Cherry v. Tyler, et al., No. 1:2018cv01268 - Document 17 (E.D. Cal. 2019)
Court Description: MEMORANDUM DECISION and ORDER Re Defendants' Notice of Motion and Motion to Dismiss 8 , signed by Chief Judge Lawrence J. O'Neill on 3/6/2019: 20-Day Deadline. (Hellings, J)
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1 2 3 UNITED STATES DISTRICT COURT 4 FOR THE EASTERN DISTRICT OF CALIFORNIA 5 6 ADORTHUS CHERRY, 7 Plaintiff, 8 9 10 11 1:18-cv-01268-LJO-EPG MEMORANDUM DECISION AND ORDER RE DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS (ECF No. 8) v. Modesto Police Sergeant JAMES “DERRICK” TYLER, Lieutenant TERRY SEESE, the CITY OF MODESTO, and JOHN/JANE DOEs #s 1 through 10, inclusive, Defendants. 12 13 I. PRELIMINARY STATEMENT TO PARTIES AND COUNSEL 14 Judges in the Eastern District of California carry the heaviest caseloads in the nation, and this 15 Court is unable to devote inordinate time and resources to individual cases and matters. Given the 16 shortage of district judges and staff, this Court addresses only the arguments, evidence, and matters 17 necessary to reach the decision in this order. The parties and counsel are encouraged to contact the 18 offices of United States Senators Feinstein and Harris to address this Court’s inability to accommodate 19 the parties and this action. The parties are required to reconsider consent to conduct all further 20 proceedings before a Magistrate Judge, whose schedules are far more realistic and accommodating to 21 parties than that of U.S. Chief District Judge Lawrence J. O’Neill, who must prioritize criminal and 22 older civil cases. 23 Civil trials set before Chief Judge O’Neill trail until he becomes available and are subject to 24 suspension mid-trial to accommodate criminal matters. Civil trials are no longer reset to a later date if 25 1 1 Chief Judge O’Neill is unavailable on the original date set for trial. Moreover, this Court’s Fresno 2 Division randomly and without advance notice reassigns civil actions to U.S. District Judges throughout 3 the Nation to serve as visiting judges. In the absence of Magistrate Judge consent, this action is subject 4 to reassignment to a U.S. District Judge from inside or outside the Eastern District of California. II. INTRODUCTION 5 Plaintiff Adorthus Cherry brings this action against Defendants Sergeant James “Derrick” Tyler, 6 7 Lieutenant Terry Seese, the City of Modesto, and Does 1-10. This action arises out of Plaintiff’s arrest 8 for allegedly threatening Sgt. Tyler at a high school football game. Plaintiff alleges causes of action for 9 violation of his constitutional rights pursuant to 18 U.S.C. §§ 1983 and 1985, federal common law, and 10 state law. Defendants move to dismiss all of Plaintiff’s claims for failure to state a claim under Federal 11 Rule of Civil Procedure 12(b)(6). For the reasons discussed below, the Court GRANTS IN PART and 12 DENIES IN PART Defendants’ motion to dismiss. 13 III. BACKGROUND 14 A. Factual Allegations 15 1. 16 Plaintiff Adorthus Cherry is a former resident of Modesto and former professional body builder. Plaintiff’s Initial Contacts with Modesto Police 17 ECF No. 1 ¶ 13. Defendant Sergeant Derrick Taylor is a veteran of the Modesto Police Force. Id. ¶ 14. 18 He was also, at the time of these events, the freshman running back coach for Modesto Central Catholic 19 High School football team. Id. Sgt. Tyler and Plaintiff were acquainted, including because Sgt. Tyler 20 once attempted to recruit Plaintiff’s eldest son, who was a star at Oakdale High School, to play for 21 Central Catholic. Id. 22 Plaintiff alleges that on or about June 9, 2016, several Modesto police officers confronted and 23 detained Plaintiff on the street in front of a Modesto Police Department-owned building. Id. ¶ 15. 24 Plaintiff pleads he filmed his encounter with police, within his rights, upon which police unlawfully 25 detained him, falsely accusing him of causing a disturbance. Id. While the questioning officers began to 2 1 leave the scene, Sgt. Tyler allegedly emerged from the building and questioned Plaintiff. Id. ¶ 16. Plaintiff pleads the officers who had departed returned and informed Plaintiff that since he was 2 3 on informal probation at the time for misdemeanor marijuana possession, he must submit to an 4 immediate search. Id. ¶ 17. While the officers detained Plaintiff outside the police building, they 5 ordered a probation search of his home. Id. During the probation search, police discovered a small 6 indoor marijuana grow. Id. Modesto Police then arrested Plaintiff and charged him with cultivation and 7 possession for sale of marijuana. Id. However, these charges were dismissed after Plaintiff allegedly 8 presented evidence that he and his wife were authorized as medical marijuana patients to possess and 9 cultivate all the marijuana that was seized from their home. Id. Also on or about June 9, 2016, the Modesto Police Department allegedly posted and/or 10 11 distributed the first of at least three “Criminal Information Bulletins” regarding Plaintiff. Id. ¶ 19. The 12 bulletins stated, in pertinent part: Cherry often videos officers with his telephone and /or from cameras outside his home. During his contacts with officers he attempts to bait officers with his demeanor into unwarranted uses of force or inappropriate arrests. He often posts videos or photographs of interactions with officers on the internet. Mr. Cherry is the subject of several restraining orders and appears to enjoy controversy and conflict with others including his family. His statements generally have not met the elements of terrorists threats, though his demeanor can be threatening. The Cherry’s have several civil cases in litigation as well. 13 14 15 16 17 Id. 18 Approximately one month later, Plaintiff posted the following criticism of Sgt. Tyler on 19 20 21 Plaintiff’s Facebook page: “CC [Central Catholic High school] employees a racist BLACK POLICE OFICER as a coach! Horrible!!!! See you in 10 wks!” Id. ¶ 20. Sgt. Taylor later testified that he interpreted “10 wks” to refer to the approaching rival varsity football game in Oakdale between Oakdale 22 High School and Modesto Central Catholic High School. Id. ¶ 21. Sgt. Tyler testified later that he 23 considered it threatening. Id. According to Tyler, he allegedly documented the post to his patrol 24 captain, but there is no evidence he took any other action. Id. 25 3 1 2. The Confrontation Between Sgt. Tyler and Plaintiff at a Football Game 2 On November 4, 2016, Plaintiff and Sgt. Tyler both attended the rival football game referenced 3 in Plaintiff’s Facebook post—Plaintiff to watch his son play and Sgt. Tyler as the coach for the freshman 4 running backs. Id. ¶ 22. (Sgt. Tyler was not coaching this varsity game but only attending as a guest.) 5 Sgt. Tyler allegedly was off duty and in civilian clothes. Id. The game took place at Oakdale High 6 School. Id. ¶ 4. 