Hills v. City of Chula Vista et al

Filing 59

ORDER Granting in Part and Denying in Part Defendants' Motion to Dismiss Plaintiff's Third Amended Complaint; Denying Defendants' Motion for a More Definite Statement; Denying Defendants' Motion to Strike. Signed by Chief District Judge Dana M. Sabraw on 11/26/2024. (All non-registered users served via U.S. Mail Service)(mef)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No.: 23-cv-1067-DMS-DDL

MANUEL LUKE HILLS,
v.

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CITY OF CHULA VISTA, CHULA
VISTA POLICE DEPARTMENT,
OFFICER SYMONETTE, OFFICER
LOPEZ, OFFICER MARTIN, OFFICER
BANDY, SERGEANT ALVAREZ,
CHIEF ROXANA KENNEDY, AND
JOHN DOES 1 through 5, inclusive,

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Defendants.

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ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS
PLAINTIFF’S THIRD AMENDED
COMPLAINT; DENYING
DEFENDANTS’ MOTION FOR A
MORE DEFINITE STATEMENT;
DENYING DEFENDANTS’ MOTION
TO STRIKE

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Pending before the Court is Defendants’ motion to dismiss Plaintiff’s Third

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Amended Complaint (TAC, ECF No. 53) pursuant to Rule 12(b)(6). (Defendants’ Motion,

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ECF No. 54). Plaintiff, proceeding pro se, filed a response in opposition. (Plaintiff’s

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Opposition, ECF No. 55).1 Defendants filed a reply. (Defendants’ Reply, ECF No. 56).

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Plaintiff re-filed his response in opposition without leave of court. (ECF No. 58). The Court will only
consider Plaintiff’s first filed response in opposition. It also appears that the two oppositions differ only
in format.
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The Court found this matter to be suitable for resolution without oral argument pursuant to

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Civil Local Rule 7.1(d)(1). (ECF No. 57). For the reasons discussed below, Defendants’

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motion is granted in part and denied in part.

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I.

BACKGROUND

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The Court accepts the following allegations as true for the purpose of resolving

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Defendants’ motion to dismiss. On November 30, 2022, between 8:00 and 9:30 PM,

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Plaintiff was pulled over by Defendants Officers Symonette and Lopez, who were in two

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different Chula Vista Police Department (“CVPD”) vehicles. (TAC ¶¶ 13–14). Plaintiff

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did not put his vehicle into park and observed Defendant Symonette approach with his gun

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drawn. (Id. ¶ 15). While Defendants Symonette and Lopez “aim[ed] their guns at

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[Plaintiff],” Defendant Symonette “ordered Plaintiff to place his keys on the dashboard.”

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(Id. ¶ 16). Then, Defendants Symonette and Lopez “forcefully pulled Plaintiff out of the

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vehicle and promptly handcuffed him.” (Id. ¶ 17).

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At some point during the interaction, Defendants Officers Martin and Bandy arrived.

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(Id. ¶ 18). While Plaintiff was handcuffed and watched by Defendant Bandy, Defendants

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Symonette, Lopez, and Martin searched Plaintiff’s vehicle without his consent or warrant.

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(Id.). Defendant Symonette then arrested Plaintiff for driving under the influence, without

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conducting a field sobriety test. (Id. ¶ 19). Then, Defendant Sergeant Alvarez arrived and

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Plaintiff perceived him to act “in a hostile and dismissive manner.” (Id. ¶ 20). Defendant

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Alvarez “order[ed] the towing of Plaintiff’s vehicle and his transportation to the police

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station.” (Id.).

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At the police station, Plaintiff was informed that the officers had received a warrant

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to have Plaintiff’s blood drawn and his blood was “forcibly drawn against his will.” (Id.

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¶ 21). Plaintiff was not shown the warrant nor was he read his Miranda rights. (Id.).

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Plaintiff was in custody for fourteen hours. (Id. ¶ 22). While in detention, an unnamed

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officer broke his gold bracelet and his vehicle sustained damage to its front bumper. (Id.).

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From these events, Plaintiff alleges to have suffered “emotional distress, depression,

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anxiety, and flashbacks.” (Id. ¶ 23).
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On June 8, 2023, Plaintiff, at first proceeding pro se, initiated this action against

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Defendants City of Chula Vista, CVPD, and John Does 1 through 5. (ECF No. 1). Soon

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after, Defendants filed a motion to dismiss Plaintiff’s original complaint pursuant to Rule

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12(b)(6) and 12(f). (ECF No. 3). Plaintiff then retained counsel and filed his first amended

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complaint on January 12, 2024, naming the current set Defendants. (ECF No. 34). On

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March 15, 2024, Plaintiff, this time proceeding pro se, filed his Second Amended

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Complaint (“SAC”) with leave from the Court. (ECF No. 46). Defendants then filed a

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motion to dismiss Plaintiff’s SAC (ECF Nos. 47–48) and this Court granted Defendants’

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motion with leave to amend. (ECF No. 52). On August 13, 2024, Plaintiff filed his TAC.

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(ECF No. 53).

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A. Claims

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Plaintiff’s TAC alleges the following categories of claims against the following

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Defendants:

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1.

42 U.S.C. § 1983 (individual capacity) for violations of the Fourth

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Amendment right against unlawful detention and arrest against Defendants

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Symonette, Lopez, and Martin. (TAC ¶¶ 24–30).

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2.

42 U.S.C. § 1983 (individual capacity) for violations of the Fourth

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Amendment right against excessive force against Defendant Symonette. (Id.

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¶¶ 31–40).

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3.

42 U.S.C. § 1983 (individual capacity) for violations of the Fourth

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Amendment right against unlawful searches and seizures against Defendants

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Symonette, Lopez, and Martin. (Id. ¶¶ 41–45).

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4.

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Defendants City of Chula Vista and CVPD. (Id. ¶¶ 46–52).
5.

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42 U.S.C. § 1983 (Monell) for violation of the Fourth Amendment against
California Penal Code § 240 (Assault) and § 242 (Battery) against Defendant
Symonette. (Id. ¶¶ 53–60).

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California Common Law False Imprisonment against Defendants Symonette,
Lopez, and Martin. (Id. ¶¶ 61–64).
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7.

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California Government Code § 52.1 (Bane Act) against Defendants
Symonette, Lopez, and Martin. (Id. ¶¶ 65–72).

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42 U.S.C. § 1983 for undetermined violations against Defendants Alvarez

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(individual capacity), Bandy (individual capacity), and Chief Roxana

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Kennedy (official and individual capacity). (Id. ¶ 11).

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II.

LEGAL STANDARD

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Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss

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on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.”

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Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, “a complaint must contain

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sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

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face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim

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for relief will . . . be a context-specific task that requires the reviewing court to draw on its

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judicial experience and common sense.” Id. at 679. “Factual allegations must be enough

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to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. If Plaintiff

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“ha[s] not nudged” his “claims across the line from conceivable to plausible,” the

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complaint “must be dismissed.” Id. at 570.

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In reviewing the plausibility of a complaint on a motion to dismiss, a court must

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“accept factual allegations in the complaint as true and construe the pleadings in the light

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most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins., 519

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F.3d 1025, 1031 (9th Cir. 2008). But courts are not “required to accept as true allegations

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that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”

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In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell v.

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Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). “[I]n general, courts must

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construe pro se pleadings liberally.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

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When a court grants a motion to dismiss a complaint, it must then decide whether to
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grant leave to amend. Leave to amend “shall be freely given when justice so requires,”

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Fed. R. Civ. P. 15(a), and “this policy is to be applied with extreme liberality.” Morongo

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Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). Dismissal without

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leave to amend is proper only if it is clear that “the complaint could not be saved by any

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amendment,” Intri-Plex Techs. v. Crest Grp., Inc., 499 F.3d 1048, 1056 (9th Cir. 2007), or

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“if the plaintiff had several opportunities to amend its complaint and repeatedly failed to

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cure deficiencies.” Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010).

