Cervantes v. San Diego Police Chief Shelley Zimmerman

Decision Date12 March 2019
Docket NumberCase No. 18-cv-1062-BAS-NLS,Case No. 17-cv-1230-BAS-NLS
PartiesJAIRO CERVANTES, et al., Plaintiffs, v. SAN DIEGO POLICE CHIEF SHELLEY ZIMMERMAN, et al., Defendants. BRYAN PEASE, Plaintiff, v. SAN DIEGO COUNTY SHERIFF WILLIAM GORE, et al., Defendants.
CourtU.S. District Court — Southern District of California

CONSOLIDATED ACTIONS:

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT

These consolidated cases stem from a May 27, 2016 rally by then presidential candidate Donald Trump at the San Diego Convention Center. Protests took place and scuffles between anti-Trump and pro-Trump demonstrators occurred. The City of San Diego ("the City") and the County of San Diego ("the County") allegedly had a plan to and allegedly did violate First Amendment and Fourth Amendment rights by declaring an unlawful assembly and arresting and detaining the plaintiff protestors. Plaintiffs Jairo Cervantes1, Madison Goodman, Nancy Sanchez, and Brandon Steinberg are plaintiffs in the Cervantes case (the "Cervantes Plaintiffs") and Plaintiff Bryan Pease is the plaintiff in the eponymous Pease case, collectively the "Plaintiffs."

Plaintiffs move for leave to file a Proposed Fourth Amended Complaint ("PFAC") in Cervantes, the designated lead case. (ECF Nos. 71, 77.) The proposed complaint seeks to consolidate the current plaintiffs and defendants as well as the factual allegations and claims in both cases into one consolidated complaint. (ECF No. 71-2 Ex. 9 (redline PFAC).) The City and County Defendants in both cases jointly oppose Plaintiffs' motion. (ECF No. 75.) For the reasons herein, the Court grants in part and denies in part the motion for leave to amend.

RELEVANT BACKGROUND2

On June 16, 2017, eleven Plaintiffs initially filed suit in Cervantes against the City, San Diego Police Department ("SDPD") Chief Shelley Zimmerman, the County, San Diego County Sheriff William Gore, and San Diego County Sheriff's Department ("SDSD") Deputy Doe Defendants 1-50. (ECF No. 1.) These Plaintiffs alleged a Section 1983 municipal liability claim pursuant to Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), solely against the City and Zimmerman and four California state law claims against all Defendants. (Id.)Less than two months later, ten Plaintiffs amended their pleadings as of right. (ECF No. 3 (First Amended Complaint ("FAC").) These Plaintiffs sued the same named Defendants once more, but also named 500 SDPD and SDSD Doe Defendants allegedly involved in arresting and detaining the Plaintiffs or failing to prevent alleged constitutional violations on the day of the rally. (Id. ¶¶ 26-32.) The FAC expanded the Monell claim to include the County and Gore, alleged new Section 1983 claims for direct violations of Plaintiffs' First and Fourth Amendment rights, and re-alleged the four California state law claims. (Id. ¶¶ 43-83.) The City and Zimmerman answered the FAC. (ECF No. 5.) The County and Gore moved to dismiss. (ECF No. 6.)

Thereafter, Magistrate Judge Nita Stormes entered a scheduling order on November 6, 2017, which set January 5, 2018 as the deadline to join other parties, to amend the pleadings, or to file additional pleadings. (ECF No. 18 ¶ 2.) The Cervantes Plaintiffs moved to amend the FAC on this deadline, which was unopposed. (ECF Nos. 20, 22.) The Court granted the motion and Plaintiffs filed the Second Amended Complaint ("SAC"), which named 32 new individual SDPD officers as City Defendants and reduced the number of fictitious Doe Defendants to 469. (ECF No. 25.) The newly named City Defendant officers were incorporated into Plaintiffs' Section 1983 claims for direct violations of Plaintiffs' First and Fourth Amendment rights. (Id. ¶¶ 74-153.) The City, Zimmerman, and new City Defendant officers answered the SAC. (ECF Nos. 28, 34.) The County and Gore once more moved to dismiss. (ECF No. 31.) The Court granted the motion to dismiss and provided Plaintiffs leave to amend their allegations against the County and Gore one last time no later than May 7, 2018. (ECF No. 37.) The Cervantes Plaintiffs timely filed the operative Third Amended Complaint ("TAC"). (ECF No. 38.) The County and Gore did not move to dismiss again, but rather answered. (ECF No. 42.)

Between late March 2018 and December 2018, the Court entertained several requests from the parties, which generally stipulated to dismissal of various plaintiffs and numerous defendant officers initially named in the SAC and named again in the TAC. (ECF Nos. 35, 36, 56, 57, 60, 62, 65, 67.) The Cervantes Plaintiffs have winnowed down to the current four plaintiffs. The remaining Cervantes Defendants are the City, Zimmerman, the County, Gore and about a dozen SDPD officers.

