Bagley v. Santa Clara County et al

Filing 56

ORDER by Judge Lucy H. Koh Granting 40 Motion to Dismiss; Granting in Part and Denying in Part 41 Motion to Dismiss. (lhklc1, COURT STAFF) (Filed on 1/24/2017) (Additional attachment(s) added on 1/24/2017: # 1 CERTIFICATE OF SERVICE) (ofr, COURT STAFF).

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10
SAN JOSE DIVISION

United States District Court
Northern District of California

11
12

LEE SCOTT BAGLEY

13

Plaintiff,

14
15
16

Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF
SANTA CLARA’S MOTION TO
DISMISS AND GRANTING IN PART
AND DENYING IN PART CITY OF
SUNNYVALE AND OFFICER LIMA’S
MOTION TO DISMISS

v.
CITY OF SUNNYVALE, et al.,
Defendants.

Re: Dkt. Nos. 40, 41

17
18

Plaintiff Lee Scott Bagley (“Plaintiff”) sued the City of Sunnyvale (“Sunnyvale”), Officer

19

Jeromy Lima (“Officer Lima”) (collectively, the “Sunnyvale Defendants”), and the County of

20

Santa Clara (“Santa Clara”) pursuant to 42 U.S.C. § 1983 for violation of Plaintiff’s constitutional

21

rights. Before the Court are Santa Clara’s Motion to Dismiss Plaintiff’s First Amended

22

Complaint, ECF No. 40 (“Santa Clara Mot.”), and the Sunnyvale Defendants’ Motion to Dismiss

23

Plaintiff’s First Amended Complaint, ECF No. 41 (“Sunnyvale Mot.”). Having considered the

24

submissions of the parties, the relevant law, and the record in this case, the Court GRANTS Santa

25

Clara’s Motion to Dismiss and GRANTS IN PART and DENIES IN PART the Sunnyvale

26

Defendants’ Motion to Dismiss.

27
28

1
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

I.

BACKGROUND
A. Factual Background

2
In the instant suit, Plaintiff brings claims for violation of constitutional rights under 42
3
4

U.S.C. § 1983. Some of Plaintiff’s claims arise from the alleged actions of police officers during
Plaintiff’s arrest on December 22, 2012. The remainder of Plaintiff’s § 1983 claims involve

5
alleged misconduct by government officials that occurred subsequent to Plaintiff’s arrest.
6
1.
7

Plaintiff’s Arrest

On December 22, 2012, Sunnyvale police officers allegedly “came to arrest [Plaintiff]

8
without a warrant” at Plaintiff’s and Plaintiff’s father’s house. ECF No. 38, First Amended
9
Complaint (“FAC”) ¶ 15. When the police arrived, Plaintiff allegedly called the Sunnyvale Police
10

Department and was told that the police “were there to serve a bench warrant.” Id. ¶ 16. Plaintiff

11
United States District Court
Northern District of California

states in the FAC that the bench warrant had been issued on the day of Plaintiff’s arrest, but
12
Plaintiff alleges that the bench warrant was obtained fraudulently and that, regardless, Plaintiff
13
was never shown the bench warrant at the time of the arrest. Id. ¶ 40. The bench warrant was
14
issued because Plaintiff had allegedly made false 911 calls. Id. ¶¶ 42; see also Cal. Penal Code
15

§ 148.3(a) (“Any individual who reports . . . that an ‘emergency’ exists, knowing that the report is

16
false, is guilty of a misdemeanor . . . .”). Criminal charges were brought against Plaintiff in Santa
17

Clara County Superior Court for the false 911 calls on December 3, 2012.1

18
19

When the police arrived at Plaintiff’s home, Plaintiff’s father went outside “to see [the]
warrant,” and was allegedly “removed from his own property” by the police. FAC ¶ 17. Plaintiff

20
alleges that Plaintiff told the police through the kitchen window, while the police were looking at
21
Plaintiff, that Plaintiff was coming out of the house. Id. ¶ 18. Plaintiff then grabbed a sweater and
22
23
24
25
26
27
28

1

Although Plaintiff’s FAC does not specify when charges for the false 911 calls were filed against
Plaintiff, the Court may take judicial notice of proceedings in other courts and publicly filed
documents. See United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007) (“[Courts] may take
notice of proceedings in other courts, both within and without the federal judicial system, if those
proceedings have a direct relation to matters at issue.”). Therefore, the Court takes judicial notice
of the proceedings in Santa Clara County Superior Court Criminal Case No. B1263657, in which
charges were filed for the false 911 calls on December 3, 2012.
2
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

was walking to the front door when the police kicked the front door in, pointed their guns at

2

Plaintiff, and screamed “stop resisting, quit resisting.” Id. ¶ 20. Plaintiff allegedly dropped the

3

sweater and put his hands up. Id. ¶ 22.
The police then allegedly kicked their K9 police dog in order to get the dog to attack

4
5

Plaintiff. Id. ¶ 24. The police dog allegedly would not attack Plaintiff, so Plaintiff laid on his

6

back and “gave the K9 [Plaintiff’s] arm.” Id. ¶ 26. According to the FAC, the police dog put only

7

light pressure on Plaintiff’s arm. Id. While Plaintiff was laying on the ground, the officer in

8

charge of the police dog still had a gun trained on Plaintiff. Id. ¶ 27. One of the officers then

9

kicked Plaintiff in the ribs, and the officer in charge of the police dog kicked the police dog and
yelled at it to bite Plaintiff harder. Id. The other officers held down Plaintiff’s legs and Plaintiff’s

11
United States District Court
Northern District of California

10

other arm, the arm not in the police dog’s mouth. Id. ¶ 28.
Plaintiff alleges that Officer Lima then entered and checked the rest of the house to make

12
13

sure it was clear. Id. ¶ 29. Officer Lima then allegedly stood over Plaintiff and kicked Plaintiff in

14

the face 50 or 60 times. Id. ¶ 30. Officer Lima’s actions allegedly broke four bones in Plaintiff’s

15

face, which included “fractures of the left maxillary sinus walls, left orbital floor, nasal bone, and

16

zygomatic arch.” Id. ¶¶ 30, 32. Due to Plaintiff’s injuries, Plaintiff was transported by ambulance

17

to a hospital. Id. ¶ 30. Allegedly, the Sunnyvale police officers “harassed Plaintiff in [the]

18

emergency [room] at the hospital until [the] doctors threatened the Sunnyvale police that they

19

would call the Mountain View police.” Id. ¶ 33.
After Plaintiff was arrested, in addition to the criminal charges for false 911 calls, criminal

20
21

charges were brought against Plaintiff for resisting arrest on January 2, 2013.2

22
23
24
25
26
27
28

2

Although Plaintiff’s FAC does not specify when resisting arrest charges were filed against
Plaintiff, as noted above, the Court may take judicial notice of publicly filed documents. See
Black, 482 F.3d at 1041 (“[Courts] may take notice of proceedings in other courts, both within and
without the federal judicial system, if those proceedings have a direct relation to matters at
issue.”). Therefore, the Court takes judicial notice of the complaint in Santa Clara County
Superior Court Criminal Case No. B1364096, in which charges for resisting arrest were filed on
January 2, 2013.
3
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

2.

Falsification of Evidence

2

Plaintiff alleges that Defendants falsified evidence leading up to and during the prosecution

3

of Plaintiff for placing false 911 calls. First, Plaintiff alleges that the bench warrant authorizing

4

the December 22, 2012 arrest of Plaintiff was insufficient because “there is no proof the warrant

5

was served on the date of the incident.” FAC ¶¶ 34, 40. Additionally, Plaintiff alleges that the

6

warrant falsely claimed that Plaintiff “made a false 911 call on October 1, 2012.” Id. ¶ 42.

7

Second, Plaintiff alleges that the police report concerning the December 22, 2012 arrest

8

falsely asserted that Plaintiff resisted arrest. Id. ¶ 84. That police report was allegedly the basis of

9

resisting arrest charges filed against Plaintiff on January 2, 2013. Id. ¶ 40.

10

Third, Plaintiff alleges that the Santa Clara County District Attorney, at an unspecified

United States District Court
Northern District of California

11

time, falsely alleged that Plaintiff had made false 911 calls. Id. ¶ 41. Plaintiff alleges that no such

12

false 911 calls were ever placed. Id.

13

Finally, Plaintiff alleges that, when Plaintiff asked his public defender why the public

14

defender had not performed a background check on Officer Lima, the public defender falsely

15

asserted that Officer Lima was not on the scene during Plaintiff’s arrest on December 22, 2012.

16

Id. ¶ 43. Additionally, Plaintiff alleges that “[t]he courts and the police said I was mistaken” about

17

Officer Lima’s presence during the arrest of Plaintiff on December 22, 2012. Id. ¶ 44.

18

3.

Malicious Prosecution

19

Plaintiff alleges that he has been “to court numerous times” and has been subject to

20

“prosecution overkill.” Id. ¶ 46. Plaintiff alleges that, at a pre-trial conference in the criminal

21

proceedings, the prosecutor learned that Plaintiff was planning to sue Defendants and that the

22

prosecutor “didn’t like it.” Id. ¶ 47.

