The opinion
1
2
3
4
5
6
7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
9
10 THE ESTATE OF OMAR MORENO Case No.: 3:21-cv-01956-RBM-SBC
ARROYO, by and through its successor-
11
in-interest Tammy Wilson, et al., ORDER:
12
Plaintiffs, (1) GRANTING IN PART AND
13
v. DENYING IN PART JOINT
14 MOTION TO STRIKE AND SEAL
COUNTY OF SAN DIEGO, et al., CIRB-RELATED DOCUMENTS
15
[Doc. 255]
16 Defendants.
(2) GRANTING MOTIONS FOR
17
ADDITIONAL PAGES AND FOR
18 LEAVE TO FILE PHYSICAL
EXHIBITS [Docs. 259, 260, 275, 284]
19
20 (3) DENYING DEFENDANTS’
MOTION TO STRIKE PORTIONS
21
OF THIRD AMENDED
22 COMPLAINT [Doc. 268]
23
(4) GRANTING JOINT MOTION TO
24 STRIKE AND REFILE THIRD
AMENDED COMPLAINT [Doc. 261]
25
26 (5) GRANTING PLAINTIFFS’
MOTION TO FILE SUR-REPLY
27
[Doc. 292]
28
1 I. INTRODUCTION
2 Pending before the Court are eight motions concerning case management and the
3 Parties’ briefing on their motions for summary judgment: (1) Joint Motion to Strike and
4 Seal CIRB-Related Documents (Doc. 255); (2) Joint Motion for an Order Allowing the
5 Parties Additional Pages for their Briefing on their Forthcoming Summary Judgment
6 Motions (Doc. 259); (3) Joint Motion for Order Permitting Lodgment of Video and Audio
7 Evidence in Support of the Parties’ Summary Judgment Motions (Doc. 260); (4) Joint
8 Motion to Strike Plaintiffs’ Revised Third Amended Complaint in its Entirety and for
9 Leave to Refile (Doc. 261); (5) Defendants’ Motion to Strike Portions of Plaintiffs’ Third
10 Amended Complaint (Doc. 268); (6) Plaintiffs’ Ex Parte Motion for Order Permitting
11 Lodgment of Audio and Video Exhibits in Support of Omnibus Opposition to Motions for
12 Summary Judgment (Doc. 275); (7) Plaintiffs’ Ex Parte Motion for Order Permitting
13 Lodgment of Audio and Video Exhibits in Support of Reply to Defendants’ Opposition to
14 Motion for Partial Summary Judgment (Doc. 284); and (8) Plaintiffs’ Unopposed Ex Parte
15 Motion for Leave to File Sur-Reply to the County of San Diego’s Evidentiary Objections
16 and Motion to Strike Evidence Offered by Plaintiffs in Support of Plaintiffs’ Omnibus
17 Opposition to Motions for Summary Judgment. (Doc. 292.)
18 The Court resolves these motions as set forth below.
19 II. DISCUSSION
20 A. Joint Motion to Strike and Seal CIRB-Related Documents (Doc. 255)
21 Defendants previously moved to strike or seal certain documents containing
22 information from the County of San Diego’s Critical Incident Review Board (“CIRB”) in
23 light of the Ninth Circuit’s ruling in Greer v. County of San Diego, 127 F.4th 1216
24 (9th Cir. 2025). (Doc. 235.) The Court granted in part and denied in part that motion,
25 finding some of Defendants’ requests were “not specific enough to warrant a ruling.”
26 (Doc. 254 at 4–5.) The Court authorized “a renewed motion to seal or strike certain filings,
27 or portions thereof,” that provided further detail about the documents sought to be stricken
28 or sealed. (Id. at 5.) Per the Court’s order, the Parties filed a Joint Motion to Strike and
1 Seal CIRB-Related Documents (“Joint Motion to Strike and Seal”) providing further detail
2 on thirteen documents they seek to strike and requesting “leave to re-file [those] documents
3 with all CIRB references removed, and with no other changes.” (Doc. 255 at 2.)
