Harvey v. City of Fresno, et al., No. 1:2008cv01399 - Document 58 (E.D. Cal. 2010)

Court Description: Memorandum Decision and ORDER Re: City of Fresno and County of Fresno 49 53 Motions to Dismiss Plaintiff's 48 Second Amended Complaint signed by Judge Oliver W. Wanger on 3/8/2010. ( Filing Deadline: 3/16/2010)(Figueroa, O)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 DEMETRIUS L. HARVEY, 1:08-CV-01399-OWW-DLB 9 Plaintiff, 10 11 MEMORANDUM DECISION AND ORDER RE: CITY OF FRESNO AND COUNTY OF FRESNO S MOTIONS TO DISMISS PLAINTIFF S SECOND AMENDED COMPLAINT (Docs. 49, 53.) v. 12 13 CITY OF FRESNO, et al., 14 Defendants. 15 I. 16 INTRODUCTION This case arises out of Plaintiff's arrest and prosecution for 17 18 burglary in 2007. 19 jury trial. 20 his 21 Plaintiff, proceeding pro per, also brings claims against the City 22 of Fresno for inadequate training and supervision. 23 Plaintiff was acquitted of this crime after a He now charges that the Defendant Officers violated constitutional rights and maliciously prosecuted him. Before the court are two motions to dismiss filed pursuant to 24 Rule 12(b)(6) of the Federal Rules of Civil Procedure. One motion 25 is brought by Defendants City of Fresno, Officers Robert Gonzales, 26 Jesus Cerda, Brent Willey, and Detective Brian Valles (the City 27 defendants ). 28 Fresno (the County defendant ). The other motion is brought by Defendant County of 1 II. 1 The 2 3 following FACTUAL BACKGROUND facts are derived from Plaintiff s amended complaint, ( SAC ), filed on December 9, 2009. second (Doc. 48.) 4 Plaintiff, a 23 year-old African-American male, alleges that 5 on January 7, 2007, he went over to a friend s apartment, Jason 6 Rooter, to help him move. 7 Defendant Willey and Officer Yeager received a dispatch re the 8 alleged attack and robbery of Matt Billet, a Comcast Cable employee 9 who was attacked while working on a friend s cable box. (Id. ¶ s 4, 18.) Around 8:00 p.m., (Id. ¶ 10 19.) 11 whom he identified as D-Boy, was wearing an orange t-shirt. (Id. 12 ¶ 20.) 13 allegedly struck in the face several times with a closed fist. 14 (Id. ¶ 21.) 15 amount of redness on his right cheek that, but did not photograph 16 Billet because he was unable to see any injuries. 17 refused all emergency medical services. 18 Willey and Officer Yeager went to the crime scene and did not find 19 any physical evidence. 20 Billet called 911 and told the dispatcher that the suspect, At Defendant Willey interviewed Billet, a white male, who was Defendant Willey noted that Billet had a slight approximately (Id.) (Id. ¶ 22.) Billet Defendant (Id. ¶ 23.) 9:00 p.m., Fresno City police 21 arrived at Jason Rooter s apartment. 22 outside and gave his name and identification. 23 Plaintiff was interviewed and eventually placed under arrest by 24 Defendant Cerda. 25 placed in the patrol car by Defendant Willey. 26 According to Plaintiff, he was not given a reason for his arrest. 27 (Id.) 28 When (Id. ¶ 25.) Plaintiff arrived (Id. ¶ 24.) officers Plaintiff went (Id. ¶ 24.) He was handcuffed, searched, and at 2 the police (Id. ¶ 26.) station, he was 1 interrogated by Defendants Gonzales and Valles. 2 Plaintiff 3 robbery. 4 conflict with Plaintiff several weeks before the robbery, but 5 Plaintiff told both officers that he was not involved in any type 6 of physical disturbance with a white male. 7 Plaintiff also requested to take a polygraph test, but the request 8 was denied. 9 jail and then go to trial to prove his innocence. waived his Miranda (Id. ¶ 28.) rights and (Id. ¶ 27.) denied committing a Billet told Defendant Willey that he had a (Id. ¶ 30.) (Id. ¶ 29.) He told the officers that he would go to (Id. ¶ 28.) On January 7, 2007, Brooke Doval, a City of Fresno employee, 10 11 obtained swabs from handgun s grip, trigger and magazine. 12 32.) 13 January 8, 2007, Fresno City Detective Rudy Montoya interviewed 14 Plaintiff regarding the alleged gun used in the robbery. 15 33.) 16 he was only at the apartment complex to help Mr. Rooter . 17 According to Plaintiff, Detective Montoya told Plaintiff that if 18 I come back see to you in jail, it will be bad news, because you 19 lied to me. The results of Ms. Doval s tests were negative. (Id. ¶ (Id.) On (Id. ¶ Plaintiff denied any knowledge of the gun and restated that (Id.) (Id. ¶ 34.) 20 On January 9, 2007, Defendant County of Fresno filed a Felony 21 Complaint against Plaintiff and four other individuals who were in 22 the apartment on January 7, 2007, including Rooter. 23 Plaintiff 24 controlled substance while armed with a firearm; and (3) possession 25 of marijuana for sale. 26 at his arraignment. 27 appeared at his preliminary hearing. 28 Plaintiff, Billet changed his story, testifying that he and a was charged with (1) (Id.) robbery; (2) (Id. ¶ 36.) possession of a Plaintiff entered a not guilty plea (Id. ¶ 38.) 3 On March 13, 2007, Plaintiff (Id. ¶ 39.) According to 1 friend went to a friend s house to buy marijuana. 2 did not mention working for Comcast or working on his friend s 3 cable box. 4 present at the hearing and heard the inconsistent testimony. 5 ¶ 40.) 6 Plaintiff was held to answer to the robbery charge, while the drug 7 charges were dropped. (Id. ¶ 42.) 8 9 (Id.) (Id. ¶ 39.) He Fresno County Prosecutor Esmeralda Garcia was Defendants Willey and Cerda also testified. (Id. (Id. ¶ 41.) During the five day trial, Defendants Willey, Cerda, Rhames and Gonzales testified. (Id. ¶ 46.) Plaintiff testified on his 10 own behalf, having rejected another plea offer the day prior to 11 trial. 12 guilty on all charges (second degree robbery, grand theft person 13 and petty theft). 14 (Id. ¶ 47.) On July 6, 2007, a jury found Plaintiff not (Id. ¶ 48.) Plaintiff was incarcerated from January 7, 2007, to July 6, 15 2007. 16 humiliation, suffered emotional distress, lost his job, and was 17 separated from his pregnant girlfriend who eventually miscarried 18 before her delivery date. 19 (Id. ¶ 51.) Plaintiff During this time, he alleges that he endured alleges (FAC ¶ 21.) he was wrongfully accused, wrongfully 20 arrested, and wrongfully held in custody against his will for six 21 months. 22 arrested, and imprisoned Plaintiff, and held him against his will 23 without probable cause. 24 were motivated by racial prejudice because the victim is Caucasian, 25 while the Plaintiff is African American. The officers are alleged to have falsely detained, Plaintiff also alleges that the Officers 26 The City of Fresno is sued because they allegedly did not 27 effectively train and supervise City police officers with regard to 28 the proper constitutional and statutory limits of the existence of 4 1 their authority. Plaintiff also accuses the City of initiating and 2 promoting a meritless and malicious prosecution, which deprived 3 Plaintiff of his constitutional rights. 