Nguyen v. City Of San Jose et al

Case No.: 5:21-cv-00092-EJD
ORDER DEN. MOTS. TO STRIKE; GRANTING IN PART AND DEN. IN PART MSJ
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
DAI TRANG THI NGUYEN,
Plaintiff,
v.
CITY OF SAN JOSE, et al.,
Defendants.
Case No. 5:21-cv-00092-EJD
ORDER DENYING MOTIONS TO
EXCLUDE EXPERT OPINIONS;
GRANTING IN PART AND DENYING
IN PART MOTION FOR SUMMARY
JUDGMENT
Re: Dkt. No. 134, 137, 138
Plaintiff Dai Trang Thi Nguyen (“Plaintiff”) brings this action pursuant to 42 U.S.C. §
1983 against Defendant City of San Jose (“City”) and individual Supervisor Defendants Joseph
Hatfield (“Hatfield”) and Rachel Roberts (“Roberts”) (collectively, “Supervisor Defendants”) (all
together with the City, “Defendants”), alleging that a former City Code Inspector William Gerry
(“Gerry”) sexually assaulted and extorted Plaintiff during his code enforcement inspections of her
massage business, and Defendants allowed Gerry’s conduct to occur in deliberate indifference to
her rights to due process and equal protection. See Second Am. Compl. (“SAC”), ECF No. 93;
Order Den. Third Mot. to Dismiss (“Third MTD Order”), ECF No. 103.1
Before the Court are three motions: (1) Defendants’ motion to exclude expert testimony of
Officer Anthony Flores (“Flores”) and Leonard Powell (“Powell”) pursuant to Federal Rule of
Evidence 702; (2) Plaintiff’s motion to exclude the expert testimony of Dr. John Greene
(“Greene”) under Federal Rule of Civil Procedure 26; and (3) Defendants’ motion for summary
1 Plaintiff has stipulated to the dismissal of individual Defendants William Gerry and Edgardo
Garcia. Opp’n to MSJ 1.
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Case No.: 5:21-cv-00092-EJD
ORDER DEN. MOTS. TO STRIKE; GRANTING IN PART AND DEN. IN PART MSJ
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judgment. Pl.’s Mot. to Strike, ECF No. 134; Defs.’ Mot. to Strike, ECF No. 137; Mot. for Summ.
J. (“MSJ”), ECF No. 138. All motions are fully briefed. Opp’n to Defs.’ Mot. to Strike, ECF No.
140; Reply ISO Defs.’ Mot. to Strike, ECF No. 141; Opp’n to Pl.’s Mot. to Strike, ECF No. 135;
Reply ISO Pl.’s Mot. to Strike, ECF No. 136; Opp’n to MSJ, ECF No. 139; Reply ISO MSJ, ECF
No. 142.
The Court held a hearing on January 15, 2026, and heard oral arguments from both parties.
ECF No. 144. For the reasons stated below, the Court DENIES both motions to exclude expert
testimony; GRANTS Defendants’ motion for summary judgment as to Supervisor Defendants;
and DENIES Defendants’ motion for summary judgment as to the City.
I. BACKGROUND
It is undisputed that former City Code Inspector Gerry repeatedly raped and extorted
Plaintiff while inspecting her massage business in 2019.2 The Court will discuss in turn facts
relevant to Plaintiff’s claims against the City and Supervisor Defendants.
A. The City
Plaintiff alleges the City acted with deliberate indifference to Plaintiff’s rights to due
process and equal protection by implementing a practice of sending male code inspectors into
massage establishments alone and unsupervised, despite the obvious risk that such a practice is
likely to lead to exploitation and injuries such as Plaintiff’s, and despite the several prior
complaints received specifically about Gerry’s misconduct. Plaintiff also alleges the City’s
fragmented reporting and supervision policy allowed Gerry’s conduct to continue despite the
several prior complaints.
1. Code Enforcement Practices and Industry Knowledge of Risks
The City has an undisputed practice of sending solo male code inspectors into massage
businesses unsupervised. To prove that this practice was adhered to with deliberate indifference to
Plaintiff’s rights, Plaintiff plans to introduce two industry experts, Powell and Flores. Both
2 Gerry is currently serving a thirty-four-year prison sentence for these and other crimes.
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ORDER DEN. MOTS. TO STRIKE; GRANTING IN PART AND DEN. IN PART MSJ
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experts have submitted reports and deposition testimony opining that the City’s practice presented
obvious risks of harm, and against this backdrop, Gerry especially should have been removed
from the field following the complaints of serious misconduct. Powell Report, ECF No. 137-2;
Flores Report, ECF No. 137-4. The Court will discuss these opinions in greater detail in its
discussion of Defendants’ motion to strike below.
Plaintiff also highlighted during oral arguments that Roberts and Hatfield agreed in their
depositions that Gerry required a particularly high degree of supervision given his considerable
authority as the only massage business code inspector in the City. See Hatfield Dep. 76:14–77:8,
ECF No. 139-1; Roberts Dep. 52:5–15, ECF No. 139-1.
2. Complaints
Considering this context, Plaintiff presents evidence of five complaints they argue should
have made the risk of harm in the City’s code enforcement practices even more obvious.
First, at some point in 2015 prior to his work in the Code Enforcement Office, a female
City employee reported to the City that Gerry hugged her from behind, touched her breasts, put
her in a headlock, and touched her knee. Additional Fact No. 14, ECF No. 142-2.3 This
complaint was never disclosed to Hatfield and Roberts when they became his supervisors two
years later. Id. The City provides that the incident was investigated, and the City found no
wrongdoing. Id.
Second, on September 18, 2018, the husband of a massage worker contacted the City to
report Gerry’s conduct toward his wife, Anh Moore. Additional Fact No. 15. The complaint was
assigned to the Office of Employee Relations (“OER”) and investigated by OER Senior Executive
Analyst Cheryl Parkman. Additional Fact No. 16. Moore reported to Parkman that Gerry told her
she was “his lady,” touched her shoulder when she tried to walk away, pressured businesses not to
hire her, and boasted that he has “lots of girlfriends” and that “people wanted to sleep with [him].”
Id. She also reported other workers feared complaining about Gerry because of his status as a City
3 The Court incorporates the parties’ citations to the record in their Separate Statements.
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employee. Id. Parkman discounted Moore’s report for various reasons, including Moore having
been previously cited for prostitution. Additional Fact No. 17. Parkman did not notify anyone in
the Code Enforcement Office about the complaint. Additional Fact No. 19. Hatfield and Roberts
learned of this report for the first time during their deposition and both expressed shock. Id.
Roberts stated that she felt “gobsmacked” and testified that she would have expected to be
informed of this complaint. Id.
Third, on September 27, 2018, the City received a report to the Code Enforcement Office
that Gerry’s City vehicle was parked outside a massage establishment for an extended period of
time. Additional Fact No. 20. Roberts questioned Gerry and relied on his explanation that he was
there on official business without further investigation. Id.
