES ON FEBRUARY 2, 2009 AT 2:00 P.M.COUNSEL ARE NOTIFIED that on the Court's own motion, the hearing on the Defendants' Motion for Bifurcation of Punitive Damages ("Motion'") set for January 12, 2009 at 10:00 a.m. is hereby vacated. The Court will hear the Motion during thepretrial conference at 2:00 p.m. on February 2, 2009. The matter stands submitted on the papers timely filed. (am) (Entered: 01/07/2009)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 32 of 49

01/08/2009
01/09/2009 01/09/2009 01/09/2009 01/09/2009 01/09/2009 01/09/2009

164 NOTICE OF MOTION AND MOTION to Supplement Plaintiff's Supplemental Brief re MOTION for Admissions of Unnamed Classmembers 153 PLAINTIFFS' SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT'S MOTION TO DEEM ADMITTED, OR IN THE ALTERNATIVE, TO COMPEL ANSWERS TO REQUESTS FOR ADMISSION; SUPPLEMENTAL DECLARATION OF ANNE RICHARDSON IN SUPPORT THEREOF filed by Plaintiff Robert Bernhard. Motion set for hearing on 1/22/2009 at 11:00 AM before Magistrate Judge Patrick J. Walsh. (Attachments: # 1 Declaration of Anne Richardson)(Richardson, Anne) (Entered: 01/08/2009)
165 NOTICE OF MOTION AND MOTION IN LIMINE to Preclude PLAINTIFFS FROM OFFERING ANY EXHIBITS AT THE TIME OF TRIAL filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. Motion set for hearing on 2/2/2009 at 02:00 PM before Judge Virginia A. Phillips. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Proposed Order)(Brustowicz, Celeste) (Entered: 01/09/2009)
166 NOTICE OF MOTION AND MOTION IN LIMINE (1) to Preclude OPINIONS NOT BASED ON PERCEPTION OR PERSONAL KNOWLEDGE filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. Motion set for hearing on 2/2/2009 at 02:00 PM before Judge Virginia A. Phillips. (Attachments: # 1 Declaration, # 2 Exhibit #1 to Def. MIL #1, # 3 Exhibit #2 re Def. MIL #1, # 4 Declaration #3 re Def. MIL #1, # 5 Exhibit #4 re Def. MIL #1, # 6 Proposed Order re Def. MIL #1)(Brustowicz, Celeste) (Entered: 01/09/2009)
167 JOINDER filed by Defendant Brad Schneider joining in MOTION IN LIMINE to Preclude PLAINTIFFS FROM OFFERING ANY EXHIBITS AT THE TIME OF TRIAL 165 . (Disenhouse, Bruce) (Entered: 01/09/2009)
168 JOINDER filed by Defendant Brad Schneider joining in MOTION IN LIMINE (1) to Preclude OPINIONS NOT BASED ON PERCEPTION OR PERSONAL KNOWLEDGE MOTION IN LIMINE (1) to Preclude OPINIONS NOT BASED ON PERCEPTION OR PERSONAL KNOWLEDGE MOTION IN LIMINE (1) to Preclude OPINIONS NOT BASED ON PERCEPTION OR PERSONAL KNOWLEDGE 166 . (Disenhouse, Bruce) (Entered: 01/09/2009)
169 EX PARTE APPLICATION to Expedite Motion Hearing for review of Magistrate Judge's Order Denying Reconsideration filed by Plaintiff Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Attachments: # 1 Exhibit Ex Parte Exhibits − Orders, # 2 Proposed Order Granting Ex Parte, # 3 Memo in support of Motion, # 4 Exhibit A 1 of 2 Memo, # 5 Exhibit A 2 of 2 Memo, # 6 Exhibit B − F Memo)(Bibring, Peter) (Entered: 01/09/2009)
170 NOTICE OF MOTION AND MOTION IN LIMINE to Exclude Questions and Evidence about Officer's Knowledge of Video Surveillance law filed by Plaintiff Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. Motion set for hearing on 2/2/2009 at 02:00 PM before Judge

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 33 of 49

01/12/2009
01/12/2009
01/12/2009
01/12/2009 01/12/2009 01/12/2009 01/13/2009 01/13/2009 01/13/2009

Virginia A. Phillips. (Attachments: # 1 Proposed Order Memo; Dec; Prop Order)(Bibring, Peter) (Entered: 01/09/2009)
171 NOTICE OF MOTION AND MOTION IN LIMINE (3) to Preclude Plaintiffs from admitting into evidence any tapes and or transcripts of tapes of administrative interviews filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. Motion set for hearing on 2/2/2009 at 02:00 PM before Judge Virginia A. Phillips. (Attachments: # 1 Proposed Order)(Brustowicz, Celeste) (Entered: 01/12/2009)
172 OPPOSITION TO PLAINTIFFS' EX PARTE APPLICATION FOR REVIEW OF MAGISTRATE JUDGE'S ORDER DENYING RECONSIDERATION OPPOSITION re: EX PARTE APPLICATION to Expedite Motion Hearing for review of Magistrate Judge's Order Denying Reconsideration 169 filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Attachments: # 1 Exhibit B− pgs. 1−9, # 2 Exhibit B − Pgs. 10−18)(Brustowicz, Celeste) Modified on 1/13/2009 (gg). (Entered: 01/12/2009)
173 NOTICE OF MOTION AND MOTION IN LIMINE to Exclude ANY EVIDENCE OF OR QUESTIONING REGARDING THE CHANNEL 9 BROADCAST OF FILING OF THE LAWSUIT filed by PLAINTIFF Steven Trujillo. Motion set for hearing on 2/2/2009 at 02:00 PM before Judge Virginia A. Phillips. (Attachments: # 1 Declaration of Peter Eliasberg, # 2 Declaration of Anne Richardson, # 3 Exhibit 1 − 4 to Anne Richardson Declaration)(Richardson, Anne) (Entered: 01/12/2009)
174 Witness List filed by Plaintiff Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo.. (Richardson, Anne) (Entered: 01/12/2009)
175 MEMORANDUM of CONTENTIONS of FACT and LAW filed by PLAINTIFFS Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Bibring, Peter) (Entered: 01/12/2009)
176 JOINT Exhibit List filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo.. (Attachments: # 1 Appendix Defendants' Exhibit List from Memo of Facts and Law)(Bibring, Peter) (Entered: 01/12/2009)
177 MEMORANDUM in Support of EX PARTE APPLICATION to Expedite Motion Hearing for review of Magistrate Judge's Order Denying Reconsideration 169 filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Attachments: # 1 Declaration)(Bibring, Peter) (Entered: 01/13/2009)
178 MEMORANDUM of CONTENTIONS of FACT and LAW filed by Defendant Brad Schneider. (Hellerud, Wesley) (Entered: 01/13/2009)
179 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following errors were found: Incorrect document is attached to the docket entry and incorrect event selected (see attached for further details) re MOTION to Supplement Plaintiff's Supplemental Brief 164

