1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 | Ger Chong Ze Chang, et al., No. 2:22-cv-01378-KJM-AC 11 Plaintiffs, ORDER 12 v. 1 County of Siskiyou, et al., 4 Defendants. 15 16 In this action, plaintiffs allege defendants unlawfully discriminated against them based on 17 | their race in violation of the United States Constitution and California State Constitution. 18 | Defendants move to dismiss the complaint. The court denies the motion. 19 | IT. REQUESTS FOR JUDICIAL NOTICE AND MOTION TO STRIKE 20 Both parties request judicial notice of documents outside the pleadings. Defs.’ Req. 21 | Judicial Notice, ECF No. 52-2; Pls.’ Req. Judicial Notice, ECF No. 57. Plaintiffs separately 22 | move to strike portions of defendants’ motion to dismiss and Exhibits D and E to defendants’ 23 | request for judicial notice. Mot. Strike, ECF No. 58. The motion to strike is fully briefed. Opp’n 24 | Mot. Strike, ECF No. 59; Reply Mot. Strike, ECF No. 61. 25 The court considers the requests for judicial notice first. The court grants defendants’ 26 | request for judicial notice in part as to Exhibits A, B and C—the minute order dismissing the 27 | related action in Lo v. Siskiyou County, No. 21-00999 (E.D. Cal.), the joint stipulation of 28 | dismissal filed in Lo, and the County of Siskiyou Ordinances 21-07 and 21-08, respectively. See
1 Fed. R. Evid. 201; Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (court may 2 consider “undisputed matters of public record,” including “documents on file in federal or state 3 courts,” in response to a motion to dismiss). The court also grants plaintiffs’ request for judicial 4 notice of the court’s order in the Lo case, enjoining the County from enforcing ordinances, the 5 joint stipulation noted above, two sets of minutes from Siskiyou County Board of Supervisors 6 meetings, a letter from the Siskiyou County Board of Supervisors, County Legislative 7 Information website page showing a comparison of California Assembly Bill 1448 to the final 8 version of the bill, and California Assembly Bill 1448. See Fed. R. Evid. 201; Harris, 682 F.3d at 9 1132; see, e.g., Kater v. Churchill Downs Inc., 886 F.3d 784, 788 n.3 (9th Cir. 2018) (taking 10 “judicial notice of the slideshow, meeting minutes, and pamphlet”). The court takes judicial 11 notice of the existence of these materials without assuming the factual accuracy of their contents, 12 as explained further below. 13 The court declines to take judicial notice of the facts recited in the injunction order in Lo. 14 See, e.g., Marsh v. San Diego County, 432 F. Supp. 2d 1035, 1043 (S.D. Cal. 2006) (“A court 15 may take judicial notice of the existence of matters of public record, such as a prior order or 16 decision, but not the truth of the facts cited therein.”); Zargarian v. BMW of N. Am., LLC, No. 18- 17 4857, 2019 WL 6111732, at *1 n.1 (C.D. Cal. Sept. 23, 2019) (collecting cases). Likewise, the 18 court declines to take judicial notice of a declaration and an affidavit filed by defendants in Lo— 19 defendants’ Exhibits D and E here—because the facts described in the declaration and affidavit 20 are not “generally known,” Fed. R. Evid. 201(b)(1), and the declarants are not “sources whose 21 accuracy cannot reasonably be questioned,” id. 201(b)(2); see also, e.g., Giganews, Inc. v. Perfect 22 10, Inc., No. 17-5075, 2018 WL 6118431, at *3 (C.D. Cal. Feb. 28, 2018) (similarly declining to 23 take judicial notice of declarations filed in other proceedings; collecting authority); see also 24 Opp’n Mot. Strike at 2 (conceding judicial notice would not be proper). 25 The court also will not consider the evidence recited in the injunction order in Lo under 26 the incorporation-by-reference doctrine. “[A] defendant may seek to incorporate a document into 27 the complaint ‘if the plaintiff refers extensively to the document or the document forms the basis 28 of the plaintiff's claim.’” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 1 2018) (quoting United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)). “[T]he mere mention 2 of the existence of a document is insufficient to incorporate the contents of a document.” Coto 3 Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010) (citing Ritchie, 342 F.3d at 908– 4 09)). Although plaintiffs refer to the preliminary injunction order in their operative complaint, 5 First Am. Compl. (FAC) ¶¶ 138–39, 173, 181, ECF No. 47, that order does not form the basis of 6 their claims. None of plaintiffs’ claims depend on the preliminary injunction order. Permitting 7 defendants to rely on this court’s summary of evidence produced in Lo also would improperly 8 permit defendants “to insert their own version of events into the complaint,” and thus wrongly 9 risk the improper dismissal of “otherwise cognizable claims.” See Khoja, 899 F.3d at 1002. 10 Because the court will not consider the evidence that is the subject of plaintiffs’ motion to 11 strike, that motion is denied as moot. See, e.g., Merlino v. United States, No. 90-1515, 1991 WL 12 152378, at *3 (W.D. Wash. May 24, 1991) (similarly denying motion to strike). 13 II. BACKGROUND 14 The four individual plaintiffs, Ger Chong Ze Chang, Mai Nou Vang, Russell Mathis and 15 Ying Susanna Va, are Asian Americans who either reside in or own property in or near the Mount 16 Shasta Vista division and the towns of Dorris and Macdoel in Siskiyou County. FAC ¶¶ 10–13. 17 Defendants are the County of Siskiyou and Sheriff Jeremiah LaRue, sued in his official capacity. 18 Id. ¶¶ 14–15. Plaintiffs allege defendants have discriminated against them based on their race 19 through 1) racially discriminatory traffic stops and unreasonable search and seizure; 2) racially 20 discriminatory water ordinances; and 3) unlawful liens. See id. ¶¶ 10–13, 105–22, 176–83, 197– 21 210. Plaintiffs bring this lawsuit individually and on behalf of similarly situated members of a 22 proposed class. Id. ¶ 211. The putative class consists of “All Asian Americans who reside, own 23 property, and/or travel by automobile in Siskiyou County.” Id. The class includes the following 24 three subclasses: 1) a traffic class, 2) a water class, and 3) a liens class. Id. ¶ 212. The court 25 construes all factual allegations in the light most favorable to plaintiffs, as it must at this stage. 26 A. General Allegations 27 Siskiyou County is a largely undeveloped, rural county in Northern California. Id. ¶ 16. 