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United States District Court, C.D. CaliforniaJun 21, 2001
No. CV 00-07164 GAF (AJWx) (C.D. Cal. Jun. 21, 2001)

No. CV 00-07164 GAF (AJWx)

June 21, 2001

Stephen Yagman, Howard R. Price, Keith G. Wileman, Errol H. Stambler, Gail Marie Lisoni, Gregory W. Moreno, Susan A. Rodriguez, Bruce A. Gilbert, Gregory A. Yates, Joseph Louis Lisoni, Jeff Price, Joan Kenegos, R. Samuel Paz, Ricardo L. Mendoza, Antonio H. Rodriguez, John A. Girardi, Harold J. Light, Wilkie Cheong, Lawarence A. Forbes, Jose Perez, Daniel M. Holzman, Luis A. Carrillo, Martin Stanley, Leslie Boyce, Attorneys for Plaintiffs.

Paul N. Paquette, Russell J. Cole, Jody L. Eaton, Michael D. Allen, Barry R. Gammell, Michael R. Nebenzahl, Jennifer F. Swiller, Gina L. Tanner, Thomas J. Feeley, Irwin S. Evans, Steven D. Blades, Surekha A. Pessis, Wendy Shapero, Attorneys for Defendants.



Plaintiff contends his constitutional rights were violated by several Los Angeles Police Department ("LAPD") officers who allegedly planted narcotics on him and falsely arrested him. His case is connected to the LAPD's Rampart Division scandal.

Plaintiff sued, inter alia a number of current and/or former members of the Los Angeles City Council (the "City Council Defendants"), the City Attorney and several current and/or former members of his staff (the "City Attorney Defendants"), contending each could be held individually liable, under 42 U.S.C. § 1983 ("section 1983"), based on their role in indemnifying police officers assessed punitive damages by juries in civil rights cases. (See First Amended Complaint ("FAC") at ¶¶ 10, 30-40). In other words, plaintiff contends that historical decisions to indemnify police officers — not even the officers involved in the cases before the Court — in prior civil rights lawsuits have caused the constitutional violations that plaintiff alleges in his complaint.

Rejecting this extraordinary contention, this Court dismissed these "indemnification" claims in an order dated April 26, 2001. The Court concluded that, at the very least, the Ninth Circuit had avoided ruling on this issue, but appeared to suggest that the "indemnification" theory was too attenuated to support a section 1983 claim. However, at least three judges of the Circuit concluded otherwise in Navarro v. Block, 2001 WL 498270 (9th Cir. May 11, 2001), holding that the issue had been decided in Trevino v. Gates, 99 F.3d 911 (9th Cir. 1996) ("Trevino II") and Cunningham v. Gates, 229 F.3d 1271 (9th Cir. 2000).

The Court's views on the issue were fully discussed in Hernandez v. Gates, 100 F. Supp.2d 1209 (C.D. Cal. 2000).

In an act praiseworthy for its economy, but not technically correct, plaintiffs counsel wrought the Navarro decision to the Court's attention by letter, rather than by filing a motion for reconsideration. The Court granted defendants an opportunity to file a brief addressing Navarro's impact and after reviewing that submission, the Court finds this matter suitable for resolution without further proceedings.

Navarro plainly permits plaintiffs to assert section 1983 claims, such as those advanced by plaintiff, against the Los Angeles City Council based on the council members' prior decisions to indemnify police officers against punitive damage awards. A fair reading of Navarro also suggests plaintiff may go forward with his claims against the City Attorney Defendants at this time. For these reasons, that portion of the Court's prior order granting the City Council Defendants and City Attorney Defendants' motion to dismiss is superseded by this order and plaintiffs indemnification claims may proceed in accordance with this order.