23

Plaintiff alleges that, while Plaintiff was out on bond and attending all court dates and

24

hearings, Plaintiff was forced to be mentally evaluated for competency even though Plaintiff

25

“didn’t need it.” Id. ¶ 48. Plaintiff was found incompetent to stand trial, was taken into custody,

26

and served 14 months in Santa Clara County jail. Id. ¶¶ 49, 55. Plaintiff alleges that the

27
28

4
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

incompetency proceeding was a “ruse” in order to take Plaintiff into custody, despite his

2

compliance with the terms of his bond. Id. ¶ 50. Plaintiff was released from jail on March 18,

3

2016. Id. ¶ 56.

4

B. Procedural History
Plaintiff filed an administrative tort claim against Sunnyvale on January 13, 2016. Id.

5
6

¶ 57–59. Plaintiff filed an administrative tort claim against Santa Clara on April 24, 2016. Id.

7

¶ 58.

8
9

On April 25, 2016, Plaintiff filed the instant suit. ECF No. 1. On May 25, 2016,
Defendant Santa Clara filed a motion to dismiss, ECF No. 14, and the Sunnyvale Defendants filed
a motion to dismiss, ECF No. 15. On June 16, 2016, Santa Clara declined Magistrate Judge

11
United States District Court
Northern District of California

10

jurisdiction, ECF No. 21, and on the same day, the instant case was reassigned to the undersigned

12

judge, ECF No. 23.

13

On August 8, 2016, the Court granted Defendants’ motions to dismiss because Plaintiff

14

failed to oppose the motions to dismiss. ECF No. 31. The Court provided 30 days, which would

15

be September 7, 2016, for Plaintiff to file an amended complaint. Id. After a case management

16

conference, the Court extended the time for Plaintiff to file an amended complaint to September

17

21, 2016. Id.

18

On September 21, 2016, Plaintiff filed the operative first amended complaint. ECF No. 38

19

(“FAC”). The FAC alleges various 42 U.S.C. § 1983 claims against Defendants. First, Plaintiff

20

alleges unlawful entry and seizure as well as excessive force against Officer Lima alone. FAC

21

¶¶ 60–76. Second, Plaintiff alleges that Sunnyvale and Santa Clara have unconstitutional

22

“customs, policies, practices, and/or procedures.” Id. ¶ 77–81. Third, against all three defendants,

23

Plaintiff alleges deliberate falsification of evidence and malicious prosecution. Id. ¶¶ 82–89.

24

On October 11, 2016, Santa Clara filed a motion to dismiss the first amended complaint.

25

ECF No. 40 (“Santa Clara Mot.”). On October 12, 2016, the Sunnyvale Defendants filed a motion

26

to dismiss the first amended complaint. ECF No. 41 (“Sunnyvale Mot.”).

27
28

5
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

On November 29, 2016, Plaintiff filed an opposition to the Sunnyvale Defendants’ motion.

1
2

ECF No. 46 (“Sunnyvale Opp’n). Plaintiff did not file an opposition to Santa Clara’s motion, but

3

filed a duplicate copy of Sunnyvale’s motion. ECF No. 47. Although Plaintiff did not file with

4

the Court an opposition to Santa Clara’s motion to dismiss, Santa Clara’s counsel has represented

5

that an opposition was served on Santa Clara. Santa Clara has provided the Court a copy of the

6

opposition. (“Santa Clara Opp’n”). Therefore, the Court considers Plaintiff’s opposition to Santa

7

Clara’s motion.
On December 19, 2016, Santa Clara filed a reply. ECF No. 49 (“Santa Clara Reply”). On

8
9
10

December 21, 2016, the Sunnyvale Defendants filed a reply. ECF No. 50 (“Sunnyvale Reply”).
II.

LEGAL STANDARD

United States District Court
Northern District of California

11

A.

Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

12

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss an

13

action for failure to allege “enough facts to state a claim to relief that is plausible on its face.” Bell

14

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the

15

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

16

defendant is liable for the misconduct alleged. The plausibility standard is not akin to a

17

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

18

unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). For

19

purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] factual allegations in the

20

complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving

21

party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

22

Nonetheless, the Court is not required to “‘assume the truth of legal conclusions merely

23

because they are cast in the form of factual allegations.’” Fayer v. Vaughn, 649 F.3d 1061, 1064

24

(9th Cir. 2011) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Mere

25

“conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to

26

dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); accord Iqbal, 556 U.S. at 678.

27
28

6
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

Furthermore, “‘a plaintiff may plead [him]self out of court’” if he “plead[s] facts which establish

2

that he cannot prevail on his . . . claim.” Weisbuch v. Cty. of L.A., 119 F.3d 778, 783 n.1 (9th Cir.

3

1997) (quoting Warzon v. Drew, 60 F.3d 1234, 1239 (7th Cir. 1995)).

4

B.

Leave to Amend

5

Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend “shall be freely

6

granted when justice so requires,” bearing in mind “the underlying purpose of Rule 15 to facilitate

7

decision on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d

8

1122, 1127 (9th Cir. 2000) (en banc) (ellipses omitted). Generally, leave to amend shall be denied

9

only if allowing amendment would unduly prejudice the opposing party, cause undue delay, or be
futile, or if the moving party has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ’g, 512

11
United States District Court
Northern District of California

10

F.3d 522, 532 (9th Cir. 2008).

12

III.

13

DISCUSSION
Plaintiff’s FAC contains five causes of action: (1) unlawful entry and seizure, (2)

14

excessive force, (3) unconstitutional policies, practices, or procedures (“Monell claim”), (4)

15

deliberate falsification of evidence (“Devereaux claim”), and (5) malicious prosecution. However,

16

Plaintiff does not bring every cause of action against each defendant. Plaintiff brings an unlawful

17

entry and seizure claim, an excessive force claim, a Devereaux claim, and a malicious prosecution

18

claim against Officer Lima (causes of action 1, 2, 4, and 5). Plaintiff brings a Monell claim, a

19

Devereaux claim, and the malicious prosecution claim against Sunnyvale (causes of action 3, 4,

20

and 5). Finally, Plaintiff also brings a Monell claim, a Devereaux claim, and a malicious

21

prosecution claim against Santa Clara.

22

The Court first addresses the claims against Officer Lima, who is a Sunnyvale police

23

officer and one of the Sunnyvale Defendants. The Court then addresses the claims against

24

Sunnyvale, the city, and the claims against Santa Clara, the county. The Court finally addresses

25

Defendants’ arguments that Plaintiff’s prayers for punitive damages and attorney’s fees should be

26

dismissed.

27
28

7
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

A.

2

Plaintiff brings claims for unlawful entry and seizure, excessive force, Devereaux liability,

3
4
5
6

Officer Lima

and malicious prosecution against Officer Lima. The Court addresses each in turn.
1.

Unlawful Entry and Seizure and Excessive Force Claims
a.

Statute of Limitations

The Sunnyvale Defendants argue that the claims for unlawful entry and seizure and

7

excessive force are barred by the relevant statute of limitations. Sunnyvale Opp’n at 6–8.

8

“Section 1983 does not contain its own statute of limitations.” Butler v. Nat’l Cmty. Renaissance

9

of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014). Instead, “federal courts apply the forum state’s
statute of limitations for personal injury actions, along with the forum state’s law regarding

11
United States District Court
Northern District of California

10

tolling, including equitable tolling, except to the extent any of these laws is inconsistent with

12

federal law.” Id. (citation and internal quotation marks omitted). California’s statute of

13

limitations for personal injury claims is two years. See Cal. Civ. Proc. Code § 335.1 (“Within two

14

years: An action for assault, battery, or injury to, or for the death of, an individual caused by the

15

wrongful act or neglect of another.”). The Court may grant a motion to dismiss based on a statute

16

of limitations if it is “apparent on the face of the complaint” that the limitations period has expired.

17

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1045 (9th Cir. 2011).

18

Plaintiff bases his claim for unlawful entry and seizure and excessive force on the events

19

surrounding Plaintiff’s arrest on December 22, 2012. Therefore, under California’s two-year

20

statute of limitations, Plaintiff needed to file the instant suit against Officer Lima by December 22,

21

2014. However, Plaintiff filed the instant suit on April 25, 2016, approximately 1.5 years after the

22

expiration of the statute of limitations. Therefore, unless tolling applies, the claims for unlawful

23

entry and seizure and excessive force are untimely.

24

With respect to tolling, California Government Code § 945.3 states that:

25

No person charged by indictment, information, complaint, or other accusatory
pleading charging a criminal offense may bring a civil action for money or
damages against a peace officer or the public entity employing a peace officer
based upon conduct of the peace officer relating to the offense for which the

26
27
28

8
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

2

accused is charged, including an act or omission in investigating or reporting the
offense or arresting or detaining the accused, while the charges against the
accused are pending before a superior court.

3

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.

1

4

Cal. Gov’t Code § 945.3. The Ninth Circuit has held that § 945.3’s prohibition of filing suit

5

during the pendency of criminal charges does not apply to § 1983 claims. Harding v. Galceran,

6

889 F.2d 906, 908 (9th Cir. 1989) (finding a prohibition on filing § 1983 claims invalid under the

7

Supremacy Clause). However, “section 945.3’s tolling provision may still apply to toll the

8

limitations period [for § 1983 claims] while criminal actions are pending against the potential

9

plaintiff.” Id. However, as described in § 945.3, tolling only applies if the civil claim “relat[es] to

10

the [criminal] offense for which the accused is charged.” Cal. Gov’t Code § 945.3.

