Krystal v. City of Carlsbad

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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ALAN MICHAEL KRYSTAL, Case No. 22-cv-1329-BAS-JLB

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Plaintiff, ORDER:

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v. 1. GRANTING DEFENDANTS’

13 MOTIONS TO DISMISS (ECF

CITY OF CARLSBAD, et al., Nos. 13, 14); AND

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Defendants. 2. GRANTING PLAINTIFF’S

15 MOTION TO AMEND (ECF No.

19)

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19 Before the Court are Defendants’ two Motions to Dismiss brought pursuant to

20 Federal Rule of Civil Procedure (“Rule”) 12(b)(6).1 (Mot., ECF No. 13; ECF No. 14.)

21 Plaintiff opposes (Opp., ECF No. 16), and Defendants reply (Reply, ECF No. 18). The

22 Court finds Defendants’ Motions suitable for determination on the papers submitted

23 without oral argument. CivLR 7.1(d)(i). Having considered the parties’ filings, the Court

24 GRANTS Defendants’ Motions.

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1 Also before the Court is Plaintiff’s Motion for Leave to Amend. (ECF No. 19.)

Defendants do not file opposition briefing. Having considered Plaintiff’s filing, the Court

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GRANTS Plaintiff’s Motion for Leave to Amend.

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4 I. BACKGROUND2

5 On September 14, 2017, Plaintiff was driving in Carlsbad, California. (Compl.

6 ¶¶ 33–34.) Due to a momentary distraction, Plaintiff drifted into the bicycle lane and

7 collided with a hand propelled tricycle. Plaintiff, unaware that he made contact with the

8 tricycle, swerved back into his lane as his tires screeched. The abrupt maneuver caused

9 Plaintiff’s car to travel from the far-right lane to the far-left lane. (Id. ¶ 35.) He activated

10 his hazard lights and continued driving. (Id. ¶¶ 34–35.) Plaintiff has a documented history

11 of Post-Traumatic Stress Disorder, causing him to experience “immediate and

12 overwhelming stress” after his perceived near miss with the tricycle. (Id. ¶¶ 35–36.) As a

13 result, he was “frozen behind the wheel” due to the stress and “could not safely change

14 lanes” due to his hazard lights.

15 Defendant Bowen, a police officer, pulled Plaintiff over. (Id. ¶ 38.) The Complaint

16 does not make clear which other Defendants assisted in the traffic stop, but it seems that

17 Defendant Bentley and Defendant DeLuca were also present. Defendant Bentley requested

18 to see Plaintiff’s cell phone and read aloud Plaintiff’s last text, revealing Plaintiff was “very

19 sick” earlier that morning. (Id. ¶ 45.) Plaintiff was arrested, and Defendant Deluca then

20 authored a “false and misleading” police report. (Id. ¶ 48.)

21 Plaintiff was charged with felony hit and run. Defendant Deluca was called to the

22 stand and gave “false testimony” regarding the accident at the preliminary hearing. (Id.

23 ¶ 60.) The presiding judge found there was probable cause to arrest Plaintiff. (Id. ¶ 77.)

24 The case was proceeding to trial in April 2019, until Plaintiff’s motion for military

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27 2 The facts are all taken from the Complaint. For the pending Motions to Dismiss, the Court accepts

all of Plaintiff’s factual allegations as true. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th

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1 diversion was granted. (Id. ¶ 57.) After Plaintiff completed his diversion program in

2 September 2020, the criminal case was dismissed. (Id. ¶¶ 57, 61.)

3 In February 2022, Plaintiff received access to Defendant DeLuca’s body camera

4 footage of the incident. (Id. ¶ 88.) After viewing the footage, Plaintiff petitioned the

5 Carlsbad Police Department to have his arrest records sealed and destroyed. (Id.)

6 On September 6, 2022, Plaintiff filed his Complaint for damages under 42 U.S.C. §

7 1983 (“Section 1983”). Defendants responded with the present Motions to Dismiss.