A. Plaintiffs Indemnification Claims

Plaintiff contends the City Council Defendants may be held individually liable for his alleged injuries, based on the council members' prior decisions to indemnify police officers assessed punitive damages by juries in other civil rights actions. Reduced to its essence, plaintiffs theory connecting these decisions to his injuries, is that (1) in the past, council members were called upon, pursuant to California Government Code section 825(b), to determine whether or not to indemnify an officer against whom a punitive damage award had been assessed; (2) the council members subverted the requirements of section 825(b) by making decisions to indemnify police officers in bad faith; (3) the police officers who arrested plaintiff knew of this practice on the part of the City Council; (4) this knowledge contributed to the officers' decision to falsely arrest plaintiff, making the bad faith indemnification "policy" a moving force behind the violations of plaintiffs rights. (See FAC at ¶¶ 10, 30-40).

Plaintiff ties the City Attorney Defendants to this theory by alleging they routinely recommended that the City Council indemnify all police officer defendants who were assessed punitive damages. According to plaintiff, this advice was not independent and was actually rendered only to create the appearance of reasoned deliberation on the part of the City Council. (See id.). In reality, the City Attorney Defendants and the City Council Defendants "agreed and understood . . . to subvert the requirements of Cal. Govt. Code Sec. 825(b) by . . . seeing to it that punitive damages awarded . . . against LAPD officers for civil rights violations would [always] be paid by the City. . . ." (Id. at ¶ 31).

B. The Road to Navarro: Immunity Against a Questionable Claim

Plaintiffs indemnification theory can be traced to Trevino v. Gates, 798 F. Supp. 621 (C.D. Cal. 1992), aff'd, 23 F.3d 1480 (9th Cir. 1994) ("Trevino I"), in which the district court and the Court of Appeal held that members of the City Council were not entitled to absolute immunity for their decisions to indemnify police officers. Both the district court opinion and the Ninth Circuit's decision make clear that "the merits of . . . [plaintiffs] contention and whether it states a cause of action at all are not before the court[,]" 798 F. Supp. at 622, because "[t]he council members did not challenge the merits of plaintiffs complaint." Trevino I, 23 F.3d at 1481.

As this Court has previously observed, the Ninth Circuit's opinion in San Pedro Hotel Co., Inc., v. City of Los Angeles, 159 F.3d 470 (9th Cir. 1998), casts some doubt on Trevino I's continuing validity.

Having lost on absolute immunity grounds, the Trevino defendants next sought qualified immunity. See Trevino II, 99 F.3d at 916. Upholding the district court's grant of summary judgment on this basis, the court held:

[W]e conclude that the law is not clearly established that a policy of indemnifying punitive damage awards violates constitutional rights, either now or prior to the robbery. A city council does not violate section 1983 if it indemnifies officers against punitive damage awards on a discretionary, case by case basis, and complies in good faith with the requirements of Cal. Gov. Code § 825(b).

Trevino II, 99 F.3d at 918.

The court also affirmed summary judgment for the City finding the plaintiff had failed to establish either a custom or policy of bad faith indemnification or ratification of police misconduct. Id. at 920, 921. Based on these conclusions, the court found it unnecessary to decide whether the alleged practice was either a cause in fact or a proximate cause of the constitutional deprivation. Id.

Trevino II's decision to uphold summary judgment for the council members, on the basis of qualified immunity, and for the City, on the basis of an absence of evidence, is as significant for what it does not say as for what it does. Although the court reviewed the evidence supporting plaintiffs claim against the City, it expressly reserved the questions of actual and proximate cause. Thus, Trevino II can be read either as deciding, albeit sub rosa, that the plaintiff had adequately stated a claim or as leaving that question to another day and another panel.

Based on the favorable citation to district court opinions from the Northern District of Illinois, this Court concluded that Trevino II intended to suggest that the indemnification theory did 27 not present a cognizable claim under section 1983. The Trevino II court wrote, "Second, cases from other jurisdictions have held that a punitive damages indemnification policy could not cause a 28 constitutional deprivation. Ekergren v. City of Chicago, 538 F. Supp. 770, 772-773 (N.D. Ill. 1982); Brown v. City of Chicago, 573 F. Supp. 1375, 1379 (N.D. Ill. 1983)." Trevino II, 99 F.3d at 917. Neither case is mentioned in Navarro.

