The above-entitled action originally came on for hearing before the Honorable Thomas E. Kuhnle on October 27, 2017. In response to a request from Plaintiff’s counsel to reconfigure the claims made in this action, the Court requested supplemental briefing. This action comes on for a second hearing before the Honorable Thomas E. Kuhnle on December 8, 2017, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling.

I. INTRODUCTION

This is a putative class action. According to the allegations of the Complaint, filed on May 4, 2015, plaintiff Shauncey Burt (“Plaintiff”) is an African-American man residing in the County of Santa Clara. (Complaint, ¶ 2.) Plaintiff was detained and searched by officers of the San Jose Police Department on three separate dates – September 8, 2014, November 8, 2014, and March 12, 2015. (Complaint, ¶¶ 13-33.) Plaintiff alleges the San Jose Police Department has engaged in a pattern and practice of racially profiling African-American and Hispanic persons by subjecting them to unreasonable and prolonged detentions after being stopped for minor Vehicle Code infractions. (Complaint, ¶ 34.)

The Complaint sets forth the following causes of action: (1) Violation of Civil Rights Pursuant to Civil Code § 52.1 [Underlying Right: Vehicle Code § 40300, et seq.]; (2) Violation of Civil Rights Pursuant to Civil Code § 52.1 [Underlying Right: Equal Protection of the Laws as Guaranteed by the California Constitution, Article 1, Section 7]; (3) Violation of Civil Rights Pursuant to 42 U.S.C. § 1983 [Underlying Right: Equal Protection of the Laws as Guaranteed by the United States Constitution, Amendment 14]; and (4) Declaratory Relief. Plaintiff now moves for class certification.

II. REQUESTS FOR JUDICIAL NOTICE

A. Defendant’s Request for Judicial Notice

Defendant requests judicial notice of certain Florida court records related to Plaintiff. While the Court could take judicial notice of the existence of these documents and the date they were filed, the Court cannot take judicial notice of the truth of any hearsay statements in the documents. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [the Court may not take judicial notice of the truth of hearsay statements in decisions and court files].) Accordingly, the request for judicial notice is GRANTED, but only as to the existence of these documents and the date they were filed.

B. Plaintiff’s Request for Judicial Notice

Plaintiff requests judicial notice of eight trial court orders from various federal district courts. The Court can take judicial notice of these orders. (Evid. Code, § 452, subd. (a).) Plaintiff’s request for judicial notice is GRANTED.

III. LEGAL STANDARD

As explained by the California Supreme Court,

The certification question is essentially a procedural one that does not ask whether an action is legally or factually meritorious. A trial court ruling on a certification motion determines whether the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.

(Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326, internal quotation marks, ellipses, and citations omitted.)
California Code of Civil Procedure section 382 authorizes certification of a class “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court. . . .” As interpreted by the California Supreme Court, Section 382 requires: (1) an ascertainable class; and (2) a well-defined community of interest among the class members. (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326.)

The “community-of-interest” requirement encompasses three factors: (1) predominant questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326.) “Other relevant considerations include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and whether the class approach would actually serve to deter and redress alleged wrongdoing.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) The plaintiff has the burden of establishing that class treatment will yield “substantial benefits” to both “the litigants and to the court.” (Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, 385.)

IV. DISCUSSION

This case unquestionably raises important issues. But as noted above, the motion for class certification that is now before the Court is a “procedural one that does not ask whether an action is legally or factually meritorious.” The Court can only address whether the class is ascertainable, whether there is well-defined community of interest among class members, and more broadly, whether certifying the class will yield substantial benefits.
The Court’s tentative ruling for th
October 27, 2017 hearing concluded that the claims in this action do not meet the requirements for class certification. At the center of the Court’s analysis was the fact that determining whether class members’ detentions were “unreasonably prolonged” would necessarily require a case-by-case determination. The law governing unlawful detentions is clear that what is reasonable in some circumstances may be unreasonable under other circumstances.

At the October 27, 2017 hearing before this Court, Plaintiff’s counsel stated his intent to drop monetary damages and instead seek certification of a class only to obtain injunctive and declaratory relief. The Court expressed concerns about this substantial change of course, and requested supplemental briefing. The supplemental briefing has been filed and the Court now rules on the motion.

A. Supplemental Briefing

In his supplemental brief, Plaintiff concludes the request for monetary relief in the Complaint cannot be withdrawn because doing so would violate fiduciary duties to unnamed class members. Plaintiff’s supplemental brief therefore withdraws his attempt to amend the class to eliminate monetary relief. In other words, the motion before the Court now is exactly the same as it was at the time of the original hearing. Plaintiff’s supplemental briefing is therefore simply additional argument regarding the motion for which the Court has already posted a tentative and for which the parties were given the opportunity to argue at the hearing. Nevertheless, the Court will address several of Plaintiff’s arguments raised in his supplemental brief.

Plaintiff requests in his supplemental brief that the Court (1) deny the motion for class certification without prejudice solely as to the claim for monetary damages to allow Plaintiff time to conduct further discovery to respond to the Court’s concerns; and (2) certify a class for injunctive and declaratory relief or, in the alternative, deny the motion without prejudice as to that class.

As discussed below, Plaintiff relies on a study conducted by the Center for Law and Human Behavior at the University of Texas at El Paso (“UTEP”) at the request of Defendant that involved a statistical analysis of limited detentions (stop data) for the period of September 1, 2013, through March 31, 2016 (the “UTEP Study”). Plaintiff argues the Court should deny the motion without prejudice as to the claim for monetary damages to allow Plaintiff time to conduct discovery to determine whether the terms and conclusions in the UTEP Study mean a stop of a person was de facto “unreasonably prolonged” by virtue of being subjected to a “field interview.” Plaintiff asserts he only recently received the UTEP Study and therefore has not had an opportunity to conduct discovery on it.

Plaintiff filed his motion for class certification on September 1, 2017. Plaintiff chose to file the motion on that date rather than wait and conduct further discovery. This has given Plaintiff the benefit of seeing Defendant’s arguments in opposition to class certification as well as the Court’s tentative ruling on the matter. The Court is obviously wary of giving a “sneak peak” of its analysis that will confer substantial advantages in framing a later motion. Further, Plaintiff’s contention that perhaps the stop of a person was de facto “unreasonably prolonged” by virtue of being subjected to a “field interview” is speculation and Plaintiff points to nothing in the UTEP Study that would support such a conclusion.
to a “damages class” and grant it as to an “injunctive and declaratory relief class.” The first three causes of action in the Complaint (out of four) seek both damages and injunctive relief. There is no basis to certify a class as to some of the relief sought by a cause of action, but not other relief sought in that same cause of action.

The Court also notes that even if no damages were requested and Plaintiff sought certification only with regard to injunctive and declaratory relief, the problems with certification would not be cured. A recent California case underscores the fact that Plaintiff cannot rely on federal law in moving for certification of an injunctive and declaratory relief class:

No California authority supports the contention that ascertainability, predominance and superiority are not required when a proposed class action would be certified under Federal Rules of Civil Procedure, rule 23(b)(1)(A) or (b)(2) (28 U.S.C.) if it were proceeding in federal court. On the contrary, case law consistently holds that ascertainability, predominance and superiority are always required to certify a class action in California under Code of Civil Procedure section 382.

(Hefczyc v. Rady Children’s Hospital-San Diego (2017) 2017 WL 5507854 at *8.)

As a final matter, Plaintiff asserts the Court can redefine the class as appropriate. As discussed below in connection with the ascertainability requirement, it is not clear how the class definition can be modified to cure the problems that preclude certification of a class. Plaintiff offers no suggestions of his own.

In sum, in light of Plaintiff’s withdrawal of his attempt to amend the relief sought, the Court finds no reason to modify its original ruling, which follows.

B. Ascertainable Class

“The trial court must determine whether the class is ascertainable by examining (1) the class definition, (2) the size of the class and (3) the means of identifying class members.” (Miller v. Woods (1983) 148 Cal.App.3d 862, 873.) “Class members are ‘ascertainable’ where they may be readily identified without unreasonable expense or time by reference to official records.” (Rose v. City of Hayward (1981) 126 Cal.App.3d 926, 932.)

Plaintiff seeks certification of the following class :

All African American and Hispanic persons stopped by San Jose Police between May 4, 2013, and the present for a Vehicle Code infraction whose detention was unreasonably prolonged beyond the time required to write and issue a citation and notice to appear, [] in violation of Vehicle Code §[] 40300, et seq.

(Plaintiff’s Memorandum of Law in Support of Motion for Class Certification, p. 13:9-13.) In the Complaint, this proposed class is only alleged for the fourth cause of action. In the moving papers, Plaintiff states this class seeks to recover under the first, second, and fourth causes of action. It is not clear if Plaintiff still seeks to have a class certified as to the third cause of action.
Defendant City of San Jose (“Defendant”) does not challenge the numerosity of the class, but argues the class definition is overbroad and difficult to ascertain. Generally, a class must be described by specific and objective criteria. (Sevidal v. Target Corp. (2010) 189 Cal.App.4th 905, 918-919.) Under the proposed class definition, an individual is only a member of the class if the person’s detention was “unreasonably prolonged.” To determine whether someone is in the class, it will be necessary to first make a substantive ruling whether a given detention was prolonged “unreasonably.” In other words, the class definition requires a merits-based determination to establish whether a particular individual is a member of the class. While the Court has the discretion to redefine the class definition to remove the liability-based portion of the definition, it is not apparent how this can be done without having the class include all African Americans and Hispanics who were stopped during the class period. That would be overbroad.

