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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

THE ESTATE OF JERRY A. AMARO III,

GERALDINE MONTOYA, and

STEPHANIE MONTOYA,

Plaintiffs,

 v.

CITY OF OAKLAND, RICHARD WORD,

EDWARD POULSON, R. HOLMGREN, S.

NOWAK, M. BATTLE, E. KARSSEBOOM,

C. BUNN, M. PATTERSON, individually

and in their capacities as members of the City

of Oakland Police Department, and 

DOES 1–100, inclusive,

Defendants. /

No. C 09-01019 WHA

ORDER ON MOTION FOR

SUMMARY JUDGMENT AND

CERTIFICATION UNDER

28 U.S.C. 1292(b)

INTRODUCTION

This Section 1983 action poses a difficult limitations question. Before he died from his

injuries, the son of plaintiff Geraldine Montoya told her that the Oakland police were the ones

who had beaten him. She believed him. Upon his death shortly thereafter, she almost filed suit

but was dissuaded from doing so by affirmative and misleading statements and conduct by

Oakland police. Many years after the limitations period lapsed, a federal investigation into the

matter revived her determination. She commenced this action, asserting equitable estoppel to

avoid the time bar. This order agrees that a jury should determine whether defendants’

affirmative statements and conduct misled and dissuaded Ms. Montoya from commencing suit

within the 

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limitations period. No decision of the court of appeals compels an outcome either way. Because

an interlocutory appeal of this substantial question would materially advance the litigation, this

order will also certify the issue for such an appeal under 28 U.S.C. 1292(b).

STATEMENT

On March 23, 2000, Jerry A. Amaro III was arrested in Oakland during a drug sting

commanded by Oakland police officer Edward Poulson. Also involved in the arrest were police

officers Eric Karsselboom, Clifford Bunn, Marcell Patterson, Roland Holmgren, Taiwo Pena,

Mark Battle, and Steve Nowak (Chanin Decl. Exh. 9; Rowell Decl. Exh. 5). 

A witness to the March 23 arrest, Timothy Murphy, testified under oath that he saw

undercover officers kicking Amaro in the ribs, kneeing Amaro in the back, and punching Amaro

in his face while being pinned to the ground (Murphy Dep. 24–31, 81). Another witness to the

arrest, Theresa Batts, informed police during the course of an internal investigation into the arrest

that officers were “overly violent” and inflicted blows that “were unnecessary” (Exh. 9 at 20). 

Batts also testified under oath corroborating these observations (Batts Dep. 11–21). A third

witness to the arrest, Laureen White, also apparently saw officers “use their fists to strike Amaro .

. . in the back” during his arrest (ibid.). According to his March 23 arrest report, Amaro was five

feet, five inches tall, and weighed 150 pounds (Chanin Decl. Exh. 20).

While being transported to jail, two witnesses testified that Amaro complained of pain in

his ribs and requested medical attention from officers (Murphy Dep. 36, 46; Garry Dep. 24–30). 

Witness Murphy testified under oath that Amaro told two patrolmen, “I think you guys broke my

ribs,” “I’m having difficulty breathing,” and “I need to see a doctor,” and that Amaro displayed

physical symptoms corroborating these statements (Murphy Dep. 36, 47). Jailer Khalid

Mohammed, who was at the admitting desk of the jail when Amaro was admitted, also testified

that Amaro had bruises on his face and complained of rib injuries at the time of booking

(Mohammed Dep. 24, 33–35; Chanin Decl. Exh. 9 at 23). The jail medical pre-screening form

corroborated these observations (Chanin Decl. Exh. 29).

Witness Murphy also shared a jail cell with Amaro for five days following the March 23

arrest and testified that Amaro moaned in pain each day and could barely get up from his bed 

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 The identity of this paper is unclear. Its existence is based solely upon Geraldine

Montoya’s deposition testimony. That said, Dr. Green noted in her deposition that she had

written down “fist to left chest wall” (in shorthand) on Amaro’s medical report during his

April 18th medical examination (Green Dep. 13). This, however, was not her objective

medical opinion, but simply a record of what Amaro had told her during the examination

(ibid.).

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(id. at 51–53, 60). According to Murphy and Amaro was only given Tylenol for his pain, despite

Murphy’s opinion that “Ray Charles could have saw he was beat up” (id. at 51, 60). Oakland jail

medical records corroborated that only painkillers were administered to Amaro while in custody

(Chanin Decl. Exh. 32).

Amaro was released from custody on March 28 (id. Exh. 9 at 14). After returning home,

Amaro informed his mother, plaintiff Geraldine Montoya, that he had been beaten by Oakland

police officers and that he had asked for medical attention several times but was denied treatment

(G. Montoya Dep. 43–45). Amaro showed his mother several large bruises on both his face and

body in support of this assertion (id. at 44).

On or about April 18, Amaro sought medical treatment for his injuries and had 

x-rays taken of his chest and torso (Chanin Decl. Exh. 34). The examination by Dr. Angelica

Green revealed that Amaro had suffered five fractured ribs and a collapsed lung (ibid.; Green

Dep. 12; Chanin Decl. Exhs. 35, 36). Although Amaro appeared “stable,” Dr. Green

recommended that Amaro seek immediate emergency care to drain fluid from his chest, which

Amaro — according to Dr. Green’s notes in Amaro’s medical records — did not agree to do

(Chanin Decl. Exh. 34; Green Dep. 11, 17). Dr. Green also allegedly gave Amaro a paper — now

non-existent — stating that his injuries were caused by Oakland police, which Amaro supposedly

gave to his mother for safekeeping (G. Montoya Dep. 81–82).1

 Amaro told his mother that he

believed the paper was important to the lawsuit he intended to file against the City of Oakland (id.

at 73; 78–79). Between the time of his arrest and death, Amaro apparently told numerous

individuals that he had been beaten by Oakland police officers, showing them his x-rays as

evidence of his injuries (id. at 64–67; 90; Galindo Dep. 160). 