4 III. 5 PROCEDURAL BACKGROUND 6 On September 19, 2008, Plaintiff filed this § 1983 action 7 against the County of Fresno, City of Fresno, the Fresno Police 8 Department, Chief Jerry Dyer, Officers Robert Gonzales, Jesus 9 Cerda, Brent Willey, and Detectives Brian Valles and Brendan 10 Rhames. (Doc. 1, Original Complaint .) 11 dismiss Plaintiff s original complaint on March 17, 2009. 12 17.) 13 April 3, 2009. 14 dismiss, originally set for May 18, 2009, was continued to June 15, 15 2009 due to the press of court business. 16 2009, Plaintiff filed his first amended complaint ( FAC ), mooting 17 the then-pending motions to dismiss. 18 Fresno County moved to (Doc. City Defendants moved to dismiss the original complaint on County and (Doc. 19.) City The hearing on Defendants motions to Defendants (Doc. 30.) On June 3, (Doc. 31.) separately moved (Docs. 33, 34.) to dismiss 19 Plaintiff s FAC on June 15, 2009. Oral argument 20 on the motions to dismiss was held on September 14, 2009. 21 court issued a written decision on September 28, 2009, dismissing 22 Plaintiff s FAC without prejudice. (Doc. 41.) Plaintiff was given 23 twenty days from the issuance of the order to amend his complaint.1 24 (Id.) The 25 1 26 27 28 On November 2, 2009, Plaintiff filed a Request for Extension of Time, seeking thirty additional days to file an amended complaint. (Doc. 46.) The motion was granted on November 10, 2009. (Doc. 47.) Plaintiff was required to file a second amended complaint by December 9, 2009. (Id.) 5 1 Plaintiff filed his second amended complaint, ( SAC ), on 2 December 9, 2009. 3 Fresno, Robert Gonzales, Jesus Cerda, Brent Willey, and Brian 4 Valles as Defendants. 5 1. (Doc. 48.) The SAC s caption lists the City of The SAC alleges eight claims for relief: First Claim for Relief (All City Defendants) - Denial of 6 Constitutional Right Against Unreasonable Search and Seizure in 7 violation of the Fourth and Fourteenth Amendments pursuant to 28 8 U.S.C. § 1983; 9 10 2. Second Claim for Relief (Officer Defendants) - False Arrest and Imprisonment; 11 3. 12 Prosecution; 13 4. 14 15 16 17 18 19 20 21 22 Third Claim for Relief (Officer Defendants) - Malicious Fourth Claim for Relief (Officer Defendants) - Intentional Infliction of Emotional Distress; 5. Fifth Claim for Relief (Officer Defendants) - Violation of California Civil Code § 52.1; 6. Sixth Claim for Relief (All City Defendants) - Vicarious Liability; 7. Seventh Claim for Relief (Officer Defendants) - Violation of California Civil Code § 51.7; and 8. Eighth Claim for Relief (Officer Defendants) - Negligence. 23 24 The SAC prays for injunctive relief enjoining City Defendants 25 from authorizing, allowing, or ratifying the use of excessive force 26 by its police officers; for a public apology from all Defendants; 27 28 6 1 and for attorney s fees as provided by law.2 County 2 and City Defendants separately 3 Plaintiff s SAC on December 11, 2009. 4 opposed the motions on February 22, 2010. moved (Docs. 49, 53.) to dismiss Plaintiff (Doc. 55.) 5 IV. 6 LEGAL STANDARD 7 Under Federal Rule of Civil Procedure 12(b)(6), a motion to 8 dismiss can be made and granted when the complaint fails to state 9 a claim upon which relief can be granted. Dismissal under Rule 10 12(b)(6) is appropriate where the complaint lacks a cognizable 11 legal theory or sufficient facts to support a cognizable legal 12 theory. 13 (9th Cir. 1990). Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 14 To sufficiently state a claim to relief and survive a 12(b)(6) 15 motion, a complaint does not need detailed factual allegations 16 but the [f]actual allegations must be enough to raise a right to 17 relief above the speculative level. 18 550 U.S. 544, 555 (2007). 19 formulaic recitation of the elements of a cause of action will not 20 do. 21 relief that is plausible on its face. 22 words, [t]o survive a motion to dismiss, a complaint must contain 23 sufficient factual matter, accepted as true, to state a claim to 24 relief that is plausible on its face. Bell Atl. Corp. v. Twombly, Mere labels and conclusions or a Id. Rather, there must be enough facts to state a claim to Id. at 570. In other Ashcroft v. Iqbal, --- U.S. 25 26 27 28 2 Plaintiff s request for attorneys fees was stricken from the FAC pursuant to the September 28, 2009 Order. (Doc. 41.) Pro se civil litigants are not entitled to attorney's fees. See Kay v. Ehrler, 499 U.S. 432, 435-38 (1991). 7 1 ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal 2 quotation marks omitted). 3 to a probability requirement, but it asks for more than a sheer 4 possibility 5 complaint 6 defendant's 7 possibility and plausibility of entitlement to relief. 8 (internal citation and quotation marks omitted). that pleads a The plausibility standard is not akin defendant facts liability, that it has acted unlawfully. are stops merely short of Where with consistent the line a a between Id. 9 In deciding whether to grant a motion to dismiss, the court 10 must accept as true all well-pleaded factual allegations. Iqbal, 11 129 S.Ct. at 1950. 12 true allegations that are merely conclusory, unwarranted deductions 13 of fact, or unreasonable inferences. 14 Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see, e.g., Doe I v. 15 Wal-Mart Stores, Inc., --- F.3d ----, 2009 WL 1978730, at *3 (9th 16 Cir. July 10, 2009) ( Plaintiffs' general statement that Wal-Mart 17 exercised control over their day-to-day employment is a conclusion, 18 not a factual allegation stated with any specificity. We need not 19 accept Plaintiffs' unwarranted conclusion in reviewing a motion to 20 dismiss. ). 21 A court is not, however, required to accept as Sprewell v. Golden State The Ninth Circuit has summarized the governing standard, in 22 light of Twombly and Iqbal, as follows: 23 to survive a motion to dismiss, the non-conclusory factual content, 24 and reasonable inferences from that content, must be plausibly 25 suggestive of a claim entitling the plaintiff to relief. 26 U.S. Secret 27 quotation marks omitted). Service, 572 F.3d 962 28 8 In sum, for a complaint (9th Cir. 2009) Moss v. (internal V. 1 DISCUSSION 2 A. Fresno County 3 On June 15, 2009, Fresno County moved to dismiss Plaintiff s 4 FAC, arguing that the allegations against it were insufficient 5 under Rule 12(b). 6 written order, it was determined that Fresno County District 7 Attorney Elizabeth Egan was not a proper defendant for Plaintiff s 8 § 1983 claim; the court also found that he could not sustain a 9 constitutional In particular, via the September 28, 2009 claim against Fresno County for alleged 10 constitutional violations by its District Attorneys. 