7 Around the end of halftime, as Sgt. Tyler was returning from the restroom and walking back 8 toward the football field, he saw Plaintiff walking in the opposite direction along with three or four other 9 people. Id. ¶ 23. Plaintiff alleges that Sgt. Tyler initiated a conversation, saying “What’s up” to 10 Plaintiff. Id. Plaintiff pleads that the men then had a verbal exchange in which Plaintiff accused Sgt. 11 Tyler of setting him up in the June 9, 2016 bust, which Sgt. Tyler denied. Id. A coach passing by asked 12 if there was a problem, to which Sgt. Tyler answered no, and stated that he had arrested Plaintiff once 13 before and could do so anytime he wanted. Id. Plaintiff alleges that at no point did he verbally or 14 physically threaten Sgt. Tyler. Id. ¶ 24. Nevertheless, Sgt. Tyler later testified that he did not take 15 anything Plaintiff said as a threat until Plaintiff said, “I’m going to get you,” to which Sgt. Tyler 16 responded, “Are you threatening me?” Id. ¶ 25. Plaintiff pleads that, according to Sgt. Tyler, Plaintiff 17 “cussed” and/or said something unintelligible in response. Id. Sgt. Tyler allegedly then continued onto 18 the field, finally walking away. Id. Plaintiff pleads Sgt. Tyler testified that he “didn’t pay attention to 19 [Cherry] after that.” Id. Throughout their exchange, the men stood at least several yards apart and were 20 separated by a fence. Id. ¶ 24. Sgt. Tyler eventually returned to the field and Plaintiff did not follow 21 Sgt. Tyler onto the field. Id. 22 Plaintiff alleges Sgt. Tyler did not summon the police officers who were working security at the 23 game after the encounter. Id. ¶ 26. Plaintiff pleads Sgt. Tyler did make a comment to Plaintiff’s son’s 24 coaches about “Getting Cherry.” Id. 25 4 1 3. Arrest After the Game 2 The same evening as the football game, Sgt. Tyler allegedly exchanged text messages with 3 Modesto Police Lieutenant Terry Seese. Id. ¶ 27. Plaintiff’s Complaint excerpts the exchange as 4 follows: Sgt. Tyler: Nothing like Cherries [sic] dad threatening me at a football game. Lt. Seese: Arrest him Sgt. Tyler: That’s the plan. Lt. Seese: I was joking. Sgt. Tyler: He knows what I do. And he is complaining about his last arrest. He thinks I set him up. I won’t do it myself. Lt. Seese: He’s an idiot / Welcome to the corral. Sgt. Tyler: . . . Yes he is an idiot . . . 5 6 7 8 9 10 Id. Plaintiff alleges that on or about the next day, November 5, 2016, Lt. Seese contacted his colleagues 11 in the Oakdale Police Department and arranged for them to contact Sgt. Tyler.1 Id. ¶ 30. Plaintiff 12 alleges Sgt. Tyler gave a false account of events to the Oakdale police, that Plaintiff had threatened Sgt. 13 Tyler the day before and that Sgt. Tyler had actually felt threatened. Id. Plaintiff claims that, according 14 to the Oakdale Police Officer who took the statement, “Tyler stated that he wanted Cherry arrested for 15 the threats.” Id. Plaintiff pleads that the Modesto Police Department then arrested Plaintiff at his home 16 the same day. Id. ¶¶ 31, 57. Police officers’ lapel cameras were allegedly turned off during a concurrent 17 search of Plaintiff’s home. Id. ¶ 31. The Stanislaus District Attorney’s office charged Plaintiff with violating California Penal Code 18 19 §§ 69 (threatening an officer with intent to interfere), 1361.1 (threatening a witness with intent to 20 dissuade), and 140(a) (threat of force or violence because of prior assistance in prosecution). Id. ¶ 32. 21 At the preliminary hearing on October 23, 2017, the Court dismissed the Penal Code § 69 charge 22 (because Tyler was off duty) and the § 136.1 charge (because Tyler was not a witness to any separate 23 24 25 1 The Oakdale Police Department is not a defendant in this case. 5 1 alleged crime), but held Cherry to answer on a newly-amended complaint alleging a violation of Penal 2 Code § 422 (criminal threats), as well as the original § 140(a) charge. Id. Shortly before the scheduled 3 jury trial, Plaintiff allegedly declined a plea offer. Id. ¶ 33. The day of trial, the District Attorney 4 dismissed the case. Id. 5 B. 6 Procedural Background Plaintiff filed his Complaint on September 14, 2018 in this Court. ECF No. 1. Plaintiff asserts 7 ten causes of action: (1) violation of 42 U.S.C. § 1983 for unreasonable search, seizure, arrest, 8 detention, and/or imprisonment violation of the Fourth Amendment Right, against Defendants Tyler and 9 Seese in their official capacities; (2) violation of 42 U.S.C. § 1983 for retaliation for, and interference 10 with, Free Speech in violation of the First Amendment against Defendants Tyler and Seese in their 11 official capacities; (3) violation of 42 U.S.C. § 1983 for failure to intervene against Defendants Tyler 12 and Seese in their official capacities; (4) violation of 42 U.S.C. § 1983 for deprivation of Procedural and 13 Substantive Due Process in violation of the Fourteenth Amendment against Defendants Tyler and Seese 14 in their Official Capacities; (5) violation of 42 U.S.C. § 1985 and Federal Common Law for conspiracy 15 against Defendants Tyler and Seese in their Official Capacities and Defendant Tyler in his individual 16 capacity; (6) violation of California law for false arrest and imprisonment against Defendants Tyler and 17 Seese in their official capacities, Defendant Tyler in his individual capacity, and the City of Modesto in 18 respondeat superior; (7) violation of California law for malicious prosecution against Defendants Tyler 19 and Seese in their individual capacities; (8) violation of California law for abuse of process against 20 Defendants Tyler and Seese in their individual capacities; (9) violation of California law for intentional 21 infliction of emotional distress against Defendants Tyler and Seese in their individual capacities; and 22 (10) violation of California law for negligence against Defendants Tyler and Seese in their official 23 capacities, Defendant Tyler in his individual capacity, and the City of Modesto in respondeat superior. 24 Defendants filed this motion to dismiss on December 21, 2018. ECF No. 8. Plaintiff opposed the 25 motion. ECF No. 11. Defendants filed a reply. ECF No. 14. Pursuant to Local Rule 230(g), the Court 6 1 determined that this matter was suitable for decision on the papers and took it under submission on 2 February 1, 2019. ECF No. 15. 3 4 IV. LEGAL STANDARD A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of the opposing party’s 5 pleadings. Dismissal of an action under Rule 12(b)(6) is proper where there is either a “lack of a 6 cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” 7 Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). When considering a motion to 8 dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted 9 as true and construed in the light most favorable to the pleading party. Cahill v. Liberty Mut. Ins. Co., 10 80 F.3d 336, 337-38 (9th Cir. 1996). The inquiry is generally limited to the allegations made in the 11 complaint. Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). 12 Under Rule 8(a), a complaint must contain “a short and plain statement of the claim showing that 13 the pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and 14 the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A plaintiff is 15 required to allege “enough facts to state a claim to relief that is plausible on its face.” Id. “A claim has 16 facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 17 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 18 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a 19 sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). 20 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 21 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading is 22 insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the elements of a 23 cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the 24 elements of a cause of action, supported by mere conclusory statements, do not suffice.”). Moreover, it 25 is inappropriate to assume that the plaintiff “can prove facts that it has not alleged or that the defendants 7 1 have violated the . . . laws in ways that have not been alleged[.]” Associated Gen. Contractors of Cal., 2 Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). In practice, “a complaint . . . must 3 contain either direct or inferential allegations respecting all the material elements necessary to sustain 4 recovery under some viable legal theory.” Twombly, 550 U.S. at 562. In other words, the complaint 5 must describe the alleged misconduct in enough detail to lay the foundation for an identified legal claim. 