Popescu v. San Diego, City of et al, No. 3:2015cv01657 - Document 8 (S.D. Cal. 2016)
Court Description: ORDER granting in part and denying in part Defendants' 5 Motion to Dismiss for Failure to State a Claim. The Motion to Dismiss is granted as to Counts 1, 2, 3, 5, and 6. Counts 1 and 2 are dismissed with prejudice, as are Dfts Pagan, Hunter, Durina, Vile, Hudgins, Nislett, Hastings, Novac, Sanders, Lansdowne, and Aguirre because they are outside the statute of limitations. Counts 3 and 5 are dismissed with prejudice, along with Dfts Lynch and Biggler for failure to state a cause of actio n. Dft San Diego Police Department is dismissed with prejudice. Count 6 is dismissed without prejudice. If Plaintiff chooses to amend this cause of action only, he must do so by 5/17/2016. Dfts Gloria, Goldsmith, Todd, Saenz, Benavidez, and Casillas are dismissed without prejudice from the Complaint. The Motion to Dismiss is denied with respect to Count 4 and the allegations against Fish, Keefe, Barnes, and the City of San Diego. Signed by Judge Cynthia Bashant on 4/26/2016. (All non-registered users served via U.S. Mail Service)(jah)
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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 VIRGIL POPESCU, 13 Case No. 15-cv-01657-BAS(JLB) Plaintiff, 14 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS v. 15 CITY OF SAN DIEGO, et al., 16 [ECF No. 5] Defendants. 17 18 19 20 I. INTRODUCTION 21 The Plaintiff, Virgil Popescu, filed his Complaint, pursuant to 42 U.S.C. § 22 1983, ostensibly for false arrest, emotional distress, retaliation, illegal seizure, 23 malicious prosecution, fabrication of evidence, false witnesses, false imprisonment, 24 theft of property, and “refusal to arrest criminal who injured Plaintiff” against the 25 City of San Diego; the San Diego Police Department; San Diego Police Chief 26 William Lansdowne; Mayor Jerry Sanders; Acting Mayor Todd Gloria; City 27 Attorney Mike Aguirre; City Attorney Jan Goldsmith; San Diego Police Officers 28 Hunter, Lynch, Biggler, Dodd, Keefe, and Fish; San Diego Police Sergeants Saenz, –1– 15cv1657 1 Durina, Benavides, Casillas, Barnes, Nislett, Hastings, and Novac; San Diego Police 2 Detectives Vile and Hudgins; and Parking Enforcement Officer Robert Pagan. 3 (Complaint, ECF No. 1.) 4 Defendants filed a Motion to Dismiss the Complaint. (ECF No. 5.) Plaintiff 5 opposed, and Defendants responded to this Opposition. (ECF Nos. 6, 7.) The Court 6 finds this motion suitable for determination on the papers submitted and without oral 7 argument. 8 GRANTS IN PART AND DENIES IN PART Defendants’ Motion to Dismiss the 9 Complaint. See Civ. L.R. 7.1(d)(1). For the reasons stated below, this Court 10 11 II. STATEMENT OF FACTS Background 12 A. 13 Virgil Popescu’s problems began in 2006, when he received parking tickets 14 from Parking Enforcement Officer Pagan. In a federal lawsuit, filed in 2006, Popescu 15 claimed that he was targeted by Pagan because of religious bumper stickers. (See 16 Popescu v. City of San Diego, No. 3:06-cv-01577-WMC (S.D. Cal.)) In that lawsuit, 17 Popescu alleged that Officer Pagan targeted him because the officer was, in fact, a 18 “pagan” whose last name indicated he did not believe in God. (Complaint, Popescu 19 v. City of San Diego, No. 3:06-cv-01577-WMC (S.D. Cal. Aug. 8, 2006), ECF No. 20 1.)1 21 Following a bench trial, the Court ruled, “Plaintiff failed to meet his burden of 22 proving that Officer Pagan violated his constitutional rights by issuing one or more 23 parking violations in a discriminatory manner based on Plaintiff’s political or 24 religious beliefs.” (Judgment in a Civil Case, Popescu v. City of San Diego, No. 25 3:06-cv-01577-WMC (S.D. Cal. Dec. 8, 2011), ECF No. 115.) 