Edward Rezek v. City of Tustin et al
Filing
36
MINUTES (IN CHAMBERS): ORDER by Judge David O. Carter: granting in part and denying in part 23 Motion to Dismiss Case ; granting in part and denying in part 24 Motion to Dismiss Case ; denying 25 Motion to Strike ; denying 26 Motion to Strike. The Court also ORDERS this case STAYED pending resolution of the underlying criminal case, Orange County Superior Court case No. 10CM00225. See minute order for more information. MD JS-6. (twdb) Modified on 11/16/2012 (twdb).
JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
O
CIVIL MINUTES – GENERAL
Case No. SACV 11-01601 DOC (RNBx)
Date: November 15, 2012
Title: EDWARD REZEK V. CITY OF TUSTIN ET AL.
PRESENT:
THE HONORABLE DAVID O. CARTER, JUDGE
Julie Barrera
Courtroom Clerk
ATTORNEYS PRESENT FOR PLAINTIFF:
None Present
N/A
Court Reporter
ATTORNEYS PRESENT FOR DEFENDANT:
None Present
PROCEEDINGS: (IN CHAMBERS): ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTIONS TO DISMISS, DENYING
DEFENDANTS’ MOTIONS TO STRIKE,
AND ORDERING ACTION STAYED
PENDING RESOLUTION OF
UNDERLYING CRIMINAL CHARGES
Before the Court are four motions: (1) a Motion to Dismiss filed by
Defendants IPC International Corporation and Jose Reyes (Dkt. 23); (2) a Motion to
Dismiss filed by Defendant Vestar Property Management Company (Dkt. 24); (3) a
Motion to Strike Portions of Plaintiff’s First Amended Complaint filed by Defendants
IPC International Corporation and Jose Reyes (Dkt. 25); and (4) a Motion to Strike
Portions of Plaintiff’s First Amended Complaint filed by Defendant Vestar Property
Management Company (Dkt. 26). After reviewing the motions, opposition, and reply,
the Court DENIES IN PART and GRANTS IN PART Defendants’ Motions to Dismiss
and DENIES Defendants’ Motions to Strike.1
The Court also ORDERS this case STAYED pending resolution of the
underlying criminal case, Orange County Superior Court case No. 10CM00225.
1
The Court finds the matter appropriate for decision without oral argument. Fed R. Civ.
P. 78; Local R. 7-15.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-01601 DOC (RNBx)
I.
Date: November 15, 2012
Page 2
Background
The gravamen of the First Amended Complaint (“FAC”) (Dkt. 21) is that
Defendants City of Tustin, Brian Chupp (“Chupp”), Mark Turner (“Turner”) and Scott
Jordan (“Jordan”) (collectively “City Defendants”) along with Defendants Jose Reyes
(“Reyes”), IPC International Corporation (“IPC”) and Vestar Property Management
Company (“Vestar”) (collectively “Private Party Defendants”) acted in concert to falsely
arrest and maliciously prosecute Plaintiff Edward Rezek (“Plaintiff”) for crimes City
Defendants and Private Party Defendants knew he did not commit. The FAC alleges the
following facts.
a. Reyes nearly strikes Plaintiff with a patrol vehicle
On October 15, 2009, Plaintiff was in a crosswalk en route to a bar in Tustin,
California, when Defendant Reyes—who was employed by Defendants IPC and Vestar—
drove his patrol vehicle into the crosswalk nearly striking Plaintiff. FAC at ¶ 8. Reyes
stopped the vehicle after Plaintiff “slapped the hood” of the patrol car in order to get
Reyes’ attention. Id. Plaintiff then “approached Reyes and gave Reyes a lecture about
nearly injuring plaintiff.” Id.
b. Chupp and Turner, in plain clothes and without identifying
themselves, manhandle Plaintiff
A few minutes later Plaintiff was talking on the phone while waiting in line to
enter the bar when on-duty police officers Chupp and Turner, in plain clothes and without
identifying themselves, “forcibly pulled Plaintiff out of line and hustled Plaintiff to a[]
nearby intersection where Reyes stood at Reyes’ vehicle.” Id.