Hope for clarification soon appeared when the Ninth Circuit confronted the issue again in Cunningham v. Gates; however, Cunningham adopted the same approach as Trevino II, ruling that the council members defendants were entitled to qualified immunity for their pre-Trevino II indemnification decisions and that, with respect to indemnification decisions made after Trevino II, the plaintiff had failed to introduce any evidence of the council members bad faith. Cunningham, 229 F.3d at 1292-93. Thus, neither Trevino I, Trevino II or Cunningham, ever directly addressed whether indemnification claims, taken on their face, contain sufficient allegations of causation, both actual and proximate, to state a claim under section 1983.

C. The Navarro Decision

The Ninth Circuit most recently confronted that issue in Navarro v. Block, 2001 WL 498270 (9th Cir. May 11, 2001). Unlike Trevino II and Cunningham, Navarro involved a motion to dismiss wherein, the defendants, members of the Los Angeles County Board of Supervisors, moved to dismiss similar allegations for failure to state a claim. The Navarro court concluded that the plaintiff had adequately stated a claim against the supervisors under section 1983 by alleging "bad faith execution of a municipal policy to indemnify police officers from punitive damage awards. . . ." Navarro, 2001 WL 498270 at *1.

Navarro is surprising not so much for its conclusion, as for the assertion that its result is dictated by Trevino II and Cunningham. Reasoning backwards, the court stated that it "is clear after Trevino II and Cunningham . . . [that] local legislators are not entitled to qualified immunity if they implement their state created power to indemnify police officers from punitive damages in bad faith." Id. at *3. Since bad faith indemnification is what the plaintiff alleged, the Court held that Navarro had stated a cognizable legal claim. Id. By deciding the issue on this basis, the Navarro panel, like the Trevino and Cunningham panels before it, simply assumed that a proper causal nexus between the alleged policy of indemnification and the alleged injury had been pled.

Navarro's statement that only "local legislators who implement their state-created power indemnify police officers from punitive damage awards in good faith on a discretionary case-by-case basis are entitled to qualified immunity" conflates the qualified immunity analysis with the underlying merits determination. Navarro, 2001 WL 498270 at *2. If the City Council acts in good faith, the plaintiffs claim should fail because he or she has not shown any wrongful conduct by the defendants. Further, as this determination cannot be made until all of the relevant evidence is discovered and presented to the Court, the traditional benefits of immunity (not having to face suit) have already been lost.

D. Navarro's Impact

Several things are clear following Navarro. First, under the Navarro rule, plaintiff has adequately alleged a cause of action against the City Council Defendants and may proceed to prosecute this claim at this time. While Navarro did not directly address plaintiffs claims against the City Attorney Defendants, a fair reading of the opinion suggests these claims may also proceed as the theory is basically the same, with a somewhat more attenuated chain of causation.

Second, determination of whether defendants' actions actually or proximately caused plaintiffs injuries must be decided on summary judgment at the earliest, not under Rule 12. Navarro offered no discussion of causation at all, noting only that the plaintiff had alleged that his injuries were proximately caused by the supervisors' actions. Navarro, 2001 WL 498270 at *1, n. 1. Given the case's procedural posture, the decision cannot fairly be read as holding that there is a sufficient causal nexus between a policy of indemnification and constitutional violations by police officers under all circumstances, but rather, that this issue must be determined on the facts of each case after relevant evidence going to causation has been adduced.

Finally, Trevino II draws a line in the sand. Indemnification decisions made before the opinion cannot give rise to personal liability because the law was not sufficiently clear that lawmakers could violate a plaintiffs constitutional rights by voting to indemnify police officer defendants. This temporal cutoff may be relevant to the scope of discovery plaintiff is permitted on this claim.


For the reasons stated above, the Court's order of April 26, 2001 is amended in accordance with this order and plaintiffs indemnification claims against the City Council Defendants and City Attorney Defendants may proceed.



