Victoria v. City of San Diego

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10

11 ARVAUNTI VICTORIA, Case No.: 17-CV-1837-AJB-NLS

12 Plaintiff,

ORDER:

13 v.

(1) GRANTING DEFENDANTS CITY

14 CITY OF SAN DIEGO, DAVID

OF SAN DIEGO AND SHELLEY

DUNHOFF, individually and in his

15 ZIMMERMAN’S MOTION TO

official capacity, et al.

DISMISS;

16 Defendants.

17 (2) GRANTING IN PART AND

DENYING IN PART DAVID

18

DUNHOFF’S MOTION TO DISMISS;

19

(3) GRANTING IN PART AND

20

DENYING IN PART JUSTIN

21 MONTOYA’S MOTION TO

DISMISS;

22

23 (4) GRANTING IN PART AND

DENYING IN PART J. JOHNSON’S

24

MOTION TO DISMISS;

25

(5) GRANTING IN PART AND

26

DENYING IN PART TIMOTHY

27 COYLE’S MOTION TO DISMISS;

28

1 (6) GRANTING IN PART AND

DENYING IN PART ADAM

2

GEORGE’S MOTION TO DISMISS;

3 AND

4

(7) GRANTING DAVID WOLFF’S

5 MOTION TO DISMISS

6

7 (Doc. Nos. 50, 51, 52, 53, 54, 55, 56)

8

Pending before the Court are seven motions: (1) Defendants City of San Diego and

9

Shelley Zimmerman’s motion to dismiss; (2) Defendant Timothy Coyle’s motion to

10

dismiss; (3) Defendant David Dunhoff’s motion to dismiss; (4) Defendant Adam George’s

11

motion to dismiss; (5) Defendant J. Johnson’s motion to dismiss; (6) Defendant Justin

12

Montoya’s motion to dismiss; and (7) Defendant David Wolff’s motion to dismiss. (Doc.

13

Nos. 50, 51 52, 53, 54, 55, and 56.) Plaintiff filed oppositions to all the motions. (Doc. Nos.

14

61, 62, 63, 64, 65, 66, 67, and 68.) As will be explained in greater detail below, and based

15

on the arguments presented in the papers and presented at the February 13, 2019 hearing

16

on this motion, the Court GRANTS the City of San Diego and Shelley Zimmerman’s

17

motion to dismiss, GRANTS in part and DENIES in part David Dunhoff’s motion to

18

dismiss, GRANTS in part and DENIES in part Justin Montoya’s motion to dismiss,

19

GRANTS in part and DENIES in part J. Johnson’s motion to dismiss, GRANTS in part

20

and DENIES in part Timothy Coyle’s motion to dismiss, GRANTS in part and DENIES

21

in part Adam George’s motion to dismiss, and GRANTS David Wolff’s motion to dismiss.

22

I. BACKGROUND1

23

The following allegations are taken from Plaintiff Arvaunti Victoria’s third amended

24

complaint (“TAC”). (Doc. No. 46.) This complaint arises out of a traffic stop on September

25

9, 2016. On September 9, 2016, Plaintiff was riding his motorcycle near Miramar and

26

27

1 The following allegations are taken from the TAC and are construed as true for the limited purpose of

28

1 Kearney Mesa Roads. (Doc. No. 46 ¶ 16.) Despite not having a decibel meter, the officers

2 claimed they stopped Plaintiff for having loud pipes and no license plate. (Id.)

3 On September 9, 2016, Defendant Coyle and Officer Harper were surveilling the Off

4 Base Bar for an assault that occurred on September 4, 2016. (Id. ¶¶ 16, 17.) The officers

5 observed Plaintiff arrive on a motorcycle and don a vest containing the emblem of the

6 “Chosen Few.” (Id. ¶ 18.) When Plaintiff left the bar, the officers followed him. (Id. ¶ 19.)

7 Defendants George and Johnson pulled over Plaintiff. (Id.) Defendant George informed

8 Plaintiff that the reason for the stop was that Plaintiff had loud pipes. (Id.) Then either

9 Defendant George or Defendant Johnson noticed Plaintiff’s motorcycle did not have a

10 license plate or a registration tag. (Id.) Plaintiff explained to the officers that the pipes were

11 stock pipes and complied with all California emissions and volume standards. (Id. ¶ 20.)

12 None of the six defendant officers had a decibel meter or any type of device that would

13 measure the sound of the exhaust pipes. (Id. ¶ 21.)

14 After the initial stop, several more officers appeared. (Id. ¶ 22.) Defendant Montoya

15 conducted a search of Plaintiff’s saddlebags by stating the search could be done “the easy

16 way or the hard way.” (Id.) After that comment, Plaintiff consented to the search. (Id.)

17 Defendants Coyle and Johnson conducted the search. (Id.) One of the officers discovered

18 the vest for the “Chosen Few.” (Id.) Plaintiff was also wearing several large rings on his

19 hand. (Id. ¶ 23.) Plaintiff was then arrested and charged with possession of metal knuckles.

20 (Id.)

21 Plaintiff’s cell phone was also seized. (Id. ¶ 24.) Defendant Montoya demanded

22 Plaintiff provide him with the password for the phone. (Id.) Defendant Montoya told

23 Plaintiff that if he did not provide the cell phone password Defendant Montoya would order

24 Plaintiff’s motorcycle impounded. (Id.) After this statement, Plaintiff provided Defendant

25 Montoya with his cell phone password. (Id.) However, Defendant Montoya was unable to

26 unlock the phone and ordered the motorcycle to be impounded. (Id.)

27 Plaintiff was then placed in a police car to be transported to jail. (Id.) On the way to

28 jail, Defendant Dunhoff gave Plaintiff “a second chance” to unlock his phone. (Id.)

1 Defendant Dunhoff stated that if Plaintiff provided Defendant Dunhoff access to his phone,

2 someone could pick up the motorcycle instead of it being impounded. (Id.) Plaintiff

3 unlocked the phone himself this time. (Id.)

4 Defendant Wolff then signed a sworn affidavit to obtain a search warrant for

5 Plaintiff’s cell phone. (Id. ¶ 41.) Defendant Wolff was not present at Plaintiff’s arrest, but

6 the events in the affidavit were relayed to him by Defendant Coyle. (Id.)

7 After Plaintiff’s arrest, he paid $8,000 for bail as a result of the incident. (Id. ¶ 49.)

8 The charges against Plaintiff were ultimately dismissed. (Id. ¶ 55.) However, Plaintiff

9 claims he continues to suffer from mental and emotional distress from the incident. Thus,

10 Plaintiff alleges the following causes of action: (1) violations of 42 U.S.C. § 1983—

11 violation of his Fourth Amendment right—illegal detention against all individual

12 Defendants; (2) false arrest against all individual Defendants; (3) illegal search against

13 individual Defendants; (4) deliberate indifference against all Defendants; (5) deliberate

14 indifference in regards to the purported custom and policies of the San Diego Police

15 Department; (6) violation of the California Constitution Article I, § 13 against Defendants

16 Coyle, Montoya, Dunhoff, Johnson, and George; (7) violation of California Civil Code §

17 52.1 against Defendants Montoya and Dunhoff; (8) injunctive relief pursuant to the Bane

18 Act—California Civil Code § 52.1—against Defendants Montoya and Dunhoff; and (9)

19 infliction of emotional distress against all individual Officer Defendants. (See generally

20 Doc. No. 46.)

21 Plaintiff filed his complaint on September 11, 2017. (Doc. No. 1.) On September 21,

22 2017, Plaintiff amended his complaint. (Doc. No. 3.) On November 17, 2017, a joint

23 motion to amend/correct the complaint was filed, (Doc. No. 15), which was granted on

24 November 20, 2017, (Doc. No. 16). On January 5, 2018, the two motions to dismiss were

25 filed. (Doc. Nos. 23, 24.) On September 5, 2018, the Court granted the City Defendants’

26 motion to dismiss, granted in part and denied in part officer Defendants’ motion to dismiss

27 and granted Plaintiff leave to amend. (Doc. No. 44.) On September 19, 2018, Plaintiff filed

28 his third amended complaint (“TAC”). (Doc. No. 46.) On October 30, 2018, the seven

1 motions to dismiss were filed. (Doc. Nos. 50, 51, 52, 53, 55, 56.)