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“A district court’s discretion to deny leave to amend is ‘particularly broad’ where the

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plaintiff has previously amended.” Salameh v. Tarsadia Hotel, 726 F. 3d 1124, 1133 (9th

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Cir. 2013).

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III.

DISCUSSION

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A. Request for Judicial Notice

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Federal Rule of Evidence 201(b) permits judicial notice of any fact “not subject to

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reasonable dispute because it: (1) is generally known within the trial court’s territorial

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jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy

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cannot reasonably be questioned.” Fed. R. Evid. 201(b); Khoja v. Orexigen Therapeutics,

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Inc., 899 F.3d 988, 999 (9th Cir. 2018). “A court may take judicial notice of matters of

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public record without converting a motion to dismiss into a motion for summary judgment.

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But a court cannot take judicial notice of disputed facts contained in such public records.”

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Khoja, 899 F.3d at 999 (quoting Lee v. City of Los Angeles, 250 F.3d 668, 669 (9th Cir.

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2001)).

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Defendants asks this Court to take judicial notice (1) of Plaintiff’s Government

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Claim for damages, (2) City of Chula Vista’s denial of Plaintiff’s Government Claim, and

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(3) the Blood Sample Warrant #66366 issued by the Superior Court of California, San

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Diego. (Defendants’ Motion, at 42–44). Plaintiff did not address Defendants’ request for

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judicial notice in his response in opposition.

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The Court takes judicial notice of the filing date and alleged content of Plaintiff’s

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Government Claim for damages, the City of Chula Vista’s denial of Plaintiff’s Government
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Claim, and the existence of the blood warrant. These particular details are not subject to

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reasonable dispute because they can be accurately and readily determined from sources

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whose accuracy cannot reasonably be questioned. See Clarke v. Upton, 703 F. Supp. 2d

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1037, 1042 (E.D. Cal. 2010) (taking judicial notice of filing date, alleged content, and

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rejection of California Government Tort claims); Davis v. Zimmerman, No. 17-cv-1230-

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BAS-NLS, 2018 WL 1806101, at *6 n.5 (S.D. Cal. Apr. 17, 2018) (taking judicial notice

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of claim and state entity’s response); see also Bryan v. City of Carlsbad, 297 F. Supp. 3d

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1107, 1115–16 (S.D. Cal. 2018) (taking judicial notice of the existence of a warrant as

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public record). The Court does not take judicial notice of the truth of the facts alleged in

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Plaintiff’s Government Claim for damages or the facts alleged in the blood warrant. These

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details are subject to reasonable dispute. See Bryan, 297 F. Supp. 3d at 1116 (declining to

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take judicial notice of the “reasonably disputable facts” contained in a warrant).

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B. 42 U.S.C. § 1983 (individual capacity)

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To state a claim for relief under § 1983, Plaintiff must sufficiently allege “(1) a

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violation of rights protected by the Constitution or created by federal statute, (2)

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proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.”

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Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Defendants only contest whether

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Plaintiff suffered a violation of his federal rights. (Defendants’ Motion, at 24–31).

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1. Fourth Amendment – Unlawful detention and arrest

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To state an unlawful detention claim under § 1983 for violation of the Fourth

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Amendment, a plaintiff must allege that he was detained without reasonable suspicion.

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Florida v. Royer, 460 U.S. 491, 500 (1983). Reasonable suspicion exists when, “in light

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of the totality of the circumstances, the officer had a particularized and objective basis for

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suspecting the particular person stopped of criminal activity.” U.S. v. Basher, 629 F.3d

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1161, 1165 (9th Cir. 2011) (quoting United States v. Berber-Tinoco, 510 F.3d 1083, 1087

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(9th Cir. 2007)).

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“A claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth

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Amendment, provided the arrest was without probable cause or other justification.”
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Dubner v. City & Cnty. of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001). “Probable

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cause exists when, under the totality of the circumstances known to the arresting officers

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(or within the knowledge of the other officers at the scene), a prudent person would believe

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the suspect had committed a crime.” Id. at 966. “If probable cause exists, it provides a

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complete defense.”

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No. 18cv02282 L (MSB), at *5 (S.D. Cal. Dec. 16, 2022) (citing Hutchinson v. Grant, 796

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F.2d 288, 290 (9th Cir. 1986)).

Estate of Silva by and through Allen v. City of San Diego,

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Plaintiff’s TAC asserts that the initial stop by Defendant Symonette and subsequent

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arrest by Defendants Symonette, Lopez, and Martin were without reasonable suspicion or

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probable cause and were therefore unlawful. (TAC ¶¶ 24–30). Defendants argue that

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Officers Symonette and Martin did have probable cause—observing, inter alia, Plaintiff

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“driv[ing] erratically,” “not stop[ping] at multiple blinking red lights,” and “[u]pon

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stopping Plaintiff, . . . objective symptoms of Plaintiff being under the influence.”

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(Defendants’ Motion, at 25–26).

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Defendants ultimately misconstrue Plaintiff’s TAC. Defendant’s arguments are not

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based on the facts alleged in Plaintiff’s TAC—rather, Defendants’ arguments are based on

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their own allegations. Nowhere in Plaintiff’s TAC does Plaintiff allege that he was driving

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“erratically” or acting in a way that objectively justified detaining and arresting Plaintiff.

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Because the Court is obligated to construe Plaintiff’s alleged facts “in the light most

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favorable to the nonmoving party,” the Court finds that Plaintiff’s TAC alleges sufficient

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facts to show that he was detained without reasonable suspicion and arrested without

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probable cause. Accordingly, the Court declines to dismiss Plaintiff’s § 1983 claims with

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respect to Fourth Amendment violations for unlawful detention and arrest.

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2. Fourth Amendment – Excessive Force

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The Fourth Amendment protects against the unreasonable seizure of persons. U.S.

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Const. amend. IV. The Clause is applicable to the States by the Fourteenth Amendment.

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See Ker v. California, 374 U.S. 23, 30 (1963). “Even if a seizure is reasonable in a

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particular circumstance, how that seizure is carried out must also be reasonable.” Estate of
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Strickland v. Nevada Cnty., 69 F.4th 614, 619 (9th Cir. 2023) (emphasis in original). “So

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the Fourth Amendment also prohibits the use of excessive force. Our ‘calculus of

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reasonableness’ in these circumstances ‘must embody allowance for the fact that police

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officers are often forced to make split-second judgments’ and we do not apply the ‘20/20

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vision of hindsight.’” Id. (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)) (citations

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omitted).

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A Fourth Amendment excessive force § 1983 claim is cognizable where “officers

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employed an ‘objectively unreasonable’ amount of force under the ‘totality of the

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circumstances.’ This inquiry requires balancing ‘the nature and quality of the intrusion on

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the individual’s Fourth Amendment interests against the countervailing governmental

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interests at stake.’” Id. (quoting Graham, 490 U.S. at 396) (citations omitted). Courts

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consider “(1) ‘the type and amount of force inflicted,’ (2) the severity of the crime at issue,’

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(3) ‘whether the suspect posed an immediate threat to the safety of the officers or others,’

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and (4) ‘whether the suspect was actively resisting arrest or attempting to evade arrest by

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flight.’” Id. (quoting O’Doan v. Sanford, 991 F.3d 1027, 1037 (9th Cir. 2021). “But this

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list isn’t exhaustive; [courts] may also consider other relevant factors, such as ‘the

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availability of less intrusive alternatives to the force employed, whether proper warnings

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were given[,] and whether it should have been apparent to officers that the person they used

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force against was emotionally disturbed.’” Id. (quoting S.B. v. Cnty. of San Diego, 864

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F.3d 1010, 1013 (9th Cir. 2017)). “Of these, the ‘immediate threat to safety’ factor is the

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most important.’” Peck v. Montoya, 51 F.4th 877, 887 (9th Cir. 2022) (quoting Rice v.

