Barich v. Cotati

Background

George E. Barich and Laurie Alderman sued the City of Cotati and John A. Dell’Osso, who was the City’s mayor during the events at issue. Their first amended complaint asserted claims under 42 U.S.C. § 1983, a federal law allowing claims against people acting under state law for certain civil-rights violations, based on the First Amendment’s speech protections and equal-protection rights. They also asserted a claim under Title II of the Americans with Disabilities Act (ADA).

The claims arose from three City Council meetings in 2019. At the January 8 and January 22 meetings, Alderman allegedly was not allowed to read a written statement into the record on Barich’s behalf, even though Barich had authorized her to do so. The plaintiffs alleged that other people had been allowed to speak or read statements for others. At the March 27 meeting, Barich, who alleged that he had progressive hearing loss and tinnitus, was given hearing-assist devices that did not work in the room where the meeting was held. He alleged that City officials knew about the problem but continued the meeting without moving it or providing an effective alternative, and that he eventually left because he could not meaningfully participate.

The defendants moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss claims that were not adequately pleaded, under Rule 12(e) for a more definite statement, and under Rule 12(f) to strike certain allegations. The court had previously dismissed the original complaint with permission to amend.

Judicial notice

The court granted both sides’ requests for judicial notice in full. It took notice of the existence of City Council videos, minutes, policies, rules, and the body-camera video referenced in the complaint. The court emphasized that judicial notice of public records did not establish the truth of disputed statements in those records.

First Amendment and equal-protection claims

The court denied the motion to dismiss Claims 1 through 3. In the court’s view, the amended complaint added specific examples of people who allegedly were allowed to speak or read statements for others, including an allegation that Dell’Osso later allowed Michael Ceremello to read a statement from another person. These allegations plausibly supported theories that Alderman was subjected to viewpoint discrimination—government suppression of speech because of the speaker’s viewpoint—and unequal treatment compared with similarly situated people.

The court rejected the defendants’ argument that Alderman had simply been allowed to speak on another subject and could have read Barich’s statement during her own allotted time. The meeting records and transcripts did not establish that she had been given that option.

Claim against the City

The court denied the motion to dismiss the Monell claim against the City. A Monell claim seeks to hold a municipality responsible for a constitutional violation caused by an official policy, custom, or decision by a final municipal decision-maker. The court found that many of the amended complaint’s allegations merely repeated the elements of such a claim. But the City Council’s rules gave the mayor or presiding officer authority and discretion to preserve order and enforce the rules, which plausibly supported the allegation that Dell’Osso was the final decision-maker about how the rules applied to speakers. The court therefore allowed the claim to continue at the pleading stage.

ADA claim

The court granted the motion to dismiss the ADA claim insofar as it sought injunctive relief. The plaintiffs’ allegations that the City might use the community room again and might not make the sound amplifier available were too speculative to show a sufficiently likely future injury. The court also considered the defendants’ representation that the City had rarely used the community room and did not intend to use it again.

The court denied the motion to dismiss the ADA claim for compensatory damages. It held that the amended complaint plausibly alleged deliberate indifference, which requires knowledge that harm to a federally protected right is substantially likely and a failure to act on that likelihood. The allegations stated that Barich requested an accommodation, that City personnel knew the devices did not work in the community room, and that officials nonetheless did not fix the problem or move the meeting. The court also held that whether telling Barich to raise his hand whenever he had difficulty hearing was a reasonable accommodation could not be decided on the pleadings.

Punitive damages

The court denied the motion to dismiss the request for exemplary or punitive damages as it related to the constitutional claims against Dell’Osso. Punitive damages are unavailable against a municipality under § 1983, but they may be available against an individual defendant if the defendant acted with an improper motive or reckless or callous indifference to federally protected rights. The court found the plaintiffs’ constitutional allegations sufficient to keep that request in the case at this stage.

Injunctive relief and motion to strike

The court granted the motion to dismiss the plaintiffs’ general request for injunctive relief. It concluded that the plaintiffs had not alleged a real or immediate threat of substantial or irreparable future harm from the constitutional claims. The court noted that Dell’Osso had been replaced as mayor and that the complaint did not allege a constitutional violation by the current mayor.

The court denied the motion to strike paragraphs 22, 23, and 25. Although those paragraphs described older incidents, the court found they could bear on the defendants’ motives and the possibility of future harm. The court therefore did not find that the allegations had no possible connection to the litigation.

Disposition

The court granted in part and denied in part defendants’ motion to dismiss or strike. Specifically, it denied dismissal of the First Amendment, equal-protection, Monell, and ADA compensatory-damages claims; granted dismissal of the ADA claim for injunctive relief; granted dismissal of the general request for injunctive relief; denied dismissal of the constitutional punitive-damages request against Dell’Osso; denied the motion to strike; and granted the parties’ requests for judicial notice in full. The order disposed of Docket No. 26.