Amaro died at the home of Gilbert Becerra on April 21, 2000 (Galindo Dep. 159; Chanin

Decl. Exh. 37). According to the sworn testimony of Dr. Sharon Van Meter, the physician who

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performed Amaro’s autopsy and prepared his autopsy report, the five rib fractures suffered by

Amaro could only have been caused by “considerable force” beyond “being gently hit or falling .

. . on the floor” (Van Meter Dep. 28). In other words, Mr. Amaro’s multiple rib injuries were

either caused by “a severe blow” or “multiple blows . . . at multiple times” (id. at 23–24, 28). The

autopsy report prepared by Van Meter on April 23 described Amaro’s cause of death as

“brochopneumonia and hemothorax due to multiple rib fractures due to blunt trauma to the chest”

(Chanin Decl. Exh. 59). In other words, someone beat him severely and he died as a result.

Amaro’s death was investigated by a team of Oakland homicide investigators led by

Sergeant Gus Galindo. To be clear, it appears that numerous investigators were working under

Galindo and reporting back to him on their findings. On the morning of Amaro’s death, these

investigators interviewed Becerra. He said that when Amaro had arrived at his home the evening

before, he did not appear to be doing well (Galindo Dep. 159–160). Becerra told homicide

investigators that Amaro had told him that his injuries were caused by being beaten by police

during a recent arrest (id. at 160). Becerra’s statement appeared in the “Crime Report” filed by

the homicide investigators who responded to the 911 call reporting Amaro’s death (Chanin Decl.

Exhs. 37). 

A “Follow-Up Investigation Report” originally filed by Galindo on the day of Amaro’s

death also documented these statements by Becerra (Chanin Decl. Exh. 42 at 1, 2). This order

notes that this follow-up investigation report appears to have been continually updated throughout

the course of the homicide investigation, which extended well after February 21, 2000. In

addition to Becerra’s statements, the report contained a notation that “[h]ypodermic needles and

narcotic paraphernalia” were located in Becerra’s basement around Amaro’s body (ibid.). This

follow-up report, as well as Sergeant Galindo’s sworn deposition, also indicated that Galindo (or

the team of homicide investigators that were reporting to him) sought and reviewed Amaro’s

March 23 arrest report at around noon on April 21 — the same day that Amaro passed away —

and found that “[t]here was no indication [in the arrest report] that force was used by the officers”

during the arrest (id. at 2; Galindo Dep. 56). At or around that time, Galindo was informed by the

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deputy coroner’s office that Amaro’s death did not seem unusual and was “a possible drug

overdose” (Chanin Decl. Exh. 42 at 2). 

Galindo and his team of homicide investigators, however, discovered at around 1:30 p.m.

on April 21 that the intake correctional officer present at the police station on March 23 had

documented that Amaro had complained of rib pain when taken into custody following his arrest

(id. at 3). By 4 p.m. that same day, homicide investigators had (1) spoken with Dr. Green, who

told investigators that Amaro alleged he had been beaten by police and had suffered broken ribs

and possibly a punctured lung, (2) reviewed the Oakland County Jail nurses log that indicated

Amaro had complained numerous times of rib pain and being hit by police, and (3) identified a

witness to the March 23 arrest, Laureen White, who had seen Oakland police beating an

individual matching Amaro’s description (ibid.; Galindo Dep. 62–64). 

At or around 5:30 p.m. on April 21, Sergeant Galindo went to Amaro’s residence to

inform plaintiff Geraldine Montoya (Amaro’s birth mother) and Lou Montoya (Amaro’s step

father, who is not a party to this action) that Amaro had passed away (id. at 4; G. Montoya Dep.

74–81). According to Geraldine Montoya’s deposition and sworn declaration, Sergeant Galindo

informed her that “a gang beat [Amaro] up” and that his death was “gang related, and [Amaro]

died in the street” because he was “mixed up with a gang and drugs” (G. Montoya Dep. 75–79; G.

Montoya Decl. Exh. A ¶ 5). He does not deny he said this. In response, she informed Galindo

that her son was not in a gang, did not do drugs, and that her son had told her that he had been

beaten during a recent arrest by Oakland police officers (G. Montoya Decl. Exh. A ¶ 6; Galindo

Dep. 65–66). Amaro’s step-father also informed Galindo of Amaro’s allegations regarding his

alleged beating by Oakland police officers (G. Montoya Decl. Exh. A ¶ 7). Despite being told

these allegations, Galindo continued to represent to both Montoyas that Amaro’s death was due to

gang involvement or drug use (ibid.). 

In his deposition, Sergeant Galindo testified that while he remembered hearing the

allegations from the Montoyas regarding Amaro being beaten by Oakland police, he “d[id]n’t

recall exactly what [he] told them” regarding Amaro’s death because “[he] did not know what

[Amaro] died of at that point” (Galindo Dep. 66). This was, according to Galindo, “standard

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police investigation” to see what the Montoyas knew first before giving them any details about

Amaro’s death (id. at 67). That said, Sergeant Galindo admitted that “there were things coming

out at that point of the investigation” supporting the Montoyas’ claim that Amaro had been beaten

by police (ibid.). Galindo, however, did not reveal this corroborating information to the

Montoyas because he “[di]dn’t want to contaminate any statement they g[a]ve” to him by giving

them information up front (ibid.). Even after he took a statement from Geraldine Montoya,

however, Galindo did not inform the Montoyas that a witness to the alleged beating, Laureen

White, had been discovered, or any other evidence existed that corroborated their claim that

Amaro was beaten (id. at 67–68). After the April 21 conversation, Sergeant Galindo does not

recall ever speaking with Geraldine or Lou Montoya again (id. at 107–108). 

