reversing a district judge’s grant of summary judgment finding that assuming 12 plaintiff's assertion that the alleged crime was accidental, “the jury could reasonably 13 || conclude that police did not have probable cause to arrest’’
How later courts described this case
- reversing a district judge’s grant of summary judgment finding that assuming 12 plaintiff's assertion that the alleged crime was accidental, “the jury could reasonably 13 || conclude that police did not have probable cause to arrest’’
- taking 17 “judicial notice of a California Court of Appeal opinion”
- A “court may take judicial notice of 15 matters of public record without converting a motion to dismiss into a motion for summary 16 judgment.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 EDWARD BAIER, Case No.: 24-cv-00893-AJB-VET
Plaintiff,
12
ORDER DENYING DEFENDANT’S
13 v. MOTION TO DISMISS
14
CITY OF SAN DIEGO; and DOES 1 (Doc. No. 8)
15 through 8, as individuals.
Defendants.
16
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18 Before the Court is Defendant City of San Diego’s (“Defendant” or “City”) motion
19 to dismiss Plaintiff Edward Baier’s (“Plaintiff”) Complaint. (Doc. No. 8.) The motion is
20 fully briefed. (Doc. Nos. 8, 15, 17.) For the following reasons, the Court DENIES
21 Defendant’s motion to dismiss.
22 I. BACKGROUND1
23 Plaintiff, a San Diego resident, is a freelance photojournalist and sports and
24 entertainment cameraman. (Compl. ¶ 5.) He collects and distributes videos to news
25 organizations and media outlets, typically for a fee. (Id.) On November 27, 2023, Plaintiff
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27 1 The following facts are taken from Plaintiff’s complaint, (Doc. No. 1, “Compl.”), which the Court
construes as true for the limited purpose of resolving the instant motion. See Brown v. Elec. Arts, Inc., 724
28
1 was driving south on Mission Bay Drive, parallel to Interstate 5 (“I-5”), when he observed
2 a San Diego Police Department (“SDPD”) helicopter circling the area. (Id. ¶ 12.) He also
3 saw several SDPD vehicles parked on the offramp from southbound I-5 to Clairemont
4 Drive. (Id. ¶ 13.) Plaintiff approached the area where the helicopter was circling, entered
5 Clairemont Drive from Mission Bay Drive, and parked his van at the base of the bridge
6 over I-5. (Id. ¶ 14.) Plaintiff walked on the public sidewalk on top of the bridge, and using
7 his cell phone camera, began to record an incident on the ground below. (Id. ¶¶ 15–16.)
8 The incident involved a bloodied man being handcuffed and surrounded by police officers.
9 (Id. ¶¶ 17, 19.) Plaintiff later learned that the man had jumped from the bridge. (Id. ¶ 19.)
10 About five minutes after Plaintiff arrived, a SDPD sergeant came to the scene, saw
11 Plaintiff recording above, and sent an officer up to Plaintiff’s position on the bridge.
12 (Compl. ¶¶ 21–22.) Around that time, Plaintiff left the bridge to move his van a block from
13 its original position and then walked back to the bridge and resumed recording. (Id. ¶¶ 23–
14 24, 26.) SDPD officers saw Plaintiff walking with his cell phone to the bridge and recording
15 the incident, but none of them said anything to him. (Id. ¶¶ 25–28.)
16 According to Plaintiff, the SDPD sergeant directed three officers to arrest him. (Id.
17 ¶ 29.) They approached Plaintiff from behind and arrested him. (Id. ¶¶ 30–31.) One of the
18 officers searched Plaintiff’s person and impounded his camera, keys, and personal
19 documents. (Id. ¶ 33.) Other officers searched Plaintiff’s van and impounded it. (Id.) The
20 officers held Plaintiff in the back of the police car for over an hour before driving him to
21 the downtown police headquarters. (Id. ¶¶ 35–36.) After forty minutes in the police
22 headquarters, an officer transported Plaintiff to the downtown County jail, where he
23 remained in custody for about sixteen hours. (Id. ¶¶ 37–38.) No charges were filed against
