Edward Rezek v. City of Tustin et al

Filing 66

MINUTE ORDER IN CHAMBERS by Judge David O. Carter: Granting In Part and Denying In Part City of Tustin's MOTION to Dismiss 44 . (twdb)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Date: February 6, 2014

Case No. SACV 11-1601-DOC (RNBx)
Title: EDWARD REZEK v. CITY OF TUSTIN, ET AL.

PRESENT:
THE HONORABLE DAVID O. CARTER, JUDGE
Julie Barrera
Courtroom Clerk

Not Present
Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF:

ATTORNEYS PRESENT FOR DEFENDANT:

None Present

None Present

PROCEEDINGS (IN CHAMBERS): ORDER GRANTING IN PART AND
DENYING IN PART CITY OF
TUSTIN’S MOTION TO DISMISS
[44]
Before the Court is Defendants Brian Chupp, Scott Jordan, Mark Turner, and the
City of Tustin’s (together, “Defendants’”) Motion to Dismiss (“Motion” or “Mot.”) (Dkt.
44) Plaintiff Edward Rezek’s (“Mr. Rezek’s”) Second Amended Complaint (“SAC”).
After considering the motion and opposition, and all filings attached thereto, the Court
GRANTS in part and DENIES in part the Motion.
I. BACKGROUND
The following facts were alleged by the Plaintiff in his Second Amended
Complaint and are construed in a light most favorable to him.
On October 15, 2009, Mr. Rezek was walking in a crosswalk on the way to Auld
Dubliner Pub in Tustin. SAC ¶ 8. Defendant Jose Reyes (“Mr. Reyes”), a security guard
for Defendant IPC Investor Property Management (“IPC”), inattentively drove his
vehicle into the crosswalk and nearly struck Mr. Rezek. Id. Defendant Hirineo Ibarra
(“Mr. Ibarra”) was a passenger in the vehicle and was also employed by IPC. Id. Mr.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-1601-DOC (RNBx)

Date: February 6, 2014
Page 2

Rezek slapped the hood of the car and lectured Mr. Reyes. Id. Then, continued to the
bar. Id.
A few minutes later, Mr. Rezek was waiting in line at Auld Dubliner Pub. Id.
Defendant Officers Chupp and Turner, in plain clothes but on duty, forcibly pulled Mr.
Rezek out of line. Id. They did not identify themselves as police officers. Id. They
dragged Mr. Rezek to the intersection and asked Mr. Reyes and Mr. Ibarra, “is this the
as*hole that vandalized and punched your car?” Id. Mr. Reyes responded, “Yes.” Id.
When Mr. Rezek tried to explain, Officers Chupp and Turner knocked him to the
ground and wrenched his right arm high behind his back. Id. Mr. Rezek was in
excruciating pain and shouted, “my arm is broken,” “I’m not resisting,” and “help.” Id.
The officers continued to apply force to Mr. Rezek’s arm and told him to “shut up.” Id.
They forced his mouth into the dirt, put a knee on his back, and choked him until he was
nearly unconscious. Id.
As he was being taken away from the scene, Mr. Rezek begged the officers to
obtain the identities of witnesses, but they refused. Id. After approximately ten to fifteen
minutes, the Officers asked if Mr. Rezek needed medical assistance. Id. He said that he
did, and the paramedics came and told the Officers that he needed to go to the emergency
room. Id. He eventually went to the hospital, and then to the Tustin Police Department.
Id.
At some point, Officers Chupp and Turner conspired with Mr. Reyes and Mr.
Ibarra to falsely state that Mr. Reyes executed an order of citizen’s arrest. Id. Officers
Chupp and Turner then authored false crime reports stating that they observed Mr. Rezek
punching Mr. Reyes’ vehicle and overheard Mr. Rezek in line saying, “I just punched the
sh*t out of one of the security cars and the security guard was too much of a pu*sy to do
anything about it.” Id.
As a result, Mr. Rezek was charged and prosecuted for resisting arrest and
vandalism. Id. He was eventually convicted of vandalism and acquitted of resisting
arrest. Def.’s Request for Judicial Notice, Ex. 1.
On October 21, 2009, Mr. Rezek wrote a complaint against Officers Chupp and
Turner to Defendant Tustin Chief of Police Scott Jordan (“Chief Jordan”). SAC ¶ 8.
Chief Jordan assured Mr. Rezek that a thorough and unbiased internal investigation
would be carried out. Id. On December 23, 2009, Chief Jordan wrote to Mr. Rezek to

