Arzate v. Escondido, City of et al, No. 3:2014cv00139 - Document 16 (S.D. Cal. 2014)
Court Description: ORDER granting without leave to amend Defendants' 7 Motion to Dismiss for Lack of Jurisdiction and 8 Motion to Dismiss for Failure to State a Claim. Court denies Pla's request for leave to amend. Court dismisses with prejudice only Pla's state-law claims contained in Count 3. Signed by Judge Cynthia Bashant on 7/22/2014. (jah)
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Arzate v. Escondido, City of et al Doc. 16 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 EDUARDO ARZATE, 13 Case No. 14-cv-139-BAS(KSC) Plaintiff, 14 15 v. 16 17 18 CITY OF ESCONDIDO, et al., ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS WITHOUT LEAVE TO AMEND [ECF Nos. 7, 8] Defendants. 19 20 On January 20, 2014, Plaintiff Eduardo Arzate commenced this civil-rights 21 action for the alleged use of excessive force against Defendants City of Escondido 22 (“City”), Officer Kevin J. Stowe, Officer Juan Alva, and Officer Todd Gimenez. The 23 City, Officer Alva, and Officer Gimenez now move to dismiss only the state-law claims 24 under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Officer Stowe also 25 separately moves to dismiss the state-law claims. Mr. Arzate opposes both motions. 26 The Court finds these motions suitable for determination on the papers submitted 27 and without oral argument. See Civ. L.R. 7.1(d.1). For the following reasons, the 28 Court GRANTS WITHOUT LEAVE TO AMEND Defendants’ motions to dismiss. -1- 14cv139 Dockets.Justia.com 1 I. BACKGROUND 2 On October 27, 2012, at approximately 1:30 a.m., Mr. Arzate was a passenger 3 in a black GMC pickup truck driven by another individual in the City of Escondido. 4 (Compl. ¶ 11.) At approximately the same time, Officer Alva was dispatched to a local 5 business called the Sunset Lounge to “investigate a reported disturbance by two men 6 in a pickup truck.” (Id. ¶ 12.) 7 Mr. Arzate alleges that Officer Alva “saw the pickup truck leaving the Sunset 8 Lounge and conducted a traffic stop by activating his overhead emergency lights[,]” 9 stopping the pickup truck one-and-a-half blocks north of the Sunset Lounge. (Compl. 10 ¶ 13.) Officer Alva “took up a position behind the pickup truck, drew his firearm and 11 pointed the weapon at the occupants of the pickup truck as he waited for other support 12 officers to arrive.” (Id. ¶ 14.) Shortly thereafter, Officers Gimenez and Stowe arrived 13 along with “other officers” from the Escondido Police Department. (Id. ¶ 15.) Officer 14 Stowe retrieved “a 40 millimeter caliber launcher and several 40 millimeter caliber 15 eXact iMpact foam baton rounds” from his patrol car, and both officers took positions 16 similar to Officer Alva’s behind the pickup truck with their weapons drawn. (Id. ¶¶ 17 16–17.) 18 Once in position, Officer Alva and “at least one other officer” instructed the 19 pickup-truck driver over the public-address system to exit the vehicle. (Compl. ¶ 18.) 20 The driver did not comply. (Id. ¶ 19.) 21 Then Officer Alva instructed the passenger, Mr. Arzate, over the public-address 22 system to exit the vehicle. (Compl. ¶¶ 20–25.) After following the initial instructions 23 given, Mr. Arzate “was standing next to the pickup truck facing away from the officers 24 with both hands in the air.” (Id. ¶ 26.) He was wearing “a loose fitting t-shirt that 25 covered the waistband of his short pants” at the time. (Id.) Officer Alva or another 26 officer instructed Mr. Arzate to “Take your right hand and pick up the back of your 27 shirt . . . from the neck.” (Id. ¶ 28.) As Mr. Arzate began to “reach down behind him 28 toward the back of his shirt,” several officers allegedly shouted, “from the neck” or “by -2- 14cv139 1 the neck.” (Id. ¶ 28.) According to Mr. Arzate, the public-address system was 2 distorted by static or feedback, and there was a police canine present that was 3 “continually barking.” (Id. ¶¶ 27–28.) 