According to Geraldine Montoya, however, she spoke with Sergeant Galindo via

telephone on April 22, the day after her son’s death, to seek the release of Amaro’s body from the

morgue and to try to obtain copies of the police reports concerning her son’s death (G. Montoya

Decl. Exh. A ¶ 8). According to Montoya, Galindo denied her request to release Amaro’s body

until after an autopsy had been conducted — which was performed the next day — and informed

Montoya that she would not have access to any police reports because the matter was still under

investigation (ibid.). Later that week, Geraldine Montoya visited the police administration

building in person to attempt to obtain police records concerning the death of her son. That

request was too denied. The matter still “under investigation” (id. ¶ 9). While at the police

building, Ms. Montoya attempted to speak with Sergeant Galindo. Galindo, however, was

“unavailable.” She left her name and phone number with a request for him to call her back

(ibid.). Approximately a month and a half later, Sergeant Galindo phoned Geraldine Montoya. 

Galindo was allegedly “very rude and brusque.” He questioned her “Why do you need the [police

and autopsy] reports?” (id. ¶ 10). After Montoya told Sergeant Galindo that she wanted to find

out why her son died, he allegedly told her that he was “too busy” to speak to her and then hung

up the phone (ibid.).

Because Amaro had been in police custody within a reasonable period of time prior to his

death and there were early indications that “some force” was used to arrest Amaro on March 23,

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based upon a “totality of the circumstances,” Sergeant Galindo and his team of homicide

investigators treated Amaro’s death as an “in custody” homicide (Berlin Dep. 39–40). To be

clear, this was not a “new” homicide investigation, but a continuation of the same investigation

that began with the discovery of Amaro’s body.

During the course of this homicide investigation, Galindo and other investigators

developed concerns that the officers involved in Amaro’s arrest may not have been telling the

truth or had, at the very least, provided an incomplete account of the events that occurred on

March 23, 2000 (Berlin Dep. 73–76; Chanin Decl. Exh. 42). Specifically, Galindo attended

Amaro’s autopsy conducted by Dr. Van Meter, and learned that Amaro’s rib injuries were

inflicted three-to-five weeks prior to Amaro’s death. Later that day, an interview with witness

Lauren White revealed that she had witnessed officers “us[ing] their right fists to strike down

towards an object she later realized was a male Hispanic” (Chanin Decl. Exh. 42 at 5). Over the

next three days, other witnesses and interviews, including a follow-up interview with Dr. Van

Meter, provided evidence supporting the conclusion that force was used during Amaro’s arrest

despite the absence of any use of force in the police reports, and that this use of force was the

cause of his death (id. at 5–12). On April 26, Sergeant Galindo received unsubstantiated

information that some police officers who had already given statements to homicide investigators

“may change their initial summary” of the incident (id. at 10). 

Galindo briefed Oakland Police Chief Richard Word, who is also a named defendant in

this action, about the homicide investigation on April 27, telling him “that the information . . .

received from the officers that had been interviewed was not what actually happened based on

what we were learning in the investigation” (Galindo Dep. 20). Chief Word then referred the

matter to Oakland Police Department’s Internal Affairs Division on April 27 to begin a separate

IA investigation (Chanin Decl. Exh. 42 at 10). According to Lieutenant Paul Berlin, who was

present when Sergeant Galindo debriefed Chief Word on the investigation, this decision by Chief

Word to refer the investigation to IA was necessary because “[a]ll the officers had given

statements under Miranda during the criminal investigation, and he felt that the only way to try to

get the officers to tell the truth . . . was to grant immunity to the officers, and the only way [the

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 In their depositions, various officers refer to Lybarger immunity. This immunity is

conferred under Lybarger v. City of Los Angeles, 40 Cal.3d 822 (1985), and precludes the

use in subsequent criminal proceedings of statements coerced or compelled from a public

employee under threat of dismissal during an administrative hearing. 

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police department] could do that was to take it to internal affairs” (Berlin Dep. 85–88).2

 That

same day, Alameda District Attorney Thomas Orloff was briefed on the homicide investigation,

and then directed homicide investigators to debrief the deputy district attorney assigned to the

case (Chanin Decl. Exh. 42 at 10). On May 10, 2000, the deputy district attorney concluded that

there was insufficient evidence to file charges against the officers (id. at 12). The homicide

investigation was then designated as “unfounded” that same day, and was never reopened (ibid.).

The IA investigation — which was a separate investigation from the homicide

investigation and did not involve Sergeant Galindo — was completed on August 14, 2000, over

three months after the homicide investigation was closed. The final IA report included the

following findings (Chanin Decl. Exh. 9 at 26):

Jerry Amaro was severely injured during his arrest of 23 Mar 00. 

His five broken ribs were most likely a result of being forcibly

taken to the sidewalk, but there were at least five officers who used

some form of physical prowess on the 140 pound Amaro. There is

no documentation of any use of force in the [police] report. While

the force used by the officers in this case was justified, there is no

indication of any resistance on the part of Amaro or explanation

for the use of force in the report. Unfortunately, this was not an

anomaly for the operation that night.

There is very little doubt Amaro was struck by officers during his

arrest.

The report then discussed the credibility of numerous witnesses to the arrest of Amaro, including

an individual who “like[d] the police but did think the officers used too much violence in most of

their arrests that night,” and stated that “Amaro was struck by the uniformed officers arresting

him” (ibid.). Additionally, the report found that signatures were forged on the police reports for

Amaro’s March 23 arrest, the use of force was unacceptably left out of the police reports, and that

officers were “derelict” in not responding to Amaro’s requests for medical treatment (id. at

25–27). Finally, the IA investigation concluded that defendant Poulson inappropriately met with

other officers prior to their being interviewed by IA investigators, and that his failure to

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 As cited earlier in this order, Dr. Van Meter’s sworn deposition, as well as

statements made to Sergeant Galindo, are inconsistent with the opinion attributed to her in

the IA report.

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adequately handle or document Amaro’s complaint of pain, passed on to him by some officer,

could easily be considered contributory to his death” (id. at 27–28).