6 “Dismissal without leave to amend is proper if it is clear that the complaint could not be saved by 7 amendment.” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008). To the extent that the 8 pleadings can be cured by the allegation of additional facts, the Court will afford the plaintiff leave to 9 amend. Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) 10 (citations omitted). V. DISCUSSION 11 12 Defendants move to dismiss Plaintiff’s causes of action on the grounds that: (1) Plaintiff failed 13 to plead with sufficient particularity that Defendants acted under color of law; (2) Plaintiff failed to state 14 a claim for conspiracy; (3) Defendants are entitled to qualified immunity; (4) Plaintiff’s failure to 15 intervene claim is not permitted in a non-excessive force case; (4) Plaintiff’s state law claims must be 16 dismissed pursuant to the California Tort Claims Act. Plaintiff opposes all of Defendants’ arguments. 17 A. Under Color of State Law 18 “To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right 19 secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation 20 was committed by a person acting under the color of State law.” Long v. County of Los Angeles, 442 21 F.3d 1178, 1185 (9th Cir. 2006); Van Ort v. Estate of Stanewich, 92 F.3d 831, 836 (9th Cir. 1996). 22 Municipalities are included among those persons to whom § 1983 applies. Monell v. Dep’t of Soc. 23 Servs. of New York City, 436 U.S. 658, 690 (1978). “[W]hether a[n] . . . officer is acting under color of 24 state law turns on the nature and circumstances of the officer’s conduct and the relationship of that 25 conduct to the performance of his official duties.” Anderson v. Warner, 451 F.3d 1063, 1068 (9th Cir. 8 1 2006) (internal quotation marks and citations omitted). “It is firmly established that a defendant in a 2 § 1983 suit acts under color of state law when he abuses the position given to him by the State. Thus, 3 generally, a public employee acts under color of state law while acting in his official capacity or while 4 exercising his responsibilities pursuant to state law.” West v. Atkins, 487 U.S. 42, 49–50 (1988). The Ninth Circuit has held that there are “three critical requirements” that must be satisfied when 5 6 determining if an officer is acting under the color of state law. Anderson, 451 F.3d at 1068. 7 8 9 10 11 12 First, the defendant’s action must have been “performed while the officer is acting, purporting, or pretending to act in the performance of his or her official duties.” [McDade v. West, 223 F.3d 1135, 1140 (9th Cir. 2000)]. Second, the officer’s pretense of acting in the performance of his duties must have had the purpose and effect of influencing the behavior of others. See Van Ort v. Estate of Stanewich, 92 F.3d 831, 839–40 (9th Cir. 1996) (finding no color of state law because the victim had not opened the door based on defendant’s status as a police officer). Third, the challenged conduct must be “related in some meaningful way either to the officer’s governmental status or to the performance of his duties.” [Martinez v. Colon, 54 F.3d 980, 987 (1st Cir. 1995)]. 13 Id. at 1068–69. “Officers who engage in confrontations for personal reasons unrelated to law 14 enforcement, and do not purport or pretend to be officers, do not act under color of law.” Huffman v. 15 County of Los Angeles, 147 F.3d 1054, 1058 (9th Cir. 1998) (internal quotation marks, alterations, and 16 citations omitted). Likewise, “acts of officers in the ambit of their personal pursuits are plainly excluded 17 . . . [from] the words ‘under color of any law.’” Screws v. United States, 325 U.S. 91, 111 (1945). 18 Here, Plaintiff pleads with sufficient particularity facts that, if assumed to be true and every 19 reasonable inference is made in Plaintiff’s favor, show Defendants were acting under color of law. The 20 vast majority of the acts Plaintiff complains of occurred while Defendants were on duty and acting in 21 their official capacities as law enforcement officers. Moreover, to the extent the officers were not alleged 22 to be on duty, the Anderson factors weigh in favor of finding Defendants to have acted under color of 23 law. 24 First, most of the alleged actions that Plaintiff argues evince a conspiracy occurred in the 25 performance of Defendants’ official duties as law enforcement officers while the officers were on duty. 9 1 In 2015, the Modesto Police Department posted the first of three “Criminal Information Bulletins” that 2 Plaintiff alleges alerted officers to a “baseless and fabricated threat posed by Mr. Cherry,” and 3 “functioned as a blueprint for how to frame Cherry.” ECF No. 1 ¶ 19. While there are conflicting 4 allegations regarding the June 2016 confrontation with Modesto police that resulted in Plaintiff’s arrest, 5 Sgt. Tyler allegedly was involved via his questioning of Plaintiff, which for the purposes of this motion 6 can be inferred to have occurred while he was on duty. Id. ¶¶ 16 (“Sgt. Tyler . . . approached Cherry, 7 and began to question him”); but see id. ¶ 18 (“Sgt. Tyler did not participate in . . . the afore-described 8 incident.”). While Sgt. Tyler was not on duty during the verbal confrontation with Mr. Cherry at the 9 football game, he told a bystander he could arrest Plaintiff “anytime he wanted.” Id. ¶¶ 22-23. And Sgt. 10 Tyler was on duty the next day when he allegedly gave a false account of events to the Oakdale Police 11 Department and said that “he wanted Cherry arrested for the threats.” Id. ¶¶ 30, 61. Moreover, Plaintiff 12 alleges that during the football game Sgt. Tyler acted in concert with Lt. Seese, who was on duty, in a 13 manner as if Sgt. Tyler himself was on duty at the time. Id. ¶¶ 27, 61. Similarly, Lt. Seese allegedly was 14 on duty when he contacted the Oakdale Police Department and arranged for them to contact Sgt. Tyler. 15 Id. ¶¶ 30, 61. In addition, the allegedly false arrest of Mr. Cherry was performed by on-duty officers of 16 the Modesto Police Department. Id. ¶31. Finally, though the charge was ultimately dismissed because 17 Sgt. Tyler was off duty, Plaintiff was initially charged with violating California Penal Code § 69 for 18 deterring or preventing an officer from performing duties imposed upon the officer by law. Id. ¶ 32. 19 Second, the actions taken in the performance of Defendants’ duties, as alleged by Plaintiff, clearly 20 had the purpose and effect of influencing the behavior of others. At a minimum, the Defendants’ alleged 21 actions had the purpose and effect of causing the Oakdale Police Department to contact Sgt. Tyler 22 regarding the alleged threat, causing the Oakdale Police Department to issue a warrant for Plaintiff’s 23 arrest, causing the Modesto Police Department to arrest Plaintiff, and causing the (ultimately 24 unsuccessful) prosecution of Plaintiff by the Stanislaus District Attorney. Id. ¶¶ 30-34. 25 Third, all the above alleged conduct related in a meaningful way to the officers’ performance of 10 1 their duties. Again, the gravamen of Plaintiff’s allegations is that Defendants engaged in a conspiracy to 2 perform their official police duties in a manner to target Plaintiff. As described above, nearly every major 3 act complained of occurred while Defendants were “acting in [their] official capacit[ies] or while 4 exercising [their] responsibilities pursuant to state law.” West, 487 U.S. at 49–50, (1988). 