United States District Court
Northern District of California

11

Here, the FAC refers to two criminal charges that are potentially related to the civil claims

12

for unlawful entry and seizure and excessive force. First, Plaintiff was charged with making false

13

911 calls. Second, Plaintiff was charged with resisting arrest. FAC ¶ 40, 46. The Court first

14

addresses whether these two criminal charges are related to the claims for unlawful entry and

15

seizure and excessive force within the meaning of § 945.3. The Court then addresses whether

16

those charges were pending for a sufficient amount of time to make Plaintiff’s civil claims timely.

17

For the reasons below, the Court finds that the charges for resisting arrest and the false 911

18

calls are related to Plaintiff’s unlawful entry and seizure and excessive force claims. First, with

19

respect to the resisting arrest charge, Plaintiff’s § 1983 claims for unlawful entry and seizure and

20

excessive force are based on the events that occurred during Plaintiff’s December 22, 2012 arrest,

21

and the resisting arrest charge against Plaintiff arises out of the same events. The Ninth Circuit

22

has held that charges for “resisting and obstructing an officer” are related to civil claims arising

23

out of the arrest in which the criminal defendant allegedly resisted, and can therefore toll the

24

statute of limitations. Torres v. City of Santa Ana, 108 F.3d 224, 225 (9th Cir. 1997). As in

25

Torres, the criminal charges for resisting arrest here are related to Plaintiff’s unlawful entry and

26

seizure and excessive force claims and can toll the statute of limitations for the time that those

27
28

9
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1
2

charges were pending.
Second, the false 911 call charge is also related to the civil claim for unlawful entry and

3

seizure and excessive force within the meaning of § 945.3 based on the explicit statutory language

4

of § 945.3. Section 945.3 states that a civil claim is related to criminal charges where the civil

5

cause of action arises from “an act or omission in . . . arresting or detaining the” party accused of

6

the criminal offense. Cal. Gov’t Code § 945.3. Here, Plaintiff was arrested on December 22,

7

2012 as the result of a bench warrant issued for the false 911 call offense, and Plaintiff’s civil

8

claims for unlawful entry and seizure and excessive force arise from that arrest. Therefore,

9

because Plaintiff’s unlawful entry and seizure and excessive force claims arise from “an act or
omission in . . . arresting” Plaintiff for the false 911 calls, the false 911 call charge is related to the

11
United States District Court
Northern District of California

10

unlawful entry and seizure and excessive force claims. See Hill v. City of L.A., 2009 WL

12

2601250, at *4 (C.D. Cal. Aug. 21, 2009) (finding excessive force claim to be related to the crime

13

for which the accused was arrested, possession of narcotics). Accordingly, the false 911 charge

14

can toll the statute of limitations for the amount of time it was pending.

15

The Court next turns to whether § 945.3 tolls the statute of limitations for an adequate

16

amount of time. The record in the instant case does not indicate whether the charges against

17

Plaintiff are still pending in the Superior Court. Nonetheless, the criminal charges may make

18

Plaintiff’s claims for unlawful entry and seizure and excessive force timely if they were pending

19

for a sufficient amount of time. As noted above, Plaintiff’s claims for unlawful entry and seizure

20

and excessive force accrued on December 22, 2012, the day Plaintiff was arrested. The charges

21

for the false 911 calls were already pending at the time of the arrest, and the charges for resisting

22

arrest were filed on January 2, 2013. According to the FAC, both of these criminal charges were

23

pending against Plaintiff at least until January 3, 2015 when Plaintiff was allegedly remanded to

24

state court custody for mental incompetence. Thus, applying § 945.3 tolling, the two-year statute

25

of limitations began to run on January 3, 2015, which means that Plaintiff needed to file his civil

26

claims arising from his December 22, 2012 arrest on or before January 3, 2017. Plaintiff met this

27
28

10
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

new deadline by filing the civil case on April 25, 2016. Therefore, based on the facts alleged in

2

the FAC, Plaintiff’s claims arising from Plaintiff’s December 22, 2012 arrest are timely.
The Sunnyvale Defendants argue that the Ninth Circuit’s decision in Torres v. City of

3
4

Santa Ana, 108 F.3d 224, prevents tolling based on the false 911 charges. However, Sunnyvale

5

fails to discuss the charge against Plaintiff for resisting arrest. In fact, as discussed above, Torres

6

explicitly holds that a charge for “resisting and obstructing an officer” can toll the statute of

7

limitations for a civil claim arising out of the arrest in which the criminal defendant allegedly

8

resisted. Torres, 108 F.3d at 225. Therefore, Torres does not prevent, and in fact supports, tolling

9

based on the charge for resisting arrest.
Additionally, Torres does not prevent tolling based on the false 911 call charge either. In

11
United States District Court
Northern District of California

10

Torres, the criminal defendant was arrested in 1994 for “prowling” and “resisting and obstructing

12

an officer.” Id. The criminal defendant was charged for the crimes for which he was arrested. Id.

13

The criminal defendant was also given notice that he was being charged for violating the terms of

14

his probation, which had been imposed in 1991 after he pled guilty to robbery. Id. In 1995, the

15

criminal defendant sued the City of Santa Ana and individual officers for excessive force during

16

the course of his arrest. Id.
The Ninth Circuit held that under § 945.3, the civil cause of action could be tolled by the

17
18

charges filed for prowling and resisting and obstructing an officer because the cause of action

19

arose from the arrest for those crimes. Id. at 226–27. However, the Ninth Circuit held that the

20

charge for violation of probation did not toll the statute of limitations for the civil action. Id. at

21

228. The Court reached this conclusion because “a ‘probation revocation hearing arises as a

22

continuing consequence of the probationer’s original conviction.’” Id. (citation omitted). Thus,

23

the Court held that although the arrest triggered the probation revocation hearing, it did not relate

24

to it.

25
26
27
28

Here, in contrast, the specific issues arising with probation revocation hearings are not at
issue. Plaintiff’s criminal charge for the false 911 call was not simply “triggered” by the arrest,
11
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

but was the reason the arrest occurred. Therefore, because the instant case does not involve the

2

specific legal principles involved in probation hearings, Torres does not prevent application of the

3

plain language of § 945.3, which states that criminal charges are related to civil claims that arise

4

out of “an act or omission in . . . arresting” the accused. Accordingly, the false 911 call charge

5

and the civil claims are related and § 945.3 tolling applies to toll Plaintiff’s § 1983 claims for

6

unlawful entry and seizure and excessive force.

7

Therefore, Plaintiff’s criminal charges for making false 911 calls and resisting arrest tolled

8

the statute of limitations for Plaintiff’s civil claims for unlawful entry and seizure and excessive

9

force. Thus, these civil claims are timely.

10

United States District Court
Northern District of California

11

b.

Unlawful Entry and Seizure Claim Against Officer Lima

The Sunnyvale Defendants argue that the claim for unlawful entry and seizure should be

12

dismissed because “[t]he allegations show that officers entered and searched plaintiff’s home and

13

detained him pursuant to a facially valid [bench] warrant, notwithstanding [Plaintiff’s] claims that

14

[the bench warrant] was issued based on false information.” Sunnyvale Mot. at 9. Additionally,

15

the Sunnyvale Defendants argue that Officer Lima cannot be held liable for the acts and omissions

16

of the other officers. Id. at 10.

17

An officer does not violate the United States Constitution by acting pursuant to a facially

18

valid bench warrant. Erdman v. Cochise Cty., 926 F.2d 877, 882 (9th Cir. 1991) (“The second

19

arrest alone was not a constitutional violation because it was pursuant to a facially valid bench

20

warrant.”). Additionally, “[i]t is well established that, in an action for unlawful arrest pursuant to

21

a facially valid warrant, a police officer is entitled to qualified immunity unless ‘no officer of

22

reasonable competence would have requested the warrant.’” Case v. Kitsap Cty. Sheriff’s Dep’t,

23

249 F.3d 921, 926 (9th Cir. 2001) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); see also

24

Barlow v. Ground, 943 F.2d 1132, 1139 (9th Cir. 1991) (“A police officer generally has qualified

25

immunity for conducting an unconstitutional search if he is acting on the basis of a facially valid

26

warrant.”); Mills v. Graves, 930 F.2d 729, 731 (9th Cir. 1991) (noting that “immunity will be lost

27
28

12
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

only where the warrant application is so lacking in indicia of probable cause as to render official

2

belief in its existence unreasonable”).
Here, Plaintiff alleges that (1) the officers had no physical proof of a warrant in their

3
4

possession when they arrested Plaintiff, and (2) the warrant was obtained by fraudulent means.