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 34 of 49

01/14/2009 01/15/2009 01/16/2009 01/16/2009 01/16/2009 01/16/2009
01/16/2009

. 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. (gg) (Entered: 01/14/2009)
180 MEMORANDUM of CONTENTIONS of FACT and LAW filed by Plaintiff Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Bibring, Peter) (Entered: 01/14/2009)
181 REPLY Support of Defendants Motions to Compel Discovery Responses MOTION to Produce documents Unnamed Classmembers 154 , MOTION to Compel Answers to Interrogatories of Unnamed Classmembers 152 , MOTION for Admissions of Unnamed Classmembers 153 filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Brustowicz, Celeste) (Entered: 01/15/2009)
182 Opposition to Plaintiffs Motion in Limine to Exclude Channel 9 broadcast Opposition re: MOTION IN LIMINE to Exclude ANY EVIDENCE OF OR QUESTIONING REGARDING THE CHANNEL 9 BROADCAST OF FILING OF THE LAWSUIT 173 filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Brustowicz, Celeste) (Entered: 01/16/2009)
183 MEMORANDUM in Opposition to MOTION IN LIMINE (1) to Preclude OPINIONS NOT BASED ON PERCEPTION OR PERSONAL KNOWLEDGE MOTION IN LIMINE (1) to Preclude OPINIONS NOT BASED ON PERCEPTION OR PERSONAL KNOWLEDGE MOTION IN LIMINE (1) to Preclude OPINIONS NOT BASED ON PERCEPTION OR PERSONAL KNOWLEDGE 166 filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Stormer, Dan) (Entered: 01/16/2009)
184 MEMORANDUM in Opposition to MOTION IN LIMINE to Preclude PLAINTIFFS FROM OFFERING ANY EXHIBITS AT THE TIME OF TRIAL 165 filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Attachments: # 1 Declaration of Peter Eliasberg, # 2 Declaration Anne Richardson, # 3 Exhibit 1 − 11 to Richardson Declaration)(Richardson, Anne) (Entered: 01/16/2009)
185 OBJECTION IN OPPOSITION re: MOTION to Produce documents Unnamed Classmembers 154 , MOTION to Compel Answers to Interrogatories of Unnamed Classmembers 152 , MOTION for Admissions of Unnamed Classmembers 153 PLAINTIFFS' OBJECTIONS AND REQUEST TO STRIKE DEFENDANTS' UNTIMELY REPLY MEMORANDUM IN SUPPORT OF THEIR DISCOVERY MOTIONS filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Richardson, Anne) (Entered: 01/16/2009)
186 Opposition re: MOTION IN LIMINE (3) to Preclude Plaintiffs from admitting into evidence any tapes and or transcripts of tapes of administrative interviews MOTION IN LIMINE (3) to Preclude Plaintiffs from admitting into

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 35 of 49

01/19/2009 01/21/2009 01/23/2009 01/23/2009 01/26/2009
01/26/2009
01/26/2009

evidence any tapes and or transcripts of tapes of administrative interviews 171 filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Bibring, Peter) (Entered: 01/16/2009)
187 OPPOSITION OPPOSITION re: MOTION IN LIMINE to Exclude Questions and Evidence about Officer's Knowledge of Video Surveillance law 170 filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Brustowicz, Celeste) (Entered: 01/19/2009)
188 Witness List filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo.. (Bibring, Peter) (Entered: 01/21/2009)
189 REPLY IN SUPPORT MOTION IN LIMINE (3) to Preclude Plaintiffs from admitting into evidence any tapes and or transcripts of tapes of administrative interviews MOTION IN LIMINE (3) to Preclude Plaintiffs from admitting into evidence any tapes and or transcripts of tapes of administrative interviews 171 filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Brustowicz, Celeste) (Entered: 01/23/2009)
190 REPLY IN SUPPORT MOTION IN LIMINE to Preclude PLAINTIFFS FROM OFFERING ANY EXHIBITS AT THE TIME OF TRIAL 165 filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Brustowicz, Celeste) (Entered: 01/23/2009)
191 REPLY IN SUPPORT MOTION IN LIMINE (1) to Preclude OPINIONS NOT BASED ON PERCEPTION OR PERSONAL KNOWLEDGE MOTION IN LIMINE (1) to Preclude OPINIONS NOT BASED ON PERCEPTION OR PERSONAL KNOWLEDGE MOTION IN LIMINE (1) to Preclude OPINIONS NOT BASED ON PERCEPTION OR PERSONAL KNOWLEDGE 166 filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Brustowicz, Celeste) (Entered: 01/26/2009)
192 REPLY MOTION IN LIMINE to Exclude ANY EVIDENCE OF OR QUESTIONING REGARDING THE CHANNEL 9 BROADCAST OF FILING OF THE LAWSUIT 173 Plaintiffs' Reply to Defendants' Opposition to Motion in Limine to Exclude Any Evidence of or Questioning Regarding the Channel 9 Broadcast of the Filing of the Lawsuit filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Richardson, Anne) (Entered: 01/26/2009)
193 REPLY support of motion in Limine #2 MOTION IN LIMINE to Exclude Questions and Evidence about Officer's Knowledge of Video Surveillance law 170 filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Attachments: # 1 Declaration of Peter Eliasberg, # 2 Proposed Order)(Bibring, Peter) (Entered: 01/26/2009)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 36 of 49

01/27/2009 01/27/2009 01/27/2009 01/27/2009 01/27/2009 01/27/2009 01/28/2009
01/28/2009
01/29/2009

194 MINUTES OF IN CHAMBERS ORDER held before Judge Virginia A. Phillips: COUNSEL ARE NOTIFIED that a telephonic status conference is set for Thursday, January29, 2009 at 1:45 p.m. Plaintiffs counsel shall initiate the conference call to Chambers at 951−328−4420 at the specified date and time. (am) (Entered: 01/27/2009)
195 PROPOSED JURY INSTRUCTIONS (PLAINTIFFS' PROPOSED SET OF JURY INSTRUCTIONS NOT AGREED TO BY DEFENDANTS set) filed by Plaintiff Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo.. (Richardson, Anne) (Entered: 01/27/2009)
196 PROPOSED JURY INSTRUCTIONS (Clean set) filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio.. (Attachments: # 1 Instruction 5.6 − CACI 1807, # 2 Instructions Affirmative Defense − Consent to Search)(Brustowicz, Celeste) (Entered: 01/27/2009)
197 PROPOSED JURY INSTRUCTIONS (PROPOSED JOINT JURY INSTRUCTIONS set) filed by Plaintiff Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo.. (Richardson, Anne) (Entered: 01/27/2009)
198 Witness List filed by Plaintiff Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo.. (Bibring, Peter) (Entered: 01/27/2009)
199 TRIAL BRIEF [Proposed] Final Pretrial Conference Order filed by Plaintiffs and Defendants Craig Pefferle, Michael Thompson, Robert Bernhard, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider, DOES, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo.. (Bibring, Peter) (Entered: 01/27/2009)
200 STATEMENT of PLAINTIFFS' UPDATE REGARDING STATUS OF MEET AND CONFER ON DISCOVERY MOTIONS; DECLARATION OF ANNE RICHARDSON IN SUPPORT THEREOF MOTION to Produce documents Unnamed Classmembers 154 , MOTION to Compel Answers to Interrogatories of Unnamed Classmembers 152 , MOTION for Admissions of Unnamed Classmembers 153 filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Jeff Quon, Steven Trujillo. (Richardson, Anne) (Entered: 01/28/2009)
201 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: A proposed order should not be filed but instead it should be submitted as a Notice of Lodging with the proposed document as an attachment to the Notice. RE: Trial Brief, 199 . 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. (mrgo) (Entered: 01/28/2009)
202 NOTICE OF LODGING Proposed Pretrial Conference Order Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Attachments: # 1 Proposed Order Pretrial Conference)(Bibring, Peter) (Entered: 01/29/2009)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 37 of 49