4 As Magistrate Judge Steve B. Chu already ruled:
5 The Court finds that the el[e]ven CIRB reports and accompanying
spreadsheet at issue here are protected by the attorney-client
6
privilege. Although Plaintiffs argue that Greer applies only to the
7 specific CIRB reports in that case, the Ninth Circuit’s analysis was
not limited to the factual nuances of a single CIRB report or
8
document. Instead, the Ninth Circuit engaged in a broader
9 examination of the CIRB’s structure, purpose, and function. The
decision addressed the CIRB process itself, and concluded that the
10
primary purpose of the CIRB is to assess legal liability and avoid
11 future liability. Since the CIRB’s purpose does not vary on a case-
by-case basis, and CIRB reports are generated with the same
12
objectives guiding their creation, the analysis in Greer logically
13 extends to other CIRB reports and related documents prepared under
the same framework.
14
15 (Doc. 253 at 6–7.)
16 The Parties correctly note that each of the documents they seek to strike, except one,
17 contains privileged CIRB material. However, Plaintiffs’ Motion to Not File Under Seal
18 (Doc. 107) does not contain any such material. Having reviewed the Joint Motion to Strike
19 and Seal, the filings identified therein, and the operative Third Amended Complaint
20 (“TAC”) (Doc. 256), the Court GRANTS the Joint Motion to Strike and DIRECTS the
21 Clerk of the Court to strike the following documents from the public docket:
22 1. Plaintiffs’ Motions for Leave to File TAC (Docs. 104, 109)
23
2. Motion to Exclude Opinion Testimony by Plaintiffs’ Expert Gary Raney (Doc.
24 148)
25
3. Plaintiffs’ Motion to Not File Under Seal (Doc. 149)
26
4. Plaintiffs’ Pre-trial Disclosures (Doc. 159)
27
28 5. Plaintiffs’ Memorandum of Contentions of Fact and Law (Doc. 160)
1
6. Plaintiffs’ Motion for Discovery Sanctions (Doc. 179)
2
3 7. Plaintiffs’ Opposition to Motion to Exclude Expert Opinions of Plaintiffs’
Expert Roger Clark (Doc. 183)
4
5 8. Plaintiffs’ Motion to Not File Under Seal (Doc. 185)
6
9. Proposed Final Pre-trial Conference Orders (Docs. 193, 195)
7
10. Joint Statement of Undisputed and Disputed Facts re: motions for Summary
8
Judgment (Doc. 215)
9
10
The Parties shall refile the above documents with all CIRB references removed, and
11
with no other changes, on or before October 29, 2025 at 4:30 p.m.
Additionally, the Parties “further request the sealing of the current expert reports of
12
Gary Raney and Roger Clark” and portions of specific depositions, “all of which contain
13
confidential CIRB information.” (Doc. 255 at 3.) The Parties identify those portions as
14
“Deposition of James Parent, p. 27-34 and Ex. 32” and “Deposition of Gary Raney, p.
15
62:23–63:21, 78:12–79:23, 118:22–120:2, 127:5–14.” (Id.) Plaintiffs request leave to re-
16
serve the expert reports “with all CIRB references removed, and with no new substantive
17
opinions. The County Defendants request leave to serve supplemental reports in response,
18
if needed.” (Id.)
19
The Parties do not indicate to which documents those page numbers, deposition pin
20
cites, and exhibit number refer. Although it “is not the Court’s responsibility to identify
21
the privileged CIRB documents and information in the public docket to be sealed or
22
stricken,” (Doc. 254 at 5), the Court nonetheless reviewed Docs. 262, 264, 266, and 271
23
and cannot discern what documents the Parties request be sealed. Those filings attach as
24
exhibits, or contain references to, the expert reports of Gary Raney and Roger Clark or the
25
depositions of James Parent and Gary Raney. But those filings do not align with the page
26
numbers provided by the Parties. (See, e.g., Doc. 264-5 at 3–35 (excerpts of September 4,
27
2025 deposition of Gary Raney not including pages 62, 63, 78, 79, 118–120, or 127); Doc.