8 II. MOTIONS TO DISMISS

9 A. LEGAL STANDARD

10 A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the

11 claims asserted in the complaint. Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). “A

12 Rule 12(b)(6) dismissal may be based on either a ‘lack of cognizable legal theory’ or ‘the

13 absence of sufficient facts alleged under a cognizable legal theory.’” Johnson v. Riverside

14 Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008) (quoting Balistreri v. Pacifica

15 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)).

16 A complaint must plead sufficient factual allegations to “state a claim for relief that

17 is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). The court

18 must accept all factual allegations pleaded in the complaint as true and must construe them

19 and draw all reasonable inferences in favor of the nonmoving party. Cahill v. Liberty Mut.

20 Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). The court, however, need not accept

21 conclusory allegations as true. Rather, it must “examine whether conclusory allegations

22 follow from the description of facts as alleged by the plaintiff.” Holden v. Hagopian, 978

23 F.2d 1115, 1121 (9th Cir. 1992) (citations omitted). “A claim has facial plausibility when

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

25 that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

26 B. ANALYSIS

27 Defendants levy three arguments in their Motions. First, they argue Plaintiff’s claims

28 are time barred. Second, they argue Plaintiff fails to plausibly allege the substantive

1 elements of the causes of action. Third, they argue Defendants are entitled to qualified

2 immunity. The Court first addresses timeliness, then the elemental arguments. The Court

3 determines that dismissal is proper on those grounds and, therefore, does not reach the

4 qualified immunity issue.3

5 As a threshold matter, the Court distinguishes Plaintiff’s sixth cause of action from

6 his other causes of action. The Complaint alleges “Monell” as its sixth cause of action and

7 asserts liability on the municipal Defendant City of Carlsbad. Monell v. New York City

8 Department of Social Services, 436 U.S. 658 (1978), allows plaintiffs to sue local

9 municipalities for damages under Section 1983. It does not, however, stand alone as a cause

10 of action. See Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (“Monell does

11 not provide a separate cause of action for the failure by the government to train its

12 employees; it extends liability to a municipal organization where that organization’s failure

13 to train, or the policies or customs that it has sanctioned, led to an independent

14 constitutional violation.”). If the Court dismisses all other causes of action, then it must

15 also dismiss Plaintiff’s “Monell” claim. As a result, the Court considers the substance of

16 the allegations but does not analyze them as a separate cause of action.

17 1. Timeliness of Claims

18 Defendants aver all causes of action are time barred. A claim may be dismissed on

19 the ground that it is barred by the statute of limitations only when “the running of the statute

20 is apparent on the face of the complaint.” Von Saher v. Norton Simon Museum of Art at

21 Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (citation omitted). Whether Plaintiff’s claims

22 are time barred hinges on three issues: the relevant statute of limitations, the date of accrual,

23 and tolling. The Court analyzes each in turn.

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26 3 In his Opposition, Plaintiff makes several Requests for Judicial Notice. The requests provide

documentation to support several factual allegations in the Complaint. (ECF No. 16.) For the purposes of

27 the Motions to Dismiss, the Court takes all factual allegations in the Complaint as true. As a result, the

Court need not consider evidence to support those factual allegations. Accordingly, Plaintiff’s Requests

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1 a) Statute of Limitations

2 The parties agree on the relevant statute of limitations. “For actions under 42 U.S.C.

3 § 1983, courts apply the forum state’s statute of limitations for personal injury actions . . .

4 except to the extent any of these laws is inconsistent with federal law.” Jones v. Blanas,

5 393 F.3d 918, 927 (9th Cir. 2004). California’s statute of limitations for personal injury

6 claims is two years. Cal. Civ. Proc. Code § 335.1. Thus, Plaintiff’s claims are subject to a

7 two-year statute of limitations.