28 Asian Americans make up 1.6 percent of the population. Id. Since 2014 and 2015, the Asian 1 American population in the County has increased. Id. ¶¶ 17–18. Many of the Asian American 2 residents live in and around the Shasta Vista subdivision and smaller communities near the towns 3 of Dorris and Macdoel. Id. ¶ 19. Historically, this area has been “relatively undeveloped”— 4 many of the residents “live in unpermitted structures or recreational vehicles, . . . and their 5 properties do not have [water] wells.” Id. ¶¶ 19–20. Although a water well is a prerequisite for a 6 building permit, id. ¶ 20, plaintiffs allege the County has enacted barriers to well access for Asian 7 Americans through various means, including denying applications for well permits, threatening 8 property owners who pursue well permits with retaliatory code enforcement, threatening well 9 drillers in the area with criminal prosecution, and targeting predominantly Asian American 10 communities for property inspections. See id. ¶¶ 21, 128. Residents who do not own a water well 11 rely on water trucks as their primary source of water. Id. ¶ 22. 12 Plaintiffs allege defendants have treated Asian Americans with hostility generally. For 13 example, defendants have engaged in voter suppression, id. ¶ 28, discriminately restricted Asian 14 American protestors, id. ¶¶ 29, 170, and instructed businesses not to engage in deliveries in Asian 15 American neighborhoods, id. ¶ 36. Defendants treated Asian American residents as unwelcome 16 and as part of a monolithic group involved in “a violent drug cartel” and cannabis cultivation. Id. 17 ¶ 25. Defendants have used racially charged and coded language, which is reflected in official 18 meeting minutes, recordings, and other documents. See, e.g., id. ¶¶ 26–27, 30–35, 37–44. 19 B. Traffic Subclass Allegations 20 Plaintiffs allege the former and current Sheriffs have openly hostile views of Asian 21 Americans, which have resulted in their widespread targeting and a pattern of unconstitutional 22 seizures and searches under the pretense of drug enforcement. Id. ¶¶ 51–54. The Sheriff s 23 Department attributes drug activity to Asian Americans and has used traffic stops to target Asian 24 Americans. See id. ¶¶ 51, 55, 60. For example, plaintiffs allege the Department’s stops have 25 been largely concentrated near predominantly Asian American communities, on or near Highway 26 97, with only a few stops conducted near the largely white communities, on or near Highway 96. 27 Id. ¶¶ 56–57. The Siskiyou County Board of Supervisors has ratified and provided funds to 1 support Sheriff LaRue’s efforts to increase these traffic interdiction efforts and has not expressed 2 any concern with the increased traffic stops in the County. Id. ¶¶ 54, 59. 3 Traffic stops have disproportionately affected Asian American drivers. Id. ¶¶ 61–62. For 4 example, data from 2021 show that although Asian Americans make up 2.4 percent of the 5 County’s adult population, over 28 percent of traffic stops conducted by the Department were of 6 Asian Americans. Id. ¶ 66. An Asian American in 2021 was “roughly 17 times more likely to be 7 pulled over by the Sheriff’s Department than a white individual[.]” Id. ¶ 67. Moreover, the 8 proportion of traffic stops of Asian Americans “was nearly 60% higher during the day,” when 9 officers could see the driver, than during the night, when they could not. Id. ¶¶ 5, 72 (emphasis 10 omitted). The proportion of traffic stops of Asian Americans in the County is “highly atypical” 11 when compared to stops of Asian Americans statewide, stops by other agencies in the County 12 such as the City of Weed’s Police Department, and stops in other nearby counties. See id. ¶¶ 68– 13 71. 14 Plaintiffs also allege the Department targets Asian Americans for unjustified and 15 unreasonably prolonged traffic stops. Id. ¶¶ 73, 75. There is a pattern of stops conducted without 16 reasonable suspicion, partially supported by the fact that nearly three-quarters of documented 17 traffic stops do not result in a citation or arrest. Id. ¶ 73. For example, deputies cite “swerving” 18 as one of the most common justifications for stops. Id. ¶ 74. However, 44 percent of drivers 19 warned or cited for swerving were Asian American, and “only 14% of these stops resulted in a 20 traffic citation,” suggesting swerving was not the real reason for the stop. Id. Plaintiffs allege 21 that when there is reasonable suspicion, deputies have unreasonably prolonged the stops and have 22 used these stops to question Asian American drivers and to conduct additional searches unrelated 23 to the purported basis for the stop. Id. ¶¶ 73, 76–78. The median length of stops for Asian 24 Americans in 2021 was “over 56% longer than for likely non-Asian drivers.” Id. ¶ 79. For 25 example, while “Asian American drivers constituted approximately 23% of traffic stops that 26 resulted only in a warning and lasted ten minutes or less[,] . . . Asian American drivers were over 27 40% of those stopped for over ten minutes and then released with a warning.” Id. Furthermore, 28 Asian Americans were 25 times more likely to be searched during a traffic stop than white 1 Americans, with Asian Americans constituting nearly 40 percent of all traffic stop-related 2 searches not including “identifiable probation or parole searches and tow inventory searches[.]” 3 Id. ¶ 83. Although the Department’s rationale for the targeted enforcement is drug interdiction, 4 only 2.3 percent of the stops have resulted in the seizure of cannabis and even less for other 5 drugs. Id. ¶ 84. 6 Plaintiffs allege a few specific examples of traffic stops to illustrate these broader 7 allegations. First, deputies stopped plaintiff Chang two separate times while he was driving back 8 to his residence, which is outside the town of Dorris, even though he had not committed any 9 traffic violations leading up to the stops. See id. ¶¶ 105–06, 112. Both stops ended without a 10 citation or ticket. Id. ¶¶ 110, 115. The first time, the deputy initiated a traffic stop because, he 11 said, he saw items in the truck bed. Id. ¶¶ 106–08. During this stop, the deputy confirmed 12 Mr. Chang had a receipt for the bags of manure he had purchased, climbed onto the vehicle to 13 examine the bags of manure, told Mr. Chang he was going to check the inside of the vehicle, 14 opened the door and searched the vehicle. Id. ¶¶ 108–10. The second time, the deputy did not 15 tell Mr. Chang the basis for the stop. Id. ¶ 115. At the time, Mr. Chang was driving back from a 16 laundromat and had placed his clean laundry in black trash bags. Id. ¶ 111. During this second 17 stop, a deputy instructed Mr. Chang to exit the vehicle and conducted a pat search even though 18 Mr. Chang did not pose a risk to the deputy’s safety in any way. Id. ¶ 113. Although Mr. Chang 19 tried to explain the trash bags contained his laundry, the deputy ordered him to open the vehicle 20 and empty the trash bags on the ground. Id. ¶¶ 113–14. After the deputy searched through the 21 laundry, the deputy told Mr. Chang he could leave. Id. ¶ 114. The second stop lasted around 22 thirty minutes. Id. ¶ 115. Mr. Chang had to then return to the laundromat to re-launder his 23 clothes, which had been dirtied during the search. Id. 24 Plaintiff Vang alleges two deputies stopped her during the daytime due to a cracked 25 external vehicle light while she was driving outside of the Shasta Vista subdivision. Id. ¶ 118. 