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-1601-DOC (RNBx)

Date: February 6, 2014
Page 3

advise him that his investigation determined that while the events did occur, they did not
constitute misconduct under the circumstances. Id.
Now, Mr. Rezek brings suit against Defendants City of Tustin, Officer Chupp,
Officer Turner, Chief Jordan, IPC International Corporation, Vestar Property
Management Company, Mr. Reyes, and Mr. Ibarra for the following: (1) Violation of
Civil Rights (42 U.S.C. § 1983), (2) Monell (42 U.S.C. § 1983) Against the City of
Tustin, (3) False Arrest/Imprisonment, (4) Malicious Prosecution, (5) Intentional
Infliction of Emotional Distress, (6) Negligent Employment, and (7) California Civil
Code § 52.1. See generally SAC.
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.
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) cannot 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

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-1601-DOC (RNBx)

Date: February 6, 2014
Page 4

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,
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.

ANALYSIS

A. 42 U.S.C. § 1983: Unreasonable Force and Malicious Prosecution
Mr. Rezek’s first claim is that Defendants conspired to deprive him “of his rights
against unreasonable seizures and due process guarantees[.]” SAC ¶¶ 9-14. More
specifically, he alleges that the police officers used unreasonable force and maliciously
prosecuted him. Id.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-1601-DOC (RNBx)

Date: February 6, 2014
Page 5

To prove a case under § 1983, the plaintiff must demonstrate that (1) the action
occurred ‘under color of state law’ and (2) the action resulted in the deprivation of a
constitutional right or federal statutory right. Parratt v. Taylor, 451 U.S. 527, 535
(1981).
Here, there is no dispute that the officers were acting under color of state law
when arresting and prosecuting Mr. Rezek. Furthermore, the City of Tustin does not
seem to challenge Mr. Rezek’s § 1983 claim, insofar as he alleges unreasonable force.
Rather, the City of Tustin argues that (1) Mr. Rezek’s § 1983 claim, to the extent that it is
predicated on malicious prosecution, cannot move forward and (2) Mr. Rezek failed to
allege facts against Defendant Chief Jordan.
1. Malicious Prosecution for One of Two Counts
The City of Tustin argues that Mr. Rezek’s “claims for false arrest and malicious
prosecution are barred by the fact that he was convicted of vandalism.”1 Mot. at 6. Mr.
Rezek responds that his conviction for one of two charges does not bar actions for
malicious prosecution as to the other charge. Opp’n at 7. The Court agrees.
“To claim malicious prosecution, a [plaintiff] must allege ‘that the defendants
prosecuted her with malice and without probable cause, and that they did so for the
purpose of denying her equal protection or another specific constitutional right.’” Lacy v.
Maricopa Cnty., 693 F.3d 896, 919 (9th Cir. 2012) (quoting Freeman v. City of Santa
Ana, 68 F.3d 1180, 1189 (9th Cir. 1995)). In addition, plaintiffs must allege and prove
the “termination of the prior criminal proceeding in favor of the accused.” Heck v.
Humphrey, 512 U.S. 477, 483 (1994) (noting also that, “[The Supreme Court] ha[s]
repeatedly noted that 42 U.S.C. § 1983 creates a species of tort liability”).
Here, Mr. Rezek was charged with two counts: vandalism and resisting arrest. He
was convicted for vandalism and, consequently, he concedes that a § 1983 action for
malicious prosecution cannot be predicated on that count. Opp’n at 7. However, “a
prosecution can be malicious with respect to some counts in a complaint even though
other counts resulted in a conviction.” Poppell v. City of San Diego, 149 F.3d 951, 963
(9th Cir. 1998) (citing Singleton v. Perry, 45 Cal.2d 489, 497-98 (1955)). “It is not
necessary that the whole proceeding be utterly groundless.” Singleton, 45 Cal.2d at 497.
In other words, Mr. Rezek’s vandalism conviction does not preclude him from arguing
that he was maliciously prosecuted for resisting arrest.
1

Mr. Rezek points out that his Complaint was amended to omit any claim for false arrest. Opp’n at 4. The Court
agrees, and so it will not address the City of Tustin’s arguments against such a claim.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-1601-DOC (RNBx)

