White v. Sacramento Police Dept.

Opinion

1 2 3 4 5 6 7 10 11 MEGAN WHITE, JERONIMO AGUILAR, No. 2:21-cv-02211-JAM-DB LOREN WAYNE KIDD, LYRIC NASH, 12 NICOLLETTE JONES, and ODETTE ZAPATA, 13 ORDER GRANTING IN PART AND Plaintiffs, DENYING IN PART DEFENDANTS’ 14 MOTION TO DISMISS; DENYING v. DEFENDANTS’ MOTION TO 15 STRIKE; AND DENYING SACRAMENTO POLICE DEPARTMENT; THE DEFENDANTS’ MOTION FOR A 16 CITY OF SACRAMENTO; DANIEL HAHN; MORE DEFINITE STATEMENT and DOES 1-200, 17 Defendants. 18 19 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND1 20 Megan White, Jeronimo Aguilar, Loren Wayne Kidd, Lyric Nash, 21 Nicollette Jones, and Odette Zapata (“Plaintiffs”) filed a First 22 Amended Complaint, asserting eleven claims against the Sacramento 23 Police Department (“SPD”), the City of Sacramento, and SPD Chief 24 Daniel Hahn for their response to a series of racial justice 25 demonstrations between March 2020 and November 2021. See First 26

27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled 28 for April 19, 2022. 1 Am. Compl. (“FAC”), ECF No. 4. Plaintiffs are six individuals 2 who attended these demonstrations. Id. 3 Megan White, a 34-year-old black woman, alleges that she 4 observed racial justice protests and attempted to provide basic 5 first aid to protest participants in 2020 and 2021, during which 6 the SPD injured her. Id. ¶ 17. Specifically, she suffered 7 bruising, chronic knee pain and hip pain, chemical burns, and a 8 severe shoulder injury. Id. She also observed law enforcement 9 restrain and assault racial justice protesters. Id. She alleges 10 compliance with the Government Claims Act. Id. 11 Jeronimo Aguilar, a 29-year-old Chicano man, alleges that he 12 attended protests in May and June 2020 and, as a result, SPD 13 officers targeted him, surveilled him, and illegally raided his 14 home. Id. ¶ 18. He does not allege compliance with the 15 Government Claims Act. Id. 16 Loren Kidd, a 34-year-old white man, alleges he attended 17 protests between May 2020 and January 2021, where the SPD shot 18 him with impact munitions and shoved him into and over parked 19 cars. Id. ¶ 19. He further alleges the SPD failed to 20 accommodate his disability when he was arrested, and watched as 21 white supremacist groups attacked him without intervening. Id. 22 He alleges compliance with the Government Claims Act. Id. 23 Lyric Nash, a 21-year-old biracial woman, alleges that she 24 attended racial justice protests between May 2020 and February 25 2021, and that the SPD targeted her with verbal harassment and 26 threats. Id. ¶ 20. She alleges SPD officers also routinely 27 bull-rushed her and other protestors, and indiscriminately fired 28 pepper balls, foam-tipped bullets, and beanbag rounds into 1 crowds. Id. She did not allege compliance with the Government 2 Claims Act. Id. 3 Nicollette Jones, a 34-year-old woman of Punjabi Asian and 4 European descent, alleges that she participated in racial justice 5 protests from May 2020 to January 2021. Id. ¶ 21. She alleges 6 the SPD knows her by name and regularly targets her at protests. 7 Id. In May 2020, the SPD kicked an active teargas canister 8 toward her and shot impact munitions into her body least 11 9 times. Id. She did not allege compliance with the Government 10 Claims Act. Id. 11 Odette Zapata, a 29-year-old Latinx woman, alleges she 12 attended multiple protests and witnessed law enforcement’s 13 pattern of violent escalation against protesters, while 14 permitting white supremacists to use violence against community 15 members. Id. ¶ 22. She has since been the target of aerial 16 surveillance and visits to her home. Id. She did not allege 17 compliance with the Government Claims Act. Id. 18 In response to these events, White filed the initial 19 complaint on November 30, 2021. See Compl., ECF No. 1. On 20 December 30, 2021, the FAC – which added the five additional 21 plaintiffs - was filed. See FAC. Of the eleven claims in the 22 FAC, all Plaintiffs assert the first ten claims against all 23 Defendants, while only Kidd brings the eleventh claim under the 24 American Disabilities