Fourth, in October and November 2018, the City received four handwritten letters accusing
Gerry of misconduct. Additional Fact No. 21. The letters were routed to Roberts, Hatfield, and
Parkman, as well as Lieutenant Paul Messier at the San Jose Police Department (“SJPD”). Id.
The letters stated that Gerry was “having sex with a girl massage,” that he “protect[ed]” illicit
spas, and that Gerry showed favoritism to one spa that employed “underage girl” masseuses while
providing illegal “extra” services. Id. Photos enclosed with the letters showed Gerry embracing a
young Asian woman and another image of him with his face pressed to hers. Id. Roberts
forwarded the letters to SJPD out of concern that Gerry was being blackmailed. Additional Fact
No. 22. Messier testified the photographs were immediately concerning because they suggested
an inappropriate relationship with a woman in a regulated establishment, but he had no authority
over Gerry’s supervision as a code inspector. Id.
Finally, on December 16, 2018, approximately three weeks before Gerry met with Plaintiff
for the first time, the City received another complaint through the OER Whistleblower Hotline.
Additional Fact No. 24. The anonymous caller informed the City that Gerry was “taking
advantage of the Asian community,” including by improperly touching Asian women working in
massage parlors, “rubbing and squeezing” their shoulders and backs, and taking women into back
rooms and insisting that they massage him. Id. The caller further reported that Gerry allowed
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“bad kind of massage stores” to remain open, received “envelopes of money,” and that photos and
video documented his conduct. Id. Parkman was also assigned to investigate this complaint and
referred it to the SJPD. Additional Fact No. 25. Parkman did not disclose the complaint to the
Code Enforcement Office. Id. Messier received the complaint and was “very concerned,” even
“jumping out of [his] chair,” because the whistleblower allegations were detailed and credible.
Additional Fact No. 27. But Messier had no authority to restrict Gerry’s duties. Id.
Hatfield and Roberts learned of this complaint for the first time at their deposition as well and
expressed similar shock. Additional Fact No. 26. Hatfield testified that he “wish[ed] [he] knew”
of the complaint at the time, and he could have supervised Gerry differently or removed him from
the field. Id.
3. The City’s Reporting System
As referenced above, Plaintiff recently discovered that complaints about Gerry were
handled either by the Code Enforcement Office, the OER, or the SJPD. The Code Enforcement
Office had day-to-day supervisory authority over Gerry and could reassign him, require
accompaniment, or limit access to massage businesses. Additional Fact No. 12. The OER had the
authority to investigate misconduct, recommend duty restrictions, place employees on leave, or
recommend discipline. Id. The SJPD had no supervisory authority over Gerry. Additional Fact
No. 13.
Shortly after Gerry’s arrest, then City Mayor Sam Licardo issued a public statement on the
City’s failed reporting systems. Additional Fact No. 28. The Mayor acknowledged that the City
lacked defined procedures for ensuring that complaints were routed to the appropriate supervisory
officials and indicated that the City would implement new protocols to ensure similar allegations
were handled properly in the future. Id.
B. Supervisor Defendants
Roberts and Hatfield were Gerry’s supervisors in the Code Enforcement Office during this
time. Plaintiff originally alleged that they were aware of all complaints lodged against Gerry, but
as discussed above, Plaintiff now knows this was not the case—it is undisputed that Supervisor
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ORDER DEN. MOTS. TO STRIKE; GRANTING IN PART AND DEN. IN PART MSJ
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Defendants discovered the Moore report and the OER Whistleblower Hotline complaint for the
first time during their depositions. Instead, the Code Enforcement Office received only two
complaints: (1) the September 2018 suspicious vehicle report; and (2) the October and November
2018 handwritten letters. Fact Nos. 30, 35. Roberts knew of both, but Hatfield was never made
aware of the vehicle report. Fact No. 37. Roberts discussed the vehicle report with Gerry and was
satisfied by his explanation that he was present at that facility on official business. Fact No. 36.
Roberts also questioned Gerry about the handwritten letters, instructed him to not to return to the
businesses implicated in the letters, informed Hatfield of the issue, and sent the letters to the SJPD
to investigate, believing they were evidence that Gerry was being extorted. Fact Nos. 31, 32, 33,
34.
II. LEGAL STANDARD
A. Motion to Strike Expert Testimony
Courts act as the gatekeeper of expert testimony to ensure that such testimony is reliable
and relevant under Federal Rule of Evidence 702. Kumho Tire Co. v. Carmichael, 526 U.S. 137,
147 (1999); see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). The proponent
of expert testimony has the burden of proving admissibility. In re Korean Ramen Antitrust Litig.,
281 F. Supp. 3d 892, 931 (N.D. Cal. 2017) (citations omitted). Before an expert can offer her
opinions, she must be qualified by “knowledge, skill, experience, training, or education.” Fed. R.
Evid. 702. Once she is qualified, Rule 702 permits her to testify as long as “(a) the expert's
scientific, technical, or other specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c)
the testimony is the product of reliable principles and methods; and (d) the expert's opinion
reflects a reliable application of the principles and methods to the facts of the case.” Id. This
multifactor inquiry is flexible, and “Rule 702 should be applied with a ‘liberal thrust’ favoring
admission.” Wendell v. GlaxoSmithKline LLC, 858 F.3d 1227, 1232 (9th Cir. 2017) (citations
omitted). But “there is no presumption in favor of admission.” Engilis v. Monsanto Co., 151
F.4th 1040, 1049 (9th Cir. 2025).
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The district court enjoys “broad latitude” with regard to how to determine reliability.
Kumho Tire Co., 526 U.S. at 142. A district court must distinguish an expert's qualifications from
the reliability of the expert’s principles and methods. Daubert v. Merrell Dow Pharms., Inc., 43
F.3d 1311, 1315–16 (9th Cir. 1995). What courts assess “is not the correctness of the expert's
conclusions but the soundness of his methodology.” City of Pomona v. SQM N. Am. Corp., 750
F.3d 1036, 1044 (9th Cir. 2014) (quoting Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010), as
amended (Apr. 27, 2010)). “Vigorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and appropriate means of attacking
shaky but admissible evidence.” Daubert, 509 U.S. at 596.
B. Motion for Summary Judgment
Courts may grant summary judgment on a claim or defense only if the moving party shows
“there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). There is a genuine dispute when enough evidence exists in the
record for a reasonable fact finder to decide in favor of the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). And a fact is material when it might affect the outcome of
the case. Id. When evaluating whether a moving party has satisfied this standard, courts view all
evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in
that party’s favor. Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). This moving
party bears the initial burden of showing that there is no genuine dispute of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets that burden, the opposing
party must produce affirmative evidence “from which a jury could find in [its] favor” in order to
defeat summary judgment. F. T. C. v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009).