28
1 266-37 at 2–8 (same); Doc. 271-8 at 2–25 (excerpts of May 8, 2024 deposition of James
2 Parent not including pages 27–34); Doc. 266-19 at 2–13) (same)). Accordingly, the Court
3 DENIES these requests to seal and Plaintiffs’ related request to re-serve the expert reports
4 of Gary Raney and Roger Clark. The Parties may file a renewed motion to seal certain
5 filings, or portions thereof, that identifies the filings by document number on or before
6 November 5, 2025 at 4:30 p.m.
7 B. Joint Motion for Additional Pages (Doc. 259)
8 In this District, leave of court is required to file any moving or opposing brief longer
9 than 25 pages, and any reply brief longer than 10 pages. S.D. Cal. Civ. R. 7.1(h). The
10 Parties jointly move (“Joint Motion for Additional Pages”) for an order authorizing:
11 The Individual County Defendants’ moving papers may not exceed
50 pages in length; [t]he County’s moving papers may not exceed
12
25 pages in length; Plaintiffs’ omnibus opposition to all County
13 Defendants’ motion may not exceed 75 pages in length; [t]he
County Defendants’ omnibus reply papers may not exceed 27 pages
14
in length; [Plaintiffs’] moving papers may not exceed 50 pages in
15 length; [t]he County’s opposition may not exceed 50 pages in
length; and Plaintiff’s reply may not exceed 15 pages in length.
16
17 (Doc. 259 at 3.)
18 The Parties represent these increased page limits are appropriate because there are
19 numerous Defendants; several causes of action alleged against each Defendant; and an
20 individualized qualified immunity analysis required for each Defendant. (Id. at 2–3.)
21 Good cause appearing, the Joint Motion for Additional Pages is GRANTED. The Parties
22 may, and already appear to, exceed page limits in line with their proposal above. (See
23 Doc. 267-1 (individual Defendants’ motion for summary judgment is 50 pages); Doc. 271-
24 1 (Plaintiffs’ motion for summary judgment is 50 pages); Doc. 278 (Plaintiffs’ omnibus
25 opposition is 74 pages)).
26 C. Motions to Lodge Video and Audio Evidence (Docs. 260, 275, 284)
27 The Parties jointly move “for an Order permitting the lodgment of video and audio
28 evidence in support of their respective motions for summary judgment that cannot be e-
1 filed through the Court’s CM/ECF system.” (“Joint Motion to Lodge Video and Audio
2 Evidence”) (Doc. 260 at 2.) Defendants request to file five audio recordings or video clips
3 (labeled Exhibits B, H, V, FF, and NN), and Plaintiffs request to file three video clips
4 (labeled Exhibits 8, 9, and 10). (Id.)
5 Plaintiffs also move ex parte for orders permitting the lodgment of exhibits “in
6 support of Plaintiffs’ omnibus opposition to defendants’ motion for summary judgment,”
7 (Doc. 275 at 2) and “in support of Plaintiffs’ reply to Defendants’ opposition to Plaintiffs’
8 motion for partial summary judgment.” (Doc. 284 at 2) (together, the “ex parte motions”).
9 Plaintiffs’ request covers 11 audio recordings or video clips corresponding to Bates Nos.
10 CSD-000605; CSD-000601; CSD-000608; CSD-000064; CSD-000043; CSD-000044;
11 CSD-000045; CSD-000061; CSD-000066; and “Defendants’ Trial Exhibit ‘BK1’” and
12 “Defendants’ Trial Exhibit ‘BK2.’”