Act (“ADA”). Id. Through this action, 25 Plaintiffs seek to “vindicate the rights of Californians 26 protesting against racism, white supremacy, and police violence 27 in Sacramento, California.” Id. ¶ 1. They claim the “City of 28 Sacramento and its Police Department have conditioned the public 1 to fear the violent and targeted force of the state when 2 attending a protest, a demonstration or even a vigil for racial 3 justice.” Id. Accordingly, they seek compensatory relief and 4 injunctive relief to “stop the City of Sacramento and its Police 5 Department from continuing to employ discriminatory, violent 6 tactics against protesters.” Id. 7 Before the Court is the City of Sacramento and Daniel Hahn’s 8 (“Defendants”) motion to dismiss, motion to strike, and motion 9 for a more definite statement.2 See Mot., ECF No. 14-1. 10 Plaintiffs filed an opposition. See Opp’n, ECF No. 17. 11 Defendants replied. See Reply, ECF No. 20. For the reasons set 12 forth below, the Court grants in part and denies in part 13 Defendants’ motion to dismiss, denies Defendants’ motion to 14 strike, and denies Defendants’ motion for a more definite 15 statement. 16 18 A. Legal Standard 19 Federal Rule of Civil Procedure 8 requires “a short and 20 plain statement of the claim showing that the pleader is 21 entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal is 22 appropriate under Federal Rule of Civil Procedure 12(b)(6) when 23 a plaintiff’s allegations fail “to state a claim upon which 24 relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive 25 a motion to dismiss [under 12(b)(6)], a complaint must contain 26 sufficient factual matter, accepted as true, to state a claim 27 2 Daniel Hahn is now retired but was the Sacramento Police Chief 28 at all material times. FAC ¶ 25; see also Mot. at 6. 1 for relief that is plausible on its face.” Ashcroft v. Iqbal, 2 556 U.S. 662, 678 (2009). While “detailed factual allegations” 3 are unnecessary, the complaint must allege more than 4 “[t]hreadbare recitals of the elements of a cause of action, 5 supported by mere conclusory statements.” Id. At this stage, 6 the Court “must take all of the factual allegations in the 7 complaint as true.” Id. But it need not “accept as true a 8 legal conclusion couched as a factual allegation.” Id. “In 9 sum, for a complaint to survive a motion to dismiss, the non- 10 conclusory ‘factual content,’ and reasonable inferences from 11 that content, must be plausibly suggestive of a claim entitling 12 the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 13 962, 969 (9th Cir. 2009). 14 B. Analysis: Motion to Dismiss 15 1. State Law Claims 16 Defendants first move to dismiss Plaintiffs’ seventh, 17 eighth, ninth, and tenth claims under state law for failure to 18 comply with the claims filing requirements set forth in the 19 Government Claims Act. Mot. at 8-10. 20 Plaintiffs must allege either they “complied with the claims 21 presentation requirement, or that a recognized exception or 22 excuse for noncompliance exists,” and if plaintiffs fail to 23 include those necessary allegations, their claims are subject to 24 dismissal. Gong v. City of Rosemead, 226 Cal.App.4th 363, 374 25 (2014); see also Karim-Panahi v. Los Angeles Police Dept., 839 26 F.2d 621, 627 (9th Cir. 1988)(affirming the district court’s 27 dismissal of state law claims for failure to allege compliance). 28 As to timing, plaintiffs must present a claim relating to a cause 1 of action for personal injury no later than six months after 2 accrual of the cause of action. See Cal. Gov. Code § 911.2. 3 When a plaintiff fails to present a claim within the six-month 4 timeframe, a written application may be made to the public entity 5 for leave to present the claim within a reasonable time not to 6 exceed one year from the accrual of the cause of action. Id. § 7 911.4. 