III. DISCUSSION
The Court will begin with the parties’ motions to strike expert testimony before moving to
Defendants’ motion for summary judgment.
A. Motions to Strike
The Court finds Powell and Flores meet Federal Rule of Evidence 702’s criteria to testify
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as expert witnesses, and Greene may be introduced as a rebuttal expert under Federal Rule of Civil
Procedure 26. The parties may still raise objections regarding the admissibility of specific
opinions in motions in limine or during trial.
1. Powell
Powell served as the Code Enforcement Manager, Zoning Administrator, and Deputy
Building Official for Dangerous Building Enforcement for the City of Fremont from 2001 to 2020,
where he supervised officers enforcing zoning, housing, sanitation, and building codes. Powell
Report 2. As part of this role, he developed processes and managed investigations in massage
business regulation and enforcement, trained and supervised officers, and implemented ethics and
accountability systems. Id. Prior to this role, Powell worked as Senior Code Enforcement Officer,
Transit Manager, and Airport Manager with the City of Tracy from 2000–2001. Id. He has also
served multiple terms as Director of the California Association of Code Enforcement Officers
(“CACEO”), where he authored the California Code Enforcement Officer Standards Act, authored
CACEO Administrative Regulations, published educational articles, and trained officers and
supervisors on code enforcement practices throughout the state. Id. at 3. The California Code
Enforcement Officer Standards Act and its regulations created recognition for code enforcement as
a public safety profession, established statewide training and ethical standards, and created a
certification program. Id. As a CACEO instructor, Powell taught at academies, conferences, and
trainings across California on topics including ethics and supervisory responsibility in high-risk
enforcement environments such as massage establishments. Id. In recognition of this work and
more, Powell received a Presidential Award of Achievement and Lifetime Achievement awards
from CACEO. Id. at 3–4.
Powell bases his opinions here on this experience, as well as several supplemental sources
including: the CACEO regulations; the Code Enforcement Officer Certification training
specifications; two Polaris articles regarding human trafficking in illicit massage businesses; and
the City’s municipal code. Id. at 6.
In considering all of the above, Powell formed seven overarching opinions in this case:
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1. “Municipal code enforcement inspectors have unique
authority over the subjects of their enforcement activities that requires
proper oversight.”
2. “The city of San José massively understaffed its code
enforcement division tasked with investigating the massage
industry.”
3. “It is well-known in the code enforcement community that
massage businesses are majority owned and operated by immigrant
women who are particularly vulnerable to abuse.”
4. “Solo male code inspections of massage businesses are
improper.”
5. “Despite the well-known and foreseeable risks, it was San
Jose’s policy to give Gerry an unreasonably immense amount of
power over massage businesses as its solo male code inspector.”
6. “Because the city’s policy of solo male code enforcement
gave so much power to Gerry, it was essential to have systems in place
to detect and prevent him from abusing his power.”
7. “The supervision policies of San José were not adequate to
prevent violations of law by Gerry.”
Id. at 7–22.
Plaintiff plans to use Powell’s testimony in part to prove deliberate indifference—i.e., that
the City was on constructive notice that its failure to adhere to certain best practices, including
using a partner system for inspections, would likely result in a constitutional violation.
Defendants argue Powell’s testimony should be excluded because: (1) his opinions do not
help the jury decide the case; (2) his opinions are unreliable; and (3) he bases his opinions on
“common sense.” The Court will address each argument in turn.
a. Helping the Jury Decide the Case
Rule 702 requires that “the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid.
702(a).
Defendants argue Powell’s testimony will not help the jury decide whether the City was
deliberately indifferent. Powell’s report identified several “best practices” in the code
enforcement industry that San Jose was not implementing at the time of Plaintiff’s injury,
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including: using partner systems for inspections; random supervisory audits; rotation of inspectors
across industries; direct supervisory contact with regulated businesses; and formal post-action
debriefs. Powell Report 18. However, during his deposition, Powell testified that he does not
believe code inspectors are “likely” to extort or sexually assault people absent those “best
practices.” Powell Dep. 40:1–10, ECF No. 137-3. Defendants argue this renders his testimony
irrelevant to the ultimate question—whether the city was on constructive notice that its policy of
solo male code enforcement would likely result in a constitutional violation.
The Court finds this does not disqualify Powell from testifying as an expert in this case.
Although Powell declined to use the word “likely” in his deposition, he also testified there is “a
high probability” that lone male enforcement officers would commit sexual assault and corruption,
and that lone code enforcement officers going into massage businesses is an outdated practice
because “there is a high probability” that something may go wrong. Id. at 53:18–20, 76:22–24.
While Defendants’ argument may present a question of witness credibility for the jury to weigh, it
does not render Powell’s opinion on this matter unhelpful to the jury. See Alaska Rent-A-Car, Inc.
v. Avis Budget Grp., Inc., 738 F.3d 960, 969–70 (9th Cir. 2013) (“[T]he judge is supposed to
screen the jury from unreliable nonsense opinions, but not exclude opinions merely because they
are impeachable. The district court is not tasked with deciding whether the expert is right or
wrong, just whether his testimony has substance such that it would be helpful to a jury.”).
b. Reliability
Rule 702 also requires that an expert’s testimony “is based on sufficient facts or data,” “is
the product of reliable principles and methods,” and “reflects a reliable application of the
principles and methods to the facts of the case.” Fed. R. Evid. 702(b)–(d). Expert testimony is
generally deemed sufficiently reliable if the expert has “good grounds” for the testimony—i.e., if
the expert’s conclusions are based on the knowledge and experience of the expert’s discipline
rather than on “subjective belief or unsupported speculation.” Daubert, 509 U.S. at 590.
Defendants argue that Powell’s opinions are narrowly based on his experience in the City
of Fremont and the City of San Rafael, which is insufficient to opine on industry-wide practices.
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To illustrate this point, Defendants point to Powell’s opinion that best practices for inspection of
massage businesses include “multi-inspector teams, strong female representation, and supervisory
presence,” Powell Report 12; yet during his deposition, he testified that the only jurisdiction other
than Fremont that implemented these practices was San Rafael. Powell Dep. 18:13–25.
Defendants also argue Powell’s opinions are unreliable because he could not identify any written
standard, guideline, or other documentation that addresses interactions between code enforcement
inspectors and women in the massage industry.
The Court finds Defendants’ arguments unpersuasive. Defendants’ assertion that Powell’s
experience is limited only to Fremont and San Rafael is taken out of context and contradicted by
his documented experience. As author of the California Code Enforcement Officer Standards Act
and CACEO guidelines, Powell drafted California legislation and regulations that established
statewide training and ethical standards for code enforcement officers, and he implemented these
standards in Fremont. When asked about which other jurisdictions have implemented these
standards, he listed San Rafael as one of the “other Bay Area cities” with similar practices.