26 During this stop, a deputy indicated he wanted to search the car, and when Ms. Vang told the 27 deputy the car belonged to her husband, the deputy informed her husband he wanted to search the 28 car. Id. ¶ 120. Neither Ms. Vang nor her husband believed they had a choice in this matter. Id. 1 The deputies searched the car, did not find anything except a bar of soap, and then issued a fix-it 2 ticket. Id. ¶¶ 121–22. The stop lasted for approximately thirty minutes. Id. ¶ 121. 3 Plaintiffs allege these unlawful stops and searches are emblematic of the Department’s 4 discriminatory policies and practices. See id. ¶¶ 80–81, 85, 122. They allege Sheriff LaRue has 5 required, encouraged, or at the very least, has been aware of or on notice of his deputies’ racial 6 profiling and unjustified traffic stops and searches, and/or prolonged stops. Id. ¶¶ 87–100. Both 7 the County and Sheriff LaRue have failed to train and supervise deputies to prevent violations of 8 law. Id. ¶¶ 101–04. 9 C. Water Subclass Allegations 10 Plaintiffs allege the County has passed ordinances “designed to drive out the Asian 11 American community and punish their supporters.” Id. ¶ 123. The three “water ordinances” at 12 issue are the water nuisance ordinance (Urgency Ordinance 20-13 and later Ordinance 20-15, 13 codified at Siskiyou Cnty. Code § 3-13-702), water extraction ordinance (Urgency Ordinance 21- 14 07 and later Ordinance 21-13, codified at Siskiyou Cnty. Code § 3.5-13.101 et seq.), and water 15 truck ordinance (Urgency Ordinance 21-08 and later Ordinance 21-14, codified at Siskiyou Cnty. 16 Code § 3-4.1501). Id. 17 The plaintiffs in the related Lo case filed their action against the County of Siskiyou, 18 Sheriff LaRue and various other defendants, challenging the same water ordinances at issue in 19 this case. See First Am. Compl., Lo, No. 21-00999 (E.D. Cal. July 15, 2021), ECF No. 29. In 20 that action, the plaintiffs alleged the defendants violated their rights under the Fourteenth 21 Amendment Due Process and Equal Protection Clauses and their rights under the Fourth 22 Amendment. Id. ¶ 1. Among other allegations, the plaintiffs alleged defendants deprived them of 23 their property interest in access to water without due process of law. See id. ¶¶ 61–83. They also 24 alleged the water ordinances had a disparate impact on the Hmong people in Siskiyou County and 25 that defendants targeted the Hmong people when enforcing those ordinances. See id. ¶¶ 84–104. 26 The plaintiffs sought damages as well as declaratory and injunctive relief. Id. ¶ 1. In that case, 27 the court entered a preliminary injunction prohibiting defendants from enforcing two of the three 28 water ordinances—the water extraction ordinance (Ordinance No. 21-07) and the water truck 1 ordinance (Ordinance No. 21-08). Order, Lo, No. 21-00999 (E.D. Cal. Sept. 3, 2021), ECF No. 2 47. 3 The water nuisance ordinance “bans the ‘extracting and discharging groundwater 4 underlying Siskiyou County for use in cultivating cannabis’ as a nuisance.” FAC. ¶ 124. The 5 ordinance does not have a knowledge requirement. Id. As with the traffic stops, plaintiffs allege 6 Asian Americans have been disproportionately cited and fined under this ordinance, with Asian 7 Americans receiving 68 percent of all such citations. Id. ¶ 125. The ordinance has been used to 8 bring civil actions against well operators, has had a chilling effect on well-owners and has 9 reduced the number of water sources available to Asian Americans. Id. ¶¶ 124–26. 10 The water extraction ordinance requires a permit to transport water regardless of use. Id. 11 ¶ 127. However, permit issuance is conditioned on a property’s compliance with all County 12 codes. Id. ¶ 128. As noted, many residents who live in and around the Shasta Vista subdivision 13 and near Dorris and Macdoel do not have water wells and therefore do not live in approved 14 structures. Id. ¶¶ 19–20. Because they do not live in approved structures, permits are available 15 only in theory. Id. ¶ 130. Plaintiffs allege the County also has disproportionately cited Asian 16 Americans under this ordinance. Id. (“73% of those cited under this ordinance were Asian 17 American.”). 18 The water truck ordinance prohibits hauling water in excess of 100 gallons without a 19 permit on specifically named streets. Id. ¶ 131. After passing the ordinance, the Board initially 20 adopted a resolution explicitly limiting the geographic application of the water truck ordinance to 21 streets servicing primarily Asian American neighborhoods. Id. ¶¶ 131, 174. As with the other 22 two ordinances, the County disproportionately cited Asian Americans under this ordinance. Id. 23 ¶ 131 (“About 70% of those cited under this ordinance were Asian American.”). 24 Plaintiffs allege the water ordinances have led to a humanitarian crisis in the Asian 25 American communities. Id. ¶¶ 132–39. The lack of water has degraded people’s health and left 26 community members unable to abate fires. Id. ¶¶ 135–37. For example, after the water 27 ordinances went into effect, plaintiff Mathis did not have water for months. Id. ¶ 178. When a 28 fire burned through Shasta Vista, he depleted his water reserves abating the fire and was unable to 1 obtain more water. Id. ¶¶ 178–79. Although the preliminary injunction in Lo alleviated some 2 hardships, his water access remains limited because “potential water providers are still afraid of 3 being targeted by the County and Sheriff.” Id. ¶ 181. 4 Plaintiffs allege the primary motivation for these water ordinances is animus against Asian 5 Americans. Id. ¶ 140. Although defendants have pointed to cannabis enforcement, drought and 6 public health as justifications for adoption, these rationales are intended to conceal their primary 7 motivation. Id. This is demonstrated by their shifting and unsubstantiated justifications, see, e.g., 8 id. ¶¶ 143–48, and the small number of enforcement actions against unlawful cannabis cultivation 9 in predominantly white neighborhoods, id. ¶ 142. According to plaintiffs, the County has ratified 10 the Department’s discretionary enforcement of the ordinances. See, e.g., ¶¶ 164, 167. 11 Additionally, the “Board’s official meeting minutes, recordings, and communications” 12 explicitly, or through coded language, reflect racial animus against Asian Americans. Id. ¶¶ 149– 13 50, 161, 163, 175. The public comments by community members leading up to the ordinances’ 14 adoption incorporate racially pejorative language that was “neither disavowed nor disapproved” 15 by the Board and reflects hostility towards Asian Americans. See, e.g., id. ¶¶ 152–59, 168, 171– 16 73. Defendants have acted in alignment with the requests and sentiments of the community 17 members using this kind of language. See, e.g., id. ¶¶ 160, 172, 175. 