26 27 28 Although “[j]udicial notice of court records is routinely accepted,” the Court will only take judicial notice of the fact that these documents with these allegations were filed in earlier cases, not for the truth of the matter asserted therein. See Rowland v. Paris Las Vegas, No. 13-cv-2630-GPCDHB, 2014 WL 769393, at *3 (S.D. Cal. Feb. 25, 2014). –2– 15cv1657 1 1 In 2007, Popescu was arrested and convicted by a jury of stalking Parking 2 Enforcement Officer Pagan, a conviction Popescu claims has since been overturned 3 by the Appellate Court. (Complaint ¶ 14, ECF No. 1.) In 2010, Popescu filed a 4 lawsuit against the City of San Diego; the San Diego Police Department; Mayor 5 Sanders; Police Chief Lansdowne; City Attorney Aguirre; Detectives Vile and 6 Hudgins; Sergeants Salenz, Durina, Benavides, Hastings, Nislett, and Novak; Police 7 Officer Hunter; Parking Enforcement Officer Pagan, his wife, and daughter; and 8 Postal Inspector Antonio Villareal. (Popescu v. City of San Diego, No. 3:10-cv- 9 00220-BEN-AJB (S.D. Cal.).) In that lawsuit, Popescu claimed two 2007 arrests, 10 including the one for stalking Pagan, were in retaliation for the complaints he filed 11 against Pagan. (Complaint, Popescu v. City of San Diego, No. 3:10-cv-00220-BEN- 12 AJB (S.D. Cal. Jan. 28, 2010), ECF No. 1.) Additionally, Popescu alleged he 13 complained to Mayor Sanders, Police Chief Lansdowne, and City Attorney Aguirre, 14 but they did nothing. (Id.) Finally, Popescu alleged that Detectives Vile and Hudgins 15 stole $10,000 cash from him when they executed the search warrant incident to the 16 arrest in 2007. (Id.) The Court dismissed the 2010 complaint for failure to state a 17 claim. (Order, Popescu v. City of San Diego, No. 3:10-cv-00220-BEN-AJB (S.D. 18 Cal. Feb. 19, 2010), ECF No. 3.) 19 The Complaint in this Case 20 B. 21 On July 24, 2015, Popescu filed this lawsuit. (Complaint, ECF No. 1.) In this 22 lawsuit, Popescu alleges six counts for violation of his civil rights. Counts One and 23 Two allege false arrest, false imprisonment, retaliation, theft, and fabrication of 24 evidence all based on the same two 2007 arrests, one allegedly occurring on June 6, 25 2007, and one on September 17, 2007. Interestingly, the amount of money stolen 26 during the search warrant seems to have increased in the ensuing years, and Popescu 27 now alleges that during execution of the search warrant Detective Hudgins stole 28 $15,000 in cash from his house. (Complaint ¶ 50.) –3– 15cv1657 1 In Count Three, Popescu alleges that on July 26, 2014, he was pushed and 2 assaulted by Roslyn Fleming and her step-father John Kennedy. (Complaint ¶¶ 18, 3 56.) When he reported this assault to the police, he claims, Officers Lynch and 4 Biggler refused to arrest either Kennedy or Fleming. (Complaint ¶ 58.) 5 In Count Four, Popescu claims that on September 10, 2013, he was again 6 illegally arrested, this time by Officers Keefe and Fish, who also illegally searched 7 his residence. (Complaint ¶¶ 65, 66.) According to the Complaint, Popescu was 8 subject to a permanent restraining order obtained by Fleming and Kennedy, but he 9 claims he did not violate the restraining order, and thus the Officers arrested him 10 without probable cause. (Complaint ¶¶ 19, 64.) When Plaintiff demanded to speak 11 to a supervisor, Sergeant Barnes spoke to him and participated in the illegal arrest 12 and search. (Complaint ¶ 66.) 13 In Count Five, Popescu alleges that a friend of his was illegally detained on 14 February 14, 2015, when officers asked him about Virgil Popescu. (Complaint ¶¶ 15 76). And in Count Six, Popescu alleges he was illegally stopped and falsely accused 16 of making an illegal right turn on December 30, 2014. (Complaint ¶¶ 21, 78.) During 17 this stop, Popescu claims two police officers came on both sides of his car and stared 18 at him “with their hands near the guns, ready to draw and shoot.” (Complaint ¶ 78.) 19 Instead, however, the officers just gave him a ticket. (Complaint ¶ 78.) 