In Ovando v. City of Los Angeles, 92 F. Supp.2d 1011 (C.D. Cal. 2000) this Court held that plaintiffs minor daughter could state a substantive due process claim under 42 U.S.C. § 1983 ("section 1983") for the deprivation of her constitutional right to familial association based on her father's wrongful incarceration. In this motion, the City of Los Angeles claims that, as a result of Ovando, it now faces an unknown number of additional substantive due process suits with Ovando-type claims being filed by the family members of the plaintiff, each involving the same set of facts at issue in the underlying case. The number is unknown because the City has made no effort to determine whether any of the putative plaintiffs contemplate bringing a substantive due process claim. Nonetheless, the City moves under Rule 19, Federal Rules of Civil Procedure, to join each of these unknown individuals as "necessary parties" in approximately 80 pending "Rampart" cases. Having read and considered the papers, the authorities cited therein, and additional authorities not cited by the parties, the Court DENIES the motions.

A. Standards for Evaluating Motions Under Rule 19

Rule 19 provides for the mandatory joinder of parties "needed for a just adjudication," commonly referred to as "necessary" parties. Joinder is required under three circumstances. First, an absent party must be joined when the court cannot accord complete relief to the existing parties without the absent party's participation. Fed.R.Civ.P. 19(a)(1). Second, joinder will be ordered when an absent party claims an interest in the subject of the existing litigation which may be prejudiced by the outcome of the case. Fed.R.Civ.P. 19(a)(2)(i). Finally, joinder is appropriate when an existing party will be subjected to a substantial risk of incurring multiple or inconsistent obligations if an absent part is not joined. Fed.R.Civ.P. 19(a)(2)(ii).

Rule 19's conditions for joinder are phrased in the disjunctive; thus, joinder is appropriate if any condition is met. Yellowstone County v. Pease, 96 F.3d 1169, 1172 (9th Cir. 1996). The inquiry under Rule 19 is "a practical one and fact specific." Washington v. Daley, 173 F.3d 1158, 1165 (9th Cir. 1999). Thus, the question of whether to require the joinder of additional parties under Rule 19 must be made in light of the particular circumstances of each case. Northern Alaska Environmental Ctr. v. Hodel, 803 F.2d 466, 468 (9th Cir. 1986).

Here, there is no contention that complete relief cannot be affected without joining additional parties. Therefore, the relevant inquiry is whether, in the absence of an order requiring joinder, (a) a defendant will run the risk of incurring inconsistent obligations or (b) an absent party will be prejudiced if the litigation proceeds without them.

1. The City Has Not Followed The Necessary Procedures

Rule 19 states that if a party "should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. . . ." Fed.R.Civ.P. 19(a) (emphasis added). Under this rule, a defendant who wants to join an absent party as a plaintiff must first ask the absent party. See Indep. Wireless Telegraph Co. v. Radio Corp. of America, 269 U.S. 459, 473, 46 S.Ct. 166 (1926) ("The owner beyond the reach of process may be made coplaintiff by the licensee, but not until after he has been requested to become such voluntarily."); 7 Charles A. Wright, et al., Fed. Prac. Proc. § 1606 (2d ed. 2001). The City has made no effort to seek the voluntary joinder of the absent family members as plaintiffs. Indeed, it has not yet identified any specific individuals whom it believes should be joined. The City conceded as much at the hearing on the motion, but argued that the Court should fashion some sort of "one-action" rule, based on California survivorship law (even though none of these cases involves survivorship issues), so that the City could avoid the theoretical possibility of litigating suits, brought by persons who are now minors, decades hence.

Because the City has failed to follow the appropriate procedure under Rule 19, the motion could be dismissed on that ground alone. However, since the parties have spent considerable time and effort attempting to address the merits of the motion, the Court will likewise address them.

