Avery v. Arreola, et al, No. 3:2022cv08940 - Document 47 (N.D. Cal. 2023)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS SECOND AMENDED COMPLAINT granting in part and denying in part 38 Motion to Dismiss for Lack of Jurisdiction. (Illston, Susan) (Filed on 10/24/2023)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JEFFREY AVERY, Plaintiff, 8 v. 9 10 RAFAEL ARREOLA, et al., Defendants. 11 United States District Court Northern District of California Case No. 22-cv-08940-SI ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS SECOND AMENDED COMPLAINT Re: Dkt. No. 38 12 13 On October 13, 2023, the Court held a hearing on defendants’ motion to dismiss the second 14 amended complaint (“SAC”). At the hearing, the Court requested plaintiff file a declaration 15 attaching the administrative complaint he references in the SAC. Plaintiff filed his declaration on 16 October 18, 2023. Dkt. No. 46. 17 The Court now rules as follows. 18 BACKGROUND 19 20 Plaintiff Jeffery Avery brings this civil rights complaint against Bay Area Rapid Transit 21 (“BART”) police officers Rafael Arreola, N. Washam, M. Norriega, and R. Martinez (collectively, 22 “defendants”), as well as Does 1-25. The second amended complaint alleges that plaintiff worked 23 for BART at the time of the incident. Dkt. No. 32, SAC ¶ 10. 24 On October 16, 2020, at approximately 1:00 am, plaintiff was sleeping “in his car inside a 25 BART parking lot, while waiting for his shift to start.”1 Id. Defendants pulled up to plaintiff’s car 26 and ordered plaintiff to exit the car while “pointing their firearms directly at the Plaintiff and then 27 28 Plaintiff’s declaration states the encounter occurred around 4:00 PM. Dkt. No. 46, Avery Decl. ¶ 4. The hour the event took place has no impact on the issues before the Court today. 1 United States District Court Northern District of California 1 placing him in handcuffs.” Id. ¶ 12. “Afraid for his life,” plaintiff explained “that he was a BART 2 employee, waiting for his shift to start.” Id. ¶ 13. The SAC further alleges that “[w]hile the Plaintiff 3 was detained in handcuffs, the Defendant officers searched the Plaintiff’s car without his consent.” 4 Id. ¶ 14. After verifying plaintiff’s story, defendants released plaintiff. Id. ¶ 15. 5 Plaintiff alleges that, as a result of the encounter, he “became despondent and suffered severe 6 depression and PTSD which hindered his ability to think clearly and caused him to lack the legal 7 capacity to make any decisions regarding filing a lawsuit for approximately six months, which 8 entitles him to equitable tolling for that time period.” Id. ¶ 16. 9 On or about November 15, 2020, plaintiff “filed an administrative complaint with BART . . . 10 based on the same facts and injuries alleged in this present civil action, and . . . these claims were 11 acted on by the Office of the Independent Police Auditor (OIPA).”2 Id. ¶ 21. On September 9, 12 2021, OIPA sent its findings to plaintiff, finding some of the allegations “Exonerated,” some 13 “Unfounded,” and some “Sustained.” Id. ¶¶ 22-23. The SAC alleges that the statute of limitations 14 for plaintiff to file this civil rights suit “was equitably tolled between the time period of November 15 15, 2020[,] to September 9, 2021 for a total of 298 days.” 3 Id. ¶ 24. 16 On December 16, 2022, plaintiff filed this lawsuit in federal court against BART police 17 officers Does 1-25. Id. ¶ 25; see also Dkt. No. 1. Plaintiff did not serve defendants by the deadline 18 specified in the federal rules. See Dkt. No. 14. On June 26, 2023, plaintiff voluntarily filed a first 19 amended complaint. Dkt. No. 25. On July 18, 2023, with leave of the Court, see Dkt. No. 30, 20 plaintiff filed the SAC, naming the four individual defendants. Dkt. No. 32. The SAC is now the 21 operative complaint. The SAC lists three causes of action under 42 U.S.C. § 1983, for violation of 22 23 24 25 26 27 28 At the hearing, plaintiff’s counsel stated that he had a copy of the OIPA complaint, and the Court asked plaintiff to file a declaration attaching it. The subsequently-filed declaration attaches the results of the investigation, but not the complaint that initiated it. See Avery Decl., Ex. 1. In the declaration, plaintiff indicates that he called OIPA in November 2020 and spoke with an individual over the phone but that he “never saw the actual OIPA complaint that was generated.” Avery Decl. ¶ 12. Plaintiff further states that he does not recall the exact date he filed the complaint but that it was “sometime in November.” Id. 2 Elsewhere in the SAC, plaintiff alleges entitlement “to an additional 298 days minus 30 days added to his two-year statute of limitations. . . .” See SAC ¶ 25 (emphasis added). At the hearing, plaintiff’s counsel clarified that he is arguing for 298 days of tolling based on the filing of the OIPA complaint. 