Notably, the IA investigation was only directed at “[u]ntruthfulness concerning a death in

custody investigation,” and not on whether excessive force had actually been used by the officers

or whether Amaro had died as a result of excessive force (Chanin Decl. Exh. 42 at 1; Rachael

Dep. 98–100). That said, the IA report noted that Dr. Van Meter, who performed the autopsy on

Amaro, told IA investigators that Amaro’s rib injuries were “not consistent with a blow and more

likely resulted from falling to the ground” (id. at 25).3 Additionally, according to Lieutenant

Berlin, the decision by Chief Word to debrief the District Attorney’s office before the IA

investigation was completed was because the Mirandized statements from the police officers were

“locked,” and any evidence from the IA investigation that officers had changed their story could

not be used by homicide investigators and the District Attorney’s office to determine if there was

evidence of excessive force (Berlin Dep. 138–139). As such, the IA report was never presented

to the District Attorney’s office for reconsideration of whether charges should be filed or whether

the homicide investigation should be reopened.

Geraldine Montoya was never informed about the outcome of either the homicide or IA

investigation, and no efforts were made to do so (G. Montoya Decl. Exh. A; Rachael Dep. 84). 

According to Lieutenant Berlin, the protocol at the time of Amaro’s death was that the Coroner’s

Office — not the Oakland Police Department — would notify a victim’s family if foul play was

suspected in the victim’s death (Berlin Dep. 44). Chief Word, when asked if there was any policy

or practice in 2000 about informing relatives of victims involved in an in-custody death

investigation about the outcome of that investigation, stated that he “kn[e]w of no such policy”

and “couldn’t speak to the practice at homicide,” but that “there may have been a practice” and

“[c]ertainly in the more typical Oakland homicide, [investigators] maintain contact with family

members” (Word Dep. 89). This was because family members were “often a key source of

information” (ibid.). When prompted if there was any other reason why family members would

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 This statement was apparently made when Montoya attempted to meet with

Sergeant Galindo in person during the week following Amaro’s death.

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be, as Word put it, “consulted and kept informed as to the status of the investigation,” he simply

answered “[r]espect” (ibid.). 

As for informing family members of IA investigations, Captain Anthony Rachal testified

that if a member of the public told the Oakland Police Department in 2000 that police officers had

beaten up a family member, the allegation would “more than likely” be treated as a complaint of

misconduct against the police department and investigated by Internal Affairs (Rachal Dep.

84–87). The complainant would then receive a letter summarizing the allegations as well as the

results of the IA investigation (id. at 84). Chief Word confirmed that this policy or practice of

informing complainants of the results of IA investigations existed in 2000 (Word Dep. 90–91). 

Additionally, when asked “[i]f a family member told a police officer that they had information

that the police beat their son and he died as a result, would that be considered a complaint,” Chief

Word responded “I would think so” because “it’s an allegation” that “[i]f proven true [would be]

a violation of policy of law” (id. at 91).

Montoya’s documented complaint to Sergeant Galindo on April 21 that her son’s injuries

were caused by Oakland police officers was not treated as an IA complaint, and therefore no

complaint of Amaro’s alleged beating was filed with Internal Affairs. Because the IA

investigation that did occur was initiated from within the Oakland Police Department, Amaro’s

family — under policy and practice at the time — did not receive notice of it (Rachal Dep. 84–87;

Word Dep. 90–91). In sum, aside from being told by Sergeant Galindo on April 21, 2000, that

her son was killed by gang members or drugs, plaintiff Geraldine Montoya received no

information regarding the death of her son from the Oakland Police Department, even though she

asked for police and autopsy reports from the police department soon after her son’s death. 

Montoya’s only indication from Oakland police that something might have been improper

regarding the death of her son was that an investigation was occurring, and a statement to her

made by a pathologist at the police station that “there’s apparently something here” with the

investigation that “nobody’s going to give away” (G. Montoya Dep. 154).4

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 As the IA report and depositions indicate, Timothy Murphy and Theresa Batts, both

witnesses to the arrest of Amaro, actually saw the fliers put up in the neighborhood by

Amaro’s family, but chose not to contact plaintiffs (Chanin Decl. Exh. 9; Batts Dep. 31).

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Following Amaro’s death, his family put up posters throughout the neighborhood seeking

information about the March 23 arrest (id. at 156–57, 160). The posters stated that Amaro had

been arrested on March 23, 2000, that he had been beaten by “6 task force officers,” and that he

had sustained numerous broken ribs as a result of the beating but had been refused medical

attention while in jail (Chanin Decl. Exh. 5). During this time period, Geraldine Montoya also

approached approximately five Oakland attorneys — including her current counsel, John Burris

— to pursue her son’s claim (G. Montoya Dep. 152). At that time, she had not found any

witnesses to the arrest of her son, and had received no police or autopsy reports corroborating her

son’s claim (G. Montoya Decl. Exh. A ¶¶ 11, 12). No lawyer was willing to take her case without

corroboration of Amaro’s claims, especially given the fact that Sergeant Galindo had informed

Montoya that her son’s death was caused by gang activity or drug use (G. Montoya Dep.

152–153; G. Montoya Decl. Exh. A ¶ 11).5

On September 13, 2000, Geraldine Montoya filed a government claim against the City of

Oakland, based solely upon her son’s allegations of excessive force during his March 23 arrest 

(G. Montoya Dep. 144–147; Rowell Decl. Exh. 6). While this claim was filed in pro per, her

current counsel — Attorney John Burris — assisted Montoya in putting the document together 

(G. Montoya Dep. 146). According to Montoya, this claim was filed in order to preserve her right

to bring a claim under state law while she continued to try to uncover evidence to corroborate her

son’s claims (G. Montoya Decl. Exh. A ¶¶ 13, 14). The government claim was brought on behalf

of “the Estate of Jerry Amaro III and Geraldine Montoya” and asserted that Amaro was subjected

to excessive force during the course of his arrest on March 23, 2000 (Rowell Decl. Exh. 6). It

further alleged that Amaro complained of pain while incarcerated and that authorities failed to

provide him with medical treatment, and that Amaro died as a result of the excessive force (ibid.). 