2. The City is Not Subject to a Risk of Inconsistent Obligations

Rule 19 makes the joinder of absent parties necessary if their absence will "leave any of the existing parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations. . . ." Fed.R.Civ.P. 19(a)(2)(ii). The City complains that because the underlying facts of this case, and any case brought by an absent family member, would be the same, it faces the potential for multiple and inconsistent judgments if it wins the first case and loses a later one. But multiple and inconsistent adjudications are not the same as inconsistent allegations. As explained by the Eleventh Circuit:

Inconsistent obligations occur when a party is unable to comply with one court's order without breaching another court's order Concerning the same incident. Inconsistent adjudications or results, by contrast, occur when a defendant successfully defends a claim in one forum, yet loses on another claim arising from the same incident in another forum. Unlike a risk of inconsistent obligations, a risk that a defendant who has successfully defended against a party may be found liable to another party in a subsequent action arising from the same incident — i.e., a risk of inconsistent adjudications or results — does not necessitate joinder of all of the parties into one action pursuant to Fed.R.Civ.P. 19(a).

Delgado v. Plaza La Americas, Inc., 139 F.3d 1, 3 (11th Cir. 1998) (internal citations omitted).

Thus; the fact that the City might obtain different results in different cases does not establish a basis for Rule 19 joinder.

3. Potential Prejudice to the Absent Parties Does Not Require Joinder

Although joinder need not be ordered to protect the City's interests, the Court must consider whether absent family members should be joined to protect their potential interests in the pending litigation. Rule 19 requires joinder of absent parties who have a legally protected interest in the litigation and whose absence may "as a practical matter impair or impede" their ability to protect that interest. Fed.R.Civ.P. 19 (a)(2)(i); In re County of Orange, 262 F.3d 1014, 1022 (9th Cir. August 28, 2001). Though more complex and less free from doubt than the other grounds raised in this motion, the Court concludes that joinder should not be ordered on this ground.

Resolution of this issue turns on the possibility that, under principles of res judicata and collateral estoppel, the absent parties may be precluded from pursuing future claims against the City. Thus, for example, Aguilar v. County of Los Angeles, 751 F.2d 1089, 1091 (9th Cir. 1985), tends to support the City's argument. However, later decisions have dulled Aguilar's sharp edge. See, e.g., Washington v. Daley, 173 F.3d 1158, 1167 (9th Cir. 1999); Southwest Ctr. for Biological Diversity v. Babbitt, 150 F.3d 1152, 1153-54 (9th Cir. 1998). Under those decisions, the Court must determine whether the interests of the absent parties will be adequately protected or represented by an existing party. Here the substantive due process claims of the absent family members derive from, and are dependent on, proof that the existing plaintiff suffered constitutional injury. Since the existing plaintiff must prove constitutional injury to prevail in the present suit, the interests of the parties are perfectly aligned. Moreover, because the parties allegedly share a familial relationship, the plaintiff has an additional incentive to protect the absent parties' interests. Thus, the plaintiff can properly be characterized as the virtual representative of the absent parties.

Finally, the Court believes that it should, consistent with Rule 19, respect the decision of the absent parties, who have never claimed an interest in the present litigation, to remain on the sidelines since doing so will not prejudice the City. Under both clauses of Rule 19 (a)(2), joinder is not required unless an absent party "claims an interest relating to the subject of the action. . . ." Fed.R.Civ.P. 19 (a)(2). The Ninth Circuit has held that parties who are aware of an action and choose not to join in it, need not be considered necessary parties because they have not claimed an interest in the litigation. United States v. Bowen, 172 F.3d 682, 689 (9th Cir. 1999) (collecting Ninth Circuit cases). Here, the absent family members arguably have at least constructive knowledge of the existence of this action. See Landreth v. United States, 850 F.2d 532, 534 (9th Cir. 1988) (a parent's knowledge of a child's injuries is properly imputed to the child in cases involving tort claims). Thus, joinder could be refused since none of them have chosen to join the litigation as plaintiffs, so long as no other rights or interests, protectable under Rule 19, are implicated.

For each of the foregoing reasons, the Court concludes that the City's motions should be DENIED.