Though he could not recount the other jurisdictions during his deposition, he maintained his belief
that other cities beyond San Rafael implemented these practices as well. Powell Dep. 18:13–25.
This presents an issue of fact for the jury; it does not reflect a failure to base his opinions on the
knowledge and experience of his discipline.
As for his reliance on external written documents, this is not necessary for Rule 702
purposes. So long as the witness “explain[s] how that experience leads to the conclusion reached,
why that experience is a sufficient basis for the opinion, and how that experience is reliably
applied to the facts,” than the witness may rely “solely or primarily on experience.” Fed. R. Evid.
702, advisory committee notes to 2000 amendments (citing Daubert, 43 F.3d at 1319). Powell
does so here. As detailed above, Powell has served as a code inspector supervisor for nearly two
decades and authored the California legislation and regulation that established statewide training
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and ethical standards.4 In his report and his deposition, he has sufficiently explained how this
experience formed his opinions on best practices in this industry, and he relies on that experience
to opine on the facts of this case. Therefore, Defendants’ arguments regarding the lack of written
documents go to weight rather than admissibility. See Engilis, 151 F.4th at 1049 (“[C]hallenges to
an expert’s opinion go to the weight of the evidence only if a court first finds it more likely than
not that an expert has a sufficient basis to support an opinion.”); see also Elosu v. Middlefork
Ranch Inc., 26 F.4th 1017, 1025 (9th Cir. 2022) (“The judge is ‘a gatekeeper, not a fact finder,’
and the ‘gate could not be closed to this relevant opinion offered with sufficient foundation by one
qualified to give it.’”).5
c. Common Sense
Finally, Defendants argue that Powell’s opinions on code inspector supervision amount
only to “common sense,” not the opinion of an expert. For example, Defendants contend that
Powell “pointed to a ‘common sense supervisory assessment’” as support for the opinion that
Roberts and Hatfield should have been made aware of all complaints about Gerry. Def.’s Mot. to
Strike 8 (quoting Powell Dep. 109:14–16). Defendants also highlight Powell’s testimony that his
re-assignment protocols are not specific to code enforcement, but rather, are “kind of everywhere
in life such as a consumer transaction. If one person has a conflict with somebody else in a
commercial setting, the general approach is, ‘Can I talk to somebody else?’” Id. at 8–9 (quoting
Powell Dep. 71:11–21).
But, as Plaintiff highlights, Defendants’ excerpts of Powell’s deposition are taken out of
context. For example, the phrase “common sense supervisory assessment” was counsel’s, not
4 Though Defendants correctly highlight that the Code Enforcement Officer Standards Act itself
doesn't promulgate any inspection standards, the Act designates the California Association of
Code Enforcement Officers as the body to promulgate standards and certify examinees under such
standards. Powell Dep. 9:20–10:19. Powell served multiple terms as Director of CACEO, where
he wrote the CACEO Administrative Regulations he discusses in his deposition.
5 The Court also notes that Powell’s expertise differs significantly from the medical and scientific
experts in the cases Defendants reference. See, e.g., Holbrook v. Lykes Bros. S.S. Co., 80 F.3d
777, 782–83 (3d Cir. 1996) (treating physician testimony admissible because diagnosis based on
lab results, the patient’s symptoms, and his experience).
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Powell’s:
A. So my opinion is that it didn't include -- well, it was inadequate
that it didn't include notifying the department supervisors initially,
and it was silent prior to July 8, 2021, on how to treat the incidents of
a crime.
Q. Okay. Anything else?
A. Yeah. My concern is that based on the way the document is written,
it was inadequate in that it did not trigger the code enforcement
supervisors to be notified of the complaints automatically or initially,
or even be consulted or form a team. And the result was as was stated
in Hatfield's testimony or deposition that, "Had I known about certain
complaints, I would have acted on them." I think this policy would
default it to create that result. And that's -- that's my comment.
Q. Okay. Is there any industry standard or CACEO policy that you're
aware of that would inform that assessment on your part?
A. Not specifically. I think it's good supervisory practice that if an
employee is committed or committing a crime against a person that
the agency do all that they can to protect everybody involved
immediately and take swift action and not allow employees to say,
"Well" -- and create the opportunity for employees -- the supervisor
to say, "Well, I wasn't notified. I couldn't do anything," or to sit parked
in a -- in the office of an employee relations department who may not
-- may not see that report for some days.
Furthermore, I think the policy should have a timeline on how many
dates it can sit before the notifications are made to those who can take
immediate intervention, such as the code enforcement supervisor.
Q: And that's sort of your common sense supervisory assessment?
A. Yes.”
Powell Dep. 108:6–109:16 (emphasis added). And before discussing his general observations of
re-assignments in commercial settings, Powell testified that his knowledge of re-assignment
practices for code enforcement inspectors was based on his experience in the code enforcement
field. The entire query reads as follows:
Q. Okay. In section 7.8. it's your opinion that – and take your time to
review it, but that Gerry wasn't re-assigned and that best practice
dictates that he should have been. Is that right?
A. I'm reading it. Yes. My opinion is what's stated in the first sentence,
remove them from the assignment pending investigation.
Q. Okay. And it's also your opinion that that's a best practice?
A. Yes.
Q. Where is that identified as a best practice other than in your
report?
A. I don't know. I learned it through practice from city manager
on down.
Q. At the City of Fremont?
A. Yes.
Q. Anywhere else?
A. Well, kind of everywhere in life such as a consumer transaction. If
one person has a conflict with somebody else in a commercial setting,
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the general approach is, "Can I talk to somebody else?" So
substituting somebody to remove an immediate conflict is an efficient
use of resources, and that carries over into code enforcement where
removing the code inspector from a case where there seems to be a
dispute, or an allegation, is the easiest way to park it and the most
efficient way to carry on with business while preserving safety and
integrity.
Q. Anything else specific to the code enforcement environment?
A. Yes. It's my entire experience has been that code enforcement
officers tend to take that personally and say, "No, I don't want to
be removed," so a supervisor needs to have thick enough skin to
be able to explain and articulate why it's in everybody's best
interest on a temporary removal and assignment. And it should
go further that than. There should be regular rotation anyway so
that one does not decide on its own regulated community.
Powell Dep. 70:25–72:14 (emphasis added).
Upon reviewing the whole record, the Court finds Powell sufficiently uses his expertise in
the code enforcement industry, rather than common sense available to any lay person, to provide
his opinions.
Accordingly, the Court finds that Powell is qualified as an expert by his knowledge, skill,
experience, training, and education in the code enforcement industry. Plaintiff has also
sufficiently demonstrated it is more likely than not that Powell’s expertise will help the jury
understand the evidence and determine the issue of deliberate indifference; that his testimony is
based on sufficient knowledge of the industry; that his testimony is the product of reliable
principles; and that his opinion reflects a reliable application of these principles to the facts of this
case.