2 II. LEGAL STANDARD

3 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings

4 and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state

5 a claim upon which relief may be granted. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.

6 2001). The court may dismiss a complaint as a matter of law for: “(1) lack of a cognizable

7 legal theory or (2) insufficient facts under a cognizable legal claim.” SmileCare Dental

8 Grp. v. Delta Dental Plan of Cal., Inc., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted).

9 However, a complaint survives a motion to dismiss if it contains “enough facts to state a

10 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

11 (2007).

12 Notwithstanding this deference, the reviewing court need not accept legal

13 conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for

14 the court to assume “the [plaintiff] can prove facts that [he or she] has not alleged . . . .”

15 Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S.

16 519, 526 (1983). On the other hand, “[w]hen there are well-pleaded factual allegations, a

17 court should assume their veracity and then determine whether they plausibly give rise to

18 an entitlement to relief.” Iqbal, 556 U.S. at 679. The court only reviews the contents of the

19 complaint, accepting all factual allegations as true, and drawing all reasonable inferences

20 in favor of the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).

21 III. DISCUSSION

22 The Court will first address Defendants’ request for judicial notice. The Court will

23 then address each motion to dismiss in turn.

24 A. Defendants’ Request for Judicial Notice

25 Federal Rule of Evidence 201 states that a “court may judicially notice a fact that is

26 not subject to reasonable dispute because it: (1) is generally known within the trial court’s

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

28 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).

1 Defendants City of San Diego and Defendant Zimmerman’s motion to dismiss

2 contained a request for judicial notice of thirteen exhibits: (1) People of the State of

3 California v. Chosen Few, M.C., et al. (“Chosen Few Case”); (2) “Judgment After Default

4 Against 9 Defendants” filed in the Chosen Few Case; (3) the declaration of Jenal filed in

5 the Chosen Few Case; (4) the warrant and affidavit in support of Victoria/Plaintiff; (5) the

6 police report at issue in this matter; (6) Police Magazine article; (7) California Highway

7 Patrol Information Bulletin; (8) Title 13 California Code of Regulations section 1036(d)(1);

8 (9) Plaintiff’s Second Amended Complaint; (10) San Diego Population of 3.3 million

9 people; (11) San Diego Police Street Gang Unit Mission; (12) Commission on Gang

10 Prevention and Intervention purpose statement; and (13) 2015 to 2020 Commission on

11 Gang Prevention and Intervention strategic action plan. (See generally Doc. No. 50-2.)

12 Plaintiff asserts no objections to Defendants’ request for judicial notice. (Doc. No. 61 at

13 10–11.)

14 As to Exhibits One through Three, as they are public records and documents from

15 the state court, judicial notice is appropriate. See Gerritsen v. Warner Bros. Entm’t Inc.,

16 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015) (“It is well established that a court can take

17 judicial notice of its own files and records under Rule 201 of the Federal Rules of

18 Evidence.”); see also Molus v. Swan, No. 05-CV-452-MMA (WVc), 2009 WL 160937, at

19 *2 (S.D. Cal. Jan. 22, 2009) (“Courts also may take judicial notice of their own records[.]”).

20 However, the Court may not take judicial notice of findings of facts from another case. See

21 Walker v. Woodford, 454 F. Supp. 2d 1007, 1022 (S.D. Cal. Sept. 12, 2006). Accordingly,

22 the Court GRANTS Defendants’ request for judicial notice of Exhibits One through Three

23 for this limited purpose.

24 As to the arrest warrant, the Court will only take judicial notice of the reasonably

25 undisputed facts such as the existence of the warrant, its filing date, and the date of the stop

26 and arrest at issue, among other things. Thus, for this limited purpose, the Court GRANTS

27 Defendants’ request for judicial notice of Exhibit Four. See Bunkley v. Verber, No. 17-CV-

28 05797-WHO, 2018 WL 1242168, at *2 (N.D. Cal. Mar. 9, 2018) (explaining that the court

1 could take judicial notice of the arrest warrant as it was not subject to reasonable dispute);

2 see also Ferguson v. United States, No. 15-CV-1253, 2016 WL 4793180, at *3 (S.D. Cal.

3 Sept. 14, 2016) (taking judicial notice of an arrest warrant because it was a “matter[] of

4 public record, and the parties [did] not dispute [its] authenticity.”).

5 In regard to the police report, despite the fact that some records of a state agency

6 may be proper subjects of judicial notice, a district court “may not take judicial notice of

7 documents filed with an administrative agency to prove the truth of the contents of the

8 documents.” Zuccaro v. Martinez Unified School Dist., No. 16-CV-2709-EDL, 2016 WL

9 10807692, at *5 (N.D. Cal. Sept. 27, 2016); see also Knighten v. City of Anderson, No. 15-

10 CV-1751-TLN-CMK, 2016 WL 1268114, at *5 (E.D. Cal. Mar. 31, 2016) (refusing to take

11 judicial notice of police reports and facts contained in the report because they were subject

12 to reasonable dispute between the parties). Thus, the Court only GRANTS limited judicial

13 notice of Exhibit Five.

14 Exhibits Six, Seven, Eight, Eleven, Twelve, and Thirteen are all incorporated by

15 reference in the TAC, which the TAC necessarily relies on, and a document upon which

16 the TAC necessarily concerns. Accordingly, the Court may take judicial notice of these

17 documents. See U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Coto Settlement v.

18 Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). Thus, the Court GRANTS judicial notice

19 of Exhibits Six, Seven, Eight, Eleven, Twelve, and Thirteen.

20 Exhibit Nine is simply a copy of Plaintiff’s Second Amended Complaint, and thus

21 is appropriate for judicial notice. See Gerritsen, 112 F. Supp. 3d 1011, 1034 (C.D. Cal.

22 2015) (“It is well established that a court can take judicial notice of its own files and records

23 under Rule 201 of the Federal Rules of Evidence.”). Accordingly, the Court GRANTS

24 judicial notice of Exhibit Nine.

25 Exhibit Ten is simply that the population of San Diego is 3.3 million people, and

26 thus is appropriate for judicial notice as it is public knowledge. Fed. R. Evid. 201(b); see

27 Reyn’s v. Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006).

28 Accordingly, the Court GRANTS judicial notice of Exhibit Ten.

1 In sum, the Court GRANTS the City Defendants’ request for judicial notice of these

2 thirteen documents. (Doc. No. 50-2.)

3 B. Defendants City of San Diego and Shelley Zimmerman’s Motion to Dismiss

4 City Defendants assert Plaintiff’s allegations are nothing more than legal

5 conclusions and should be dismissed under Rule 8. (See generally Doc. No. 50-1.) Worth

6 noting is that Plaintiff has agreed not to request that Chief Zimmerman remain in this case

7 in her official capacity. (Doc. No. 61 at 18.) Accordingly, the Court will not address any

8 claims against Chief Zimmerman in her official capacity and those claims are dismissed.

9 i. First Through Third Causes of Action Against Zimmerman in her Individual

10 Capacity

11 Plaintiff’s first through third causes of action allege violations of Plaintiff’s Fourth

12 Amendment right protecting against unreasonable search and seizure. (See generally Doc.

13 No. 46.)

14 42 U.S.C. § 1983 “provides a cause of action for the ‘deprivation of any rights,

15 privileges, or immunities secured by the Constitution and laws’ of the United States.”

16 Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

17 Section 1983 is not itself a source of substantive rights, but merely provides a method for

18 vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393–94

19 (1989). Specifically, Section 1983 provides a cause of action for the violation of

20 constitutional or other federal rights by persons acting under color of state law. Nurre v.