18 D. Liens Subclass Allegations 19 Plaintiffs also allege defendants targeted Asian Americans by issuing liens and foreclosing 20 properties subject to unpaid cannabis administrative fines. Id. ¶¶ 184–85. The County passed 21 Ordinance No. 20-11, which amended County Code section 10-14.100 to increase the fines 22 associated with cannabis cultivation, id. ¶ 185, and to permit the County to issue real property 23 liens to recover the fines issued under that section, id. ¶¶ 186–87. The County imposed fines 24 “almost entirely against Asian American-owned properties—that were several times higher than 25 not only the previous fines but the value of many of the properties being fined.” Id. ¶ 189 26 (emphasis omitted). Over 80 percent of liens issued under section 10-14.100 of Ordinance No. 27 20-11 were issued against Asian American property owners, including plaintiffs Va and Vang. 1 See id. ¶¶ 192–93, 197–210. Plaintiffs allege these liens are not authorized by state law. Id. 2 ¶¶ 194–96. 3 E. Procedural History 4 Plaintiffs initially brought this action on August 3, 2022. Compl., ECF No. 1. The court 5 stayed the proceedings in this case and in Lo while the parties in both matters participated in a 6 global settlement conference with the assigned magistrate judge. See Stay Order, ECF No. 19. 7 While the parties were engaged in settlement discussions, defendants repealed two of the three 8 water ordinances, see Joint Stip. Dismissal, Defs.’ Req. Judicial Notice Ex. B; Bd. of Supervisors 9 Mins. (Aug. 1, 2023), Pls.’ Req. Judicial Notice, Ex. 3, ECF No. 57-4, and the liens ordinance, 10 Bd. of Supervisors Mins. (Dec. 5, 2023), Pls.’ Req. Judicial Notice, Ex. 4, ECF No. 57-5. The 11 parties did not settle this action, and plaintiffs then filed their first amended complaint on 12 February 20, 2024. FAC. 13 Plaintiffs bring the following claims: 14 1. Conspiracy to Violate Constitutional Rights under the Fourth and Fourteenth 15 Amendment to the U.S. Constitution (all plaintiffs against both defendants); 16 2. Violation of Equal Protection – Racially Discriminatory Traffic Stops Under the 17 Fourteenth Amendment to the U.S. Constitution (plaintiffs Chang, Vang and 18 Traffic Subclass against both defendants); 19 3. Violation of Equal Protection – Racially Discriminatory Traffic Stops Under 20 Article I, Section 7 of the California Constitution (plaintiffs Chang, Vang and 21 Traffic Subclass against both defendants); 22 4. Unreasonable Search and Seizure Under the Fourth Amendment to the U.S. 23 Constitution (plaintiffs Chang, Vang and Traffic Subclass against both 24 defendants); 25 5. Unreasonable Search and Seizure Under Article I, Section 13 of the California 26 Constitution (plaintiffs Chang, Vang and Traffic Subclass against both 27 defendants); 1 6. Violation of Equal Protection – Racially Discriminatory Ordinances Under the 2 Fourteenth Amendment to the U.S. Constitution (plaintiffs Mathis and Water 3 Subclass against both defendants); 4 7. Violation of Equal Protection – Racially Discriminatory Ordinances Under Article 5 I, Section 7 of the California Constitution (plaintiffs Mathis and Water Subclass 6 against both defendants); 7 8. Violation of Substantive Due Process – State Created Danger Under the 8 Fourteenth Amendment to the U.S. Constitution (plaintiffs Mathis and Water 9 Subclass against both defendants); 10 9. Violation of Substantive Due Process – State Created Danger Under Article I, 11 Section 7(a) of the California Constitution (plaintiffs Mathis and Water Subclass 12 against both defendants); 13 10. Violation of Substantive Due Process – Unlawful Liens Under the Fourteenth 14 Amendment to the U.S. Constitution (plaintiffs Va, Vang, and Liens Subclass 15 against Defendant Siskiyou County only); 16 11. Preemption Under Article XI, Section 7 of the California Constitution (plaintiffs 17 Va, Vang, and Liens Subclass against Defendant Siskiyou County only); and 18 12. Violation of California Government Code Section 11135 (plaintiff Mathis, Chang, 19 Water Subclass, and Traffic Subclass against both defendants). 20 See id. ¶¶ 220–87. Plaintiffs seek declaratory and injunctive relief, attorneys’ fees and costs, and 21 other relief that is just and proper. Id. at 53–54 (prayer for relief). Plaintiffs Va, Vang, and 22 members of the Lien Subclass also seek nominal damages based on claim ten. 23 Defendants now move to dismiss the complaint for failure to state a claim upon which 24 relief can be granted in accordance with Rule 12(b)(6). Mot., ECF No. 52; Mem., ECF No. 52-1. 25 The motion is fully briefed. Opp’n, ECF No. 56; Reply, ECF No. 60. The court held a hearing 26 on the motion on May 17, 2024. Mins. Mot. Hr’g, ECF No. 68. Megan Vees, Alison Wall, John 27 Thomas Do, Glenn Katon and Stanley Young appeared for plaintiffs. Id. Richard Linkert, J. 28 Donald, Elise Rice and Madison Simmons appeared for Defendants. 1 III. MOOTNESS 2 Defendants argue plaintiffs’ sixth, seventh, eighth, ninth, tenth and eleventh claims are 3 moot because they are based on repealed ordinances. Mem. at 17–18. In every case, the 4 threshold question a federal court must answer affirmatively is whether it has jurisdiction, so the 5 court begins with this argument. Fed. R. Civ. P. 12(h)(3); see McDonald v. Lawson, 94 F.4th 6 864, 868 (9th Cir. 2024) (federal courts have a duty to determine jurisdiction “at all stages”). 7 “Because standing and mootness both pertain to a federal court’s subject-matter 8 jurisdiction under Article III, they are properly raised in a motion to dismiss under Federal Rule 9 of Civil Procedure 12(b)(1), not Rule 12(b)(6).” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 10 2000). “Rule 12(b)(1) jurisdictional attacks can be either facial or factual.” Id. Here, defendants 11 bring a factual attack based on allegations not included in the complaint. See Safe Air for 12 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In resolving a factual attack on 13 jurisdiction, the district court may review evidence beyond the complaint without converting the 14 motion to dismiss into a motion for summary judgment.” Id. 15 “A case is moot if the issues presented are no longer live and there fails to be a ‘case or 16 controversy’ under Article III of the Constitution.” In re Burrell, 415 F.3d 994, 998 (9th Cir. 17 2005) (citing GTE Cal., Inc. v. FCC, 39 F.3d 940, 945 (9th Cir. 1994)). “The basic question in 18 determining mootness is whether there is a present controversy as to which effective relief can be 19 granted.” Nw. Env’t Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988) (citing United 20 States v. Geophysical Corp., 732 F.2d 693, 698 (9th Cir. 1984)). “It is well settled that a 21 defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its 22 power to determine the legality of the practice.” City of Mesquite v. Aladdin’s Castle, Inc., 23 455 U.S. 283, 289 (1982). The party asserting mootness bears a “formidable burden.” Fed. 24 Bureau of Investigation v. Fikre, 601 U.S. 234, 241 (2024) (quoting Friends of the Earth, Inc. v. 25 Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)). “To show that a case is truly moot, 26 a defendant must prove ‘no reasonable expectation’ remains that it will ‘return to [its] old ways.’” 27 Id. (alteration in original) (quoting United States v. W. T. Grant Co., 345 U.S. 629, 632)). “That 28 much holds for governmental defendants no less than for private ones.” Id. 1 Prior to the Supreme Court’s decision in Fikre, a Ninth Circuit en banc panel found 2 “legislative actions should not be treated the same as voluntary cessation of challenged acts by a 3 private party, and . . . [courts] should assume that a legislative body is acting in good faith in 4 repealing or amending a challenged legislative provision[.]” Bd. of Trustees of Glazing Health & 5 Welfare Tr. v. Chambers, 941 F.3d 1195, 1199 (9th Cir. 2019) (en banc). “Therefore, in 6 determining whether a case is moot, [courts] should presume that the repeal, amendment, or 7 expiration of legislation will render an action challenging the legislation moot, unless there is a 8 reasonable expectation that the legislative body will reenact the challenged provision or one 9 similar to it.” Id. “The party challenging the presumption of mootness need not show that the 10 enactment of the same or similar legislation is a ‘virtual certainty,’ only that there is a reasonable 11 expectation of reenactment.” Id. The reasonable expectation must not be speculative, and “must 12 be founded in the record.” Id. The en banc panel in Chambers overruled in relevant parts prior 13 Ninth Circuit cases suggesting a different analysis. Id. 14 At hearing, the court directed the parties to file supplemental briefs addressing whether 15 Fikre overruled any Ninth Circuit authority with respect to mootness. The parties have filed 16 supplemental briefs. Pls.’ Suppl. Br., ECF No. 73; Defs.’ Suppl. Br., ECF No. 74. Plaintiffs 17 argue Fikre “undermines the burden-shifting framework” established in Chambers. Pls.’ Suppl. 18 Br. at 2–3. Defendants argue the facts in Fikre are distinguishable from this case, and the 19 decision does not overrule any Ninth Circuit authority. Defs.’ Suppl. Br. at 2. Defendants do not 20 address Chambers in their brief. See generally id. 21 There is at least a tension between the Supreme Court’s decision in Fikre and the Ninth 22 Circuit’s holding in Chambers. In Chambers, the Circuit treats the voluntary cessation of 23 challenged actions by legislative bodies differently from that of private parties. When a 24 challenged legislative act has been repealed, the Ninth Circuit places the burden on plaintiffs to 25 show there is a reasonable expectation of reenactment. In contrast, the Supreme Court places the 26 burden solely on defendants to show there is no reasonable expectation of returning to their old 27 ways—there is no presumption of mootness. Notwithstanding this tension, the court is bound by 28 Chambers unless its “reasoning or theory . . . is clearly irreconcilable with the reasoning or theory 1 of” Fikre, such that the court can find Chambers has been effectively overruled. Miller v. 2 Gammie, 335 F.3d 889, 893 (9th Cir. 2003). “This is a high standard.” Lair v. Bullock, 697 F.3d 3 1200, 1207 (9th Cir. 2012) (internal marks and citation omitted). “It is not enough for there to be 4 ‘some tension’ between the intervening higher authority and prior circuit precedent, or for the 5 intervening higher authority to ‘cast doubt’ on the prior circuit precedent[.]” Id. (internal 6 citations omitted). If the court can apply the “prior circuit precedent without ‘running afoul’ of 7 the intervening authority, [it] must do so.” Id. (citation omitted). 8 Although Fikre casts doubt on Chambers’ special treatment of legislative actions, in 9 deciding Fikre the Supreme Court was not considering legislative action. Rather, the Court 10 affirmed a Ninth Circuit decision, holding the government’s administrative action in that case, 11 removing the plaintiff from the No Fly List, did not render the action moot because the 12 government did not meet its formidable burden of showing the challenged conduct is not 13 reasonably expected to recur. Fikre, 601 U.S. at 242–44. Chambers, on the other hand, 14 considered the Nevada legislature’s repeal of a bill. 941 F.3d at 1197. In that case, the Ninth 15 Circuit found courts should assume a legislative body acts in good faith in repealing a challenged 16 legislative provision and applied a presumption that a repeal or amendment of legislation renders 17 an action challenging the legislation moot. Id. at 1999. In reaching this conclusion, the Ninth 18 Circuit joined with the majority of the circuits in concluding legislative actions should be treated 19 differently. Id. On the one hand, this conclusion might seem to be in direct conflict with Fikre, 20 which states the burden to prove mootness is the same for both “governmental defendants” and 21 private defendants. Fikre, 601 U.S. at 241. However, in Fikre, “governmental defendants,” 22 referred to the FBI and the executive branch of the federal government. See id. In contrast, 23 Chambers applied a presumption of mootness only to legislative actions by legislative bodies—it 24 did not extend the holding to actions by the “government” as addressed in Fikre. For example, in 25 the appellate court decision, which Fikre affirmed, the Ninth Circuit panel did not apply the 26 presumption of mootness and found the “federal government,” i.e., the FBI, did not meet its 27 burden of demonstrating mootness. Fikre v. Fed. Bureau of Investigation, 35 F.4th 762, 771 (9th 28 Cir. 2022). In an earlier decision in the same case, the Ninth Circuit distinguished legislative and 1 executive actions. It explained, “[a] statutory change is usually enough to render a case moot, 2 even if the legislature possesses the power to reenact the statute after the lawsuit is dismissed,” 3 because “[t]he rigors of the legislative process bespeak finality and not for-the-moment, 4 opportunistic tentativeness.” Fikre v. Fed. Bureau of Investigation, 904 F.3d 1033, 1038 (9th Cir. 5 2018) (citation, alterations and marks omitted). “On the other hand, an executive action that is 6 not governed by any clear or codified procedures cannot moot a claim.” Id. (citation and marks 7 omitted). Thus, if the Supreme Court’s holding in Fikre is limited to executive “governmental 8 defendants” such as the FBI, and the holding in Chambers is limited to legislative bodies, the 9 court can follow Chambers without running afoul of Fikre. Accordingly, although Fikre might 10 have cast doubt on Chambers, the court cannot find it has effectively overruled Chambers, and 11 therefore, will apply the presumption of mootness. 