Chupp and Turner then yelled to Reyes “is this the asshole that vandalized and
punched your car?” to which Reyes falsely responded “yes.” Id. Plaintiff attempted to
explain to Chupp and Turner what had happened in the crosswalk. Id. Despite Plaintiff’s
explanation, one of the two officers “maliciously, forcibly and needlessly knocked
Plaintiff to the ground, wrenching Plaintiff’s right arm high behind his back causing
excruciating pain.” Id.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-01601 DOC (RNBx)
Date: November 15, 2012
Page 3
c. Chupp and Turner identify themselves only after a third party
attempts to intervene
The manager of the bar attempted to pull an officer off of Plaintiff after Plaintiff
screamed out for help, but was stopped when one of the two officers identified
themselves as police officers. Id. Plaintiff was later diagnosed with a broken arm. Id.
d. Plaintiff’s injuries are diagnosed and he is booked
After forcefully apprehending Plaintiff, Plaintiff was handcuffed and placed in a
police vehicle that had been brought to the scene by a transporting officer. Id. After
receiving a diagnosis and treatment for his arm at Western Medical, Plaintiff was taken to
the Tustin Police Department. Id. He was booked for violating California Penal Code
section 148(a)(1) (resisting arrest)2 at Chupp and Turner’s direction and request, as well
as for violating California Penal Code section 594 (vandalism)3 at Reyes’ direction and
request. Id. Plaintiff was cited after booking and released. Id.
In order to justify Plaintiff’s violent seizure, Chupp, Turner and Reyes decided
among themselves to make it seem as though Reyes directed the transporting officer to
carry out Reyes’ citizen’s arrest for vandalism. Id. Pursuant to this agreement, Reyes
executed the citizen’s arrest and Chupp and Turner authored false crime reports in which
both claimed that they witnessed Plaintiff “punch the hood of the vehicle” firsthand and
that Reyes’ vehicle was not in the crosswalk. Id. Moreover, Reyes furnished false
evidence to the District Attorney and kept certain information regarding Plaintiff’s
violent arrest from the Tustin IA investigators and the District Attorney. Opp’n at 8, 11.
On January 11, 2010, the Orange County District Attorney filed misdemeanor criminal
2
Cal. Penal Code § 148(a)(1) provides: “Every person who willfully resists, delays, or obstructs any public officer,
peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of
the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment,
when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or
by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”
3
Cal. Penal Code § 594 provides: “(a) Every person who maliciously commits any of the following acts with respect
to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of
vandalism: (1) Defaces with graffiti or other inscribed material. (2) Damages. (3). Destroys. Whenever a person
violates this subdivision with respect to real property, vehicles, signs, fixtures, furnishings, or property belonging to
any public entity, as defined by Section 811.2 of the Government Code, or the federal government, it shall be a
permissive inference that the person neither owned the property nor had the permission of the owner to deface,
damage, or destroy the property . . . .”
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-01601 DOC (RNBx)
Date: November 15, 2012
Page 4
charges for vandalism and resisting arrest under Orange County Superior Court case No.
10CM00225. The criminal charges remain pending.
c. The present lawsuit and motions to dismiss and strike
Plaintiff filed the present lawsuit on October 17, 2011, and a First Amended
Complaint on April 19, 2012, which is the operative complaint. FAC (Dkt. 21).
On May 16, 2012, Private Party Defendants brought the present Motions to
Dismiss and Motions to Strike Portions of Plaintiff’s First Amended Complaint. (Dkts.
23, 24, 25, 26). Private Party Defendants move to dismiss Plaintiff’s claims for violation
of civil rights under Section 1983 (first claim), malicious prosecution (fourth claim), torts
in essence (fifth claim), intentional infliction of emotional distress (sixth claim),
negligent employment (seventh claim), and violation of Cal. Civ. Code § 52.1 (eighth
claim).
Although Defendants Reyes and IPC filed their Motion to Dismiss and Motion to
Strike separately from Defendant Vestar, the Court will address the Motions to Dismiss
together and the Motions to Strike together because they set forth the same arguments.
II.
Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed
when a plaintiff’s allegations fail to set forth a set of facts which, if true, would entitle the
complainant to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009) (holding that a claim must be facially plausible in order
to survive a motion to dismiss). The pleadings must raise the right to relief beyond the
speculative level; a plaintiff must provide “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S.
at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). On a motion to dismiss, this
court accepts as true a plaintiff’s well-pled factual allegations and construes all factual
inferences in the light most favorable to the plaintiff. Manzarek v. St. Paul Fire &
Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The court is not required to accept
as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-01601 DOC (RNBx)
Date: November 15, 2012
Page 5
In evaluating a Rule 12(b)(6) motion, review is ordinarily limited to the contents
of the complaint and material properly submitted with the complaint. Clegg v. Cult
Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994); Hal Roach Studios, Inc. v. Richard
Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Under the incorporation
by reference doctrine, the court may also consider documents “whose contents are
alleged in a complaint and whose authenticity no party questions, but which are not
physically attached to the pleading.” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.