8 b) Accrual

9 Although state law determines the length of the statute of limitations, federal law

10 determines when the cause of action accrues—thereby starting the clock. See Wallace v.

11 Kato, 549 U.S. 384, 388 (2007). Under federal common law, accrual occurs when the

12 plaintiff has a “complete and present cause of action.” Id. (quoting Bay Area Laundry and

13 Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)). In

14 other words, the statute of limitations starts to run when “the plaintiff can file suit and

15 obtain relief.” Id. (quoting Bay Area Laundry, 522 U.S. at 201). Thus, the question is when

16 Plaintiff could have filed suit and obtained relief for each of his five causes of action.

17 Plaintiff first alleges unreasonable arrest and warrantless seizure of exculpatory

18 evidence in violation of the Fourth Amendment. (Compl. ¶¶ 97–112.) The accrual of a false

19 arrest or unreasonable seizure occurs at the time of the arrest or seizure. See Wallace, 549

20 U.S. at 388 (false arrest); Bonelli v. Grand Canyon Univ., 28 F.4th 948, 952 (9th Cir. 2022)

21 (seizure). Here, Plaintiff alleges Defendants seized his cell phone and arrested him on

22 September 14, 2017. (Compl. ¶¶ 33, 45, 47.) Thus, the date of accrual for Plaintiff’s first

23 cause of action was September 14, 2017.

24 Plaintiff’s second cause of action alleges due process violations from Plaintiff’s

25 arrest, Defendant DeLuca’s police report, and the preliminary hearing. Unpacking these

26 allegations is unnecessary for the purposes of this accrual analysis. All the allegations relate

27 to alleged due process violations occurring before April 8, 2019, when Plaintiff’s criminal

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1 case was referred to a military diversion program.4 As a result of tolling, discussed infra,

2 it is not legally significant when specifically Plaintiff’s cause of action accrued. Therefore,

3 it is sufficient to determine that Plaintiff’s second cause of action accrued before April 8,

4 2019.

5 Plaintiff’s third and fourth causes of action both relate to malicious prosecution.5

6 (Compl. ¶¶ 113–168.) “One element that must be alleged and proved in a malicious

7 prosecution action is termination of the prior criminal proceeding in favor of the accused.”

8 Heck v. Humphrey, 512 U.S. 477, 484 (1994). In other words, a malicious prosecution

9 claim does not accrue until the criminal proceedings have terminated in a plaintiff’s favor.

10 Plaintiff’s criminal proceedings were not dismissed until mid-September 2020. (Compl.

11 ¶ 31.) Therefore, Plaintiff’s malicious prosecution claims accrued in mid-September 2020.

12 Because Plaintiff filed less than two years after September 2020, no tolling analysis is

13 required; these claims are not time barred.

14 Plaintiff’s fifth cause of action alleges harassment from the distribution of arrest

15 records to the California Medical Board. This appears to have occurred at least five years

16 prior to the filing of the Complaint. (Compl. ¶ 62 (“As a result of DeLuca’s reports, the

17 Medical Board has had Krystal under investigation for close to five years (beginning with

18 the arrest during September 2017) . . . .”).) The Court assumes the arrest records were

19 remitted in 2017, but will allow Plaintiff an opportunity to amend and clarify.

20 The Court also addresses Plaintiff’s suggestion that the statute of limitations did not

21 accrue until he could access “[p]ertinent evidence supporting this Section 1983 lawsuit.”

22 (Compl. ¶ 32.) Plaintiff alleges that “body cam footage” was shielded from him “due to a

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4 To the extent that Plaintiff’s second cause of action alleges due process violations related to his

24 prosecution as a whole, the analysis folds into that of his third and fourth causes of action for malicious

prosecution and abuse of process.