Pease decided to file his own lawsuit related to the rally on May 29, 2018. (Pease, ECF No. 1.) He named as defendants the City, Zimmerman, the County, Gore, two SDPD officers, and SDSD Lieutenant Boudreau, alleging a Section 1983 Monell claim and Section 1983 claims for direct violations of his First, Fourth and Eighth Amendment rights. (Id.) The City and City Defendants answered. (Pease, ECF No. 3.) The County and Gore moved to dismiss, which the Court granted in part by dismissing the Eighth Amendment claim with prejudice and denied in part as to all remaining Section 1983 claims. (Pease, ECF Nos. 4, 11.) Gore answered. (Pease, ECF No. 15.)

On December 19, 2018, the Court ordered Cervantes and Pease consolidated, with Cervantes designated as the lead case. (ECF No. 68.) The Court did not order the filing of a consolidated complaint. (Id.) Several days after consolidation, Defendants moved under Rule 37(c) to exclude the Cervantes Plaintiffs from relying on certain emotional damages evidence the Cervantes Plaintiffs allegedly did not timely disclose. (ECF No. 70.) Plaintiffs filed the present motion for leave to file the PFAC a day later on December 28, 2018. (ECF No. 71.)

Since the filing of the latter motion, Judge Stormes has issued a Consolidated Scheduling Order, which does not alter the earlier deadline to amend in Cervantes and affirms that all fact discovery in Cervantes is closed with all remaining discoveryfor Pease set to close on April 19, 2019. (ECF No. 74.) The cases otherwise have been placed onto a uniform schedule for all remaining pre-trial deadlines. (Id.)

LEGAL STANDARDS

Rule 16(b) and Rule 15(a) govern consideration of the present motion for leave to amend. When a motion for leave to amend is filed after entry of a Rule 16 scheduling order, the motion "is governed first by Rule 16(b), and only secondarily by Rule 15(a)." Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999) (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992)). Pursuant to Rule 16, "[a] schedule may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). Granting leave to amend without applying Rule 16(b)'s requirements first "would render scheduling orders meaningless and effectively would read Rule 16(b) and its good cause requirement out of the Federal Rules of Civil Procedure." Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1419 (11th Cir. 1998). Thus, the party seeking leave to amend cannot simply "appeal to the liberal amendment procedures afforded by Rule 15," but rather must show good cause in the first instance. AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 952 (9th Cir. 2006); Johnson, 975 F.2d at 609.

If Rule 16(b) is satisfied, then the court considers the propriety of amendment pursuant to Rule 15(a). "[A] party may amend [its] pleading only by leave of court or by written consent of the party; and leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a)(2). "Rule 15(a) is very liberal[.]" AmerisourceBergen Corp., 465 F.3d at 951; Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). "This liberality . . . is not dependent on whether the amendment will add causes of action or parties.'' DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). Whether to grant a motion to amend depends on five factors: (1) bad faith, (2) prejudice to the opposing party, (3) futility,(4) undue delay, and (5) whether the plaintiff has previously amended. Western Shoshone Nat. Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991).

DISCUSSION3

The parties focus on the propriety of permitting all Plaintiffs to add Cinnamo as a newly named defendant and remove from the operative pleadings the express "official capacity" allegation for individual defendants. (ECF Nos. 71, 77.) There are also plaintiff-specific proposed amendments. The Cervantes Plaintiffs seek to add factual allegations regarding SDSD Officer Radasa and elaborate on the emotional damages claimed by Goodman, Cervantes and Sanchez. Pease seeks to add Officer Radasa as a defendant for his claims. The Court considers whether leave to amend is proper for each of these proposed amendments. In addition, the Court considers whether leave should be granted for new allegations of First Amendment viewpoint discrimination and "discrimination" by SDPD and SDSD officers against all Plaintiffs. The Court addresses these considerations in light of Rule 16(b)(4) and Rule 15(a) respectively.

A. Rule 16(b)(4) Standard

Two issues arise under Rule 16(b)(4). The first issue is whether all Plaintiffs are subject to Rule 16(b)(4)'s good cause standard. The Court concludes that only the Cervantes Plaintiffs must satisfy the Rule. The second issue is whether the Cervantes Plaintiffs have shown good cause to modify the deadline to amend set in the original Cervantes Scheduling Order. Good cause exists for some, but not all amendments the Cervantes Plaintiffs propose.

1. Only the Cervantes Plaintiffs Must Satisfy Rule 16(b)(4)

Plaintiffs do not question that Rule 16(b)(4)'s good cause standard applies to all amendments sought by the Cervantes Plaintiffs. (ECF No....

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT