1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JENNIFER FINK-CARVER, et al., Case No. 21-cv-00664-JSW

8 Plaintiffs,

ORDER GRANTING MOTION TO

9 v. BIFURCATE TRIAL AND

DISCOVERY

10 POLICE OFFICER KUHN, et al., Re: Dkt. No. 25 Defendants. 11

12 13 Now before the Court for consideration is the motion to bifurcate trial and discovery of 14 individual liability claims from the Monell and supervisory liability claims filed by Defendants 15 City of Pleasant Hill Police Officer Andrew Kuhn (“Officer Kuhn”) and City of Pleasant Hill 16 (“Pleasant Hill”) (collectively, “Defendants”). The Court has considered the parties’ papers, 17 relevant legal authority, and the record in the case, and it finds this matter suitable for disposition 18 without oral argument. See N.D. Civ. L.R. 7-1(b). The Court VACATES the hearing scheduled 19 for October 28, 2022. For the following reasons, the Court GRANTS Defendants’ motion. 20 BACKGROUND 21 This matter arises out of alleged violations of the constitutional rights of Plaintiff Jennifer 22 Fink-Carver (“Fink-Carver”) and Plaintiff Jason Fink (“Fink”) (collectively, “Plaintiffs”). 23 Plaintiffs allege that a police canine released by Officer Kuhn bit them during an investigation 24 related to a domestic violence incident. Plaintiffs allege the following causes of action: (1) 25 violation of Fink-Carver’s right to be free from unreasonable force, unlawful seizure, and unlawful 26 arrest; (2) violation of Fink’s right to be free from unreasonable force, unlawful seizure and 27 unlawful arrest; and (3) violations by Pleasant Hill under Monell and supervisory liability based 1 law causes of action for negligence, assault, battery, and violations of the Bane Act, Cal. Civ. 2 Code § 52.1. 3 Plaintiffs filed the complaint in this action on January 27, 2021. (Dkt. No. 1.) Defendants 4 answered the complaint on March 3, 2021. (Dkt. No. 7.) On June 14, 2021, the Court issued a 5 scheduling order. (Dkt. No. 12.) On September 29, 2021, the Court granted Plaintiffs’ requests to 6 substitute new counsel. (Dkt. Nos. 17-18.) The Court has granted the parties’ requests to modify 7 the scheduling order on three occasions to permit the parties sufficient time for discovery and 8 mediation. (See Dkt. Nos. 20, 22, 24.) Fact discovery is set to close on November 7, 2022, and 9 expert discovery is set to close on January 11, 2023. (Dkt. No. 24.) On September 16, 2022, 10 Defendants filed the present motion to bifurcate the trial and discovery of individual liability 11 claims from the Monell claims. (Dkt. No. 25.) Plaintiffs oppose bifurcation.1 (Dkt. No. 26.) 12 ANALYSIS 13 A. Applicable Legal Standard. 14 Federal Rule of Civil Procedure 42(b) provides, in pertinent part, that “[f]or convenience, 15 to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or 16 more separate issues, claims, crossclaims, counterclaims, or third-party claims.” The 17 determination of whether to bifurcate a trial is a matter within the Court’s discretion. See 18 Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1021 (9th Cir. 2004). “Factors to 19 be considered when determining whether to bifurcate a trial include: avoiding prejudice, 20 separability of the issues, convenience, judicial economy, and reducing risk of confusion.” Bates 21 v. United Parcel Service, 204 F.R.D. 440, 448 (N.D. Cal. 2001) (citation omitted). 22 B. The Court Grants the Motion to Bifurcate. 23 Defendants ask the Court to bifurcate the trial and discovery of individual liability claims 24 from the Monell claims. Defendants assert that a separate trial to first determine individual 25 liability on the issue of excessive force and unlawful arrest would promote efficiency and 26