8 For these state law claims, which all six Plaintiffs bring, 9 Defendants contend only two of the Plaintiffs, White and Kidd, 10 properly alleged compliance with the Government Claims Act. Mot. 11 at 10. Because the remaining four Plaintiffs, Aguilar, Nash, 12 Jones, and Zapata, failed to allege compliance, Defendants argue 13 the seventh, eighth, ninth and tenth claims against them must be 14 dismissed. Id. 15 In opposition, Plaintiffs concede: “The City is correct that 16 Plaintiffs Jones, Nash, and Zapata cannot bring state law claims 17 because they did not comply with the Government Claims Act. . . 18 Plaintiffs do not oppose the dismissal of state law claims for 19 damages made by Ms. Jones, Ms. Nash, and Ms. Zapata.” Opp’n at 20 7-8. However, Plaintiffs argue Aguilar may bring the state law 21 claims because although he did not allege compliance with the 22 Government Claims Act in the FAC, he did in fact comply and 23 therefore could plead compliance if granted leave to amend. Id. 24 Insisting the Court is bound by allegations in the FAC and cannot 25 consider Plaintiffs’ exhibits in opposition, Defendants counter 26 that Aguilar’s claims are barred as untimely because he did not 27 submit his claims within six months and did not seek leave to 28 bring a late claim. Reply at 3. But failure to allege 1 compliance with the Government Claims Act “merely subject[s]” a 2 claim to a motion to dismiss; the Court “has discretion to 3 dismiss with leave to amend to obtain compliance with the 4 [Government Claims Act], unless it ‘could not possibly be cured 5 by the allegation of other facts.’” Robinson v. Alameda Cty., 6 875 F.Supp.2d 1029, 1044 (N.D. Cal. 2012). Here, it is not clear 7 that Aguilar “could not possibly cure” this defect. Id. 8 Therefore, the Court dismisses his state law claims for failure 9 to plead compliance, but grants leave to amend. If he elects to 10 amend, Aguilar must clearly indicate how his claims were timely 11 filed and thus not time-barred. See Reply at 3. 12 In sum, Jones, Nash, and Zapata’s state law claims are 13 dismissed with prejudice, while Aguilar’s state law claims are 14 dismissed without prejudice. 15 2. Shotgun Pleading 16 Defendants next argue that Plaintiffs’ shotgun pleading 17 violates Federal Rule of Civil Procedure 8. Mot. at 11. That 18 Rule requires “a short and plain statement of the claim showing 19 that the pleader is entitled to relief.” Fed. R. Civ. P. 20 8(a)(2). “Shotgun pleadings are pleadings that overwhelm 21 defendants with an unclear mass of allegations and make it 22 difficult or impossible for defendants to make informed responses 23 to the plaintiff’s allegations. . . they are unacceptable.” 24 McLaughlin v. Castro, No. 1:17-cv-001597-DAD-MJS, 2018 WL 25 1726630, at *4 (E.D. Cal. Apr. 10, 2018). According to 26 Defendants, the FAC is a shotgun pleading because: “[it] attempts 27 to tie together separate and distinct fact patterns in support of 28 eleven causes of action. The Plaintiffs had separate 1 interactions with SPD over the course of approximately 16 months. 2 From the 43-page FAC it is nearly impossible to discern which 3 allegations are conclusions or are merely grievances with SPD, 4 rather than facts to support causes of action. The FAC is 5 neither short nor plain. It is impossible for the Defendants to 6 determine which factual allegations are intended to support the 7 claims for relief.” Mot. at 11. Plaintiffs counter that 8 Defendants’ argument is not well supported in law in that 9 Defendants cite to an unpublished Eastern District of California 10 decision and a non-binding Northern District of Georgia decision. 11 Opp’n at 3-4. Plaintiffs also argue the FAC is not a shotgun 12 pleading because it sets forth facts for each individual’s claim 13 and distinguishes between Defendants with specificity, including 14 dates, locations, times, and names where known. Id. at 4 (citing 15 to FAC ¶¶ 36-38, 41, 46, 49, 50, 52, 57-59, 62, 86, 92, 95, 96, 16 98-101, 111, 129, 134, 141, 167, 170-172). Additionally, the FAC 17 details the specific harm endured by each Plaintiff. Id. (citing 18 to FAC ¶¶ 47, 50, 55, 60, 61, 66, 68, 76-77, 84-85, 86, 89, 92, 19 96, 106, 114-115, 117-122). Plaintiffs point out the FAC 20 includes headings and subheadings to demarcate incidents giving 21 rise to the claims and their elements. Id. Finally, Plaintiffs 22 argue the various dates and times spanning over the course of 23 many months are not “overwhelming,” as Defendants contend, but 24 instead demonstrate a pattern of conduct over time. Id. at 5 25 (citing to FAC ¶¶ 123-124, 130, 132, 163, 165-167). 