5

FAC ¶ 38, 40. As discussed below, these two allegations do not prevent dismissal of the first

6

claim of the FAC.
As to Plaintiff’s allegation that the officers were required to show Plaintiff the warrant,

7

Plaintiff is incorrect. “The United States Supreme Court has not interpreted the Fourth

9

Amendment to the United States Constitution as requiring the officer executing the search warrant

10

to display the warrant or provide defendant a copy of it.” People v. Calabrese, 101 Cal. App. 4th

11
United States District Court
Northern District of California

8

79, 84 (2002). Indeed, the Court is unaware of any decision finding a constitutional violation

12

based on an officer’s failure to present a physical copy of a warrant during an arrest. See United

13

States v. Buckner, 717 F.2d 297, 301 (6th Cir. 1983) (“The fact that the officers did not have the

14

arrest warrant in hand is of no consequence.”). Moreover, Plaintiff pleads that he called the

15

Sunnyvale Police Department and was told that the officers “were there to serve a bench warrant.”

16

FAC ¶ 16. Additionally, Plaintiff was provided the warrant “at a later date.” Id. ¶ 38. Therefore,

17

the officer’s failure to show the arrest warrant to Plaintiff does not create a constitutional violation

18

cognizable under § 1983.

19

The Court next discusses whether the arrest was a constitutional violation because the

20

warrant for Plaintiff’s arrest was allegedly fraudulent, and thus invalid. Plaintiff was arrested

21

pursuant to a bench warrant for making a false 911 call on October 1, 2012, a misdemeanor. FAC

22

¶ 40–42. Plaintiff, however, alleges that “[t]his call never happened the way it was stated” and

23

that “[i]n order to grant a warrant[,] it was under [sic] perjury.” Id. ¶ 42. However, the bench

24

warrant itself, which the Court considers pursuant to the Sunnyvale Defendants’ request for

25

judicial notice,3 above, was signed by a magistrate and was issued approximately 11 days before

26
27
28

3

As noted in footnotes 2 and 3, above, the Court may take judicial notice of publicly filed
13

Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

the arrest. ECF No. 41-1. Moreover, the FAC contains no factual allegation to indicate that

2

Officer Lima believed that the bench warrant was invalid, or connecting Officer Lima to the

3

alleged perjury used to obtain the bench warrant. As discussed further below, even though

4

Plaintiff brings a falsification of evidence claim against Officer Lima, Plaintiff has not alleged any

5

facts that indicate that Officer Lima was involved in obtaining the warrant or was aware that the

6

police report on which it was based was false. Thus, it appears that Officer Lima was acting

7

“pursuant to a facially valid warrant.” Erdman, 926 F.2d at 882. Therefore, the Court GRANTS

8

the Sunnyvale Defendants’ motion to dismiss. The Court provides leave to amend because

9

Plaintiff may be able to allege facts that establish a false arrest claim.

10

Plaintiff also requests leave to amend the FAC to add the other officers that were allegedly

United States District Court
Northern District of California

11

involved in the unlawful arrest. Plaintiff asserts that he will add allegations concerning “Officers

12

Kassel, Himenes, Wilkes, Gottfred, and Winkleman.” Sunnyvale Opp’n at 5. In response, the

13

Sunnyvale Defendants argue that such an amendment would be futile based on the statute of

14

limitations and because the arrest warrant was facially valid. Sunnyvale Reply at 6.

15

“The Court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).

16

Generally, leave to amend shall be denied only if allowing amendment would unduly prejudice the

17

opposing party, cause undue delay, or be futile, or if the moving party has acted in bad faith.

18

Leadsinger, 512 F.3d at 532. “This liberality in granting leave to amend is not dependent on

19

whether the amendment will add causes of action or parties.” DCD Programs, Ltd. v. Leighton,

20

833 F.2d 183, 186 (9th Cir. 1987). Here, Sunnyvale has not argued that it would suffer undue

21
22
23
24
25
26
27
28

documents. See, e.g., Black, 482 F.3d at 1041 (“[Courts] may take notice of proceedings in other
courts, both within and without the federal judicial system, if those proceedings have a direct
relation to matters at issue.”). Therefore, the Court takes judicial notice of the warrant for
Plaintiff’s arrest arising from the false 911 calls, which was filed in Santa Clara County Superior
Court Criminal Case No. B1263657. ECF No. 41-1 (noting that warrant was filed in state court).
However, to the extent any of the facts in the warrant are disputed, the Court does not take judicial
notice of those facts. See Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir. 2001) (“A court may
take judicial notice of matters of public record . . . But a court may not take judicial notice of a fact
that is subject to reasonable dispute.”) (internal quotation marks omitted), overruled on other
grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).
14
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

prejudice through the addition of additional defendants. Indeed, the Court has stayed discovery in

2

the instant case. Compare Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994) (finding prejudice

3

where the “parties have engaged in voluminous and protracted discovery”). Additionally, the

4

Court cannot conclude that such amendment would be futile because, as discussed above, the

5

statute of limitations was tolled in the instant suit and allegations may be made that the officers at

6

issue knew the arrest warrant was invalid.
c.

7
8

Excessive Force Claim Against Officer Lima

The Sunnyvale Defendants do not argue that Plaintiff has insufficiently pled an excessive
force cause of action against Officer Lima. Indeed, the FAC alleges that Officer Lima kicked

10

Plaintiff in the face 50 or 60 times. FAC ¶ 30. Instead, the Sunnyvale Defendants argue that

11
United States District Court
Northern District of California

9

Officer Lima cannot be held liable for the acts and omissions of the other officers present during

12

Plaintiff’s December 22, 2012 arrest. However, the FAC does not allege that Officer Lima is

13

responsible for the actions of all of the other officers. The FAC simply provides factual context

14

which includes the actions of other officers. Therefore, this argument does not provide a basis to

15

grant the Sunnyvale Defendants’ motion to dismiss.

16

Accordingly, the Court DENIES the Sunnyvale Defendants’ motion to dismiss with

17

respect to the excessive force claim against Officer Lima. As with the first cause of action for

18

unlawful entry and seizure, Plaintiff requests to add the other officers in an amended complaint.

19

Sunnyvale Opp’n at 6. The Sunnyvale Defendants argue that such amendment would be futile

20

because the claim is time-barred, but they do not argue that Sunnyvale would be prejudiced.

21

Sunnyvale Reply at 7. For the same reasons that the Court provided leave to add additional officer

22

defendants on the unlawful arrest claim, the Court grants Plaintiff’s request to add additional

23

officer defendants.

24
25
26
27
28

2.

Devereaux Claim Against Officer Lima

Plaintiff alleges a Devereaux claim against Officer Lima. “A Devereaux claim is a claim
that the government violated the plaintiff’s due process rights by subjecting the plaintiff to
15
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

criminal charges based on deliberately-fabricated evidence.” Bradford v. Scherschligt, 803 F.3d

2

382, 386 (9th Cir. 2015) (citing Devereaux v. Abbey, 263 F.3d 1070, 1074–75 (9th Cir. 2001) (en

3

banc)). “To state a plausible claim for deliberate fabrication of evidence under [Devereaux], the

4

plaintiff must: (1) identify the evidence alleged to have been fabricated; and (2) state facts to show

5

that the fabrication was deliberate.” Trulove v. City & Cty. of S.F., 2016 WL 5930634, at *5 (N.D.

6

Cal. Oct. 12, 2016) (citing Bradford, 803 F.3d at 386).
“[T]here are two circumstantial methods of proving that the falsification was deliberate.”

7
8

Bradford, 803 F.3d at 386 (citation and internal quotation marks omitted). First, a defendant’s

9

deliberate intent can be shown if “the defendant continued his investigation of the plaintiff even
though he knew or should have known that the plaintiff was innocent.” Id. (citation omitted).

11
United States District Court
Northern District of California

10

Second, a plaintiff can establish deliberate intent by showing that the defendant used

12

“investigative techniques that were so coercive and abusive that [he] knew or should have known

13

that those techniques would yield false information.” Id. (alteration in original)
Plaintiff’s Devereaux claim is based on (1) the use of “false information” to secure the

14
15

warrant for Plaintiff’s arrest, (2) false information in the police reports about Plaintiff’s arrest, and

16

(3) the use of “investigative techniques that were so coercive and abusive that [Defendants] knew

17

or should have known that those techniques would yield false information.” FAC ¶¶ 82–85. The

18

Sunnyvale Defendants argue that “plaintiff fails to state facts showing that Officer Lima provided

19

false information to secure the warrant, or at all, and Officer Lima is not liable for the alleged

20

conduct of others.” Sunnyvale Mot. at 14. The Court addresses Plaintiff’s three allegations in

21

turn.

22

First, with respect to the arrest warrant, Plaintiff alleges that “Defendants and Sunnyvale

23

police officers provided false information to secure the warrant for Plaintiff’s alleged offense”

24

involving a false 911 call. FAC ¶ 83. The FAC then specifies that “[t]he warrant was issued as

25

the result of Sunnyvale Police Report 12-8257,” which stated that Plaintiff “made repeated calls to

26

Sunnyvale DPS and Santa Clara Police reporting false non-emergency incidents.” Id. ¶ 83.