24 Plaintiff. (Id. ¶ 40.)
25 On May 21, 2024, Plaintiff filed a Complaint, alleging five causes of action: (1) false
26 arrest in violation of the Fourth Amendment, (2) false imprisonment/false arrest under
27 California state law, (3) illegal search and seizure of Plaintiff’s van and belongings in
28 violation of the Fourth Amendment, (4) retaliation in violation of the First Amendment,
1 and (5) violation of civil rights under California Civil Code §52.1. (Compl. ¶¶ 41–77.) The
2 City’s instant motion to dismiss follows.
3 II. LEGAL STANDARD
4 A motion to dismiss under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests
5 the legal sufficiency of a plaintiff’s complaint. See Navarro v. Block, 250 F.3d 729, 732
6 (9th Cir. 2001). “[A] court may dismiss a complaint as a matter of law for (1) lack of
7 cognizable legal theory or (2) insufficient facts under a cognizable legal claim.” SmileCare
8 Dental Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation
9 omitted). However, a complaint will survive a motion to dismiss if it contains “enough
10 facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
11 U.S. 544, 570 (2007). In making this determination, a court reviews the contents of the
12 complaint, accepting all factual allegations as true and drawing all reasonable inferences
13 in favor of the nonmoving party. See Cedars-Sinai Med. Ctr. v. Nat’l League of
14 Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007).
15 III. DISCUSSION
16 The City argues that the entirety of Plaintiff’s Complaint must be dismissed under
17 Rule 12(b)(6) for failure to state a claim because “the officers had probable cause to arrest
18 Plaintiff and probable cause is a complete defense to all the causes of action.” (Doc. No.
19 9-1 at 9.) Specifically, the City contends that at the time of the incident, Plaintiff was on
20 probation, and that he was violating the terms of his probation, which required him to be
21 15 yards from police investigating or securing a scene, when the officers arrested him and
22 impounded and searched his van. (Id.)
23 In support, the City filed a request for judicial notice of: (1) a certified copy of a
24 September 12, 2023 Order of the San Diego Superior Court containing the terms of
25 Plaintiff’s probation (“Probation Order”); (2) five video clips from an officer’s body worn
26 camera and corresponding transcripts; and (3) excerpts of the California Department of
27 Transportation Highway Design Manual (“Caltrans Manual”). (Doc. No. 8-2 at 1–2.) The
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1 Court considers the City’s request for judicial notice and assertion of probable cause, in
2 turn.
3 A. Request for Judicial Notice
4 Federal Rule of Evidence 201 states that a “court may judicially notice a fact that is
5 not subject to reasonable dispute because it: (1) is generally known within the trial court’s
6 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose
7 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).
8 1. Probation Order
9 As an initial matter, the Court notes that in his response, Plaintiff opposed only the
10 City’s request for judicial notice of the Caltrans Manual and the videos and transcripts.
11 (Doc. No. 16 at 2–5.) There being no dispute as to the authenticity of the Probation Order
12 and it being a public state court document, the Court GRANTS the City’s request for
13 judicial notice of the terms of Plaintiff’s Probation Order. See Khoja v. Orexigen
14 Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (A “court may take judicial notice of
15 matters of public record without converting a motion to dismiss into a motion for summary
16 judgment.”) (citation omitted); Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002) (taking
17 “judicial notice of a California Court of Appeal opinion”).
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2. Caltrans Manual
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With respect to the Caltrans Manual excerpts, Plaintiff does not dispute the
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document’s accuracy or authenticity but argues the Court should deny taking judicial notice
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because it does not provide relevant information. (Doc. No. 16 at 4.) The Court is
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unpersuaded. The Caltrans Manual contains information about the measurement and
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clearance requirements for California highways and bridges, which could bear on the key
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issue in this case—whether Plaintiff, who was atop a California highway bridge, was within
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15 yards of the police conducting an investigation or securing a scene below. There being
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no reasonable dispute as to the Caltrans Manual’s accuracy or authenticity, and it being a
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matter of public record, the Court GRANTS the City’s request for judicial notice of the
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1 3. Videos and Transcripts
2 As to the five body camera videos and corresponding transcripts, the City requests
3 the Court consider these materials pursuant to the incorporation by reference doctrine. “[A]
4 defendant may seek to incorporate a document into the complaint if the plaintiff refers
5 extensively to the document or the document forms the basis of the plaintiff's claim.” Khoja
6 v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018) (internal quotation
7 marks and citation omitted).
8 Here, the Complaint makes no reference to the videos, so the question becomes
9 whether they necessarily form the basis of Plaintiff’s claim. The Court finds they do not.
