United States District Court, N.D. California
November 15, 2005.
WILLIAM LAMBERT, an individual; BEVERLY LAMBERT, an individual, Plaintiffs,
CITY OF SANTA ROSA, a chartered city; SANTA ROSA POLICE DEPARTMENT, a police agency; EDWIN F. FLINT, Santa Rosa Police Chief; MATTHEW A. SANCHEZ, individually and as a police officer of the Santa Rosa Police Department; ALISSA JOHNSON, individually and as a police officer of the Santa Rosa Police Department; and DOES 1 to 25, Defendants.
The opinion of the court was delivered by: CLAUDIA WILKEN, District Judge
ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS AND DENYING
IT IN PART
Defendants move to dismiss several of Plaintiffs' causes of
action. Plaintiffs William and Beverly Lambert oppose this motion
but agree to dismiss some claims. The matter was heard on
November 4, 2005. Having considered all of the papers filed by
the parties and oral argument on the motion, Defendants' motion
is GRANTED in part and DENIED in part.
According to Plaintiffs' complaint, on or about March 22, 2004,
at approximately 8:04 p.m., Santa Rose police officers,
Defendants Matthew Sanchez and Alissa Johnson, responded to a 911
call made by Mrs. Lambert. Plaintiffs allowed Sanchez and Johnson
peaceably to enter their home in Santa Rosa. Sanchez and Johnson questioned Plaintiffs and their adult son Jon. Plaintiffs have
been married for forty-one years and, before this incident, there
had been no incidents of domestic violence.
Following a brief discussion, Sanchez and Johnson separated
Plaintiffs. Initially, Johnson accompanied Mr. Lambert into the
family room and Sanchez remained with Mrs. Lambert in the
adjacent area of the house. Jon was left alone at the time and
was able to see and hear Mr. Lambert's discussion. After
approximately ten or twenty minutes, Sanchez and Johnson switched
Sanchez questioned Mr. Lambert for approximately ten minutes,
asking him for his date of birth and whether he had been drinking
alcohol that evening. Mr. Lambert informed Sanchez of his age and
birth date. He explained that his wife had a couple of drinks
prior to dinner and that he and Jon had not, but that he had
consumed one glass of wine with dinner. Sanchez asked to see Mr.
Lambert's driver's license. Mr. Lambert replied that it was in
his wallet in the dining room. When Mr. Lambert attempted to
enter the dining room to retrieve his wallet, Sanchez stood in
his path and raised his hand towards Mr. Lambert stating that he
did not need to see the driver's license. Mr. Lambert explained
that it was not a problem to get the license for him. Sanchez
then stepped toward Mr. Lambert and ordered him to turn around
and put his hands behind his back. Mr. Lambert replied that if
Sanchez was going to handcuff him, he would like to use the
bathroom first. Plaintiffs' bathroom was approximately five feet
from where Sanchez and Mr. Lambert were standing.
Without warning, Sanchez grabbed Mr. Lambert by the left shoulder and spun him around while twisting his left arm behind
his back. Mr. Lambert then renewed his request to use the
bathroom and suggested that Sanchez could leave the door open but
that he needed to relieve himself. Sanchez did not respond
verbally. He kicked Mr. Lambert's right leg out from under him,
causing Mr. Lambert to fall to the ground and crushing and
breaking his right leg. Sanchez then twisted Mr. Lambert's right
leg behind him causing him further pain. Mr. Lambert screamed and
pleaded for Sanchez to release his leg. Sanchez released his leg
but stood over Mr. Lambert holding what felt to Mr. Lambert like
a gun against his rib cage. Mr. Lambert believed he was going to
be shot and killed. Sanchez was holding a taser pistol and used
the taser on Mr. Lambert's right leg. Mr. Lambert screamed in
pain again. Sanchez then handcuffed Mr. Lambert's hands behind
his back and ordered him to stand. Mr. Lambert was not able to
stand on his own and fell to the floor a second time.
During these events, Mrs. Lambert, Jon and Johnson were in the
dining room. Johnson came into the family room after Sanchez
pulled Mr. Lambert off the floor. Johnson entered the family room
and assisted Sanchez in lifting Mr. Lambert's upper body off the
floor and dragging his lower body, including his broken leg.
Sanchez and Johnson then propped Mr. Lambert against a couch with
his broken leg under him. They ignored Mr. Lambert's request to
help him remove his broken leg out from under him.