27
28

16
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

Plaintiff pleads no facts that show that Officer Lima, as opposed to any other officer,

1
2

“provided false information to secure the warrant.” Id. ¶ 83. Indeed, in the subsequent sentence,

3

which clarifies that the false arrest warrant was obtained through the submission of an allegedly

4

false police report, there is no allegation that Officer Lima had any involvement with the creation

5

of the allegedly false police report. Even if the police report that served as the basis of the warrant

6

were false, Plaintiff alleges no facts to indicate that Officer Lima, or any other officer involved

7

with Plaintiff’s arrest, knew that the police report was false. Therefore, Plaintiff has not alleged

8

the existence of evidence that would show that any falsification was “deliberate,” or that any

9

officer “knew or should have known” that Plaintiff was innocent. Trulove, 2016 WL 5930634 at
*5. Thus, Plaintiff fails to “plead[] factual content that allows the court to draw the reasonable

11
United States District Court
Northern District of California

10

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
Second, Plaintiff alleges that “Defendants and Sunnyvale police officers provided false

12
13

information in the police report detailing” Plaintiff’s December 22, 2012 arrest. FAC ¶ 84. The

14

FAC alleges that the “Police Canine Report” states that Plaintiff “was wanted for an outstanding

15

arrest warrant,” that “a police canine was used to apprehend” Defendant, and that Defendant “fled

16

from police and physically fought with arresting officers.” Id. Plaintiff alleges this report is false

17

because “Plaintiff did not flee or fight the arresting officers and Plaintiff did not resist his arrest.”

18

Id.

19

However, as with the allegations concerning the arrest warrant, the FAC contains no

20

allegation that Officer Lima, as opposed to other officers, made the allegedly false statements that

21

were used in the police report. In fact, Plaintiff alleges that the police report at issue was the

22

“Police Canine Report,” which implies that the police report was actually written by the officer in

23

charge of the police dog that was present during Plaintiff’s arrest. Id. There is no allegation of

24

facts indicating that Officer Lima took part in writing or provided any false statements for the

25

writing of the Police Canine Report.

26
27
28

Finally, Plaintiff alleges that Defendants used “investigative techniques that were so
17
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

coercive and abusive that [Defendants] knew or should have known that those techniques would

2

yield false information” by using physical force to arrest Plaintiff, restraining Plaintiff at the

3

hospital, and remanding Plaintiff to jail. Id. ¶ 85. However, none of these three alleged actions

4

were techniques that “yield[ed]” information, let alone false information. Therefore, these

5

“investigative techniques” cannot be the basis of Plaintiff’s Devereaux claim.

6

Therefore, the Court GRANTS the Sunnyvale Defendant’s Motion to Dismiss as to the

7

claim against Officer Lima for falsification of evidence under Devereaux. The Court provides

8

leave to amend because Plaintiff may be able to allege facts that actually connect Officer Lima to

9

the falsifications that Plaintiff alleges.

10

United States District Court
Northern District of California

11

3.

Malicious Prosecution Claim Against Officer Lima

“[T]he general rule is that a claim of malicious prosecution is not cognizable under 42

12

U.S.C. § 1983 if process is available within the state judicial system to provide a remedy.” Usher

13

v. City of L.A., 828 F.2d 556, 562 (9th Cir. 1987). “However, ‘an exception exists to the general

14

rule when a malicious prosecution is conducted with the intent to deprive a person of equal

15

protection of the laws or is otherwise intended to subject a person to a denial of constitutional

16

rights.’” Id. (citations omitted).

17

The Ninth Circuit “look[s] to California law” when analyzing § 1983 claims for malicious

18

prosecution “because [the Ninth Circuit] ha[s] incorporated the relevant elements of the common

19

law tort of malicious prosecution into our analysis under § 1983.” Awabdy v. City of Adelanto,

20

368 F.3d 1062, 1068 (9th Cir. 2004). “In California, the elements of malicious prosecution are

21

(1) the initiation of criminal prosecution, (2) malicious motivation, and (3) lack of probable

22

cause.” Usher, 828 F.2d at 562.

23

In addition, “[a]n individual seeking to bring a malicious prosecution claim must generally

24

establish that the prior proceedings terminated in such a manner as to indicate his innocence.”

25

Awabdy, 368 F.3d at 1068. For the termination of a proceeding to be considered favorable, it

26

generally must involve a “determination on the merits.” Jaisinghani v. Byrne, 120 F. App’x 47,

27
28

18
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

49 (9th Cir. 2005) (citing Villa v. Cole, 4 Cal. App. 4th 1327, 1336 (1992)). However, a

2

termination “short of a complete trial on the merits” may serve as a favorable termination “if it

3

reflects the opinion of the prosecuting party or the court that the action lacked merit or would

4

result in a decision in favor of the defendant.” Awabdy, 368 F.3d at 1068 (citations omitted).

5

Here, Plaintiff asserts a malicious prosecution claim against Officer Lima. However,

6

Plaintiff has not made allegations that indicate that the “prior proceedings terminated in such a

7

manner as to indicate [Plaintiff’s] innocence.” Id. at 1068. Plaintiff alleges that, after a mental

8

competency evaluation, Plaintiff was found to be incompetent and, as a result, served 14 months

9

in Santa Clara County Jail. FAC ¶¶ 48–50. However, Plaintiff does not allege whether the
charges against him have been terminated or whether such termination involved a decision on the

11
United States District Court
Northern District of California

10

merits. Therefore, Plaintiff has insufficiently pled a malicious prosecution claim.

12

Accordingly, the Court GRANTS the Sunnyvale Defendant’s Motion to Dismiss the FAC

13

with respect to the claim for malicious prosecution against Officer Lima. The Court provides

14

leave to amend because Plaintiff may be able to allege facts to support a theory that Officer Lima

15

took actions that satisfy the requirements of malicious prosecution as described in Awabdy.

16

B.

17

As discussed above, Plaintiff brings Monell, Devereaux, and malicious prosecution claims

18

against Sunnyvale. A local government may not be sued under a theory of respondeat superior for

19

injuries inflicted by its employees or agents. Monell v. Dep’t of Social Servs. of City of N.Y., 436

20

U.S. 658, 691 (1978). However, “[l]ocal governing bodies . . . can be sued directly under § 1983

21

for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be

22

unconstitutional implements or executes a policy statement, ordinance, regulation, or decision

23

officially adopted and promulgated by that body’s officers.” Monell, 436 U.S. at 690.

24

Sunnyvale

Specifically, under Monell, a plaintiff may establish municipal liability by demonstrating

25

that “(1) the constitutional tort was the result of a longstanding practice or custom which

26

constitutes the standard operating procedure of the local government entity; (2) the tortfeasor was

27
28

19
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

an official whose acts fairly represent official policy such that the challenged action constituted

2

official policy; or (3) an official with final policy-making authority delegated that authority to, or

3

ratified the decision of, a subordinate.” Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008).

4

Additionally, in “limited circumstances,” the failure to train municipal employees can serve as the

5

policy underlying a Monell claim. Bd. of the Cty. Comm’rs v. Brown, 520 U.S. 397, 407 (1997).

6

Moreover, a plaintiff must demonstrate that the government’s official policy or custom was

7

the “moving force” responsible for the infliction of the plaintiff’s injuries. Monell, 436 U.S. at

8

694. “A policy or custom is considered a ‘moving force’ behind a constitutional violation if both

9

causation-in-fact and proximate causation can be established.” Palm v. L.A. Dep’t of Water &
Power, 2015 WL 4065087, at *2 (C.D. Cal. July 2, 2015) (citing Harper v. City of L.A., 533 F.3d

11
United States District Court
Northern District of California

10

1010, 1026 (9th Cir. 2008)).

12

However, even if a policy involving constitutional violations exist, “[i]f a person has

13

suffered no constitutional injury at the hands of the individual police officer, the fact that the

14

departmental regulations might have authorized the [constitutional violation] is quite beside the

15

point.” City of L.A. v. Heller, 475 U.S. 796, 799 (1986); see also Yousefian v. City of Glendale,

16

779 F.3d 1010, 1016 (9th Cir. 2015) (“[M]unicipalities cannot be held liable when the individual

17

police officer has inflicted no constitutional injury.”).

18

Previously, the Ninth Circuit held that “[i]n this circuit, a claim of municipal liability under

19

§ 1983 is sufficient to withstand a motion to dismiss even if the claim is based on nothing more

20

than a bare allegation that the individual officers’ conduct conformed to official policy, custom, or

21

practice.” A.E. ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012). However,

22

“[t]he Ninth Circuit has made clear that claims of Monell liability must now comply with the basic

23

principles set forth in Twombly and Iqbal: (1) the complaint “may not simply recite the elements

24

of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice

25

and to enable the opposing party to defend itself effectively;” and (2) the “factual allegations that

26

are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require

27
28

20
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

the opposing party to be subjected to the expense of discovery and continued litigation.” A.E., 666

2

F.3d at 636–37 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)).

3
4
5
6

The Court first discusses Plaintiff’s Devereaux claim, then discusses Plaintiff’s malicious
prosecution claim, and finally discusses the general claim for Monell liability.
1.