10 The Ninth Circuit has instructed that “if the document merely creates a defense to the
11 well-pled allegations in the complaint, then that document did not necessarily form the
12 basis of the complaint.” Id. Because the City asks the Court to consider the videos in
13 support of their theory that the officers had probable cause to arrest Plaintiff, which in their
14 own words, “is a complete defense to all the causes of action,” (Doc. No. 8-1 at 9), the
15 Court finds they do not necessarily form the basis Plaintiff’s Complaint. See Khoja, 899
16 F.3d at 1002. See also Patterson v. City of Yuba City, 884 F.3d 838, 841 (9th Cir. 2018)
17 (“Under California law, probable cause to arrest is an affirmative defense to a claim of
18 false arrest.”) (citation omitted). While the Complaint includes allegations concerning the
19 incidents captured in the videos and transcripts, “it is plain that Defendants offer [them] in
20 an effort to short-circuit the resolution of Plaintiff’s claims. This is impermissible.” Keith
21 v. City of San Diego, No. 22-CV-1226-MMA-DEB, 2023 WL 5618941, at *2 (S.D. Cal.
22 Aug. 30, 2023) (citing Khoja, 899 F.3d at 1003).
23 Moreover, as a district court persuasively explained, “[a] complaint necessarily
24 relies on a piece of evidence when the piece of evidence itself is indispensable to a claim
25 in the complaint.” Est. of Smith by Smith v. City of San Diego, No. 16-CV-2989-WQH-
26 MDD, 2018 WL 3706842, at *3 (S.D. Cal. Aug. 3, 2018) (citing Sams v. Yahoo! Inc., 713
27 F.3d 1175, 1178–79 (9th Cir. 2013)). Like in Est. of Smith by Smith, the Court finds that
28 neither the videos nor the transcripts are an indispensable part of Plaintiff’s claims. They
1 are merely evidence of the incident alleged in the Complaint; Plaintiff would have cause
2 to bring this action regardless of their existence. Consequently, contrary to the City’s
3 assertions, the Complaint does not necessarily rely on the video or the transcripts, and the
4 Court may not consider them when analyzing the instant motion to dismiss. Id.;2 accord
5 R.P. v. City & Cnty. of San Francisco, No. 24-CV-00522-LJC, 2025 WL 416363, at *3
6 (N.D. Cal. Feb. 6, 2025) (“although the video footage might provide evidence to support
7 or undermine [the plaintiff’s] excessive force claim, it is not integral to that claim in the
8 same sense as the materials courts have found to be incorporated by reference”).
9 Based on the foregoing, the Court DENIES the City’s request to consider the videos
10 and transcripts under the incorporation by reference doctrine.3
11 B. Probable Cause
12 Turning to the merits of the motion to dismiss, the Court rejects the City’s argument
13 that Plaintiff’s Complaint fails to state a claim because the officers had probable cause to
14 arrest Plaintiff for violating the terms of his probation. (Doc. No. 8-1 at 9–10). “To
15 determine whether an officer had probable cause for an arrest, we examine the events
16 leading up to the arrest, and then decide whether these historical facts, viewed from the
17 standpoint of an objectively reasonable police officer, amount to probable cause.” D.C. v.
18 Wesby, 583 U.S. 48, 56–57 (2018) (internal quotations omitted).
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2 As a side note, the City confoundingly and erroneously cites both Keith and Est. of Smith by Smith as
21 supportive of its position. Compare (Doc. No. 8-2 at 4), with Keith, 2023 WL 5618941, at *2 (declining
to consider the videos and explaining that a majority of courts “have declined to either accept or consider
22 such evidence in resolving motion[s] to dismiss”) and Est. of Smith by Smith, 2018 WL 3706842, at *3
(same, explaining that “the SAC does not necessarily rely on the Videos or the Transcripts, and the Court
23 may not consider the Videos or the Transcripts when analyzing the City Defendants’ Motion under Rule
12(b)(6).”). The Court acknowledges that the City cites other district court cases, but find them lacking
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persuasive analysis, and in any event, not binding.
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3 The Court recognizes that it has incorporated by reference into a complaint material of this type in
26 another case, Covert v. City of San Diego, No. 15CV2097 AJB (WVG), 2017 WL 1094020, at *5 (S.D.