Mr. Lambert again asked if he could use the bathroom; he
advised Sanchez and Johnson that he could not get there on his
own strength and that he needed help relieving himself. Sanchez
and Johnson discussed Mr. Lambert's request during which time Johnson
advised Sanchez to remove the handcuffs and allow him to use the
bathroom. Sanchez and Johnson helped Mr. Lambert to the bathroom,
which was approximately eight feet away from the couch. Both
Sanchez and Johnson witnessed Mr. Lambert relieve himself.
Mr. Lambert does not recall what transpired between the time he
was allowed to use the bathroom and the time the paramedics
arrived. Nor does he know who called the paramedics. Mr. Lambert
was taken by ambulance to Kaiser Permanente Hospital. He was
treated in the emergency room for a fractured tibia and his leg
was placed in a full brace. Johnson stayed in the room initially
but was replaced by Sanchez. Sanchez insisted that emergency room
staff release Mr. Lambert to him so that he could take him to
jail. At no time during these incidents did Defendants read Mr.
Lambert his rights, tell him why he was arrested or inform him
why Sanchez used force against him.
While in the emergency room, Mr. Lambert asked Sanchez for
water. Sanchez responded that he was not a nurse. Mr. Lambert
called a nurse and requested water. Mr. Lambert also asked
Sanchez to call Mrs. Lambert. But Sanchez refused and stated that
Mr. Lambert was under arrest and did not have a right to speak on
Mr. Lambert was released from the emergency room. His attending
physician, in Sanchez' presence, requested that Mr. Lambert not
place any weight on his right leg. Sanchez ordered Mr. Lambert
off the examination table and did not allow him to wear a jacket
or robe of any kind. Sanchez forced Mr. Lambert to leave the hospital on crutches with his gown open in the back exposing
Mr. Lambert's underwear. Mr. Lambert walked approximately
seventy-five feet down the sidewalk to the patrol car. Sanchez
did not offer to assist Mr. Lambert or to get a wheelchair.
Mr. Lambert arrived at the Sonoma County Jail at approximately
11:30 p.m. Sanchez went into the jail and returned twenty minutes
later with a wheelchair. Sanchez helped Mr. Lambert into the
wheelchair. While in the jail waiting room, another officer told
Mr. Lambert that he could watch television and use the telephone
to make a call. Sanchez was no longer with Mr. Lambert.
After these events, Sanchez and Johnson falsified their arrest
reports. Mr. Lambert alleges that Defendants City of Santa Rosa,
Santa Rosa Police Department and various officials know of
Sanchez's use of excessive force, and of Sanchez and Johnson's
falsification of their reports. On or about June 11, 2004, Mr.
Lambert submitted a statement to Defendant Santa Rosa concerning
the events of March 22, 2004. On or about June 21, 2004,
Lieutenant Zboralske and Sergeant Swartz from Defendant Police
Department met Plaintiffs at their home in the presence of
Plaintiffs' attorney. The officers discussed Defendant Police
Department's cooperation and public support. As of March 31,
2005, Plaintiffs did not know if any investigation had been
As a result of the injuries Mr. Lambert sustained on March 22,
2004, he has undergone surgery on his right leg and may need
further surgeries in the future. Plaintiffs have had to move from
their two-story home in Santa Rosa to a smaller single-story home
in Cloverdale, California. They moved because of Mr. Lambert's difficulty walking, his period of recuperation following surgery,
his loss of income and because they fear additional harm from
Defendant Police Department.
During the events of March 22, 2004, Mrs. Lambert was at all
times in the adjacent room and heard and/or observed incidents
which occurred in the hallway next to the bathroom. Mrs. Lambert
could hear Mr. Lambert's screams. Following Mr. Lambert's fall to
the ground, Mrs. Lambert and her son entered the hallway and
witnessed Mr. Lambert in pain. She also observed as Sanchez and
Johnson hauled Mr. Lambert over to the couch. This caused Mrs.
Lambert severe emotional trauma for which she has received
treatment and incurred monetary damages, including three months
of lost wages.
Plaintiffs' complaint alleged twelve causes of action; however,
in their opposition, Plaintiffs voluntarily agreed to dismiss the
third, fourth, fifth, sixth, tenth and eleventh causes of action
against all Defendants and to dismiss all claims against
Defendant Police Chief Edwin Flint. In addition, Plaintiffs do
not intend to pursue the seventh cause of action and, therefore,
it is dismissed. Furthermore, Plaintiffs have clarified that Mrs.