2 3 1 plaintiff’s Fourth Amendment rights: false arrest, excessive force, and unlawful search. 2 On August 18, 2023, defendants moved to dismiss under Federal Rule of Civil Procedure 3 12(b)(1) and 12(b)(6), arguing that the claims are barred by the statute of limitations and equitable 4 tolling does not apply. Dkt. No. 38. 5 On October 13, 2023, the Court held a hearing on the matter. 6 LEGAL STANDARD United States District Court Northern District of California 7 8 “A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the 9 applicable statute of limitations only when ‘the running of the statute is apparent on the face of the 10 complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 11 2010) (quoting Hunyh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). 12 In reviewing a Rule 12(b)(6) motion, courts must accept as true all facts alleged in the 13 complaint and draw all reasonable inferences in favor of the plaintiff. See Usher v. City of Los 14 Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, courts are not required to accept as true 15 “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 16 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Factual challenges 17 do not detract from the “legal sufficiency” of a well-pled complaint. Lee v. City of Los Angeles, 250 18 F.3d 668, 688 (9th Cir. 2001). If the court dismisses the complaint, it must then decide whether to 19 grant leave to amend. The Ninth Circuit has “repeatedly held that a district court should grant leave 20 to amend even if no request to amend the pleading was made, unless it determines that the pleading 21 could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 22 (9th Cir. 2000). 23 DISCUSSION 24 25 The parties do not dispute that the applicable statute of limitations is two years and that 26 plaintiff filed his complaint outside of that two-year period.4 The incident occurred on October 16, 27 28 The statute of limitations for claims under 42 U.S.C. § 1983 is “the personal injury statute of limitations of the state in which the cause of action arose.” Alameda Books, Inc. v. City of Los 3 4 1 2020, and plaintiff filed his case in federal court on December 16, 2022, approximately two months 2 after the two year period. The parties now dispute whether tolling applies. Plaintiff contends that tolling applies due to: (1) his alleged mental incapacity, and (2) his 3 4 filing of the OIPA complaint. SAC ¶¶ 16, 24. 5 United States District Court Northern District of California 6 I. Mental Incapacity 7 Plaintiff first seeks to toll the statute of limitations based on mental incapacity, alleging, “As 8 a result of the incident, the Plaintiff became despondent and suffered severe depression and PTSD, 9 which hindered his ability to think clearly and caused him to lack the legal capacity to make any 10 decisions regarding filing a lawsuit for approximately six months . . . .” SAC ¶ 16. Both parties 11 agree that mental incapacity is governed by California Code of Civil Procedure Section 352(a). See 12 Dkt. No. 38, Mot. at 6-7; Dkt. No. 42, Opp’n at 4. 13 Section 352(a) states that if a person entitled to bring an action “is, at the time the cause of 14 action accrued . . . lacking the legal capacity to make decisions, the time of the disability is not part 15 of the time limited for the commencement of the action.” Cal. Civ. Proc. Code § 352(a). To invoke 16 tolling under Section 352(a), a plaintiff must show that he was “incapable of caring for [his] property 17 or transacting business or understanding the nature or effects of [his] acts.” Estate of Stern v. Tuscan 18 Retreat, Inc., 725 F. App’x 518, 521 (9th Cir. 2018) (quoting Alcott Rehab. Hosp. v. Superior Ct., 19 93 Cal. App. 4th 94, 101 (2001)). The key inquiry is whether the person bringing the action was 20 “sufficiently aware of the nature or effects of [their] acts to be able to comprehend such business 21 transactions as the hiring of an attorney and the instigation of a legal action.” Id. (quoting Hsu v. 22 Mt. Zion Hosp., 259 Cal. App. 2d 562, 575 (1968)). Even hospitalization for mental illness may not 23 meet the standard for tolling under Section 352(a), if the person was still “capable of transacting 24 business and carrying out [their] affairs, either during occasional lucid intervals or throughout [their] 25 hospitalization.” Id. at 522 (quoting Hsu, 259 Cal. App. 2d at 573). “Moreover, incapacity must 26 27 28 Angeles, 631 F.3d 1031, 1041 (9th Cir. 2011). In California, “[b]y legislation that became effective on January 1, 2003, the statute of limitations . . . [is] two years.” Andonagui v. May Dept. Stores Co., 128 Cal. App. 4th 435, 440 (2005) (citing Cal. Civ. Proc. Code § 335.1). 