26 In response, Defendants double down on their argument that 27 the FAC is a shotgun pleading which does not provide them fair 28 notice. Reply at 4. A brief comparison to Defendants’ cited 1 authority, McLaughlin, however, confirms the sufficiency of 2 Plaintiffs’ allegations here. See Mot. at 11. In McLaughlin, 3 the court found the pro se complaint lumping multiple defendants 4 together and failing to identify which facts supported particular 5 claims to be a “prohibited ‘shotgun pleading.’” 2018 WL 1726630 6 at *3-4. The Court agrees with Plaintiffs that the FAC here is a 7 far cry from the pro se complaint in McLaughlin. Opp’n at 4. 8 Nor do Defendants explain why they cannot get the details and 9 specificity they claim they need through discovery. 10 Accordingly, Defendants’ argument that the entire FAC should 11 be dismissed as a shotgun pleading fails and Defendants’ motion 12 to dismiss the FAC for this reason is denied. 13 3. Nash and Zapata’s Section 1983 Claims 14 Next, Defendants move to dismiss Nash and Zapata’s Section 15 1983 claims - the first through fourth causes of action in the 16 FAC – contending neither of these Plaintiffs state a plausible 17 claim for violation of a federal right. Mot. at 11-13. 18 Insisting the opposite, Plaintiffs dedicate a significant portion 19 of their brief to marching through how Nash and Zapata have 20 stated claims for violation of their First, Fourth, and 21 Fourteenth Amendment rights. See Opp’n at 10-15. 22 a. First Amendment 23 Nash and Zapata’s first and second Section 1983 claims are 24 for retaliation and viewpoint discrimination in violation of the 25 First Amendment. See FAC at 34-35. To state a First Amendment 26 retaliation claim, Plaintiffs first must plausibly allege they 27 were “engaged in a constitutionally protected activity.” Index 28 Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817, 827 (9th 1 Cir. 2020). “Activities such as demonstrations, protest marches, 2 and picketing are clearly protected by the First Amendment.” 3 Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996)(internal 4 citations omitted). Here, Nash and Zapata allege they attended 5 racial justice protests. FAC ¶¶ 20, 22, 51, 61, 63. This 6 plausibly alleges the first element of their retaliation claims: 7 engagement in a constitutionally protected activity. 8 Next, Plaintiffs must allege “Defendants’ actions would 9 chill a person of ordinary firmness from continuing to engage in 10 the protected activity,” and that Plaintiffs’ “protected activity 11 was a substantial or motivating factor” in Defendants’ conduct. 12 Index Newspapers, 977 F.3d at 827. The use of indiscriminate 13 force against protesters supports an inference that police 14 officers’ actions were substantially motivated by the plaintiff’s 15 protected First Amendment activity. NAACP of San Jose/Silicon 16 Valley v. City of San Jose, Case No. 21-cv-1705-PJH, 2021 WL 17 4355339, at *11 (N.D. Cal. Sept. 24, 2021)(“[G]iven that the 18 protestors were specifically protesting police misconduct, it is 19 reasonable to allege that the protestors’ viewpoint was a 20 substantial or motivating cause – even if not necessarily the 21 sole cause – behind the defendants’ conduct.”). 22 As to Nash, she alleges she attended several protests in the 23 City of Sacramento between May 2020 through February 2021 where 24 SPD officers without warning or provocation “fir[ed] chemical 25 agents, pepper balls, and beanbags indiscriminately into the 26 crowds.” FAC ¶¶ 61, 64. She alleges SPD officers surveilled her 27 following the protests. Id. ¶¶ 102-106. While she was in a 28 vehicle with other protesters, SPD officers stopped them and 1 mocked the calls for police accountability. Id. ¶ 104. As to 2 Plaintiff Zapata, she similarly alleges the SPD surveilled her 3 after she participated in protests; specifically, they came to 4 her home without notice or a warrant after protests, followed her 5 in marked police vehicles, and tracked her with aerial 6 surveillance. Id. ¶¶ 22, 98-101. Like Nash, Zapata also 7 witnessed SPD officers shoot impact munitions and tear gas into 8 the crowd without provocation. Id. ¶¶ 53-55. According to 9 Plaintiffs, “these allegations are robust, specific, and clearly 10 sufficient to” give an inference to retaliation such that their 11 First Amendment retaliation claims can survive the motion to 12 dismiss. Opp’n at 11. 