01/30/2009 01/30/2009 01/30/2009 02/02/2009
02/03/2009

203 JOINT WITNESS TESTIMONY SUMMARIES filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Attachments: # 1 Deposition Excerpts of John Johnson)(Brustowicz, Celeste) (Entered: 01/30/2009)
204 JOINT WITNESS TESTIMONY SUMMARIES filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Attachments: # 1 Deposition Excerpts, pgs. 1−16, # 2 Deposition Excerpts, pgs. 17−27, # 3 Deposition Excerpts − pgs. 18−44, # 4 Depositio Excerpts, pgs. 45−56, # 5 Deposition Excerpts − pgs. 57−69)(Brustowicz, Celeste) (Entered: 01/30/2009)
205 MINUTES OF TELEPHONIC STATUS CONFERENCE held before Judge Virginia A. Phillips: Defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf and Tony Del Rios Motion to Produce Unnamed Class Members (docket entry no. 154) is denied as filed untimely. Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, JeffQuon and Steven Trujillos Ex Parte Application to Expedite Motion Hearing for Review of Magistrate Judges Order Denying Reconsideration (docket entry no. 169) is rendered moot.Court Reporter: Phyllis Preston. (am) (Entered: 02/02/2009)
206 MINUTES OF Pretrial Conference held before Judge Virginia A. Phillips: 1. Defendants City of Ontario Police Department, Lloyd Scharf, Tony Del Rio and Michael Thompsons Motion for Bifurcation of Punitive Damages (filed 12/22/09)2. Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rios Motion to Preclude Plaintiffs From Offering Any Exhibits at the Time of Trial (filed 1/9/09) 3. Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rios Motion to Preclude Opinions Not Based On Perception or Personal Knowledge (filed 1/9/09)4. Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo Motion to Exclude Questions and Evidence About Officers Knowledge of Video Surveillance Law (filed 1/9/09). 5. Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rios Motion to Preclude Plaintiffs From Admitting Into Evidence Any Tapes and/or Transcripts of Tapes of Administrative Interviews (filed 1/12/09) 6. Plaintiff Steven Trujillos Motion to Exclude Any Evidence or/or Questioning Regarding the Channel 9 Broadcast of Filing of the Lawsuit (filed 1/9/09) Court conducts the Pretrial Conference and hears the above−entitled motions in limine which are placed on the record.Court Reporter: Denise Paddock. (am) (Entered: 02/04/2009)
207 MINUTES OF IN CHAMBERS ORDER RULINGS ON PRETRIAL MOTIONS held before Judge Virginia A. Phillips: DEFENDANTS' MOTION TO BIFURCATE TRIAL ON ISSUE OF PUNITIVE DAMAGES: The motion is DENIED IN PART and GRANTED IN PART. DEFENDANTS' MOTION IN LIMINE NO. 1, TO PRECLUDE OPINIONS NOT BASED ON PERCEPTION OR PERSONAL KNOWLEDGE: The Motion is GRANTED. DEFENDANTS' MOTION IN LIMINE NO. 2, TO PRECLUDE PLAINTIFFS FROM OFFERING ANY EXHIBITS AT TRIAL: The Motion is DENIED. DEFENDANTS' MOTION IN LIMINE NO. 3, TO

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 38 of 49

02/05/2009 02/05/2009
02/09/2009 02/09/2009 02/09/2009 02/09/2009 02/09/2009

PRECLUDE PLAINTIFFS FROM ADMITTING INTO EVIDENCE ANY TAPES OR TRANSCRIPTS OF TAPES OFADMINISTRATIVE INTERVIEWS: The Motion is DENIED. PLAINTIFFS' MOTION IN LIMINE NO. 1, TO EXCLUDE ANY EVIDENCE OR QUESTIONING REGARDING THE CHANNEL 9 BROADCAST OF THE FILING OF THE LAWSUIT: The Motion is GRANTED. PLAINTIFFS' MOTION IN LIMINE NO. 2, TO EXCLUDE QUESTIONS AND EVIDENCE ABOUT POLICE OR OTHER LAW ENFORCEMENT OFFICERS' KNOWLEDGE OF VIDEO SURVEILLANCE LAW: The Motion is GRANTED. (am) (Entered: 02/04/2009)
208 Witness List filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio.. (Brustowicz, Celeste) (Entered: 02/05/2009)
215 MINUTES OF IN CHAMBERS ORDER DENYING MOTIONS AS TO UNNAMED CLASS MEMBERS AS UNTIMELY held before Judge Virginia A. Phillips: For the reasons set forth on the record of the January 30, 2009 telephonic status conference held in this matter the Court denies the following motions as untimely: (1) defendants' Motion to Compel Answers to Interrogatories of Unnamed Class members and (2) defendants' Motion for Admissions of Unnamed Class members. These appear on the docket as documents 152 and 153. (am) (Entered: 02/10/2009)
209 Witness List filed by PLAINTIFFS LIST OF UNNAMED CLASS MEMBER WITNESSES TO BE CALLED AT TRIAL Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo.. (Richardson, Anne) (Entered: 02/09/2009)
210 Proposed Voir Dire Questions filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo.. (Richardson, Anne) (Entered: 02/09/2009)
211 Witness List filed by PLAINTIFFS AMENDED LIST OF UNNAMED CLASS MEMBER WITNESSES TO BE CALLED AT TRIAL Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo.. (Richardson, Anne) (Entered: 02/09/2009)
212 EX PARTE APPLICATION for Order for Granting Plaintiffs Access to Original Videotape filed by Plaintiff Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Attachments: # 1 Exhibit to Bibring Dec &Trujillo Declaration, # 2 Proposed Order re Original Videotape)(Bibring, Peter) (Entered: 02/09/2009)
213 Status Conference Request re Settlement Offer filed by Plaintiffs Jim Renstrom, Ron Dupuis, Keith Henderson, Craig Pefferle, Nicko Carcich, Rick Carroll, Salvador Garcia, Robert Bernhard, Christopher Alvarez, Fred Ruiz, Steve Guderian, Mike Kelley, Mike Bors, ROES, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo, Steven Hurst, Defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider, Joe Sifuentes, DOES (Bibring, Peter) (Entered: 02/09/2009)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 39 of 49