The Court therefore DENIES Defendants’ motion to exclude Powell’s expert testimony.
2. Flores
Flores has been a police officer with the San Francisco Police Department (“SFPD”) since
1982. Flores Report 1. He is currently acting Lieutenant in charge of the human trafficking unit.
Id. During his career, Flores has conducted and supervised “several hundred” massage business
inspections, often as many as fifty to sixty per year. Id. at 2. He describes these inspections as
always consisting of multiple people, including sworn police officers and, on occasion, non-sworn
enforcement personnel from other agencies such as the Department of Public Health. Id. During
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his work in the SFPD Vice Unit, Flores worked extensively with municipal code inspectors as
well. Id. at 6. Flores also regularly teaches other law enforcement professionals how to conduct
investigations involving vulnerable community members, including massage workers, and he is an
instructor at the SFPD academy, where he teaches courses on Human Trafficking, Vice Crimes,
Domestic Violence, and Principled Policing. Id. at 2.
Flores bases his opinions here on this experience, as well as several supplemental sources
including: a United Nations article on human trafficking; an article regarding sexual violence
perpetrated by police; two Polaris articles regarding human trafficking in illicit massage
businesses; an article on law enforcement sexual misconduct prevention and accountability; and
the City’s municipal code. Id. at 4–9.
In considering all of the above, Flores formed seven overarching opinions in this case:
1. “Allowing lone men (whether sworn or unsworn) to conduct
enforcement activities in massage parlors is an archaic and outdated
concept that is virtually unheard of in the twenty-first century. The
norm is to send multiple inspectors at a time into an establishment-
preferably including female inspectors-to reduce the risk of sexual
harassment or assault.”
2. “These precautions are necessary because there is a patently
obvious risk of sexual assault associated with sending men into a
space known to be staffed by indigent, immigrant women, who have
limited educational opportunities, speak little to no English, and in
some cases have been human trafficked.”
3. “Based on my knowledge of the industry, it is impossible that
those with supervisory authority over Mr. Gerry were unaware of this
obvious consequence of lone male enforcement. That is doubly true
once allegations of misconduct-complete with photographs-were
made public.”
4. “The thought that after credible complaints were received, the
City of San Jose and Gerry's Supervisors did not take affirmative steps
to immediately protect the public is outrageous.”
5. “Supervisors and investigators that I teach throughout the
State are well aware that municipal employees with enforcement
power over massage workers would be prone to violate their
constitutional rights-or at a minimum be put in compromising
positions-without strict supervision and accountability.”
6. “Massage businesses are particularly susceptible to corruption
as a consequence of the vulnerable immigrant women who run them,
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therefore particularly strict supervision is required of enforcement
officers.”
7. “The City's failure to properly supervise William Gerry
endangered the public and led to the extortion and/or sexual assault
or harassment of multiple women, including Dai Nguyen.”
Id.
Defendants argue Flores’s testimony should be excluded because: (1) he lacks the expertise
to provide opinions on code enforcement; (2) his opinions are unreliable; and (3) he bases his
opinions on “common sense.” The Court will address each argument in turn.
a. Expertise
Defendants first argue that Flores lacks the code enforcement expertise necessary to offer
opinions about the industry because he is a police officer, not a code enforcement inspector.
Defendants also contend that the articles he references are specific to police conduct; he testified
that he has never taught non-sworn personnel like code inspectors; and he testified that he has
never received instruction on supervision of code inspectors in massage businesses.
The Court finds that, despite his role as a police officer, Flores possesses the expertise
required under Rule 702 to testify on code enforcement practices in massage businesses. Though
Flores has never been a code inspector, Flores has worked extensively with code enforcement
inspectors in his “several hundred” massage business inspections. Flores also testified that he has
seen code inspectors operate with enforcement powers akin to those of police officers, particularly
in the eyes of certain vulnerable communities including illicit massage business employees, such
that the distinction between police officer and code enforcement investigator may be immaterial in
this context. Flores Dep. 88:14–90:20, ECF No. 137-5. This experience is sufficient to opine on
the City’s policies regarding massage code enforcement of massage entities and to illustrate the
intricacies of code enforcement police powers. See, e.g., Thomas v. Newton Int'l Enters., 42 F.3d
1266, 1269–1270 (9th Cir. 1994) (finding a longshoreman qualified to opine on unreasonably
dangerous work environment).
The Court also observes that Defendants’ references to Flores’s testimony are, again here,
taken out of context. For example, Defendants represent that Flores has never taught non-sworn
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personnel like code inspectors, but this statement was made in response to counsel’s question of
whether Flores has taught non-sworn personnel outside of San Francisco. In the page prior to
Defendants’ citation, Flores testified that he has, indeed, taught non-sworn personnel like code
inspectors:
Q. What about your classes on human trafficking investigations
at massage parlors to nonsworn personnel? Have you taught that
course?
A. Yeah . . . .
Q. Have you taught your human trafficking investigations in massage
parlors to nonsworn personnel outside of San Francisco?
A. Well, if you talk about -- well, no. Strike that. No. But if I can just
add. So if we're at a conference, I really don't know if that person
is not they're not solely based not in San Francisco. There could
be other individuals like the Coalition to End Human Trafficking
from Santa Clara, the Santa Clara Coalition to End Human
Trafficking. So we could have other individuals that are inside the
audience. I just wouldn't know if they were all San Francisco
based or not. Hopefully that makes sense.
Q. Okay. But as you sit here today you don't have knowledge of
anyone specifically that you have taught that is nonsworn that you've
taught your human trafficking massage parlor course to. Is that
correct?
A. No.
Flores Dep. 23:21–25:5. And Defendants’ representation that Flores never received instruction on
supervision of code inspectors in massage businesses is also taken out of context. During this
portion of his deposition, counsel asked only about whether his “Massage Therapy Council
training courses” taught any methodologies for supervising code enforcement inspectors in
massage businesses. Flores Dep. 28:2–8. But Flores’s report lists twelve other courses he has
taken, and he testified that some of these courses also involved code enforcement: “the vice
section from LAPD and also in the POST human trafficking course.” Flores Dep. 16:2–24.
b. Reliability
Next, Defendants argue that Flores lacks reliable support for his opinion that sexual assault
or extortion is the likely outcome of a solo male code inspector working in massage businesses.
Defendants contend that Flores testified he was not aware of any other instance in his experience
in which a code enforcement inspector assaulted or extorted a massage business worker; he is not
aware of any standards applicable to supervising code inspectors; he is not aware of any
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jurisdiction that actually supervises code enforcement inspectors the way he opines they should be
supervised; and he could not point to any written standards that suggest re-assigning an employee
about whom a complaint has been made.