21 Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009).

22 For supervisory liability for deliberate indifference, a plaintiff has been able to hold

23 supervisors individually liable under § 1983 suits when “culpable action, or inaction, is

24 directly attributed to them.” Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011). In Larez

25 v. City of Los Angeles, 946 F.2d 630 (9th Cir. 1991), the Ninth Circuit explained that to be

26 held liable, the supervisor need not be “directly and personally involved in the same way

27 as are the individual officers who are on the scene inflicting constitutional injury.” Id. at

28 645. Rather, the supervisor’s participation could include his or her “own culpable action or

1 inaction in the training, supervision, or control of his subordinates,” “his acquiescence in

2 the constitutional deprivations of which the complaint is made,” or “conduct that showed

3 a reckless or callous indifference to the rights of others.” Id. at 646 (internal citations,

4 quotation marks, and alterations omitted).

5 Thus, a defendant may be held liable as a supervisor under § 1983 “if there exists

6 either (1) his or her personal involvement in the constitutional deprivation, or (2) a

7 sufficient causal connection between the supervisor’s wrongful conduct and the violation.”

8 Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). “[A] plaintiff must show the supervisor

9 breached a duty to plaintiff which was the proximate cause of the injury. The law clearly

10 allows actions against supervisors under section 1983 as long as a sufficient causal

11 connection is present and the plaintiff was deprived under color of law of a federal secured

12 right.” Redman v. Cty. of San Diego, 942 F.2d 1435, 1447 (9th Cir. 1991). “The requisite

13 causal connection can be established . . . by setting in motion a series of acts by others . . .

14 or by knowingly refus[ing] to terminate a series of acts by others, which [the supervisor]

15 knew or reasonably should have known would cause others to inflict a constitutional

16 injury[.]” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

17 First, Plaintiff alleges Defendant Zimmerman knew of the violations of

18 constitutional rights and failed to act to prevent them. Second, Plaintiff alleges Defendant

19 Zimmerman promulgated or implemented a policy violating constitutional rights of

20 “motorcycle club” riders, and this policy was the moving force behind the violations. Here,

21 Plaintiff alleges there have been twenty complaints in a four-year period complaining of

22 suspicion-less stops. (Doc. No. 46 ¶ 39.) However, Plaintiff does not allege these

23 complaints were all made by “motorcycle club” riders. Further, twenty incidents over a

24 four-year period in a city of 3,000,000 people does not establish a policy based on a pattern.

25 See Rizzo v. Goode, 423 U.S. 362, 371 (1976). Plaintiff has simply failed to allege any

26 specific and non-conclusory allegations that Defendant Zimmerman personally

27 participated in Plaintiff’s alleged constitutional violation, implemented or promogulated

28

1 an unconstitutional policy, had knowledge of an unconstitutional policy, or failed to protect

2 Plaintiff.

3 ii. Ninth Cause of Action Against Defendant Zimmerman in her Individual

4 Capacity

5 Plaintiff alleges a claim of Intentional Infliction of Emotional Distress (“IIED”)

6 against Defendant Zimmerman in her own capacity. A claim for IIED requires a prima

7 facie showing of “(1) extreme and outrageous conduct by the defendant with the intention

8 of causing, or reckless disregard of the probability of causing, emotion distress; (2) the

9 plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate

10 causation of the emotional distress by defendant’s outrageous conduct.” Sabow v. United

11 States, 93 F.3d 1445, 1454 (9th Cir. 1996). Here, Plaintiff’s claim again fails to allege

12 sufficient facts to establish Defendant Zimmerman’s individual liability for a claim of

13 IIED. Defendant Zimmerman was not at the scene of the traffic stop nor did she implement

14 a policy that caused Plaintiff’s IIED.

15 Accordingly, Defendant Zimmerman in both her individual and official capacity is

16 dismissed.

17 iii. The First Through Fifth Causes of Action Against the City

18 “A municipality can be found liable under 42 U.S.C. § 1983 only where the

19 municipality itself causes the constitutional violation at issue; respondeat superior or

20 vicarious liability will not attach under section 1983.” Buckheit v. Dennis, 713 F. Supp. 2d

21 910, 920 (N.D. Cal. 2010) (citing Monell v. New York Dep’t of Social Servs., 436 U.S. 658,

22 694–95 (1978)). Plaintiff must then allege that: (1) he was deprived of his constitutional

23 rights by the City of San Diego; (2) that the City of San Diego had customs or policies

24 “which amounted to deliberate indifference” to his constitutional rights; and (3) that these

25 policies were the “moving force behind the constitutional violations.” Buckheit, 713 F.

26 Supp. 2d at 920 (citation omitted).

27 Plaintiff first asserts that Defendant Zimmerman had a formal or de facto policy to

28 harass and suppress motorcycle clubs it considered to be gangs in the City of San Diego.

1 (Doc. No. 46 ¶ 10.) Plaintiff claims that a policy exists since twenty complaints were filed

2 in the period of four years claiming suspicion-less stops. As explained above, this does not

3 establish a pattern or policy.

4 During the hearing on this matter, Plaintiff claimed that Exhibit Eleven to

5 Defendants’ motion established a written policy. Exhibit Eleven is the mission statement

6 of the Street Gang Unit as published on the City of San Diego’s website. In pertinent part

7 the statement is as follows:

8 The collective mission of the Street Gang Unit is to reduce gang

related crimes and active gang membership in the City of San

9

Diego. This is accomplished through vigorous prosecution of

10 gang members involved in criminal activity by use of covert

surveillance and special operations, proactive field contacts and

11

arrests of gang members. These strategies reduce gang related

12 criminal activity in our communities and enhances the feeling of

safer neighborhoods for the residents of San Diego.

13

14 (Doc. No. 50-1, Ex. 11.) This statement simply does not plausibly establish a written policy

15 to harass and suppress motorcycle clubs. Plaintiff asserts that the pleading level for “a claim

16 of municipal liability under § 1983 is sufficient to withstand a motion to dismiss even if

17 the claim is based on nothing more than a bare allegation that the individual officers’

18 conduct conformed to an official policy or practice.” (Doc. No. 61 at 15 (quoting Butler v.

19 Los Angeles Cty., 617 F. Supp. 2d 994, 1000 (C.D. Cal. 2008)).) However, Plaintiff has

20 failed to even plausibly plead the first step, which is that a policy to harass and suppress

21 motorcycle clubs even exists. Plaintiff has simply failed to allege sufficient factual claims

22 to establish the plausible existence of a de facto policy, practice, or custom, or to establish

23 a policy based on the pattern of exhibited contacts and complaints. Accordingly, Plaintiff

24 simply has failed to allege a § 1983 claim for municipal liability.

25 Plaintiff next asserts a ratification theory of supervisorial liability. To establish

26 municipal liability under a ratification theory, a plaintiff must allege facts that support the

27 finding that the municipality had knowledge of the alleged constitutional violations. See

28 Garrison v. Burke, 165 F.3d 565, 572, n.6 (7th Cir. 1999). However, Plaintiff’s only

1 allegation that supports this theory is “this policy is approved, supported, ratified and

2 overseen at the highest level of the police force.” (Doc. No. 46 ¶ 38.) This conclusory

3 allegation is simply not enough to support a ratification theory of supervisorial liability.

4 Plaintiff then alleges a theory of liability based upon Defendants’ failure to train its

5 subordinates. To establish this theory, Plaintiff must allege facts supporting that (1)

6 Defendants have an inadequate training program, (2) there was deliberate indifference on

7 the part of Defendants inadequately training its law enforcement officers, and (3) that the

8 inadequate training “actually caused” a deprivation of Plaintiff’s constitutional rights. See

9 Merritt v. Cnty. of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989). Plaintiff asserts that the

10 failure to train allegations are supported by the policy itself. (Doc. No. 61 at 16.) However,

11 as the Court has concluded, Plaintiff has failed to allege any such policy. Accordingly,

12 Plaintiff has failed to establish a theory of liability based upon Defendants’ failure to train

13 its subordinates.