The claim sought damages for the violation of Amaro’s constitutional and civil rights and failure

to provide medical care, as well as loss of support, society, and comfort on behalf of Geraldine

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6

 Defendants’ objections to Exhibit 68 are overruled. The news article cited is not

being offered for the truth of the matters asserted, but rather for their effect on plaintiffs’

decision to file this lawsuit. All other evidentiary objections raised by defendants are denied

as moot, since they are not relied upon or cited by this order.

12

Montoya (ibid.). Montoya does not recall ever receiving a formal rejection of the claim (id. ¶ 13). 

After filing this government claim, Montoya attempted one last time to obtain a copy of

police reports concerning her son’s arrest and subsequent death in November 2000 (id. ¶ 15;

Chanin Decl. Exh. 74). While both the homicide and IA investigations had long since concluded,

her written request was denied because there was an “outstanding warrant” for her son, who all

concerned knew was dead (Chanin Decl. Exh. 74). 

* * *

More than eight years then passed. In January 2009, news reports surfaced that the FBI

had begun an investigation into defendant Poulson based upon allegations involving the March 23

arrest and subsequent death of Amaro (ibid.; Chanin Decl. Exh. 68).6

 The FBI — according to

these news reports — had received tips that Poulson had “kicked” Amaro during the arrest,

thereby breaking his ribs, but had covered it up by instructing subordinate officers to lie (Chanin

Decl. Exh. 55). Attorney Burris filed the instant action on March 2009, after the abovementioned news reports purportedly provided “facts sufficient to commence litigation” (Opp. 14).

Shortly thereafter, defendants moved to dismiss plaintiffs’ claims as time-barred under the

applicable one-year statute of limitations (Dkt. No. 17). The motion was denied, since plaintiffs

had shown “a plausible factual basis for their argument” of equitable estoppel (Dkt. No. 32). 

Discovery then proceeded on all issues, leading to the instant motion.

ANALYSIS

Summary judgment is granted under Rule 56 when “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” A district court must

determine, viewing the evidence in a light most favorable to the nonmoving party, whether there

is any genuine issue of material fact. Giles v. General Motors Acceptance Corp., 494 F.3d 865,

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872 (9th Cir.2007). A genuine issue of fact is one that could reasonably be resolved, based on the

factual record, in favor of either party. A dispute is “material,” however, only if it could affect

the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248–49 (1986). 

Defendants’ instant motion is made on the following grounds: (1) as to all plaintiffs and

causes of action, all claims are barred by the statute of limitations; (2) as to plaintiff Stephanie

Montoya (Amaro’s sister), she has standing only with respect to her equal protection claim; (3)

there is no merit to plaintiffs’ equal protection claims; and (4) as to plaintiffs’ substantive due

process claims, defendants are entitled to judgment as a matter of law because there is no

evidence of any intent on the part of any defendant to interfere with plaintiffs’ familial

relationships (Br. 1). There arguments are now addressed in turn.

1. STATUTE OF LIMITATIONS

The limitations period in this action ran long ago. As such, plaintiffs’ right to bring their

claims depends upon the applicability of equitable estoppel.

Equitable estoppel, also referred to as fraudulent concealment, “focuses primarily on the

actions taken by the defendant in preventing a plaintiff from filing suit . . . [including] the

plaintiff’s actual and reasonable reliance on the defendant’s conduct or representations.” Santa

Maria v. Pac. Bell, 202 F.3d 1170, 1176 (9th Cir. 2000). In federal civil rights actions, such as

the one brought by plaintiffs here, California equitable estoppel law applies to the extent it is not

inconsistent with federal law. Azer v. Connell, 306 F.3d 930, 936 (9th Cir. 2002). Under

California law, plaintiff carries the burden of pleading and proving the following elements of

equitable estoppel:

(1) the party to be estopped must be apprised of the facts; (2) that

party must intend that his or her conduct be acted on, or must so

act that the party asserting the estoppel had a right to believe it was

so intended; (3) the party asserting the estoppel must be ignorant

of the true state of facts; and (4) the party asserting the estoppel

must reasonably rely on the conduct to his or her injury.

Honig v. San Francisco Planning Dep’t, 127 Cal.App.4th 520, 529 (2005). This rule is “similar

to and not inconsistent” with federal law, as both “focus on actions taken by the defendant which

prevent the plaintiff from filing on time.” Lukovsky v. City and County of San Francisco, 535

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F.3d 1044, 1052 (9th Cir. 2008); see also Santa Maria, 202 F.3d at 1176 (setting forth the federal

rule for equitable estoppel and noting that courts must also consider “the extent to which the

purposes of the limitations period have been satisfied”). 

This order has put forth a rich factual record to illustrate the full scope of activity on both

sides of this dispute during the period immediately following Jerry Amaro’s arrest and death. 

Defendants, however, would deem the vast majority of these facts irrelevant. Indeed, in their

opening brief, defendants rely solely upon evidence that plaintiff Geraldine Montoya believed and

had evidence prior to and after her son’s death that he had been beaten by Oakland police and had

been refused medical treatment to prove that equitable estoppel should not apply (Br. 3).

Specifically, defendants highlight the following five undisputed facts: (1) plaintiff

Geraldine Montoya had been told by her son that he had been beaten and had been refused

medical treatment by Oakland police officers; (2) she had (or believed she had) in her possession

a note from Amaro’s physician, given to her by her son, that stated that her son’s broken ribs and

collapsed lung were caused by Oakland police; (3) she helped her family put up posters around

the neighborhood after her son’s death that demonstrated knowledge of the facts underlying her

claims; (4) she approached attorneys in 2000 to file a claim on behalf of her son; and (5) she

actually filed a government claim in September 2000 that included nearly the same claims as in

the instant action. 