20 21 III. LEGAL STANDARD 22 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 23 Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. 24 Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court 25 must accept all factual allegations pleaded in the complaint as true and must construe 26 them and draw all reasonable inferences from them in favor of the nonmoving party. 27 Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). To avoid a 28 Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, –4– 15cv1657 1 rather, it must plead “enough facts to state a claim to relief that is plausible on its 2 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial 3 plausibility when the plaintiff pleads factual content that allows the court to draw the 4 reasonable inference that the defendant is liable for the misconduct alleged.” 5 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombley, 550 U.S. at 556). 6 “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s 7 liability, it stops short of the line between possibility and plausibility of ‘entitlement 8 to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). 9 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 10 relief’ requires more than labels and conclusions, and a formulaic recitation of the 11 elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (quoting 12 Papasan v. Allain, 478 U.S. 265, 286 (1986) (alteration in original). A court need 13 not accept “legal conclusions” as true. Iqbal, 556 U.S. at 678. Despite the deference 14 the court must pay to the plaintiff’s allegations, it is not proper for the court to assume 15 that “the [plaintiff] can prove facts that [he or she] has not alleged or that defendants 16 have violated the…laws in ways that have not been alleged.” Associated Gen. 17 Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 18 (1983). 19 As a general rule, a court freely grants leave to amend a complaint which has 20 been dismissed. Fed. R. Civ. P. 15(a). However, leave to amend may be denied 21 when “the court determines that the allegation of other facts consistent with the 22 challenged pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. 23 v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). 24 25 IV. LEGAL ANALYSIS 26 As a preliminary matter, Plaintiff makes no factual allegations against Acting 27 Mayor Todd Gloria, City Attorney Jan Goldsmith, Police Officer Dodd, or Police 28 Sergeants Benavides and Casillas. Therefore, the Complaint against Defendants –5– 15cv1657 1 Gloria, Goldsmith, Dodd, Benavides, and Casillas is DISMISSED WITHOUT 2 PREJUDICE for failure to state a cause of action. 3 Furthermore, since the City of San Diego did not set up its Police Department 4 as a separate legal entity, the Plaintiff may not sue the San Diego Police Department. 5 See McKee v. L.A. Interagency Metro. Police Apprehension Crime Task Force, 134 6 Cal. App. 4th 354, 359 (2005) (holding that in the absence of an agreement to create 7 a legally separate entity, plaintiff may not sue a municipal department, including a 8 police department). 9 DISMISSED WITH PREJUDICE. Hence, Defendant San Diego Police Department is 10 Counts One and Two 11 A. 12 Plaintiff’s first and second causes of action for events that occurred on June 6 13 and September 17, 2007, are time barred. See Maldonado v. Harris, 370 F.3d 945, 14 954 (9th Cir. 2004) (“In determining the proper statute of limitations for actions 15 brought under 42 U.S.C. §1983, we look to the statute of limitations for personal 16 injury actions in the forum state.”); Cal. Civ. Proc. § 335.1 (requiring an action for 17 personal injury in California to be brought within two years). Plaintiff filed this 18 Complaint on July 24, 2015, almost eight years after the events occurred in Counts 19 One and Two. (ECF No. 1.) Therefore, the first and second causes of action are 20 DISMISSED WITH PREJUDICE. Since the only allegations against Defendants 21 