5 The cases cited by Defendants are distinguishable. In each of those cases the off-duty police 6 officer held not to be acting under color of law was engaged entirely in conduct as a private citizen, or 7 otherwise was not acting pursuant to their law enforcement duties. See Gritchen v. Collier, 254 F.3d 8 807, 813 (9th Cir. 2001) (“No one suggests that threatening suit or bringing it is one of Collier’s duties 9 as a police officer. . . . Collier’s decision to threaten suit is not subject to the control of the Department. 10 Pursuing private litigation does not abuse Collier’s position or authority as a police officer, and Gritchen 11 does not argue otherwise. Beyond this, a defamation suit is quintessentially personal; it is to redress 12 reputational injury.”); Apata v. Howard, No. CIV.A. 05-3204, 2009 WL 29314, at *4 (D.N.J. Jan. 6, 13 2009) (“Although Fortenberry is a police officer, he filed the affidavit [that led to the allegedly false 14 arrest of plaintiff] with the Willingboro police in the same fashion as would any member of the public. . . . 15 There is no indication that Fortenberry’s status as an officer influenced the Willingboro Police 16 Department’s investigation of Apata.”); Smith v. Avent, No. 98 C 4389, 1999 WL 33891, at *2 (N.D. Ill. 17 Jan. 15, 1999) (“Here the allegations do not concern police duties. Rather, they are directed at actions 18 taken by Avent as a citizen filing a complaint against another citizen.”); Redding v. St. Eward, 241 F.3d 19 530, 532 (6th Cir. 2001) (off-duty officer did not act under color of law in calling 911 twice to report 20 attempted break-in, resulting in Plaintiff’s arrest, as officer’s “action in making the 911 calls and reports 21 to the responding officers were functionally equivalent to that of any private citizen calling for police 22 assistance”) (internal quotations omitted); Bennings v. Kearney, 2 F. App’x 218, 220 (2d Cir. 2001) 23 (“Bryan Kearney, as we believe any responsible parent would, reported his daughter’s allegations to the 24 police department that had jurisdiction over the incident, which as it happened was the department at 25 which Kearney worked. . . . Moreover, Bennings has not identified any facts that would give rise to an 11 1 inference that at any time thereafter Kearney used his authority as an officer to influence the 2 investigation.”). In other words, in the cases cited by Defendants, “the government officials acted 3 individually as wholly private citizens without the aid of any other government official.” Publius v. 4 Boyer-Vine, 237 F. Supp. 3d 997, 1011 (E.D. Cal. 2017). 5 As described above, most of the acts alleged in furtherance of the conspiracy to have Mr. Cherry 6 falsely arrested occurred while Defendants were on duty. The only off-duty conduct at issue was the 7 alleged confrontation between Mr. Cherry and Sgt. Tyler during the football game. Yet, accepting 8 Plaintiff’s allegations as true and making every reasonable inference in his favor, Sgt. Tyler did not act 9 as a private citizen would by, for example, reporting the threat to the on-duty officers present at the game, 10 calling 911, or otherwise contacting the police of his own initiative. Rather, Sgt. Tyler texted Lt. Seese, 11 who was on duty, and Lt. Seese later arranged for the Oakdale Police to contact Sgt. Tyler while Sgt. 12 Tyler and Lt. Seese were on duty the next day. It is reasonable to infer from these facts that Sgt. Tyler 13 did not report Plaintiff’s threat merely as a private citizen, but rather did so in a manner relating in a 14 meaningful way to Sgt. Tyler and Lt. Seese’s performance of their duties as police officers. 15 Therefore, for purposes of this motion, accepting all of Plaintiff’s allegations of material fact as 16 true and construing them in the light most favorable to Plaintiff, Plaintiff has pleaded with sufficient 17 particularity that Defendants were acting under color of law at all relevant times. 18 B. Failure to State a Claim for Conspiracy 19 Plaintiff brings a conspiracy claim pursuant to both “federal common law” and 42 U.S.C. 20 § 1985(2). § 1985(2) provides a cause of action “if two or more persons conspire for the purpose of 21 impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or 22 Territory, with intent to deny to any citizen the equal protection of the laws. . . .” The Ninth Circuit has 23 held that § 1985(2) requires that a plaintiff allege “class-based animus” to state a legally sufficient claim. 24 Portman v. County of Santa Clara, 995 F.2d 898, 909 (9th Cir. 1993); see also Bagley, 923 F.2d at 763 25 (“We have held, however, that [a] cognizable claim under [the second part of § 1985(2)] requires an 12 1 allegation of a class-based, invidiously discriminatory animus.” (citations and quotation marks omitted; 2 modifications in original)), cert. denied, 502 U.S. 1091 (1992); accord Whitehorn v. FCC, 235 F. Supp. 3 2d 1092, 1101 (D. Nev. 2002) (noting the requirement of “class-based or racial animus”), aff’d, 63 Fed. 4 App’x 346 (9th Cir. 2003). A plaintiff must also plead with particularity her membership in a class that 5 suffers from invidious discrimination. See Pioneer Lumber Treating, Inc. v. Cox, 5 F.3d 539 (9th Cir. 6 1993). 7 Even assuming for the purposes of this motion that all of Plaintiff’s allegations are true, Plaintiff 8 does not allege any facts suggesting membership in a protected class, and otherwise does not allege any 9 class-based animus or invidious discrimination to support a § 1985(2) equal protection claim. Plaintiff’s 10 pleading of the § 1985 claim consists of boilerplate quotations of the statute. See ECF No. 1 ¶ 87. The 11 only suggestion of class-based, invidiously discriminatory animus in Plaintiff’s complaint is 12 Mr. Cherry’s Facebook post that “CC [Central Catholic High school] employees a racist BLACK 13 POLICE OFICER as a coach! Horrible!!!! See you in 10 wks!” ECF No. 1 ¶ 20. However, Plaintiff 14 does not plead any additional facts elaborating on the alleged racist motivations for Defendants’ actions. 15 Such scant and, at best, indirect pleading of membership in a protected class, much less class-based 16 animus and invidious discrimination, is insufficient. Accordingly, Plaintiff’s §1985 conspiracy claim is 17 DISMISSED WITHOUT PREJUDICE. 18 Plaintiff’s second conspiracy claim is pleaded as a “federal common law” conspiracy. There is 19 no freestanding “federal common law conspiracy” right of action. Courts have construed such claims as 20 § 1983 conspiracy claims, and this Court does the same. See Burdett v. Reynoso, No. C-06-00720 JCS, 21 2007 WL 2429426, at *29 (N.D. Cal. Aug. 23, 2007) (finding common law conspiracy claim properly 22 construed as § 1983 claim and collecting authority recognizing such a right of action), aff’d, 399 F. App’x 23 276 (9th Cir. 2010). 