This proves, according to defendants, that plaintiff Geraldine Montoya had in her

possession a sufficient factual basis to file the instant litigation, and uncover — through the use of

discovery — all the information that plaintiffs’ believed had been fraudulently concealed by the

Oakland Police Department. Moreover, these facts also prove, according to defendants, that

Geraldine Montoya could not have reasonably relied upon Sergeant Galindo’s representations that

Amaro had been killed by gang members or drugs. As such, defendants argue that under Gibson

v. United States, 781 F.2d 1334, 1345 (9th Cir. 1986), the doctrine of equitable estoppel cannot

apply (Br. 8–15).

In Gibson, the plaintiffs alleged that the FBI had conspired to confiscate documents from

their garage, and then burn it down to cover its misdeeds. 781 F.2d at 1343. They alleged further

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 This order rejects counsel’s theory that, under Rule 11, there was insufficient

evidence to file a Section 1983 action against the police. Even under Iqbal, if a son or

daughter tells a parent that the police used excessive force to beat the child, shows the parent

the bruises, tells the parent that the police denied requested medical attention while in

custody, seeks a doctor’s aid upon release, and then dies from the injuries sustained, the

parent, as a plaintiff, has enough to satisfy Rule 11 — as does the parent’s lawyer. The

lawyer may desire stronger evidence as a matter of identifying stronger cases, but even

without additional evidence, a parent’s first-hand knowledge of what the decedent child had

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that the FBI attempted to hide its complicity by filing a concocted account of the incident with the

Los Angeles fire department. Id. at 1344. The Ninth Circuit rejected the plaintiffs’ equitable

estoppel claim, holding that the plaintiffs could not reasonably have relied on the allegedly

fraudulent representation because an incendiary device was discovered immediately after the fire. 

Thus, plaintiffs knew that the fire was not accidentally ignited. Additionally, plaintiffs failed to

allege that they undertook diligent efforts within the limitations period to identify the source of

the fire. Id. at 1345. As such, equitable estoppel could not apply.

Defendants then conclude their argument by characterizing plaintiffs’ equitable estoppel

claim as “little more than the assertion that the police officers told a story that was different from

what Mr. Amaro told his mother,” cautioning that “if denial of liability and a contrary version of

the facts is enough to show fraudulent concealment, then every case would be subject to

challenge, and statutes of limitations would have no force and effect” (Br. 15).

Plaintiffs’ response to defendants’ argument is largely unpersuasive. First, plaintiffs

argue that defendant Poulson’s invocation of his Fifth Amendment testimonial privilege should

result in the Court drawing “adverse inferences” against him, including that “[d]efendant Poulson

actively and fraudulently concealed to what happened to Mr. Amaro” (Opp. 16–17). This

argument, however, ignores equitable estoppel’s requirement of reasonable reliance, since there is

no evidence in the record that plaintiffs relied, or could have relied, on any actions taken by

Poulson. Second, both parties argue over whether Geraldine Montoya could have filed her suit

within the limitations period under Rules 8 and 11 of the Federal Rules of Civil Procedure, and

the pre-Iqbal world of notice pleading (Br. 13; Opp. 17–22).

The doctrine of equitable estoppel, however, does not turn on ebb and flow of federal

pleading standards.7

 Rather, it is built upon a “foundation of conscience and fair dealing” and the

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said is enough to satisfy Rule 11. 

8

 As mentioned earlier, the “piece of paper” was likely a copy of the medical report

for Amaro’s examination by Dr. Green that merely repeated Amaro’s allegations that he had

been beaten by police (Green Dep. 13).

9

 Filing such a claim does not bar applicability of equitable tolling. See UA Local

343 v. Nor-Cal Plumbing, Inc., 48 F.3d 1465 (9th Cir. 1994) (holding that equitable estoppel

applied even though plaintiff had filed an earlier NLRB charge against defendant). 

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tenet that “no man may profit from his own wrongdoing in a court of justice.” Lantzy v. Centex

Homes, 31 Cal.4th 363, 383 (2003); City of Long Beach v. Mansell, 3 Cal.3d 462, 488 (1970). 

In light of these principles, Gibson does not bar the application of equitable estoppel to

this case. While it is clear Geraldine Montoya, as the victim’s mother, believed her son’s

allegations that he had been beaten by police officers and had been denied medical treatment prior

to and after his death, she had no evidence to support this claim other than his allegations, the fact

that he had been injured, and a “piece of paper” supposedly from Amaro’s examining physician,

Dr. Green, that he had been beaten by police.8 This falls far short of the literal smoking gun

discovered by plaintiffs in Gibson — namely, the incendiary device that provided compelling

proof that arson had been committed. 781 F.2d at 1345. 

Troubling to the Court’s conscience and sense of fair dealing is that Geraldine Montoya

and Amaro’s family diligently tried to obtain evidence to corroborate their suspicions. Montoya

approached the Oakland police department three separate times — the final attempt being nearly

eight months after her son’s March 23 arrest — to try to obtain documents pertaining to her son’s

arrest and death. All attempts were rebuffed. Fliers were put up in the community. No witnesses

came forward. Legal advice was solicited from at least five attorneys. Each told Montoya that

she needed something tangible, like documentation, to bring a worthwhile civil rights claim

against the City of Oakland and the Oakland Police Department. On top of all this, Montoya even

filed a government claim to diligently attempt to preserve her claim.9

 As such, it is clear that

unlike the plaintiffs in Gibson, Geraldine Montoya did exercise diligence in trying to preserve her

claims.

Most troubling of all, however, is that the Oakland Police Department affirmatively

misled the Montoyas as to what had occurred. Geraldine and Lou Montoya told Sergeant Galindo

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of Amaro’s allegations of being beaten by Oakland police officers and having been refused

medical treatment. Sergeant Galindo replied that Amaro’s injuries were caused by gang violence,

and that their son had been involved in a drug-related murder by gang members. He knew this

was not the truth, or so a reasonable jury could conclude. Galindo never revealed to the

Montoyas that there was any evidence supporting their allegations, despite knowing otherwise. 