Defendants’ arguments here are similarly unpersuasive. First, whether similar conduct has
occurred in the past is not necessarily relevant to the theory of Plaintiff’s case—that the risks of
exploitation were so obvious and well-known in the industry that the City did not need a pattern of
similar instances to be on constructive notice. See Order Den. Third Mot. to Dismiss 12–13.
Second, Flores’s lack of experience in code enforcement supervision could foreseeably render
some opinions on code enforcement inadmissible, but it does not render his entire testimony
unreliable.6 Flores still sufficiently explains how he formed his opinions on code enforcement
best practices based on his observations, trainings, and teachings conducted over forty-three years
in the SFPD overseeing code enforcement inspections in massage businesses—including
observations of employees vulnerable to exploitation, power dynamics, intimate spaces, and code
enforcement investigators’ use of police powers. Third, as the Court noted above, written
standards on re-assigning code inspectors after receiving complaints is unnecessary to forming a
reliable opinion. The Court finds Flores may rely “solely or primarily on experience” because he
has sufficiently explained how his experiences have led to his conclusions on code enforcement
best practices in massage businesses, why that experience is a sufficient basis for his opinions, and
how his experience is reliably applied to the facts of this case. Fed. R. Evid. 702, advisory
committee notes to 2000 amendments (citing Daubert, 43 F.3d at 1319).
c. Common Sense
Finally, Defendants also argue that Flores’s opinions are no more than “common sense.”
But upon review of the cited potions of Flores’s testimony, it appears Flores’s use of “common
sense” referred to “common sense” among industry professionals:
6 Defendants have not moved to strike specific portions of Flores’s opinion, but rather, requests
exclusion of Flores entirely. Defendants may raise more specific objections in motions in limine
or during trial.
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Q. And what law enforcement agencies do you have knowledge of
that follow this practice for law enforcement?
A. I think from my 44 years of law enforcement working with
other individuals that work human trafficking cases. I've talked to
other colleagues about this particular case, and I get the same look. I
get the same reaction from them. You know, "Are you serious?
They're sending a lone man inside these places?" So just because it's
not written, it literally comes down to common sense. And that
individual going inside there by themselves, you're just -- there's
problems. There's definitely problems when you're doing these type
of operations.
Flores Dep. 77:16–78:4 (emphasis added). Upon reviewing Flores’s report and testimony in its
entirety, the Court is satisfied that his opinions are based on his relevant experience, including
experience conducting massage business inspections, rather than on the common sense available
to any lay person.
Accordingly, the Court also finds that Flores is qualified as an expert by his knowledge,
skill, experience, training, and education in the field of massage business inspections. Plaintiff has
also sufficiently demonstrated it is more likely than not that Powell’s expertise will help the jury
understand the evidence and determine the issue of deliberate indifference; that his testimony is
based on sufficient knowledge of the industry; that his testimony is the product of reliable
principles; and that his opinion reflects a reliable application of these principles to the facts of this
case.
The Court therefore DENIES Defendants’ motion to exclude Flores’s expert testimony.
3. Greene
Unlike Powell and Flores, Plaintiff does not challenge the admissibility of Greene’s
opinions under Rule 702. Instead, Plaintiff seeks to exclude Defendants’ rebuttal expert on
procedural grounds under Federal Rule of Civil Procedure 26.
Rule 26 generally outlines the rules for expert disclosures and defines a rebuttal expert as
one who “is intended solely to contradict or rebut evidence on the same subject matter identified
by another party.” Fed. R. Civ. P. 26(a)(2)(D)(ii). Plaintiff argues that Greene should be excluded
because he was mischaracterized as a “rebuttal” expert—posturing that Defendants actually
intended on using him as an initial expert, but they missed the deadline.
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Defendants first disclosed Greene during fact discovery on August 19, 2025, as the person
who would conduct a psychiatric independent medical examination (“IME”) on Plaintiff. Greene
conducted his IME in August, but Plaintiff never saw his report. Weeks later, Plaintiff disclosed
her initial expert Dr. Ponton. And about one month later, after the deadline for initial expert
disclosures had past, Defendants disclosed Greene as a “rebuttal” psychiatric expert on September
30, 2025. They characterize Greene as rebutting Ponton’s opinions on damages—specifically,
Greene opines that Plaintiff’s psychiatric health injuries do not require the length and degree of
care opined by Ponton. But in support of his rebuttal, Greene uses findings from the IME he
conducted prior to Ponton’s report. Plaintiff argues Greene’s opinion must therefore be excluded
because Greene is not a “rebuttal” expert, but rather an initial expert, and he should have been
disclosed as such prior to the deadline for initial expert disclosure on September 22, 2025. In
other words, because he did not conduct his IME in response to Ponton’s report, his opinion was
never intended solely to contradict or rebut the evidence in that report.
The Court agrees with Plaintiff that the timing of the IME and Greene’s report is unusual.
However, Plaintiff has not provided any authority prohibiting the use of prior findings to rebut the
opinion of an initial expert during trial. So long as Greene’s testimony only uses his IME findings
to narrowly contradict or rebut Ponton’s opinions on the same subject matter, the Court sees no
reason for exclusion. Plaintiff may of course cross-examine Greene on the timing of his report
and raise additional objections regarding specific portions of Greene’s proffered testimony in
motions in limine or at trial.
The Court therefore DENIES Plaintiff’s motion to exclude Greene’s expert testimony.
B. Motion for Summary Judgement
The Court finds genuine issues of material fact preclude summary judgment in the City’s
favor, but claims against Supervisor Defendants are deficient as a matter of law.
1. The City
To succeed in her Monell claims against the City, Plaintiff must show that the City (1)
caused her injuries through a policy, custom, or practice (2) which was adhered to with deliberate
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indifference to her constitutional rights. See Third MTD Order (describing Plaintiff’s theory of
liability); Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). The City
raises arguments relevant to both requirements.
a. Policy, Custom, or Practice that Caused Plaintiff’s Injury
There are two policies, customs, or practices that Plaintiff argues caused her injuries.
First, Plaintiff identifies the practice of sending solo male code enforcers to inspect massage
businesses unsupervised. Second, Plaintiff identifies the fragmented reporting and supervision
policy that allowed Gerry’s conduct to continue despite the City receiving several complaints of
similar misconduct. The City does not dispute that the first is a “practice” and the second is a
“policy” for purposes of Monell liability. The City does, however, contend that there is no
evidence this practice or policy was the proximate or but-for cause of Plaintiff’s injury.
The Court disagrees. Regarding proximate causation, the City cites to inapposite case law.