Pagan, Hunter, Durina, Vile, Hudgins, Nislett, Hastings, Novac, Sanders, 22 Lansdowne, and Aguirre are in these time-barred causes of action, the Complaint is 23 DISMISSED against these Defendants.2 24 // 25 // 26 27 28 2 Additionally, it appears these causes of action were already litigated in Popescu v. City of San Diego, No. 3:06-cv-01577-WMC (S.D. Cal.), and Popescu v. City of San Diego, No. 3:10-cv00220-BEN-AJB (S.D. Cal.). However, since the causes of action are filed past the statute of limitations, the Court need not explore the issues of res judicata or collateral estoppel further. –6– 15cv1657 Count Three 1 B. 2 In Count Three, Popescu alleges that Officers Lynch and Biggler refused to 3 protect him by arresting John Kennedy who had just assaulted him. (Complaint ¶¶ 4 57–59.) Popescu claims, as a result “Defendants” subjected Popescu “to more abuse 5 and mistreatment by John Kennedy and his family.” (Complaint ¶ 60.) 6 The California Tort Claims Act, California Government Code Sections 810 et 7 seq., provides immunity for public employees in various situations. California 8 Government Code Section 846 provides, “Neither a public entity nor a public 9 employee is liable for injury caused by the failure to make an arrest or by the failure 10 to retain an arrested person in custody.” Similar immunities are provided for a public 11 employee causing injury: (1) “resulting from his act or omission where the act or 12 omission was the result of the exercise of the discretion vested in him, whether or not 13 such discretion be abused,” Cal. Gov’t Code § 820.2; “by failing to enforce any law,” 14 id. § 818.2; and “by his . . . failure to enforce an enactment,” id. § 821. 15 To the extent Popescu simply alleges inaction on the part of the officers, their 16 actions are immunized by these California Government Code sections. See, e.g., 17 Michenfelder v. City of Torrance, 28 Cal. App. 3d 202, 207 (1972) (holding an 18 officer’s decision to make an arrest is vested in his discretion and thus is not 19 actionable); Lum v. Cnty. of San Joaquin, 756 F. Supp. 2d 1243, 1256 (E.D. Cal. 20 2010) (“The purpose of the statute is to prevent police from over-using their arrest 21 power merely to avoid civil liability that results from failure to arrest and detain.”). 22 Hence, Popescu’s third cause of action for “refusal to arrest criminal” is 23 DISMISSED. 24 Count Four 25 C. 26 In Count Four Popescu alleges that Officers Fish and Keefe and Sergeant 27 Barnes illegally arrested him and searched his residence without a warrant or 28 probable cause. (Complaint ¶¶ 19, 64.) Although Defendants argue the face of the –7– 15cv1657 1 Complaint shows the Officers’ conduct was reasonable and thus they are entitled to 2 qualified immunity, this is an issue better suited for summary judgment. The Court 3 must accept all factual allegations pleaded in the complaint as true and must construe 4 them and draw all reasonable inferences from them in favor of the nonmoving party. 5 Cahill v. Liberty Mutual Ins. Co., 80 F.3d at 337–38. 6 Although Popescu admits being subject to a permanent restraining order, he 7 alleges that he had a friend, Marvin Smith, serve an appeal of the restraining order, 8 and this was the only contact he had with the victim Ms. Fleming. (Complaint ¶¶ 19, 9 64.) Popescu alleges the officers looked at various documents, interviewed various 10 witnesses, including Marvin Smith, and nonetheless arrested him without probable 11 cause for a violation of the restraining order. (Id.) He claims the City elected not to 12 prosecute him for the alleged violation. (Id.) Finally, he alleges the three Officers 13 illegally searched his residence without a warrant. (Id.) Although the facts may 14 support defense counsel’s arguments at a summary judgment motion, at this point in 15 the proceedings, Popescu has alleged sufficient facts to state a cause of action for 16 illegal arrest and search. Hence, the Motion to Dismiss Count Four is DENIED. 