Lambert's sole claim is based on loss of consortium (twelfth
cause of action) as a result of the assault on Mr. Lambert. At
hearing the parties also agreed that Santa Rosa Police Department
was included erroneously as a defendant in that it is not a
separate legal entity. Thus, all claims against the Santa Rosa
Police Department are dismissed.
The remaining causes of action brought by Mr. Lambert, as originally numbered in the complaint, are: (first) violation of
42 U.S.C. § 1983 against Defendants Santa Rosa, and Sanchez and
Johnson, individually and in their official capacities; (second)
assault and battery against Defendants Santa Rosa, and Sanchez
and Johnson, individually and in their official capacities;
(eighth) intentional infliction of emotional distress against
Defendants Santa Rosa, and Sanchez and Johnson, individually and
in their official capacities; (ninth) failure to intervene
against Defendant Johnson. Mrs. Lambert brings the twelfth cause
of action for loss of consortium against Defendants Santa Rosa,
and Sanchez and Johnson, individually and in their official
A motion to dismiss for failure to state a claim will be denied
unless it is "clear that no relief could be granted under any set
of facts that could be proved consistent with the allegations."
Falkowski v. Imation Corp., 309 F.3d 1123, 1132 (9th Cir. 2002)
(citing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)). All
material allegations in the complaint will be taken as true and
construed in the light most favorable to the plaintiff. See NL
Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).
A complaint must contain a "short and plain statement of the
claim showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a). "Each averment of a pleading shall be simple,
concise, and direct. No technical forms of pleading or motions
are required." Fed.R.Civ.P. 8(e). These rules "do not require
a claimant to set out in detail the facts upon which he bases his
claim. To the contrary, all the Rules require is `a short and plain statement of the claim' that will give the defendant fair
notice of what the plaintiff's claim is and the grounds on which
it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957).
I. First Cause of Action for Excessive Force Under § 1983
A. Municipal Liability
Defendants argue that the complaint must allege facts to
establish some affirmative link between Santa Rosa's policies and
the deprivation of Mr. Lambert's constitutional rights.
Defendants contend, however, that Plaintiffs have plead, in
effect, a respondeat superior theory of liability, which is
insufficient to establish a claim against a
A municipality can be found liable under 42 U.S.C. § 1983 only
where the municipality itself causes the constitutional violation
at issue; respondeat superior or vicarious liability will not
attach under section 1983. Monell v. New York Dep't of Social
Servs., 436 U.S. 658, 694-95 (1978). Plaintiffs must allege
that: (1) Mr. Lambert was deprived of his constitutional rights
by Santa Rosa employees acting under color of State law; (2) that
Santa Rosa had customs or policies which "`amounted to deliberate
indifference' to [his] constitutional rights;" and (3) that these
policies were the "`moving force behind the constitutional violation[s].'" Oviatt v. Pearce, 954 F.2d 1470, 1473, 1477
(9th Cir. 1992) (quoting City of Canton v. Harris,
489 U.S. 378, 389-91 (1989)) (alterations in original).
In the Ninth Circuit, such a claim is sufficient to withstand a
motion to dismiss "even if the claim is based on nothing more
than a bare allegation that the individual officers' conduct
conformed to official policy, custom, or practice." Galbraith v.
County of Santa Clara, 307 F.3d 1119, 1127 (9th Cir. 2002)
(quoting Karim-Panahi v. Los Angeles Police Dep't,
839 F.2d 621, 624 (9th Cir. 1988) (quoting Shah v. County of Los
Angeles, 797 F.2d 743, 747 (9th Cir. 1986))). Further,
acquiescence in a practice or custom is a cognizable claim under
Monell. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737
(1989). And, a municipality's failure to train or supervise its
employees properly can create section 1983 liability where such a
failure is "conscious" or "amounts to deliberate indifference to
the rights of persons" with whom its employees are likely to come
into contact. City of Canton, 489 U.S. at 388-89.
Plaintiffs' complaint is sufficient. It alleges that (1) Mr.
Lambert was deprived his constitutional rights; (2) Santa Rosa
maintained "a policy, custom, or practice" of excessive force and
its policymakers acted with "deliberate indifference" to Mr.
Lambert's constitutional rights; and (3) Santa Rosa's policies
and practices permitted and encouraged excessive force by its
officers. Furthermore, Plaintiffs allege that Santa Rosa's
failure "to properly hire, train, supervise or discipline" its
officers, demonstrated its "ratification, condonation, and
acquiescence in the use of excessive force." And, the complaint alleges that
Santa Rosa's policymakers acted with "actual knowledge,
constructive knowledge and/or deliberate indifference" to Mr.