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5 Plaintiff’s third cause of action is “Abuse of process in violation of the Fourteenth Amendment”

26 for the “wrongful prosecution in the face of exculpatory evidence.” (Id. ¶¶ 139, 141.) Plaintiff’s fourth

cause of action is “malicious prosecution.” (Id. ¶ 151.) “An abuse of process claim is essentially a

27 malicious prosecution claim.” Char v. Simeona, No. 18-00303 DKW-KJM, 2018 WL 5815519, at *4 (D.

Hawaii 2018). Therefore, the Court analyzes these claims together.

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1 court-ordered protective order.” (Id.) This body camera footage “demonstrated that there

2 was no evidence of apparent injury that Krystal could have known about due to the

3 perceived close call.” (Id. ¶ 46.) But the Complaint does not allege any new information

4 that the body camera footage revealed. Plaintiff was already aware that he perceived the

5 collision as a “close call” and that the contact with the tricycle was minimal. (Id. ¶ 37.)

6 Thus, the receipt of the body camera footage does not impact when Plaintiff had a

7 “complete and present cause of action.” See Wallace, 549 U.S. at 388.

8 Further, Plaintiff notes that his injury is ongoing due to the pendency of his

9 California medical license. But an ongoing injury does not affect a timeliness analysis. See

10 Wallace, 549 U.S. at 391 (“The cause of action accrues even though the full extent of the

11 injury is not then known or predictable.”). As a result, his ongoing injury does not affect

12 the dates of accrual for his causes of action.

13 The Court next analyzes tolling with respect to Plaintiff’s first, second, and fifth

14 causes of action.

15 c) Tolling

16 Like the length of the statute of limitations, tolling is a question of state law. See

17 Wallace, 549 U.S. at 394. Two provisions of California law are relevant.

18 First, the California Code prevents persons charged with an “accusatory pleading”

19 in a criminal case from bringing a “civil action for money or damages against a peace

20 officer . . . based upon conduct of the peace officer relating to the offense for which the

21 accused is charged . . . while the charges against the accused are pending before a superior

22 court.” Cal. Gov’t Code § 945.3. It further states, “Any applicable statute of limitations for

23 filing and prosecuting these actions shall be tolled during the period that the charges are

24 pending before a superior court.” Id. In other words, Plaintiff could not bring this civil

25 action while his criminal charges were “pending,” and as a result, the statute of limitations

26 for his civil claims was tolled during that time. The key issue, over which the parties

27 disagree, is how long Plaintiff’s criminal charges were “pending.” The same section of the

28 California Code provides an answer. It clarifies that “charges pending before a superior

1 court do not include appeals or criminal proceedings diverted pursuant to . . . Chapter 2.9

2 (commencing with Section 1001.50) of Title 6 of Part 2 of the Penal Code.” Id. In this case,

3 Plaintiff’s criminal charge was diverted pursuant to “Penal Code Section 1001.80.” (RJN,

4 ECF No. 13-2 at 4.) As a result, this section of the California Code tolled the statute of

5 limitations from the date of accrual until April 8, 2019, when Plaintiff was referred to a

6 military diversion program.

7 Second, during the COVID-19 pandemic, the California legislature tolled the statute

8 of limitations for civil cases from April 6, 2020, until October 1, 2020.6 In effect, this

9 Emergency Rule tolls the statute of limitations for approximately sixth additional months.

10 Applying these principles to Plaintiff’s first cause of action, the Court finds it to be

11 time barred. Plaintiff’s first cause of action accrued on September 14, 2017. The statute of

12 limitations was tolled during the pendency of Plaintiff’s criminal proceedings, which

13 concluded when he was referred to military diversion on April 8, 2019. Then the statute of

14 limitations ran for approximately one year until April 6, 2020, when Emergency Rule 9

15 further tolled them. The Emergency Rule tolling lasted until October 1, 2020. The statute

16 of limitations then continued to run and expired approximately one year later in October

17 2021. Plaintiff filed his Complaint on September 6, 2022. Thus, his first cause of action is

18 time barred. The Court finds amendments would be futile and accordingly does not grant

19 Plaintiff leave to amend his first cause of action. See Albrecht v. Lund, 845 F.2d 193, 195

20 (9th Cir. 1988) (holding dismissal without leave to amend proper when amendments would

21 be “futile”).