1994), overruled on other grounds by 307 F.3d 1119, 1121 (9th Cir. 2002).
A motion to dismiss under Rule 12(b)(6) can not be granted based upon an
affirmative defense unless that “defense raises no disputed issues of fact.” Scott v.
Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984). For example, a motion to dismiss may
be granted based on an affirmative defense where the allegations in a complaint are
contradicted by matters properly subject to judicial notice. Daniels-Hall v. Nat’l Educ.
Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). In addition, a motion to dismiss may be
granted based upon an affirmative defense where the complaint’s allegations, with all
inferences drawn in Plaintiff’s favor, nonetheless show that the affirmative defense “is
apparent on the face of the complaint.” See Von Saher v. Norton Simon Museum of Art at
Pasadena, 592 F.3d 954, 969 (9th Cir. 2010).
Additionally, Federal Rule of Evidence 201 allows the court to take judicial notice
of certain items without converting the motion to dismiss into one for summary
judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). The court may take
judicial notice of facts “not subject to reasonable dispute” because they are either: “(1)
generally known within the territorial jurisdiction of the trial court or (2) capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably
be questioned.” Fed. R. Evid. 201; see also Lee v. City of Los Angeles, 250 F.3d 668, 689
(9th Cir. 2001) (noting that the court may take judicial notice of undisputed “matters of
public record”), overruled on other grounds by 307 F.3d 1119, 1125-26 (9th Cir. 2002).
The court may disregard allegations in a complaint that are contradicted by matters
properly subject to judicial notice. Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998
(9th Cir. 2010).
Dismissal without leave to amend is appropriate only when the court is satisfied
that the deficiencies in the complaint could not possibly be cured by amendment.
Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003); Lopez v. Smith, 203 F.3d 1122,
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-01601 DOC (RNBx)
Date: November 15, 2012
Page 6
1127 (9th Cir. 2000) (holding that dismissal with leave to amend should be granted even
if no request to amend was made). Rule 15(a)(2) of the Federal Rules of Civil Procedure
states that leave to amend should be freely given “when justice so requires.” This policy
is applied with “extreme liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d
1074, 1079 (9th Cir. 1990).
III.
Motion to Dismiss
Private Party Defendants argue that: (1) Plaintiff’s first claim for a civil rights
violation under Section 1983 fails because there are no allegations that Private Party
Defendants acted under color of state law; (2) Plaintiff’s eighth claim for a violation of
the Bane Act fails because the Plaintiff fails to allege facts which would demonstrate that
Private Party Defendants violated Plaintiff’s civil rights by means of threats, intimidation,
or coercion; and (3) Plaintiff’s fifth claim for “torts in essence” fails because no authority
exists to demonstrate that the cited sections of the California Penal Code create private
rights of action. This Court DENIES Private Party Defendants’ Motions to Dismiss
Plaintiff’s first claim for a civil rights violation under Section 1983 and Plaintiff’s eighth
claim for a violation of the Bane Act. This Court GRANTS Private Party Defendants’
Motions to Dismiss to the extent they seek to dismiss Plaintiff’s fifth claim for “torts in
essence.” Finally, the Court ORDERS the case stayed pending resolution of the
underlying criminal case.
a. Plaintiff has sufficiently alleged that Private Party Defendants acted
under color of state law
Plaintiff’s first claim for a civil rights violation under Section 1983 alleges that
Private Party Defendants “intentionally and maliciously conspired to deprive Plaintiff of
rights secured to him” by the United States Constitution. FAC at ¶ 11. Private Party
Defendants argue that they cannot be liable under 42 U.S.C. § 1983 because “there are no
allegations that [Private Party Defendants] acted under color of state law.” Mot. to
Dismiss (Dkt. 23) at 1; Mot. to Dismiss (Dkt. 24) at 1.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) the violation
of a right secured by the Constitution or laws of the United States; and (2) that the
violation was committed by a person acting under color of state law. See West v. Atkins,
487 U.S. 42, 48 (1988). Only prong two is in dispute.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-01601 DOC (RNBx)
Date: November 15, 2012
Page 7
Regarding the second prong, one way in which a plaintiff can establish that a
private party acted under color of state law is by demonstrating that the private party was
a willful participant in “joint action” with the state or its agents, which can be shown
through the existence of a “conspiracy.” See Dennis v. Sparks, 449 U.S. 24, 27–28
(1980); Collins v. Womancare, 878 F.2d 1145, 1150 (9th Cir. 1989).4
To establish a conspiracy, “a plaintiff must demonstrate the existence of an
agreement or meeting of the minds to violate constitutional rights”; yet said agreement
“need not be overt, and may be inferred on the basis of circumstantial evidence.” See
United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540–41 (9th Cir.