11 22:23-26:16.) These claims/parties were dismissed without leave to 12 amend. Plaintiff, however, was given one additional opportunity to 13 perfect his Monell claim against the County of Fresno. 14 (Doc. 41 at (Id.) Fresno County now moves to dismiss Plaintiff s SAC for three 15 reasons. First, the County argues that it should be dismissed 16 because the SAC does not name the County as a Defendant. 17 the SAC does not contain any substantive allegations against the 18 County or its employees. 19 the complaint demonstrates that Plaintiff did not intend to serve 20 the SAC on the County. Second, Third, the proof of service attached to 21 Courts have held that an amended complaint that drops a 22 defendant named in the original complaint effectively dismisses 23 that defendant from the action. 24 09-02300-SI, 2009 WL 2982830 (N.D. Cal. Sep. 14, 2009) ( [W]here 25 the plaintiff does not rename a particular defendant in an amended 26 complaint, no judgment may issue against that defendant. ) (quoting 27 Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 28 1542 (9th Cir. 1990)); see also King v. Atiyeh, 814 F.2d 565, 567 See Hafiz v. Indymac Fed. Bank, C- 9 1 (9th Cir. 1987) ("All causes of action alleged in an original 2 complaint 3 waived."). 4 5 6 7 8 9 10 which are not alleged in an amended complaint are Rasidescu v. Midland Credit Mgmt., Inc., 435 F. Supp. 2d 1090 (S.D. Cal. 2006), held: Once filed, the amended complaint supersedes the original: it must stand or fall on its own; jurisdictional and other allegations essential to the claim must be realleged; and the original complaint is rendered irrelevant unless the amended complaint incorporates by reference portions of the prior pleading. An amended complaint that drops a defendant named in the original complaint effectively dismisses that defendant from the action. 11 Id. at 1101 (citations omitted). 12 Plaintiff's SAC neither names the County of Fresno as a 13 defendant in its caption, nor contains any substantive allegations 14 against the County or its employees. The allegations against the 15 County have been superceded by the SAC or were dismissed by prior 16 court order. Plaintiff has not perfected his Monell claim against 17 the County despite being given one last opportunity to amend his 18 complaint. The County s request for an order dismissing it from 19 this action is GRANTED WITH PREJUDICE. 20 21 B. City of Fresno Defendants 22 1. 42 U.S.C. § 1983 (Claim I) 23 Defendants City of Fresno, Officers Robert Gonzales, Jesus 24 Cerda, Brent Willey, and Detective Brian Valles seek 12(b)(6) 25 dismissal of Plaintiff s 42 U.S.C. § 1983 on grounds that the 26 claims fail to allege necessary elements or are barred by the 27 doctrine of collateral estoppel. 28 10 a. 1 2 Monell Liability Plaintiff brings a § 1983 constitutional violation claim 3 against 4 Amendments. 5 "constitutional 6 Brosseau, 339 F.3d 857, 874 (9th Cir. 2003) (citing Monell v. Dep't 7 of Soc. Servs., 436 U.S. 658, 691 n.55 (1978)) 8 that local governments can be sued under § 1983 necessarily decides 9 that local government officials sued in their official capacities 10 are persons under § 1983 in those cases in which, as here, a 11 local government would be suable in its own name". 12 U.S. at 691 n.55. 13 directly under § 1983 for monetary, declaratory, or injunctive 14 relief 15 unconstitutional, 16 ordinance, 17 promulgated by that body's officers ... [or for] deprivations 18 visited pursuant to governmental 'custom' even though such a custom 19 has not received formal approval through the body's official 20 decision making channels." 21 the City of Fresno under the Fourth and Fourteenth Local governments are "persons" subject to suit for where, tort[s]" as a § 1983. Haugen v. "[O]ur holding ... Monell, 436 "Local governing bodies, therefore, can be sued here, the implements regulation, Although under 42 U.S.C. local or action or that executes decision is a alleged policy officially to be statement, adopted and Id. at 690-91. government can be held liable for its 22 official policies or customs, it will not be held liable for an 23 employee's actions outside of the scope of these policies or 24 customs. "[T]he language of § 1983, read against the background of 25 the same legislative history, compels the conclusion that Congress 26 did not intend municipalities to be held liable unless action 27 pursuant to official municipal policy of some nature caused a 28 constitutional tort. In particular, ... a municipality cannot be 11 1 held liable solely because it employs a tortfeasor. A municipality 2 cannot be held liable under § 1983 on a respondeat superior 3 theory." 4 liability on a government that, under color of some official 5 policy, causes an employee to violate another's constitutional 6 rights." Id. at 691. The statute's "language plainly imposes Id. at 692. To prevail on a § 1983 claim against a local government under 7 8 Monell, a 9 official(s) plaintiff must must have satisfy a three-part violated the plaintiff's test: (1) The constitutional 10 rights; (2) The violation must be a part of a policy or custom and 11 may not be an isolated incident; and (3) A nexus must link the 12 specific policy or custom to the plaintiff's injury. See Monell, 13 436 U.S. at 690-92. 14 custom of a municipality: There are three ways to show a policy or (1) By showing a longstanding practice or custom which constitutes the standard operating procedure of the local government entity; 15 16 (2) By showing that the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision or 17 18 19 (3) By showing that an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate. 20 21 22 Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). 23 A municipal policy may be inferred from widespread practices 24 or evidence of repeated constitutional violations for which the 25 errant municipal officers were not discharged or reprimanded. Id. 26 Municipalities can be held liable "if its deliberate policy caused 27 the constitutional violation alleged." 28 484. 12 Blackenhorn, 485 F.3d at 1 The City argues that Plaintiff s Monell claim fails because he 2 again fail[s] to plead that the alleged constitutional violations 3 were 4 Department. 5 Monell claim under the Iqbal standard, was discussed in detail at 6 the September 14, 2009 oral argument and in the September 28, 2009 7 Order. 