02/09/2009 02/10/2009
02/11/2009 02/11/2009 02/11/2009 02/11/2009 02/11/2009
02/11/2009 02/11/2009 02/11/2009

214 AMENDED JOINT Exhibit List filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo.. (Attachments: # 1 Exhibit A − Defs objections to plaintiffs exhibits)(Bibring, Peter) (Entered: 02/09/2009)
224 MINUTES OF IN CHAMBERS − Telephone Status Conference held before Judge Virginia A. Phillips: NOTICE SETTING HEARING REGARDING Plaintiff's EX PARTE APPLICATION for Order Granting Plaintiffs Access to Original Videotape 212 : A further Telephonic Status Conference is hereby set for Thursday 2/12/2009 at 01:30 PM. The Court will also hear oral argument on plaintiff's ex parte application as mention above (Docket No.212). IT IS SO ORDERED. Court Reporter: Phyllis Preston. (ad) (Entered: 02/12/2009)
216 DECLARATION of Celeste Brustowicz In Responses to Plaintiffs Ex Parte Application EX PARTE APPLICATION for Order for Granting Plaintiffs Access to Original Videotape 212 filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Brustowicz, Celeste) (Entered: 02/11/2009)
217 CORRECTED JOINT Exhibit List filed by Plaintffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo.. (Stormer, Dan) (Entered: 02/11/2009)
218 JOINT WITNESS TESTIMONY SUMMARIES filed by Plaintiff Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Steven Trujillo. (Attachments: # 1 Deposition Transcript)(Richardson, Anne) (Entered: 02/11/2009)
219 DECLARATION of Celeste Brustowicz Supplemental Response EX PARTE APPLICATION for Order for Granting Plaintiffs Access to Original Videotape 212 filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Brustowicz, Celeste) (Entered: 02/11/2009)
220 TRANSCRIPT for proceedings held on 020209 2:30 p.m.. Court Reporter/Electronic Court Recorder: Denise Paddock, phone number 10199. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder 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 3/4/2009. Redacted Transcript Deadline set for 3/14/2009. Release of Transcript Restriction set for 5/12/2009. (Paddock, Denise) (Entered: 02/11/2009)
221 NOTICE OF FILING TRANSCRIPT filed for proceedings 020209 2:30 p.m. (Paddock, Denise) (Entered: 02/11/2009)
222 NOTICE OF FILING TRANSCRIPT filed for proceedings 020209 230pm (Paddock, Denise) (Entered: 02/11/2009)
223 REPLY support EX PARTE APPLICATION for Order for Granting Plaintiffs Access to Original Videotape 212 filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Attachments: # 1 Exhibit Brustowicz Email)(Bibring, Peter) (Entered: 02/11/2009)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 40 of 49

02/12/2009 02/12/2009 02/13/2009 02/17/2009 02/17/2009
02/18/2009 02/18/2009

226 ORDER by Judge Virginia A. Phillips granting plaintiffs' EX PARTE APPLICATION for Access to Original Videotape 212 and ORDERS that Defendants immediately turn over the original video surveillance tape of the Ontario Police Department locker room to plaintiffs for a reasonable period to allow plaintiffs to convert the tape to computerized format and to prepare their trial presentation. (gg) (Entered: 02/13/2009)
228 MINUTES OF TELEPHONIC STATUS CONFERENCE: Re Plaintiffs Ex Parte ApplicationFor Order Granting Plaintiffs Access to Original Videotape held before Judge Virginia A. Phillips: The status conference is held as stated on the record.Plaintiffs ex parte application for order granting plaintiffs access to original videotape is GRANTED. The jury trial date of February 17, 2009 at 8:30 a.m. stands.Court Reporter: Phyllis Preston. (am) (Entered: 02/18/2009)
225 Witness List filed by Plaintiffs' REVISED LIST OF UNNAMED CLASS MEMBER WITNESSES TO BE CALLED AT TRIAL Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo.. (Richardson, Anne) (Entered: 02/13/2009)
227 EX PARTE APPLICATION for Review of Pre−Trial Order re Minutes of In Chambers Order/Directive − no proceeding held,,,, 207 and Clarification of Order filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio.(Brustowicz, Celeste) (Entered: 02/17/2009)
229 MINUTES OF Hearing Jury − 1st Day held before Judge Virginia A. Phillips. The Court is informed by the defendants that a tentative settlement has been reached and are waiting for final approval Defendants advise that they will know the results as to whether the negotiated settlement will be authorized by this evening. The Court having been notified on the day of trial that the case has settled will impose sanctions for the reimbursement of the costs incurred in bringing the jury in on this date. The Court will make a determination as to the allocation of sanctions to be ordered regarding the jury fees and mileage fees. Defense counsel, Mr. Rinos shall advise this evening whether the tentative settlement has been approved. The matter is continued to Wednesday, February 18, 2009 at 8:30 a.m. to advise the Court whether the tentative settlement has been authorized and placed on the record, of if not, proceed directly to trial. The jurors are ordered to call in this evening after 7:00 p.m. for further instructions.Court Reporter: Phyllis Preston. (am) (Entered: 02/18/2009)
230 NOTICE OF LIEN filed by Plaintiff Jim Renstrom, Ron Dupuis, Keith Henderson, Craig Pefferle, Nicko Carcich, Rick Carroll, Salvador Garcia, Robert Bernhard, Christopher Alvarez, Fred Ruiz, Steve Guderian, Mike Kelley, Mike Bors, ROES, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo, Steven Hurst. (McGill, Michael) (Entered: 02/18/2009)
231 MINUTES OF STATUS CONFERENCE RE SETTLEMENT held before Judge Virginia A. Phillips: The Court is advised that the above−entitled action has settled.Plaintiffs motion for preliminary approval and motion for attorneys fees shall be filed on or before March