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Morehouse, 989 F.3d 1112, 1121 (9th Cir. 2021)).

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Plaintiff alleges that Defendant Symonette violated his Fourth Amendment right

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against excessive force when Defendant Symonette pointed a loaded firearm at Plaintiff.

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(TAC ¶¶ 36). Plaintiff also cites to Espinosa v. City and County of San Francisco, 598

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F.3d 528 (9th Cir. 2010), for authority that “pointing a loaded gun at a suspect, especially

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when the suspect poses no immediate threat, constitutes excessive force under the Fourth

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Amendment.” (Id. ¶ 37). Defendants counter by arguing that Plaintiff’s TAC only offers
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conclusory statements to show that he was complying with the officer’s commands.

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(Defendants’ Motion, at 27–28).

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The facts, as alleged in Plaintiff’s TAC, are sufficient to plausibly state a Fourth

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Amendment excessive force claim under § 1983. “Pointing a loaded gun at a suspect,

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employing the threat of deadly force, is use of a high level of force.” Espinosa, 595 F.3d

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at 537. “[P]ointing guns at persons who are compliant and present no danger is a

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constitutional violation.” Thompson v. Rahr, 885 F.3d 582, 587 (9th Cir. 2018) (quoting

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Baird v. Renbarger, 576 F.3d 340, 346 (7th Cir. 2009)). Plaintiff’s TAC does not allege

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any facts evincing noncompliance with or threats to Defendant Symonette, or any attempt

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by Plaintiff to flee. Nor could the traffic stop be construed as a particularly severe alleged

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crime. Based on the present allegations, which the Court must accept as true at this stage

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of the pleadings, Officer Symonette’s drawing and pointing of a loaded firearm at Plaintiff

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was an objectively unreasonable amount of force when balanced against the government’s

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need for such force. Accordingly, the Court declines to dismiss Plaintiff’s § 1983 claims

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with respect to Fourth Amendment excessive force claims.

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3. Fourth Amendment – Unlawful Search 2

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The Fourth Amendment also protects against “unreasonable searches.” U.S. Const.

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amend. IV. “[S]earches typically must be conducted pursuant to a warrant issued by an

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independent judicial officer. However, there are exceptions to this general rule, including

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the ‘automobile exception,’ under which a warrantless search of a vehicle is permitted ‘if

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there is probable cause to believe that the vehicle contains evidence of a crime.’” United

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States v. Faagai, 869 F.3d 1145, 1149–50 (9th Cir. 2017) (quoting United States v. Brooks,

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610 F.3d 1186, 1193 (9th Cir. 2010)) (citations omitted).

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While Plaintiff’s heading states a claim for “unlawful search and seizure under 42 U.S.C. § 1983,” (TAC,
at 9), Plaintiff only alleges “unlawful search[es]” under the Fourth Amendment. (TAC ¶¶ 42–45).
Accordingly, the Court interprets this section of Plaintiff’s TAC to only allege Fourth Amendment
unlawful search claims.
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Plaintiff’s TAC alleges that Defendants Symonette, Lopez, and Martin lacked

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probable cause to search his vehicle during the traffic stop. (TAC ¶¶ 42–45). Plaintiff’s

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TAC also alleges that because Defendants conducted a search without a warrant and

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without any of the applicable exceptions to the general requirement of probable cause, the

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search was unlawful. (Id.). Defendants argue that they lawfully searched Plaintiff’s

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vehicle because they had probable cause to detain and arrest Plaintiff. (Defendants’

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Motion, at 25–27).

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As discussed above, Plaintiff’s TAC alleges sufficient facts to show that he was

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detained without reasonable suspicion and arrested without probable cause. Thus, based

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on the record presently before the Court, the Court finds that Plaintiff has sufficiently

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alleged that Defendants unlawfully searched his vehicle. Accordingly, the Court declines

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to dismiss Plaintiff’s § 1983 claims with respect to Fourth Amendment violations for

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unlawful searches.

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C. Qualified Immunity

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Defendant Officers are entitled to qualified immunity if (1) “the officer’s conduct

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violated a statutory or constitutional right; and if (2) “that right was ‘clearly established’ at

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the time of the incident.” Shane v. County of San Diego, 677 F. Supp. 3d 1127, 1134 (S.D.

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Cal. 2023).

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violations of Plaintiff’s Fourth Amendment rights against unlawful detention, arrest,

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searches, and excessive force, the only question that remains is whether those rights were

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“clearly established” at the time of the incident.

Because this Court concludes that Plaintiff’s TAC sufficiently alleges

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“For the purposes of qualified immunity, a right is clearly established if ‘a reasonable

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officer would recognize that his or her conduct violates that right under the circumstances

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faced, and in light of the law that existed at that time.’” Shane, 677 F. Supp. 3d at 1134

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(quoting Kennedy v. City of Ridgefield, 439 F.3d 1055, 1065 (9th Cir. 2006)). “The right

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must be settled law, meaning that it must be clearly established by controlling authority or

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a robust consensus of cases of persuasive authority.” Id. (quoting Tuuamalemalo v.

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Greene, 946 F.3d 471, 477 (9th Cir. 2019)). “The court need not, however, find ‘a prior
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case with identical, or even materially similar facts’; it is enough that ‘the preexisting law

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provided the defendants with fair warning that their conduct was unlawful.’” Id. (quoting

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Kennedy, 439 F.3d at 1065). “If a right is not clearly established, the defendant is entitled

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to qualified immunity. If the right is clearly established, the court determines ‘whether the

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defendant’s conduct was objectively legally reasonable given the information possessed by

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the defendant at the time of his or her conduct.’” Id. (quoting Lawerence v. U.S., 340 F.3d

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952, 956 (9th Cir. 2003)) (citations omitted). “[T]he plaintiff . . . ‘bears the burden of

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showing that the rights allegedly violated were clearly established.” Shafer v. Cnty. of

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Santa Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017) (quoting LSO, Ltd. v. Stroh, 205 F.3d

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1146, 1157 (9th Cir. 2000)). Plaintiff “must either explain why [his] case is obvious under

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existing general principles or, more commonly, show specific cases that control or reflect

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a consensus of non-binding authorities in similar situations.” Waid v. Cnty. of Lyon, 87

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F.4th 383, 388 (9th Cir. 2023).

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“When defendants assert qualified immunity in a motion to dismiss under Rule

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12(b)(6), dismissal is not appropriate unless the court can determine, based on the

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complaint itself, that qualified immunity applies. While courts may consider qualified

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immunity at the pleadings stage, the Ninth Circuit has noted that ‘[d]etermining claims of

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qualified immunity at the motion-to-dismiss stage raises special problems for legal decision

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making.’ The Ninth Circuit has also observed that, by considering qualified immunity at

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the pleadings stage, ‘the courts may be called upon to decide far-reaching constitutional

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questions on a nonexistent factual record.’ In considering qualified immunity, the court

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must accept the allegations in the plaintiff’s complaint as true and construe them in the

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light most favorable to the plaintiff.” Shane, 677 F. Supp. 3d at 1134–35 (first quoting

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Keates v. Koile, 883 F.3d 1228, 1234 (9th Cir. 2019); and then quoting Kwai Fun Wong v.

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United States, 373 F.3d 952, 957 (9th Cir. 2004), abrogated on other grounds by Wilkie v.

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Robbins, 551 U.S. 537 (2007)) (citations omitted).