1989) (quoting Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983) (internal quotation
marks omitted)); Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283,
1301 (9th Cir. 1999). “[E]ach participant in the conspiracy need not know the exact
details of the plan, but each participant must at least share the common objective of the
conspiracy.” United Steelworkers of Am., 865 F.2d at 1541. “An implied agreement can
be garnered from the nature of the conspiracy, a cover-up which necessarily involves
actions undertaken with a mutual understanding to advance a common objective.”
Carreon v. Baumann, 747 F. Supp. 1290 (N.D. Ill. 1990).
4
Private Party Defendants argue that, under Van v. Wal-Mart Stores, Inc., Plaintiff must
allege facts showing either: (1) the security guard was performing a public function; (2)
there was joint action between the security guard and the state; (3) the complained of acts
were the result of coercive influence or significant encouragement of the state; or (4)
there was such a close nexus between the state and the challenged acts that the guard’s
behavior may be fairly treated as that of the state. See Mot. to Dismiss (Dkt. 23) at 5–6 &
Mot. to Dismiss (Dkt. 24) at 6 (citing Van v. Wal-Mart Stores, Inc., 2011 WL 42895, at
*3 (N.D. Cal. Jan. 6, 2011)). This “test” from Van is essentially reciting the four ways in
which courts have found that private parties acted under color of state law. See, e.g.,
Howerton v. Gabica, 708 F.2d 380, 382–83 (9th. Cir. 1983) (explaining that the public
function test, the joint action test, the state compulsion test, and the governmental nexus
test are among the tests or factors used to determine whether action taken by private
individuals was under color of state law). The Court here addresses only the joint action
test because it concludes that Plaintiff has pled sufficient facts to meet that test.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-01601 DOC (RNBx)
Date: November 15, 2012
Page 8
In the instant case, an agreement to violate Plaintiff’s constitutional rights can be
inferred by the allegations regarding Private Party Defendants’ acts before the arrest, as
well as the cover-up after the arrest.
Regarding Private Party Defendants’ acts before the arrest, Plaintiff alleges facts
which give rise to the reasonable inference that Reyes knew Chupp and Turner prior to
the arrest and exploited this pre-existing relationship to take revenge on Plaintiff. First,
Plaintiff asserts that Chupp and Turner were not in uniform, never identified themselves
as on-duty police officers before manhandling Plaintiff, and a witness attempted to pull
the plainclothes officers off Plaintiff during the arrest. FAC at ¶ 8. From these facts, the
Court can reasonably infer that anyone who lacked a pre-existing relationship with Chupp
or Turner would not readily identify them as police officers. Second, Plaintiff alleges
that Chupp and Turner asked Reyes to identify Plaintiff as the person who vandalized
Reyes’ car shortly before Plaintiff’s arrest. Id. From this fact, it can be inferred that
Reyes sought Chupp and Turner’s help after Reyes’ run-in with Plaintiff. Third, Plaintiff
alleges that Reyes is a security guard. Id. Given that security guards often encounter
police while performing their job duties, the Court can reasonably infer that it is possible
that Reyes was aware that Chupp or Turner were police officers based on previous
interactions. Together, these facts give rise to the reasonable inference that Reyes had a
pre-existing relationship with Chupp and Turner prior to the arrest and exploited this
relationship to take revenge on Plaintiff.
The reasonable inference that Reyes exploited his pre-existing relationship with
Chupp and Turner to take revenge on Plaintiff is further supported by the allegations
about a cover-up after the arrest. Plaintiff alleges that, after the arrest, Reyes and the
officers jointly decided to have Reyes execute a citizen’s arrest in order to “conceal” and
“justify” Chupp and Turner’s violent seizure. Id. In addition, Plaintiff alleges that Reyes
furnished false evidence to the District Attorney in order to “conform to [Chupp and
Turner’s] contrived version of Plaintiff’s crimes.” Id.; Opp’n (Dkt. 27) at 11. Reyes’
pre-existing relationship with Chupp and Turner provides a motivation for why all three
Defendants would be willing to work together to violently arrest and maliciously
prosecute Plaintiff—the alleged acts which caused the deprivation of Plaintiff’s rights.