Devereaux Claim Against Sunnyvale

Plaintiff alleges that Sunnyvale is liable under Devereaux because Sunnyvale police

7

officers allegedly (1) used “false information” to secure the warrant for Plaintiff’s arrest, (2) used

8

false information in the police reports about Plaintiff’s arrest, and (3) used “investigative

9

techniques that were so coercive and abusive that [Defendants] knew or should have known that
those techniques would yield false information.” FAC ¶¶ 82–85. Thus, Plaintiff seeks to hold

11
United States District Court
Northern District of California

10

Sunnyvale liable for the actions of its employees. However, claims based on employee actions are

12

barred unless Plaintiff can establish Monell liability. Monell, 436 U.S. at 691 (“[A] municipality

13

cannot be held liable under § 1983 on a respondeat superior theory.”). As noted in the prior

14

section, Monell liability only attaches where (1) the tort resulted from a custom, policy, or

15

practice, (2) the tortfeasor was an official who “fairly represent[s] official policy,” (3) an official

16

with policymaking authority ratified the tortfeasor’s actions, or (4) the municipality failed to

17

adequately train the tortfeasors. Price, 513 F.3d at 966. Additionally, to establish Monell liability,

18

an individual employee must have committed a constitutional violation. Heller, 475 U.S. at 799

19

(“If a person has suffered no constitutional injury at the hands of the individual police officer, the

20

fact that the departmental regulations might have authorized the [constitutional violation] is quite

21

beside the point.”).

22

Here, the Court held in the section concerning Officer Lima’s Devereaux liability, above,

23

that Plaintiff has inadequately alleged a Devereaux claim against Officer Lima, the only officer

24

that Plaintiff has accused of a constitutional violation in the FAC. Under Heller, an individual

25

officer must have committed a constitutional violation to bring a claim against the municipality

26

employing that officer. Heller, 475 U.S. at 799. Therefore, because the Devereaux claim against

27
28

21
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

Officer Lima fails, Plaintiff cannot establish Monell liability, and Plaintiff’s Devereaux claim

2

against Sunnyvale also fails.

3

Accordingly, the Court GRANTS the Sunnyvale Defendant’s motion to dismiss as to

4

Plaintiff’s claims for Devereaux liability against Sunnyvale. The Court provides leave to amend

5

because Plaintiff may be able to allege facts indicating a constitutional violation by Officer Lima

6

and a Sunnyvale policy that caused that violation.

7
8
9

2.

Malicious Prosecution Claim Against Sunnyvale

With respect to Plaintiff’s malicious prosecution claim, Plaintiff alleges that “Defendants
made false police reports and provided false and/or misleading information that directly resulted in
the detention, arrest, imprisonment and malicious prosecution of Plaintiff based on fabricated

11
United States District Court
Northern District of California

10

and/or misleading statements.” FAC ¶ 86. Plaintiff also alleges that “Defendants . . . made

12

deliberately false statements or recklessly disregarded the truth in the affidavit prepared to secure[]

13

the bench warrant and those falsifications were material to the finding of probable cause and the

14

issuance of the alleged warrant.” Id. ¶ 87. As with the Devereaux claim, Sunnyvale can only be

15

held liable under a Monell theory of liability. Monell, 436 U.S. at 691 (“[A] municipality cannot

16

be held liable under § 1983 on a respondeat superior theory.”). To establish Monell liability, an

17

individual employee must have committed a constitutional violation. Heller, 475 U.S. at 799 (“If

18

a person has suffered no constitutional injury at the hands of the individual police officer, the fact

19

that the departmental regulations might have authorized the [constitutional violation] is quite

20

beside the point.”).

21

In the section concerning Officer Lima, the Court held that Plaintiff has failed to state a

22

claim for malicious prosecution against Officer Lima because Plaintiff failed to allege that the

23

“prior proceedings terminated in such a manner as to indicate his innocence.” Usher, 828 F.2d at

24

562. Under Heller, Plaintiff’s failure to adequately plead a claim against Officer Lima means that

25

that there is no underlying constitutional violation for which Sunnyvale can be held liable under

26

Monell. See Heller, 475 U.S. at 799 (requiring that Plaintiff suffered a “constitutional injury at the

27
28

22
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

hands of the individual police officer” for Monell liability to attach).

2

Accordingly, the Court GRANTS the Sunnyvale Defendant’s motion to dismiss as to

3

Plaintiff’s claims for malicious prosecution against Sunnyvale. The Court provides leave to

4

amend because Plaintiff may be able to allege facts indicating a constitutional violation by Officer

5

Lima and a Sunnyvale policy that caused that violation.

6
7

3.

Monell Claim Against Sunnyvale

In addition to Plaintiff’s claims for Devereaux liability and malicious prosecution, Plaintiff

8

also brings a separate Monell claim. Plaintiff brings his Monell claim for excessive force,

9

unlawful arrest, and falsification of evidence. FAC ¶ 78. As an initial matter, Plaintiff’s claim for
Monell liability based on falsification of evidence against Sunnyvale fails for the same reason as

11
United States District Court
Northern District of California

10

Plaintiff’s Devereaux and malicious prosecution claims against Sunnyvale. For both the

12

Devereaux claim and the malicious prosecution claim, the Court held that Monell liability was not

13

available. Specifically, in the prior two sections, the Court noted that, under Heller, a Plaintiff

14

must establish that an individual officer committed a constitutional violation to establish Monell

15

liability. Heller, 475 U.S. at 799. The Court then held that because Plaintiff failed to state a claim

16

under Devereaux or for malicious prosecution against Officer Lima, Plaintiff could not establish

17

Monell liability for the Devereaux claim or malicious prosecution claim against Sunnyvale.

18

For the Monell claim in this section based on falsification of evidence, the same principle

19

applies. The only constitutional violations that have been alleged against an individual officer in

20

the FAC that involve “falsification of evidence” are the Devereaux claim and malicious

21

prosecution claim against Officer Lima. Thus, under Heller, because Plaintiff fails to establish

22

that an individual officer committed a constitutional violation involving falsification of evidence,

23

Plaintiff’s separate claim under Monell for falsification of evidence also fails.

24
25
26
27
28

The Court next addresses the Monell claim based on alleged policies involving excessive
force and unlawful arrest.
Plaintiff pleads that the “actions and/or omissions of Defendants[] were pursuant to
23
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

customs, policies, practices, and/or procedures of [Sunnyvale and Santa Clara] . . . which were

2

directed, encouraged, allowed, and/or ratified by policy making officers for [Sunnyvale and Santa

3

Clara].” FAC ¶ 78. Plaintiff alleges that Sunnyvale has the custom, policy, or practice (1) “[t]o

4

use or tolerate the use of excessive and/or unjustified force;” (2) “[t]o unlawfully arrest individuals

5

without probable cause;” and (3) “[t]o cover up violations of constitutional rights.” Id. ¶ 78. The

6

third “custom, policy, or practice” is composed of the cover up of “violations of constitutional

7

rights . . . by failing to properly investigate and/or evaluate complaints or incidents of excessive

8

and unreasonable force and unlawful seizures; [and] by ignoring and/or failing to properly and

9

adequately investigate and/or investigate and discipline unconstitutional or unlawful law

10

enforcement activity.” Id.
With respect to causation, Plaintiff alleges that the “aforementioned customs, policies,

United States District Court
Northern District of California

11
12

practices and procedures . . . were a moving force and/or proximate cause of deprivations of

13

Plaintiff’s clearly established and well-settled constitutional rights.” Id. ¶ 79.
As discussed above, Monell liability only attaches if the policy at issue is (1) the moving

14
15

force behind the violation, and (2) one of the four theories of Monell liability are present. For the

16

four Monell liability theories, Plaintiff must plead that (1) the tort resulted from a custom, policy,

17

or practice, (2) the tortfeasor was an official who “fairly represent[s] official policy,” (3) an

18

official with policymaking authority ratified the tortfeasor’s actions, or (4) the municipality failed

19

to adequately train the tortfeasors. Price, 513 F.3d at 966; Brown, 520 U.S. at 400 (failure to

20

train).

21

The Court first addresses causation, then addresses whether Plaintiff has adequately

22

alleged a “longstanding practice or custom” for which Sunnyvale can be held liable, then discusses

23

whether a “failure to train” theory has been adequately alleged, and finally addresses whether the

24

tortfeasor was an official who fairly represents official policy or whether an official with

25

policymaking authority ratified the tortfeasor’s actions.

26
27
28

a.

Causation
24

Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

As discussed above, Plaintiff must adequately allege that the government’s official policy

2

or custom was the “moving force” behind Plaintiff’s injuries. Monell, 436 U.S. at 694. Although

3

Plaintiff recites this element in his FAC, he provides no facts that indicate that any of the officer’s

4

actions were caused by the alleged customs, policies, and practices. In Dougherty v. City of

5

Covina, 654 F.3d 892 (9th Cir. 2011), the Ninth Circuit held that it was insufficient to allege that

6

“Defendant CITY’s policies and/or customs caused the specific violations of Plaintiff’s

7

constitutional rights at issue in this case.” Id. at 900. Here, Plaintiff solely alleges that the

8

“aforementioned customs, policies, practices and procedures . . . were a moving force and/or

9

proximate cause of deprivations of Plaintiff’s clearly established and well-settled constitutional

10

rights.” FAC ¶ 79. As in Covina, Plaintiff’s allegations of causation are conclusory and do not

11
United States District Court
Northern District of California

1

make a causal connection between the custom, policy, or practice at issue and any particular

12

violation of a constitutional right. Therefore, Plaintiff has insufficiently alleged the causation

13

necessary to establish Monell liability.