Lambert's constitutional rights.
Therefore, Plaintiffs' allegations against Santa Rosa are
sufficiently plead to withstand Defendants' motion to dismiss.
B. Defendant Johnson's Liability
Defendants contend that the complaint fails to allege that
Defendant Johnson personally engaged in the use of excessive
force. Defendants argue that, because Johnson was in another room
during the time Sanchez inflicted the alleged injuries to Mr.
Lambert's leg, the section 1983 claim against Johnson should be
dismissed. Plaintiffs respond that Johnson failed to prevent
Sanchez from using the taser and contributed to the excessive
force by dragging Mr. Lambert across the floor.
A police officer may be held liable under section 1983 for
failing to intervene if a fellow officer violates the
constitutional rights of a suspect. Cunningham v. Gates,
229 F.3d 1271, 1289 (9th Cir. 2000). However, officers who are not
present or do not have a "realistic opportunity" to intercede
cannot be held liable. Id.
According to the complaint, Johnson was in the dining room when
Mr. Lambert's leg was broken in the family room due to Sanchez's
alleged use of excessive force. Because Johnson was in the other
room when the initial injury occurred and the complaint does not
indicate that she had any warning that Sanchez would use force on
Mr. Lambert, she had no realistic opportunity to intervene before Mr. Lambert's leg was broken. However, Plaintiffs argue
that Johnson failed to act to prevent the taser injury to Mr.
Lambert after Mr. Lambert's leg was broken and he began screaming
and pleading with Sanchez to release his leg. Whether Johnson can
be held liable for a failure to intervene before Sanchez used his
taser on Lambert would, therefore, depend on facts such as (1)
whether Johnson could hear from the dining room the altercation
between Sanchez and Mr. Lambert in the family room; (2) whether
what she heard indicated that excessive force had been and would
continue to be utilized against Mr. Lambert; and (3) whether the
duration of the altercation allowed Johnson a realistic
opportunity to intervene to prevent further injury. These issues
are not appropriately addressed at this stage in the proceedings.
Furthermore, Plaintiffs allege that Johnson's subsequent act of
dragging him across the floor while injured constituted excessive
force. The manner in which Mr. Lambert was allegedly dragged
through his family room could also establish excessive force,
depending on the circumstances of Mr. Lambert's arrest. Taking
the allegations in the complaint as true and construing all
reasonable inferences in favor of Plaintiffs, the Court cannot
hold that Mr. Lambert has not stated a claim of excessive force
Therefore, Defendants' motion to dismiss the first cause of
action against Johnson is denied.
C. Falsification of Police Reports
In their opposition, Plaintiffs argue that the complaint states
a valid claim under 42 U.S.C. § 1983 against Defendants Sanchez and Johnson for falsification of police reports.
Defendants respond that the complaint does not assert this cause
Defendants correctly observe that the only allegations of
falsification of police reports are set forth in the tenth cause
of action, which has been voluntarily dismissed, and in the
complaint's introductory allegations, which are not incorporated
by reference into the other causes of action. The only remaining
section 1983 claim is the first cause of action for excessive
force, which does not allege that Defendants Sanchez and Johnson
falsified their police reports.
Accordingly, the Court finds that Plaintiffs have failed to
state a claim under 42 U.S.C. § 1983 for falsification of police
reports. At the hearing, Plaintiffs declined leave to amend to
state such a claim.
II. Municipal Liability for State Law Claims
Defendants contend that Plaintiffs' State law tort claims
against Santa Rosa should be dismissed because Plaintiffs'
original claim filed with the City did not allege facts to
establish any action or inaction by Santa Rosa or make an
independent claim against it. Plaintiffs argue that their State
law causes of action against Santa Rosa arise from the same
fundamental facts as set forth in the pre-lawsuit claim.
California "Government Code section 945.4 requires, as a
prerequisite to maintenance of an action against a public entity
for damages arising out of an alleged tort, the timely filing of
a claim, and its rejection." Fall River Joint Unified Sch. Dist.
v. Superior Court, 206 Cal. App. 3d 431, 434 (1988). "[T]he
factual circumstances set forth in the written claim must
correspond with the facts alleged in the complaint. . . ."
Nelson v. State of California, 139 Cal. App. 3d 72, 79 (1982)
(citations omitted). "Where a complaint is `predicated on the
same fundamental facts' as those in the claim, courts have
concluded the claim did not violate section 945.4." Dixon v.