14 Accordingly, the City is dismissed.

15 C. Defendant David Dunhoff’s Motion to Dismiss

16 Defendant Dunhoff is sued in both his individual capacity and official capacity

17 arising from the event of Plaintiff’s traffic stop.

18 i. First Through Third Causes of Action Against Defendant Dunhoff in his

19 Individual Capacity

20 42 U.S.C. § 1983 states:

21 Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . . , subjects, or causes

22

to be subjected, any citizen of the United States or other person

23 within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws,

24

shall be liable to the party injured in an action at law, suit in

25 equity, or other proper proceeding for redress . . . .

26

Thus, to establish § 1983 liability, a plaintiff must show both (1) the deprivation of a right

27

secured by the Constitution and laws of the United States, and (2) that the deprivation was

28

1 caused by a person acting under color of state law. Chudacoff v. Univ. Med. Ctr. of S. Nev.,

2 649 F.3d 1143, 1149 (9th Cir. 2011). A person deprives another of a right “if he does an

3 affirmative act, participates in another’s affirmative acts, or omits to perform an act which

4 he is legally required to do so that it causes the deprivation of which complaint is made.”

5 Johnson, 588 F.2d at 743. “The inquiry into causation must be individualized and focus on

6 the duties and responsibilities of each individual defendant whose acts or omissions are

7 alleged to have caused Plaintiff’s constitutional deprivation.” Leer v. Murphy, 844 F.2d

8 628, 633 (9th Cir. 1988) (citing Rizzo, 423 U.S. at 370–ؘ 71).

9 As to Plaintiff’s first cause of action, Plaintiff has not pled any facts expressing that

10 Defendant Dunhoff personally participated in Plaintiff’s illegal detention. Further, Plaintiff

11 does not dispute this fact in his opposition, but rather focuses on the arrest and search of

12 Plaintiff’s phone in relation to Defendant Dunhoff. Because Defendant Dunhoff did not

13 personally participate in Plaintiff’s detention and Plaintiff alleges no facts that he caused

14 Plaintiff to be detained, the first cause of action is dismissed as to Defendant Dunhoff.

15 Plaintiff’s second cause of action revolves around the false arrest of Plaintiff. The

16 absence of probable cause is a necessary element of a § 1983 false arrest claim. See

17 Yousefian v. City of Glendale, 779 F.3d 1010, 1014 (9th Cir. 2015). “[P]robable cause

18 exists when under the totality of circumstances known to the arresting officers, a prudent

19 person would have concluded that there was a fair probability that [the Plaintiff] had

20 committed a crime.” Grant v. City of Long Beach, 315 F.3d 1081, 1085 (9th Cir. 2003)

21 (citing United States v. Smith, 970 F.2d 789, 792 (9th Cir. 1986)). “When there has been

22 communications among [officers], probable cause can rest upon the investigating [officers]

23 ‘collective knowledge.’” United States v. Del Vizo, 918 F.2d 821, 826 (9th Cir. 1990).

24 Here, Plaintiff was arrested for having metal knuckles and conspiracy to commit a

25 felony for the benefit of a street gang in violation of California Penal Codes §§ 21810 and

26 186.22(b)(1). Under Cal. Penal Code § 16920 “metal knuckles” are defined as:

27 any device or instrument made wholly or partially of metal that

is worn for purposes of offense or defense in or on the hand and

28

1 that either protects the wearer’s hand while striking a blow or

increases the force of impact from the blow or injury to the

2

individual receiving the blow. The metal contained in the device

3 may help support the hand or fist, provide shield to protect it, or

consist of projections or studs which would contact the

4

individual receiving a blow.

5

Defendant Dunhoff argues that Plaintiff has not alleged factual allegations

6

supporting Defendant Dunhoff’s participation in the false arrest, however, Plaintiff has

7

alleged that Defendant Dunhoff was at the scene and that all the officers participated

8

together in deciding what charges to assert. See Del Vizo, 918 F.2d at 826. Accordingly,

9

Plaintiff has alleged sufficient allegations to show Defendant Dunhoff’s participation in

10

the false arrest.

11

Defendant Dunhoff argues that Plaintiff’s claim also fails as it is insufficient as a

12

matter of law. However, as pled, Plaintiff alleges that his rings were mere jewelry. Similar

13

rings to the ones he was wearing are sold in several stores. Furthermore, being a member

14

of a gang is not a crime. People v. Rodriguez, 55 Cal. 4th 1125, 1147 (2012). Accordingly,

15

Plaintiff has alleged factual allegations alleging that there was no probable cause to arrest

16

him.

17

Plaintiff’s third cause of action alleges an illegal search. “[I]f the search and seizure

18

without a warrant are made upon probable cause, that is, upon a belief, reasonably arising

19

out of circumstances known to the seizing officer, that an automobile or other vehicle

20

contains that which by law is subject to seizure and destruction, the search and seizure are

21

valid.” Carroll v. United States, 267 U.S. 132, 149 (1925); see also United States v. Hartz,

22

458 F.3d 1011, 1017 (9th Cir. 2006). Here, Plaintiff has alleged sufficient factual

23

allegations to show that the officers did not have sufficient probable cause and reasonable

24

suspicion to pull Plaintiff over, search his motorcycle for weapons and arrest him.

25

Defendant Dunhoff argues that Plaintiff has failed to allege his personal participation in

26

the search. However, Plaintiff specifically alleges that Defendant Dunhoff illegally

27

28

1 searched his phone on the drive to the police station. (Doc. No. 46 ¶ 24.) Accordingly,

2 Plaintiff has alleged a claim against Defendant Dunhoff for the third cause of action.

3 ii. Fourth Cause of Action Against Defendant Dunhoff in his Individual Capacity

4 Plaintiff’s fourth cause of action against Defendant Dunhoff is for deliberate

5 indifference of Plaintiff’s right to be free from arbitrary detainment, traffic stops, search

6 and arrest without probable cause or reasonable suspicion. “Deliberate indifference is a

7 stringent standard of fault, requiring proof that a municipal actor disregarded a known or

8 obvious consequence of his action.” Board of Cnty. Comm’rs of Bryan Cnty., Okl. v.

9 Brown, 520 U.S. 397, 410 (1997). Here, since Plaintiff has pled sufficient facts that

10 Defendant Dunhoff participated in his illegal arrest and search of his phone, Plaintiff has

11 alleged sufficient factual allegations for the basis of a deliberate indifference claim for his

12 right to be free from arbitrary detainment, traffic stops, search and arrest without probable

13 cause or reasonable suspicion.

14 iii. Fifth Cause of Action Against Defendant Dunhoff in his Individual Capacity

15 Plaintiff’s fifth cause of action against Defendant Dunhoff is for deliberate

16 indifference under a failure to train legal theory. A municipality may be held liable under

17 a theory of omission for failure to adequately train. See Cloutheir v. Cnty. of Contra Cost,

18 591 F.3d 1232, 1249 (9th Cir. 2010), overruled on other grounds by, Castro v. Cnty. of Los

19 Angeles, 833 F.3d 1060 (9th Cir. 2016). Here, Plaintiff has pled this action against

20 Defendants Zimmerman and the City of San Diego. Defendant Dunhoff is an agent of the

21 City and the City would be the municipality for which liability would attach. Plaintiff has

22 not alleged that Defendant Dunhoff is the supervisor who would be in charge of training.

23 The suit against Defendant Dunhoff in his individual capacity is redundant and improperly

24 pled. Further, the Court has already discussed above that Plaintiff has failed to allege

25 sufficient factual allegations to state a claim for deliberate indifference on the basis of

26 failure to train against the City. Accordingly, Plaintiff’s fifth cause of action against

27 Defendant Dunhoff is dismissed.

28 / / /

1 iv. Sixth Cause of Action Against Defendant Dunhoff in his Individual Capacity

2 Plaintiff’s sixth cause of action against Defendant Dunhoff is for violation of

3 California Constitution Art. 1 Section 13. As explained above, the Court has held that

4 Plaintiff has not sufficiently pled a policy that officers conduct suspicion-less stops to

5 harass motorcycle riders. The policy would be the basis for which Plaintiff states there is

6 violation of Article 1 of Section 13 of the California Constitution. Accordingly, this cause

7 of action is dismissed.