22 Plaintiff also fails to plead the timeliness of his second cause of action. As noted,

23 Plaintiff’s second cause of action contains a plethora of allegations related to his criminal

24 prosecution. As far as the Court can discern, it accrued before Plaintiff was referred to

25 military diversion. As a result, the same analysis applies, and the claim is time barred. The

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27 6 See Judicial Council of Cal., Emergency Rules Related to COVID-19, available at

https://www.courts.ca.gov/documents/appendix-i.pdf.

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1 Court will allow Plaintiff leave to amend to clarify the claim with respect to accrual and

2 timeliness.

3 Finally, Plaintiff fails to plead the timeliness of his fifth cause of action. The

4 Complaint appears to allege that Defendants remitted Plaintiff’s arrest records to the

5 California Medical Board five years before filing, but the allegations are ambiguous.

6 (Compl. ¶ 62.) If the claim accrued five years before filing, then tolling could not salvage

7 it. The court will grant Plaintiff leave to amend his fifth cause of action to clarify the date

8 of the remittance of his arrest records.

9 2. Failure to State a Claim

10 The Court now turns to Defendants other plausibility arguments and finds that

11 Plaintiff fails to state a claim.

12 a) Second Cause of Action: Violations of Due Process

13 Plaintiff’s second cause of action alleges violations of due process under the Fifth

14 and Sixth Amendments. The Complaint alleges Defendants violated due process by

15 “subjecting Plaintiff to an unnecessary and wrongful prosecution in the face of exculpatory

16 evidence known to these Defendants before the arrest and subjecting him to a Felony

17 charge, then a Misdemeanor prosecution before, and then without, a credible traffic

18 collision investigation.” (Compl. ¶ 115.) The Complaint does not make clear whether

19 Plaintiff alleges substantive or procedural due process violations. Some allegations seem

20 to indicate a procedural issue, while others seem to gesture toward a substantive due

21 process right. The Court addresses both.

22 Plaintiff’s procedural due process claim is deficient. Many of Plaintiff’s allegations

23 are conclusory, and those that are factual fail to identify a deprivation of procedural due

24 process. The Complaint outlines the procedural guarantees of the Fifth and Sixth

25 Amendments and then avers Defendant Deluca’s false police report, the lack of

26 investigation, and the failure of the Carlsbad Police Department to supervise and train its

27 officers deprived Plaintiff of those guarantees. (Compl. ¶ 123.) It further baldly asserts

28 Plaintiff’s counsel were ineffective because they were “influenced by Officer DeLuca’s

1 police reports” and failed to adequately conduct discovery or cross examine witnesses. (Id.

2 ¶ 128.) Such allegations are conclusory, and the Court does not accept them as true. See

3 Holden, 978 F.2d at 1121.

4 The Complaint does include some factual allegations, but these do not allow the

5 Court to infer that Defendants violated Plaintiff’s procedural due process rights. The

6 Complaint avers Plaintiff’s right to confronting his accuser was violated because Defendant

7 DeLuca testified as a “layman” and stated Plaintiff “fled” the scene without providing facts

8 to support that conclusion. (Id. ¶¶ 125, 126.) It is not clear how Defendant DeLuca’s

9 testimony violated Plaintiff’s right under the Confrontation Clause, nor is it clear how

10 Defendants would be liable for such a deprivation. Moreover, in the Ninth Circuit, police

11 officers are allowed to provide lay opinion testimony under Federal Rule of Evidence 701.