4 United States District Court Northern District of California 1 exist at the time the claims accrue, and tolling lasts only until the plaintiff regains capacity.” Id. 2 (citations omitted). 3 Here, plaintiff’s allegations do not meet the standard for incapacity under Section 352(a). 4 Although plaintiff alleges despondency, severe depression, and PTSD “that hindered his ability to 5 think clearly,” this is not the same as being “incapable of caring for his property or transacting 6 business or understanding the nature or effects of his acts . . . .” See Alcott Rehab. Hosp., 93 Cal. 7 App. 4th at 101; SAC ¶ 16. 8 The SAC also suffers from factual deficiencies regarding the timing of plaintiff’s alleged 9 incapacity. Plaintiff does not allege that he was incapacitated “at the time the claims accrue[d],” 10 see Estate of Stern, 725 F. App’x at 522, but only that his mental incapacity came on at some 11 unspecified point after the incident. SAC ¶ 16; Opp’n at 4 (“after the incident on October 16, 2020, 12 Plaintiff ‘became despondent and suffered severe depression and PTSD . . .’”). Defendants correctly 13 note that plaintiff’s allegation that he “filed an administrative complaint with BART on November 14 15, 2020[,]” see SAC ¶ 21, tends to undercut his assertion of mental incapacity, unless he is alleging 15 that he became incapacitated after the filing of the OIPA complaint. From the bare allegations of 16 the SAC, it is unclear when plaintiff alleges the incapacity began and ended. 17 In sum, plaintiff’s allegations regarding mental incapacity fail to meet the standard for tolling 18 under California Code of Civil Procedure Section 352(a). Because plaintiff has not previously 19 received leave to amend the complaint in this regard, the Court will give him one opportunity to 20 amend these allegations, if he can. Accordingly, the Court GRANTS defendants’ motion to dismiss the SAC, with leave to 21 22 amend the mental incapacity allegations. 23 24 II. OIPA Complaint 25 Plaintiff also pleads what the Court understands to be an alternative theory, arguing for 26 equitable tolling of 298 days from the date he filed the OIPA complaint on November 15, 2020, to 27 the date he received the OIPA findings on September 9, 2021. SAC ¶ 24. 28 Federal courts “borrow our rules for equitable tolling of the period from the forum state,” 5 United States District Court Northern District of California 1 here, California. See Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (citations 2 omitted). Courts in California apply a three-pronged test to determine whether a plaintiff is entitled 3 to equitable tolling: “(1) timely notice to the defendant in filing the first claim; (2) lack of prejudice 4 to the defendant in gathering evidence to defend against the second claim; and (3) good faith and 5 reasonable conduct by the plaintiff in filing the second claim.” Lucchesi v. Bar-O Boys Ranch, 353 6 F.3d 691, 694 (9th Cir. 2003) (citation omitted). Analysis of each prong requires a “practical 7 inquiry” related to the “specific circumstances of the prior claim,” making equitable tolling “not 8 generally amenable to resolution on a Rule 12(b)(6) motion, where review is limited to the complaint 9 alone.” Cervantes, 5 F.3d at 1276. While California courts have not provided a clear definition of 10 “good faith” for purposes of equitable tolling, a party’s undue delay or unreasonableness in filing 11 the second claim may indicate lack of good faith for equitable tolling. Ervin v. Los Angeles Cnty., 12 848 F.2d 1018, 1020 (9th Cir. 1988). 13 Defendants argue that equitable tolling for plaintiff’s OIPA complaint fails as a matter of 14 law. Defendants contend that an OIPA complaint is not “a legal remedy sufficient to toll the statute 15 of limitations” because such a complaint “is not intended to compensate an aggrieved individual; 16 rather, it is BART’s internal check on alleged police misconduct.” Mot. at 9-10. Defendants rely 17 on Stone v. City and County of San Francisco, 735 F. Supp. 340 (N.D. Cal. 1990), in which the 18 district court granted summary judgment in the defendant’s favor after finding the plaintiff’s filing 19 of a citizen’s complaint with the police department did not equitably toll the statute of limitations. 