Because all factual inferences are construed in the light most favorable to the
plaintiff, this Court concludes that Plaintiff has adequately pled that Private Party
Defendants acted under color of state law for purposes of Section 1983.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-01601 DOC (RNBx)
b.
Date: November 15, 2012
Page 9
Plaintiff adequately states a claim for a violation of the Bane Act
because Plaintiff alleges facts showing that Private Party
Defendants violated Plaintiff’s civil rights by means of threats,
intimidation, or coercion
Plaintiff’s eighth claim alleges that, in addition to violating Section 1983, Private
Party Defendants also violated Cal. Civil Code § 52.1 (also known as the “Bane Act”).
“To prevail on a claim under the Bane Act, a plaintiff must show that the defendant used
threats, intimidation, or coercion to interfere with the plaintiff’s state or federal
constitutional rights.” Gant v. County of Los Angeles, 765 F. Supp. 2d 1238, 1252 (C.D.
Cal. 2011) (quoting Cal. Civ. Code § 52.1(a), (b) (internal quotation marks omitted)).
Private Party Defendants argue that Plaintiff’s claim must fail because “the FAC
contains no allegations that any of the defendants threatened, intimidated, or coerced the
Plaintiff” since “the only factual allegation present is that Reyes responded to a single
question from a police officer.” Mot. to Dismiss (Dkt. 23) at 10–11; Mot. to Dismiss
(Dkt. 24) at 10–11. In addition, Private Party Defendants argue that the claim must fail
because “the California Supreme Court has interpreted [S]ection 52.1 as precluding
actions based on purely private acts where the underlying constitutional right is a right to
be free from government action.” Id. (citing Jones v. Kmart Corp., 17 Cal. 4th 329, 334,
70 Cal. Rptr. 2d 884 (1998)).
Although Private Party Defendants are correct about the California Supreme
Court’s holding, because, as noted above, this Court finds that Plaintiff has adequately
pled that Private Party Defendants acted under color of state law, Private Party
Defendants’ acts were not “purely private.” Therefore, this Court must just address
whether Private Party Defendants used threats, intimidation, or coercion to interfere with
Plaintiff’s state or federal constitutional rights.
Very few California courts have considered the meaning of the terms “threats,”
“intimidation,” or “coercion.” Given a lack of California case law, courts have looked to
Massachusetts case law for guidance since the Bane Act was modeled after the
Massachusetts Civil Rights Act of 1979. See e.g., Gant, 765 F. Supp. 2d at 1253; Cole v.
Doe 1 thru 2 Officers of City of Emeryville Police Dept., 387 F. Supp. 2d 1984, 1103–04
(N.D. Cal. 2005). According to the court in Planned Parenthood League of
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-01601 DOC (RNBx)
Date: November 15, 2012
Page 10
Massachusetts, Inc. v. Blake, a “threat . . . involves the intentional exertion of pressure to
make another fearful or apprehensive of injury or harm . . . [i]ntimidation involves
putting in fear for the purpose of compelling or deterring conduct” and “coercion” is “the
application to another of such force, either physical or moral, as to constrain him to do
against his will something he would not otherwise have done.” See Planned Parenthood
League of Massachusetts, Inc. v. Blake, 631 N.E. 2d 985, 990 (1994).
Plaintiff alleges facts which adequately plead that at minimum, Reyes used
“threats” and “intimidation” to interfere with Plaintiff’s state and federal constitutional
rights. Although Private Party Defendants argue that Reyes’ only involvement in the acts
which allegedly caused the constitutional violations was “responding to a question from a
police officer,” as noted above, it can be inferred that Reyes sought out Chupp and
Turner to take revenge on Plaintiff after Plaintiff’s interaction with Reyes. Mot. to
Dismiss (Dkt. 23) at 11; Mot. to Dismiss (Dkt. 24) at 11. Plaintiff alleges that he was
“forcibly pulled” out of line by Chupp and Turner and “hustled” to a nearby intersection
so that Reyes could identify him. FAC at ¶ 8. These facts, together with Plaintiff’s
allegation that he was unaware that Chupp and Turner were police officers, support the
inference that prior to his allegedly unlawful arrest, Plaintiff would have felt intimidated
by the two men, as well as fearful of injury or harm.
Given that Plaintiff has adequately stated a claim against Reyes for violation of the
Bane Act, Plaintiff has also adequately stated a claim against IPC and Vestar, Reyes’
employers, given that employers can be vicariously liable for the acts of their employees.