8 v. Seventh and Eighth Causes of Action Against Defendant Dunhoff in his

9 Individual Capacity

10 Plaintiff’s seventh and eighth causes of action allege violations of California’s Bane

11 Act. The Bane Act, California Civil Code § 52.1, provides for a claim against anyone who:

12 “interferes by threats, intimidation, or coercion, or attempts to interfere by threats,

13 intimidation, or coercion, with the exercise or enjoyment by any individual or individuals

14 of rights secured by the Constitution or laws of the United States, or of the rights secured

15 by the Constitution or laws of this state …” The Bane Act does not require that a “threat,

16 intimidation or coercion” to be “independent” from the threats, intimidation, or coercion

17 inherent in the underlying constitutional violation. See Cornell v. City & Cnty. of San

18 Francisco, 17 Cal. App. 5th 766, 800 (2017); see also Craig v. Cty. of Santa Clara, No.

19 17-CV-02115-LHK, 2018 WL 3777363, at *19 (N.D. Cal. Aug. 9, 2018). Here, Plaintiff

20 has sufficiently alleged that Defendant Dunhoff stated he would give Plaintiff a “second

21 chance” and that if he unlocked the phone, Defendant Dunhoff would call someone to have

22 the motorcycle picked up rather than impounded. (Doc. No. 46 ¶ 24.) Accordingly, Plaintiff

23 has sufficiently plead the seventh and eighth causes of action against Defendant Dunhoff.

24 vi. Ninth Cause of Action Against Defendant Dunhoff in his Individual Capacity

25 Plaintiff’s ninth cause of action against Defendant Dunhoff is intentional infliction

26 of emotional distress (“IIED”). To establish a claim for IIED, a plaintiff must show: (1)

27 extreme and outrageous conduct by the defendant with the intention of causing, or reckless

28 disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffers severe

1 or extreme emotional distress; and (3) actual and proximate causation of the emotional

2 distress by the defendant’s outrageous conduct. Jaramillo v. City of San Mateo, 76 F. Supp.

3 3d 905, 925–26 (N.D. Cal. 2014)(citing Christensen v. Super Ct., 54 Cal. 3d 868, 903

4 (1991)). For the conduct to be considered outrageous, it “must be so extreme as to exceed

5 all bounds of that usually tolerated in a civilized community.” Cervantez v. J.C. Penny Co.,

6 24 Cal. 3d 579, 593 (1979), overturned on other grounds by legislative action, Cal. Penal

7 Code § 243.

8 Here, Plaintiff has failed to allege any conduct on behalf of Defendant Dunhoff that

9 is so extreme to exceed all bounds of that which is usually tolerated in a traffic stop.

10 Plaintiff alleges in a conclusory fashion that he suffered mental and emotional distress as

11 result of the City’s policy and by his arrest, booking, processing and lock-up. This is simply

12 insufficient. See Landucci v. State Farm Ins. Co., 65 F. Supp. 3d 694, 712 (N.D. Cal. 2014)

13 (granting motion to dismiss because Plaintiff’s IIED claim conclusory alleged that

14 Defendants “caused her mental anguish, anxiety, and distress” and she “felt extremely

15 emotionally distressed and pained, fearing for her job and livelihood.”) Accordingly,

16 Plaintiff’s ninth cause of action is dismissed.

17 D. Defendant Justin Montoya’s Motion to Dismiss

18 Defendant Montoya is sued in both his individual capacity and official capacity

19 arising from the event of Plaintiff’s traffic stop.

20 i. First Through Third Causes of Action Against Defendant Montoya in his

21 Individual Capacity

22 As to Plaintiff’s first cause of action, Plaintiff has not pled any facts expressing that

23 Defendant Montoya personally participated in Plaintiff’s illegal detention. Further,

24 Plaintiff does not dispute this fact in his opposition, but rather focuses on the arrest and

25 search of Plaintiff’s saddlebags in relation to Defendant Montoya. Because Defendant

26 Montoya did not personally participate in Plaintiff’s detention and Plaintiff alleges no facts

27 that he caused Plaintiff to be detained, the first cause of action is dismissed as to Defendant

28 Montoya.

1 Defendant Montoya argues that Plaintiff has not alleged factual allegations

2 supporting Defendant Montoya’s participation in the false arrest, however, Plaintiff has

3 alleged that Defendant Montoya was at the scene and that all the officers participated

4 together in deciding on what charges to assert. See Del Vizo, 918 F.2d at 826. Accordingly,

5 Plaintiff has alleged sufficient allegations to show Defendant Montoya’s participation in

6 the false arrest and that there was a lack of probable cause for the arrest.

7 Plaintiff has alleged sufficient factual allegations to show that the officers did not

8 have sufficient probable cause and reasonable suspicion to pull Plaintiff over, search his

9 motorcycle for weapons and arrest him. Defendant Montoya argues that Plaintiff has failed

10 to allege his personal participation in the search. The Court agrees that Defendant Montoya

11 did not actively participate in the search of Plaintiff’s saddlebags or phone. Accordingly,

12 Plaintiff has failed to allege a claim against Defendant Montoya for the third cause of

13 action.

14 ii. Fourth Cause of Action Against Defendant Montoya in his Individual

15 Capacity

16 Plaintiff’s fourth cause of action against Defendant Montoya is for deliberate

17 indifference of Plaintiff’s right to be free from arbitrary detainment, traffic stops, search

18 and arrest without probable cause or reasonable suspicion. Here, since Plaintiff has pled

19 sufficient facts that Defendant Montoya participated in his illegal arrest, Plaintiff has

20 alleged sufficient factual allegations for the basis of a deliberate indifference claim for his

21 right to be free from arbitrary detainment, traffic stops, search and arrest without probable

22 cause or reasonable suspicion.

23 iii. Fifth Cause of Action Against Defendant Montoya in his Individual Capacity

24 Plaintiff’s fifth cause of action against Defendant Montoya is for deliberate

25 indifference under a failure to train legal theory. Here, Plaintiff has pled this action against

26 Defendants Zimmerman and the City of San Diego. Defendant Montoya is an agent of the

27 City and the City would be the municipality for which liability would attach. Plaintiff has

28 not alleged that Defendant Montoya is the supervisor that would be in charge of training.

1 The suit against Defendant Montoya in his individual capacity is redundant and improperly

2 pled. Further, the Court has already discussed above that Plaintiff has failed to allege

3 sufficient factual allegations to state a claim for deliberate indifference on the basis of

4 failure to train against the City. Accordingly, Plaintiff’s fifth cause of action against

5 Defendant Montoya is dismissed.

6 iv. Sixth Cause of Action Against Defendant Montoya in his Individual Capacity

7 Plaintiff’s sixth cause of action against Defendant Montoya is for violation of

8 California Constitution Art. 1 Section 13. As explained above, the Court has held that

9 Plaintiff has not sufficiently pled a policy that officers conduct suspicion-less stops to

10 harass motorcycle riders. The policy would be the basis for which Plaintiff states there is

11 violation of Article 1 of Section 13 of the California Constitution. Accordingly, this cause

12 of action is dismissed.