4 One officer who was closest to Mr. Arzate allegedly shouted, “pick up your shirt 5 with your right hand[.]” (Compl. ¶ 29.) Mr. Arzate alleges that he “immediately 6 complied by picking up the bottom of his t-shirt with his right hand to show the officers 7 there was no weapon in his waistband and that he was unarmed.” (Id.) However, when 8 he “lifted up the right side of his t-shirt, exposing his waistband,” Officer Stowe “fired 9 the 40 millimeter caliber launcher at [Mr. Arzate’s] back.” (Id. ¶ 30.) Mr. Arzate then 10 “fell to ground and began to roll around on the ground, writhing and crying out in 11 pain.” (Id.) 12 As Mr. Arzate was rolling on the ground, “writhing in pain and cursing at the 13 officers for having shot him,” Officer Alva instructed Mr. Arzate to “put your hands 14 over your head.” (Compl. ¶ 32.) Another officer also allegedly yelled out, “put your 15 hands on your head.” (Id.) Because of the pain allegedly caused by the first “foam 16 baton round” that had struck him, Mr. Arzate alleges that he was “only able to place 17 one hand on the back of his neck.” (Id. ¶ 33.) He further alleges that he was “unable 18 to immediately comply with the inconsistent and contradictory commands coming 19 simultaneously from different officers.” (Id.) Officer Stowe then fired a second “foam baton round” that struck Mr. Arzate in 20 21 the arm. (Compl. ¶ 24.) Eventually, Mr. Arzate placed both hands on the back of his neck, and Officer 22 23 Gimenez arrested him. (Compl. ¶ 35.) 24 // 25 // 26 // 27 // 28 // -3- 14cv139 1 Following the incident, Mr. Arzate was treated by paramedics and then 2 transported to Palomar Medical Center for further treatment. (Compl. ¶ 36.) Mr. 3 Arzate alleges that he sustained injuries “requir[ing] six surgical staples to close a 4 severe laceration to his left forearm,” and “suffered contusions and severe pain and 5 suffering.” (Id.) He was then transported to the Vista Detention Center where he was 6 booked. (Id. ¶ 37.) On January 20, 2014, Mr. Arzate commenced this civil-rights action against 7 8 Defendants. He asserts claims divided into three categories: (1) “Federal 9 Constitutional Claims” against Officers Stowe, Alva, and Gimenez; (2) “Federal 10 Constitutional Claims” against the City; and (3) “State Law Claims” against Officers 11 Stowe, Alva, and Gimenez. 12 “constitute the torts of assault, battery, false arrest, false imprisonment, and malicious 13 prosecution under the laws of the State of California.” (Compl. ¶ 51.) The City, 14 Officer Alva, and Officer Gimenez now move to dismiss only Mr. Arzate’s state-law 15 claims under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Officer Stowe 16 also separately moves to dismiss only the state-law claims. Mr. Arzate opposes both 17 motions. According to the complaint, the state-law claims 18 19 II. LEGAL STANDARD 20 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 21 Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. 22 Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must 23 accept all factual allegations pleaded in the complaint as true and must construe them 24 and draw all reasonable inferences from them in favor of the nonmoving party. Cahill 25 v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). To avoid a Rule 26 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it 27 must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 28 Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the -4- 14cv139 1 plaintiff pleads factual content that allows the court to draw the reasonable inference 2 that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 3 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “Where a complaint pleads facts 4 that are ‘merely consistent with’ a defendant’s liability, it stops short of the line 5 between possibility and plausibility of ‘entitlement to relief.’” Iqbal, 556 U.S. at 678 6 (quoting Twombly, 550 U.S. at 557). 7 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 8 requires more than labels and conclusions, and a formulaic recitation of the elements 9 of a cause of action will not do.” Twombly, 550 U.S. at 555 (quoting Papasan v. 10 Allain, 478 U.S. 265, 286 (1986)) (alteration in original). A court need not accept 11 “legal conclusions” as true. Iqbal, 556 U.S. at 678. Despite the deference the court 12 must pay to the plaintiff’s allegations, it is not proper for the court to assume that “the 13 [plaintiff] can prove facts that [he or she] has not alleged or that defendants have 14 violated the . . . laws in ways that have not been alleged.” Associated Gen. Contractors 15 of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). 