Date: February 6, 2014
Page 6

Of course, at trial, Mr. Rezek cannot rest merely on the fact that he was acquitted
for resisting arrest. Poppell, 149 F.3d at 963 (“An acquittal . . . reveals very little – if
anything – about whether the charges were procured with malice.”). But, Mr. Rezek’s §
1983 claim, to the extent that it is predicated on malicious prosecution of the resisting
arrest charge, is sufficiently pled.
2. Claim Against Chief Jordan
The City of Tustin contends that although Mr. Rezek’s § 1983 claim is brought
against “all individual defendants,” he has “failed to allege any facts to establish that
Chief Jordan participated in any way[.]” Mot. at 8. The Court agrees.
“In order for a person acting under color of state law to be liable under Section
1983 there must be a showing of personal participation in the alleged deprivation[.]”
Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). In other words, supervisor liability
may exist if plaintiffs can show that either: “(1) his or her personal involvement in the
constitutional deprivation or (2) a sufficient causal connection between the supervisor’s
wrongful conduct and the constitutional violation.” Redman v. Cnty. of San Diego, 942
F.2d 1435, 1446 (9th Cir. 1991) (en banc).
Here, Mr. Rezek submitted a complaint regarding Officers Chupp and Turner to
Chief Jordan. SAC at 7. Chief Jordan assured Mr. Rezek that a thorough and unbiased
internal investigation would be carried out. Id. Subsequently, Chief Jordan wrote to Mr.
Rezek, advising him that the investigation revealed that while the events “did occur,”
they “did not constitute misconduct under the circumstances.” Id. Mr. Rezek claims that
Chief Jordan, therefore, “ratified” the wrongdoing of Officers Chupp and Turner.
But, even in a light most favorable to Mr. Rezek, the allegations show only that
Chief Jordan knew of the allegations against Officers Chupp and Turner; they do not
show that he confirmed Officers Chupp and Turner’s wrongdoing, and then “ratified”
their actions. To be sure, if Chief Jordan “knew of the violations and failed to act to
prevent them,” then he may be liable. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989). But, there is a gap between ‘knowing of violations’ and ‘knowing of allegations.’
Here, the pleading is insufficient because there are no facts to suggest that Chief Jordan’s
conduct was wrongful, see Redman, 942 F.2d at 1446, or that he was aware of anything
more than Mr. Rezek’s allegations, see Taylor, 880 F.2d at 1045. In short, supervisors
may be held individually liable for their “own culpable action,” Larez v. Los Angeles, 946
F.2d 630, 646 (9th Cir. 1991), but the allegations here do not adequately show that Chief
Jordan was at all culpable.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-1601-DOC (RNBx)

Date: February 6, 2014
Page 7

Accordingly, this Court DENIES the City of Tustin’s motion to dismiss Mr.
Rezek’s § 1983 claim, to the extent that it is predicated on unreasonable force and
malicious prosecution. But, the Court GRANTS the City of Tustin’s motion to dismiss
the § 1983 claim as to Chief Jordan, to the extent that it is predicated on Chief Jordan’s
direct involvement in this particular violation of constitutional rights.
B. Monell Claim
Mr. Rezek’s second claim is that the City of Tustin promulgated and operated
under policies, practices, and customs that are unconstitutional. SAC ¶¶ 20-26. The City
of Tustin contends that Mr. allegations are insufficient because he has “stated nothing but
boilerplate allegations against both the City and Chief Jordan[.]” Mot. at 10. The Court
disagrees.
Liability does not attach to a municipality merely because a constitutional
violation is caused by a municipal employee, even one acting within the scope of his or
her authority. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 663 (1978). Rather, a
plaintiff must plead the existence of an unconstitutional municipal policy or, “where the
policy relied upon is not itself unconstitutional[,] . . . both the requisite fault on the part of
the municipality and the causal connection between the ‘policy’ and the constitutional
deprivation.” Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985).
If the plaintiff alleges that the municipality ‘failed to train’ its employees, then the
failure to must constitute a deliberate indifference to the rights of the public. City of
Canton, Ohio v. Harris, 489 U.S. 378, 388-89 (1989). Specifically, the plaintiff must
show that (1) the existing program is inadequate, (2) the training policy, or lack thereof,
amounts to deliberate indifference to the rights of people with whom the police come into
contact, and (3) the deliberate indifference caused the constitutional violation at issue.
Merritt v. Cnty. of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989).
Here, Mr. Rezek identifies a host of alleged policies and practices promulgated,
sanctioned, or tolerated by the City of Tustin and by Chief Jordan. SAC ¶ 24. For
example, Mr. Rezek alleges that both the City of Tustin and Chief Jordan knew of prior
similar misconduct of Officers Chupp and Turner and others, refused to discipline those
officers, refused to investigate the misconduct, and attempted to cover up those acts. Id.
It is true that Mr. Rezek has not specifically named any particular incident that supports
his allegations. However, that is a question for a later stage in litigation. Indeed, it is
hard for this Court to imagine how such information might be available to a plaintiff
without the benefit of discovery. In short, Mr. Rezek has cleared the low bar set at the