Plaintiff cites to Sav-on Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 333, for the proposition that a class action is not inappropriate simply because each member of the class may at some point be required to make an individual showing as to his or her eligibility for recovery. The Court’s statement to that effect in Sav-on, however, was made in connection with its analysis of a different certification requirement – predominant issues of law and fact. It was not related to ascertainability and does not alter the requirement that a class be defined in a manner that uses objective criteria and is presently ascertainable.

Plaintiff also relies on the UTEP Study. Plaintiff asserts the UTEP Study shows a disproportionate impact on and intent to discriminate against Blacks and Latinos. The fact that a disproportionate impact exists, however, does not establish that all or most of the African Americans or Hispanics stopped for a Vehicle Code infraction were necessarily detained for an “unreasonable” period of time.

In sum, the class definition is overbroad and it is not apparent how class members can be ascertained absent a merits-based determination regarding whether each detention was prolonged unreasonably. Plaintiff has not met the ascertainability requirement.

C. Community of Interest

1. Predominant Questions of Law or Fact

Regarding the predominance of questions of law or fact:

The ultimate question in every case of this type is whether . . . the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.

(Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1104-1105, quoting Collins v. Rocha (1972) 7 Cal.3d 232, 238.)
Plaintiff argues commonality can be found where class members’ injuries derive from a unitary course of conduct by a single system. Plaintiff cites to a number of federal court decisions to demonstrate that other courts have granted class certification in similar cases alleging Fourth and Fourteenth Amendment violations due to a police department’s policy and/or practice of making unlawful stops and arrests.

Defendant argues certification is not appropriate because the proposed class will require determinations that the detention of each putative class member was “unreasonably prolonged.” Defendant contends these determinations will require separate hearings involving the individual facts of each class member’s allegedly prolonged detention, the legal basis for the detention, the reasons for an officer’s exercise of discretion, along with any unique legal defenses. Defendant highlights the facts concerning Plaintiff’s three stops, each of which involved numerous unique circumstances, and argues that a determination of whether class members detentions were “unreasonably prolonged” would necessarily require a case-by-case assessment.

The Court notes Plaintiff has cited to no binding California precedent in support of his argument that common issues predominate in this case. Most of the cases cited by Plaintiff, including the sole federal case from California, involve Rule 23(b)(2) of the Federal Rules of Civil Procedure. Rule 23(b)(2), however, does not have a predominance requirement. (Fed. Rules Civ.Proc., rule 23(b)(2), 28 U.S.C.) Rather, predominance is a requirement for a class action under Rule 23(b)(3). (Fed. Rules Civ.Proc., rule 23(b)(3), 28 U.S.C.) The majority of the cases cited by Plaintiff are therefore inapposite because they were decided pursuant to a different legal standard than the one applicable to this case.

The two cases cited by Plaintiff that involve Rule 23(b)(3) are also distinguishable. Casale v. Kelly (S.D.N.Y. 2009) 257 F.R.D. 396 concerned the enforcement of part of a New York loitering law that had previously been held unconstitutional. The court found individual probable cause inquiries did not overwhelm the common issues because it was “implausible that in more than a de minimis number of cases did police officers have probable cause to arrest a plaintiff for another crime but chose solely to charge violations of an unconstitutional provision.” (Id. at p. 411, emphasis in original.) The other case cited by Plaintiff, Brown v. Kelly (S.D.N.Y. 2007) 244 F.R.D. 222, involved the enforcement of a different subdivision of the same New York loitering law that had been found unconstitutional.

The instant matter does not relate to enforcement of an unconstitutional law. Plaintiff alleges the detention following a legal stop was “unreasonably prolonged.” (See Complaint, ¶ 44.) Casale and Brown are not persuasive in light of the facts of this case.
The main issue presented by this case is whether the detentions of the class members were prolonged unreasonably. A determination of whether the length of each detention following a legal stop was “reasonable” will require an analysis of the individual facts of each detention, essentially mandating mini-hearings for each class member. While there are certainly common legal questions to be resolved in this action, the individual questions regarding the reasonableness of the length of each detention will overwhelm the case and become unmanageable.

In sum, the Court finds common questions of law and fact do not predominate over individual issues.

2. Typicality

Plaintiff must also show the class representative has claims or defenses typical of the class. As explained by one court,
The typicality requirement is meant to ensure that the class representative is able to adequately represent the class and focus on common issues. It is only when a defense unique to the class representative will be a major focus of the litigation, or when the class representative’s interests are antagonistic to or in conflict with the objectives of those she purports to represent that denial of class certification is appropriate. But even then, the court should determine if it would be feasible to divide the class into subclasses to eliminate the conflict and allow the class action to be maintained.

