Felarca et al v. Birgeneau et al

Filing 101

ORDER ENTERING TENTATIVE RULING ON DEFENDANTS' MOTIONS TO DISMISS AS ORDER OF THE COURT by Judge Yvonne Gonzalez Rogers granting in part and denying in part 50 Motion to Dismiss; terminating 52 Motion to Dismiss; granting 57 Motion to Dismiss; granting in part and denying in part 58 Motion to Dismiss.The February 26, 2013 hearing on the Motions is VACATED. (fs, COURT STAFF) (Filed on 2/25/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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YVETTE FELARCA et al.,

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PLAINTIFFS,
VS.

Case No.: 11-CV-05719 YGR
ORDER ENTERING TENTATIVE RULING ON
DEFENDANTS’ MOTIONS TO DISMISS AS
ORDER OF COURT

ROBERT J. BIRGENEAU et al.,

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DEFENDANT(S).

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Northern District of California

Pursuant to the parties’ stipulation (Dkt. No. 100), the Court’s Tentative Ruling DENYING IN

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United States District Court

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PART and GRANTING IN PART the Motions of the Alameda County Sheriff’s Office Defendants and

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the University of California Police Department Defendants and GRANTING the Motion of the UC

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Administrators shall be the Order of the Court. Accordingly, for the reasons set forth therein:

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(1)

The Motion to Dismiss filed by Defendants Gregory Ahern, Chavez, Garcia, King, and

Obichere (Dkt. No. 50) is DENIED IN PART and GRANTED IN PART:

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a) The Motion is DENIED as to Count IV against Defendants Chavez, Garcia,

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King, and Obichere. Plaintiffs may pursue their claim for excessive force

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against Defendants Chavez, Garcia, King, and Obichere.

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b) The Motion is GRANTED as to all claims against Gregory Ahern, and Counts I,

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II, III, V, and VI against Defendants Chavez, Garcia, King, and Obichere,

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WITH LEAVE TO FILE A MOTION TO AMEND.

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(2)

The Motion to Dismiss filed by Defendants Robert J. Birgeneau, George Breslauer,

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Mitchell Celaya, Claire Holmes, Harry Legrande, Linda Williams, and John Wilton (Dkt. No. 57) is

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GRANTED:

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a) WITH LEAVE TO AMEND the claims for First Amendment Retaliation (Count

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I); Fourth Amendment Excessive Force (Count IV); and Fourth Amendment

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False Arrest (Count V), and

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b) WITH LEAVE TO FILE A MOTION TO AMEND the claims for Abuse of Process

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(Count II); Retaliatory Prosecution (Count III); and Conspiracy to Violate Civil

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Rights (Count VI).
(3)

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The Motion to Dismiss filed by Defendants Rick Florendo, Samantha Lachler, and N.

Hernandez (Dkt. No. 58) is DENIED IN PART and GRANTED IN PART:

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a) The Motion is DENIED as to Count IV against Defendant Samantha Lachler.

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Plaintiffs may pursue their claim for excessive force against Defendant

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Samantha Lachler.
b) The Motion is GRANTED as to all claims against Rick Florendo and N.

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LEAVE TO AMEND Count IV, and WITH LEAVE TO FILE A MOTION TO

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Northern District of California

Hernandez, and Counts I, II, III, V, and VI against Samantha Lachler, WITH

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United States District Court

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AMEND Counts I, II, III, V, and VI.

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(4)

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No later than 28 days from the date this Order is filed, Plaintiffs shall file one of the

following:

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a) Second Amended Complaint;

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b) Motion for Leave to Amend the First Amended Complaint to add claims for
which leave to amend was not granted1; or

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c) Statement indicating that they will proceed on Count IV of the First Amended

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Complaint against Defendants Chavez, Garcia, King, Obichere, and Samantha

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Lachler.

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(5)

The February 26, 2013 hearing on the Motions is VACATED.

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(6)

This Order Terminates Docket Numbers 50, 52, 57, and 58.

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IT IS SO ORDERED.

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Date: February 25, 2013

____________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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Should Plaintiffs proceed with this option, they shall file as an exhibit, a proposed Second Amended
Complaint, see Civil L.R. 10-1, which highlights those claims for which leave to amend is requested.

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