12 Here, the County has repealed the water extraction and water truck ordinances, and it has 13 modified the water nuisance ordinance. See Joint Stip. Dismissal ¶¶ 2–3; Bd. of Supervisors 14 Mins. (Aug.1, 2023); see also Mem. at 17; Opp’n at 8. The county also has repealed the liens 15 ordinance. See Bd. of Supervisors Mins. (Dec. 5, 2023); see also Mem. at 17, Opp’n at 3. Thus, 16 following Chambers, the court begins with the presumption that the water and liens claims are 17 now moot. 18 Nevertheless, plaintiffs have met their burden of overcoming the presumption of mootness 19 as to the water claims by showing the County enacted similar legislation shortly after repealing 20 the others. See Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 21 Fla., 508 U.S. 656, 662 (1993) (“There is no mere risk that Jacksonville will repeat its allegedly 22 wrongful conduct; it has already done so. Nor does it matter that the new ordinance differs in 23 certain respects from the old one.”); see, e.g., Lo v. County of Siskiyou, No. 21-00999, 2022 WL 24 1505909, at *5 (E.D. Cal. May 12, 2022) (similarly holding claims not moot when defendants 25 repealed a challenged ordinance and replaced it with another ordinance that allegedly caused the 26 same disadvantage). In their operative complaint, plaintiffs allege the water ordinances were 27 discriminatory and resulted in state-created danger. See FAC ¶¶ 123–75. The water nuisance 28 ordinance had a chilling effect on well-owners because it has been used to bring civil actions 1 against them and has reduced water sources for Asian Americans. Id. ¶¶ 124–26. This has led to 2 numerous safety and health issues. See id. ¶ 135. The amendment to the water nuisance 3 ordinance added a “knowledge” requirement. See Opp’n at 16. However, plaintiffs argue the 4 amended ordinance still harms the plaintiffs in a similar way as the prior ordinance because it has 5 the effect of chilling suppliers from providing water to Asian Americans. See id. In support of 6 that argument, plaintiffs provide a declaration by Stephen Griset. Griset Decl., ECF No. 56-7. 7 Mr. Griset used to provide water to the Asian American community before he was sued by the 8 County under the former version of the water nuisance ordinance. Id. ¶ 4. He “no longer 9 provid[es] water to the Asian-American community in light of concerns about being cited or sued 10 again.” Id. Despite the change in the ordinance, he still fears providing water to the Asian 11 American community due to the “County’s past enforcement actions taken against [him].” Id. 12 ¶ 6. Although the amended ordinance may be somewhat less objectionable and the impact of one 13 ordinance may have a smaller impact than three allegedly harmful water ordinances, it is probable 14 as plaintiffs allege that the current ordinance still disadvantages Asian Americans in “the same 15 fundamental way.” See Ne. Fla. Chapter of Associated Gen. Contractors of Am., 508 U.S. at 662 16 (“The new ordinance may disadvantage them to a lesser degree than the old one, but insofar as it 17 accords preferential treatment . . . it disadvantages [plaintiffs] in the same fundamental way.”). 18 Plaintiffs’ water claims (six, seven, eight and nine) are not moot. 19 Additionally, the County’s repeal of the liens ordinance does not moot plaintiffs’ liens 20 claims because there remains a live controversy regarding whether plaintiffs are entitled to 21 nominal damages. See Bernhardt v. County of Los Angeles, 279 F.3d 862, 872 (9th Cir. 2002). 22 This is because the plaintiffs here “seek[] damages for a past violation of [] rights” and therefore, 23 the “violation is not mooted by a promise not to repeat the alleged conduct in the future.” 24 Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 902 (9th Cir. 2007). Plaintiffs’ 25 liens claims (ten and eleven) are not moot. 26 Defendants’ motion to dismiss the water and liens claims as moot is denied. 1 IV. FAILURE TO STATE A CLAIM 2 A. Legal Standard 3 A party may move to dismiss for “failure to state a claim upon which relief can be 4 granted.” Fed. R. Civ. P. 12(b)(6). In response, the court begins by assuming the complaint’s 5 factual allegations are true, but not its legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 6 (2009) (citation omitted). The court construes all factual allegations “in the light most favorable 7 to the nonmoving party.” Steinle v. City of San Francisco, 919 F.3d 1154, 1160 (9th Cir. 2019) 8 (citation omitted). The court then determines whether those factual allegations “plausibly give 9 rise to an entitlement to relief” under Rule 8. Iqbal, 556 U.S. at 679. The court “relax[es] 10 pleading requirements where the relevant facts are known only to the defendant.” Concha v. 11 London, 62 F.3d 1493, 1503 (9th Cir. 1995). 12 B. Analysis 13 1. Conspiracy to Violate Constitutional Rights (Claim One) 14 Defendants argue plaintiffs’ claim for conspiracy fails because there is no allegation of an 15 agreement between defendants. See Mem. at 7–9. 16 To state a claim for conspiracy to violate constitutional rights, plaintiff must allege “the 17 existence of an agreement or meeting of the minds to violate constitutional rights.” Crowe v. 18 County of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (citation and marks omitted). “Such an 19 agreement need not be overt, and may be inferred on the basis of circumstantial evidence such as 20 the actions of the defendants.” Id. “For example, a showing that the alleged conspirators have 21 committed acts that ‘are unlikely to have been undertaken without an agreement’ may allow a 22 jury to infer the existence of a conspiracy.” Mendocino Env’t Ctr. v. Mendocino County, 23 192 F.3d 1283, 1301 (9th Cir. 1999) (citation omitted). 24 Plaintiffs have sufficiently alleged circumstantial facts to infer there was an agreement to 25 violate plaintiffs’ constitutional rights. Contra Mem. at 8. Plaintiffs have alleged the County has 26 approved and otherwise supported Sheriff LaRue’s and the Sheriff’s Department’s efforts to 27 unlawfully profile, search and seize Asian Americans and target Asian American communities 28 and neighborhoods, see, e.g., id. ¶¶ 40–41, 43, 56–62, 88–91, 95, and together, defendants have 1 led a concerted effort to violate the constitutional rights of Asian Americans in the County 2 through the passage of and targeted enforcement of ordinances, imposition of fines and property 3 liens and threats of foreclosures, see, e.g., id. ¶¶ 125, 130–31, 134, 137, 147, 152, 161–64, 184– 4 93, 200–07, 209–10. 