24 A conspiracy claim brought under § 1983 requires proof of “an agreement or meeting of the minds 25 to violate constitutional rights,” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001) (quoting United Steel 13 1 Workers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540–41 (9th Cir. 1989) (citation omitted)), and 2 an actual deprivation of constitutional rights, Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting 3 Woodrum v. Woodward County, Okla., 866 F.2d 1121, 1126 (9th Cir. 1989)). “To be liable, each 4 participant in the conspiracy need not know the exact details of the plan, but each participant must at 5 least share the common objective of the conspiracy.” Franklin, 312 F.3d at 441 (quoting United Steel 6 Workers, 865 F.2d at 1541). Where allegations of conspiracy are involved, “[a]sking for plausible 7 grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply 8 calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal 9 agreement.” See Twombly, 550 U.S. at 556 (discussing necessary pleading for a conspiracy claim under 10 section 1 of the Sherman Act). “Direct evidence of improper motive or an agreement among the parties 11 to violate a plaintiff’s constitutional rights will only rarely be available. Instead, it will almost always be 12 necessary to infer such agreements from circumstantial evidence or the existence of joint action.” 13 Mendocino Envtl. Ctr. v. Mendocino County., 192 F.3d 1283, 1302 (9th Cir. 1999); see also Crowe v. 14 County of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (“A meeting of the minds can be inferred from 15 circumstantial evidence . . . .”). 16 Plaintiff’s complaint is scant on pleading explicit facts regarding the alleged agreement or 17 meeting of the minds between the Defendants to violate Plaintiff’s rights, much less the details of that 18 agreement. Nevertheless, accepting Plaintiff’s allegations as true for purposes of this motion and making 19 every reasonable inference in Plaintiff’s favor, Plaintiff pleads with sufficient particularity facts to state 20 a claim for § 1983 conspiracy. Critically, Plaintiff has pleaded facts providing sufficient circumstantial 21 evidence permitting a reasonable inference that Defendants had an ongoing plan to violate Plaintiff’s 22 constitutional rights by having him falsely arrested. 23 As a threshold matter, a reasonable inference may be drawn that there is longstanding animosity 24 (regardless of who is at fault) between Plaintiff and Defendants, as shown by the allegations regarding 25 the series of criminal bulletins singling out Plaintiff, the June 2016 confrontation with Modesto police, 14 1 and Plaintiff’s Facebook post. ECF No. 1 ¶¶ 15-21. But more critical are the events at the football game. 2 Sgt. Tyler and his patrol captain at the Modesto Police Department allegedly knew Plaintiff would be at 3 the football game due to Plaintiff’s Facebook post. ECF No. 1 ¶¶ 20-21. Plaintiff pleads that Sgt. Tyler 4 initiated the confrontation at the football game, and did not break off the exchange when he had an 5 opportunity to do so. Id. ¶¶ 24-25. During the confrontation, prior to any alleged threat by Plaintiff, Sgt. 6 Tyler allegedly told a bystander that “he had arrested Cherry once before and could do so any time he 7 wanted.” ECF No. 1 ¶ 24. Plaintiff pleads he did not verbally or physically threaten Sgt. Tyler. Id. 8 While Plaintiff allegedly stated “I’m going to get you” to Sgt. Tyler at some point in the conversation, 9 Plaintiff did not confirm he was intending to threaten Sgt. Tyler when pressed directly. Id. ¶ 25. After 10 Plaintiff’s alleged threat, Sgt. Tyler allegedly “said something in passing to Oakdale coaches about 11 ‘getting Cherry.’” Id. ¶ 26. Soon after, Sgt. Tyler and Lt. Seese engaged in the following exchange of 12 text messages: 13 14 15 16 17 Sgt. Tyler: Nothing like Cherries [sic] dad threatening me at a football game. Lt. Seese: Arrest him Sgt. Tyler: That’s the plan. Lt. Seese: I was joking. Sgt. Tyler: He knows what I do. And he is complaining about his last arrest. He thinks I set him up. I won’t do it myself. Lt. Seese: He’s an idiot / Welcome to the corral. Sgt. Tyler: . . . Yes he is an idiot . . . 18 Id. ¶ 27. A reasonable inference to draw from Sgt. Tyler’s statement “That’s the plan” is that he and 19 Lt. Seese had a pre-existing plan to have Plaintiff arrested, unrelated to any alleged threats at the football 20 game. Indeed, although Defendants argue that Lt. Seese’s “I was joking” response indicates that there is 21 no conspiracy, other reasonable inferences may be drawn and, at this stage, every reasonable inference 22 must be drawn in Plaintiff’s favor. For instance, viewing the texts in the light most favorable to 23 Plaintiff, a reasonable inference could be drawn that that Lt. Seese, upon seeing the “That’s the plan” 24 text, backtracked to say he was joking in order to cover up the conspiracy. Indeed, it seems 25 unreasonable to infer that Lt. Seese, upon hearing an officer was threatened by the subject of multiple 15 1 criminal information bulletins, would only joke that the suspect should be arrested. Moreover, 2 Sgt. Tyler’s statement “I won’t do it myself” also implies coordination outside of normal procedure to 3 have Plaintiff arrested. Lt. Seese did not object or restate that he was joking in response to Sgt. Tyler 4 implying he would have Plaintiff arrested by someone else. 5 Furthermore, Lt. Seese and Sgt. Tyler’s coordination with Oakdale Police Department provides 6 additional circumstantial evidence of a pre-existing agreement among the Defendants to have Plaintiff 7 wrongfully arrested outside of normal police procedures. The allegation that Lt. Seese contacted the 8 Oakdale Police Department the very next day, and requested Oakdale police contact Sgt. Tyler, not only 9 undercuts Lt. Seese’s statement that he was “joking,” but it also permits an inference that Lt. Seese is 10 effectuating “the plan.” Id. ¶ 29. T the allegations that Sgt. Tyler did not report the threat at the time it 11 was made or initiate the contact with the Oakdale police are further evidence that the effectuation of 12 Plaintiff’s arrest was performed outside normal law enforcement procedures. Id. ¶ 25-26. Indeed, 13 according to Plaintiff’s allegations, when contacted by Oakdale police, Sgt. Tyler performs his role in 14 the conspiracy by giving a false version of the confrontation at the football game, and telling the 15 Oakdale Police he wanted Plaintiff arrested. Id. ¶ 30. Inferences of misconduct also could be drawn 16 from the arresting Modesto officers’ alleged failure to turn on, or turning off, of their lapel cameras. Id. 17 ¶ 31. Accepting Plaintiff’s allegations as true, it is reasonable to infer from the above facts that there 18 was a pre-existing “agreement or meeting of the minds” among Defendants with the shared objective of 19 having Plaintiff falsely arrested, and the events at the football game provided Defendants the 20 opportunity to carry out that plan. See Gressett v. Contra Costa County, No. C-12-3798 EMC, 2013 WL 21 2156278, at *16 (N.D. Cal. May 17, 2013) (“Given the specific facts alleged regarding these 22 Defendants’ animosity to Gressett (i.e., motive), their acts consistent with a conspiracy to maliciously 23 prosecute Gressett, and the fact that these Defendants worked together within the same office, which 24 would have offered a heightened opportunity for collusion, the claim of a conspiracy involving the 25 Contra Costa Defendants is sufficiently plausible to satisfy Twombly and [Iqbal].”) (emphasis omitted); 16 1 United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1547 (9th Cir. 1989) (reversing 2 grant of summary judgment and holding that under the circumstances, “peculiar timing and aberrant 3 procedure,” while “susceptible of innocent interpretation, . . . support a justifiable inference of 4 conspiracy”); Gilbrook v. City of Westminster, 177 F.3d 839, 857 (9th Cir. 1999), as amended on denial 5 of reh’g (July 15, 1999) (“Acts which seem otherwise innocent, when viewed in the context of the 6 surrounding circumstances, may justify an inference of complicity.”) (quoting United States v. 7 Batimana, 623 F.2d 1366, 1368 (9th Cir.1980)). Finally, Plaintiff sufficiently pleaded the above alleged 8 conspiracy resulted in an actual constitutional deprivation, i.e., his false arrest. ECF No. 1 ¶¶ 30-36. 