12 See United States v. Freeman, 498 F.3d 893, 904 (9th Cir. 2007). Additionally, the

13 Complaint alleges Defendant DeLuca’s testimony contradicted his police report. But this

14 allegation speaks to the reliability of Defendant DeLuca’s testimony, not the procedural

15 due process of the preliminary hearing. Moreover, witnesses, including police officers, are

16 not liable under Section 1983 for testimony in a judicial proceeding. See Briscoe v. LaHue,

17 460 U.S. 325, 326, 329 (1983). Thus, Plaintiff fails to plausibly state a procedural due

18 process claim.7

19 To the extent that Plaintiff asserts a substantive due process right, the Supreme Court

20 has foreclosed such a claim. There is no substantive due process right “to be free from

21 criminal prosecution except upon probable cause.” Albright v. Oliver, 510 U.S. 266, 268

22 (1994). Rather, such claims are judged under the Fourth Amendment as malicious

23 prosecution. See id. at 271; Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022). As such,

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7 The Complaint alleges the presiding judge at Plaintiff’s preliminary hearing “deviated from

26 hearing norms and customs.” (Id. ¶ 124.) It further alleges a violation of due process because the presiding

judge did not require a video be introduced into evidence. (Id. ¶ 127.) The judge presiding over Plaintiff’s

27 preliminary hearing is not a named defendant, and if the judge were, he or she would be entitled to absolute

immunity. See Imbler v. Pachtman, 424 U.S. 409, 427 (1976). Thus, the Court cannot infer Defendants’

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1 Plaintiff’s second cause of action—to the extent that it alleges a substantive due process

2 claim—reiterates his third and fourth causes of action for malicious prosecution and abuse

3 of process. The Court turns to those next.

4 b) Third and Fourth Causes of Action: Malicious Prosecution

5 and Abuse of Process

6 Courts in the Ninth Circuit have equated the elements of malicious prosecution and

7 abuse of process under Section 1983. See Char v. Simeona, No. CV 18-00303 DKW-KJM,

8 2018 WL 5815519, at *4 (D. Haw. Nov. 6, 2018) (“An abuse of process claim is essentially

9 a malicious prosecution [claim].”). Therefore, the Court analyzes them together.

10 The Ninth Circuit has defined malicious prosecution in violation of the Fourth

11 Amendment by looking to state tort law. See Thompson, 142 S. Ct. at 1337. Under

12 California state law, malicious prosecution requires pleading “that the prior proceeding,

13 commenced by or at the direction of the malicious prosecution defendant, was: (1) pursued

14 to a legal termination favorable to the plaintiff; (2) brought without probable cause; and (3)

15 initiated with malice.” Villa v. Cole, 4 Cal. App. 4th 1327, 1334 (1992). In addition to these

16 elements, a malicious prosecution claim under Section 1983 requires the intent to either

17 “deprive a person of equal protection of the laws” or “subject a person to a denial of

18 constitutional rights.” Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir. 1985). Put simply,

19 malicious prosecution under Section 1983 requires a constitutional hook.

20 Defendants argue Plaintiff’s claim fails on the first element—favorable termination.

21 The Court disagrees. Plaintiff’s criminal case was dismissed after he completed a military

22 diversion program (Compl. ¶ 61; Ex. A to RJN), which Defendants argue does not qualify

23 as a favorable termination for the purposes of malicious prosecution. (Mot. 7–8.) This may

24 be true for malicious prosecution under California law today. See Fetters v. County of Los

25 Angeles, 243 Cal. App. 4th 825, 847 (2016) (“[I]nformal resolution/pretrial diversion

26 programs should not be considered a favorable termination of a criminal proceeding.”).

27 But the Supreme Court looks to state tort law at the passage of the Civil Rights Act of 1871

28 to inform malicious prosecution in violation of the Fourth Amendment under Section 1983.