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 41 of 49

02/25/2009
02/27/2009 03/06/2009 03/16/2009 03/16/2009 03/16/2009 03/16/2009

16, 2009 with a hearing date of April 6, 2009 at 10:00 a.m. The fairness hearing will be set in early June, 2009.Court Reporter: Phyllis Preston. (am) (Entered: 02/23/2009)
232 MINUTES OF IN CHAMBERS ORDER IMPOSING SANCTIONS Against Defendant City of Ontario and its Counsel, Jointly and Severally, to Reimburse Court $2,222.50 in Costs Associated with Assembling Jury Panel held before Judge Virginia A. Phillips: (see document image for full details). Ms. Brustowicz and Mr. Rinos exhibited thoughtless disregard for the Court's warnings and the respect due to the members of the public called to serve as jurors. See Fink, 239 F.3d at 991; Lasar, 399 F.3d at 1111−12. As no amount of money could compensate the public and the legal profession for their actions, the Court does not issue an order to show cause regarding further sanctions. As this Order imposes sanctions in an amount greater than $1,000.00, the Clerk of Court is directed to forward a copy to the State Bar of California. Cal. Bus. &Prof. Code§6086.7(a)(3). IT IS SO ORDERED. (ad) (Entered: 02/25/2009)
233 NOTICE Ntc of Stat Conf Re Settlement; Ntc of Mtn for Preliminary Approval &Mtn for Attys' Fees &Hearing; Ntc of Fairness Hearing &POS filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Stormer, Dan) (Entered: 02/27/2009)
234 NOTICE OF PAYMENT OF SANCTIONS filed by Defendant City of Ontario. (Brustowicz, Celeste) (Entered: 03/06/2009)
235 NOTICE OF MOTION AND MOTION for Attorney Fees filed by Plaintiffs Jim Renstrom, Ron Dupuis, Keith Henderson, Craig Pefferle, Nicko Carcich, Rick Carroll, Salvador Garcia, Robert Bernhard, Christopher Alvarez, Fred Ruiz, Steve Guderian, Mike Kelley, Mike Bors, ROES, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo, Steven Hurst. Motion set for hearing on 4/6/2009 at 10:00 AM before Judge Virginia A. Phillips. (Attachments: # 1 Declaration of Michael McGill, # 2 Exhibit A)(McGill, Michael) (Entered: 03/16/2009)
236 NOTICE of Manual Filing filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo of Application to File Plaintiffs' Supplemental Declarations and Supporting Exhibits Under Seal and In Camera; [Proposed] Order Granting Application to File Declarations Under Seal and In Camera; Supplemental Declarations ISO Plaintiffs' Motion for Preliminary Approval and Attorneys' Fees and Costs; Exhibits.. (Bibring, Peter) (Entered: 03/16/2009)
237 NOTICE of Settlement Prelim Approval of Class Settlement filed by Plaintiff Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Attachments: # 1 Exhibit Exhibits to Memo of PPeter) (Entered: 03/16/2009)
238 NOTICE OF MOTION AND MOTION for Attorney Fees Preliminary Approval of Class Settlement filed by Plaintiff Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. Motion set for hearing on 4/6/2009 at 09:00 AM before Judge Virginia A. Phillips. (Attachments: # 1 Exhibit Exhibits to

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 42 of 49

03/16/2009
03/17/2009
03/17/2009 03/20/2009 03/23/2009 03/24/2009

Memo of Ps, # 2 Declaration Plaintiffs' Declarations in Support)(Bibring, Peter) (Entered: 03/16/2009)
239 DECLARATION of Bahan, Coca, Eliasberg, Litt, Mirell, Quinn, Richardson, Sobel, and Stormer in Support of MOTION for Attorney Fees Preliminary Approval of Class Settlement 238 filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Attachments: # 1 Declaration Bahan Exhibit &Colca Dec, # 2 Declaration Eliasberg Dec, # 3 Declaration Eliasberg Exhibit, # 4 Declaration Litt Dec, # 5 Declaration Litt Exhibit, # 6 Declaration Mirell Dec, # 7 Declaration Quinn Dec, # 8 Declaration Richardson Dec, # 9 Declaration Richardson Exhibit, # 10 Declaration Sobel Exhibit, # 11 Declaration, # 12 Declaration, # 13 Declaration Stormer Exhibit)(Bibring, Peter) (Entered: 03/16/2009)
240 DECLARATION of Bahan, Colca, Eliasberg, Litt, Mirell, Quinn, Richardson, Sobel, Stormer In Support of MOTION for Attorney Fees Preliminary Approval of Class Settlement 238 CORRECTED filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Attachments: # 1 Declaration Bahan and Colca, # 2 Declaration Eliasberg, # 3 Exhibit Eliasberg, # 4 Declaration Litt, # 5 Exhibit Litt, # 6 Declaration Mirell, # 7 Declaration Quinn and Richardson, # 8 Exhibit Richardson, # 9 Declaration Sobel, # 10 Exhibit Sobel 1,2,3,4, # 11 Exhibit Sobel 5, # 12 Declaration Stormer, # 13 Exhibit Stormer)(Bibring, Peter) (Entered: 03/17/2009)
241 APPLICATION to File Supplemental Declarations of Anne Richardson, Della Bahan, Peter Eliasberg and Allan Ides and supporting Exhibits Under Seal and In Camera filed by plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. Lodged Proposed Order. (ad) (Entered: 03/19/2009)
242 MINUTES OF IN CHAMBERS ORDER DIRECTING PLAINTIFFS TO FILE SETTLEMENT AGREEMENT NO LATER THAN MARCH 25, 2009 held before Judge Virginia A. Phillips: Plaintiffs filed their Motion for Preliminary Approval of Class Action Settlement ("Motion") on March 16, 2009. Plaintiffs attached as exhibits to the Motion the "Joint Statement of Agreement per F.R.C.P. 23 Rule 23(e)(2)" and the proposed notice to class members. Plaintiffs failed to attach a copy of the settlement agreement itself. No later than March 25, 2009 Plaintiffs shall file: a copy of the settlement agreement entered into with Defendants. (am) (Entered: 03/23/2009)
243 NOTICE OF NON−OPPOSITION to MOTION for Attorney Fees 235 , MOTION for Attorney Fees Preliminary Approval of Class Settlement 238 filed by Defendants Michael Thompson, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Brustowicz, Celeste) (Entered: 03/23/2009)
245 ORDER by Judge Virginia A. Phillips, GRANTING APPLICATION for Order for to File Supplemental Declarations of Anne Richardson, Della Bahan, Peter Eliasberg and Allan Ides and supporting Exhibits Under Seal and In Camera 241 (am) (Entered: 03/26/2009)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 43 of 49

03/25/2009 03/31/2009 04/02/2009 04/03/2009 04/06/2009 04/08/2009 04/09/2009
04/10/2009