City of Livermore, 127 Cal. App. 4th 32, 40 (2005) (quoting
White v. Superior Court, 225 Cal. App. 3d 1505, 1511 (1990))
(internal citations omitted).
Here, Plaintiffs' claim contains the same fundamental facts as
alleged in the complaint. Moreover, Defendants' assertion that
there are no independent claims made against Santa Rosa is
directly contradicted by the heading of the claim itself
"William and Beverly Lambert's Claim Against the City of Santa
Rosa." (Caroline Fowler Dec., Ex. C at 2).
Therefore, the claim satisfied section 945.4 and the Court will
not dismiss Plaintiffs' State law tort claims against Santa Rosa.
III. Second Cause of Action for Assault and Battery
A. Defendant Johnson's Liability
Defendants argue that California law precludes Defendant
Johnson's liability for assault and battery. Defendants claim
that "a public employee is not liable for an injury caused by the
act or omission of another person." Cal. Gov't Code § 820.8
(2005). Defendants also point to section 820.4, which provides
immunity to public officials for conduct carried out "in the
execution or enforcement of any law." Id. at § 820.4. But
section 820.8 emphasizes: "Nothing in this section exonerates a public employee
from liability for injury proximately caused by his own negligent
or wrongful act or omission." Id. at § 820.8. Thus, section
820.4 only immunizes acts or omissions of police exercising "due
care." Id. at § 820.4. Consequently, Johnson can be held liable
for the alleged unreasonable force she used against Mr. Lambert
while dragging him across the family room floor. Moreover,
Plaintiffs rely on Robinson v. Solano County, 278 F.3d 1007,
1016 (9th Cir. 2002), holding that police officers who use
excessive force in arresting a suspect are not immune from
assault and battery under California law.
Therefore, the Court denies Defendants' motion to dismiss the
second cause of action against Johnson.
B. Bane Civil Rights Act Claim
In their opposition papers, Plaintiffs contend that there is a
valid cause of action under California law for assault and
battery as a violation of California Civil Code section
52.1,*fn2 popularly known as the Bane Civil Rights Act.
Plaintiffs further assert that this Court has supplemental jurisdiction over this cause of
action because Plaintiffs' assault and battery claims are
factually related to the section 1983 excessive force claims.
At the hearing, Plaintiffs admitted that the section 52.1 cause
of action was poorly plead. Plaintiffs cite section 52.1 only
once in their complaint under the heading of jurisdiction and
venue, which is not incorporated by reference into any other
causes of action. There is no citation to section 52.1 in the
second cause of action for assault and battery, or as an
independent cause of action.
Accordingly, the Court grants Plaintiffs leave to amend to
state a valid cause of action under section 52.1.
IV. Eighth Cause of Action for Intentional Infliction of
Relying on California law, Defendants assert immunity for
Plaintiffs' claim of intentional infliction of emotional
distress. Without specifically addressing Defendants' contention,
Plaintiffs generally dispute Defendants' immunity.
Under California law, "except as otherwise provided by statute,
a public entity is not liable for an injury resulting from an act
or omission of an employee of the public entity where the
employee is immune from liability." Cal. Gov't. Code § 815.2(b).
Furthermore, "[a] public employee is not liable for injury caused
by his instituting or prosecuting any judicial or administrative
proceeding within the scope of his employment, even if he acts
maliciously and without probable cause." Id. at § 821.6.
California courts have held that such prosecutorial immunity applies to acts by police officers, Johnson v. City of
Pacifica, 4 Cal. App. 3d 82, 86 (1970), during the course of an
investigation. Baughman v. California, 38 Cal. App. 4th 182,
Here, Sanchez and Johnson responded to a 911 call and initiated
an investigation concerning claims of domestic violence. During
their investigation, Sanchez and Johnson allegedly caused Mr.
Lambert emotional distress. Similarly in Amylou R. v. County of
Riverside, 28 Cal. App. 4th 1205 (1994), the plaintiff alleged
intentional and negligent infliction of emotional distress caused
by law enforcement officers investigating the plaintiff's rape.
The court held that section 821.6 barred the plaintiff's claim.
Id. at 1214. The immunity applied to the officers and, by
operation of section 815.2(b), the County of Riverside. Id.
As in Amylou, Defendants' alleged acts were "incidental" to
the investigation of a crime. Id. at 1211. Plaintiffs do not
attempt to distinguish Amylou. Therefore, Defendants Santa
Rosa, and Sanchez and Johnson are immune from Plaintiffs' eighth
cause of action.