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1. Unlawful Detention, Arrest, and Search

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“Cases ‘cast at a high level of generality’ are unlikely to establish rights with the

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requisite specificity. Waid, 87 F.4th at 388 (quoting Brosseau v. Haugen, 543 U.S. 194,

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199 (2004) (per curiam)). However, “in an obvious case, these standards can ‘clearly

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establish’ the answer, even without a body of relevant case law.” Brosseau, 854 U.S. at

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199.

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detention, arrest and searches were clearly established at the time of his interaction with

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Defendants, Plaintiff cites to a bevy of cases that generally stand for the proposition that

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police officers need reasonable suspicion to detain and probable cause or a warrant to arrest

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an individual or conduct a warrantless search. (TAC ¶¶ 24–29, 41–45).

To support his argument that his Fourth Amendment rights against unlawful

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Taking the allegations in Plaintiff’s TAC as true and construing them in the light

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most favorable to Plaintiff, as this Court is required to do, the Court finds that Plaintiff has

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met his burden to demonstrate that his alleged violated rights were clearly established at

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the time of the incident with Defendants.

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detention, arrest, and search claims, as currently pled, are “obvious cases” under general

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Fourth Amendment principles. Plaintiff’s TAC does not allege any facts that would serve

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as the basis for reasonable suspicion or probable cause. Nor do Defendants offer any

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evidence to be incorporated by reference that would supplement Plaintiff’s allegations.3

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Furthermore, based on the present allegations, the Court finds that Defendants’ conduct

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was not objectively legally reasonable given the information they possessed at the time of

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their conduct. Accordingly, the Court finds that qualified immunity does not shield

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Defendants from Plaintiff’s Fourth Amendment § 1983 unlawful detention, arrest, and

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search claims.

Plaintiff’s Fourth Amendment unlawful

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Simply submitting body camera footage does not guarantee a finding of reasonable suspicion or probable
cause. See, e.g., Lechner v. LVMPD, 696 F. Supp. 3d 963, 990 (D. Nev. 2023) (noting that body camera
footage showed that defendant officers did not have reasonable suspicion or probable cause to detain
plaintiff).
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2. Excessive Force

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Plaintiff points to Espinosa v. City and County of San Francisco, 595 F.3d 528 (9th

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Cir. 2010), abrogated on other grounds Cnty. of Los Angeles v. Mendez, 581 U.S. 420

4

(2017) to support his excessive force argument. (Id. ¶ 37). The relevant excessive force

5

claim in Espinosa involved a residential confrontation by defendant police officers who

6

pointed loaded guns at a suspect. Espinosa, 595 F.3d at 537. In affirming the district

7

court’s denial of defendants’ motion for summary judgment as to the plaintiff’s excessive

8

force claims, the Ninth Circuit noted that the suspect “had not been accused of any crime,”

9

“had not caused the officers to forcible enter the home,” “did not present a danger to the

10

public,” could not escape from defendant police officers, and generally received

11

suggestions that the suspect posed “some risk of harm.” Id. The Court also benefits from

12

Thompson v. Rahr, 885 F.3d 582 (9th Cir. 2018), where the Ninth Circuit held that

13

“pointing guns at persons who are compliant and present no danger is a constitutional

14

violation.” Thompson, 885 F.3d at 587 (quoting Baird, 576 F.3d at 346).

15

As with Plaintiff’s other Fourth Amendment claims, the Court finds that Plaintiff

16

has met his burden to demonstrate that his Fourth Amendment right against excessive force

17

was clearly established at the time of the incident. Plaintiff’s excessive force claim appears

18

to also be obvious under Fourth Amendment principles. Nothing in Plaintiff’s TAC

19

suggests that Plaintiff was noncompliant with or posed a threat to Defendant Symonette.

20

Again, based on the present allegations, the Court finds that Defendant Symonette’s

21

conduct was not objectively legally reasonable given the information he possessed at the

22

time of their conduct. Thus, the Court finds that qualified immunity does not shield

23

Defendant Symonette from Plaintiff’s Fourth Amendment § 1983 excessive claim.

24

D. Monell Claims

25

Plaintiff alleges Monell claims against Defendants City of Chula Vista and CVPD

26

on theories that City of Chula Vista has “policies, customs, and practices” that violated

27

Plaintiff’s constitutional rights or “fail[ed] to adequately train and supervise its officers.”

28

(TAC ¶ 47). A municipality cannot be vicariously liable under § 1983 for the acts of its
13
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1

employees, but a municipality can be liable for deprivations of constitutional rights

2

deriving from the execution of a municipality’s policies or customs. Monell v. Dep’t of

3

Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). To state a Monell claim under

4

§ 1983, a plaintiff must sufficiently allege “(1) he was deprived of a constitutional right;

5

(2) the [local government] had a policy; (3) the policy amounted to deliberate indifference

6

to [the plaintiff's] constitutional right; and (4) the policy was the moving force behind the

7

constitutional violation.” Lockett v. Cnty. of Los Angeles, 977 F.3d 737, 741 (9th Cir.

8

2020).

9

constitutional deprivation. Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1075 (9th Cir.

10

2016) (en banc).

The plaintiff must show a “direct causal link” between the policy and the

11

“A ‘policy’ is ‘a deliberate choice to follow a course of action . . . made from among

12

various alternatives by the official or officials responsible for establishing final policy with

13

respect to the subject matter in question.’” Tsao v. Desert Palace, Inc., 698 F.3d 1128,

14

1143 (9th Cir. 2012) (quoting Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

15

2006)). A plaintiff can satisfy Monell’s policy requirement in one of three ways. First, a

16

plaintiff can show that a local government acted “pursuant to an expressly adopted official

17

policy.” Gordon v. Cnty. of Orange, 6 F.4th 961, 973 (9th Cir. 2021) (quoting Thomas v.

18

Cnty. of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014)). Second, “a public entity may be

19

held liable for a ‘longstanding practice or custom.’ Such circumstances may arise when,

20

for instance, the public entity ‘fail[s] to implement procedural safeguards to prevent

21

constitutional violations’ or, sometimes, when it fails to train its employees adequately.”

22

Id. (citations omitted). Third, a plaintiff can show that “the individual who committed the

23

constitutional tort was an official with final policy-making authority” or that “such an

24

official ‘ratified a subordinate’s unconstitutional decision or action and the basis for it.’”

25

Id. at 974 (quoting Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1250 (9th Cir.

26

2010)).

27

Plaintiff attempts to allege a “policy” under an express and longstanding practice or

28

custom theory, but not under a final policy making authority or ratification theory. (TAC
14
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1

¶ 48). For the reasons stated below, Plaintiff fails to sufficiently allege that Defendants

2

had a “policy” that caused his alleged constitutional rights violations.

3

1. Expressly Adopted Policy

4

Plaintiff’s TAC does not allege any expressly adopted policy by Defendants.

5

Plaintiff simply concludes that “[t]he City of Chula Vista, acting through its Police

6

Department, had a policy, practice, or custom of conducting traffic stops and arrests in a

7

manner that violated the Fourth Amendment rights of individuals.” (TAC ¶ 48). Because

8

this is a conclusory allegation, the Court declines to accept it as true. See In re Gilead Scis.

9

Secs. Litig., 536 F.3d at 1055. Accordingly, Plaintiff fails to allege a Monell claim under

10

an expressly adopted policy theory.

11

2. Longstanding Practice or Custom: Failure-to-train Theory

12

“Failure to train may amount to a policy of ‘deliberate indifference,’ if the need to

13

train was obvious and the failure to do so made a violation of constitutional rights likely.”

14

Doughtery v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (quoting City of Canton v.