For example, the City relies on a case where a police officer committed a robbery and assault as a
civilian off duty. Van Ort v. Est. of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996). The Ninth
Circuit there held that, despite the officer’s extensive disciplinary record at work, the county
“could not reasonably have foreseen that [the deputy] would become a free-lance criminal and
attack the Van Orts as he did,” and his “unforeseeable private acts broke the chain of proximate
cause connecting the County.” Id. But here, Gerry was not a “free-lance criminal” who could
have committed his crimes regardless of his position. Instead, the evidence shows Gerry abused
his power as a City employee while on duty, wearing a uniform and a badge, and driving a City
vehicle, and he used his position in the City to coerce Plaintiff to comply with his demands. There
are simply no breaks in the causal chain similar to those in Van Ort.7
Regarding but-for causation, the City summarily argues that even if Gerry were
supervised, there is no guarantee that he would not have returned to rape and extort Plaintiff while
off duty. But the City provides no support for its representation that Plaintiff must guarantee such
7 The Court notes that the question of foreseeability is also discussed in the deliberate indifference
section below.
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a hypothetical would not occur. The evidence here is that Gerry raped and extorted Plaintiff under
the color of law. A reasonable jury could find under these circumstances that Plaintiff’s injuries
would not have occurred but for the City’s practice and policy that provided Gerry with the
authority and lack of oversight necessary to abuse Plaintiff.
b. Deliberate Indifference
Next, to show deliberate indifference, Plaintiff must demonstrate the City “was on actual
or constructive notice” that its failure to prevent unsupervised solo made code enforcement
inspections, or its fragmented reporting and supervision policy, would likely result in the
constitutional violations alleged here. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1145 (9th Cir.
2012). This is an objective inquiry. Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir.
2016).
The Court finds the City’s arguments here similarly unpersuasive. First, the City appears
to re-raise legal arguments the Court disposed of in its Third MTD Order. Namely, the City
argues it cannot be held liable for failing to train Gerry to not rape and extort Plaintiff, and it cites
to failure-to-train cases holding as much. See Schneider v. City of Grand Junction Police Dep’t,
717 F.3d 760 (10th Cir. 2013); Barney v. Pulsipher, 143 F.3d 1299, 1308 (10th Cir. 1998). While
this is correct under Flores v. Cnty. of Los Angeles, 758 F.3d 1154, 1156 (9th Cir. 2014), as the
Court noted in its Third MTD Order, this is not the theory of Plaintiff’s case. Plaintiff alleges the
City failed to ensure proper supervision of code inspectors in an environment ripe for abuse, not
that the City failed to train inspectors to not break the law. As the Court previously noted:
Defendants argue that the conclusory opinions of experts about the
adequacy of San Jose’s code enforcement practices are irrelevant
when the Ninth Circuit in Flores v. Cnty. of Los Angeles, 758 F.3d
1154, 1156 (9th Cir. 2014), has held that a municipality is not
deliberately indifferent for failing to train and supervise employees
not to do what criminal law forbids . . . . The plaintiff in Flores alleged
that the municipality was deliberately indifferent for failing to give
their deputies “specific instruction not to commit sexual assault,” id.
at 1160; here, Plaintiff now alleges facts to show that the City was
deliberately indifferent for implementing a custom or practice that
allowed solo male code enforcers to inspect massage businesses
unsupervised and with unfettered power, where it was common
knowledge among law enforcement agencies that such policies would
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likely result in constitutional violations, and where it received prior
complaints that should have specifically alerted them to Gerry’s
constitutional violations. Despite the notion that everyone is
“presumed to know the law,” and the City can in some degree rely on
the criminal justice system to deter criminal conduct, the City still has
the responsibility to ensure that its customs and practices are not
creating the optimal conditions under which unconstitutional conduct
is likely to occur.
Third MTD Order 14, 16. Plaintiff highlighted this misdirection, but the City did not address it in
their Reply and has provided the Court no reason to find otherwise here.
Next, the City focuses on the fact that there is no evidence of any similar prior incidents
involving other employees that would put the City on notice of the likelihood of harm, but also as
discussed in the Third MTD Order, that is not required, and it is not the theory of Plaintiff’s case.
Although notice is ordinarily shown through demonstrating a pattern of similar constitutional
violations by employees, “evidence of a pattern of constitutional violations is not always required
to succeed on a Monell claim.” Kirkpatrick v. Cnty. of Washoe, 843 F.3d 784, 794 (9th Cir. 2016);
see also Connick v. Thompson, 563 U.S. 51, 62 (2011). “[I]n a narrow range of circumstances” a
particular “showing of ‘obviousness’ can substitute for the pattern of violations ordinarily
necessary to establish” deliberate indifference. Kirkpatrick, 843 F.3d at 794 (citing Connick, 563
U.S. at 63). For example, the Ninth Circuit stated that “a single incident of excessive force,
coupled with evidence that a city had neglected to train its armed officers on the constitutional
limitations on using force against fleeing felons, might establish that the city manifested deliberate
indifference in training law enforcement.” Id. (citing City of Canton, Ohio v. Harris, 489
U.S. 378, 390 n.10 (1989)). Here, as the Court previously found, despite there being “no facts
regarding a pattern of violations,” Plaintiff’s theory is that “the City’s custom or practice of
sending unsupervised solo male code enforcement inspectors into massage businesses presents an
‘obvious risk’ of constitutional violations.” Third MTD Order 13. The City’s arguments
regarding a pattern of similar conduct are therefore irrelevant.
Finally, the City notes that the standards described by Plaintiff’s experts were not
mandatory written procedures the City had to follow, but it failed to provide support for its theory
that only mandatory procedures can be used as evidence for deliberate indifference.
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Accordingly, the Court finds the City has failed to show that undisputed facts establish no
deliberate indifference as a matter of law. Indeed, the Court identifies many disputed facts that a
jury might consider to find the City deliberately indifferent when viewed in the light most
favorable to Plaintiff. Plaintiff has introduced evidence that the City decided to enact a practice of
sending solo male code enforcers with substantial discretion and power into massage businesses
unsupervised, despite the well-known risk in the code enforcement industry that such a practice
creates an obvious opportunity for abuse. And while Gerry was in the field, he conducted roughly
700 code inspections of massage businesses in the span of eighteen months, only two of which he
was accompanied by a supervisor. Against this backdrop of obvious risk and a lack of
supervision, the City then received several reports of Gerry’s serious misconduct. Though some
reports are subject to interpretation, when drawing all reasonable inferences in Plaintiff’s favor, a
jury could find that they provided the City repeated notice that Gerry was committing sexual
misconduct and extortion during his inspections. And importantly, several of these reports were
never communicated to Gerry’s supervisors, Hatfield and Roberts, who expressed shock during
their depositions and testified that they wish they had known sooner so they could have prevented
this from happening. Taken together, the evidence could show that the City implemented and
carried out its practice and policy in deliberate indifference to Plaintiff’s constitutional rights. See
Harris, 489 U.S. at 389–99; Jackson v. Barnes, 749 F.3d 755, 763 (9th Cir. 2014); Bode v. City of
Fullerton, 815 F. Supp. 2d 1117 (C.D. Cal. 2011) (finding that when an officer is assigned to
interact with vulnerable women in settings that lend themselves to coercion, and when the
municipality receives warnings consistent with later misconduct yet leaves the officer in the same
public-facing role, a jury may find deliberate indifference).