V. Ninth Cause of Action for Failure to Intervene
Defendants argue that Johnson cannot be held liable under
California law for her failure to intervene.
To establish the requisite duty for this tort under California
common law, a plaintiff must allege "that the officer took
affirmative action which contributed to, increased, or changed
the risk which would have otherwise existed" or establish "the
requisite factors to a finding of special relationship, namely
`detrimental reliance by the plaintiff on the officers'
conduct.'" Stout v. City of Porterville, 148 Cal. App. 3d 937, 945 (1983)
(quoting Williams v. California, 34 Cal. 3d 18, 27-28 (1983)).
Nothing in the complaint shows that Johnson took affirmative
action which contributed to the risk of Mr. Lambert sustaining an
injury from Sanchez nor have Plaintiffs shown any detrimental
reliance upon her conduct.
Therefore, the Court grants Defendants' motion to dismiss the
ninth cause of action. At the hearing, Plaintiffs indicated that,
given the Court's findings, they did not wish leave to amend.
VI. Twelfth Cause of Action for Loss of Consortium
Defendants assert that Mrs. Lambert has failed to plead the
specific elements of damage that are required to state a claim
for loss of consortium. Plaintiffs argue that, under rules of
liberal pleading, the allegations in the complaint are sufficient
to put Defendants on notice of this cause of action.
Loss of consortium is the "loss of conjugal fellowship and
sexual relations" experienced by a person when his or her spouse
is injured. Rodriguez v. Bethlehem Steel Corporation,
12 Cal. 3d 382, 385 (1974). The concept of consortium "embraces such
elements as love, companionship, comfort, affection, society,
sexual relations . . . moral support . . . and the deprivation of
a spouse's physical assistance in operating and maintaining the
family home." Ledger v. Tippitt, 164 Cal. App. 3d 625, 633
(1985) (citations omitted). Loss of consortium can be complete or
partial. Carlson v. Wald, 151 Cal. App. 3d 598, 602 (1984)
(citing Rodriguez, 12 Cal. 3d at 408)).
Defendants rely upon Park v. Standard Chem Way Company, in which a California appellate court stated:
Rodriguez does not stand for the principle that the
injury to and the pain and suffering of a negligently
injured spouse creates a cause of action for loss of
consortium in the other spouse. . . . We think that
loss of consortium as defined above means a complete
loss of consortium for a definite period of time or a
nondeterminable length of time and is not to be
confused with the inevitable physical, mental, and
emotional damage normally or usually suffered by one
spouse when the other has been wrongfully injured.
60 Cal. App. 3d 47, 50 (1976).
This portion of the Park decision has since been described as
"colorful dicta," unsupported by the text of Rodriguez, and
"not followed by any subsequent California court." Carlson,
151 Cal. App. 3d at 602. There is no requirement under California law
that Plaintiffs plead a complete loss of consortium because
Rodriguez allows recovery for "impairment to the rights of
consortium." Id. (citing Rodriguez, 12 Cal. 3d at 409)
(emphasis in original).
Because Plaintiffs wish to amend their complaint for other
reasons, the Court grants Defendants' motion to dismiss the
twelfth cause of action, and grants Mrs. Lambert leave to amend
to incorporate the relevant language from Rodriguez and perfect
her loss of consortium claim.
For the foregoing reasons, IT IS HEREBY ORDERED THAT:
1) Defendants' motion to dismiss is DENIED as to the claim of
excessive force in the first cause of action against Defendants
Santa Rosa, and Sanchez and Johnson.
2) Defendants' motion to dismiss is DENIED as to the assault
and battery claim in the second cause of action against Defendant Johnson.
3) Plaintiffs' request for leave to amend is GRANTED to add a
claim under California Civil Code section 52.1.
4) Defendants' motion to dismiss is GRANTED without leave to
amend as to all claims in the eighth cause of action against
Defendants Santa Rosa, and Sanchez and Johnson.
5) Defendants' motion to dismiss is GRANTED as to the failure
to intervene claim in the ninth cause of action against Defendant
6) Defendants' motion to dismiss is GRANTED as to the loss of
consortium claim in the twelfth cause of action against
Defendants Santa Rosa, and Sanchez and Johnson. Plaintiff is
GRANTED leave to amend to perfect the loss of consortium claim.
7) Plaintiffs shall file their amended complaint on or before
November 11, 2005. Defendants shall notice any motion to dismiss
to be heard at the Case Management Conference.
IT IS SO ORDERED.
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