244 PARTIES' JOINT REPORT of RE: SETTLEMENT AGREEMENT filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Richardson, Anne) (Entered: 03/25/2009)
247 NOTICE Amended Notice of Attorney Lien in the Amount of $171,675.00 filed by Plaintiff Jim Renstrom, Ron Dupuis, Keith Henderson, Craig Pefferle, Nicko Carcich, Rick Carroll, Salvador Garcia, Robert Bernhard, Christopher Alvarez, Fred Ruiz, Steve Guderian, Mike Kelley, Mike Bors, ROES, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo, Steven Hurst. (McGill, Michael) (Entered: 03/31/2009)
248 Joint STIPULATION for Settlement of Class Action Settlement and Release filed by Plaintiff Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Attachments: # 1 Exhibit A−D)(Stormer, Dan) (Entered: 04/02/2009)
249 EX PARTE APPLICATION for Special Hearing Re: Meeting with the Court filed by Plaintiff Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Attachments: # 1 Declaration Dan Stormer)(Stormer, Dan) (Entered: 04/03/2009)
252 MINUTES OF Motion Hearing held before Judge Virginia A. Phillips:taking under advisement 235 Motion for Attorney Fees ; taking under advisement 238 Motion for Attorney Fees. Court issues a tentative ruling, hears oral argument and takes the matters under submission. With respect to the issue of attorney fees, the Court will allow additional filings on or before April 15, 2009.Court Reporter: Phyllis Preston. (mrgo, ) (Entered: 04/10/2009)
250 EX PARTE APPLICATION for Order for [PROPOSED] ORDER GRANTING EX PARTE APPLICATION RE: MEETING WITH THE COURT filed by plaintiff Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Jeff Quon, Steven Trujillo.(Richardson, Anne) (Entered: 04/08/2009)
251 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: The image attached to this entry is a proposed order and not an ex parte application. The proposed order needs to be a separate attachment to the stipulation/request/motion/application or attached to a Notice of Lodging. RE: EX PARTE APPLICATION for Order for [PROPOSED] ORDER GRANTING EX PARTE APPLICATION RE: MEETING WITH THE COURT 250 . 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. (mrgo) (Entered: 04/09/2009)
253 RESPONSE BY THE COURT TO NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS ORDER by Clerk of Court. The Court ORDERS doc. #50, STRICKEN; the image attached to this entry is a proposed order and not an ex parte application. RE: EX PARTE APPLICATION for Order for [PROPOSED] ORDER GRANTING EX PARTE APPLICATION RE: MEETING WITH THE COURT 250 . (mrgo) (Entered: 04/13/2009)

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 44 of 49

04/13/2009 04/13/2009
04/15/2009 04/15/2009 04/15/2009 04/15/2009 04/15/2009
04/16/2009

254 NOTICE OF LODGING filed [PROPOSED] ORDER GRANTING re EX PARTE APPLICATION for Special Hearing Re: Meeting with the Court 249 (Attachments: # 1 Proposed Order)(Richardson, Anne) (Entered: 04/13/2009)
255 ORDER GRANTING EX PARTE APPLICATION RE: MEETING WITH THE COURT by Judge Virginia A. Phillips 249 . The Court, having reviewed the Ex Parte Application of the Plaintiffs to meet with the Court outside the presence of counsel, hereby orders as follows: The application is granted. All named plaintiffs in the courtroom on April 6, 2009 at 10 a.m. were permitted to speak with the Court outside the presence of all counsel. (am) (Entered: 04/14/2009)
256 NOTICE of Manual Filing filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo of Application; [Proposed] Order; and Resubmitted Supp Dec's ISO P's Mot for Prelim Approval &Atty's Fees; Exhibits. (Bibring, Peter) (Entered: 04/15/2009)
257 NOTICE of Manual Filing filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo of Application; [Proposed] Order; P's 2nd Supp Dec's ISO of Motion for Prelim Approval &Atty's Fees &Costs;Exhibits. (Bibring, Peter) (Entered: 04/15/2009)
258 NOTICE OF FILING OF REVISED SETTLEMENT AGREEMENT WITH EXHIBITS filed by plaintiff Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Attachments: # 1 Joint Stipulation, # 2 Exhibit A−D)(Richardson, Anne) (Entered: 04/15/2009)
259 NOTICE OF MOTION AND Supplemental MOTION for Attorney Fees Memo of Ps in Support of Preliminary Approval of Class Action Settlement filed by Plaintiff Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Bibring, Peter) (Entered: 04/15/2009)
260 DECLARATION of Named Plaintiffs, Original Named P's, Eliasberg, Richardson, Stormer, Sobel In support of Supplemental MOTION for Attorney Fees Memo of Ps in Support of Preliminary Approval of Class Action Settlement 259 filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. (Attachments: # 1 Declaration Original Named Plaintiffs, # 2 Declaration Eliasberg &Exhibit, # 3 Declaration Richardson, Stormer, Sobel, # 4 Exhibit Sobel #1, # 5 Exhibit Sobel #2# 6 Exhibit sobel #4, # 7 Exhibit Sobel #5, # 8 Exhibit Sobel #6, # 9 Exhibit Sobel #7, # 10 Exhibit Sobel #7 pt 2, # 11 Exhibit Sobel #8)(Bibring, Peter) (Entered: 04/15/2009)
261 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Incorrect event selected. The document is a memorandum of points and authorities in support of your motion and not a motion. The correct event is "Memorandum in Support of Motion" under the "Responses/Replies/Other Motion Related Documents" category. RE: Supplemental MOTION for Attorney Fees Memo of Ps in Support of Preliminary Approval of Class Action Settlement 259 . In response to this notice the court may order (1) an amended or correct

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 45 of 49

04/16/2009
04/18/2009 04/18/2009 04/18/2009 04/20/2009 05/11/2009 05/13/2009 05/14/2009
05/14/2009 05/18/2009

document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (mrgo) (Entered: 04/16/2009)
262 NOTICE of Manual Filing filed by Defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider of Moving Defendants' Notice &Application to seal Ex. A to the Parties' Joint Stipulation of Class Action Settlement &Release, Declaration of Celeste Brustowicz and Exhibit A. (Brustowicz, Celeste) (Entered: 04/16/2009)
263 ORDER by Judge Virginia A. Phillips: granting 241 Application for Order for under seal an in camera filing (am) (Entered: 04/20/2009)
266 SEALED DOCUMENT: ORDER GRANTING UNDER SEAL AND IN CAMERA FILING by Judge Virginia A. Phillips,, **DOCUMENT SEALED** (am) (Entered: 04/21/2009)
269 SEALED DOCUMENT: ORDER GRANTING UNDER AND IN CAMERA FILING by Judge Virginia A. Phillips,, **DOCUMENT SEALED** (am) (Entered: 04/21/2009)
264 DECLARATION of Keeny, Newman, Sobel in support of Supplemental MOTION for Attorney Fees Memo of Ps in Support of Preliminary Approval of Class Action Settlement 259 filed by Plaintiffs Will Rivera, Steven Trujillo. (Attachments: # 1 Declaration Sobel &Exhibit)(Bibring, Peter) (Entered: 04/20/2009)
271 NOTICE of Manual Filing filed by Defendants Michael Thompson, City of Ontario, Lloyd Scharf, Tony Del Rio, Brad Schneider of Notice &Application to Seal and Replace. (Attachments: # 1 Proposed Order)(Brustowicz, Celeste) (Entered: 05/11/2009)
272 MINUTES (IN CHAMBERS): ORDER by Judge Virginia A. Phillips: DENYING LACKIE &DAMMEIER'S MOTION FOR ATTORNEY FEES [Motion filed March 16, 2009 Doc. No. 235 . For all the reasons set forth above, the Court DENIES the Motion. (am) (Entered: 05/14/2009)
273 TRANSCRIPT for proceedings held on MONDAY, FEBRUARY 2, 2009 14:30. Court Reporter: Denise Paddock 10199, phone number 7605339866. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder 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 6/4/2009. Redacted Transcript Deadline set for 6/14/2009. Release of Transcript Restriction set for 8/12/2009. (Paddock, Denise) (Entered: 05/14/2009)
275 ORDER RE JOINT STIPULATION OF CLASS ACTION SETTLEMENT AND RELEASE by Judge Virginia A. Phillips, (am) (Entered: 05/18/2009)
274 MINUTES OF IN CHAMBERS ORDER held before Judge Virginia A. Phillips: (1) Issuing Order re Joint Stipulation of Class Action Settlement and release with modifications; (2) Approving Joint Stipulation of Class Action Settlement and Release with adjustments to Notice Schedule; (3) Requiring modifications of the notice of