13 v. Seventh and Eighth Causes of Action Against Defendant Montoya in his

14 Individual Capacity

15 Here, Plaintiff has sufficiently alleged that Defendant Montoya stated he could

16 search Plaintiff’s saddlebags “the easy way or the hard way.” (Doc. No. 46 ¶ 22.) Further,

17 Defendant Montoya demanded that Plaintiff provide a password for his phone and if

18 Plaintiff failed to Defendant Montoya would have his motorcycle impounded. (Id. ¶ 24.)

19 Accordingly, Plaintiff has sufficiently plead the seventh and eighth causes of action against

20 Defendant Montoya.

21 vi. Ninth Cause of Action Against Defendant Montoya in his Individual Capacity

22 Here, Plaintiff has failed to allege any conduct on behalf of Defendant Montoya that

23 is so extreme to exceed all bounds of that which is usually tolerated in a traffic stop.

24 Plaintiff alleges in a conclusory fashion that he suffered mental and emotional distress as

25 result of the City’s policy and by his arrest, booking, processing and lock-up. This is simply

26 insufficient. See Landucci, 65 F. Supp. 3d at 712 (granting motion to dismiss because

27 Plaintiff’s IIED claim conclusory alleged that Defendants “caused her mental anguish,

28

1 anxiety, and distress” and she “felt extremely emotionally distressed and pained, fearing

2 for her job and livelihood.”) Accordingly, Plaintiff’s ninth cause of action is dismissed.

3 E. Defendant J. Johnson’s Motion to Dismiss

4 Defendant Johnson is sued in both his individual capacity and official capacity

5 arising from the event of Plaintiff’s traffic stop.

6 i. First Through Third Causes of Action Against Defendant Johnson in his

7 Individual Capacity

8 Plaintiff’s first cause of action involves the illegal detention of Plaintiff against

9 Defendant Johnson. The Fourth Amendment requires that a detention be supported by facts

10 and inferences that demonstrate a reasonable suspicion that the person detained may be

11 involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 30 (1968). The Fourth Amendment

12 requires only reasonable suspicion in the context of investigative traffic stops. United

13 States v. Lopez–Soto, 205 F.3d 1101, 1104–05 (9th Cir.2000). To satisfy the Fourth

14 Amendment’s reasonableness requirement, an officer must have “specific, articulable facts

15 which, together with objective and reasonable inferences, form the basis for suspecting that

16 the particular person detained is engaged in criminal activity.” Id. (quoting United States

17 v. Michael R., 90 F.3d 340, 346 (9th Cir.1996)).

18 A traffic stop is reasonable at its inception if the detaining officer, at the very least,

19 reasonably suspects the driver has violated the law. An investigative stop is not subject to

20 strict time limitations as long as the officer is pursuing the investigation in a diligent and

21 reasonable manner. United States v. Sharpe, 470 U.S. 675, 686–87 (1985). The period of

22 detention may be permissibly extended if new grounds for suspicion of criminal activity

23 continue to unfold. United States v. Mayo, 394 F.3d 1271, 1275 (9th Cir. 2005).

24 Defendant Johnson attempts to argue that police officers have reasonable suspicion

25 to stop a vehicle for violation of vehicular licensing laws where the officer saw neither

26 license plates nor a temporary permit before he made the stop. See Brocato v. Perez, No.

27 17-CV-0053-RJC, 2017 WL 603304, at *4 (C.D. Cal. Oct. 4, 2017). While this may be

28 true, Plaintiff states that neither Defendant Johnson nor Defendant George noticed that

1 Plaintiff’s motorcycle did not have a license plate or registration tag displayed until after

2 the stop. A traffic stop must be reasonable at its inception. Plaintiff alleges that Defendant

3 George specifically stated that the stop was for loud pipes. (Doc. No. 46 ¶ 19.) Since the

4 Court must accept Plaintiff’s factual allegations as true at this point, the lack of license

5 plate and registration tag may not serve as the reasonable suspicion for the traffic stop.

6 Here, Plaintiff was stopped on the basis that his pipes were loud. Plaintiff asserts

7 that he told Defendants that the pipes were stock pipes, the exhaust pipes were installed at

8 the factory and comply with all California emissions and volume standards and

9 specifications. (Doc. No. 46 ¶ 20.) Further, Defendants did not make any attempt to

10 measure the decibel level of the pipes. (Id. ¶ 21.) In fact, Defendants did not mention the

11 loud pipes again after Defendant George’s comment to Plaintiff. Based on Plaintiff’s

12 pleadings, loud pipes may not serve as reasonable suspicion for the stop at this stage of the

13 litigation. Accordingly, Plaintiff has sufficiently alleged facts that there was no reasonable

14 suspicion for the traffic stop and thus, resulted in an illegal detention.

15 Defendant Johnson argues that Plaintiff has not alleged factual allegations

16 supporting Defendant Johnson’s participation in the false arrest, however, Plaintiff has

17 alleged that Defendant Johnson was at the scene and that all the officers participated

18 together in deciding on what charges to assert. See Del Vizo, 918 F.2d at 826. Accordingly,

19 Plaintiff has alleged sufficient allegations to show Defendant Johnson’s participation in the

20 false arrest and there was a lack of probable cause for the arrest.

21 Plaintiff’s third cause of action alleges an illegal search. Here, Plaintiff has alleged

22 sufficient factual allegations to show that the officers did not have sufficient probable cause

23 and reasonable suspicion to pull Plaintiff over, search his motorcycle for weapons and

24 arrest him. Defendant Johnson argues that Plaintiff has failed to allege his personal

25 participation in the search. However, Plaintiff specifically alleges that Defendant Johnson

26 illegally searched his saddlebags. (Doc. No. 46 ¶ 22.) Accordingly, Plaintiff has alleged a

27 claim against Defendant Johnson for the third cause of action.

28 / / /

1 ii. Fourth Cause of Action Against Defendant Johnson in his Individual Capacity

2 Plaintiff’s fourth cause of action against Defendant Johnson is for deliberate

3 indifference of Plaintiff’s right to be free from arbitrary detainment, traffic stops, search

4 and arrest without probable cause or reasonable suspicion. Here, since Plaintiff has pled

5 sufficient facts that Defendant Johnson participated in his illegal arrest, Plaintiff has alleged

6 sufficient factual allegations for the basis of a deliberate indifference claim for his right to

7 be free from arbitrary detainment, traffic stops, search and arrest without probable cause

8 or reasonable suspicion.

9 iii. Fifth Cause of Action Against Defendant Johnson in his Individual Capacity

10 Plaintiff’s fifth cause of action against Defendant Johnson is for deliberate

11 indifference under a failure to train legal theory. Here, Plaintiff has pled this action against

12 Defendants Zimmerman and the City of San Diego. Defendant Johnson is an agent of the

13 City and the City would be the municipality for which liability would attach. Plaintiff has

14 not alleged that Defendant Johnson is the supervisor that would be in charge of training.

15 The suit against Defendant Johnson in his individual capacity is redundant and improperly

16 pled. Further, the Court has already discussed above that Plaintiff has failed to allege

17 sufficient factual allegations to state a claim for deliberate indifference on the basis of

18 failure to train against the City. Accordingly, Plaintiff’s fifth cause of action against

19 Defendant Johnson is dismissed.

20 iv. Sixth Cause of Action Against Defendant Johnson in his Individual Capacity

21 Plaintiff’s sixth cause of action against Defendant Johnson is for violation of

22 California Constitution Art. 1 Section 13. As explained above, the Court has held that

23 Plaintiff has not sufficiently pled a policy that officers conduct suspicion-less stops to

24 harass motorcycle riders. The policy would be the basis for which Plaintiff states there is

25 violation of Article 1 of Section 13 of the California Constitution. Accordingly, this cause

26 of action is dismissed.

27 / / /

28 / / /

1 v. Ninth Cause of Action Against Defendant Johnson in his Individual Capacity

2 Here, Plaintiff has failed to allege any conduct on behalf of Defendant Johnson that

3 is so extreme to exceed all bounds of that is usually tolerated in a traffic stop. Plaintiff

4 alleges in a conclusory fashion that he suffered mental and emotional distress as result of

5 the City’s policy and by his arrest, booking, processing and lock-up. This is simply

6 insufficient. See Landucci, 65 F. Supp. 3d at 712 (granting motion to dismiss because

7 Plaintiff’s IIED claim conclusory alleged that Defendants “caused her mental anguish,

8 anxiety, and distress” and she “felt extremely emotionally distressed and pained, fearing

9 for her job and livelihood.”) Accordingly, Plaintiff’s ninth cause of action is dismissed.