15

Harris, 489 U.S. 378, 390 (1989). “To allege a failure to train, a plaintiff must include

16

sufficient facts to support a reasonable inference (1) of a constitutional violation; (2) of a

17

municipal training policy that amounts to a deliberate indifference to constitutional rights;

18

and (3) that the constitutional injury would not have resulted if the municipality properly

19

trained their employees.” Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1153–54 (9th

20

Cir. 2021). “A pattern of similar constitutional violations by untrained employees is

21

‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to

22

train.” Connick v. Thompson, 563 U.S. 51, 62 (2011). “[G]enerally, a single instance of

23

unlawful conduct is insufficient to state a claim for municipal liability under section 1983.”

24

Benavidez, 993 F.3d at 1154. “[I]n rare instances, single constitutional violations are so

25

inconsistent with constitutional rights that even such a single instance indicates at least

26

deliberate indifference of the municipality.” Id. at 1153. However, single-incident liability

27

under a failure-to-train theory is inapplicable where “[local government] employees are not

28

making life-threatening decisions.” Benavidez, 993 F.3d at 1154–55. The Supreme Court
15
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1

“posed [a] hypothetical example of a city that arms its police force with firearms and

2

deploys the armed officers into the public to capture fleeing felons without training the

3

officers in the constitutional limitation on the use of deadly force. . . . The Court sought not

4

to foreclose the possibility, however rare, that the unconstitutional consequences of failing

5

to train could be so patently obvious that a city could be liable under § 1983 without proof

6

of a pre-existing pattern of violations.” Connick, 563 U.S. at 63–64.

7

Plaintiff supports his failure-to-train theory with a single incident—the traffic stop

8

and arrest occurring on November 30, 2022. (TAC ¶¶ 13–14). From this single incident,

9

from which the alleged Fourth Amendment rights violations arose, Plaintiff concludes that

10

Defendant City of Chula Vista had a policy of deliberate indifference to constitutional

11

violations. (TAC ¶ 48). However, unlike the single-incident hypothetical in Connick,

12

Plaintiff’s single incident only involves an alleged “high level of force.” Espinosa, 595

13

F.3d at 537. Therefore, Plaintiff’s single incident is insufficient to establish the existence

14

of a policy or custom for Monell liability. See Benavidez, 993 F.3d at 1154.

15

Accordingly, the Court DISMISSES Plaintiff’s Monell claims.

16

E. State Law Claims

17

1. Statute of Limitations

18

Defendants argue that Plaintiff cannot add state law claims to his amended complaint

19

because the statute of limitations have run and that the relation back doctrine cannot save

20

Plaintiff’s “new” state law claims. (Defendants’ Motion, at 18–19). However, Plaintiff’s

21

state law assault, battery, and Bane Act claims have not yet expired. See Cal. Civ. Proc.

22

Code § 335.1 (“Within two years: An action for assault, battery, or injury to, or for the

23

death of, an individual caused by the wrongful act or neglect of another.”); Fenters v.

24

Yosemite Chevron, 761 F. Supp. 2d 957, 995–96 (E.D. Cal. 2010) (holding Bane Act claims

25

involving personal injury to have a two-year statute of limitations under Cal. Civ. Proc.

26

Code § 335.1). Because Plaintiff alleges his injuries to have occurred on November 30,

27

2022, Plaintiff had until November 30, 2024 to allege these state law claims against

28

Defendants. He did just that. See ECF No. 34.
16
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Plaintiff’s state law false imprisonment claims pose a separate inquiry. According

2

to Defendants, they appear to have run: The statute of limitations for California false

3

imprisonment claims is one year, Cal. Civ. Proc. Code § 340(c) (“Within one year: An

4

action for . . . false imprisonment.”), Plaintiff did not name Defendants until his first

5

amended complaint on January 12, 2024, and Plaintiff did not raise false imprisonment as

6

a claim until his SAC on March 15, 2024. Defendants’ Motion, at 18–19; ECF No. 34;

7

ECF No. 46.

8

Defendants are ultimately incorrect. While Plaintiff’s original complaint named

9

“John Does 1-5” as defendants, (ECF No. 1, at 3), Plaintiff also added the badge numbers

10

and last names of Officers Symonette, Lopez, Martin, Bandy, and Alvarez and included in

11

his complaint an attachment matching the badge numbers to the five Defendants. (Id. at 3,

12

7). Because the Court is obligated to construe pro se pleadings liberally, and since Plaintiff

13

was proceeding pro se when he filed his first complaint, the Court construes Plaintiff to

14

have listed Officers Symonette, Lopez, Martin, Bandy, and Alvarez as Defendants in his

15

first complaint. See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Accordingly,

16

the Court finds that Plaintiff timely named those five Defendants in his original complaint.4

17

Furthermore, while not specifically argued by Defendants, Plaintiff’s state law false

18

imprisonment claims against Defendants Symonette, Lopez, and Martin relate back to the

19

original complaint under Rule 15(c). Under Rule 15(c)(1)(B), “[a]n amendment to a

20

pleading relates back to the date of the original pleading when: the amendment asserts a

21

claim or defense that arose out of the conduct, transaction, or occurrence set out—or

22

attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). Indeed,

23

Plaintiff’s false imprisonment claims—which were first formally raised in his SAC on

24

March 15, 2024 and were hinted at in his original complaint—directly arose out of the

25
26
27
28

4

The Court’s analysis here excludes Defendant Chief Kennedy. For reasons discussed below, all claims
against Chief Kennedy are dismissed. Accordingly, the Court declines to address any statute of limitations
arguments regarding any state claims levied against her.
17
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alleged unlawful detention and arrest alleged in his original complaint. See ECF No. 1, at

2

4; ECF No. 46, at 12–13. Accordingly, the Court finds that Plaintiff’s false imprisonment

3

claims relate back to his timely original complaint.

4

2. Immunity under California Government Code § 820.2; § 820.4; and

5

California Penal Code § 847(b)(1)

6

Defendants also assert immunity under California Government Code §§ 820.2,

7

820.4, and California Penal Code § 847(b)(1). Under the circumstances of this case, none

8

of these statutes afford Defendants immunity from Plaintiff’s state law claims. See

9

Liberal v. Estrada, 632 F.3d 1064, 1084 (9th Cir. 2011) (“As a matter of law, section 820.2

10

immunity does not apply to an officer’s decision to detain or arrest a suspect.”), abrogated

11

in part on other grounds by Hampton v. California, 83 F.4th 754 (9th Cir. 2023); Cal.

12

Gov’t Code § 820.4 (“Nothing in this section exonerates a public employee from liability

13

for false arrest or false imprisonment.”); Robinson v. Solano County, 278 F.3d 1007, 1016

14

(9th Cir. 2002) (“California denies immunity to police officers who use excessive force in

15

arresting a suspect.”). Under the text of California Penal Code § 847(b)(1), immunity from

16

civil liability only applies if “[t]he arrest was lawful, or the peace officer, at the time of the

17

arrest, had reasonable cause to believe the arrest was lawful.” Cal. Penal Code § 847(b)(1).

18

Because the Court finds that Defendants did not have any basis for reasonable suspicion or

19

probable cause for the detention and arrest, Defendants should not be afforded this

20

immunity.

21

3. Presentment of Claims Under the Government Claims Act

22

Under the California Government Claims Act, “[a] plaintiff must present a timely

23

written claim for damages to the [public] entity” before suing that entity. Shirk v. Vista

24

Unified Sch. Dist., 42 Cal. 4th 201, 208 (2007), superseded in part by statute on other

25

grounds, Cal. Gov’t Code § 905(m), as recognized in Rubenstein v. Doe No. 1, 3 Cal. 5th

26

903, 914 (2017). “Since 1988, such claims must be presented to the government entity no

27

later than six months after the cause of action accrues. Accrual of the cause of action for

28

purposes of the government claims statute is the date of accrual that would pertain under
18
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1

the statute of limitations applicable to a dispute between private litigants. Timely claim

2

presentation is not merely a procedural requirement, but is . . . ‘a condition precedent to

3

plaintiff’s maintaining an action against defendant.’ Complaints that do not allege facts

4

demonstrating either that a claim was timely presented or that compliance with the claims

5

statute is excused are subject to a general demurrer for not stating facts sufficient to

6

constitute a cause of action.” Id. at 208–09 (quoting State of California v. Superior Court,

7

32 Cal. 4th 1234, 1240 (2004)) (citations omitted).

8

Defendants seek to dismiss Plaintiff’s state law Assault, Battery, False

9

Imprisonment, and Bane Act claims for failure to comply with the California Government

10

Claims Act.