8 9 10 11 12 13 14 pursuant to a custom or policy (Doc. 53-2, 5:1-5:2.) of the Fresno Police This issue, i.e., pleading a The September 28, 2009 Order provides: Prior to Iqbal, a claim of municipal liability under section 1983 [was] sufficient to withstand a motion to dismiss even if the claim [was] based on nothing more than a bare allegation that the individual officers' conduct conformed to official policy, custom, or practice. However, Iqbal has made clear that conclusory, threadbare allegations that merely recite the elements of a cause of action will not withstand a motion to dismiss. Even under a Whitaker standard, Plaintiff s FAC is insufficient. Plaintiff s FAC fails to even cite a custom or policy of the City or any other indicia of Monell liability, other than a conclusory incantation that the City knew of an illegal policy. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff has not sufficiently alleged that, in depriving him of his constitutional rights, a City employee was acting pursuant to an official policy, custom or practice of the City of Fresno. There is a brief reference to an illegal policy, but no explanation as to what comprises the illegal policy, pattern, practice, custom referred to in the FAC [...] As best understood, paragraph 45 of the FAC refers to the City s knowledge of an illegal policy, pattern, practice, custom concerning the District Attorney s decision to file criminal charges against him. Plaintiff s factual description ends there. If Plaintiff seeks to allege a claim against the City, Plaintiff must identify what policy or custom he is challenging and how that policy or custom deprived him of his constitutional rights. At this time, it is unclear what policy, pattern, practice, custom Plaintiff refers to and how the City s purported knowledge of these policies deprived him of his constitutional rights [...] The allegations in the FAC do not identify challenged policy/custom, explain how policy/custom is deficient, explain how 13 the the the policy/custom caused the plaintiff harm. City Defendants' motion to dismiss is GRANTED. Plaintiff has already amended his complaint once. Leave to amend is GRANTED for one final opportunity. No further leave will be given. 1 2 3 4 (Doc. 41 at 12:22-15:6.) (citations omitted). 5 Plaintiff has not cured his pleading deficiencies. Here, 6 Plaintiff alleges that Defendants City of Fresno and its officers 7 violated his civil rights and wrongfully held [him] in custody 8 against his will for six months, and emotionally distressed [him]. 9 (SAC ¶ 14.) Plaintiff further alleges that Defendants deprived 10 the Plaintiff of his right to be free from unreasonable search and 11 seizures, and Defendants knew or should have known of the 12 Plaintiff s rights, and knew and should have known that their 13 wrongful and illegal conduct violated Plaintiff s rights. (Id. 14 ¶ s 57, 60.) The SAC, however, fails to allege or identify an 15 official custom or policy of the City of Fresno that caused the 16 alleged constitutional violations. This is fatal to Plaintiff s 17 Monell claim against the City. See, e.g., Blankenhorn, 485 F.3d at 18 484; see also Funez ex rel. Funez v. Guzman, --- F.Supp.2d ----, 19 2009 WL 5064982 (D. Or. Dec. 15, 2009) (dismissing Plaintiff s 20 Monell claim on grounds that the complaint failed to identify a 21 specific policy or custom); Wilson v. City of Fresno, CV-09-0887- 22 LJO-SMS, 2009 WL 3233879 (E.D. Cal. Oct. 2, 2009) (Plaintiff s § 23 1983 discrimination claim is conclusory and fails to establish the 24 City's Monell liability [....] [t]he complaint identifies no policy 25 with particularity to connect the City's execution of such policy 26 to [Plaintiff s] alleged [] deprivation. ). 27 Plaintiff has not sufficiently alleged that, in depriving him 28 14 1 of his constitutional rights, a City employee was acting pursuant 2 to an official policy, custom or practice of the City of Fresno.3 3 Plaintiff's allegations do not support a claim against the City of 4 Fresno under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). 5 The motion is GRANTED. No further leave will be given. 6 b. 7 Collateral Estoppel 8 Plaintiff asserts a § 1983 claim against Defendants Gonzales, 9 Cerda, Willey, and Valles on grounds that Plaintiff was arrested 10 and prosecuted without probable cause.4 11 understood, the substance of Plaintiff s complaint is that Mr. 12 Billet, the alleged victim, gave inconsistent statements to the 13 police and changed his testimony during the preliminary hearing. 14 According to Plaintiff, Prosecutor Esmeralda Garcia, who is not a 15 party to this action, knew Billet s statements were inconsistent 16 and failed to act, leading to the probable cause finding, his pre- 17 trial incarceration, and his trial. 18 Defendants argue that Plaintiff To the extent it can be should be estopped from 19 20 21 22 23 3 Plaintiff s Monell claim fails because he has neither pled any facts suggesting that the City of Fresno had an unconstitutional policy or custom nor indicated how the City of Fresno violated his constitutional rights. See City of Canton v. Harris, 489 U.S. 378, 385 (1989) (There must be a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. ). 24 4 25 26 27 28 Plaintiff sues Defendants Gonzales, Cerda, Willey, and Valles in their individual capacities for liability under § 1983. Plaintiff alleges that his arrest was unlawful and that Defendants deprived [him] of his right to be free from unreasonable searches and seizures. (SAC ¶ 57.) Defendants move to dismiss the claim on grounds that it is barred under the doctrine of collateral estoppel. 15 1 challenging the propriety of his arrest under McCutchen v. City of 2 Montclair, 73 Cal. App. 4th 1138 (1999) and Heath v. Cast, 813 F.2d 3 254 4 sufficiency of probable cause for his arrest was necessarily 5 determined in the preliminary hearing held on March 13, 2007, after 6 which 7 re-litigate the question of probable cause through this case. (9th 1987).5 Cir. Plaintiff was Defendants held over for contend trial, that because Plaintiff may the not 8 The doctrine of collateral estoppel, or issue preclusion, 9 prevents re-litigation of legal and/or factual issues necessarily 10 considered and determined in a prior legal proceeding between the 11 same parties, or their privies. 12 U.S. 90, 94 (1980); 13 890, 895 (1989). 14 equal force to claims brought under § 1983. 15 105. 16 primarily a legal question. Ayers v. City of Richmond, 895 F.2d 17 1267, 1270 (9th Cir. 1990). State law governs the application of 18 collateral estoppel to issues that were decided in a prior state 19 court proceeding. See id.; Allen, 449 U.S. at 96 (state law 20 applicable for prior state judgments). See, e.g., Allen v. McCurry, 449 McGowan v. City of San Diego, 208 Cal. App. 3d The collateral estoppel doctrine applies with See Allen, 449 U.S. at Whether collateral estoppel applies in a given case is 21 Under California law, collateral estoppel is applied where: 22 (1) the issue sought to be precluded is identical to that which was 23 decided in a prior proceeding; (2) that issue was actually 24 25 26 27 28 5 The defense of collateral estoppel may be considered on a motion to dismiss if the court can take judicial notice of all relevant facts. See Day v. Moscow, 955 F.2d 807, 811 (2nd Cir. 1992); see also McClain v. Apodaca, 793 F.2d 1031, 1032-33 (9th Cir. 1986) (district court may examine preclusive effect of prior judgment sua sponte). 