10 F. Defendant Timothy Coyle’s Motion to Dismiss

11 Defendant Coyle is sued in both his individual capacity and official capacity arising

12 from the event of Plaintiff’s traffic stop.

13 i. First Through Third Causes of Action Against Defendant Coyle in his

14 Individual Capacity

15 As to Plaintiff’s first cause of action, Plaintiff has not pled any facts expressing that

16 Defendant Coyle personally participated in Plaintiff’s illegal detention. Further, Plaintiff

17 does not dispute this fact in his opposition, but rather focuses on the arrest and search of

18 Plaintiff’s saddlebags in relation to Defendant Coyle. Because Defendant Coyle did not

19 personally participate in Plaintiff’s detention and Plaintiff alleges no facts that he caused

20 Plaintiff to be detained, the first cause of action is dismissed as to Defendant Coyle.

21 Defendant Coyle argues that Plaintiff has not alleged factual allegations supporting

22 Coyle’s participation in the false arrest, however, Plaintiff has alleged that Defendant

23 Coyle was at the scene and that all the officers participated together in deciding on what

24 charges to assert. See Del Vizo, 918 F.2d at 826. Accordingly, Plaintiff has alleged

25 sufficient allegations to show Defendant Coyle’s participation in the false arrest and that

26 there was a lack of probable cause for the arrest.

27 Plaintiff’s third cause of action alleges an illegal search. Here, Plaintiff has alleged

28 sufficient factual allegations to show that the officers did not have sufficient probable cause

1 and reasonable suspicion to pull Plaintiff over, search his motorcycle for weapons and

2 arrest him. Defendant Coyle argues that Plaintiff has failed to allege his personal

3 participation in the search. However, Plaintiff specifically alleges that Defendant Coyle

4 illegally searched his saddlebags. (Doc. No. 46 ¶ 22.) Accordingly, Plaintiff has alleged a

5 claim against Defendant Coyle for the third cause of action.

6 ii. Fourth Cause of Action Against Defendant Coyle in his Individual Capacity

7 Plaintiff’s fourth cause of action against Defendant Coyle is for deliberate

8 indifference of Plaintiff’s right to be free from arbitrary detainment, traffic stops, search

9 and arrest without probable cause or reasonable suspicion. Here, since Plaintiff has pled

10 sufficient facts that Defendant Coyle participated in his illegal arrest, Plaintiff has alleged

11 sufficient factual allegations for the basis of a deliberate indifference claim for his right to

12 be free from arbitrary detainment, traffic stops, search and arrest without probable cause

13 or reasonable suspicion.

14 iii. Fifth Cause of Action Against Defendant Coyle in his Individual Capacity

15 Plaintiff’s fifth cause of action against Defendant Coyle is for deliberate indifference

16 under a failure to train legal theory. Here, Plaintiff has pled this action against Defendants

17 Zimmerman and the City of San Diego. Defendant Coyle is an agent of the City and the

18 City would be the municipality for which liability who would attach. Plaintiff has not

19 alleged that Defendant Coyle is the supervisor would be in charge of training. The suit

20 against Defendant Coyle in his individual capacity is redundant and improperly pled.

21 Further, the Court has already discussed above that Plaintiff has failed to allege sufficient

22 factual allegations to state a claim for deliberate indifference on the basis of failure to train

23 against the City. Accordingly, Plaintiff’s fifth cause of action against Defendant Coyle is

24 dismissed.

25 iv. Sixth Cause of Action Against Defendant Coyle in his Individual Capacity

26 Plaintiff’s sixth cause of action against Defendant Coyle is for violation of California

27 Constitution Art. 1 Section 13. As explained above, the Court has held that Plaintiff has

28 not sufficiently pled a policy that officers conduct suspicion-less stops to harass motorcycle

1 riders. The policy would be the basis for which Plaintiff states there is violation of Article

2 1 of Section 13 of the California Constitution. Accordingly, this cause of action is

3 dismissed.

4 v. Ninth Cause of Action Against Defendant Coyle in his Individual Capacity

5 Here, Plaintiff has failed to allege any conduct on behalf of Defendant Coyle that is

6 so extreme to exceed all bounds of that which is usually tolerated in a traffic stop. Plaintiff

7 alleges in a conclusory fashion that he suffered mental and emotional distress as result of

8 the City’s policy and by his arrest, booking, processing and lock-up. This is simply

9 insufficient. See Landucci, 65 F. Supp. 3d at 712 (granting motion to dismiss because

10 Plaintiff’s IIED claim conclusory alleged that Defendants “caused her mental anguish,

11 anxiety, and distress” and she “felt extremely emotionally distressed and pained, fearing

12 for her job and livelihood.”) Accordingly, Plaintiff’s ninth cause of action is dismissed.

13 G. Defendant Adam George’s Motion to Dismiss

14 Defendant George is sued in both his individual capacity and official capacity arising

15 from the event of Plaintiff’s traffic stop.

16 i. First Through Third Causes of Action Against Defendant George in his

17 Individual Capacity

18 Plaintiff’s first cause of action involves the illegal detention of Plaintiff against

19 Defendant George. Similar to Defendant Johnson, Defendant George attempts to argue that

20 police officers have reasonable suspicion to stop a vehicle for violation of vehicular

21 licensing laws where the officer saw neither license plates nor a temporary permit before

22 he made the stop. See Brocato, 2017 WL 603304, at *4. While this may be true, Plaintiff

23 states that neither Defendant Johnson nor Defendant George noticed that Plaintiff’s

24 motorcycle did not have a license plate or a registration tag displayed until after the stop.

25 A traffic stop must be reasonable at its inception. Plaintiff alleges that Defendant George

26 specifically stated that the stop was for loud pipes. (Doc. No. 46 ¶ 19.) Since the Court

27 must accept Plaintiff’s factual allegations as true at this point, the lack of license plate and

28 registration tag may not serve as the reasonable suspicion for the traffic stop.

1 Here, Plaintiff was stopped on the basis that his pipes were loud. Plaintiff asserts

2 that he told Defendants that the pipes were stock pipes, the exhaust pipes were installed at

3 the factory and comply with all California emissions and volume standards and

4 specifications. (Doc. No. 46 ¶ 20.) Further, Defendants did not make any attempt to

5 measure the decibel level of the pipes. (Id. ¶ 21.) In fact, Defendants did not mention the

6 loud pipes again after Defendant George’s comment to Plaintiff. Based on Plaintiff’s

7 pleadings, loud pipes may not serve as reasonable suspicion for the stop at this stage of the

8 litigation. Accordingly, Plaintiff has sufficiently alleged facts that there was no reasonable

9 suspicion for the traffic stop and thus, resulted in an illegal detention.

10 Defendant George argues that Plaintiff has not alleged factual allegations supporting

11 Defendant George’s participation in the false arrest, however, Plaintiff has alleged that

12 Defendant George was at the scene and that all the officers participated together in deciding

13 on what charges to assert. See Del Vizo, 918 F.2d at 826. Accordingly, Plaintiff has alleged

14 sufficient allegations to show Defendant George’s participation in the false arrest and that

15 there was a lack of probable cause for the arrest.

16 Plaintiff has alleged sufficient factual allegations to show that the officers did not

17 have sufficient probable cause and reasonable suspicion to pull Plaintiff over, search his

18 motorcycle for weapons and arrest him. Defendant George argues that Plaintiff has failed

19 to allege his personal participation in the search. The Court agrees that Defendant George

20 did not actively participate in any search of Plaintiff’s belongings. Accordingly, Plaintiff

21 has failed to allege a claim against Defendant George for the third cause of action.