13 The Joint Motion to Lodge Video and Audio Evidence (Doc. 260) and the ex parte
14 motions (Docs. 275, 284) are GRANTED. The Parties may lodge the listed audio and
15 video evidence. The Court notes that Defendants already lodged the five exhibits indicated
16 in the Joint Motion, and therefore need not refile them. The Court also notes that Plaintiffs
17 already lodged the files corresponding to Bates Nos. CSD-000061 and CSD-000064, and
18 therefore need not refile them. Plaintiffs shall lodge their remaining exhibits with the
19 Clerk’s Office on or before October 29, 2025 at 4:30 p.m.
20 D. Defendants’ Motion to Strike Third Amended Complaint (Doc. 268)
21 Defendants move to strike paragraphs 64, 85–88, 386–387, 419, and 440 from the
22 revised TAC (“Motion to Strike”) (Doc. 268 at 2.) Defendants claim these paragraphs
23 represent four new theories not previously alleged in the original Third Amended
24 Complaint (“original TAC”)1. (Id. at 2–6.)
25
26
27
1 The Original TAC was filed at Doc. 121 but was stricken per Court order. (Doc. 254.)
28
1 Defendants argue that these paragraphs must be stricken because: (1) the new
2 theories are futile; (2) Defendants will be unduly prejudiced if the new theories are allowed;
3 and (3) Plaintiffs did not request leave of court to add the new theories. (Id.) Plaintiffs
4 argue that a motion to strike is not the proper avenue to challenge the sufficiency of
5 Plaintiffs’ allegations and the original TAC’s allegations put Defendants on sufficient
6 notice of the “new theories.” (Doc. 274 at 4–16.) Plaintiffs do not meaningfully respond
7 to Defendants’ argument that the TAC was filed without leave of court; Plaintiffs state only
8 that the TAC “was filed as corrected per the Court’s order on June 17, 2025.” (Id. at 4
9 (citing Doc. 256).)
10 Although Plaintiffs’ decision to revise several of the TAC’s allegations without first
11 moving for leave to amend may be “considered a procedural misstep,” the allegations are
12 not “redundant, impertinent, immaterial, or scandalous” as required for the Court to
13 exercise its discretion to strike a pleading. Nissou-Rabban v. Capital One Bank (USA),
14 N.A., 285 F. Supp. 3d 1136, 1144 (S.D. Cal. 2018) (quoting Fed. R. Civ. P. 12(f)). Because
15 the original TAC’s allegations put Defendants on sufficient notice, and because the TAC’s
16 revised allegations do not add new legal theories, Defendants’ Motion to Strike is
17 DENIED.
18 1. Legal Standard
19 The Court has broad discretion in deciding whether to strike a pleading that contains
20 “any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f); see
21 Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000). Matters are “immaterial” if
22 they have “no essential or important relationship to the claim for relief or the defenses
23 being pleaded” and “impertinent” if they “do not pertain, and are not necessary, to the
24 issues in question.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (reversed
25 on other grounds, 510 U.S. 517 (1994) (citation omitted)). Matters are “scandalous” if
26 they “cast a cruelly derogatory light on a party or other persons.” In re 2TheMart.com, Inc.
27 Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000). “Motions to strike are generally
28 disfavored because of the limited importance of pleadings in federal practice, RDF Media
1 Ltd. v. Fox Broad. Co., 372 F. Supp. 2d 556, 566 (C.D. Cal. 2005), and the Court will not
2 exercise its discretion under Rule 12(f) to strike a pleading “unless it is clear that the matter
3 to be stricken could have no possible bearing on the subject matter of the litigation.” LeDuc
4 v. Ky. Cent. Life Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992). “Where allegations,
5 when read with the complaint as a whole, give a full understanding thereof, they need not
6 be stricken.” Id.
7 2. Discussion
8 a. Futility
9 Defendants argue that the revised allegations at issue should be stricken because they
10 are futile. (Doc. 268-1 at 5–6.) As Plaintiffs note, “such merits arguments are not
11 appropriate on a motion to strike.” Reiffer v. HGM Holdings LLC, 1:18-cv-1058-LJO-
12 BAM, 2019 WL 1455325, at *3 (E.D. Cal. Apr. 2, 2019). “[A]bsent a showing of the
13 supposedly offending allegations’ irrelevance to the subject matter of the lawsuit or a
14 possibility of harm to a party . . . the motion to strike under Rule 12(f) should be denied
15 and the sufficiency of the allegations left for . . . adjudication by summary judgment. . . .”