13 Likewise, they contend their First Amendment viewpoint 14 discrimination claims pass muster. Id. at 12-13. To state a 15 viewpoint discrimination claim, plaintiffs must again make the 16 threshold showing they were engaged in a constitutionally 17 protected activity. Giebel v. Sylvester, 244 F.3d 1182, 1186 18 (9th Cir. 2001). The act of protesting qualifies. Collins, 110 19 F.3d at 1371. Plaintiffs then must plausibly allege: (1) on its 20 face, a government restriction on speech “distinguishes between 21 types of speech or speakers based on viewpoint expressed, or (2) 22 though neutral on its face, the regulation is motivated by a 23 desire to suppress a particular viewpoint.” Moss v. U.S. Secret 24 Serv., 711 F.3d 941, 959 (9th Cir. 2013). 25 Here, Nash and Zapata allege they witnessed and experienced 26 firsthand Defendants’ use of indiscriminate force on racial 27 justice protests. FAC ¶¶ 20, 22, 53-55, 61, 64, 104. By 28 contrast, they witnessed the SPD treat white supremacist 1 protestors better, in some cases arresting victims of white 2 supremacist violence instead of the white supremacist protestors. 3 Id. ¶¶ 22, 81-82. They also allege Sacramento residents noticed 4 the disparity in how police treated white supremacist protestors 5 and racial justice protestors and called the City Council to 6 attest to this disparity. Id. ¶ 128. According to Plaintiffs, 7 these allegations support an inference that the Defendants were 8 motivated by a desire to suppress their particular viewpoints. 9 Opp’n at 13. 10 Significantly, Defendants did not respond to Plaintiffs’ 11 arguments as to why Nash and Zapata plausibly state First 12 Amendment retaliation and viewpoint discrimination claims. See 13 Reply; see also Resnick v. Hyundai Motor America, Inc., Case No. 14 CV 16-00593-BRO (PJWx), 2017 WL 1531192, at *22, (C.D. Cal. Apr. 15 13, 2017) (“Failure to oppose an argument . . . constitutes 16 waiver of that argument.”). Accordingly, the Court denies 17 Defendants’ motion as to Nash and Zapata’s First Amendment 18 claims. 19 b. Fourth Amendment 20 Nash and Zapata contend they also plausibly stated claims 21 that Defendants violated their Fourth Amendment rights to be free 22 from unreasonable seizure and excessive force. Opp’n at 13-14. 23 “Determining whether the force used to effect a particular 24 seizure is ‘reasonable’ under the Fourth Amendment requires a 25 careful balancing of the ‘nature and quality of the intrusion on 26 the individual's Fourth Amendment interests’ against the 27 countervailing governmental interests at stake.” Graham v. 28 Connor, 490 U.S. 386, 396 (1989). “This balancing test entails 1 consideration of the totality of the facts and circumstances in 2 the particular case.” Blanford v. Sacramento Co., 406 F.3d 1110, 3 1115 (9th Cir. 2005) (citing Graham, 490 U.S. at 396). In Nelson 4 v. City of Davis, the Ninth Circuit explained: “the use of pepper 5 spray, and a failure to alleviate its effects, was an 6 unreasonable application of force against individuals who were 7 suspected of only minor criminal activity, offered only passive 8 resistance, and posed little to no threat of harm to others.” 9 685 F.3d 867, 885 (2012). Similarly here, Nash and Zapata point 10 to the SPD’s “intentional and indiscriminate use of chemical 11 weapons and impact munitions” on them when neither posed a 12 threat. FAC ¶¶ 55, 61. SPD officers also stopped Nash on 13 January 20, 2021, approached her at gunpoint, and then searched 14 and taunted her for her participation in a police accountability 15 protest. Id. ¶ 104. According to Plaintiffs, these facts are 16 sufficient to state excessive force claims. Opp’n at 13-14. 