16 Generally, courts may not consider material outside the complaint when ruling 17 on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 18 1542, 1555 n.19 (9th Cir. 1990). However, documents specifically identified in the 19 complaint whose authenticity is not questioned by parties may also be considered. 20 Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995) (superceded by statutes on 21 other grounds). Moreover, the court may consider the full text of those documents, 22 even when the complaint quotes only selected portions. Id. It may also consider 23 material properly subject to judicial notice without converting the motion into one for 24 summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). 25 // 26 // 27 // 28 // -5- 14cv139 1 As a general rule, a court freely grants leave to amend a complaint which has 2 been dismissed. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when 3 “the court determines that the allegation of other facts consistent with the challenged 4 pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well 5 Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). 6 7 III. DISCUSSION1 8 Defendants argue that Mr. Arzate’s state-law claims are barred by his failure to 9 comply with the California Government Claims Act. (Defs.’ Mot. 3:25–6:21; Stowe’s 10 Mot. 4:27–7:13.) In response, Mr. Arzate suggests that Defendants misunderstood the 11 state-law claims because he asserts them “under 42 U.S.C. § 1983 as supplemental state 12 claims.” (Pl.’s Opp’n (Defs.) 6:15–7:6; Pl.’s Opp’n (Stowe) 6:22–7:12.) For the 13 following reasons, the Court agrees with Defendants. 14 “Suits for money or damages filed against a public entity are regulated by . . . the 15 Government Claims Act.” DiCampli-Mintz v. Cnty. of Santa Clara, 55 Cal. 4th 983, 16 989 (2012). “[N]o suit for money or damages may be brought against a public entity 17 on a cause of action for which a claim is required to be presented . . . until a written 18 claim therefor has been presented to the public entity and has been acted upon . . . , or 19 has been deemed to have been rejected[.]” Cal. Gov’t Code § 945.4. The Act also 20 requires that “[w]hen defendants are public employees, the plaintiff must first submit 21 a written claim to the public entity that employs them before filing a lawsuit seeking 22 monetary damages for violations of California law.” Dennis v. Thurman, 959 F. Supp. 23 1253, 1264 (C.D. Cal. 1997) (citing Cal. Gov’t Code §§ 945.4, 950.2). 24 “Claims for personal injury and property damage must be presented within six 25 months after accrual; all other claims must be presented within a year.” DiCampli- 26 1 27 28 Officer Stowe requests judicial notice of: (1) Mr. Arzate’s Claim for Injuries and Damages; (2) Notice of Action or Rejection of Claim; and (3) Mr. Arzate’s complaint. The Court GRANTS the unopposed request under Federal Rule of Evidence 201. See Fed. R. Evid. 201(b)(2) (a court may take judicial notice of a fact that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”). -6- 14cv139 1 Mintz, 55 Cal. 4th at 990 (citing Cal. Gov’t Code § 911.2). Thereafter, the public entity 2 has 45 days to accept or reject the claim. Cal. Gov’t Code § 912.4. If the public entity 3 denies the claim by written notice, the claimant must commence suit against the public 4 entity no later than six months after the date of the notice of rejection. Id. § 5 945.6(a)(1). It is also the claimant’s burden to “ensur[e] that the claim is presented to 6 the appropriate entity.” DiCampli-Mintz, 55 Cal. 4th at 991 (citing Life v. Cnty. of Los 7 Angeles, 227 Cal. App. 3d 894, 901 (1991)). 