(Medrazo v. Honda of North Hollywood (2008) 166 Cal.App.4th 89, 99, internal citations, brackets, and quotation marks omitted.)
Plaintiff argues he and the entire class have been wronged in the same manner by Defendant’s citywide custom and practice. Defendant responds that there is evidence Plaintiff’s claims are contrived, so they cannot be typical of the claims of other class members. Defendant contends the length of Plaintiff’s detentions was determined by his conduct, his intent to bring a lawsuit, and his related lies and subterfuge. Defendant asserts Plaintiff was dishonest regarding his education and employment during his traffic stops. Defendant also states Plaintiff unjustifiably claimed Fifth Amendment protection when confronted at his deposition with letters he had written to Florida judges concerning traffic stops in that state.

While there is some question as to Plaintiff’s veracity, credibility problems do not automatically render a proposed class representative inadequate. As explained in a case cited by both parties:

Only when attacks on the credibility of the representative party are so sharp as to jeopardize the interests of absent class members should such attacks render a putative class representative inadequate. There is inadequacy only where the representative’s credibility is questioned on issues directly relevant to the litigation or there are confirmed examples of dishonesty, such as a criminal conviction for fraud.

(Harris v. Vector Marketing Corp. (N.D. Cal. 2010) 753 F.Supp.2d 996, 1015, citations and quotation marks omitted.)
The issues Defendant raises regarding Plaintiff’s credibility do not go to the heart of this case and will not be a major focus of the litigation. Moreover, Plaintiff’s interests are not antagonistic to or in conflict with those of the class. Plaintiff’s claim that he was detained for unreasonable periods due to his race is the same as that of the class. Accordingly, the Court finds the typicality requirement has been met.

3. Adequacy of Representation

“Adequacy of representation depends on whether the plaintiff’s attorney is qualified to conduct the proposed litigation and the plaintiff’s interests are not antagonistic to the interests of the class.” (McGhee v. Bank of America (1976) 60 Cal.App.3d 442, 450.) The fact that a class representative does not personally incur all of the damages suffered by each different class member does not necessarily preclude the representative from providing adequate representation to the class. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 238.)

Defendant again argues Plaintiff’s lack of credibility and plans to prolong his own detention render him an inadequate class representative. For the reasons discussed in connection with the typicality requirement, the Court finds this argument unpersuasive. Further, there is no dispute Plaintiff’s counsel is qualified to conduct the litigation. Accordingly, the Court finds the adequacy requirement has been satisfied.

D. Substantial Benefits of Class Litigation

“[A] class action should not be certified unless substantial benefits accrue both to litigants and the courts. . . .” (Basurco v. 21st Century Ins. (2003) 108 Cal.App.4th 110, 120, internal quotation marks omitted.) The question is whether a class action would be superior to individual lawsuits. (Ibid.) “Thus, even if questions of law or fact predominate, the lack of superiority provides an alternative ground to deny class certification.” (Ibid.) Generally, “a class action is proper where it provides small claimants with a method of obtaining redress and when numerous parties suffer injury of insufficient size to warrant individual action.” (Id. at pp. 120-121, internal quotation marks omitted.)

Plaintiff contends there are substantial benefits that render proceeding as a class superior to the alternatives in this case. Plaintiff states there is no indication any individual member would prefer to control his or her own case, there are no known difficulties in managing this case, there are no other known cases by individual class members already in progress, and the statewide policy in favor of avoiding thousands of individual lawsuits favors class certification.

Defendant responds that problems with manageability, ascertainability, and predominance mean class certification would not be a superior method of litigation. The California Supreme Court has explained:

[A] defense in which liability itself is predicated on factual questions specific to individual claimants poses a much greater challenge to manageability. This distinction is important. As we observed in City of San Jose v. Superior Court, supra, 12 Cal.3d at page 463, 115 Cal.Rptr. 797, 525 P.2d 701: “Only in an extraordinary situation would a class action be justified where, subsequent to the class judgment, the members would be required to individually prove not only damages but also liability.”

(Duran v. U.S. Bank Nat. Assn. (2014) 59 Cal.4th 1, 30, emphasis in original.)

As discussed previously, there are issues that would need to be resolved individually for each class member to establish liability in this action. It is not apparent how a class action can be managed effectively when individual issues must be litigated for each class member. The fact that large amounts of time will be spent on individual issues means a class action does not provide sufficient benefits. Accordingly, the Court finds a class action is not superior to the alternatives.

E. Conclusion

The issues raised in this lawsuit are unquestionably important. At this stage, however, the law requires the Court to focus on the procedural aspects of the case, not the merits of Plaintiff’s claims. Accordingly, for the reasons discussed, the motion for class certification is DENIED.

The Court will prepare the final order if this tentative ruling is not contested.