16 Gibbens v. Quick Collect, Inc., Cause No. C21-1643RSL, 2022 WL 168507, at *1 (W.D.
17 Wash. Jan. 18, 2022) (quoting 5C Charles A. Wright & Arthur R. Miller, Federal Practice
18 & Procedure § 1382 (3d ed.)). The Court finds that Defendants’ futility arguments are
19 similarly unavailing on a motion to strike.
20 b. Notice
21 Defendants argue that the TAC raises new theories after the close of discovery, and
22 that Defendants will be unduly prejudiced if the revised allegations are not stricken.
23 (Doc. 268-1 at 3–5; Doc. 282 at 2–5.) Defendants claim that the following four theories in
24 the TAC were not previously pled:
25 (1) The existence of probable cause to arrest [Arroyo] and thus
26 whether [Arroyo] was being falsely imprisoned when he died; (2)
whether the County’s policies condone false arrest/imprisonment;
27 (3) whether the structural status of the holding cell was such that it
28 created “blind spots;” and (4) whether people charged with violating
1 Penal Code § 647(f) (under the influence) should not be held in the
Book and Release Cells.
2
3 (Doc. 268-1 at 2) (citations omitted).
4 Plaintiffs argue the original TAC properly alleged that the “continued jail detention
5 of [Arroyo] was unlawful after [Defendant Rembold] filed a fake charge; that the County’s
6 policy condoned such false imprisonment; and that the placement of [Arroyo], who was
7 alleged to be unable to care for his own welfare, in a cell with inadequate monitoring
8 violated the law.” (Doc. 274 at 5.) The Court agrees with Plaintiffs that “[u]nder the liberal
9 federal pleading rules,” the original TAC’s allegations provided the required “notice and
10 clarity of claims.” LeDuc, 814 F. Supp. at 830.
11 As to the first two of the four allegedly new theories, the original TAC sufficiently
12 alleged “liability for [Arroyo’s] illegal detention in jail on a false charge and that the
13 County’s policies condoned this action.” (Doc. 274 at 6.) The following allegations from
14 the original TAC, “when read with the complaint as a whole, give a full understanding
15 thereof,” and therefore “need not be stricken.” LeDuc, 814 F. Supp. at 830.
16 While [Arroyo] was in the booking process, [Defendant] Rembold
was told by [Defendant Anderson] that there was no basis to further
17
hold [Arroyo] because the charges against him for violating Penal
18 Code § 647(f) required that [Arroyo] be intoxicated in public. . . .
[Defendant] Rembold knew that there was no basis to hold [Arroyo].
19
20 (Doc. 274-1 at 4.)
21 [Arroyo] fit into none of the three [Emergency Booking
Acceptance] criteria, thus defendants had no legal authority to arrest
22
and book [Arroyo]. . . . Defendants knew that they could not book
23 [Arroyo] into jail. . . . Deputies at the Jail, once told that there was
no bookable offence, had the option to immediately release [Arroyo]
24
so that he could receive medical care.
25
(Id. ¶¶ 54, 55, 60.)
26
These deputies either ignored the law or they were not properly
27
trained by the Sheriff’s Department. There was either a failure of
28 policy or failure to train that once it was established that there was
1 no basis to hold someone in jail that the detainee should be
released. . . . The policy on continuing to book inmates for non-
2
bookable offence was grossly deficient.
3
(Id. ¶¶ 61, 427.)
4
5 Although no allegation in the original TAC expressly used the terms “false
6 imprisonment” or “false arrest” or otherwise stated that [Arroyo] was arrested without
7 probable cause, the allegations above fairly pled that Arroyo was arrested on a wrongful
8 charge, and that policies in place (or not in place) at the county jail played a role in his
9 arrest.