11

Defendants, is Plaintiff’s “fail[ure] to allege compliance with the Government Claims Act”

12

in his TAC. (Id. at 32).

(Defendants’ Motion, at 29–30).

The noncompliance, according to

13

Plaintiff is not required to specifically allege in his complaint that he has complied

14

with the Government Claims Act. Rather, Plaintiff’s TAC needs only “allege facts

15

demonstrating either that a claim was timely presented or that compliance with the claims

16

statute is excused.” Shirk, 42 Cal. 4th at 209; see also Moore v. Twomey, 120 Cal. App.

17

4th 910, 914 (2004) (“Government Code section 945.6 requires ‘any suit brought against a

18

public entity’ to be commenced no more than six months after the public entity rejects the

19

claim. A civil action is ‘commenced’ by filing a complaint with the court.” (quoting Cal.

20

Gov’t Code § 945.6(a)(1)) (citations omitted)).

21

Nonetheless, the evidence Defendants submitted, regarding Plaintiff’s presentment of

22

claims to the City of Chula Vista, Office of the City clerk on January 17, 2023,

23

(Defendants’ Motion, at 48), the denial of the claim on February 20, 2023, (id. at 53), and

24

the fact that Plaintiff filed his initial complaint on June 8, 2023, collectively demonstrate

25

that Plaintiff complied with the six-month deadline to file his state law claims following

26

the denial by the City of Chula Vista of Plaintiff’s Government Claims Act claims.

27

Therefore, Plaintiff’s TAC ultimately did what it was required to do under the Government

28

Claims Act.

Plaintiff’s TAC alleges neither.

19
23-cv-1067-DMS-DDL

1

Defendants further argue that Plaintiff violated the aforementioned six-month

2

presentment deadline set forth in Cal. Gov’t Code § 945.6(a)(1) by failing to specifically

3

allege Defendants Symonette, Lopez, Martin, Bandy, Alvarez, and Chief Kennedy in his

4

first Complaint. (Defendants’ Motion, at 32). Because the City of Chula Vista, Office of

5

the City Clerk, sent a written denial of Plaintiff’s claims on February 20, 2023, Defendants

6

assert that Plaintiff had until August 20, 2023 to file or amend his complaint to name the

7

individual city Defendants. (Defendants’ Motion, at 29). While Plaintiff timely filed his

8

initial complaint before August 20, 2023, he did not name the aforementioned Defendants

9

until his first amended complaint on January 12, 2024.

10

Defendants’ argument is ultimately unpersuasive. First, as a threshold matter, the

11

Court interprets Plaintiff’s TAC to not allege any state-law claims against Chief Kennedy.

12

(TAC ¶¶ 65–72). Defendant’s statute of limitations arguments as they relate to when Chief

13

Kennedy was named are not dispositive. Second, as discussed above, the Court liberally

14

interprets Plaintiff’s initial complaint to have named Officers Symonette, Lopez, Martin,

15

Bandy, and Alvarez as Defendants because he included their badge numbers and last names

16

in his complaint. (ECF No. 1, at 3, 7). Accordingly, the Court finds that Plaintiff’s TAC

17

complied with the Government Claims Act’s six-month deadline to commence an action

18

against a public entity.

19

4. California Penal Code § 240 (Assault) and § 242 (Battery)

20

Assault is “[a]n unlawful attempt, coupled with a present ability, to commit a violent

21

injury on the person of another.’” Cal. Penal Code § 240. To sufficiently allege a civil

22

claim for assault under California law, Plaintiff must allege that “(1) defendant[s] acted

23

with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a

24

harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched

25

in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was

26

about to carry out the threat; (3) plaintiff did not consent to defendant's conduct; (4)

27

plaintiff was harmed; and (5) defendant's conduct was a substantial factor in causing

28

plaintiff's harm.” Yun Hee So v. Sook Ja Shin, 212 Cal. App. 4th 652, 668–69 (2013).
20
23-cv-1067-DMS-DDL

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Battery is “any willful and unlawful use of force or violence upon the person of

2

another.” Cal. Penal Code § 242. To sufficiently allege a civil claim for battery under

3

California law, Plaintiff must allege that “(1) defendant intentionally did an act that resulted

4

in harmful or offensive contact with the plaintiff’s person, (2) plaintiff did not consent to

5

the contact, and (3) the contact caused injury, damage, loss or harm to the plaintiff.”

6

Garcia v. City of Merced, 637 F. Supp. 2d 731, 747 (N.D. Cal. 1998).

7

“Physical injury is not a required element of either assault or battery.” Kisesky v.

8

Carpenters’ Trust for So. California, 144 Cal. App. 3d 222, 232 (1983). Furthermore,

9

“[u]nder California law, a defendant cannot be convicted of both assault and battery, as

10

every battery includes an element of assault, ‘and is, in fact, a consummated assault.’” Id.

11

(quoting People v. Lopez, 47 Cal. App. 3d 8, 15 (1975)).

12

However, “[a] police officer ‘may use reasonable force to make an arrest, prevent

13

escape or overcome resistance.” C.B. v. Sonora Sch. Dist., 691 F. Supp. 2d 1170, 1187

14

(E.D. Cal. 2010) (quoting Brown v. Ransweiler, 171 Cal. App. 4th 516, 526–27 (2009)).

15

Therefore, plaintiffs alleging civil claims of assault and battery must also sufficiently allege

16

“that [Defendant Officers] used unreasonable force against [them] to make a lawful arrest

17

or detention.” Arpin v. Santa Clara “Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir.

18

2001). “Determination whether an officer breached such duty is ‘analyzed under the

19

reasonableness standard of the Fourth Amendment to the United [States] Constitution.’

20

Thus, the question is whether a peace officer’s actions were objectively reasonable based

21

on the facts and circumstances confronting the peace officer.” Knapps v. City of Oakland,

22

647 F. Supp. 2d 1129, 1166 (N.D. Cal. 2009) (quoting Munoz v. City of Union City, 120

23

Cal. App. 4th 1077, 1102 (2004), abrogated in other part by Hayes v. Cnty. of San Diego,

24

57 Cal. 4th 622 (2013)).

25

Defendants argue that Plaintiff’s TAC either fails to allege all the required elements

26

or only provides conclusory statements to support his civil claims for assault and battery.

27

(Defendants’ Motion, at 33–34). Plaintiff disagrees. (Plaintiff’s Opposition, at 3–4).

28

Plaintiff alleges that Defendant Symonette “point[ed] a firearm at Plaintiff’s head,”
21
23-cv-1067-DMS-DDL

1

“pull[ed] Plaintiff out of his vehicle and handcuff[ed] him.” (TAC ¶¶ 55–56). From these

2

actions, Plaintiff alleges that he suffered, inter alia, “emotional distress” and “mental

3

anguish.” (TAC ¶ 59).

4

The Court finds that Plaintiff’s TAC sufficiently alleges torts of assault and battery

5

against Defendants Symonette. Furthermore, as discussed above, the Court finds Plaintiff

6

plausibly alleges Defendant Symonette used unreasonable force when he pointed his gun

7

at Plaintiff without reasonable suspicion or probable cause. Accordingly, the Court

8

declines to dismiss Plaintiff’s assault and battery claims.