22 ii. Fourth Cause of Action Against Defendant George in his Individual Capacity

23 Plaintiff’s fourth cause of action against Defendant George is for deliberate

24 indifference of Plaintiff’s right to be free from arbitrary detainment, traffic stops, search

25 and arrest without probable cause or reasonable suspicion. Here, since Plaintiff has pled

26 sufficient facts that Defendant George participated in his illegal arrest, Plaintiff has alleged

27 sufficient factual allegations for the basis of a deliberate indifference claim for his right to

28

1 be free from arbitrary detainment, traffic stops, search and arrest without probable cause

2 or reasonable suspicion.

3 iii. Fifth Cause of Action Against Defendant George in his Individual Capacity

4 Plaintiff’s fifth cause of action against Defendant George is for deliberate

5 indifference under a failure to train legal theory. Here, Plaintiff has pled this action against

6 Defendants Zimmerman and the City of San Diego. Defendant George is an agent of the

7 City and the City would be the municipality for which liability would attach. Plaintiff has

8 not alleged that Defendant George is the supervisor that would be in charge of training.

9 The suit against Defendant George in his individual capacity is redundant and improperly

10 pled. Further, the Court has already discussed above that Plaintiff has failed to allege

11 sufficient factual allegations to state a claim for deliberate indifference on the basis of

12 failure to train against the City. Accordingly, Plaintiff’s fifth cause of action against

13 Defendant George is dismissed.

14 iv. Sixth Cause of Action Against Defendant George in his Individual Capacity

15 Plaintiff’s sixth cause of action against Defendant George is for violation of

16 California Constitution Art. 1 Section 13. As explained above, the Court has held that

17 Plaintiff has not sufficiently pled a policy that officers conduct suspicion-less stops to

18 harass motorcycle riders. The policy would be the basis for which Plaintiff states there is

19 violation of Article 1 of Section 13 of the California Constitution. Accordingly, this cause

20 of action is dismissed.

21 v. Ninth Cause of Action Against Defendant George in his Individual Capacity

22 Here, Plaintiff has failed to allege any conduct on behalf of Defendant George that

23 is so extreme to exceed all bounds of that which is usually tolerated in a traffic stop.

24 Plaintiff alleges in a conclusory fashion that he suffered mental and emotional distress as

25 result of the City’s policy and by his arrest, booking, processing and lock-up. This is simply

26 insufficient. See Landucci, 65 F. Supp. 3d at 712 (granting motion to dismiss because

27 Plaintiff’s IIED claim conclusory alleged that Defendants “caused her mental anguish,

28

1 anxiety, and distress” and she “felt extremely emotionally distressed and pained, fearing

2 for her job and livelihood.”) Accordingly, Plaintiff’s ninth cause of action is dismissed.

3 H. Defendant David Wolff’s Motion to Dismiss

4 Based on Plaintiff’s TAC and Plaintiff’s counsel’s comments at the hearing on this

5 motion, Defendant Wolff was not present during the traffic stop or arrest. Plaintiff does

6 state that Defendant Wolff arrived at or near the point of the saddlebag search in his TAC.

7 (Doc. No. 46 ¶ 22.) However, Defendant Wolff is not mentioned again in regard to the

8 traffic stop incident. Later in the TAC, Plaintiff states Defendant Wolff was not present at

9 the arrest of Plaintiff and his affidavit for the warrant was based on events described to him

10 by Defendant Coyle. (Id. ¶ 41.) Plaintiff does not address this discrepancy in his opposition.

11 Further, Plaintiff’s counsel at the February 14, 2019 hearing on this instant motion stated

12 that Defendant Wolff’s role was obtaining the search warrant. Accordingly, the Court will

13 dismiss the first, second, fourth and ninth causes of action as to Defendant Wolff without

14 prejudice as it does not appear he was present during the traffic stop and arrest.

15 Plaintiff alleges that Defendant Wolff obtained a search warrant for Plaintiff’s phone

16 based on information received from Defendant Coyle. While, the TAC alleges that a

17 warrant was obtained based on a false affidavit, Plaintiff fails to allege that the warrant was

18 ever actually executed. The warrant was obtained after the stop and arrest. The only search

19 Plaintiff actually alleges is the search of his saddlebags during the stop and arrest and he

20 unlocks his phone while in the police car on the way to the station. Accordingly, if the

21 warrant was not executed, Defendant Wolff did not participate in an illegal search. Thus,

22 the Court will dismiss the third cause action as to Defendant Wolff.

23 Plaintiff’s fifth cause of action against Defendant Wolff is for deliberate indifference

24 under a failure to train legal theory. Here, Plaintiff has pled this action against Defendants

25 Zimmerman and the City. Defendant George is an agent of the City and the City would be

26 the municipality for which liability would attach. Plaintiff has not alleged that Defendant

27 Wolff is the supervisor that would be in charge of training. The suit against Defendant

28 Wolff in his individual capacity is redundant and improperly pled. Further, the Court has

1 already discussed above that Plaintiff has failed to allege sufficient factual allegations to

2 state a claim for deliberate indifference on the basis of failure to train. Accordingly,

3 Plaintiff’s fifth cause of action against Defendant Wolff is dismissed.

4 I. Officer Defendants in Their Official Capacity

5 Official-capacity suits “generally represent only another way of pleading an action

6 against an entity of which an officer is an agent.” Monell, 436 U.S. at 690 n.55. In Kentucky

7 v. Graham, the Supreme Court noted that plaintiffs in § 1983 actions “no longer . . . need

8 to bring official-capacity actions against local government officials, …[because] under

9 Monell, … local government units can be sued directly for damages and injunctive or

10 declaratory relief.” 473 U.S. 159, 167 n.14 (1985). “District courts in this circuit have

11 followed the above reasoning when deciding whether to dismiss claims against official

12 capacity officers when the local government entity is also a named defendant.” Mendez v.

13 Baca, 11-CV-4771-JHN-PJWx, 2011 WL 13147363, at *3 (C.D. Cal. Oct. 12, 2011).

14 Here, Plaintiff’s opposition does not address this contention that the claims against

15 the Defendant Officers and against the City are redundant. Accordingly, the Court finds

16 the causes of action in the Defendant Officers’ official-capacity redundant and dismisses

17 all claims against the Defendant Officers in their official-capacity.

18 IV. CONCLUSION

19 As explained in greater detail above, the Court GRANTS the City of San Diego and

20 Shelley Zimmerman’s motion to dismiss WITHOUT LEAVE TO AMEND, GRANTS

21 in part and DENIES in part David Dunhoff’s motion to dismiss WITHOUT LEAVE TO

22 AMEND, GRANTS in part and DENIES in part Justin Montoya’s motion to dismiss

23 WITHOUT LEAVE TO AMEND, GRANTS in part and DENIES in part J. Johnson’s

24 motion to dismiss WITHOUT LEAVE TO AMEND, GRANTS in part and DENIES in

25 part Timothy Coyle’s motion to dismiss WITHOUT LEAVE TO AMEND, GRANTS in

26 part and DENIES in part Adam George’s motion to dismiss WITHOUT LEAVE TO

27 AMEND, and GRANTS David Wolff’s motion to dismiss WITHOUT LEAVE TO

28 AMEND.

1 Further, the Court summarizes what causes of action remain against which

2 Defendants. The City of San Diego, Shelley Zimmerman, and David Wolff are dismissed

3 ||from this action. Against David Dunhoff, the second, third, fourth, seventh and eighth

4 ||causes of action remain. Against Justin Montoya, the second, fourth, seventh and eighth

5 causes of action remain. Against J. Johnson, the first, second, third, and fourth causes of

6 ||action remain. Against Timothy Coyle, the second, third, and fourth causes of action

7 ||remain. Against Adam George, the first, second, and fourth causes of action remain.

8

9 || IT IS SO ORDERED.

10 Dated: September 23, 2019 OQ Sez :

Hon, Anthony J.Battaglia

12 United States District Judge

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30