See, e.g., Perez v. Van Groningen & Sons, Inc., 41 Cal. 3d 962, 967, 719 P.32d 676
(1986) (“Under the doctrine of respondeat superior, an employer is vicariously liable for
his employee’s torts committed within the scope of the employment . . . [t]he losses
caused by the torts of employees, which as a practical matter are sure to occur in the
conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required
cost of doing business.”); Hinman v. Westinghouse Elec. Co., 2 Cal. 3d 956, 959–60, 471
P.2d 988 (1970). Therefore, Plaintiff has adequately pled that Private Party Defendants
violated the Bane Act.
c.
Plaintiff fails to adequately state a claim for “torts in essence”
since the cited Penal Code Sections do not create a private right
of action
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-01601 DOC (RNBx)
Date: November 15, 2012
Page 11
Plaintiff’s fifth claim against Private Party Defendants is for “torts in essence.”
A tort in essence is the breach of a nonconsensual duty owed
another. Violation of a statutory duty to another may therefore be a
tort and violation of a statute embodying public policy is generally
actionable even though no specific civil remedy is provided in the
statute itself. Any injured member of the public for whose benefit
the statute was enacted may bring the action.
S. Bay Bldg Enterprises, Inc. v. Riviera Lend-Lease, Inc., 72 Cal. App. 4th 1111, 1123,
85 Cal. Rptr. 2d 647 (1999). Plaintiff asserts that Private Party Defendants failed to abide
by and intentionally violated non-consensual duties owed to Plaintiff which are set forth
in California Penal Code Sections 148.55 (false report of a crime), 1346 (preparing false
evidence), 1327 (offering false evidence), 1278 (subornation of perjury), and 1379 (induce
5
Cal. Penal Code § 148.5 provides in relevant part: “(a) Every person who reports to any peace
officer listed in Section 830.1 or 830.2, or subdivision (a) of Section 830.33, the Attorney
General, or a deputy attorney general, or a district attorney, or a deputy district attorney that a
felony or misdemeanor has been committed, knowing the report to be false, is guilty of a
misdemeanor. (b) Every person who reports to any other peace officer . . . that a felony or
misdemeanor has been committed, knowing the report to be false, is guilty of a misdemeanor if
(1) the false information is given while the peace officer is engaged in the performance of his or
her duties as a peace officer and (2) the person providing the false information knows or should
have known that the person receiving the information is a peace officer.
6
Cal. Penal Code § 134 provides: “Every person guilty of preparing any false or ante-dated
book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or
allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial,
proceeding, or inquiry whatever, authorized by law, is guilty of a felony.”
7
Cal. Penal Code § 132 provides: “Every person who upon any trial, proceeding, inquiry, or
investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true,
any book, paper , document, record, or other instrument in writing, knowing the same to have
been forged or fraudulently altered or ante-dated, is guilty of felony.”
8
Cal. Penal Code § 127 provides: “Every person who willfully procures another person to
commit perjury is guilty of subornation of perjury, and is punishable in the same manner as he
would be if personally guilty of the perjury so procured.”
9
Cal. Penal Code § 137 provides in relevant part: “(a) Every person who gives or offers, or
promises to give, to any witness, person about to be called as a witness, or person about to give
material information pertaining to a crime to a law enforcement official, any bribe, upon any
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-01601 DOC (RNBx)
Date: November 15, 2012
Page 12
false testimony). FAC at ¶ 38–39. Private Party Defendants move to dismiss this claim
arguing that the cited California Penal Code sections do not create private rights of
action. Mot. to Dismiss (Dkt. 23) at 11–12 & Mot. to Dismiss (Dkt. 24) at 11–12.
“A statute creates a private right of action only if the enacting body so intended.”
Farmers Ins. Exch. v. Superior Court, 137 Cal. App. 4th 842, 849, 40 Cal. Rptr. 3d 653,
657 (2006) (citing Moradi-Shalal v. Fireman’s Fund Ins. Companies, 46 Cal. 3d 287,
305, 250 Cal. Rptr. 116, 758 P.2d 58 (1988). “That intent need not necessarily be
expressed explicitly, but if not it must be strongly implied.” Id. (citing Vikco Ins.
Services, Inc. v. Ohio Indemnity Co. 70 Cal. App. 4th 55, 62, 82 Cal. Rptr. 2d 442
(1999)). Private rights of action under criminal statutes have rarely been implied, and
when one has been read into a criminal statute “there was at least a statutory basis for
inferring that a civil cause of action of some sort lay in favor of someone.” Chrysler
Corp v. Brown, 441 U.S. 281, 316 (1979).