10 The third allegedly new theory similarly was adequately pled in the original TAC.
11 Defendants argue that “Plaintiffs allege for the first time in their [TAC] that there existed
12 ‘blind spots’ in [Arroyo’s] holding cell of which the County and [Defendant Kamoss]
13 should have been aware.” (Doc. 268-1 at 5–6.) The term “blind spot” did not appear in
14 the original TAC. But the original TAC contained multiple allegations that Defendants
15 failed to perform adequate safety checks: “[Defendant] Gore, [Defendant] Kamoss and
16 [Defendant] Cardoza knew that their deputies were not conducting proper cell checks and
17 that they had been doing “fly bys” in which deputies fail to actually check on the welfare
18 of the inmates” (Doc. 274-1 ¶ 404); “[t]his included repeated failures by deputies to
19 conduct proper cell checks which were made known to defendants by multiple sources”
20 (id. ¶ 415); “[t]here was a de facto custom of failing to conduct proper cell checks or
21 monitoring, as required by the County’s own written policies” (id. ¶ 441); “[t]here was no
22 policy on supervisors conducting random audits of safety checks. There is no policy that
23 supervisors review videos of cell checks” (id. ¶ 443); “[t]here was no formal process for
24 periodic monitoring of deputies conducting safety checks” (id. ¶ 444); “[Defendants]
25 Kamoss and Cardoza . . . failed to take any action to either monitor the cells from the
26 control tower by watching the live video feed or to send other deputies to the book and
27 release cells.” (Id. ¶ 471.) Considering these allegations, the Court finds Defendants were
28
1 on fair notice that the alleged inadequacy of the safety checks could have included
2 obstacles, such as blind spots, to the deputies’ abilities to sufficiently monitor inmates.
3 The fourth allegedly new theory—that people charged with violating Penal Code
4 § 647(f) should not be held in the Book and Release cells—was also adequately pled in the
5 original TAC. (See id. at 4 (“Rather, they placed Omar under a ‘book and release’ status.
6 Jail authorities placed Omar in a holding cell and subsequently failed to monitor his
7 condition.”); id. ¶¶ 88, 90 (“Had Omar been rejected for booking, he would have received
8 critical medical attention at a hospital. . . . On the third floor of the Central Jail, safety
9 checks are conducted every 30 minutes. Medical Observation Bed (MOB) would have
10 resulted in a closer monitoring of Omar by the medical staff. Placement in the sobering
11 cell would have resulted in a closer monitoring of Omar.”); id. ¶ 110 (“The Sheriff’s
12 Department’s policy requires jail staff to place individuals under the influence of drugs
13 and/or alcohol . . . in Sobering Cells so they can be closely monitored by medical personnel
14 at regular time intervals in a protective environment.”); id. ¶ 111 (“Rather than placing him
15 in a sobering cell or medical observation bed, jail authorities placed Omar in a book and
16 release cell and subsequently failed to monitor his condition.”); id. ¶ 211 (“Jail staff
17 frequently designated acutely intoxicated arrestees as ‘book and release’ inmates . . . .
18 ‘Book and release’ inmates were routinely denied more extensive, second-stage medical
19 screening where they could be seen by a doctor.”).) Thus, Defendants were on notice of
20 the alleged impropriety of placing individuals who were under the influence in Book and
21 Release cells.
22 c. Leave to Amend
23 Finally, Defendants argue that Plaintiffs’ revised allegations are improper because
24 the Court previously ordered Plaintiffs only to refile the TAC without information derived
25 from the CIRB reports. (Doc. 268-1 at 2 (citing Doc. 254 at 4) (ordering Plaintiffs to “file
26 a revised TAC that complies with Magistrate Judge Chu’s ruling on [Defendants’] Motion
27 for Reconsideration. . . . Any revised TAC may not include information derived solely
28 from privileged CIRB material.”).) Plaintiffs likely could have avoided this motion and
1 the time and expense of litigating it by first moving for leave to amend any allegations not
2 linked to the CIRB reports. However, because Plaintiffs did not disobey the Court’s
3 previous order, and because Defendants were on notice of everything covered in the revised
4 allegations, the Court will not strike the disputed paragraphs.
5 Courts have stricken claims that exceed the scope of an order allowing leave to
6 amend. In Lizza v. Deutsche Bank National Trust Co., for example, the Ninth Circuit
7 affirmed the district court’s order striking the plaintiffs’ second amended complaint for
8 “exceeding the scope of amendment permitted in the court’s first dismissal order.” 714 F.