Cal. Mar. 23, 2017). That case, however, is distinguishable. Unlike here, the complaint at issue in Covert
27 contained express allegations about the officers’ body camera, asserting that the they intentionally turned
them off while the excessive force occurred. Id. at *2. No such reference or claim is raised in Plaintiff’s
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1 While the parties do not dispute that probable cause is a defense to all of Plaintiff’s
2 claim, the Court notes that determination of this issue requires a fact-specific inquiry that
3 is generally premature at the pleading state. Additionally, the Probation Order and the
4 Caltrans Manual, which the Court considers under Rule 201, are not dispositive of the
5 issue. They merely establish that Plaintiff has been ordered to be 15 yards from police
6 conducting an investigation or securing a scene and that highways and bridges have certain
7 clearance measurement requirements. The exact distance between Plaintiff and the
8 operative area in this case, as well as the officers’ reasonable perceptions thereof, remain
9 open questions.
10 As alleged in the Complaint, leading up to the arrest, Plaintiff was on a public
11 sidewalk atop a bridge overlooking I-5 and recording police handcuffing a bloodied
12 individual a distance below. (Doc. No. 1 at 4–5.) True, the Probation Order states that
13 Plaintiff “shall keep at least 15 yards away from police conducting an investigation or
14 securing a scene, or a distance otherwise directed by law enforcement.” (Doc. No. 8-3 at
15 6.) But despite the officers observing Plaintiff walking with his cell phone camera to the
16 top of the bridge and seeing him recording the events below, none of them said anything
17 to him. (Doc. No. 1 at 5.) There were also two civilians on the sidewalk with Plaintiff
18 observing the incident and several others walking through to cross the bridge. (Id. at 4.) It
19 is not reasonable to infer from these facts that the officers believed the sidewalk atop the
20 bridge was part of the area from which Plaintiff was prohibited.
21 As to whether Plaintiff was 15 yards from the officers and scene below, the Caltrans
22 Manual is not determinative of the issue. While it does state that bridges or overpasses
23 must have a maximum clearance of less than 15 yards, the requirement does not, by itself,
24 establish the actual distance between Plaintiff and the operative scene. There is no
25 allegation that the officers were directly below the bridge, and a distance farther than 15
26 yards can be reasonably inferred from the allegation that the officer had to go up “a steep
27 embankment to [Plaintiff’s] position on top of the bridge” to make the arrest. (Id. at 5.) As
28 such, nothing in the Complaint or the Caltrans Manual conclusively establishes that an
1 || objectively reasonable officer would have perceived Plaintiff to be in violation of his
2 || Probation Order.
3 Further, Plaintiff argues, and the City did not dispute, that “California courts have
4 consistently held that probation violations must be willful to constitute a crime.” (Doc. No.
5 || 15 at 17 (citing cases).) Considering Plaintiff's allegations that, at the time, he did not know
6 the man being handcuffed by police had jumped off the bridge; that he was a steep
7 || distance away from the scene; that traffic was unobstructed; that other civilians were on
8 || the bridge with him; and that police did not say anything to him despite seeing him on the
9 || bridge recording, (Doc. No. 1 at 4—5), it could be inferred that any probation violation was
10 |/ accidental, as opposed to willful. See, e.g., Barlow v. Ground, 943 F.2d 1132, 1135 (9th
11 |/Cir. 1991) (reversing a district judge’s grant of summary judgment finding that assuming
12 plaintiff's assertion that the alleged crime was accidental, “the jury could reasonably
13 || conclude that police did not have probable cause to arrest’’).
14 Thus, accepting as true the factual allegations in the Complaint and drawing all
15 ||reasonable inferences in Plaintiff's favor, the Court finds that he has adequately pled that
16 ||the officers lacked probable cause to arrest him.* Accordingly, the Court DENIES the
17 || City’s motion to dismiss.
18 |TV. CONCLUSION
19 For the reasons stated herein, the Court DENIES the City’s motion to dismiss. The
20 || Answer to the Complaint must be filed no later than March 14, 2025.
21 IT IS SO ORDERED.
22 ||Dated: March 3, 2025 © g
23 Hon. Anthony J.Battaglia
24 United States District Judge
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28 * The City obj ected to declarations that Plaintiff attached to its response brief. But as the Court does not
rely on them in reaching its decision, the City’s objections are denied as moot.