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 46 of 49

06/08/2009 06/11/2009
06/12/2009 07/02/2009 07/08/2009 07/22/2009 07/29/2009 08/03/2009 08/04/2009

Settlement Class Action Litigation; (4) Adding dates to claim form; and (5) Setting Final Approval Hearing: Final Approval Settlement set for 8/24/2009 10:00 AM before Judge Virginia A. Phillips (am) (Entered: 05/18/2009)
276 EX PARTE APPLICATION for Order for Clarification of Order re Joint Stipulation of Class Action Settlement and Release filed by Defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider. (Attachments: # 1 Proposed Order)(Brustowicz, Celeste) (Entered: 06/08/2009)
277 ORDER CONDITIONALLY GRANTING MOTION REGARDING ATTORNEYS' FEES AND COSTS PENDING FINAL APPROVAL OF SETTLEMENT AGREEMENT by Judge Virginia A. Phillips: The Court awards Bahan &Associates $375 per hour for the work of Puja Batra in light of the relative dearth of information about her work. She reasonably spent 97.2 hours on this matter, so Bahan &Associates is awarded $36,450. The Court awards fees for Bibring's work at the rate of $375 per hour, as requested, and approves 136.6 of his hours at Bahan &Associates; the reasonable fee his labors is $51,255.00. The Court GRANTS the Motion for Attorneys Fees filed on behalf of the ACLU, Hadsell Stormer, and Bahan ON THE CONDITION THAT the Court grants final approval to the Settlement Agreement. (am) (Entered: 06/12/2009)
278 ORDER ON EX PARTE APPLICATION OF CITY OF ONTARIO POLICE DEPARTMENT, LLOYD SCHARF, TONY DEL RIO AND MIKE THOMPSON REQUESTING CLARIFICATION OF THE COURTS MAY 14, 2009 ORDER by Judge Virginia A. Phillips: granting 276 Ex Parte Application for Order (am) (Entered: 06/12/2009)
279 STIPULATION for Order to serve revised claim forms filed by Defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider. (Attachments: # 1 Proposed Order)(Brustowicz, Celeste) (Entered: 07/02/2009)
280 ORDER RE REVISED CLASS SETTLEMENT CLAIM FORMS AND NOTICE TO CLASS MEMBERS by Judge Virginia A. Phillips (am) (Entered: 07/09/2009)
281 Joint STIPULATION to Amend Order 275 filed by defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider. (Attachments: # 1 Proposed Order)(Brustowicz, Celeste) (Entered: 07/22/2009)
282 ORDER GRANTING Revised Class Settlement Claim Forms by Judge Virginia A. Phillips, re Stipulation to Amend/Correct 281 . (gg) (Entered: 07/30/2009)
283 NOTICE OF MOTION AND MOTION for Settlement Approval of Class Action Settlement filed by Plaintiff Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. Motion set for hearing on 8/24/2009 at 10:00 AM before Judge Virginia A. Phillips. (Attachments: # 1 Declaration Eliasberg &Lebano)(Bibring, Peter) (Entered: 08/03/2009)
284 STATEMENT in support of settlement by defendants filed by Defendants Michael Thompson, City of Ontario, City of

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 47 of 49

08/07/2009 08/10/2009 08/10/2009 08/13/2009 08/17/2009 08/18/2009
08/19/2009 08/19/2009 08/19/2009

Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider (Brustowicz, Celeste) (Entered: 08/04/2009)
285 NOTICE OF LODGING filed re MOTION for Settlement Approval of Class Action Settlement 283 (Attachments: # 1 Proposed Order Granting Final Approval of class Settlement)(Bibring, Peter) (Entered: 08/07/2009)
286 Joint STIPULATION for Settlement Check Distribution to Class Members &Allocation of Funds Set Aside for Enhancement Awards not Sought by Original Plaintiffs filed by Defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider.(Brustowicz, Celeste) (Entered: 08/10/2009)
287 NOTICE OF LODGING filed re Stipulation for Settlement, 286 (Attachments: # 1 Proposed Order)(Brustowicz, Celeste) (Entered: 08/10/2009)
288 DECLARATION of Ann Richey Re Compliance with Preliminary Order and Settlement Agreement filed by Defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider. (Brustowicz, Celeste) (Entered: 08/13/2009)
289 NOTICE OF ERRATA filed by Plaintiffs Craig Pefferle, Robert Bernhard, Scott Anderson, Craig Ansman, Will Rivera, Jeff Quon, Steven Trujillo. correcting Notice of Lodging 285 REVISED [PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND JUDGMENT (Richardson, Anne) (Entered: 08/17/2009)
290 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: The image attached to this entry is a proposed order and not a notice of errata. The proposed order needs to be a separate attachment to the stipulation/request/motion/application or attached to a Notice of Lodging. RE: Errata, 289 . 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. (mrgo) (Entered: 08/18/2009)
291 RESPONSE BY THE COURT TO NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS. ORDER by Clerk of Court: The Court ORDERS document No.289 STRICKEN, due to electronic filing error. See Notice of Deficiencies, document No.290. The appropriate event for submitting a proposed order is a Notice of Lodging and not a notice of errata RE: Errata 289 . (ad) (Entered: 08/19/2009)
292 NOTICE OF LODGING filed REVISED [PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND JUDGMENT re MOTION for Settlement Approval of Class Action Settlement 283 (Attachments: # 1 Proposed Order Revised [Proposed] Order Granting Final Approval Of Class Action Settlement and Judgement)(Richardson, Anne) (Entered: 08/19/2009)
293 ORDER by Judge Virginia A. Phillips GRANTING Stipulation for Settlement Check Distribution to Class Members &Allocation of Funds set Aside for Enhancement

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 48 of 49

08/20/2009 08/20/2009 08/20/2009
08/21/2009 08/24/2009 08/24/2009 08/24/2009 08/24/2009 09/04/2009 09/18/2009

