Porter v. Munoz et al

Filing 13

ORDER signed by District Judge Leslie E. Kobayashi on 1/20/17 ORDERING that defendants' 7 Motion to Dismiss and to Strike is GRANTED IN PART AND DENIED IN PART. Plaintiff is GRANTED leave to file an amended complaint by 3/21/2017. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
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Plaintiff,
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vs.
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SERGEANT MUNOZ in his
individual capacity, DOES 1- )
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10 in their individual
capacities, CITY OF DAVIS
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POLICE DEPARTMENT, CITY OF
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DAVIS,
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Defendants.
_____________________________ )
LASONJA PORTER,

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2:16-CV-01702 LEK

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS AND TO STRIKE
On October 14, 2016, Defendants Sergeant Munoz and the

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City of Davis1 (“the City,” collectively “Defendants”) filed

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their Motion to Dismiss and to Strike (“Motion”).

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Plaintiff Lasonja Porter (“Plaintiff”) filed her memorandum in

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opposition on October 28, 2016, and Defendants filed their reply

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on November 10, 2016.

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matter suitable for disposition without a hearing pursuant to

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L.R. 230(g) of the Local Rules of the United States District

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Court for the Eastern District of California (“Local Rules”).

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After careful consideration of the Motion, supporting and

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[Dkt. nos. 9, 11.]

[Dkt. no. 7.]

The Court finds this

Sergeant Munoz is named in his individual capacity, and
the City is also named as the City of Davis Police Department.
[Pltf.’s Complaint for Damages (“Complaint”), filed 7/22/16 (dkt.
no. 1), at 2-3.]

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opposing memoranda, and the relevant legal authority, Defendants’

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Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the

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reasons set forth below.

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except that this Court DENIES Defendants’ request that the

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dismissal of Count IV be with prejudice.

The Motion is GRANTED in all respects,

BACKGROUND

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The instant case arises from a probation search that

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Sergeant Munoz – who Plaintiff had two traumatic previous

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encounters with – and several other police officers executed at

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her apartment on February 26, 2016.

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probation at the time, but only probation officers had conducted

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his previous probation searches.

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Plaintiff informed the police officers that her shoulder was very

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tender because of an injury and that her mobility was limited.

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After Sergeant Munoz and other officers entered the apartment,

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Plaintiff attempted to go to her bedroom to retrieve her high

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blood pressure medication because she was feeling overwhelmed by

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the incident.

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bedroom, Sergeant Munoz “grabbed and tugged on her injured left

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shoulder,” causing her to suffer unbearable pain and extreme

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anxiety.

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Her son Cairo was on

According to the Complaint,

[Complaint at 3-4.]

As she was heading to her

[Id. at 4.]
Sergeant Munoz asked Plaintiff where Cairo was, and she

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responded that he was not at home.

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was Cairo’s.

He then asked her which room

Although Plaintiff identified Cairo’s bedroom,

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Sergeant Munoz searched the other bedrooms over Plaintiff’s

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objection before finally searching Cairo’s bedroom.

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Sergeant Munoz and other officers were searching Cairo’s room,

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Cairo and his grandmother returned home.

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the search of Cairo’s room to confront Cairo.

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they were looking for a person named Julio.

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had not seen Julio in years because the terms of his probation

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prohibited such contact.

Sergeant Munoz and the other officers

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then left the apartment.

Cairo was never restrained while the

While

Officer Munoz abandoned
He told Cairo that

Cairo said that he

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officers were there, nor did the officers search him.

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states that the officers did not offer her medical assistance or

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attempt to obtain medical assistance for her before they left.

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Plaintiff promptly sought medical attention for her left

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shoulder.

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Plaintiff

[Id. at 4-5.]
The Complaint alleges the following claims: a 42 U.S.C.