5 At this stage, the court presumes the general allegations in the complaint “embrace those 6 specific facts that are necessary to support the claim.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 7 561 (1992) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)). Plaintiffs have 8 sufficiently alleged facts demonstrating defendants have committed concerted acts that are 9 unlikely to have been undertaken without an agreement. See Mendocino Env’t Ctr., 192 F.3d at 10 1301. Moreover, whether defendants have in fact agreed to violate plaintiffs’ constitutional rights 11 is known only to defendants. See Concha, 62 F.3d at 1503. Plaintiffs have “nudged” their 12 conspiracy claims “across the line from conceivable to plausible.” See Soo Park v. Thompson, 13 851 F.3d 910, 928–29 (9th Cir. 2017) (quoting Iqbal, 556 U.S. at 680) (finding plaintiff pled 14 sufficient facts to state plausible claim for conspiracy in light of facts in complaint and fact that 15 many relevant facts are known only to defendant). 16 Defendants’ motion to dismiss plaintiffs’ first claim based on a failure to allege the 17 existence of an agreement is denied. 18 2. Equal Protection (Claims Two, Three, Six and Seven) 19 Defendants argue plaintiffs’ federal and state equal protection claims fail because no 20 allegation establishes defendants’ actions were motivated by race. See Mem. at 7, 9–12. 21 The Fourteenth Amendment provides no state shall “deny to any person within its 22 jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Section 7(a) of 23 Article I of the California Constitution provides: “A person may not be . . . denied equal 24 protection of the laws[.]” Cal. Const. art. I, § 7(a). “The equal protection clause contained in 25 article I, section 7, of the California Constitution is coextensive with its federal counterpart found 26 in the Fourteenth Amendment to the United States Constitution.” Conservatorship of Edde, 27 173 Cal. App. 4th 883, 891; see also Safeway Inc. v. City of San Francisco, 797 F.Supp.2d 964, 28 971 (N.D. Cal. 2011). 1 “Proof of racially discriminatory intent or purpose is required to show a violation of the 2 Equal Protection Clause.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 3 265 (1977). A plaintiff need not show “the challenged action rested solely on racially 4 discriminatory purposes.” Id. Rather, a plaintiff must show the discriminatory purpose was a 5 “motivating factor” for the challenged action. Id. at 65–66. That is, a plaintiff must show the 6 challenged action was taken “at least in part ‘because of,’ not merely ‘in spite of,’ its adverse 7 effects upon an identifiable group.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). 8 Determining discriminatory intent “demands a sensitive inquiry into such circumstantial and 9 direct evidence of intent as may be available.” Vill. of Arlington Heights, 429 U.S. at 266. 10 “[P]roof of disproportionate impact on an identifiable group, such as evidence of ‘gross 11 statistical disparities,’ can satisfy the intent requirement where it tends to show that some 12 invidious or discriminatory purpose underlies the policy.” The Comm. Concerning Cmty. 13 Improvement v. City of Modesto, 583 F.3d 690, 703 (9th Cir. 2009) (citations omitted). However, 14 absent “a clear pattern, unexplainable on grounds other than race,” disparate impact “alone is not 15 determinative, and the Court must look to other evidence.” Vill. of Arlington Heights, 429 U.S. at 16 266 (footnotes omitted). “In addition to statistical evidence showing discriminatory impact, other 17 factors to be considered in determining whether there is evidence of intent or purpose to 18 discriminate include: the historical background of the decision, the sequence of events leading up 19 to the decision, and any relevant legislative or administrative history.” The Comm. Concerning 20 Cmty. Improvement, 583 F.3d at 703. 21 Plaintiffs have sufficiently alleged discriminatory intent or purpose was a motivating 22 factor for the traffic stops and water ordinances. Contra Mem. at 9–12. With respect to the 23 traffic stops, plaintiffs have alleged the following. There is a history of animus and 24 discriminatory and racially charged language against Asian Americans, documented by official 25 meeting minutes, reports and other documentations characterizing Asian Americans as a whole to 26 be criminals, drug dealers and gang members who are not true “citizens” or members of the 27 community. See, e.g., FAC ¶¶ 25–39, 43–44, 48. A disproportionate number of traffic stops are 28 conducted near predominantly Asian American communities in the County. Id. ¶¶ 57–58. Asian 1 American drivers are disproportionately stopped and searched in the County. Id. ¶¶ 66, 83. The 2 Department’s actions are in stark contrast to the proportion of Asian Americans stopped across 3 the state and in other nearby counties. Id. ¶¶ 68–71. The proportion of Asian Americans who 4 were stopped during the day, when officers could see the driver, was nearly 60 percent higher 5 than those who were stopped during the night. Id. ¶ 72. The median length of stops for Asian 6 American drivers was over 56 percent longer than for non-Asian drivers. Id. ¶ 79. 7 With respect to the water ordinances, plaintiffs have alleged the following. There is a 8 history of racial animus in the County as noted above, and discriminatory and racially charged 9 statements by County officials and employees recorded in meeting minutes and other documents. 10 See, e.g., ¶¶ 137, 149–53, 161–63, 175, 190. The public comments leading up to the County’s 11 actions also demonstrate racial animus and hostility. See, e.g., id. ¶¶ 154–59, 168, 171–73. The 12 history of the water ordinances’ enforcement demonstrates unequal application of the law. For 13 example, the County initially limited the water truck ordinance geographically, by resolution, to 14 streets in primarily Asian American neighborhoods. Id. ¶¶ 131, 174. As with the traffic stops, 15 Asian Americans are disproportionately fined and cited for violating the various water 16 ordinances. See, e.g., id. ¶¶ 125, 189. 17 Plaintiffs’ allegations are more than “naked assertions” or “conclusory statements.” See 18 Iqbal, 556 U.S. at 678. Among other facts, plaintiffs have alleged evidence of gross statistical 19 disparities, a history of racial animus against Asian Americans and racially charged language 20 used against Asian Americans in public forums, including by officials; they have stated a 21 cognizable equal protection claim. See, e.g., Elliot-Park v. Manglona, 592 F.3d 1003, 1006 (9th 22 Cir. 2010) (“And while the officers’ discretion in deciding whom to arrest is certainly broad, it 23 cannot be exercised in a racially discriminatory fashion.”); Ave. 6E Invs., LLC v. City of Yuma, 24 818 F.3d 493, 505 (9th Cir. 2016) (the use of “code words” or racially charged language may 25 demonstrate discriminatory intent). To the extent defendants deny the factual allegations in the 26 complaint, they will of course have access to the discovery process, further motion practice, and 27 an opportunity to prove their defense at a later stage and on a full record. See, e.g., Mem. at 12 28 (arguing the water ordinances legitimately address “grave issue[s] of public health and safety”). 