It is true, as the City contends, that it has its own side to this story. It has explanations for
how each report was investigated and why they did not result in Gerry’s removal from the field. It
also has arguments to impeach the opinions of Plaintiff’s experts who opine on the obvious risk
inherent in sending solo male code inspectors into massage businesses unsupervised. But these
arguments merely highlight the inappropriateness of this issue for summary judgment. A jury, not
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the Court, must weigh these facts, and despite the City’s explanations and arguments, it remains
that a reasonable jury could interpret the evidence in Plaintiff’s favor and find the City deliberately
indifferent.
c. Due Process Clause
Before moving to its discussion concerning Supervisor Defendants, the Court notes the
City’s remaining arguments regarding Plaintiff’s right to due process.8
The City generally contends that Plaintiff’s due process claim fails because there is no
protected property interest in operating an unpermitted business. But Plaintiff explains in
response that the property interest alleged here is actually interest in the good will of her business
and the $34,000 that Gerry extorted from her. As Plaintiff highlights, the Ninth Circuit has
recognized this property interest in good will under California law in WMX Techs., Inc. v. Miller,
providing:
The California Business & Professions Code, § 14100, provides the
good will of a business is the expectation of continued public
patronage . . . . Essentially, the goodwill of a business is its value as
a going concern and is made up of many factors, such as location,
patronage of customers, relations with suppliers, experience of
employees, effectiveness of management, and many other factors.
197 F.3d 367, 374 (9th Cir. 1999). Plaintiff also cites to a Seventh Circuit case finding that
monetary extortion could give rise to a due process claim against supervisors. Roach v. City of
Evansville, 111 F.3d 544, 550–51 (7th Cir. 1997) (“We agree with the district court that had the
extortion been completed, Roach might have a due process claim that he could bring against
Whitlow pursuant to Section 1983.”).
The City largely drops this argument in the reply, except to contend that there is no
evidence Gerry’s actions impacted the good will of Plaintiff’s business. But this is directly
contradicted by the evidence. Plaintiff represents that she made payments to Gerry totaling
$34,000 under the belief that he would use that money to acquire a business permit; but when she
8 Defendants also raise arguments regarding Plaintiff’s equal protection claim that are relevant
only to Supervisor Defendants.
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reported Gerry to the City and discovered this was not the case, the City nevertheless responded
by shutting down her business for operating without a permit. A reasonable jury could find under
these circumstances that Gerry’s conduct interfered with Plaintiff’s expectation of continued
public patronage.
Accordingly, the Court DENIES Defendants’ motion for summary judgment as to the
City.
2. Supervisor Defendants
Supervisors may generally be liable under Section 1983 if they are deliberately indifferent
in supervising their subordinates and deliberately indifferent to the consequences of their
subordinates’ behavior. Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011); L.W. v. Grubbs, 92
F.3d 894 (9th Cir. 1996). Deliberate indifference is shown by (1) the supervisor’s “actual
knowledge of, or willful[] ignore[ance] to” serious risk of harm and (2) the supervisor’s failure to
“take obvious steps to address that known, serious risk.” Grubbs, 92 F.3d at 900 (quoting
Manarite By & Through Manarite v. City of Springfield, 957 F.2d 953, 956 (1st Cir. 1992)); see
also Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (supervisors also liable where
they “refused to terminate a series of acts by others”). Liability under this standard is found where
supervisors acquiesce to the constitutional violations of their subordinates either following a
complaint or as a result of their own culpable inaction in the supervision or control of
subordinates—even in the absence of overt personal participation in the constitutional violation.
Hyde v. City of Willcox, 23 F.4th 863, 874 (9th Cir. 2022); Hansen v. Black, 885 F.2d 642, 646
(9th Cir. 1989); Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011). Such deliberate
indifference must also be causally related to the constitutional violation, which in turn may be
established through evidence that the supervisor knowingly refused to terminate a series of actions
which the supervisor knew or reasonably should have known would lead to a constitutional
violation. Starr, 652 F.3d at 1207–08.
Here, the relevant inquiry is whether Supervisor Defendants knew of the serious risk of
sexual assault and extortion posed by Gerry; and if so, whether they failed to take obvious steps to
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address that risk in a way that constituted willful blindness.
The Court answers both questions in the negative. First, the Court finds the information
available to Supervisor Defendants was insufficient to put them on notice of Gerry’s sexual
misconduct and extortion. As discussed above, the Code Enforcement Office received only two
reports regarding Gerry: (1) the vehicle report and (2) the handwritten letters. The vehicle report
does not reveal any sexual misconduct or extortion; the report merely indicates that Gerry’s car
was parked outside of a massage business for a long period of time, which is an ordinary
occurrence in his occupation. And the Court already found in prior orders that the contents in the
anonymous letters “alluding to an improper intimate relationship between Gerry and a massage
business owner were not enough [on their own] to put Roberts on notice that Gerry would sexually
assault and bribe massage business owners.” Third MTD Order 21. Accordingly, without the
benefit of also receiving the Moore report and OER Whistleblower Hotline complaint, the Court
finds Supervisor Defendants could not have known of the serious risk of sexual assault and
extortion posed by Gerry. See Grubbs, 92 F.3d at 900 (distinguishing deliberate indifference from
gross negligence and holding deliberate indifference requires that “the defendant knows that
something is going to happen but ignores the risk and exposes someone to it”) (emphasis in
original).
Second, even if Supervisor Defendants knew about the risk of serious harm, they took
some action in response. Roberts questioned Gerry about the report of a suspicious vehicle and
the handwritten letters. Roberts also instructed Gerry to not return to the businesses implicated in
the letters and forwarded the letters to SJPD. It is true that Supervisor Defendants could have, and
perhaps should have, done more to supervise Gerry given the nature of these letters; but at a
minimum, these actions go beyond the willful blindness required to show deliberate indifference.
See, e.g., Patel, 648 F.3d at 974–75.
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The Court therefore finds the evidence in the record, when viewed in the light most
favorable to Plaintiff, is insufficient to establish that Supervisor Defendants acted with deliberate
indifference. For that reason, the Court GRANTS Defendants’ motion for summary judgment as
to Supervisor Defendants.9
IV. CONCLUSION
Based on the foregoing, the Court DENIES Defendants’ motion to strike Powell and
Flores; DENIES Plaintiff’s motion to strike Greene; DENIES Defendants’ motion for summary
judgment as to the City; and GRANTS Defendants’ motion for summary judgment as to
Supervisor Defendants.
IT IS SO ORDERED.
Dated: January 22, 2026
EDWARD J. DAVILA
United States District Judge
9 The Court need not reach the remaining arguments regarding qualified immunity and Plaintiff’s
due process and equal protection claims.
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