16 1 litigated and necessarily decided in that proceeding; (3) there was 2 a final judgment on the merits; and (4) that party against whom 3 collateral estoppel is asserted was a party or in privity with a 4 party to the prior proceeding. 5 1145; Heath, 813 F.2d at 258. 6 proceeding 7 subsequent civil suit. 8 208 Cal. App. 3d 890, 895 (1989); 9 1144; may have See McCutchen, 73 Cal. App. 4th at In California, a prior criminal collateral estoppel implications for a See, e.g., McGowan v. City of San Diego, McCutchen, 73 Cal. App. 4th at Heath, 813 F.2d at 258. 10 A probable cause determination at a preliminary hearing is 11 considered a final judgment on the merits because the defendant can 12 immediately appeal the determination. 13 F.3d 285, 288-89 (9th Cir. 1994); 14 1145-46. 15 determination by filing a motion to set aside the preliminary 16 hearing under California Penal Code § 995 and then obtain review of 17 the decision on this motion by filing a writ of prohibition under 18 California Penal Code § 999a. 19 1146. Consequently, a preliminary hearing that determines probable 20 cause to arrest may bar subsequent claims under § 1983 based on 21 this issue, but not in all circumstances. 22 City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004) ( [A] [civil] 23 plaintiff [in a § 1983 action] can rebut a prima facie finding of 24 probable cause [ ] by showing that the criminal prosecution was 25 induced by fraud, corruption, perjury, fabricated evidence, or 26 other wrongful conduct undertaken in bad faith. ). See Haupt v. Dillard, 17 McCutchen, 73 Cal. App. 4th at In California, an accused can immediately appeal the See McCutchen, 73 Cal. App. 4th at See, e.g., Awabdy v. 27 Plaintiff maintains that collateral estoppel does not apply to 28 his § 1983 claim because the trial judge erred in deciding that 17 1 Plaintiff should be held to answer for the charges of robbery. 2 (Doc. 55 at 4:19-20.) 3 inconsistent testimony was considered by the judge at the hearing 4 and led to the adverse and incorrect probable cause ruling. 5 Plaintiff 6 intervening, officers perjured 7 themselves or caused Billet to change his testimony. The SAC 8 provides in relevant part: also blames but does On Plaintiff s account, Billet s false and Prosecutor not allege Esmeralda that the Garcia for 39. On March 13, 2007 the Plaintiff and other charged individuals appeared at the preliminary hearing to see if there is enough evidence to hold the plaintiff and go to trial. Billet testified at the hearing and considerably changed his story on what occurred that evening of January 7, 2007. During his testimony, Billet made no mention that he worked for Comcast Cable and that he was working on his friend s cable box on the day of the alleged incident. Billet[ s] new story was, that he and his friend went to someone s house to score a bag of marijuana. 40. Prosecutor Esmeralda Garcia from Defendant County District Attorney Office was present at the hearing. Ms. Garcia knew or reasonabl[y] should have known that the alleged victim, Billet, story was contradictive [sic] and inconsistent from his original statements on January 7, 2007. 41. Defendants Willey and Cerda hearing before Judge Hoff. 42. 9 not Plaintiff was held to answer Count-1 [robbery] and the drug charges were dropped. Plaintiff was plead to the mid-term of Count-1, to dismiss as to the gun enhancement. 10 11 12 13 14 15 16 17 18 19 testified at the 20 21 22 23 (SAC ¶ s 39-42.) 24 Defendants advance two reasons why the doctrine of collateral 25 estoppel bars Plaintiff s § 1983 claim: (1) Plaintiff admitted 26 to answering to the robbery charge in both his second amended 27 complaint and opposition; and (2) the transcript of the March 13, 28 18 1 2007 preliminary hearing demonstrates that probable cause existed 2 to try Plaintiff on the robbery charge. 3 transcript, portions of which are attached to Plaintiff s SAC and 4 opposition, provides:6 5 Court: 6 7 8 9 The March 13, 2007 All right. As to the charge in Count 1 of the complaint, felony offense of robbery under Penal Code Section 211 charged against Defendant Number 1, Demetrius Harvey only, the court finds that there is sufficient evidence to establish that the crime of robbery has occurred and there s also sufficient, reasonable and probable cause that the defendant Harvey is guilty thereof. I order he be held to answer that charge. 10 The court is also satisfied that there s sufficient evidence to establish the personal use of a firearm within the meaning of Penal Code Section 12022.53(b) as to defendant Harvey in Count 1, and therefore, he s held to answer as alleged in Count 1. 11 12 13 14 (Doc. 55, Exh. 1, March 13, 2007 Preliminary Hearing, 56:13-57:2.) 15 This finding precludes Plaintiff s § 1983 claim alleging the 16 Defendants violated his Fourth and Fourteenth Amendment rights when 17 they arrested him. Although the specific finding states only that 18 there was probable cause to hold Plaintiff for trial and does not 19 specifically address whether there was probable cause to arrest, 20 under California law, "a finding of sufficiency of the evidence to 21 22 23 24 25 26 27 6 The Court takes judicial notice of the March 13, 2007 preliminary hearing transcript. See Backe v. Novatel Wireless, Inc., 607 F. Supp. 2d 1145 (S.D. Cal. 2009) ( In evaluating a motion to dismiss, a court may consider evidence on which the complaint necessarily relies as long as: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion. ). In addition, the Court may consider matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) 28 19 1 require the defendant to stand trial is a finding of probable cause 2 to arrest the defendant." 3 (citing Haupt, 17 F.3d at 289). 4 at 5 underscore his civil-rights claim. 6 established Ninth Circuit precedent, the March 13, 2007 probable 7 cause 8 Defendants Gonzales, Cerda, Willey, and Valles. Plaintiff's finding See McCutchen, 73 Cal. App. 4th at 1145 preliminary forecloses The issues necessarily determined hearing are the same issues Under McCutchen and well- Plaintiff s § 1983 claim That is not the end of the inquiry, however. 