9 App’x 620, 622 (9th Cir. 2017). The Ninth Circuit reasoned that, “[f]airly read, the district
10 court’s order allowed the [plaintiffs] to make more specific the UDAP claims they asserted
11 in their First Amended Complaint . . . , not to assert a wholly new theory of liability.” Id.;
12 see also Vaughn v. Cohen, Case No. 3:23-cv-06142-TMC, 2024 WL 4881975, at * (W.D.
13 Wash. Nov. 25, 2024) (“The Court’s order limited the scope of amendment on correcting
14 the remedy sought, and if the Estate wanted to bring these claims, it should have requested
15 leave of the Court to amend the pleadings to add new claims.”); Vyas v. Vyas, CV 15-02152
16 RSWL (DFMx), 2017 WL 6551110, at *7 (C.D. Cal. May 8, 2017) (“Plaintiff was only
17 granted leave to amend and file a SAC as to Defendant Chambers. . . . Therefore, any
18 additions made as to Defendant Vyas in regards to legal theories and factual allegations
19 will be stricken.”).
20 In contrast, courts have denied motions to strike where the amending party was
21 “granted leave to amend without limitation.” DeLeon v. Wells Fargo Bank, N.A., No. 10-
22 CV-01390-LHK, 2010 WL 4285006, at *3 (N.D. Cal. Oct. 22, 2010); see Nissou-Rabban,
23 285 F. Supp. 3d 1136, 1144 (denying motion to strike where the court order “allowed
24 amendment of Plaintiff’s First Amended Complaint within thirty days, and included no
25 other limiting language”).
26 Here, the Court previously ordered that the TAC “may not include information
27 derived solely from privileged CIRB materials” and included no other limiting language.
28 (Doc. 254 at 4.) Except for paragraph 269, which is the subject of the Parties’ joint motion
1 to strike (Doc. 261) discussed below, Plaintiffs complied with that requirement when they
2 filed the TAC. Plaintiffs did not disobey the Court’s order, Defendants are not prejudiced
3 by inclusion of the revised allegations in the TAC, and the revised allegations are not
4 “redundant, immaterial, impertinent, or scandalous.” Fed. R. Civ. P. 12(f). Moreover, the
5 Federal Rules of Civil Procedure “should be construed and administered to secure the just,
6 speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1.
7 The Parties’ cross motions for summary judgment, and the merits of the four allegedly new
8 theories, are currently pending before the Court. Striking the identified allegations from
9 the TAC “would certainly not make the determination of this action more speedy or
10 inexpensive,” and in light of the Court’s findings as to notice, “it would likely not make it
11 more just either.” Axon Solutions, Inc. v. San Diego Data Processing Corp., CASE NO.
12 09 CV 2543 JM (RBB), 2010 WL 11509163, at *3 (S. D. Cal. June 24, 2010). Accordingly,
13 Defendants’ Motion to Strike (Doc. 268) is DENIED.
14 E. Joint Motion to Strike and Refile TAC (Doc. 261)
15 The parties jointly move to strike the TAC (Doc. 256) and re-file it “with the only
16 change being the deletion of paragraph 269.” (Doc. 261 at 2.) The parties represent that
17 paragraph 269 “inadvertently contained information obtained from a Critical Incident
18 Review Board report.” (Id.)
19 As previously discussed2, the Court has broad discretion in deciding whether to
20 strike a pleading that contains “any redundant, immaterial, impertinent, or scandalous
21 matter.” Fed. R. Civ. P. 12(f); see Nurse, 226 F.3d at 1000. The Joint Motion (Doc. 261)
22 is GRANTED. Plaintiffs shall refile the TAC. To maintain the accuracy of any pin cites
23 to the TAC in the multiple substantive motions pending before the Court (see Docs. 262–
24 264, 266–267, 271), the refiled TAC must be identical to Doc. 256, except that the
25 allegations in paragraph 269 shall be deleted and replaced with the text “Stricken per Court
26
27
28
1 order.” The Court therefore DIRECTS the Clerk of the Court to strike Doc. 256 from the
2 public docket. Plaintiffs shall refile the TAC on or before October 29, 2025 at 4:30 p.m.