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§ 1983 claim against Sergeant Munoz alleging that his

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unreasonable use of force violated Plaintiff’s Fourteenth

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Amendment right to substantive due process (“Count I”); a § 1983

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claim against Sergeant Munoz alleging that the unreasonable

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search violated Plaintiff’s Fourth Amendment and Fourteenth

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Amendment rights (“Count II”); a negligence claim against

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Defendants based on bodily injury, pursuant to California

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Government Code § 815.2 (“Count III”); a negligence claim against

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Defendants based on the illegal search, pursuant to § 815.2

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(“Count IV”); a negligent infliction of emotional distress

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(“NIED”) claim against Sergeant Munoz (“Count V”); and an

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intentional infliction of emotional distress (“IIED”) claim

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against Sergeant Munoz (“Count VI”).

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following relief: general, compensatory, and punitive damages;

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interest on economic damages; lost earnings; and attorney’s fees

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and costs.

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The Complaint seeks the

In the instant Motion, Defendants ask this Court to
dismiss Counts I, III, IV, and V pursuant to Fed. R. Civ. P.

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12(b)(6) and to strike the references to the Fourteenth Amendment

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in Count II pursuant to Fed. R. Civ. P. 12(f).

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not construe the Motion as seeking either the dismissal of the

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portion of Count II based on the Fourth Amendment or the

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dismissal of Count VI.
DISCUSSION

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This Court does

I.

Counts I and II
Defendants argue that Count I fails to state a claim

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upon which relief can be granted because an excessive force claim

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must be brought pursuant to the Fourth Amendment, not the

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Fourteenth Amendment.

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Court should strike the allegations regarding the Fourteenth

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Amendment in Count II because an unreasonable search claim is

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properly analyzed under the Fourth Amendment.

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essentially concedes these arguments, but she argues that this

Similarly, Defendants argue that this

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Plaintiff

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Court should grant her leave to amend to correct the deficiencies

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in Counts I and II.

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Plaintiff is entitled to the opportunity to cure the defects in

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these claims by amendment.

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1:15-cv-01754-LJO-EPG-PC, 2016 WL 6494705, at *3 (E.D. Cal.

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Nov. 1, 2016) (“Whether dismissal is with or without prejudice

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will depend upon whether it is possible for Plaintiff to cure any

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defects.” (citing Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097,

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1107–08 (9th Cir. 2003) (collecting cases))), report and

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[Mem. in Opp. at 4.]

This Court agrees that

See Rodriguez v. Brown,

recommendation adopted, 2016 WL 7104173 (E.D. Cal. Dec. 6, 2016).

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This Court therefore GRANTS Defendants’ Motion insofar

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as this Court DISMISSES Count I WITHOUT PREJUDICE and STRIKES the

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portion of Count II based on the Fourteenth Amendment.

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II.

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Count III
Defendants argue that: Plaintiff has not pled

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sufficient allegations to support her negligence claim based on

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bodily injury; and the factual allegations of Count III appear to

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state a battery claim instead of a negligence claim.

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district court has stated:

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This

“Under California law, ‘[t]he elements of
negligence are: (1) defendant’s obligation to
conform to a certain standard of conduct for the
protection of others against unreasonable risks
(duty); (2) failure to conform to that standard
(breach of duty); (3) a reasonably close
connection between the defendant’s conduct and
resulting injuries (proximate cause); and
(4) actual loss (damages).’” Corales v. Bennett,
567 F.3d 554, 572 (9th Cir. 2009) (quoting McGarry
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v. Sax, 158 Cal. App. 4th 983, 994, 70 Cal. Rptr.
3d 519 (2008) (internal quotations omitted)).
Stoops v. Sherman, Case No. 1:16-cv-01026-AWI-SAB(PC), 2017 WL

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56666, at *4 (E.D. Cal. Jan. 4, 2017).

Count III alleges that:

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As a proximate result of the offensive and
harmful touching of SERGEANT MUNOZ, plaintiff was
hurt and injured in her health, strength, and
activity, sustaining injury to her body and shock
and injury to her nervous system and person, all
of which injuries have caused, and continue to
cause, PLAINTIFF great mental, physical and
nervous pain and suffering. Plaintiff is informed
and believes and thereon alleges that such
injuries will result in some permanent disability
to her. As a result of such injuries, plaintiff
has suffered general damages.
[Complaint at 8 (emphases in original).]