9 that against Courts have 10 identified factual circumstances that limit or eliminate collateral 11 estoppel effects of a prior criminal preliminary hearing. In Haupt 12 v. 13 situations: (1) where facts were presented to the judicial officer 14 presiding over the preliminary hearing which were additional to (or 15 different from) those available to the officers at the time they 16 made an arrest; and (2) where tactical considerations prevented a 17 litigant/prior criminal defendant from vigorously pursuing the 18 issue 19 prosecution/preliminary hearing. 20 decision identified a third factual exception to the Haupt 21 doctrine: (3) where a plaintiff alleges that the arresting officer 22 lied or fabricated evidence presented at the preliminary hearing. 23 McCutchen, 73 Cal. App. 4th at 1147. 24 these three exceptions, however, California plaintiffs may not 25 re-litigate the issue of probable cause. Dillard, of 17 F.3d probable 285, the cause SAC Ninth Circuit during the found prior See id. at 289. such criminal The McCutchen In the absence of one of 26 Here, Plaintiff's 27 untruthfulness or 28 officers/detectives. In particular, Plaintiff has neither pled nor fraud contains two on the 20 no part allegations of the regarding arresting 1 indicated that the Defendant officers/detectives perjured 2 themselves or fabricated evidence. The gravamen of Plaintiff s SAC 3 focuses on Billet s changed story, and the prosecutor s alleged 4 failure to intervene. 5 those applying the Haupt and McCutcheon exceptions. 6 Hernandez v. City of Los Angeles, CV-04-09262-FMC, 2005 WL 5714358 7 (C.D. Cal. Jan. 6,2005) (dismissing Plaintiff s § 1983 claim, on 8 collateral estoppel grounds, after finding that his allegations did 9 not implicate Haupt or McCutchen exceptions) with Guerrero v. City 10 and County of San Franciso, C-00-1247-THE, 2003 WL 22749099 at *5 11 (N.D. Cal. Nov. 18, 2003) (denying Defendants collateral estoppel 12 argument because plaintiff alleges that [the officer] falsely 13 testified at the preliminary hearing and falsely stated in his 14 affidavit supporting the arrest warrant that [the victim] had told 15 him that plaintiff had vaginally penetrated [the victim] [on a 16 number of occasions]. ). This case is readily distinguishable from Compare 17 As pled, collateral estoppel bars Plaintiff from relitigating 18 the issue of probable cause to arrest, and the motion to dismiss is 19 granted on Plaintiff's § 1983 claims against Defendants Gonzales, 20 Cerda, 21 indicated that the exceptional circumstances discussed in Haupt 22 or McCutcheon exist in this case. 23 PREJUDICE.7 Willey, and Valles. Plaintiff has neither pled nor The motion is GRANTED WITH 24 25 26 27 28 7 Although it is generally preferable to decide a collateral estoppel defense on a motion for summary judgment rather than on a motion to dismiss, see Morley v. Walker, 175 F.3d 756, 761 (9th Cir. 1999), under the circumstances of this case, dismissing Plaintiff s claims on a motion to dismiss is warranted. See Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992). In addition, the 21 c. 1 Equal Protection Claim 2 Plaintiff alleges a claim for violation of his right to equal 3 protection, contending that the actions of Defendant officers were 4 driven 5 allegations are comprised of one paragraph: by race 91. 6 7 8 discrimination. The SAC's equal protection Plaintiff is informed and believes and alleges that the conduct of the officers and does 110, was motivated by racial prejudice against Plaintiff because Billet [the victim] is white. Plaintiff is and was readily recognizable African-American. 9 10 (SAC ¶ 91.) Defendants move to dismiss Plaintiff s equal protection claim 11 12 on 13 unconstitutional animus or motive. 14 protection violation must indicate that there are at least two 15 classifications of persons who are treated differently under the 16 law. 17 1226 (9th Cir. 1990). 18 animus. 19 (9th Cir. 2003). 20 grounds that the allegations do not adequately state an A party alleging an equal Christian Gospel Church v. San Francisco, 896 F.2d 1231, A plaintiff must also allege discriminatory Bingham v. City of Manhattan Beach, 341 F.3d 939, 948-49 Plaintiff has not done either. Plaintiff s second amended complaint has not appropriately 21 22 23 24 25 26 27 28 holdings of Moreno v. Baca, CV-00-07149-ABC-CWX, 2001 WL 1204113 (C.D. Cal. July 9, 2001) and White v. City of Fresno, CV-F-05-1558OWW, 2007 WL 3341470 at *21 (E.D. Cal. Nov. 9, 2007) are distinguishable. Those cases presented an incomplete testimonial record, thus the question of the potential collateral estoppel effect could not be resolved without resorting to facts outside of the operative pleadings. This case is differs for two reasons: (1) as pled, Plaintiff s allegations against the Defendant officers do not implicate the Haupt or McCutcheon exceptions; and (2) the probable cause finding is not in dispute. This case is analogous to Hernandez v. City of Los Angeles, supra. 22 1 identified with particularity the conduct undertaken by Defendants 2 that 3 sufficiently described how two classifications of persons were 4 treated differently under the law. 5 Plaintiff's equal protection rights were violated because the 6 victim was caucasian and he is African-American. 7 are alleged. This is insufficient under Iqbal. Defendants motion 8 to dismiss the equal protection claim is GRANTED. rises to intentional discrimination. Nor has he The SAC merely alleges that No other facts 9 2. 10 11 State Law Claims Plaintiff alleges causes of action against Defendants 12 Gonzales, Cerda, Willey, and Valles for false arrest/imprisonment 13 (Count 14 infliction of emotional distress (Count IV), negligence (Count 15 VIII) and violations of California Civil Code §§ 52.1 (Count V) and 16 51.7 (Count VII). 17 Liability against the City of Fresno and County of Fresno. II), malicious prosecution (Count III), intentional He also alleges a cause of action for Vicarious 18 a. 19 False Arrest/Imprisonment (Count II) and Malicious Prosecution (Count III) 20 21 Plaintiff alleges 24 Defendants 25 arrest/imprisonment and malicious prosecution are precluded under 26 the doctrine of collateral estoppel. Collateral estoppel for Plaintiff's bars false Defendants imprisonment (Count II) and malicious prosecution (Count III). that Valles against 23 contend and action Gonzales, 28 Willey, of 22 27 Cerda, causes claims arrest for and false Defendants are correct. Plaintiff s claims for false arrest/imprisonment and malicious prosecution because the issue of 23 1 probable cause has already been determined in state court. 2 e.g., Rutledge v. County of Sonoma, C-07-4274-CW, 2009 WL 3075596, 3 (N.D. Cal. Sep. 22, 2009). Under the analysis discussed above, the 4 preliminary hearing provided a final determination that there was 5 probable cause to prosecute. As an essential element of each claim 6 is 7 Plaintiff from relitigating this issue in connection with his false 8 arrest/imprisonment and malicious prosecution claims. 