1 Thompson, 142 S. Ct. at 1337. The Court recently concluded, “To demonstrate a favorable

2 termination of a criminal prosecution for purposes of the Fourth Amendment claim under

3 § 1983 for malicious prosecution, a plaintiff need only show that his prosecution ended

4 without a conviction.” Id. at 1335. Thus, a military diversion qualifies as a favorable

5 termination, and Plaintiff has carried his pleading burden with respect to the first element

6 of malicious prosecution under Section 1983.

7 Plaintiff, however, fails to plausibly plead a lack of probable cause. To begin, a

8 finding in a preliminary hearing that probable cause existed “constitutes prima facie”

9 evidence of probable cause. Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir.

10 2004). Here, the presiding judge at Plaintiff’s preliminary hearing determined that probable

11 cause existed. (Compl. ¶ 77.) Thus, the issue is whether Plaintiff’s allegations sufficiently

12 rebut the finding of probable cause at his preliminary hearing. See Awabdy, 368 F.3d at

13 1067. They do not.

14 The California Vehicle Code provides, “The driver of a vehicle involved in an

15 accident resulting in injury to a person, other than himself or herself, or in the death of a

16 person shall immediately stop the vehicle at the scene of the accident.” Cal. Veh. Code

17 § 20001(a). The next section further provides, “The driver of any vehicle involved in an

18 accident resulting only in damage to any property, including vehicles, shall immediately

19 stop the vehicle at the nearest location that will not impede traffic or otherwise jeopardize

20 the safety of other motorists.” Cal. Veh. Code § 20002(a).

21 In this case, the Complaint itself alleged Plaintiff collided with a tricycle in the

22 bicycle lane, the cyclist suffered an injury, and Plaintiff failed to stop at the scene of the

23 accident. (Compl. ¶¶ 34, 37, 46.) Plaintiff alleges he did not know that he collided with the

24 tricycle and injured the cyclist. (Id. ¶ 68.) But probable cause is weighed based on the

25 knowledge and observations of the arresting officers, not the unobservable mental state of

26 the arrestee. See United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) (“Probable

27 cause to arrest exists when officers have knowledge or reasonably trustworthy information

28 sufficient to lead a person of reasonable caution to believe that an offense has been or is

1 being committed by the person being arrested.”). Based on the facts conceded in the

2 Complaint, a reasonable police officer would have probable cause to believe that Plaintiff

3 violated Sections 20001 and 20002 of the California Vehicle Code.

4 Plaintiff counters that turning on his hazard lights indicated that he had no

5 knowledge of the collision, eliminating probable cause. (Opp. 5.) The Court disagrees.

6 Hazard lights signal caution to other motorists. Signaling caution is not inconsistent with

7 knowledge of a collision. Indeed, a driver might be concerned about vehicle damage from

8 the collision, and, therefore, hazard lights might be further proof of such knowledge. Thus,

9 Plaintiff’s hazard lights do not render unreasonable Defendants’ assessment that an offense

10 was being committed.

11 In sum, Plaintiff fails to plausibly allege a lack of probable cause, and this failure

12 sinks Plaintiff’s malicious prosecution claims. Accordingly, the Court grants Defendants’

13 Motions to Dismiss with respect to Plaintiff’s third and fourth causes of action.

14 c) Fifth Cause of Action: Harassment

15 Plaintiff also alleges Defendants violated Plaintiff’s Fourteenth Amendment rights

16 by “subjecting Plaintiff to harassment via the distribution of the arrest reports to the

17 California Medical Board for a non-reportable event.” (Compl. ¶ 171.) As discussed above,

18 Plaintiff fails to plausibly allege the timeliness of this claim. In addition, the Court notes

19 another plausibility deficiency: Plaintiff fails to identify the Fourteenth Amendment right

20 of which he has been deprived.