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that she has incurred, and will continue to incur, medical

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expenses and other related expenses, and that her earning

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capacity has been impaired.

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cause and damages.

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Plaintiff also alleges

Thus, Plaintiff has pled proximate

However, Plaintiff has not sufficiently pled duty and

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breach of duty.

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grabbed her injured shoulder even though she “was not the subject

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of the search and was not posing a threat to the safety of the

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officers or to the public,” and that he and the other officers

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“gave no verbal warning or instruction prior to the physical

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contact.”

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that Sergeant Munoz owed Plaintiff a duty of care during the

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execution of the probation search and that he breached the duty.

[Id.]

The Complaint alleges that Sergeant Munoz

These allegations are not sufficient to pled

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Further, Count III does not identify the basis for the City’s

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liability, except to allege that Sergeant Munoz “acted within the

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course and scope of his employment.”

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[Id.]

This Court also agrees with Defendants that, although

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Plaintiff titled Count III as a negligence claim, Count III’s

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factual allegations may be more consistent with a battery claim.

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This district court has stated:

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Robles v. Agreserves, Inc., 158 F. Supp. 3d 952, 985 (E.D. Cal.

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2016) (some citations omitted).

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A civil battery is “an offensive and
intentional touching without the victim’s
consent.” Kaplan v. Mamelak, 162 Cal. App.4th
637, 645, 75 Cal. Rptr. 3d 861 (2008). The
elements of a civil battery under California law
are: (1) defendant touched plaintiff, or caused
plaintiff to be touched, with the intent to harm
or offend plaintiff; (2) plaintiff did not consent
to the touching; (3) plaintiff was harmed or
offended by defendant’s conduct; and (4) a
reasonable person in plaintiff’s position would
have been offended by the touching. So v. Shin,
212 Cal. App. 4th 652, 669, 151 Cal. Rptr. 3d 257
(2013).

For these reasons, this Court CONCLUDES that Count III

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fails to state a plausible negligence claim against Defendants.

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See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a

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motion to dismiss, a complaint must contain sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is

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plausible on its face.’” (quoting Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007))).

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Court therefore GRANTS Defendants’ Motion insofar as this Court
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This

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DISMISSES Count III.

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this Court CONCLUDES that is possible for Plaintiff to cure the

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defects in Count III by amendment.

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III. Count IV

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The dismissal is WITHOUT PREJUDICE because

Similar to Count III, Count IV fails to plead duty and

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breach of duty.

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fails to state a plausible negligence claim against Defendants.

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This Court therefore CONCLUDES that Count IV

Defendants argue that this Court should dismiss
Count IV with prejudice because the claim essentially alleges

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that Sergeant Munoz negligently violated Plaintiff’s Fourth

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Amendment right to be free from unreasonable searches, and “[i]t

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is well-established that negligent acts do not incur

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constitutional liability.”

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Smith, 292 F.3d 1177, 1190 (9th Cir. 2002); Daniels v. Williams,

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474 U.S. 327, 328 (1986)).]

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Defendants’ characterization of Count IV.

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Count IV as attempting to state an alternate theory of liability

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regarding the allegedly illegal search, i.e., even if Sergeant

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Munoz’s actions did not rise to the level of a constitutional

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violation, they were negligent.

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Defendants’ argument that Plaintiff cannot cure the defects in

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Count IV by amendment.

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[Reply at 3 (citing Billington v.

This Court disagrees with
This Court construes

This Court therefore rejects

Defendants’ Motion is GRANTED IN PART AND DENIED IN
PART as to Count IV.

The Motion is GRANTED insofar as Count IV

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is DISMISSED, and the Motion is DENIED insofar as the dismissal

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of Count IV is WITHOUT PREJUDICE.

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IV.

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Count V
Defendants allege that Plaintiff’s NIED claim fails to

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state a plausible claim for relief because: 1) the Complaint does

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not plead sufficient facts to support a NIED claim; 2) even if

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Plaintiff has sufficient facts to support an NIED claim against

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Sergeant Munoz, she has not pled the basis for the City’s

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liability; and 3) Plaintiff’s NIED claim is redundant of her

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negligence claims because she alleges that she suffered physical

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injury and seeks emotional distress damages as parasitic damages.