1 Defendants’ motion to dismiss claims two, three, six and seven based on a failure to allege 2 discriminatory purpose is denied. 3 3. Unreasonable Search and Seizure (Claims Four and Five) 4 Defendants argue plaintiffs’ federal and state search and seizure claims fails because there 5 was reasonable suspicion to initiate the traffic stops and engage in a warrantless search. See 6 Mem. at 7, 12–16. 7 Both the Fourth Amendment and Article I of the California Constitution prohibit 8 unreasonable searches and seizures. See U.S. Const. amend. IV; Cal. Const. art. I, § 13. 9 “California has ‘ordinarily resolved questions about the legality of searches and seizures by 10 construing the Fourth Amendment and Article I, Section 13 in tandem.’” Maric v. Alvarado, 11 748 F. App’x 747, 749–50 (9th Cir. 2018) (unpublished) (quoting People v. Buza, 4 Cal. 5th 658, 12 686 (2018)). The Fourth Amendment’s protections “extend to brief investigatory stops of persons 13 or vehicles that fall short of traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273 (2002) 14 (quoting Terry v. Ohio, 392 U.S. 1, 9 (1968)). “[I]n such cases, the Fourth Amendment is 15 satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal 16 activity ‘may be afoot.’” Id. (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). Courts 17 “must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer 18 has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” Id. (citation omitted). 19 “A traffic violation alone is sufficient to establish reasonable suspicion.” United States v. 20 Choudhry, 461 F.3d 1097, 1100 (9th Cir. 2006) (citing Whren v. United States, 517 U.S. 806, 810 21 (1996)). However, “[a] seizure that is justified solely by the interest in issuing a warning ticket to 22 the driver can become unlawful if it is prolonged beyond the time reasonably required to complete 23 that mission.” Illinois v. Caballes, 543 U.S. 405, 407 (2005). 24 “Warrantless searches are presumptively unreasonable under the Fourth Amendment, 25 subject to certain exceptions.” United States v. Taylor, 60 F.4th 1233, 1242–43 (9th Cir. 2023) 26 (quoting Verdun v. City of San Diego, 51 F.4th 1033, 1037–38 (9th Cir. 2022)). “Consent is one 27 such ‘specifically established’ exception.” Id. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 28 219 (1973). However, the consent must be “voluntary,” “unequivocal[,] and specific” for an 1 officer to lawfully search a car under this exception. Id. at 1243 (quoting United States v. Basher, 2 629 F.3d 1161, 1167–68 (9th Cir. 2011)). “[T]he Fourth and Fourteenth Amendments require 3 that a consent not be coerced, by explicit or implicit means, by implied threat or covert force.” 4 Schneckloth, 412 U.S. at 228. 5 Plaintiffs have sufficiently alleged the Sheriff’s deputies unreasonably searched and 6 seized them following traffic stops in violation of the Fourth Amendment. 7 First, plaintiff Chang alleges deputies unreasonably stopped him twice, both times without 8 reasonable suspicion; he had not committed any traffic violation leading up to the stops. See FAC 9 ¶¶ 105–06, 112. The deputy initiated the first stop because he saw items in the bed of 10 Mr. Chang’s truck. Id. ¶¶ 106–08. The deputy did not tell Mr. Chang the basis for the second 11 stop. Id. ¶ 115. Both stops ended without a citation or ticket. Id. ¶¶ 110, 115. The second stop 12 lasted around thirty minutes. Id. ¶ 115. Plaintiffs plausibly plead that deputies did not have 13 reasonable suspicion to stop Mr. Chang or to prolong the second stop to thirty minutes. Contra 14 Mem. at 14–16 (citing purported facts outside of the complaint to argue the deputies did have 15 reasonable suspicion). 16 Second, plaintiff Vang alleges despite being stopped due to a cracked external light, id. 17 ¶ 118, the deputies prolonged the stop for thirty minutes, id. ¶ 121, searched the vehicle, id. ¶ 120, 18 and then issued a fix-it ticket, id. ¶ 121. “When stopping an individual for a minor traffic 19 violation, an officer’s mission includes ordinary inquiries incident to the traffic stop.” United 20 States v. Evans, 786 F.3d 779, 786 (9th Cir. 2015) (internal marks, alteration and citation 21 omitted). “Tasks not related to the traffic mission, such as dog sniffs, are therefore unlawful if 22 they add time to the stop, and are not otherwise supported by independent reasonable suspicion of 23 wrongdoing.” Id. at 785–86 (internal marks, alteration and citation omitted). Plaintiff has 24 sufficiently alleged a thirty-minute stop based on a minor violation, followed by a vehicle search 25 and issuance of a fix-it ticket at the end of an unreasonably prolonged stop violated her rights 26 under the Fourth Amendment. See, e.g., United States v. Evans, 786 F.3d 779, 787 (9th Cir. 27 2015) (eight-minute traffic stop violated Fourth Amendment when officer did not have 28 “independent reasonable suspicion justifying this prolongation”). 1 Third, plaintiffs allege deputies searched their vehicles without voluntary, unequivocal, 2 and specific consent. During Mr. Chang’s first stop, the deputy climbed onto the vehicle to 3 examine the bags of manure, told Mr. Chang he was going to check the inside of the vehicle, and 4 searched the vehicle without Mr. Chang’s consent. FAC ¶¶ 108–10. During the second stop, a 5 deputy stopped Mr. Chang, instructed him to exit the vehicle, and conducted a pat search. Id. 6 ¶ 113. The deputy ordered Mr. Chang to open the vehicle and empty the bags containing laundry, 7 and then searched through the laundry without his consent. Id. ¶¶ 113–14. During Ms. Vang’s 8 stop, deputies indicated they wanted to search the car, and both Ms. Vang and her husband did 9 not believe they had a choice. Id. ¶ 120. The deputies searched the car. Id. It is defendants who 10 bear “the heavy burden of demonstrating that the consent was freely and voluntarily given.” 11 United States v. Chan-Jimenez, 125 F.3d 1324, 1327 (9th Cir. 1997). Plaintiffs’ allegations do 12 not permit defendants to meet that burden at this early stage. Defendants’ motion is denied as to 13 claims four and five. 14 V. CONCLUSION 15 For these reasons, the plaintiffs’ motion to strike is denied as moot. Defendants’ motion 16 to dismiss is denied as explained above. 17 This order resolves ECF Nos. 52 and 58. 18 IT IS SO ORDERED. 19 DATED: August 20, 2024.