Awards not Sought by Original Plaintiffs 287 , filed by defendants City of Ontario Police Department, Lloyd Scharf, Tony del Rio and Michael Thompson. (gg) (Entered: 08/19/2009)
294 NOTICE of Manual Filing filed by Defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio of Ex parte application and stipulation to seal and replace and proposed order. (Brustowicz, Celeste) (Entered: 08/20/2009)
295 NOTICE OF LODGING filed re: Proposed Order re Stipulation for Settlement 248 , Notice (Other) 49 (Brustowicz, Celeste) (Entered: 08/20/2009)
300 NOTICE OF DISCREPANCY AND ORDER by Judge Virginia A. Phillips, ORDERING Ex Parte Application; Stipulation to Seal and Replace with Redacted Version Plaintiffs' Attachment to Notice of Filing of Opt−outs to be Excluded from Action and to Seal Exhibit A attached to the Joint Stipulation of Class Action Settlement and Release; Points and Authorities; Declaration of Celeste Brustowicz in Support, submitted by Defendants Michael Thompson, City of Ontario, Lloyd Scharf, Tony Del Rio received on 8/20/2009 is NOT to be filed but instead REJECTED. Denial based on: Ex Parte Application needs a separate order. Documents needing to be under seal should also be in separate envelopes (originals and copies). (gg) (Entered: 08/25/2009)
296 EX PARTE APPLICATION to Correct re Notice (Other), Notice (Other) 258 , Stipulation for Settlement 248 , Notice (Other) 49 filed by Defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Attachments: # 1 Proposed Order)(Brustowicz, Celeste) (Entered: 08/21/2009)
297 DECLARATION of Celeste Brustowicz re Compliance with 28 U.S.C. §1715(b) filed by Defendants Michael Thompson, City of Ontario, City of Ontario Police Department, Lloyd Scharf, Tony Del Rio. (Brustowicz, Celeste) (Entered: 08/24/2009)
298 ORDER by Judge Virginia A. Phillips GRANTING Final Approval of Settlement 283 . (gg) (Entered: 08/24/2009)
299 JUDGMENT by Judge Virginia A. Phillips. IT IS ORDERED AND ADJUDGED that Plaintiffs' entire action is DISMISSED WITH PREJUDICE. The Court orders that such judgment be entered. (MD JS−6, Case Terminated). (gg) (Entered: 08/24/2009)
301 MINUTES OF Motion Hearing held before Judge Virginia A. Phillips for Settlement Approval of Class Action Settlement 283 filed by plaintiffs. Court issues a tentative ruling, and takes the matter under submission.Court Reporter: Phyllis Preston. (la) (Entered: 08/26/2009)
302 MINUTES OF IN CHAMBERS ORDER ORDER DENYING EX PARTE APPLICATION TO SEAL DOCUMENT IN COURT FILE AND REPLACE WITH REDACTED VERSION held before Judge Virginia A. Phillips: The Court DENIES the Application WITHOUT PREJUDICE. (am) (Entered: 09/08/2009)
303 EX PARTE APPLICATION to Amend re Notice (Other) 49 filed by Defendants Michael Thompson, City of Ontario

Case: 5:04-cv-01015-VAP-PJW As of: 10/10/2009 09:15 AM PDT 49 of 49
Police Department, Lloyd Scharf, Tony Del Rio, Brad Schneider. (Attachments: # 1 Proposed Order)(Brustowicz, Celeste) (Entered: 09/18/2009)

 
 United States Court of Appeals, Ninth Circuit.
Steven TRUJILLO, Plaintiff-Appellant, v.
CITY OF ONTARIO et al., Defendant-Appellees.
No. 06-56531. Argued and Submitted Feb. 6, 2008. Filed March 10, 2008.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Steven Trujillo appeals the district court's dismissal of his retaliation claim, made pursuant to 42 U.S.C. § 1983. The district court concluded that because Trujillo was successful in a prior lawsuit on his claim for failure to promote on the basis of retaliation (“ Trujillo I ”), he would potentially receive double recovery if he were successful in the present case (“ Trujillo II ”). The district court held that Trujillo, in essence, already received compensation for his injuries in the jury's verdict in Trujillo I. Therefore, the district court dismissed Trujillo II as barred by the doctrine of res judicata.
Legal questions predominate in a district court's dismissal for failure to state a claim based on res judicata. Headwaters Inc. v. U.S. Forest Service, 399 F.3d 1047, 1051 (9th Cir.2005). Accordingly, we review the district court's order de novo. Id. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.
The doctrine of res judicata provides that a final judgment on the merits bars a subsequent action between the same parties over the same cause of action. See In re Imperial Corp. of America, 92 F.3d 1503, 1506 (9th Cir.1996). “[A] final judgment on the merits of an action precludes the parties or the privies from relitigating issues that were or could have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Res judicata bars a later suit where the previous suit (1) involved the same “claim” as the later suit, (2) reached a final judgment on the merits, and (3) involved the same parties or their privies. Nordhorn v. Ladish Co., Inc., 9 F.3d 1402, 1404 (9th Cir.1993). In our circuit, res judicata does not apply to claims based on events occurring after the initial lawsuit. Los Angeles Branch NAACP v. Los Angeles Unified Sch. Dist., 750 F.2d 731, 739 (9th Cir.1984).
As a matter of law, we have ruled that parties who agree to split claims may waive res judicata effect. See, e.g., Dodd v. Hood River County, 59 F.3d 852, 862 (9th Cir.1995). We have adopted the Restatement (Second) of Judgments in which parties can waive res judicata by consenting to claim splitting. § 26(1)(a), comment a. (1982); Clements v. Airport Authority of Washoe County, 69 F.3d 321, 328 (9th Cir.1995). The Restatement reads, in relevant part:

A main purpose of the general rule [of res judicata] is to protect the defendant from being harassed by repetitive actions based on the same claim. The rule is thus not applicable where the defendant consents, in express words or otherwise, to the splitting of the claim.
Id. We have applied this rule when considering the res judicata effect in the context of claim splitting. See Dodd, 59 F.3d at 862 (noting that when the parties failed to object in a situation where they were defending two simultaneous actions, express or tacit agreement to split the claims is “clear justification for splitting a claim”); Kern Oil & Refining Co. v. Tenneco Oil Co., 840 F.2d 730, 735 (9th Cir.1988) (holding that claim splitting was appropriate because the defendant never objected to claim splitting until after the first trial).
In this case, the City's counsel requested to split the claims in an email sent to Trujillo's lawyer before the trial in Trujillo I. Trujillo's attorney agreed with this request. The parties proceeded with the Trujillo I trial without referencing any facts and issues related to Trujillo II. Because the parties chose not to litigate the later claim in Trujillo I, we will not preclude litigation of that claim in Trujillo II.
Furthermore, there is nothing in the trial record to suggest that facts and issues in Trujillo II were mentioned in Trujillo I, let alone related. Trujillo I involved two retaliation claims in May 2003 and January 2004 for speaking out against illegally obtained pager text messages; Trujillo II involved a retaliation claim in June 2004 for speaking out against an illegally installed surveillance camera in the men's locker room at the police station.
With respect to damages, Trujillo should only be permitted to recover noneconomic and punitive damages in Trujillo II. He should not be able to recover economic damages because he was fully compensated for past and future economic loss in Trujillo I. By contrast, Trujillo was not compensated for non-economic and punitive damages arising from his deferred failure to promote claim because the parties agreed not to litigate those facts and issues in Trujillo I.
REVERSED AND REMANDED.