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This Court agrees with Defendants’ third argument, and therefore

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does not need to address Defendants’ first and second arguments.

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This district court has stated:

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[T]here is no independent tort of negligent
infliction of emotional distress under California
law. (Burgess v. Superior Court, 2 Cal. 4th 1064,
1072 (1992) (“We have repeatedly recognized that
‘[t]he negligent causing of emotional distress is
not an independent tort, but the tort of
negligence.’”) (quoting Marlene F. v. Affiliated
Psychiatric Medical Clinic, Inc., 48 Cal. 3d 583,
588 (1989))). Negligent infliction of emotional
distress is instead a subset of negligence that
extends the ability to recover damages to indirect
victims who, while not suffering physical injury
as the result of a tortfeasor’s acts, nonetheless
suffer severe emotional distress. See, e.g.,
Dillon v. Legg, 68 Cal. 2d 728, 747–48 (1968)
(allowing mother to pursue damages for emotional
trauma resulting from witnessing the death of her
child). However, when emotional distress
accompanies physical injury, negligent infliction
of emotional distress is not the appropriate cause
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of action for seeking recovery of the resulting
damages. Rather, when a plaintiff is physically
injured and suffers emotional distress as a
result, damages stemming from the emotional
distress are treated as a “parasitic item” to be
recovered through a claim of ordinary negligence.
Thing v. La Chusa, 48 Cal. 3d 644, 651 (1989); see
also Summers v. Delta Airlines, Inc., 805 F. Supp.
2d 874, 887 (N.D. Cal. 2011) (“Under California
law, it is well-settled that in ordinary
negligence actions for physical injury, recovery
for emotional distress caused by that injury is
available as an item of parasitic damages.”)
(quotation omitted).

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Morse v. Cty. of Merced, No. 1:16-cv-00142-DAD-SKO, 2016 WL

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3254034, at *12 (E.D. Cal. June 13, 2016) (some alterations in

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Morse) (emphasis added).

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Because Plaintiff asserts that she suffered physical

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injury and emotional distress as a result of the allegedly

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negligent conduct in this case, this Court CONCLUDES that

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Plaintiff’s independent NIED claim fails to state a plausible

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claim for relief.

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Plaintiff must seek her damages for emotional distress as a

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component of her damages in her negligence claims.

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not possible for Plaintiff to cure the defect in her independent

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NIED claim.

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Count V WITH PREJUDICE.

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is with prejudice insofar as Plaintiff cannot include an

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independent NIED claim in her amended complaint, but without

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//

Instead of asserting a separate NIED claim,

Thus, it is

This Court GRANTS Defendants’ Motion and DISMISSES
This Court emphasizes that the dismissal

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prejudice to the inclusion of a request for emotional distress

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damages as part of her negligence claims.
CONCLUSION

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On the basis of the foregoing, Defendants’ Motion to

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Dismiss and to Strike, filed October 14, 2016, is HEREBY GRANTED

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IN PART AND DENIED IN PART.

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Counts I and III are HEREBY DISMISSED WITHOUT PREJUDICE; the

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allegations regarding the Fourteenth Amendment in Count II are

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HEREBY STRICKEN; Count IV is HEREBY DISMISSED; and Count V is

The Motion is GRANTED insofar as:

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HEREBY DISMISSED WITH PREJUDICE.

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Defendants’ request to dismiss Count IV with prejudice.

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dismissal of Count IV is WITHOUT PREJUDICE.

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The Motion is DENIED as to
The

The Court GRANTS Plaintiff leave to file an amended

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complaint by March 21, 2017.

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amended complaint by March 21, 2017, this case will proceed on

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the remaining portions of the original Complaint – the portion of

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Count II based on the Fourth Amendment and Count VI.

If Plaintiff fails to file an

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IT IS SO ORDERED.

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DATED AT HONOLULU, HAWAII, January 20, 2017.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

LASONJA PORTER VS. SERGEANT MUNOZ, ETC., ET AL; 2:16-CV-01702 LEK
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