17 Again, Defendants failed to respond to Plaintiffs’ arguments. 18 See Reply; see also Resnick, 2017 WL 1531192, at *22. 19 Accordingly, the Court denies Defendants’ motion as to Nash 20 and Zapata’s Fourth Amendment claims. 21 c. Fourteenth Amendment 22 Finally, Nash and Zapata contend they plausibly alleged 23 Defendants violated their Fourteenth Amendment Equal Protection 24 rights. Opp’n at 14-15. 25 Under the Equal Protection Clause, the “government may not 26 grant the use of a forum to people whose views it finds 27 acceptable, but deny use to those wishing to express less favored 28 or more controversial views . . . [a]nd it may not select which 1 issues are worth discussing or debating in public facilities.” 2 Police Dep't of City of Chicago v. Mosley, 408 U.S. 92, 96 3 (1972). Rather “there is an ‘equality of status in the field of 4 ideas,’ and the government must afford all points of view an 5 equal opportunity to be heard.” Id. Any “exclusions from a 6 public forum must be carefully scrutinized.” Id. at 98–99. 7 Additionally, the government has the burden of showing one group 8 posed a greater safety risk to the public than the other, to 9 justify unequal treatment. B & L Prods., Inc. v. 22nd Dist. 10 Agric. Ass'n, 394 F.Supp.3d 1226, 1250 (S.D. Cal. 2019). 11 Here, Nash and Zapata allege Defendants did not treat all 12 points of view equally and instead treated racial justice 13 protests worse than “organized white supremacist groups or other 14 protest groups generally.” Opp’n at 15 (citing to FAC ¶¶ 22, 51- 15 55, 61, 63-64, 81-82, 98-101, 102-106, 123-133). Yet, Defendants 16 have not shown the racial justice protest groups posed a greater 17 safety risk than other protest groups. Id. 18 Defendants did not respond to these arguments. See Reply 19 see also Resnick, 2017 WL 1531192, at *22. Accordingly, the 20 Court denies Defendants’ motion as to Nash and Zapata’s 21 Fourteenth Amendment claims. 22 4. Conspiracy Claims 23 Lastly, Defendants move to dismiss Plaintiffs’ fifth and 24 sixth causes of action for conspiracy pursuant to 42 U.S.C 1985 25 and 42 U.S.C. 1986. Mot. at 13. In opposition, Plaintiffs 26 concede they improperly pled their conspiracy claims as follows. 27 Opp’n at 8-9. First, with respect to the fifth cause of action, 28 they cited to “42 U.S.C § 1985 where 42 U.S.C § 1983 applies most 1 appropriately.” Id. at 8. Second, with respect to the sixth 2 cause of action, they cited to “U.S.C. § 1986, where 42 U.S.C. § 3 1983 applies more appropriately.” Id. at 8 n.6. Plaintiffs 4 request leave to amend to correct these mistakes, id. at 8 n.5, 5 then proceed to argue that under Section 1983, they have 6 plausibly stated their conspiracy claims, id. at 8-10. However, 7 as Defendants argue, this “attempt to rewrite the FAC in the 8 opposition is not proper.” Reply at 3; see also Schneider v. 9 Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) 10 (recognizing a complaint cannot be amended through an opposition 11 to a motion to dismiss). 12 PlaintiffS’ fifth and sixth causes of action are dismissed 13 without prejudice. See Eminence Cap., LLC v. Aspeon, Inc., 316 14 F.3d 1048, 1052 (9th Cir. 2003)(“Dismissal with prejudice and 15 without leave to amend is not appropriate unless it is clear 16 . . . that the complaint could not be saved by amendment.”). 17 C. Analysis: Motion to Strike 18 Defendants additionally move to strike portions of the FAC 19 as immaterial and impertinent. Mot. at 14. Specifically, they 20 request the Court strike Paragraphs 1 through 10, Paragraphs 28 21 through 41, and Paragraphs 123 through 133. Id. 22 Federal Rule of Civil Procedure 12(f) authorizes the Court 23 to strike any portion of a complaint that is “redundant, 24 immaterial, impertinent or scandalous.” Fed. R. Civ. P. 12(f). 