14
15

b.

Custom, Policy, and Practice

Even if causation were sufficiently alleged, the Court would find, as discussed below, that

16

Plaintiff has insufficiently alleged a custom, policy, or practice to establish Monell liability. The

17

analysis to determine whether an unconstitutional “policy” as opposed to an unconstitutional

18

“custom” or “practice” differs under Monell. “Liability for improper custom may not be

19

predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient

20

duration, frequency and consistency that the conduct has become a traditional method of carrying

21

out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). However, with respect to an

22

adopted municipal policy, a single incident can serve as the basis of a Monell claim so long as

23

“proof of the incident includes proof that it was caused by an existing, unconstitutional municipal

24

policy, which policy can be attributed to a municipal policymaker.” City of Okla. City v. Tuttle,

25

471 U.S. 808, 823–24 (1985).

26
27
28

The Court first discusses whether a custom or practice has been adequately alleged. With
25
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

respect to all of the alleged customs at issue here, Plaintiff only pleads actions related to his own

2

arrest and prosecution. Plaintiff does not allege any facts that indicate that the Sunnyvale police

3

force is regularly taking actions involving excessive force or unlawful arrests. Thus, Plaintiff fails

4

to allege that the customs, policies, and practices are “founded upon practices of sufficient

5

duration, frequency and consistency that the conduct has become a traditional method of carrying

6

out policy.” Trevino, 99 F.3d at 918. Accordingly, Plaintiff fails to adequately allege a “custom”

7

or “practice.”

8
9

The Court next turns to whether Plaintiff has adequately alleged Monell liability based on a
municipal “policy” that has been officially adopted. Since A.E. and Starr, the allegations
concerning the existence of a policy must satisfy the requirements of Iqbal. As discussed above,

11
United States District Court
Northern District of California

10

the complaint “may not simply recite the elements of a cause of action, but must contain sufficient

12

allegations of underlying facts to give fair notice and to enable the opposing party to defend itself

13

effectively,” and the “factual allegations that are taken as true must plausibly suggest an

14

entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the

15

expense of discovery and continued litigation.” A.E., 666 F.3d at 636–37 (quoting Starr, 652 F.3d

16

at 1216).

17

Multiple courts have applied this standard in the Monell context and found vague

18

assertions of municipal policies to be insufficient. For example, in A.E., the Ninth Circuit found

19

that the plaintiff had inadequately alleged a municipal policy because Plaintiff merely alleged that

20

the county was liable under Monell because the officer “performed all acts and omissions . . .

21

under the ordinances, regulations, customs, and practices of [the county]” and the county

22

“maintained or permitted an official policy, custom, or practice of knowingly permitting the

23

occurrence of the type of wrongs” alleged elsewhere in the complaint. Id. at 637; see also Mendy

24

v. City of Fremont, 2014 WL 574599, at *3 (N.D. Cal. Feb. 12, 2014) (dismissing municipal

25

liability claim based on unsupported allegation of an “informal custom or policy that tolerates and

26

promotes the continued use of excessive force and cruel and unusual punishment against and

27
28

26
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

violation of civil rights of citizens by City police officers in the manner alleged [elsewhere in the

2

complaint]”).

3

In contrast, multiple district courts have held that a Monell claim has been sufficiently pled

4

where, in addition to pleading causation of an individual officer’s unconstitutional actions, the

5

complaint alleges sufficient detail about the municipal policy at issue. For example, in Mateos–

6

Sandoval v. County of Sonoma, 942 F. Supp. 2d 890 (N.D. Cal. 2013), a court in this district held

7

that the plaintiff adequately pled Monell liability by alleging that the county defendants “routinely

8

enforce” a particular provision of the California Vehicle Code by:

14

seizing and impounding vehicles on the basis that the driver does not have a
current, valid California driver’s license, including when the vehicle was not
presenting a hazard or a threat to public safety; keeping the vehicle [even though]
someone was available to pay the impound fee to date, usually for the 30 day
period specified by [the provision]; seizing and impounding vehicles even though
the driver has previously been licensed, whether in California or a foreign
jurisdiction; failing and refusing to [provide] a hearing on the justification for
impounding the vehicle for 30 days; failing and refusing to provide notice of the
reason for impounding the vehicle for 30 days; and, on information and belief,
charging an above-cost administrative fee.

15

Id. at 899–900 (alterations in original). The court distinguished A.E. by observing that, unlike the

16

threadbare allegation in A.E., this allegation “specif[ies] the content of the policies, customs, or

17

practices the execution of which gave rise to [their] Constitutional injuries.” Id. at 899; see also

18

La v. San Mateo Cty. Transit Dist., 2014 WL 4632224, at *7–8 (N.D. Cal. Sept. 16, 2014) (finding

19

allegation of policy sufficient because the plaintiff did “not merely allege that [the defendant] has

20

a policy or custom of performing various wrongs alleged elsewhere in her complaint,” but rather

21

indicated that the defendant “has a policy or custom of performing a specific adverse employment

22

action (termination) against a particular subset of employees (those who report internal

23

misconduct)”).

9
10

United States District Court
Northern District of California

11
12
13

24

Here, the policy allegations are not sufficiently specific to plead a Monell claim. The

25

Court addresses each alleged policy in turn. First, Plaintiff’s allegation that Sunnyvale has a

26

policy “[t]o use or tolerate the use of excessive and/or unjustified force” is too vague to

27
28

27
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

sufficiently allege a policy under A.E. Indeed, because Plaintiff has brought an excessive force

2

claim, Plaintiff is essentially alleging that Sunnyvale has an “official policy, custom, or practice of

3

knowingly permitting the occurrence of the type of wrongs” alleged elsewhere in the complaint.

4

A.E., 666 F.3d at 637; see also Mendy, 2014 WL 574599 at *3 (finding Monell claim insufficiently

5

pled where plaintiff alleged that defendant had an “informal custom or policy that tolerates and

6

promotes the continued use of excessive force and cruel and unusual punishment against and

7

violation of civil rights of citizens by City police officers in the manner alleged [elsewhere in the

8

complaint]”).

9

Second, Plaintiff alleges that Sunnyvale has the policy of “unlawfully arrest[ing]
individuals without probable cause.” FAC ¶ 78. As with the allegation concerning excessive

11
United States District Court
Northern District of California

10

force, Plaintiff has simply taken the unlawful entry and seizure cause of action and alleged,

12

without supporting factual contentions, that Sunnyvale has a policy of engaging in such illegal

13

activity. Plaintiff has provided insufficient detail under A.E. to state a claim based on this policy.

14

Finally, Plaintiff alleges that Sunnyvale has a policy to cover up unconstitutional actions

15

“by failing to properly investigate and/or evaluate complaints or incidents of excessive and

16

unreasonable force and unlawful seizures; [and] by ignoring and/or failing to properly and

17

adequately investigate and/or investigate and discipline unconstitutional or unlawful law

18

enforcement activity.” Id. ¶ 78. Once again, these allegations are vague and are insufficiently

19

detailed to sufficiently allege the policy at issue. Sandoval, 942 F. Supp. 2d at 899 (requiring the

20

complaint to “specify the content of the policies, customs, or practices”). As in Mendy, Plaintiff

21

essentially alleges that Sunnyvale has a policy of “tolerat[ing] and promot[ing] the continued use

22

of excessive force” and unlawful arrests. Mendy, 2014 WL 574599 at *3.

23

Accordingly, because Plaintiff fails to sufficiently allege Sunnyvale’s policies that

24

allegedly caused the constitutional violations at issue in the instant case, Plaintiff has failed to

25

establish Monell liability based on a custom, policy, or practice.

26
27
28

c.

Failure to Train
28

Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

The Court next turns to whether any liability arises based on Plaintiff’s failure to train the

2

officers at issue in the instant case. In order to establish that a municipality is liable under Monell

3

for failure to train, Plaintiffs must show that a particular training deficiency was so egregious that

4

it “amount[ed] to deliberate indifference to the rights of persons with whom the police come into

5

contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989). Here, the FAC contains no

6

allegations concerning Sunnyvale’s alleged failure to train. The FAC does not allege what

7

training the Sunnyvale police officers received, does not indicate that any Sunnyvale policymaker

8

was aware that the training was deficient, and, in fact, makes no mention of the Sunnyvale police

9

officers’ training at all. Therefore, Plaintiff has insufficiently alleged a “failure to train” theory of

10

Monell liability.
d.

United States District Court
Northern District of California

11
12

Tortfeasor Official or Policymaker Ratification

Plaintiff pleads that the “actions and/or omissions of Defendants[] were pursuant to

13

customs, policies, practices, and/or procedures of [Sunnyvale and Santa Clara] . . . which were

14

directed, encouraged, allowed, and/or ratified by policy making officers for [Sunnyvale and Santa

15

Clara].” FAC ¶ 78. Monell liability can be established if the tortfeasor was an official who “fairly

16

represent[s] official policy” for the municipality or if such an official ratified the tortfeasor’s

17

actions. Price, 513 F.3d at 966. Here, Plaintiff makes no allegation that any of the Sunnyvale

18

police officers who allegedly engaged in excessive force or unlawful seizure had policymaking

19

authority for Sunnyvale. Additionally, Plaintiff does not identify any person with official

20

policymaking authority that ratified the actions of the officers. Therefore, Plaintiff has

21

insufficiently alleged an “official policymaker” or ratification theory of Monell liability.

