The opinion of the court was delivered by: Andrew J. Guilford United States District Judge
ORDER GRANTING DEFENDANT RISKO'S MOTION TO STRIKE AND GRANTING IN PART DEFENDANT RISKO'S MOTION TO DISMISS
Before the Court is a Special Motion to Strike Plaintiff's Second Amended Complaint ("Motion to Strike") filed by Defendant Gregory S. T. Risko ("Risko"). Also before the Court is a Motion to Dismiss and/or Strike the First Amended Complaint or, in the Alternative, for a More Definite Statement ("Motion to Dismiss ") filed by Defendant Risko. After considering all papers and arguments submitted, the Court GRANTS the Motion to Strike and GRANTS in part the Motion to Dismiss.
The following facts are taken from Plaintiff's Second Amended Complaint ("SAC"). Plaintiff Stephen Edward Mason ("Plaintiff") and his family reside in San Clemente, California, across the street from Risko, a sworn deputy sheriff with the Orange County Sheriff's Department. Plaintiff and Risko do not enjoy a friendly relationship. On May 31, 2006, Defendant Risko and his wife obtained an Orange County Superior Court restraining order against Plaintiff, enjoining him from annoying or otherwise harassing them and their children and from being within 30 feet of the family. (SAC ¶ 30.) Following the issuance of the restraining order, Risko and his wife frequently contacted the Orange County Sheriff's Department with fabricated complaints about Plaintiff. (SAC ¶¶ 31, 32.) Risko's colleagues at the Orange County Sheriff's Department accepted these complaints as true, and on Risko's behalf would "torment, arrest, cite and otherwise harass and violate the state and federal statutory and constitutional rights" of Plaintiff. (SAC ¶ 32.)
On Saturday, May 3, 2007, the tensions between Plaintiff and Risko came to an unfortunate head. Plaintiff arrived home from his son's baseball game at approximately 2:30 p.m. Between 2:30 and 3:00, Plaintiff left his home to pick up his son and a few of his son's friends at their high school. Plaintiff was not aware that Risko and his wife had contacted the Orange County Sheriff's Department between 2:00 and 2:30 that afternoon, complaining that Plaintiff had violated the restraining order by "driving too closely" behind Risko on the street where both parties lived. (SAC ¶ 34.) When officers from the Sheriff's Department arrived at Risko's home, Risko told them that plaintiff had violated the restraining order by following him too closely in his car and that he "desired the criminal prosecution" of Plaintiff. (SAC ¶ 35.) Risko informed the officers that Plaintiff was inside his home, and he and the officers discussed a plan for the officers to arrest Plaintiff by having an Orange County Sheriff's Department dispatcher call Plaintiff and tell him to come outside of his home. (SAC ¶ 36.) Risko "also apparently told said deputy sheriffs that Plaintiff was a constant thorn in his side, and that he would like them to treat him with unreasonable force when they unlawfully arrested him," as is "customary" for Orange County Sheriff's Department Deputy Sheriffs "when they seize someone who is allegedly giving one of their fellow deputy sheriff's [sic] a 'hard time.'" (SAC ¶ 36.) Alternatively, Risko "knew and understood that by telling his fellow Orange County Sheriff's [sic] that plaintiff had been harassing him and his wife, something untrue, that his fellow deputy sheriffs . . . would use unreasonable force upon plaintiff and would unlawfully arrest him by ordering him to come out of his home." (SAC ¶ 36.)
When Plaintiff arrived home at approximately 3:00 that afternoon with his son and his son's friends, he walked through his living room and noticed Defendants Perez, Copeland, Sutton, Manche, Stephenson, and Simpson, all officers with the Orange County Sheriff's Department, "crouched down in his back / side yard near some bushes." (SAC ¶ 37.) Defendant Manche saw Plaintiff through a window and yelled for Plaintiff to come out of the house. (SAC ¶ 38.) Defendants Risko, Perez, Copeland, Sutton, Manche, Stephenson, and Simpson had conspired to have an Orange County Sheriff's Department dispatcher "do a 'call-out'" on Plaintiff. (SAC ¶ 39.) The dispatcher telephoned Plaintiff to tell him that deputy sheriffs were "waiting for him outside" and that he "needed to come outside of his home with his hands up where the deputies could see them." (SAC ¶ 39.) Plaintiff then went to his door, opened it, and asked the assembled officers what they were doing. (SAC ¶ 41.)