17 Count Five 18 D. 19 In Count Five, Popescu alleges his civil rights were violated, when a friend of 20 his was stopped and questioned about him. (Complaint ¶ 76.) At a minimum, in 21 order to establish standing to sue, Plaintiff must allege an injury against him that is 22 “concrete or particularized” and not “conjectural or hypothetical.” 23 Defenders of Wildlife, 504 U.S. 555, 560 (1992). Plaintiff also must allege a causal 24 connection between the injury and the conduct complained of. Id. Lujan v. 25 Count Five has insufficient allegations of standing. Popescu fails to allege 26 how the stop of his friend was a “concrete or particularized” injury to him. Popescu 27 has even failed to allege that his friend was unwillingly or unlawfully detained. At 28 this point, the Complaint merely alleges that a friend of his was questioned about –8– 15cv1657 1 him, and this caused him “severe mental stress.” Even construing all allegations in 2 his favor, the allegations are insufficient and therefore will be DISMISSED. 3 Count Six 4 E. 5 In Count Six, Popescu alleges that he was stopped for making an illegal right 6 turn. (Complaint ¶ 78.) Although he makes a passing reference to officers with their 7 hands on their guns, ultimately, he concedes he was not arrested and was merely 8 ticketed for the offense. (Id.) 9 In order to allege a constitutional violation under section 1983, Plaintiff must 10 allege that officers deprived him of a constitutional right. 42 U.S.C. § 1983; Ketchum 11 v. Alameda Co., 811 F.2d 1243, 1245 (9th Cir. 1987). Plaintiff seems to allege that 12 the officers’ conduct in some way violated his constitutional rights because he was 13 afraid they might shoot him. However, the facts he alleges: (i) that the officers “had 14 their hands near to the guns and they were ready to draw their guns and shoot 15 Plaintiff,” and (ii) “that they stood there until the female officer returned, about five 16 minutes later, and gave the Plaintiff his papers, and ticket for an illegal turn,” 17 (Complaint ¶ 79), do not allege any constitutional violation. 18 constitutional right not to receive a traffic ticket. Although Plaintiff “expected to be 19 shot” and is “firmly convinced” that he might have been shot “execution style,” (id.), 20 he does not allege that any of his worries came to pass. Because Count Six fails to allege a violation of 42 U.S.C. § 1983, this Count 21 22 There is no is also DISMISSED. 23 24 V. CONCLUSION 25 Defendants’ Motion to Dismiss (ECF No. 5) is GRANTED IN PART AND 26 DENIED IN PART. With respect to Counts One, Two, Three, Five, and Six, the 27 Motion to Dismiss is GRANTED. Counts One and Two are DISMISSED WITH 28 PREJUDICE, as are Defendants Pagan, Hunter, Durina, Vile, Hudgins, Nislett, –9– 15cv1657 1 Hastings, Novac, Sanders, Lansdowne, and Aguirre because they are outside the 2 statute of limitations. Similarly, Counts Three and Five are also DISMISSED 3 WITH PREJUDICE, along with Defendants Lynch and Biggler, for failure to state 4 a cause of action. The Court finds “allegation of other facts consistent with the 5 challenged pleading could not possibly cure the deficiency” in these causes of action. 6 Schreiber, 806 F.2d at 1401. Likewise, Defendant San Diego Police Department is 7 DISMISSED WITH PREJUDICE. 8 Count Six is DISMISSED WITHOUT PREJUDICE. If Plaintiff chooses to 9 amend this cause of action only, he must do so no later than May 17, 2016. Similarly, 10 Defendants Gloria, Goldsmith, Todd, Saenz, Benavidez, and Casillas are 11 DISMISSED WITHOUT PREJUDICE from the Complaint. Finally, with respect 12 to Count Four and the allegations against Fish, Keefe, Barnes, and the City of San 13 Diego, the Motion to Dismiss is DENIED. 14 IT IS SO ORDERED. 15 16 DATED: April 26, 2016 17 18 19 20 21 22 23 24 25 26 27 28 – 10 – 15cv1657
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