9 of Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1030 (9th want of probable 2008) (stating cause, the the March elements of 13, a 2007 claim finding for See, bars See Estate 10 Cir. malicious 11 prosecution in California); see also Flowers v. County of Fresno, 12 CV-F-09-0051-LJO-GSA, 2009 WL 1034574 at *8 (E.D. Cal. April 16, 13 2009) (discussing the necessity of probable cause in the context of 14 a false arrest/imprisonment claim). Plaintiff provided no argument 15 or evidence disputing City Defendants' argument on this point. The determination of probable cause at the March 13, 2007 16 17 hearing operates as a complete defense to these tort claims. 18 motion is GRANTED. 19 The are DISMISSED WITH PREJUDICE. Plaintiff s second and third causes of action 20 b. 21 IIED (Count IV) Defendants move to dismiss Plaintiff s IIED claim on grounds 22 23 that the only 24 outrageous 25 establish a prima facie case of intentional infliction of emotional 26 distress, Plaintiff must show extreme and outrageous conduct by 27 Defendant, the intention to cause or reckless disregard of the 28 probability of causing emotional distress, actual severe emotional is conduct the identified arrest, and 24 by Plaintiff subsequent as allegedly detention. To 1 suffering by Plaintiff, and actual and proximate causation of the 2 emotional distress. 3 (1999); 4 790, 808 (2006). For conduct to be extreme and outrageous, it must 5 be so extreme as to exceed all bounds of that usually tolerated in 6 a civilized community. 7 Cal. App. 4th at 809. 8 9 10 Potter v. Firestone 6. Cal. 4th 965, 1001 Delfino v. Agilent Technology, Inc., 145 Cal. App. 4th Potter, 6 Cal. 4th at 1001; Delfino, 145 In his opposition, Plaintiff submits that paragraphs 79 through 82 of the SAC properly establish a claim for IIED. 55 at 5:16-5:18.) (Doc. The relevant portion of the SAC provides: 79. Plaintiff re-alleges and incorporates herein paragraphs 1 through 78 above, as though fully set forth in this Claim for relief. 80. As alleged above, defendants, and each of them, acted willfully, knowingly, maliciously, in bad faith and with the intention to cuase Plaintiff humiliation, mental anguish, and severe emotional distress; and defendants acted with the knowledge that such injuries would occur. 81. 11 As a direct, proximate, and legal result of the above illegal and wrongful acts defendants, and each of the defendants, Plaintiff suffered injury, damages, and losses, including, but not limited to the following, in the amount that will be proven at trial; a. Loss of liberty b. Loss of comfort and emotional support for his girlfriend during pregnancy c. Severe emotional distress d. Public degradation, e. Loss of income. e. Loss of income 82. The above described conduct by named officers and Does 1 throgh 25, and each of them, were willful, oppressive, intentional and malicious; punitive and exemplary damages and therefore [sic] to make an example of and punish named defendants officers and Does 1 through 25. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (SAC ¶ s 79-82.) Defendants correctly note that the conclusory allegations set 25 1 forth in the SAC are insufficient to state a claim for IIED. 2 Plaintiff again fails to cure the pleading deficiencies attendant 3 to his IIED claim. 4 September 28, 2009 Order: 5 6 7 8 9 10 11 12 13 14 15 16 17 Here, This point was discussed in detail in the [T]he complaint must be dismissed because it fails to put the individual defendants on notice of the claims asserted against them. Under Federal Rule of Civil Procedure 8, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. A pleading may not simply allege a wrong has been committed and demand relief. While Rule 8 does not demand detailed factual allegations, it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Put another way, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim is plausible when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Plaintiff's state law causes of action, in total, fail to meet the rigors of Iqbal. 18 19 20 21 22 23 In his opposition brief Plaintiff submits that his FAC is sufficient to sue Defendant named officers ... Plaintiff has put these officers on notice that they are being sued. Plaintiff also states that he needs discovery, which includes police documents and trial records ... Plaintiff will amend his complaint accordingly, pending discovery. However, in Iqbal, the Supreme Court rejected a similar argument, finding that a motion to dismiss a complaint for insufficient pleadings does not turn on the controls placed upon the discovery process. 24 25 26 Whatever state law claims Plaintiff intends to allege against any defendant in connection with the events of January 7, 2007 through June 6, 2007, he must state facts that support the elements of each cause of action, as to each defendant. 27 28 (Doc. 41 at 20:19-22:21.) (citations omitted). 26 1 At this time Plaintiff has had over one year and one-half to 2 conduct discovery. 3 his conclusory allegations. 4 5 He has not discovered any facts that support The motion is GRANTED. Plaintiff s fourth cause of action for IIED is DISMISSED WITH PREJUDICE. 6 c. 7 Cal. Civil Code § 52.1 (Claim V) 8 Plaintiff includes a cause of action invoking California Civil 9 Code § 52.1, premised on violations of his rights under the Fourth 10 and Fourteenth Amendments. 11 right of action for an individual whose exercise of enjoyment of 12 rights secured by the Constitution or laws of the United States, or 13 of rights secured by the Constitution or laws of [California], has 14 been interfered with by threats, intimidation, or coercion, or 15 attempts to interfere by threats, intimidation, or coercion. Cal. 16 Civ. Code § 52.1(a). 17 Defendants argue Section 52.1 establishes a private that plaintiff has failed to allege 18 sufficient facts to be entitled to relief under § 52.1. 19 defendants correctly point out, § 52.1 provides remedies for 20 violations 21 violation is accompanied by threats, intimidation, or coercion. 22 See Reynolds v. County of San Diego, 84 F.3d 1162 (9th Cir. 1996); 23 Austin B. v. Escondido Union School Dist., 149 Cal. App. 4th 860 24 (2007). 25 unlawfully and were malicious, Plaintiff does not allege that 26 any defendant threatened him, intimidated him, or coerced him. 27 Plaintiff does not state a claim under § 52.1. 28 of constitutional or statutory rights where As the Here, while Plaintiff alleges that Defendants acted Moreover, Plaintiff s § 52.1 claims does not rely on a proper 27 1 constitutional or statutory claim, as his § 1983 claim was barred 2 by the doctrine of collateral estoppel. 