9

5. California Common Law False Imprisonment

10

“‘False imprisonment is the unlawful violation of the personal liberty of another.’

11

The elements of a tortious claim of false imprisonment are: (1) the nonconsensual,

12

intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable

13

period of time, however brief.’” Knapps, 647 F. Supp. at 1165 (first quoting Cal. Penal

14

Code § 236; and then quoting Lyon v. Fire Ins. Exch., 161 Cal. App. 4th 880, 888 (2008)).

15

“California law protects a law enforcement officer from liability for false arrest or false

16

imprisonment where the officer, acting within the scope of his or her authority, either (1)

17

effects a lawful arrest or (2) has reasonable cause to believe the arrest is lawful.” Marsh v.

18

San Diego Cnty., 432 F. Supp. 2d 1035, 1054 (S.D. Cal. 2006) (citing Cervantes v. United

19

States, 330 F.3d 1186, 1188 (9th Cir. 2003)). 5

20

Plaintiff’s TAC levies false imprisonment claims against Defendants Symonette,

21

Lopez, and Martin. (TAC ¶¶ 61–64). Defendants do not dispute the first or third elements

22

of false imprisonment. At issue is whether Plaintiff’s detention was “without lawful

23

privilege.” Plaintiff argues that because the officers lacked reasonable suspicion or

24

probable cause, the arrest was therefore unlawful. Defendants contend Plaintiff “fail[ed]

25
26
27
28

5

This standard is also codified in Cal. Gov’t Code Section 820.4, as discussed in Defendants’ Motion.
(Defendants’ Motion, at 35).
22
23-cv-1067-DMS-DDL

1

to plead essential facts such as why no reasonable suspicion or probable cause existed to

2

legally effectuate the detention then arrest.” (Defendants’ Motion, at 34).

3

As discussed above, Plaintiff’s TAC sufficiently alleges that the Defendant

4

Officers lacked reasonable suspicion to detain and probable cause or a warrant to arrest

5

Plaintiff. Plaintiff therefore sufficiently alleges claims for false imprisonment against

6

Defendants Symonette, Lopez, and Martin. Accordingly, based on the present record, the

7

Court declines to dismiss Plaintiff’s false imprisonment claims against Defendants

8

Symonette, Lopez, and Martin.

9

6. Bane Act

10

The Thomas Bane Civil Rights Act (“Bane Act”) is codified in California Civil Code

11

§ 52.1. “The essence of a Bane Act claim is that the defendant, by the specified improper

12

means (i.e., ‘threats, intimidation or coercion’), tried to or did prevent the plaintiff from

13

doing something he or she had the right to do under the law or to force the plaintiff to do

14

something that he or she was not required to do under the law.” Cornell v. City and Cnty.

15

of San Francisco, 17 Cal. App. 5th 766, 791–92 (2017). Violations of the federal and

16

California Constitution are all Bane Act violations. See Cal. Civ. Code § 52.1(b). “The

17

elements of a Bane Act claim are essentially identical to the elements of a § 1983 claim,

18

with the added requirement that the government official had a ‘specific intent to violate’ a

19

constitutional right.” Hughes v. Rodriguez, 31 F.4th 1211, 1224 (9th Cir. 2022).

20

The Ninth Circuit has held that “the Bane Act does not require the ‘threat,

21

intimidation[,] or coercion element of the claim to be transactionally independent from the

22

constitutional violation alleged” so long as the claimant shows the defendant had a

23

“specific intent” to commit the constitutional violation. Reese v. County of Sacramento,

24

888 F.3d 1030, 1043 (9th Cir. 2018). The specific intent requirement is satisfied where the

25

defendant acted with “[r]eckless disregard of the right at issue.” Estate of Serna v. County

26

of San Diego, No. 20-cv-2096-LAB-MSB, 2022 WL 827123, at *8 (S.D. Cal. Mar. 18,

27

2022) (quoting Cornell, 17 Cal. App. 5th at 804) (alteration in original).

28
23
23-cv-1067-DMS-DDL

1

A local government can be vicariously liable for its employees’ Bane Act violations

2

under a theory of respondeat superior. See Gant v. Cnty. of Los Angeles, 772 F.3d 608 (9th

3

Cir. 2014) (explaining that “[u]nder California law, public entities are liable for actions of

4

their employees within the scope of employment,” including for Bane Act claims) (citing

5

Cal. Gov't Code § 815.2(a)).

6

a. Constitutional Rights

7

Plaintiff alleges the following constitutional rights violations under the Bane Act:

8

(1) his Fourth Amendment and California state right to be free from unreasonable searches

9

and seizures; and (2) his Fourteenth Amendment due process rights. (TAC ¶ 69). As

10

discussed above, the Court finds that Plaintiff’s TAC sufficiently alleges violations of his

11

constitutional right against unreasonable searches and seizures (with respect to excessive

12

force). However, Plaintiff has not alleged any facts demonstrating how his Fourteenth

13

Amendment due process rights have been violated. Accordingly, the Court DISMISSES

14

Plaintiff’s Bane Act claim with respect to violations of his Fourteenth Amendment due

15

process rights.

16

b. Specific Intent

17

To sufficiently allege specific intent in a Bane Act claim, Plaintiff must satisfy two

18

requirements. First, the right at issue must be “clearly delineated and plainly applicable

19

under the circumstances of the case.” Cornell, 17 Cal. App. 5th at 803. Second, the

20

defendant must have “commit[ted] the act in question with the particular purpose of

21

depriving the citizen victim of his enjoyment of the interests protected by that . . . right.”

22

Id.

23

Defendants argue that Plaintiff’s TAC has not “stated facts sufficient to allege an

24

unlawful act with the specific intent to violate Plaintiff’s right to freedom from

25

unreasonable seizure, excessive force, and warrantless searches.” (Defendants’ Motion, at

26

34). Plaintiff did not respond to Defendants’ argument in his opposition.

27

Ultimately, Plaintiff’s TAC does not sufficiently allege specific intent for his Bane

28

Act claims. Plaintiff has successfully articulated rights that are “clearly delineated and
24
23-cv-1067-DMS-DDL

1

plainly applicable under the circumstances” of this case because the Court finds that

2

Plaintiff has stated § 1983 Fourth Amendment individual capacity claims. Nonetheless,

3

Plaintiff’s TAC is silent regarding any allegations as to intent or reckless disregard—which

4

courts in the Ninth Circuit have held to be sufficient when joined with allegations of

5

constitutional rights violations to establish specific intent in a Bane Act claim. See Smith v.

6

City of Marina, 709 F. Supp. 3d 926, 939 (N.D. Cal. 2024) (“At the motion to dismiss

7

stage, however, allegations of conduct that violates constitutional rights coupled with

8

allegations that the conduct was done with reckless disregard for a party’s rights can be

9

sufficient to establish specific intent.”); see also Velasquez, Jr. v. City of Hayward, No. 24-

10

cv-1221-TSH, 2024 WL 4780887, at *6 (N.D. Cal. Nov. 13, 2024) (same). Accordingly,

11

the Court DISMISSES Plaintiff’s Bane Act claims with respect to his federal and state

12

rights against unreasonable searches and seizures with leave to amend.

13

F. 42 U.S.C. § 1983 for undetermined violations by Defendants Alvarez

14

(individual capacity), Bandy (individual capacity), and Chief Roxana

15

Kennedy (official and individual capacity)

16

In this Court’s earlier order granting Defendants’ motion to dismiss Plaintiff’s SAC

17

for failure to state a claim, the Court granted Defendants’ motion regarding Plaintiff’s

18

§ 1983 claims against Defendants Alvarez, Bandy, and Chief Kennedy because Plaintiff

19

failed to allege any facts to support a finding of liability under § 1983 against them. (ECF

20

No. 52, at 7). Plaintiff’s TAC still fails to allege facts suggesting that Defendants Alvarez

21

and Bandy are liable in their individual capacity as members of CVPD, or that Defendant

22

Chief Kennedy is liable in her official or individual capacity as Chief of CVPD.