22

For the above reasons, the Court GRANTS the Sunnyvale Defendant’s motion to dismiss

23

the Monell claim against Sunnyvale. The Court provides leave to amend because Plaintiff may be

24

able to allege a more specific custom, policy, or practice or facts to support one of the other

25

theories of Monell liability.

26
27
28

C.

Santa Clara
29

Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

Defendant brings a Monell claim, a Devereaux claim, and a malicious prosecution claim

2

against the County of Santa Clara (“Santa Clara”). As discussed above, a local government may

3

not be sued for injuries inflicted solely by its employees or agents. Monell, 436 U.S. at 691.

4

Accordingly, although Plaintiff brings separate Monell, Devereaux, and malicious prosecution

5

claims against Santa Clara, all three of the claims require Plaintiff to satisfy the requirements of

6

Monell. The Court addresses these claims jointly.

7

Under Monell, to establish municipality liability, Plaintiff must plead either that (1) the tort
resulted from a custom, policy, or practice, (2) the tortfeasor was an official who “fairly

9

represent[s] official policy,” (3) an official with policymaking authority ratified the tortfeasor’s

10

actions, or (4) the municipality failed to adequately train the tortfeasors. Price, 513 F.3d at 966.

11
United States District Court
Northern District of California

8

Moreover, a plaintiff must demonstrate that the government’s official policy or custom was the

12

“moving force” responsible for the infliction of the plaintiff’s injuries. Monell, 436 U.S. at 694.

13

The Court addresses each type of Monell claim in turn.

14

First, with respect to a custom, policy, or practice, Plaintiff alleges customs, policies, and

15

practices involving excessive force, unlawful arrest, and officer falsification of evidence. FAC

16

¶ 78. Each of these alleged customs, policies, or practices relate to actions taken by police

17

officers. Id. However, all of the actions allegedly taken by police officers in the FAC involved

18

Sunnyvale police officers, rather than Santa Clara police officers. Indeed, no Santa Clara police

19

officer is even mentioned in the FAC. Thus, Plaintiff has failed to allege that any of Santa Clara’s

20

alleged customs, policies, or practices caused harm to Plaintiff. Monell, 436 U.S. at 694 (holding

21

that a plaintiff must demonstrate that the municipality’s official policy or custom was the “moving

22

force” responsible for the infliction of the plaintiff’s injuries).

23

Second, Plaintiff has not alleged that any official with policymaking authority for Santa

24

Clara was the tortfeasor responsible for the actions underlying the Monell, Devereaux, or

25

malicious prosecution claims, or that any official with policymaking authority for Santa Clara

26

ratified the tortfeasor’s actions. Plaintiff does allege that the District Attorney, a Santa Clara

27
28

30
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

employee, falsely alleged that Plaintiff engaged in false 911 calls. FAC ¶ 41. However, the

2

District Attorney is not an official with policymaking authority for Santa Clara because the

3

District Attorney is a state rather than county official “for the purpose of investigating and

4

proceeding with criminal prosecutions.” Weiner v. San Diego Cty., 210 F.3d 1025, 1030 (9th Cir.

5

2000). Thus, the District Attorney is not an official with policymaking authority for Santa Clara

6

with respect to the claims here, which solely involve actions he took while “investigating and

7

proceeding with [the] criminal prosecution[].” Id. Additionally, the FAC does not allege facts

8

that would indicate that an official with policymaking authority ratified the District Attorney’s

9

actions.
Plaintiff also alleges that Plaintiff’s public defender made false statements by asserting that

10

United States District Court
Northern District of California

11

Officer Lima was not present during Plaintiff’s December 12, 2012 arrest. FAC ¶ 43. However,

12

Plaintiff makes no allegation that his public defender was an official with policymaking authority

13

for Santa Clara. Moreover, the FAC does not allege that an official with policymaking authority

14

ratified the public defender’s decisions. Accordingly, because the District Attorney and the public

15

defender do not have policymaking authority for Santa Clara, and there is no allegation that an

16

individual with policymaking authority ratified their decisions, their alleged actions do not serve

17

as the basis for Monell liability against Santa Clara.
Third, Plaintiff makes no allegation that Santa Clara failed to train any of its officials.

18
19

Therefore, a failure to train cannot serve as the basis of Santa Clara’s liability under Monell.
Accordingly, the Court GRANTS Santa Clara’s motion to dismiss in its entirety.4 The

20
21
22
23
24
25
26
27
28

4

In Plaintiff’s response to Santa Clara’s motion to dismiss, Plaintiff responds by raising a number
of factual allegations not present in the FAC. For example, Plaintiff alleges that Santa Clara and
Plaintiff’s public defender conspired with one another, that the presiding judge in Plaintiff’s case
revoked Plaintiff’s bail to cover up the police brutality in the case, that Plaintiff’s public defender
did not adequately investigate the case, and that Plaintiff was mistreated while he was in jail.
Santa Clara Resp. at 2–5. On a motion to dismiss, the Court only considers facts pled in the
complaint. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.1984) (“It is
axiomatic that the complaint may not be amended by briefs in opposition to a motion to
dismiss.”). The facts cited in Plaintiff’s response to Santa Clara are not pled in the FAC and,
therefore, do not prevent dismissal of the FAC.
31
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1

Court provides leave to amend because Plaintiff may be able to allege Monell liability.

2

D.

Damages

3

The Sunnyvale Defendants argue that the prayer for punitive damages against Sunnyvale

4

and the prayer for attorney’s fees should be dismissed. The United States Supreme Court has held

5

that a “municipality is immune from punitive damages under 42 U.S.C. § 1983.” Newport v. Fact

6

Concerts, 453 U.S. 247, 271 (1981). Accordingly, with respect to the prayer for punitive damages

7

against Sunnyvale, the Court GRANTS the Sunnyvale Defendants’ motion to dismiss with

8

prejudice as to Sunnyvale (but not Officer Lima). The Court does not provide leave to amend

9

because, in accordance with the United States Supreme Court precedent in Newport, amendment

10

would be futile.
With respect to the prayer for attorney’s fees, Plaintiff, who is pro se, will not be eligible

United States District Court
Northern District of California

11
12

for attorney’s fees should he prevail. Kay v. Ehler, 499 U.S. 432, 437–38 (1991) (refusing to

13

award attorney’s fees to a pro se litigant in a § 1983 case). Accordingly, Defendant’s motion to

14

dismiss is GRANTED. However, because Plaintiff may decide to hire an attorney during the

15

course of the instant case, which, if Plaintiff prevails, may allow an award of attorney’s fees for

16

the attorney’s work, see 42 U.S.C. § 1988 (awarding attorney’s fees to “prevailing party”), the

17

dismissal is without prejudice.

18

IV.

19
20

CONCLUSION
For the foregoing reasons, the Court rules as follows:


With respect to Officer Lima, the Court GRANTS with leave to amend the

21

Sunnyvale Defendants’ motion to dismiss as to Plaintiff’s claims for unlawful entry

22

and seizure (Claim 1), deliberate falsification of evidence under Devereaux (Claim

23

4), and malicious prosecution (Claim 5). The Court DENIES the Sunnyvale

24

Defendants’ motion to dismiss as to Plaintiff’s claim for excessive force (Claim 2).

25

The Court GRANTS leave to add additional parties as to Plaintiff’s claims for

26

unlawful entry and seizure (Claim 1) and excessive force (Claim 2).

27
28

32
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS

1



amend their motions to dismiss as to all of Plaintiff’s claims.

2
3

With respect to Sunnyvale and Santa Clara, the Court GRANTS with leave to



With respect to damages, the Court GRANTS with prejudice the Sunnyvale

4

Defendants’ motion to dismiss the prayer for punitive damages against Sunnyvale.

5

The Court GRANTS without prejudice the Sunnyvale Defendants’ motion to

6

dismiss the prayer for attorney’s fees.

7

Should Plaintiff elect to file an amended complaint curing the deficiencies identified

8

herein, Plaintiff shall do so within twenty-one (21) days of the date of this Order. Failure to meet

9

the twenty-one day deadline to file an amended complaint or failure to cure the deficiencies
identified in this Order will result in a dismissal with prejudice of Plaintiff’s claims. Plaintiff may

11
United States District Court
Northern District of California

10

not add new causes of action or parties without leave of the Court or stipulation of the parties

12

pursuant to Rule 15 of the Federal Rules of Civil Procedure.

13

IT IS SO ORDERED.

14
15
16
17

Dated: January 24, 2017
______________________________________
LUCY H. KOH
United States District Judge

18
19
20
21
22
23
24
25
26
27
28

33
Case No. 16-CV-02250-LHK
ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION TO DISMISS AND GRANTING IN PART AND
DENYING IN PART CITY OF SUNNYVALE AND OFFICER LIMA’S MOTION TO DISMISS