9 Therefore, Plaintiff pleads with sufficient particularity facts to support a claim for § 1983 10 conspiracy. 11 C. Qualified Immunity 12 Defendants argue that they are entitled to qualified immunity from all of Plaintiff’s claims. 13 Qualified immunity is an affirmative defense that “shield[s] an officer from personal liability when an 14 officer reasonably believes that his or her conduct complies with the law.” Pearson v. Callahan, 555 15 U.S. 223 (2009). The doctrine “protects government officials ‘from liability for civil damages insofar as 16 their conduct does not violate clearly established statutory or constitutional rights of which a reasonable 17 person would have known.’” Id. at 231 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 18 Further, it “balances two important interests—the need to hold public officials accountable when they 19 exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability 20 when they perform their duties reasonably.” Id. “The protection of qualified immunity applies 21 regardless of whether the government official’s error is ‘a mistake of law, a mistake of fact, or a mistake 22 based on mixed questions of law and fact.” Id. 23 To determine whether officers are entitled to qualified immunity, a court conducts a two-step 24 inquiry. “The threshold inquiry in a qualified immunity analysis is whether the plaintiff’s allegations, if 25 true, establish a constitutional violation.” Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th Cir. 17 1 2003) (citations omitted). “Second, if the plaintiff has satisfied this first step, the court must decide 2 whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” 3 Pearson, 555 U.S. at 231. To be a clearly established constitutional right, a right must be sufficiently 4 clear “that every reasonable official would [have understood] that what he is doing violates that right.” 5 Reichle v. Howards, 566 U.S. 658, 664 (2012) (citation and internal quotation marks omitted). “[T]he 6 relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be 7 clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. 8 Katz, 533 U.S. 194, 202 (2001). This inquiry “must be undertaken in light of the specific context of the 9 case, not as a broad general proposition.” Id. at 20. “This is not to say that an official action is protected 10 by qualified immunity unless the very action in question has previously been held unlawful, . . . but it is 11 to say that in the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 12 483 U.S. 635, 640 (1987) (citations omitted); see also City of Escondido, Cal. v. Emmons, 139 S. Ct. 13 500, 503 (2019). The Court finds Defendants are not entitled to qualified immunity as to any of Plaintiff’s claims. 14 15 First, Plaintiff’s 42 U.S.C. § 1983 causes of action—numbers one, two, three, and four—are against 16 Defendants Tyler and Seese in their official capacities. ECF No. 1. Qualified immunity is not available 17 to defendants sued only in their official capacity. See Daniels Sharpsmart, Inc. v. Smith, 889 F.3d 608, 18 616 (9th Cir. 2018). Therefore, Defendants are not presently entitled to qualified immunity from 2 19 Plaintiff’s first four causes of action. 20 21 22 23 24 25 2 The Court further notes that, while neither party raised this issue, an official capacity claim against either officer defendant is equivalent to stating a Monell claim for entity liability. See Hafer v. Melo, 502 U.S. 21, 25 (1991); Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (“A suit against a governmental officer in his official capacity is equivalent to a suit against the governmental entity itself.”); Monell, 436 U.S. at 694 (“Liability may attach to a municipality only where the municipality itself causes the constitutional violation through “execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Monell, 436 U.S. at 694; see also Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986) (“The ‘official policy’ requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.”). Plaintiff’s complaint does not plead an official policy, custom, or other basis for Monell liability. Nevertheless, the Court does not decide whether Plaintiff’s § 1983 official capacity claims must be dismissed under Monell at this time. 18 1 Second, Plaintiff’s fifth claim, for § 1985 conspiracy and federal common law conspiracy 2 (relabeled here as § 1983 conspiracy), is against Defendants Tyler and Seese in their official capacities, 3 and against Defendant Tyler in his individual capacity. As described above, Plaintiff’s § 1985 claim is 4 dismissed without prejudice, and thus the Court does not decide at this point whether Defendants are 5 entitled to qualified immunity on that claim. And Defendants are not entitled to qualified immunity 6 from Plaintiff’s official capacity § 1983 conspiracy claim for the same reason as the other official 7 capacity claims. See Daniels, 889 F.3d at 616. 8 9 Third, Defendants are not entitled to qualified immunity from Plaintiff’s state law claims, as federal qualified immunity is not available for state law claims. See Johnson v. Bay Area Rapid Transit 10 Dist., 724 F.3d 1159, 1171 (9th Cir. 2013) (“[T]he doctrine of qualified immunity does not shield 11 defendants from state law claims.”). Defendants do not argue any state law immunity applies. 12 Thus, the only claim for which qualified immunity may potentially attach is Plaintiff’s claim five 13 for § 1983 conspiracy against Sgt. Tyler in his individual capacity. However, the Court finds that 14 Defendants are not entitled at this point to qualified immunity from Plaintiff’s federal common law 15 conspiracy claim. Applying the two-part test, first, as discussed above, Plaintiff sufficiently pleaded that 16 Defendants’ conduct violated a constitutional right. Second, the rights at issue—to be free from officials 17 conspiring to falsely arrest a citizen and to be free from retaliation for the free exercise of First 18 Amendment rights—have been clearly established for decades. See, e.g., Mendocino Envtl. Ctr. v. 19 Mendocino County, 14 F.3d 457, 461-65 (9th Cir. 1994); Mendocino Envtl. Ctr. v. Mendocino County, 20 192 F.3d 1283, 1295, 1300-2 (9th Cir. 1999); Caballero v. City of Concord, 956 F.2d 204, 206 (9th 21 Cir.1992). A reasonable officer would have understood the alleged conduct at issue to be unlawful. 22 Defendants argue that “clearly established law provides that government officials do not act under color 23 of law when engaging in private conduct merely because they are police officers.” But, as discussed 24 above, the Court finds Defendants were not engaged in wholly private conduct, Defendants acted under 25 color of law, and a reasonable official would have understood that engaging in the alleged concerted 19 1 actions to violate an individual’s rights violated clearly established law, even if some acts in furtherance 2 of the conspiracy technically took place off duty. See Anderson, 451 F.3d at 1068-69; West, 487 U.S. at 3 49–50. Therefore, Defendants presently are not entitled to qualified immunity as to any of Plaintiff’s 4 5 claims. 