Also troubling is the fact that Sergeant Galindo noted the Montoyas allegations of

excessive (or at least questionable) force in his homicide log, but failed to submit a formal

complaint to the Internal Affairs department regarding the alleged police misconduct. The record

supports a finding that it was practice, if not procedure, in 2000 for Oakland police officers to

report such complaints to Internal Affairs for further investigation. Had such a complaint been

filed, the Montoyas would have received a written report summarizing the findings of the IA

investigation into those allegations, and could have used this information to file this action. And

why wasn’t the victim’s family kept informed as to the status of the homicide investigation into

the death of their own son, which Police Chief Word said was common practice for typical

Oakland homicide investigations? Had the victim’s family been apprised of the investigation,

they might have learned of the numerous witnesses who had provided statements to police, or at

the very least, the suspicious results of their son’s autopsy report. Any one of these sources of

information could have corrected the affirmative misrepresentations made by Officer Galindo to

the victim’s family.

Instead, plaintiff Geraldine Montoya was stonewalled in every attempt she made — within

the limitations period, this order adds — to obtain evidence to corroborate her deceased son’s

allegations, and disprove the false story told by Sergeant Galindo. On this point, the undersigned

acknowledges that records of ongoing criminal investigations are (and were, at the time of these

events) exempt from disclosure under the Public Records Act. See Cal. Gov. Code § 6254(f); see

also Williams v. Superior Court, 5 Cal.4th 337, 348–350 (1993). This exemption, however, was

far from absolute. While police had the right to withhold the police reports themselves, Section

6254(f) required police to disclose certain information within those records — such as “the names

and addresses . . . [and] statements of all witnesses, other than confidential informants, to the

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victims of an incident, or an authorized representative thereof” as well as “the factual

circumstances surrounding the arrest” of “every individual arrested by the agency.” Cal. Gov.

Code §§ 6254(f), (f)(1). The only statutory exception to this requirement is if the disclosure of

such information would have “endanger[ed] the safety of a witness” or “the successful completion

of the investigation[.]” Ibid. Here, there is no evidence that any of the witnesses to Amaro’s

beating would have been endangered by such a disclosure. Moreover, the only threat to the

police’s “successful completion of the investigation” was the possibility that plaintiffs would

have filed a timely suit. Finally, Geraldine Montoya’s written request for her son’s police reports

in November 2000 was months after all investigations into her son’s death had ended. As such,

“the successful completion of [any] investigation” could not have been endangered by disclosure,

and the information and records should have been made available to her. This order also notes

that the reason given for the November 2000 denial — that her dead son had an “outstanding

warrant” — was ridiculous at best and more likely part of a cover-up. Had these police and

autopsy reports been made available to Ms. Montoya, it is a reasonable inference that plaintiffs

would have had sufficient documentation to bring their suit within the limitations period. 

Instead, plaintiffs reasonably relied upon the Oakland Police Department to hear their

allegations of misconduct and act upon them. “In performing their official functions, government

officers and employees owe unique duties of loyalty, trust, and candor to their employers, and to

the public at large.” Spielbauer v. County of Santa Clara, 45 Cal.4th 704, 725 (2009) (emphasis

added). Even in the face of troubling allegations concerning the misconduct of one of their own,

law enforcement must continue to be guardians of the peace and seek justice for members of the

public who rely upon them in this capacity. Indeed, in such a situation, law enforcement is in the

best position to look inward, investigate, and uncover the truth.

Here, the Oakland Police Department breached their duties of loyalty, trust, and candor to

plaintiffs. Jerry Amaro’s death was the subject of both a homicide and IA investigation involving

the very allegations of misconduct plaintiffs presented to the police. Despite this fact, the only

information police provided to the victim’s family was the false story that Amaro had been beaten

and killed by gang members due to drug involvement. Even if this affirmative misrepresentation

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10 Both parties raised the issue of whether plaintiff Geraldine Montoya’s alleged

mental incapacity should be considered in determining whether equitable estoppel should

apply. Because this order does not rely on Montoya’s mental capacity, neither party’s

arguments on this issue are addressed.

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had not been made by Sergeant Galindo, Oakland police knew within hours of investigating

Amaro’s death that plaintiffs’ allegations had supporting evidence, and either should have

instigated an IA investigation on plaintiffs’ behalf or kept Amaro’s family apprised of the status

of the homicide investigation. Neither happened here. Every time Geraldine Montoya diligently

tried to obtain information from the police department, she met a stonewall. Under these facts,

this order finds that the defendants had an affirmative duty to correct the false statements made to

the victim’s family, file an IA claim based upon the Montoyas’ allegations of excessive force, or

keep the victim’s family — who were obviously not suspects in the death of Amaro — apprised

of the homicide investigation. None of these actions were taken.

Given these and all other reasons discussed above, it would not serve the principles of

equitable estoppel or the purposes of the limitations period to bar plaintiffs claims in this action. 

Plaintiffs have, at the very least, provided sufficient evidence to take to the jury the issue of

whether under these facts, Sergeant Galindo intended plaintiffs to rely on his statement and not

file suit, plaintiffs had a right to believe it was so intended, plaintiffs knew the true state of facts

to bring their claim, and plaintiffs’ reliance on Sergeant Galindo’s statement was reasonable. As

such, defendants’ motion seeking to bar plaintiffs’ claims under the statute of limitations must be

DENIED.

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2. ISSUES OF STANDING

Defendants separately challenge the standing of both Geraldine Montoya and Stephanie

Montoya, the mother and sister of Amaro, to bring equal protection and substantive due process

claims against defendants under the Fourteenth Amendment. 