25 However, “[m]otions to strike are disfavored and infrequently 26 granted.” Neveu v. City of Fresno, 392 F.Supp.2d 1159, 1170 27 (E.D. Cal. 2005). It must be “clear that the matter to be 28 stricken could have no possible bearing on the subject matter of 1 the litigation.” Id. Moreover, “courts often require a showing 2 of prejudice by the moving party.” Wynes v. Kaiser Permanente 3 Hosp., No. 2:10-cv-00702-MCE-GGH, 2011 WL 1302916, at *12 (E.D. 4 Cal. Mar. 11, 2011). 5 Plaintiffs urge the Court to reject Defendants’ motion to 6 strike, calling it frivolous. Opp’n at 6-7. They argue each 7 paragraph Defendants ask this Court to strike relates to the 8 claims in this case as they reflect Defendants’ “long history of 9 discriminatory and deadly policing against people who protest 10 racial injustice.” Id. at 6. Nor are any of the paragraphs 11 spurious or scandalous; they “evince the [SPD]’s pattern of 12 disregard to the rights of racial justice protestors.” Id. at 7. 13 In their reply, Defendants emphasize they seek to strike 14 “only 35 paragraphs, out of 243 paragraphs in the FAC” and that 15 these paragraphs do not eliminate the “history of discrimination 16 towards racial justice protesters.” Reply at 4-5. However, 17 Defendants do not clearly show these paragraphs “could have no 18 possible bearing” on the case. See Neveu, 392 F.Supp.2d at 1170. 19 Nor have they shown prejudice. See Wynes, 2011 WL 1302916, at 20 *12. Defendants’ motion to strike is therefore denied. 21 D. Analysis: Motion for a More Definite Statement 22 Finally, Defendants move for a more definite statement. 23 Mot. at 14-15. Federal Rule of Civil Procedure 12(e) authorizes 24 a party to move for a more definite statement where a pleading 25 “is so vague or ambiguous that a party cannot reasonably prepare 26 a response.” Fed. R. Civ. P. 12(e). “A Rule 12(e) motion is 27 proper only where the complaint is so indefinite that the 28 defendant cannot ascertain the nature of the claim being 1 asserted.” Sagan v. Apple Comput., Inc., 874 F.Supp. 1072, 1077 2 (C.D. Cal. 1994). These motions “are rarely granted because of 3 the minimal pleading requirements of the Federal Rules.” Id. 4 “[W]here the information sought by the moving party is available 5 and/or properly sought through discovery the motion [for a more 6 definite statement] should be denied.” Famolare, Inc. v. Edison 7 Bros. Stores, Inc., 525 F.Supp. 940, 949 (E.D. Cal. 1981). 8 Here, Defendants contend the “lengthy shotgun FAC does not 9 allow the Defendants to properly frame a responsive pleading” and 10 ask the Court to order Plaintiffs to further amend and provide a 11 more definite statement of their claims. Mot. at 15. Plaintiffs 12 counter that to the extent Defendants seek even more specificity 13 in dates, times, locations, and witnesses, those facts will be 14 available in discovery. Opp’n at 6.3 The Court agrees. 15 Defendants have not shown this is the rare case where a 16 motion for a more definite statement should be granted. See 17 Sagan, 874 F.Supp. at 1077. Accordingly, the Court denies 18 Defendants’ motion for a more definite statement. 19 21 For the reasons set forth above, the Court GRANTS IN PART 22 and DENIES IN PART Defendants’ motion to dismiss. Specifically, 23 the Court: 24 (1) DISMISSES WITH PREJUDICE Jones, Nash, and Zapata’s 25 state law claims (FAC 7th, 8th, 9th and 10th claims for 26 relief); 27 3 Defendants’ reply is silent as to the motion for a more 28 definite statement. See Reply. nn enn nee nn nnn ee EI IEE IES eee eee

1 (2) DISMISSES WITHOUT PREJUDICE Aguilar’s state law claims 2 (FAC 7th, 8th, 9th and 10th claims for relief); 3 (3) DISMISSES WITHOUT PREJUDICE Plaintiffs’ conspiracy 4 claims (FAC 5t® and 6t® claims for relief); and 5 (4) DENIES Defendants’ motion to dismiss as to the 6 remaining claims. 7 Additionally, the Court DENIES Defendants’ motion to strike 8 and DENIES Defendants’ motion for a more definite statement. If 9 Plaintiffs elect to amend their complaint, they shall file a 10 second amended complaint within twenty days (20) of this Order. 11 Defendants’ responsive pleadings are due within twenty days (20) 12 thereafter. 14 Dated: June 6, 2022 15 kA 16 teiren staves odermacr 7008 17 18 19 20 21 22 23 24 25 26 27 28 18