6 D. Failure to Intervene Claim 7 Defendants argue for the first time in their reply brief that Plaintiff’s failure to intervene claim 8 must be dismissed because such claims are only available in the excessive force context. The Court is 9 not required to entertain arguments presented for the first time in reply. See Zamani v. Carnes, 491 F.3d 10 990, 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first time in a 11 reply brief.”); Glenn K. Jackson Inc. v. Roe, 273 F.3d 1192, 1202 (9th Cir. 2001) (district court has 12 discretion to consider arguments raised for the first time in reply). Plaintiff did not have an opportunity 13 to respond to this argument, and the Court declines to consider it at this time. Defendants may raise the 14 argument in future motions. 15 E. State Law Claims 16 Finally, Defendants argue that Plaintiff’s state law claims should be dismissed for noncompliance 17 with the California Tort Claims Act. Plaintiff brings state law claims for false arrest and imprisonment, 18 malicious prosecution, abuse of process, intentional infliction of emotional distress, and negligence. 19 Before bringing a suit against a California state or local government entity, the California Tort Claims 20 Act (“TCA”) requires the timely presentation of a written claim and the government entity’s rejection of 21 it in whole or in part. Cal. Gov’t Code § 905; Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 22 1477 (9th Cir. 1995) (citing Snipes v. City of Bakersfield, 145 Cal.App.3d 861 (1983)). This is true for 23 both individual capacity and official capacity lawsuits against employees of public entities. See Cal. 24 Gov’t Code § 950.2 (“a cause of action against a public employee or former public employee for injury 25 resulting from an act or omission in the scope of his employment as a public employee is barred if an 20 1 action against the employing public entity for such injury is barred under Part 3 (commencing with 2 Section 900) . . . .”); Williams v. Alcala, No. 1:17-cv-00916-DAD-SAB, 2018 WL 4039954, at *1 n.1 3 (E.D. Cal. Aug. 22, 2018) (collecting cases finding individual capacity suits must meet TCA 4 requirements, but noting lack of clarity whether a plaintiff may plead around the TCA by asserting 5 individual capacity claims). 6 A claim related to a cause of action for personal injury must be filed or presented to the public 7 entity no later than six months after the cause of action accrues. Cal. Gov’t Code § 911.2(a). A plaintiff 8 must allege facts demonstrating either compliance with the TCA requirement or an excuse for 9 noncompliance as an essential element of the cause of action. State of California v. Superior Court 10 (Bodde), 32 Cal. 4th 1234, 1243–44 (2004). Failure to allege compliance or an excuse for 11 noncompliance constitutes a failure to state a cause of action and subjects such claims to dismissal. See 12 id. But a party may make a written application to the public entity for leave to present that claim, but 13 such an application must be made within one year of accrual of the cause of action. Cal. Gov’t Code 14 § 911.4(b). If this application is denied, under Cal. Gov’t Code § 946.6, a would-be claimant may 15 petition a court for an order relieving the petitioner from the requirement of Cal. Gov’t Code § 945.4 to 16 present a timely claim to the Board. A party must file such a petition within six months after the 17 application to the board is denied or deemed to be denied. Cal. Gov’t Code § 946.6(b). “The proper 18 court for filing the petition is a superior court that would be a proper court for the trial of an action on 19 the cause of action to which the claim relates.” Cal. Gov’t Code § 946.6(a). Although federal courts do 20 not have jurisdiction over § 946.6 petitions, it is proper for federal courts to determine whether a 21 plaintiff bringing tort claims against a public entity has complied with the TCA. See United States v. 22 State of Cal., 655 F.2d at 918-19. Timeliness of Plaintiff’s State Law Claims 23 1. 24 Here, Plaintiff was required to present his claim for any tort against California public entities no 25 later than six months after the accrual of the claim. Cal. Gov’t Code § 911.2. Plaintiff was arrested on 21 1 November 5, 2016, and at the time of the arrest, knew it was due to a false report. ECF No. 1 ¶ 30; Cal. 2 Gov’t Code § 901 (“For the purpose of computing the time limits prescribed by Sections 911.2 . . . the 3 date of the accrual of a cause of action to which a claim relates is the date upon which the cause of 4 action would be deemed to have accrued within the meaning of the statute of limitations which would be 5 applicable thereto if there were no requirement that a claim be presented to and be acted upon by the 6 public entity before an action could be commenced thereon.”); Norgart v. Upjohn Co., 21 Cal. 4th 383, 7 397 (1999) (“The general rule for defining the accrual of a cause of action sets the date as the time 8 when, under the substantive law, the wrongful act is done, or the wrongful result occurs, and the 9 consequent liability arises.”) (internal citations and quotations omitted). All of Plaintiff’s state law 10 claims are rooted in the allegedly false arrest. Therefore, Plaintiff’s state law claims accrued on 11 November 5, 2016, and he was required to submit his claims by May 5, 2017 or apply for leave to 12 present a claim by November 5, 2017. 13 Plaintiff did not submit his tort claims, along with an application for later consideration, until 14 June 25, 2018, more than a year and a half after his arrest, and well after the expiration of the period to 15 submit his claim or apply for leave to submit a claim. The City rejected Plaintiff’s tort claims and 16 application for leave on August 10, 2018. ECF No. 1 ¶ 43. Therefore, unless an exception applies, 17 Plaintiff’s state law claims are untimely under the TCA. 18 2. The Delayed Discovery Rule 19 Plaintiff argues the doctrine of delayed discovery tolled the TCA’s statute of limitations. The 20 delayed discovery rule “postpones accrual of a cause of action until the plaintiff discovers, or has reason 21 to discover, the cause of action.” Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 807 (2005); see 22 also Estate of Victorianne v. County of San Diego, No. 14CV2170 WQH (BLM), 2016 WL 411292, at 23 *12 (S.D. Cal. Feb. 3, 2016) (applying delayed discovery rule in TCA case); Brandon G. v. Gray, 111 24 Cal. App. 4th 29, 35 (2003) (same). The statute of limitations begins to run when “the plaintiff suspects 25 or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to 22 1 her.” Clark v. Baxter Healthcare Corp., 83 Cal. App. 4th 1048, 1055 (2000) (quoting Jolly v. Eli Lilly 2 & Co., 44 Cal. 3d 1103, (1988)); Fox, 35 Cal. 4th at 807-8 (discovery rule tolls statute until “until the 3 plaintiff has, or should have, inquiry notice” thereof); see also Norgart, 21 Cal. 4th at 397-98. A 4 plaintiff has reason to discover the injury when she has “notice or information of circumstances to put a 5 reasonable person on inquiry.” Jolly, 44 Cal. 3d at 1110-11 (emphasis in original) (internal quotation 6 marks omitted) (quoting Gutierrez v. Mofid, 39 Cal. 3d 892, 896-97 (1985)). “[P]laintiffs are required to 7 conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge 8 of the information that would have been revealed by such an investigation.” Fox, 35 Cal. 4th at 808. 9 “In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff 10 whose complaint shows on its face that his claim would be barred without the benefit of the discovery 11 rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to 12 have made earlier discovery despite reasonable diligence.” Id. at 808 (quoting McKelvey v. Boeing N. 13 Am., Inc., 74 Cal. App. 4th 151, 160 (1999)); E-Fab, Inc. v. Accountants, Inc. Servs., 153 Cal. App. 4th 14 1308, 1319 (2007) (same). The burden is on the plaintiff to plead facts establishing that the delayed 15 discovery rule applies. See Fox, 35 Cal. 4th at 808; Samuels v. Mix, 22 Cal. 4th 1, 14 (1999). 