23

Accordingly, the Court DISMISSES Plaintiff’s § 1983 claims against Defendants Alvarez,

24

Bandy, and Chief Kennedy.

25

G. Rule 12(e) Motion for More Definite Statement

26

A motion for a more definite statement under Rule 12(e) is proper if the at-issue

27

pleading “is so vague or ambiguous that the party cannot reasonably prepare a response.”

28

Fed. R. Civ. P. 12(e). “A motion for a more definite statement must be considered in light
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of the liberal pleading standards of Rule 8(a).” Beckner v. El Cajon Police Dep’t, No. 07-

2

0509 W(BLM), 2007 WL 2873406, at *1 (S.D. Cal. Sept. 28, 2007). “Thus, a motion for

3

a more definite statement should not be granted unless the defendant literally cannot frame

4

a responsive pleading.” Id.

5

The Court finds that the parts of Plaintiff’s TAC that the Court has not dismissed are

6

sufficiently pled to put Defendants on notice of the claims against them. Defendants can

7

and have drafted responsive pleadings against those claims. Accordingly, the Court

8

DENIES Defendant’s alternative motion for more definite statement.

9

H. Rule 12(f) Motion to Strike

10

Defendants seek to dismiss or strike Plaintiff’s request for punitive damages and

11

attorney’s fees and costs under 42 U.S.C. § 1988. (Defendants’ Motion, at 36–37). In

12

particular, Defendants argue that Plaintiff cannot recover attorneys’ fees and costs because

13

Plaintiff is proceeding pro se and cannot recover attorneys’ fees. (Id. at 36).

14

Under 42 U.S.C. § 1988, “the [district] court, in its discretion, may allow the

15

prevailing party [in a § 1983 case], other than the United States, a reasonable attorney’s fee

16

as part of the costs.” 42 U.S.C. § 1988(b). It is well settled law that under § 1988, pro se

17

litigants cannot recover attorneys’ fees. See Kay v. Ehrler, 499 U.S. 432, 438 (1991) (“A

18

rule that authorizes awards of counsel fees to pro se litigants—even if limited to those who

19

are members of the bar—would create a disincentive to employ counsel whenever such a

20

plaintiff considered himself competent to litigate on his own behalf.”). However, Plaintiff,

21

at some point during this litigation, was represented by counsel and presumably incurred

22

legal fees. See, e.g., ECF No. 34; ECF Nos. 42–44. Defendants cite to no case law that

23

would prevent Plaintiff from recovering those fees should he prevail. Furthermore, the

24

Ninth Circuit has generally allowed pro se litigants to recover costs separate from

25

attorneys’ fees. See Merrell v. Block, 809 F.2d 639, 642 (9th Cir. 1987) (remanding to

26

district court a determination of costs incurred by pro se litigant relating to the litigation).

27

According, the Court declines to grant Defendants’ request to strike Plaintiff’s request for

28

attorneys’ fees and costs.
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Defendants also argue that Plaintiff’s TAC fails to sufficiently allege “the requisite

2

‘evil motive or intent,’ pursuant to California Civil Code Section 3294(a), or ‘oppression,

3

fraud, or malice’ on the part of any individual” for Defendant to recover punitive damages.

4

(Id.). Defendants are ultimately incorrect. It is true that “California law governs Plaintiff’s

5

substantive claim for punitive damages under California Civil Code § 3294.” Clark v.

6

State Farm Mut. Auto. Ins. Co., 231 F.R.D. 405, 406 (C.D. Cal. 2005). Under California

7

law, Plaintiff must plead that Defendants “engaged in ‘oppression, fraud, or malice.’

8

Malice is conduct intended ‘to cause injury to the plaintiff’ or ‘despicable conduct’ carried

9

out ‘with a willful and conscious disregard of the rights or safety of others.’” Terpin v. AT

10

And T Mobility LLC, 118 F.4th 1102, 1112 (9th Cir. 2024) (first quoting Cal. Civ. Code

11

§ 3294(a); and then quoting Cal. Civ. Code § 3294(c)(1)).

12

However, “the Federal Rules of Civil Procedure govern the punitive damages claim

13

procedurally with respect to the adequacy of the pleadings.” Id.; see also Clark v. Allstate

14

Ins. Co., 106 F. Supp. 2d 1016, 1018 (S.D. Cal. 2010) (“Where state law directly conflicts

15

with applicable provisions of the Federal Rules of Civil Procedure, federal courts must

16

apply the Federal Rules—not state law.”); Bass v. First Pac. Networks, Inc., 219 F.3d 1052,

17

1055 n.2 (9th Cir. 2000) (“[A] federal court exercising supplemental jurisdiction over state

18

law claims is bound to apply the law of the forum state to the same extent as if it were

19

exercising its diversity jurisdiction.”). Under the less demanding federal pleading standard

20

pursuant to Rule 9(b), Plaintiff’s TAC needs only “include a ‘short and plain’ prayer for

21

punitive damages that relies entirely on unsupported and conclusory averments of malice

22

or fraudulent intent.” Clark, 106 F. Supp. at 1019; Fed. R. Civ. P. 9(b) (“Malice, intent,

23

knowledge, and other conditions of a person’s mind may be alleged generally.”).

24

Plaintiff’s TAC sufficiently alleges malice. (TAC ¶¶ 31–40). Accordingly, the Court

25

declines to dismiss Plaintiff’s punitive damages request at this time.

26

I. Leave to Amend

27

“A district court may deny a plaintiff leave to amend if it determines that…the

28

plaintiff had several opportunities to amend its complaint and repeatedly failed to cure
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1

deficiencies.” Telesaurus VPC, LLC, 623 F.3d at 1003. “[W]here the plaintiff has

2

previously been granted leave to amend and has subsequently failed to add the requisite

3

particularity to its claims, the district court's discretion to deny leave to amend is

4

particularly broad.” Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir.

5

2009).

6

This is Plaintiff’s fourth complaint. The Court previously provided Plaintiff with

7

leave to amend his complaint to cure the deficiencies in his SAC. Plaintiff’s TAC

8

reintroduces his Monell claims from his first amended complaint, except with less

9

specificity as to the policy, practice, or custom he alleges to have violated his constitutional

10

rights. Plaintiff’s § 1983 claims against Defendants Alvarez, Bandy, and Chief Kennedy

11

remain insufficient due to a lack of alleged facts and specificity in his pleadings. Because

12

Plaintiff has repeatedly failed to cure these deficiencies in his amended pleadings, those

13

claims are dismissed without leave to amend. Plaintiff’s Bane Act claims are dismissed

14

with leave to amend—except for Plaintiff’s alleged violation of his Fourteenth Amendment

15

Due Process rights, which is dismissed without leave to amend since Plaintiff has gradually

16

diminished any specific allegations regarding this claim from his first through third

17

amended complaint.

18
19

IV.

SUMMARY AND CONCLUSION

Based on the foregoing,

20

1. The Court declines to dismiss Plaintiff’s 42 U.S.C. § 1983 individual capacity

21

claims for violations of the Fourth Amendment right against unlawful detention

22

and arrest against Defendants Symonette, Lopez, and Martin.

23

2. The Court declines to dismiss Plaintiff’s 42 U.S.C. § 1983 individual capacity

24

claim for violations of the Fourth Amendment right against excessive force against

25

Defendant Symonette.

26

3. The Court declines to dismiss Plaintiff’s 42 U.S.C. § 1983 individual capacity

27

claims for violations of the Fourth Amendment right against unlawful searches

28

against Defendants Symonette, Lopez, and Martin.
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