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-1601-DOC (RNBx)

Date: February 6, 2014
Page 8

pleading stage by alleging facts that, if true, would entitle him to relief on the Monell
claim.
Accordingly, this Court DENIES the City of Tustin’s motion to dismiss Mr.
Rezek’s Monell claim.
C. False Arrest and Imprisonment
The City of Tustin argues that Mr. Rezek’s third claim for false arrest and
imprisonment must fail because Mr. Rezek was convicted of one of the charges for which
he was arrested. Mot. at 11. The Court disagrees.
Under California law, a police officer may be held liable for false and arrest and
false imprisonment. Cal. Gov. Code. §§ 820.4, 821.6. The tort of false imprisonment is
defined as “the unlawful violation of the personal liberty of another.” Fermino v. Fedco,
Inc., 7 Cal. 4th 701, 715 (1994). The confinement must be “without lawful privilege.”
Asgari v. City of Los Angeles, 15 Cal. 4th 744, 757 (1997) (citing Molko v. Holy Spirit
Assn., 46 Cal. 3d 1092, 1123 (1998)).
Unlike Federal law, convictions do not automatically bar subsequent civil actions
for false arrest or imprisonment. See People v. Valenti, 49 Cal. 2d 199, 203 (1957) (“An
illegal arrest, alone, is utterly irrelevant [to guilt or innocence].”). Rather, those
convictions bar subsequent civil actions for false arrest only if that issue was “actually
litigated in the initial action.” See People v. Carter, 36 Cal. 4th 1215, 1240. An issue is
actually litigated “[w]hen [it] is properly raised, by the pleadings or otherwise, and is
submitted for determination, and is determined. Id.
Here, proof of Mr. Rezek’s conviction is not enough. Rather, in order for the City
of Tustin to succeed on this argument, it must show that the issue of probable cause was
“properly raised, . . . submitted for determination, and [was] determined.” Id. Therefore,
the fact that Mr. Rezek was convicted does not bar his false arrest claim.
Accordingly, the Court DENIES the City of Tustin’s motion to dismiss Mr.
Rezek’s state law claim for false arrest and imprisonment.
D.

Intentional Infliction of Emotional Distress

Finally, the City of Tustin argues that Mr. Rezek’s pleading is merely conclusory
and not factual. The Court agrees.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-1601-DOC (RNBx)

Date: February 6, 2014
Page 9

In order to prevail on a claim for intentional infliction of emotional distress, the
plaintiff must show: (1) extreme and outrageous conduct by defendant; (2) defendant’s
intent to cause severe emotional distress; and (3) severe emotional distress suffered by
the plaintiff (4) as a proximate result of defendant’s conduct. Fletcher v. W. Nat’l Life
Ins. Co., 10 Cal. App. 3d 376, 394 (1970).
In addressing this argument, Mr. Rezek curiously focuses on the outrageousness of
the Officers’ conduct, but fails to address the question of intent. Indeed, Mr. Rezek’s
complaint on this cause of action is a mere formulaic recitation of the elements of
intentional infliction of emotional distress. See SAC ¶¶ 37-41. This is not enough.
Accordingly, the Court GRANTS the City of Tustin’s motion to dismiss Mr.
Rezek’s intentional infliction of emotional distress claim.
IV.DISPOSITION
For the reasons stated above, this Court GRANTS the City of Tustin’s Motion as
to Chief Jordan’s direct liability and Mr. Rezek’s intentional infliction of emotional
distress claim. The Court DENIES the City of Tustin’s Motion as to all other claims.
Mr. Rezek is granted leave to amend his Second Amended Complaint on or before
February 21, 2014.
The Clerk shall serve this minute order on the parties.
MINUTES FORM 11
CIVIL-GEN

Initials of Deputy Clerk: jcb