First, defendants argue that nothing in the record suggests any injury caused by an intent

to discriminate against plaintiffs because of their membership in a protected class (Br. 17). 

Plaintiffs expressly declined to oppose this assertion to “narrow the case for trial” (Opp. 22). As

such, defendants’ motion with respect to plaintiffs’ equal protection claims is GRANTED.

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Second, defendants target the substantive due process claims raised by Geraldine and

Stephanie Montoya. With respect to both Montoyas, defendants ask the Court to disregard Ninth

Circuit precedent set forth in Ward v. City of San Jose, 967 F.2d 280 (9th Cir. 1991), and Smith v.

City of Fontana, 818 F.2d 1411, 1420 n.12 (9th Cir. 1987), and hold that a substantive due

process claim based upon a deprivation of a liberty interest due to interference with familial

relations must show a specific intent to interfere with the familial relation itself above and beyond

an injury to the family member (Br. 18). To support this good faith argument, defendants cite to

numerous decisions from our sister circuits — specifically, the First, Third, Fourth, Sixth,

Seventh, Eighth, Tenth, and D.C. Circuits — supporting their proposed rule of law (Br. 18). 

Under current Ninth Circuit precedent, however, plaintiffs need only show that the officials were

“more than merely negligent” to state such a claim, which the factual record supports. Smith v.

City of Fontana, 818 F.2d 1411, 1420 n.12 (9th Cir. 1987).

While the undersigned acknowledges that the prevailing winds on this issue blow in the

opposite direction of this circuit’s controlling case law, the Ninth Circuit recently reiterated that

the standards governing familial relations claims under the Fourteenth Amendment set forth in

City of Fontana remain applicable. See Crowe v. County of San Diego, — F.3d —, 2010 WL

293758, at *31 (9th Cir. 2010) (citing the familial relations rule in City of Fontana with

approval). As such, defendants’ motion for summary judgment seeking a good faith departure

from Ninth Circuit precedent is DENIED. No evidence of an intent to interfere with the plaintiffs’

familial relations is required — at least under current precedent — to maintain a familial relations

claims under the Fourteenth Amendment.

Third, defendants argue that Stephanie Montoya, as the decedent’s sister, lacks standing to

assert a familial relations substantive due process claim against defendants under Section 1983. 

In Section 1983 actions, the survivors of an individual killed as a result of an officer’s alleged

excessive use of force may assert a Fourth Amendment claim on that individual’s behalf if the

relevant state’s law authorizes a survival action. 42 U.S.C. 1988(a); Moreland v. Las Vegas

Metro. Police Dept., 159 F.3d 365, 369 (9th Cir. 1998). Under California Code of Civil

Procedure Section 377.30, a survival action may be commenced by a decedent’s personal

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representative or, if none, by the decedent’s successor-in interest. The party seeking to bring a

survival action bears the burden of demonstrating that a particular state’s law allows for such an

action and that she meets the state’s requirements. Moreland, 159 F.3d at 369. Here, the parties

agree that Geraldine Montoya is the successor-in-interest under Section 377.30. Stephanie

Montoya, however, is not alleged to have standing under Section 377.30 (Compl. ¶ 5; Opp. 24). 

As such, she is not authorized to bring a survival action for the excessive-force claim. 

With respect to Stephanie Montoya’s substantive due process claim, defendants also assert

that she lacks standing to bring her claim. Under the due process clause, both the parents and

children of a person killed by a government officer have standing to assert claims for their own

deprivations of liberty arising out of their loss of consortium. Moreland, 159 F.3d at 371; City of

Fontana, 818 F.2d at 1418. Under Ward, however, the Ninth Circuit clearly stated that siblings

do not have standing to assert such a claim. 967 F.2d at 284. 

While both parties agree that this is the law, plaintiffs nonetheless argue that Stephanie

Montoya has standing to bring her Section 1983 claim under the Fourteenth Amendment based

upon California’s wrongful death statute, California Code of Civil Procedure Section 377.60,

because she was a “dependent” of Amaro and a minor at the time of his death. In essence,

plaintiffs ask the Court to circumvent the rule in Ward and treat Stephanie Montoya as a de facto

child of Amaro under Section 377.60. This argument is unpersuasive. While Section 377.60

defines the range of individuals who may bring a wrongful death tort claim in California, it does

not (and cannot) define the outer bounds of constitutionally recognized liberty interests for

substantive due process claims brought under Section 1983. Indeed, plaintiffs cite to no binding

or persuasive case law supporting a departure from the clear rule set forth in Ward.

As such, this order declines to extend standing to Stephanie Montoya to bring her

substantive due process claims as the sibling of Jerry Amaro, and defendants’ motion on this issue

is GRANTED. Because this finding is not based upon “technical pleading issues,” plaintiffs’

request for leave to amend their complaint on this issue is DENIED. Stephanie Montoya does not

have standing to bring any of her claims in this action.

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3. CERTIFICATION UNDER 28 U.S.C. 1292(B)

The undersigned district judge is of the opinion that (1) this order involves a controlling

question of law as to which there is a substantial ground for differences of opinion, namely

whether the doctrine of equitable estoppel should apply where a plaintiff believes she has a

Section 1983 claim but is dissuaded from bringing the claim by affirmative misrepresentations

and stonewalling by the police, and (2) an immediate appeal from this order may materially

advance the ultimate termination of the litigation, especially since a different outcome in the court

of appeals would end the litigation. The undersigned therefore certifies the question for

interlocutory appeal under 28 U.S.C. 1292(b). Defendants have TEN DAYS to apply to the court

of appeals to permit an appeal. If such an application is timely made, the impending trial and

final preparations therefor will be postponed.

CONCLUSION

For the reasons set forth above, defendants’ motion for summary judgment pertaining to

plaintiffs’ equal protection claims and all claims brought by Stephanie Montoya is GRANTED. 

The motion with respect to all remaining issues is DENIED. 

IT IS SO ORDERED.

Dated: February 23, 2010. WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

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