20 See Mot. at 8. Defendants also ask the Court to take judicial notice of an OIPA complaint form, 21 arguing that “BART’s OIPA complaint form does not provide the complainant with a space to 22 indicate what type of redress he or she seeks.” Id. at 9; Dkt. 38-1 (Exhibit A). In addition, 23 defendants contend that plaintiff’s delay in filing this action, 15 months after the issuance of the 24 OIPA findings, was unreasonable. Mot. at 10. 25 At the hearing, plaintiff argued for the first time that the law on equitable tolling changed in 26 2008, when the California Supreme Court decided McDonald v. Antelope Valley Community 27 College District, 45 Cal. 4th 88 (2008). Plaintiff argued that McDonald changed the test for 28 equitable tolling such that he no longer needs to show that he sought redress in a prior action. The 6 United States District Court Northern District of California 1 Court notes that McDonald described the principles of equitable tolling as “firmly established,” and 2 cited other California cases that have employed the same three-element test for decades. See 3 McDonald, 45 Cal. 4th at 102-103 (citing, inter alia, Addison v. State of California, 21 Cal. 3d 313, 4 318-19 (1978)). While the Court is skeptical of plaintiff’s reading of McDonald, the Court 5 nevertheless finds that the allegations of the SAC regarding equitable tolling based on the OIPA 6 complaint are sufficient at the pleading stage. 7 The Court DENIES defendants’ request for judicial notice and DENIES defendants’ motion 8 to dismiss the claims on statute of limitations grounds related to the OIPA complaint.5 Here, the 9 parties’ arguments raise factual questions that are not appropriate for resolution on a motion to 10 dismiss. Even assuming that defendants are correct that plaintiff must show that the OIPA complaint 11 process was designed to provide plaintiff with a legal remedy, that is a factual inquiry to be resolved 12 down the road. See Cervantes, 5 F.3d at 1275. The same goes for defendants’ argument that plaintiff 13 unreasonably delayed after receipt of the OIPA findings in September 2021. 14 15 Nevertheless, should plaintiff choose to amend the complaint, he is granted leave to amend the allegations regarding equitable tolling based on the filing of the OIPA complaint. 16 CONCLUSION 17 18 For the foregoing reasons and for good cause shown, the Court hereby DENIES defendants’ 19 motion to dismiss on equitable tolling grounds related to the OIPA complaint, without prejudice to 20 renewal on a fuller factual record. The Court GRANTS defendants’ motion to dismiss the SAC 21 22 23 24 25 26 27 28 5 Defendants request judicial notice of: (1) a BART website regarding the purpose of the OIPA; and (2) a blank copy of an OIPA complaint form. Dkt. No. 38-1, RJN. Defendants assert that the website “sets forth facts concerning the purpose and function of the OIPA” and that the OIPA complaint form shows that this process is not intended to provide the claimant with any remedies and is therefore not “a separate, formal legal action[.]” Id. at 2-3; Mot. at 9-10. Defendants’ assertions are not facts “not subject to reasonable dispute.” See Fed. R. Evid. 201(b). In particular, nothing indicates that the complaint form defendants attach is the form plaintiff completed. Indeed, the attached form indicates that it was revised in July 2021, i.e., roughly eight months after plaintiff filed his OIPA complaint in November 2020. See RJN, Ex. A (indicating “Rev. 7/2021” at bottom lefthand corner of page). It therefore tells the Court nothing about the OIPA complaint that plaintiff filed following the incident relevant to this case. 7 1 regarding the mental incapacity allegations, with leave to amend. 2 Any third amended complaint shall be filed no later than November 8, 2023. If plaintiff 3 fails to file a third amended complaint by that date, the second amended complaint shall be 4 deemed the operative complaint. 5 6 No further amendments to the pleadings are anticipated absent a properly noticed motion and leave of the Court. 7 8 9 10 United States District Court Northern District of California 11 IT IS SO ORDERED. Dated: October 24, 2023 ______________________________________ SUSAN ILLSTON United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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