The Court has reviewed Sections 148.5, 134, 132, 127, and 137, and has found
that the statutes do not include language suggesting that civil enforcement is available to
Plaintiff. Although Plaintiff cites support for the continued viability of the “torts in
essence” doctrine, Plaintiff fails to cite authority showing the California Legislature
intended to create private rights of action under the five statutes. Opp’n at 16–19. See
Agric. Ins. Co., v. Superior Court, 70 Cal. App. 4th 385, 400, 82 Cal. Rptr. 2d 594, 602
(1999) (finding that dismissal of plaintiff’s claim under Section 550 of the California
Penal Code was proper because plaintiff did not cite or suggest anything indicating the
Legislature’s “silent” intent, nor why, if the Legislature did so intend a private right of
action, it did not simply say so); Hillblom v. County of Fresno, 539 F. Supp. 2d 1192,
1212 (E.D. Cal. 2008) (putting the burden on the plaintiffs to “defend meaningfully their
torts in essence cause of action” and dismissing because plaintiffs “fail to demonstrate
how their cited California Penal Code sections create private rights of action”); see also
Harvey v. City of South Lake Tahoe, CIV S-10-1653 KJM EFB PS, 2011 WL 3501687 at
*7 (E.D. Cal. Aug. 9, 2011) (finding plaintiff’s claims under Sections 182, 849, and 484
of the California Penal Code failed because plaintiff did not argue that private causes of
action were implied, and because there was no indication in the statute that civil
enforcement was available to plaintiff).
understanding or agreement that the testimony of such witness or information given by such
person shall be thereby influenced is guilty of a felony.”
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-01601 DOC (RNBx)
Date: November 15, 2012
Page 13
Consequently, Plaintiff’s claim for “torts in essence” (claim 5) is DISMISSED
with leave to amend.
d.
Conclusion
For the foregoing reasons, Private Party Defendants’ Motions to Dismiss are
DENIED as to Plaintiff’s first claim for a civil rights violation under Section 1983 and
Plaintiff’s eighth claim for a violation of the Bane Act. Private Party Defendants’
Motions to Dismiss are GRANTED to the extent they seek to dismiss Plaintiff’s fifth
claim for “torts in essence.”
IV.
Motions to Strike
In addition to moving to dismiss, Private Party Defendants also move to strike
portions of Plaintiff’s First Amended Complaint pursuant to Federal Rule of Civil
Procedure 12(f). (Dkt. 25 & 26). Private Party Defendants state that allegations and
prayers for punitive damages that appear in five sections of the FAC constitute
“redundant, immaterial, impertinent or scandalous matter.” Mot. to Strike (Dkt. 25) at 2–
3, Mot. to Strike (Dkt. 26) at 2–3. Moreover, Private Party Defendants argue that the
prayers for punitive damages should be stricken because Plaintiff has failed to allege
facts that would show Plaintiff is entitled to punitive damages under California law. Id.
at 4–5.
In 2010 the Ninth Circuit held that “Rule 12(f) of the Federal Rules of Civil
Procedure does not authorize a district court to dismiss a claim for damages on the basis
it is precluded as a matter of law.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970,
973 (9th Cir. 2010). In reaching this conclusion, the Ninth Circuit explained that district
courts may not resolve disputed and substantial factual or legal issues under Rule 12(f)
because if that were allowed, striking under Rule 12(f) would be akin to dismissing under
Rule 12(b)(6) or granting summary judgment under Rule 56 and would thereby create
redundancies within the Federal Rules of Civil Procedure. Id. at 974. Moreover, the
court noted that Rule 12(f) motions are reviewed under a different standard from that
used to review a Rule 12(b)(6) motion and if a party may seek dismissal of a pleading
under the former then “the district court’s action would be subject to a different standard
review than if the district court had adjudicated the same substantive action under Rule
12(b)(6). Id. “Applying different standards of review, when the district court’s
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-01601 DOC (RNBx)
Date: November 15, 2012
Page 14
underlying action is the same,” the court explained, “does not make sense.” Id.
Therefore, this Court must only determine whether the five portions of the FAC noted by
Private Party Defendants should be stricken on the basis that they constitute “redundant,
immaterial, impertinent or scandalous matter.” Fed. R. Civ. Pro. 12(f).
Whether to grant a motion to strike lies within the sound discretion of the Court.
Fantasy, Inc. v. Fogarty, 984 F.2d 1524, 1528 (9th Cir. 1993), rev’d on other grounds by
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). “Motions to strike are generally regarded
with disfavor because of the limited importance of pleading in federal practice, and
because they are often used as a delaying tactic.” California Dept. of Toxic Substances
Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002). Consequently,
courts generally require “a showing of prejudice by the moving party before granting the
requested relief.” Id. (quoting Securities & Exchange Comm’n v. Sands, 902 F. Supp.