21 The Complaint alleges, “Harassment refers to words or behaviors that threatens,

22 intimidates, or demeans a person.” (Compl. ¶ 172.) California law may define harassment

23 as a cause of action, but a “[v]iolation of local law does not necessarily mean that federal

24 rights have been invaded.” Screws v. United States, 325 U.S. 91, 108 (1945). Under Section

25 1983, a plaintiff must point to the “specific constitutional guarantee safeguarding the

26 interest he asserts has been invaded.” Paul v. Davis, 424 U.S. 693, 700 (1976). Plaintiff

27 here fails to do so. Thus, Plaintiff fails to plausibly state a claim.

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1 Accordingly, the Court grants Defendants’ Motions to Dismiss with respect to

2 Plaintiff’s fifth cause of action.

3 III. MOTION TO AMEND

4 Plaintiff moves for leave to amend his Complaint to add a First Amendment claim

5 against the City of Carlsbad for the failure to grant his petition to destroy his arrest records.

6 (ECF No. 19.) Defendants did not file opposition briefing.

7 “[A] party may amend its pleading only with the opposing party’s written consent

8 or the court’s leave. The court should freely give leave when justice so requires.” Fed. R.

9 Civ. P. 15(a)(2). “Rule 15(a) is very liberal[.]” AmerisourceBergen Corp. v. Dialysist West,

10 Inc., 465 F.3d 946, 951 (9th Cir. 2006). “This liberality . . . is not dependent on whether

11 the amendment will add causes of action or parties.” DCD Programs, Ltd. v. Leighton, 833

12 F.2d 183, 186 (9th Cir. 1987). But the court need not grant leave where the amendment:

13 (1) prejudices the opposing party, (2) is sought in bad faith, (3) produces an undue delay

14 in litigation, (4) is futile, or (5) follows other amendments. See W. Shoshone Nat’l Council

15 v. Molini, 951 F.2d 200, 204 (9th Cir. 1991).

16 Here, the action is still in the pleadings stage and the new claim appears to rely on

17 recent events. Thus, the Court finds it just to allow Plaintiff to amend his Complaint.

18 Plaintiff’s Motion for Leave to Amend (ECF No. 19) is GRANTED.

19 IV. CONCLUSION

20 For the reasons stated above, the Court issues the following order:

21 1) GRANTS the Motions to Dismiss (ECF Nos. 13, 14) with prejudice with respect to

22 Plaintiff’s first cause of action. This cause of action is time barred and leave to

23 amend would be futile. Therefore, the Court does not afford Plaintiff leave to amend

24 with respect to his first cause of action. See Albrecht, 845 F.2d at 195 (holding

25 dismissal without leave to amend proper when amendments would be “futile”).

26 2) GRANTS the Motions to Dismiss (ECF Nos. 13, 14) without prejudice with respect

27 to Plaintiff’s second, third, fourth, and fifth causes of action. The Court GRANTS

28 the Motions with respect to the second cause of action because (1) Plaintiff fails to

1 allege the timeliness of the claim and (2) the allegations fail to state a claim with

2 respect to procedural due process and no cause of action exists with respect to

3 substantive due process. The Court GRANTS the Motions with respect to Plaintiff’ s

4 third and fourth causes of action because Plaintiff fails to plausibly allege a lack of

5 probable cause. The Court GRANTS the Motions with respect to Plaintiffs fifth

6 cause of action because Plaintiff fails to allege the timeliness of the claim and fails

7 to plausibly state the specific constitutional right invaded.

8 3) The Court also GRANTS Plaintiff's Motion for Leave to Amend. (ECF No. 19.)

9 Plaintiff may amend only to include the new cause of action described in his Motion

10 to Amend and to cure the deficiencies identified in his second, third, fourth, and fifth

11 causes of action.

12 4) If Plaintiff wishes to file an amended complaint, he must do so on or before June

13 21, 2023. The Court reminds Plaintiff to include a redlined version of any amended

14 complaint pursuant to Civil Local Rule 15.1(c).

15 IT IS SO ORDERED.

16 , □□

17 || DATED: June 5, 2023 ( ytd A A (Lhd □

18 United States District Judge

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