Immediately, Plaintiff heard what he believed to be gun shots as the officers fired taser darts into Plaintiff's home. (SAC ¶ 42.) Plaintiff attempted to shut his door and shouted, "Wait a minute; I have young kids in my home!" (SAC ¶ 43.) One taser dart barely missed one of the teenage boys in Plaintiff's home. (SAC ¶ 44.) The door to Plaintiff's home was then kicked in by the assembled officers, and Plaintiff was knocked against the wall inside his home. (SAC ¶ 45.) Defendant Perez shot Plaintiff with a taser gun several times, once with the taser gun against Plaintiff's chest. (SAC ¶¶ 46, 47.) Plaintiff dropped to the floor, his body convulsing from the electric shocks inflicted by Perez. (SAC ¶ 48.) Defendants Perez, Copeland, Sutton, Manche, Stephenson, and Simpson then began kicking Plaintiff's side and neck. (SAC ¶ 49.) The beating continued despite Plaintiff begging the officers to stop and repeatedly asking, "What did I do? What did I do?" (SAC ¶¶ 50-55.)
Plaintiff was then brought outside to his front yard. (SAC ¶ 56.) He asked his young son, who had witnessed the entire incident, to take a picture of his face. (SAC ¶ 56.) Perez and the other officers, save Risko, then stepped in front of Plaintiff's son and asked, "You want to go to jail with your father?" (SAC ¶ 57.) Plaintiff asked the officers repeatedly what he had done to deserve the attack. One officer answered that he had followed Defendant Risko home. (SAC ¶¶ 58, 59.) Plaintiff did not understand how he could have been accused of following Risko home, as the two live very close to one another and, in any event, Plaintiff had not followed Risko in his car as alleged. (SAC ¶ 60.)
Plaintiff was then arrested by Defendants Perez, Copeland, Sutton, Manche, Stephenson, and Simpson via Risko's private person's arrest of Plaintiff. (SAC ¶ 61.) Plaintiff was transported to the Orange County Jail. (SAC ¶ 63.) The officers later authored false crime reports and other documents related to the incident. (SAC ¶ 68.) Based on the false and misleading information provided by the officers, the Orange County District Attorney's office brought a misdemeanor criminal action against Plaintiff for violations of Cal. Penal Code §§ 166.4 and 148(a)(1). (SAC ¶ 68.) That case was ultimately dismissed. (SAC ¶ 126.)
Plaintiff now brings fourteen claims against the defendants in this case. Eleven of those claims are brought against Defendant Risko: (1) Plaintiff's first claim for unlawful seizure of person, in violation of 42 U.S.C. § 1983; (2) Plaintiff's second claim for unreasonable and excessive force, in violation of 42 U.S.C. § 1983; (3) Plaintiff's fourth claim for violation of right to freedom of speech, in violation of 42 U.S.C. § 1983; (4) Plaintiff's fifth claim for false arrest/false imprisonment, in violation of Cal. Gov't Code §§ 815.2(a), 815.6, 820, 820.2, and 820.8; (5) Plaintiff's sixth claim for battery, in violation of Cal. Gov't Code §§ 815.2(a), 815.6, 820, and 820.8; (6) Plaintiff's seventh claim for assault, in violation of Cal. Gov't Code §§ 815.2(a), 815.6, 820, and 820.8; (7) Plaintiff's eighth claim for intentional infliction of emotional distress, in violation of Cal. Gov't Code §§ 815.2(a), 815.6, 820, and 820.8; (8) Plaintiff's ninth claim for violation of Cal. Civ. Code § 52.1; (9) Plaintiff's tenth claim for malicious criminal prosecution, in violation of 42 U.S.C. § 1983; (10) Plaintiff's twelfth claim for unlawful entry into private residence, in violation of 42 U.S.C. § 1983; and (11) Plaintiff's thirteenth claim for trespass to residence, in violation of Cal. Gov't Code §§ 815.2(a), 815.6, 820, and 820.8.
Risko here moves to dismiss the Second Amended Complaint under California Civil Code § 425.16 and Federal Rule of Civil Procedure 12(b)(6).
In his Motion to Strike, Defendant Risko argues that Plaintiff's claims against him, except the malicious prosecution claim, must be stricken under California's Anti-SLAPP statute. In his Motion to Dismiss, Defendant Risko argues that all of Plaintiff's claims against him are subject to dismissal for failure to state a claim ...