8 “[U]nder these statutes, failure to timely present a claim for money or damages 9 to a public entity bars a plaintiff from filing a lawsuit against that entity.” State of Cal. 10 v. Superior Court (Bodde), 32 Cal. 4th 1234, 1239 (2004). Furthermore, “[a]n 11 individual’s failure to meet these requirements bars him from bringing a civil action for 12 the same claim in state or federal court.” Flock v. Cnty. of Alameda, No. 12-cv-01003, 13 at *3 (N.D. Cal. Sept. 13, 2012) (citing Karim-Panahi v. Los Angeles Police Dep’t, 839 14 F.2d 621, 627 (9th Cir. 1988) (holding that state law tort claims against public entities 15 and public employees are barred unless the plaintiff pleads facts showing that he filed 16 written claims with the public entity in accordance with the California Government 17 Claims Act)). 18 According to Defendants, Mr. Arzate was required to commence his lawsuit no 19 later than six months after the date of the notice of rejection. See Cal. Gov’t Code § 20 945.6. Defendants provide a copy of the notice of rejection, which is dated June 14, 21 2013, in their motions. (Defs.’ Mot. Ex. B; Stowe’s Mot. Ex. B.) Based on the date 22 of rejection, Mr. Arzate must have filed his complaint for the state-law claims no later 23 than December 14, 2013 under the Government Claims Act. However, he did not file 24 his complaint until January 20, 2014. Consequently, Mr. Arzate failed to comply with 25 the Government Claims Act. 26 Mr. Arzate does not dispute that he failed to comply with the Government 27 Claims Act’s requirements. Rather, he takes the position that the Government Claims 28 Act does not even apply. However, Mr. Arzate is mistaken. He must comply with the -7- 14cv139 1 California Government Claims Act in order to bring a state tort action against a public 2 entity and its employees. See Cal. Gov’t Code §§ 945.4, 950.2; see also Karim-Panahi, 3 839 F.2d at 627 (The plaintiff’s “pendant state law tort claims against both the 4 individual and public entity defendants are barred unless he presented them to the City 5 and LAPD before commencing suit.”). Mr. Arzate fails to cite any legal authority that 6 excuses him from the Government Claims Act’s requirements, or direct this Court to 7 any allegations in the complaint that suggest he complied with the Government Claims 8 Act. 9 Contending that the state-law claims are brought under 42 U.S.C. § 1983 as 10 supplemental claims, as Mr. Arzate does, is also inadequate and inaccurate. If a federal 11 court exercises its discretion to accept state-law claims supplemental to a federal civil- 12 rights claim, those state-law claims remain purely grounded in state law. See 28 U.S.C. 13 § 1367(c)(3). Excluding instances where diversity jurisdiction applies, federal courts 14 do not have original jurisdiction over the state-law claims. A state-law claim that is 15 supplemental to a federal civil-rights claim is merely a circumstance where the federal 16 court exercises its supplemental jurisdiction to hear the state-law claim under 28 U.S.C. 17 § 1367(c)(3). Consequently, Mr. Arzate must comply with the Government Claims Act 18 before bringing suit for his state-law claims. See Cal. Gov’t Code §§ 945.4, 950.2. 19 Accordingly, the Court finds that Mr. Arzate’s state-law claims are barred by his 20 failure to comply with the Government Claims Act, and the Court GRANTS 21 Defendants’ motions to dismiss only Mr. Arzate’s state-law claims. See Cal. Gov’t 22 Code §§ 945.4, 950.2. 23 24 IV. CONCLUSION & ORDER 25 In light of the foregoing, the Court GRANTS Defendants’ motions to dismiss. 26 The Court also DENIES Mr. Arzate’s request for leave to amend because amendment 27 would be futile since Mr. Arzate proceeds under the faulty premise that asserting his 28 state-law claims under 42 U.S.C. § 1983 somehow excuses him from complying with -8- 14cv139 1 the Government Claims Act. See Cervantes v. Countrywide Home Loans, Inc., 656 2 F.3d 1034, 1041 (9th Cir. 2011) (“[A] district court may dismiss without leave where 3 . . . amendment would be futile.”). Accordingly, the Court DISMISSES WITH 4 PREJUDICE only Mr. Arzate’s state-law claims contained in Count 3. 5 IT IS SO ORDERED. 6 7 DATED: July 22, 2014 8 Hon. Cynthia Bashant United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- 14cv139
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