16 Plaintiff’s arrest occurred on November 5, 2016. ECF No. 1 ¶ 31. However, Plaintiff argues that 17 the accrual of his claims should be delayed until March 1, 2018, the date Plaintiff allegedly learned of 18 the texts between Lt. Seese and Sgt. Tyler. ECF No. 1 ¶ 38. The Court finds that the delayed discovery 19 doctrine does not apply. Plaintiff would have known at the moment of arrest that it was wrongful, 20 because Plaintiff alleges that Sgt. Tyler lied about the events at the football game to suborn the arrest. 21 Thus, at the time of arrest Plaintiff discovered or had reason to discover his causes of action. At the very 22 least, Plaintiff certainly had “notice or information of circumstances to put a reasonable person on 23 inquiry.” Jolly, 44 Cal. 3d at 1110-11 (emphasis in original) (internal quotation marks omitted) (quoting 24 Gutierrez v. Mofid, 39 Cal. 3d 892, 896-97 (1985)). At the time of his arrest, Plaintiff had all the 25 information he needed to be aware of the injury and to present his claim to the government entity, 23 1 namely that Sgt. Tyler allegedly lied about Plaintiff making threats, resulting in Plaintiff’s arrest. The 2 discovery of the test messages was not the first notice to Plaintiff of any injury. Plaintiff pleads no facts 3 to explain why he was not on inquiry notice at the time of the false arrest, and or why he otherwise could 4 not have discovered his injuries with reasonable diligence. Plaintiff’s argument that he did not know of his state law claims against Lt. Seese’s until the text 5 6 messages were revealed is stronger. However, Plaintiff does not plead any facts suggesting why a 7 reasonable investigation would not have revealed Lt. Seese’s role in the false arrest. And while Plaintiff 8 claims that this is the first point he realized there was a conspiracy to suborn his arrest, none of 9 Plaintiff’s state law claims are for civil conspiracy, and, again, Plaintiff fails to explain why the false 10 arrest did not put him on inquiry notice when it is the core of all his state law claims. See ECF No. 1 ¶¶ 3 11 92, 101, 109, 115, 120-21. Plaintiff failed to plead why he would not have discovered his claims 12 against Lt. Seese, had he pursued the wrongful arrest claim against Sgt. Tyler with reasonable diligence. Therefore, Plaintiff has not pleaded with sufficient particularity that he is entitled to application 13 14 of the delayed discovery rule. 15 3. Leave to Petition Superior Court 16 Plaintiff requests that if the Court finds the delayed discovery rule inapplicable, the Court refer 17 the question to state court under Gov’t Code § 946(a) for a determination of whether Plaintiff’s 18 circumstances constituted “surprise” and “excusable neglect.” Plaintiff does not allege he has petitioned 19 the Fresno County Superior Court for relief under § 946(a). Plaintiff provides no statutory authority or 20 case law providing any procedural mechanism to carry out his request that “the question [to] be referred 21 to the state court.” Indeed, it is unclear what exact relief Plaintiff is requesting via “refer[al],” e.g., 22 whether Plaintiff is requesting this entire case be remanded to state court, or this Court requests the 23 24 It is arguable that Plaintiff’s state law malicious prosecution claim did not accrue until the actual prosecution was initiated by the Stanislaus County District Attorney’s office on December 29, 2016. ECF No. 1 ¶ 101. But even accepting that accrual date, Plaintiff’s malicious prosecution claim would remain untimely under the TCA. 3 25 24 1 Fresno County Superior Court to issue an advisory opinion.4 See Garza v. Alvara, No. 1:15-cv-00234- 2 DAD-SKO, 2016 WL 4899676, at *2 (E.D. Cal. Sept. 14, 2016) (“California Government Code 3 § 946.6[] does not provide a procedure for remand, and plaintiff has not demonstrated here that such 4 relief is possible or appropriate in any event.”). Regardless, such leave would be futile. A petition to the state superior court must be filed within 5 6 six months after the application for leave to a file a late claim is denied. Cal. Gov’t Code 946.6(b). 7 Plaintiff’s application for leave to file a late claim was denied on August 10, 2018, and thus the six- 8 month period to petition the superior court expired February 10, 2019. See Givens v. County of 9 Sacramento, No. 2:15-cv-0720-JAM-KJN-PS, 2016 WL 6599810, at *7 (E.D. Cal. Nov. 7, 2016) 10 (finding state tort claims barred due to plaintiff’s failure to file petition in state court with six months 11 after application for leave to file late claim denied). Moreover, 946.6(c) states “the court shall relieve 12 the petitioner from the requirements of Section 945.4 if the court finds that the application to the board 13 under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of 14 Section 911.4 . . . .” § 911.4(b) states an application must be made “within a reasonable time not to 15 exceed one year after the accrual of the cause of action . . . .” Here, Plaintiff’s claims accrued on 16 November 5, 2016, but he did not make his application until June 25, 2018, well outside the statute’s 17 one-year period to make his application. See Jacome v. Vlahakis, No. 18CV0010-GPC-MDD, 2018 WL 18 6326307, at *4 (S.D. Cal. Dec. 3, 2018) (citing California cases holding that “failure to file a late-claim 19 application within the one-year period specified in section 911.4 divests courts of jurisdiction to grant 20 claim-relief pursuant to Section 946.6”). 21 22 23 24 25 4 To the extent Plaintiff is requesting this Court grant relief pursuant to § 946.6, the majority of courts of this Circuit to examine the issue have found that United States district courts lack the authority to grant § 946.6 relief under the plain language of the statute. See Cal. Gov’t Code § 946.6 (“The proper court for filing the petition is a superior court that would be a proper court for the trial of an action on the cause of action to which the claim relates.”) (emphasis added); Elrawi v. Burgess, No. 5:17-cv-02463 DMG-MAA, 2018 WL 4223652, at *7 (C.D. Cal. Sept. 5, 2018) (noting majority of district courts have concluded that § 946.6 only refers to state superior courts); Guerrero v. Cty. of Alameda, No. C 18-02379 WHA, 2018 WL 3646818, at *3 (N.D. Cal. Aug. 1, 2018) (finding the majority position to be the correct one and noting that district courts holding differently did so based on language in §946.6 that has since been amended). 25 1 Therefore, Plaintiff’s state law claims are barred by the California Tort Claims Act and 2 Defendants’ motion to dismiss Plaintiff’s state law claims is GRANTED WITH LEAVE TO 3 AMEND. Plaintiff will be provided an opportunity to amend his complaint to plead with sufficient 4 particularity the facts necessary to apply the delayed discovery rule, or otherwise plead facts 5 demonstrating compliance with the TCA’s requirements. VI. CONCLUSION AND ORDER 6 7 For the reasons stated above, Defendants’ motion to dismiss is GRANTED IN PART with leave 8 to amend claims V (as to 42 U.S.C. §1985 Conspiracy only), VI, VII, VIII, IX, and X. Defendants’ 9 motion to dismiss is OTHERWISE DENIED. Plaintiff shall have twenty (20) days from electronic 10 service of this Order to file an amended complaint. 11 12 IT IS SO ORDERED. 13 Dated: March 6, 2019 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26
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