3 separate theory to advance a § 52.1 claim. 4 and no further leave will be given. He does not advance a The motion is GRANTED 5 d. 6 Vicarious Liability (Claim VI) 7 The sixth cause of action is alleged against the City of 8 Fresno and Defendants Gonzales, Cerda, Willey, and Valles. After 9 incorporating all preceding allegations, the sixth cause of action 10 alleges: 11 88. Defendants City, pursuant to Gov. Code Section 815.2(a), are vicariously liable to plaintiff for their injuries and damages suffered as alleged, incurred as a proximate result of the previous mentioned [sic] of intentional, negligent, and wrongful conduct of the name ddefendant officers and DOES 1-25, as stated in the Second through Fifth Causes of Action. 89. As a proximate result of named Defendants conduct, plaintiff suffered injuries and damages. 12 13 14 15 16 17 (SAC ¶ s 88-89.) 18 Defendants move to dismiss Plaintiff s sixth claim because 19 vicarious liability is not a cause of action in and of itself 20 [...] there must be an underlying tort or statutory violation by an 21 employee in the course and scope of his employment before vicarious 22 liability can attach. Defendants are correct. Because Plaintiff s 23 claims are either barred by the doctrine of collateral estoppel or 24 are legally insufficiently, there is no basis to impose vicarious 25 liability. Given the absence of any legal authority supporting the 26 cause of action, the vicarious liability claim is DISMISSED WITH 27 PREJUDICE. 28 28 e. 1 Cal. Civil Code § 51.7 (Claim VII) 2 Plaintiff's seventh cause of action is for violation of the 3 Unruh Civil Rights Act, California Civil Code Section 51.7. It is 4 asserted only against Defendants Gonzales, Cerda, Willey, and 5 Valles. 6 California Civil Code § 51.7 grants the right to be free from 7 any violence, or intimidation by threat of violence, committed 8 against persons or property because of a characteristic listed or 9 defined in California's Unruh Civil Rights Act, California Civil 10 Code § 51. 11 violation of § 51 because no facts are alleged that come within the 12 scope of the statute. 13 Defendants move to dismiss Plaintiff's claim for Here, as discussed in § V(B)(1)(c), supra, Plaintiff has not 14 sufficiently pled a racial discrimination claim. Plaintiff has 15 also failed to allege that any defendant committed violence against 16 him or threatened violence against him. 17 51.7 is DISMISSED WITH PREJUDICE. Plaintiff s claim under § 18 f. 19 Negligence (Claim VIII) 20 Plaintiff's SAC alleges that defendants were negligent in 21 causing unnecessary harm and distress to persons through their use 22 of force and making arrests. 23 the negligence claim should be dismissed because probable cause for 24 the arrest was established at the March 13, 2007 hearing and 25 Defendants owed no legal duty to Plaintiff in relation to their 26 investigation. (SAC ¶ 95.) Defendants argue that 27 The elements of a cause of action for negligence are (1) a 28 legal duty to use reasonable care, (2) breach of that duty, and (3) 29 1 proximate [or legal] 2 plaintiff's 3 Cal.App.4th 1333, 1339 (1998) (citation omitted). 4 of a legal duty to use reasonable care in a particular factual 5 situation is a question of law for the court to decide. 6 v. Residential Investments, Inc., 118 Cal. App. 4th 269, 278 (2004) 7 (citation omitted). injury. cause between Mendoza v. the City breach of Los and (4) Angeles, the 66 The existence Vasquez 8 To the extent that Plaintiff argues that he has a cause of 9 action for negligence against Defedants Gonzales, Cerda, Willey, 10 and Valles for arresting him in January of 2007, this claim is 11 dismissed. 12 his claim, was supported by probable cause, negating his claim. To 13 the extent that Plaintiff makes a negligence claim against the City 14 of Fresno for the circumstances surrounding his January 2007 15 arrest, it also dismissed. 16 authority permitting such a cause of action. 17 to specifically allege the existence of a duty and the breach of 18 that duty. The January 2007 arrest, which provides the basis for Plaintiff fails to cite any California Plaintiff also fails 19 Plaintiff s negligence claim primarily fails because the state 20 court found that probable cause existed to hold Plaintiff over for 21 trial on the burglary charge. 22 Fresno nor its officers breached any duty it owed Plaintiff, if one 23 was owed. 24 officers is DISMISSED WITH PREJUDICE. Consequently, neither the City of The negligence claim against the City of Fresno and its 25 26 27 28 3. Attempt At Amendment Plaintiff s claims are largely barred by the doctrine of collateral estoppel. His remaining claims are not cognizable as a 30 1 matter of law. 2 his 3 allegations. Plaintiff was given several opportunities to amend complaint, but failed to provide sufficient factual Defendants motion is GRANTED WITH PREJUDICE. 4 VI. 5 CONCLUSION 6 For the foregoing reasons: 7 1. Plaintiff s Monell claim against the County is DISMISSED 8 WITH PREJUDICE. 9 from this action is GRANTED. 10 2. The County s request for an order dismissing it Plaintiff's § 1983 claim against the City of Fresno, 11 Robert Gonzales, Jesus Cerda, Brent Willey, and Brian Valles is 12 barred under the doctrine of collateral estoppel. 13 DISMISSED WITH PREJUDICE. 14 15 16 3. The claim is Plaintiff s Monell claim against the City of Fresno is DISMISSED WITH PREJUDICE. 4. Plaintiff fails to sufficiently 17 protection claim against Defendants. 18 allege an equal Plaintiff s equal protection claim is DISMISSED WITH PREJUDICE. 19 5. 20 hearing 21 arrest/imprisonment and malicious prosecution claims. These causes 22 of action are DISMISSED WITH PREJUDICE. 23 24 25 26 27 28 6. The determination of probable cause at the March 13, 2007 operates as a complete defense to Plaintiff s false Plaintiff s fourth cause of action for IIED is DISMISSED WITH PREJUDICE. 7. Plaintiff s fifth cause of action for a violation of California Civil Code §§ 52.1 is DISMISSED WITH PREJUDICE. 8. Plaintiff s sixth cause of action for vicarious liability is DISMISSED WITH PREJUDICE. 31 9. 1 2 California Civil Code §§ 51.7 is DISMISSED WITH PREJUDICE. 10. 3 4 Plaintiff s seventh cause of action for a violation of Plaintiff s eighth cause of action for negligence is DISMISSED WITH PREJUDICE. Defendants shall submit a form of order consistent with, and 5 6 within five (5) days 7 following electronic service memorandum decision. 8 9 10 IT IS SO ORDERED. Dated: aa70i8 March 8, 2010 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 32 of, this

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