3 F. Sur-Reply to the County of San Diego’s Evidentiary Objections and Motion to
4 Strike Evidence (Doc. 292)
5 Plaintiffs move unopposed for leave to file a sur-reply to respond to evidentiary
6 objections Defendants raised in their reply (Doc. 283-8) to Plaintiffs’ opposition (Doc. 278)
7 to Defendants’ motions (Docs. 266, 267) for summary judgment. (Doc. 292.) The
8 unopposed motion is GRANTED.
9 “Although the Court may in its discretion allow the filing of a sur-reply, this
10 discretion should be exercised in favor of allowing a sur-reply only where a valid reason
11 for such additional briefing exists.” Johnson v. Wennes, Civil No. 08cv1798-L(JMA),
12 2009 WL 1161620, at *2 (S.D. Cal. Apr. 28, 2009). Plaintiffs argue that a valid reason
13 exists because they need an opportunity to respond to Defendants’ nearly seven dozen
14 evidentiary objections and motion to strike evidence. (Doc. 292 at 2.)
15 The Court notes that “while a court will consider a party’s evidentiary objections to
16 a motion for summary judgment, ‘[o]bjections such as lack of foundation, speculation,
17 hearsay and relevance are duplicative of the summary judgment standard itself.’” Sywula
18 v. Teleport Mobility, Inc., 652 F. Supp. 3d 1195, 1228 (S.D. Cal. 2023) (quoting All Star
19 Seed v. Nationwide Agribusiness Ins. Co., Civil No. 12cv146 L(BLM), 2014 WL 1286561,
20 at *16 (S.D. Cal. Mar. 31, 2014)). Still, the Court finds it appropriate for Plaintiffs to file
21 a sur-reply to respond to Defendants’ evidentiary objections. Plaintiffs shall file the
22 pleading on or before October 29, 2025 at 4:30 p.m.
23 III. CONCLUSION
24 For the foregoing reasons, the Court ORDERS as follows:
25 1. The Joint Motion to Strike and Seal CIRB-Related Documents (Doc. 255) is
26 GRANTED IN PART AND DENIED IN PART. The Court DIRECTS the Clerk
27 of the Court to strike Docs. 104, 109, 148, 149, 159, 160, 179, 183, 185, 193, 195,
28 and 215 from the public docket. The Parties shall refile the stricken documents on
l or before October 29, 2025 at 4:30 p.m. The Parties may file a renewed motion on
2 or before November 5, 2025 at 4:30 p.m.
3 2. The Joint Motion for an Order Allowing the Parties Additional Pages for their
4 Briefing (Doc. 259) is GRANTED.
5 3. The Motions for Leave to Lodge Audio and Video Exhibits (Docs. 260, 275, 284)
6 are GRANTED. Plaintiffs shall lodge their remaining exhibits with the Clerk’s
7 Office on or before October 29, 2025 at 4:30 p.m.
8 4. Defendants’ Motion to Strike Portions of Plaintiffs’ Third Amended Complaint
9 (Doc. 268) is DENIED.
10 5. The Joint Motion to Strike Plaintiffs’ Revised Third Amended Complaint and for
11 Leave to Refile (Doc. 261) is GRANTED. The Court DIRECTS the Clerk of the
12 Court to strike Doc. 256 from the public docket. Plaintiffs shall refile the Third
13 Amended Complaint consistent with the terms of this Order on or before October
14 29, 2025 at 4:30 p.m.
15 6. Plaintiffs’ Motion for Leave to File Sur-Reply (Doc. 292) is GRANTED. Plaintiffs
16 shall file the sur-reply on or before October 29, 2025 at 4:30 p.m.
17 IT IS SO ORDERED.
18 Dated: October 21, 2025 Fe Le ; ? L □
19 HON. RUTH BERMUDEZ MONTENEGRO
20 UNITED STATES DISTRICT JUDGE
21
22
23
24
25
26
27
28
15