1149, 1528 (C.D. Cal. 1995) (internal quotation marks omitted)). “The possibility that
issues will be unnecessarily complicated or that superfluous pleadings will cause the trier
of fact to draw unwarranted inferences at trial is the type of prejudice that is sufficient to
support the granting of a motion to strike. Id. However, courts have stated that “[m]atter
will not be stricken unless it is clear that it can have no possible bearing upon the subject
matter of the litigation; if there is any doubt as to whether under any contingency the
matter may raise an issue, the motion may be denied.” See, e.g., United States v. 729.733
Acres of Land, Etc., 531 F. Supp. 967, 971 (D. Haw. 1982).
Here, Private Party Defendants have not argued that the five allegations which
include prayers for punitive damages will mislead the trier of fact or lead to unnecessary
complication. Additionally, it is not certain that the portions of the FAC that Private
Party Defendants move to strike will have no possible bearing on this case. Therefore,
Private Party Defendants’ Motions to Strike are DENIED.
V.
The Court orders this case stayed pending resolution of underlying
criminal prosecution
A district court may stay a civil action until a related criminal case or the
likelihood of a criminal case has ended where a plaintiff files a false arrest claim or any
other claim related to rulings that will likely be made in a pending or anticipated criminal
trial. See Wallace v. Kato, 549 U.S. 384, 393–94 (2007).
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-01601 DOC (RNBx)
Date: November 15, 2012
Page 15
Here, a criminal case against Plaintiff was filed in 2010 and is still pending.
Plaintiff explains that he filed the present action, which includes some admittedly
premature claims which cannot be adjudicated until the resolution of the underlying
criminal proceedings, because California Government Code Section 945.310 tolls claims
against the City Defendants but not those against the Private Party Defendants. See
Opp’n (Dkt. 27) at 13 (noting that Plaintiff’s Section 1983 malicious prosecution claim is
admittedly premature given that the underlying criminal prosecution has not been
terminated in Plaintiff’s favor); see also Cal. Gov. Code § 945.3 (tolling the statute of
limitations for a criminal defendant to file and prosecute actions against peace officers or
public entities pending resolution of the criminal case, but making no mention of tolling
claims against private parties also involved).
tolls the statute of limitations for filing and prosecuting actions against those
parties, but makes no mention of tolling claims against private parties also involved).
Given that this action is tolled with respect to some defendants and not others, and
that multiple claims relate to those made in the pending criminal trial, this Court
ORDERS this action STAYED pending the resolution of the underlying criminal
proceedings.
V.
Disposition
Accordingly, this Court holds that: (1) allegations were sufficient to plead joint
action between Private Party Defendants and City Defendants; (2) under California law,
allegations were sufficient to plead Private Party Defendants used “threats, intimidation,
or coercion” to interfere with Plaintiff’s federal or state constitutional rights; (3)
California Penal Code Sections 148.5, 134, 132, 127, and 137 do not include language
suggesting that civil enforcement is available; and (4) the FAC’s five allegations which
10
Cal. Gov. Code § 945.3 provides: “No person charged by indictment, information, complaint
or other accusatory pleading charging a criminal offense may bring a civil action . . . against a
peace officer or the public entity employing a peace officer based upon the conduct of the peace
officer relating to the offense for which the accused is charged . . . while the charges against the
accused are pending before a superior Court. Any applicable statute of limitations for filing and
prosecuting these actions shall be tolled during the period that the charges are pending before a
superior court.”
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-01601 DOC (RNBx)
Date: November 15, 2012
Page 16
include prayers for punitive damages will not mislead the trier of fact or lead to
unnecessary complication.
Therefore, this Court:
1) DENIES Private Party Defendants’ Motions to Dismiss Plaintiff’s first claim
for a civil rights violation under Section 1983;
2) DENIES Private Party Defendants’ Motions to Dismiss Plaintiff’s eighth
claim for a violation of the Bane Act;
3) GRANTS Private Party Defendants’ Motions to Dismiss to the extent they
seek to dismiss Plaintiff’s fifth claim for “torts in essence”;
4) DENIES Private Party Defendants’ Motions to Strike.
The Clerk shall serve a copy of this minute order on counsel for all parties in this
action.
MINUTES FORM 11
CIVIL-GEN
Initials of Deputy Clerk: jcb
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