27 1 The Court received Defendants’ notice of withdrawal of the citation to Gilliam v. Cty. of L.A., 1 economy because it could moot the need for a second trial to determine Monell liability. 2 In its discretion under Rule 42(b), the Court finds bifurcation of the individual claims and 3 the Monell claims appropriate. Bifurcation in this case will promote efficiency and economy 4 because a finding that Officer Kuhn did not deprive Plaintiffs of their constitutional rights is 5 dispositive of the claims against Pleasant Hill. This is because “neither Monell…nor any other of 6 [the Supreme Court’s] cases authorize the award of damages against a municipal corporation 7 based on the actions of one of its officers when in fact the jury has concluded that the officer 8 inflicted no constitutional harm.” City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986); see 9 also Lockett v. Cnty. of Los Angeles, 977 F.3d 737, 742 (9th Cir. 2020) (“Because there can be no 10 Monell claim based on excessive force without an underlying constitution violation by the 11 officers, the peace officer’s conduct in violation of the Constitution here becomes the “necessary 12 logical condition” to formulate a Monell claim.”); Fairley v. Luman, 218 F.3d 913, 916 (9th Cir. 13 2002) (“Exoneration of [the individual officer] of the charge of excessive force precludes 14 municipal liability for the alleged unconstitutional use of such force.”) For this reason, when 15 Monell claims are asserted together with claims against individual defendants, courts often 16 bifurcate them in the interest of efficiency and economy. See, e.g., Quintanilla v. City of Downey, 17 84 F.3d 353, 356 (9th Cir. 1996) (approving bifurcation of trial of individual police officers from 18 the Chief and city); Banks v. Mortimer, No. 18-CV-07391-HSG, 2021 WL 1599266, at *2 (N.D. 19 Cal. Apr. 23, 2021) (bifurcating the trial and discovery where Monell claims were “asserted in 20 conjunction with claims against individual defendants”); Boyd v. City & Cnty. of San Francisco, 21 No. C-04-5459 MMC, 2006 WL 680556, at *3 (N.D. Cal. Mar. 14, 2006) (same); Nguyen v. Cty. 22 of San Bernardino, 20-cv-00880, 2020 WL 11571724, at *1 (C.D. Cal. Sept. 11, 2020). 23 Plaintiffs nevertheless argue they can pursue their Monell claim even in the absence of a 24 constitutional violation, citing Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994). In Chew, the Ninth 25 Circuit stated that “[s]upervisorial liability may be imposed under section 1983 notwithstanding 26 the exoneration of the officer whose actions are the immediate or precipitating cause of the 27 constitutional injury.” Id. at 1438. The Ninth Circuit relied on its earlier decision in Hopkins v. 1 that Chew and Hopkins create municipal liability only when a plaintiff proves a constitutional 2 violation, but an officer is exonerated due to qualified immunity. See Quintanilla, 84 F.3d at 356 3 (distinguishing Hopkins and Chew on this basis); Scott v. Henrich, 39 F.3d 912, 916 (9th 4 Cir.1994) (“unlike the situation in Hopkins[ ], there was no violation of the decedent’s 5 constitutional rights, and thus no basis for finding the officers inadequately trained”); see also 6 Horton by Horton v. City of Santa Maria, 915 F.3d 592, 603 (9th Cir. 2019) (“[A] municipality 7 may be liable if an individual officer is exonerated on the basis of the defense of qualified 8 immunity, because even if an officer is entitled to immunity a constitutional violation might still 9 have occurred.”) (citation omitted). Thus, Chew does not support Plaintiffs’ position. 10 Plaintiffs also assert that bifurcation in this case would be an abuse of discretion relying on 11 De Anda v. City of Long Beach, 7 F.3d 1418 (9th Cir. 1993). In De Anda, the plaintiff sued two 12 police officers and the police chief, alleging that they conspired with one another to violate his 13 civil rights when he was shot and arrested. Id. at 1420. The plaintiff also asserted Monell claims 14 against the city. The district court bifurcated the plaintiff’s conspiracy claim against the two 15 officers from the conspiracy claim against the police chief and tried the police chief’s conspiracy 16 claim together with the municipal claims. Id. at 1421. The Ninth Circuit reversed because the 17 plaintiff had alleged that all the defendants were individually liable for the same constitutional 18 injury, so there was no reason to try the issue of the police chief’s liability in a separate phase. Id. 19 De Anda is distinguishable. Plaintiffs argue that, as in De Anda, the theory of 20 constitutional violations here is the same against Officer Kuhn and Pleasant Hill, but the 21 allegations of the complaint do not support this argument. Plaintiffs allege a Monell claim against 22 Pleasant Hill based on allegedly unconstitutional policies and practices. This is conceptually 23 distinct from Plaintiffs’ theory of constitutional violation against Officer Kuhn, which is based on 24 excessive force, and it is unlike De Anda where the police officers and the police chief were 25 alleged to be individually liable for the same constitutional injury based on the conspiracy claim. 26 Plaintiffs argue bifurcation would not serve judicial economy because it would result in 27 two separate trials with duplicate evidence, which would waste the Court’s resources and time. 1 claims differs from the law governing municipal liability claims. Although there may be some 2 overlap in the evidence presented, much of the evidence relevant to the Monell claim would not 3 necessarily be relevant to the individual excessive force claim. Moreover, because there can be no 4 Monell claim without a constitutional violation, if the individual defendant prevails, the time and 5 expense involved in litigating the Monell claims will be saved. Thus, the Court finds that the 6 interests of efficiency and economy favor bifurcation. 7 Defendants have also shown that bifurcation will avoid prejudice to Officer Kuhn because 8 admitting evidence related to the Monell claim could confuse the jury. For example, potential 9 evidence of other dog-biting incidents that may be admissible against Pleasant Hill to prove 10 Monell liability might influence the jury’s consideration of the individual excessive force claim 11 against Officer Kuhn. The Court agrees that bifurcation of the individual and Monell claims will 12 prevent prejudice to the individual defendants. 13 The same reasons that warrant bifurcation favor a stay of discovery under Federal Rule of 14 Procedure 26(c) with regard to the Monell claims. Plaintiffs have already served discovery asking 15 for information about incidents that are unrelated to Officer Kuhn and the event alleged in the 16 complaint. Although “plaintiffs may require discovery with respect to, inter alia, incidents 17 involving non-party officers” for their Monell claims, “such discovery has no apparent relevance 18 to the claims against the individual officer defendant[].” Boyd, 2006 WL 680556, at *3. Thus, 19 unless and until the individual officer has been found liable or entitled to qualified immunity, a 20 stay of discovery related solely to the Monell claims will promote efficiency and conserve 21 resources. This does not preclude Plaintiffs from pursuing discovery if they can show it is directly 22 relevant to the individual claims. 23 // 24 // 25 // 26 // 27 // 1 CONCLUSION 2 For the foregoing reasons, the Court GRANTS Defendants’ motion and bifurcates the trial 3 of the individual liability claims from the Monell claims against Pleasant Hill. The Court STAYS 4 || discovery on issues pertaining exclusively to the Monell claims until discovery and adjudication is 5 complete as to the individual liability claims. 6 IT IS SO ORDERED. 7 || Dated: October 14, 2022 / | y ) 8 \ LOK Hike

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