The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER: 1) GRANTING IN PART AND DENYING IN PART CITY DEFENDANTS' MOTION TO DISMISS; [Doc. No. 90] 2) DENYING CITY DEFENDANTS' MOTION TO STRIKE; [Doc. No. 90] 3) GRANTING ATTORNEY DEFENDANTS' MOTION TO DISMISS; [Doc. No. 88] 4) GRANTING IN PART AND DENYING IN PART INVESTIGATOR DEFENDANTS' MOTION TO DISMISS; [Doc. No. 91] GRANTING DEFENDANT SUSAN HASBROUCK'S MOTION TO DISMISS [Doc. No. 101]
This action arises from events related to the arrest of Plaintiff John Fremont Steel IV for driving under the influence. On August 11, 2009, Plaintiff filed the instant action alleging violations of his constitutional rights under 42 U.S.C. § 1983 and California Civil Code § 52.1. Plaintiff also named several state law causes of action. (Doc. No. 1.) Thereafter, several defendants filed combined motions to dismiss and motions to strike under California's anti-SLAPP ("Strategic Lawsuits Against Public Participation") statute. (Doc. Nos. 23, 26, 29, 63.) On January 4, 2010, the Court issued an order ruling on the pending motions. (Doc. No. 69.) In the Order, the Court granted in part and denied in part all of the Defendants' motions, with the exception of Defendant Aaron Zigman's motion, which the Court granted in its entirety. In granting portions of the motions to dismiss, the Court gave Plaintiff leave to file an amended complaint.
On February 28, 2010, Plaintiff filed his First Amended Complaint ("FAC"). (Doc. No. 85.) Thereafter, the following Defendants filed motions to dismiss: (1) Robert Wood and Janis Stocks ("Attorney Defendants") (Doc. No. 88); (2) City of San Diego, William Landsdowne, Michael McCollough, Gilbert Ninness, San Diego Police Department ("City Defendants") (Doc. No. 90); (3) Confidential Research Company and Laura Marie Sisson-Brown ("Investigator Defendants"); and (4) Susan Hasbrouck ("Hasbrouck") (Doc. No. 101). Plaintiff timely opposed the motions (Doc. Nos. 93, 94, 95, 105), and Defendants timely replied (Doc. Nos. 96, 97, 99, 110).
This case arises out of events that occurred in connection with the contentious divorce proceedings between Plaintiff and his now ex-wife, Christina Steel. Plaintiff alleges that his wife's attorneys, private investigators hired by her attorneys, and San Diego Police Department officers conspired to have him arrested in order to obtain incriminating child custody evidence against him. Ms. Steel is not named as a defendant to this action.
According to the FAC, Christina Steel hired Defendant Wood to represent her in her divorce proceedings. (FAC at ¶ 46.) Plaintiff alleges that on or about July 31, 2007, Wood contacted Sisson-Brown to retain the private investigative services of her and her firm, Confidential Research Company ("CRC"). (Id. at ¶ 49.) Plaintiff alleges that the purpose was to ascertain "incriminating evidence that could be used to ignite a custody battle between his client and Plaintiff." (Id.) On August 1, 2007, Sisson-Brown, with the assistance of other private investigators, including Rick Bronold and Luis Gonzalez,*fn1 began surveillance of Plaintiff. (Id. at ¶ 53.) Plaintiff alleges that on August 3, 2007, Bronold told Sisson-Brown that he had a "friend in traffic" at the San Diego Police Department, Defendant McCollough. (Id. at ¶ 57.) Plaintiff alleges that Sisson-Brown told Bronold to have his friend arrange a "hot stop" of Plaintiff's vehicle. (Id. at ¶ 59.) Plaintiff then alleges that Bronold contacted McCollough the next day, during which Bronold allegedly told McCollough that CRC had been hired to "perform surveillance on Plaintiff and that 'their focus was to collect incriminating child custody evidence' related to Plaintiff." (Id. at ¶ 61.)
Plaintiff asserts that in the early afternoon of August 11, 2007, Bronold contacted Sisson-Brown to inform her that Plaintiff was at a friend's private residence. (Id. at ¶ 63.) Sisson-Brown and Bronold followed Plaintiff and another friend as they walked around La Jolla Village for several hours and then returned to Plaintiff's friend's house. (Id. at ¶¶ 64--65.) Plaintiff alleges that at approximately 10:05 p.m. on August 11, 2007, Bronold contacted Defendant McCollough. Plaintiff contends that shortly after Bronold called McCollough, Sisson-Brown called 911 to report that Plaintiff was driving while intoxicated. (Id. at ¶ 67.) During the call, Sisson-Brown allegedly spoke with McCollough. (Id.) Plaintiff then alleges that McCollough dispatched Defendant Ninness, who was assigned to patrol Pacific Beach, to La Jolla to meet with Bronold and Sisson-Brown. (Id. at 71.) At approximately 10:37 p.m., Officer Ninness met with Bronold and Sisson-Brown in La Jolla. Although Plaintiff's allegations in the FAC are not clear, it appears that Plaintiff drove to another location after leaving his friend's house. When Ninness met with the investigators, the investigators showed Ninness Plaintiff's parked vehicle. Because Plaintiff was not inside the vehicle, Plaintiff alleges that Officer Ninness waited more than two and a half hours for Plaintiff to return to his vehicle. (Id. at ¶ 74--76.) Upon returning to his vehicle, Plaintiff got into his car and began to drive home. (Id. at ¶ 76.) Officer Ninness followed and eventually pulled Plaintiff over at 12:58 a.m. for failing to come to a complete stop at an intersection with a flashing red light. (Id. at ¶¶ 78, 81--83.) Thereafter, Ninness conducted various sobriety tests and ultimately arrested Plaintiff for DUI. (Id. at ¶¶ 90--93.) The private investigators, who had been following Steel and Ninness, video recorded the stop and subsequent arrest. (Id. at ¶ 82.)
Plaintiff, who is a diabetic, alleges that while he was being transported by Defendant Ninness to police headquarters, he went into diabetic shock, even losing consciousness at one point. (Id. at ¶ 98.) After several hours at Police Headquarters and a trip to County Jail, Ninness took Plaintiff to the hospital, where the hospital staff administered insulin to Plaintiff. (Id. at ¶¶ 100--105.) Plaintiff alleges that within 48 hours, either McCollough, Ninness, or Bronold reported Plaintiff's arrest to Wood. Plaintiff asserts that this was at least seven days before the officers prepared the police report. (Id. at ¶ 106.) Plaintiff alleges that Wood then proceeded to include details regarding Plaintiff's arrest and diabetic attack in declarations that he filed in Family Court on August 14, 2007. (Id. at ¶¶ 109--110.)
Plaintiff also names Defendant Stocks as part of the conspiracy. Plaintiff alleges that several months after Plaintiff's arrest, Wood "arranged for attorney [Stocks] to assist in the representation of Ms. Steel." (Id. at ¶ 116.) Plaintiff alleges that on July 28, 2008, Stocks arranged for the delivery of copies of the private investigators' video recordings, which Plaintiff alleges had been tampered with in order to remove the audio. (Id. at ¶ 123.) Plaintiff's claims against Defendant Hasbrouck arise out of his allegations that Hasbrouck, while serving Plaintiff with divorce papers "angrily warned Plaintiff, 'you have no idea who you're fucking with.'" (Id. at ¶111.)
On February 28, 2008, criminal charges were filed against Plaintiff related to his arrest on August 12, 2007. (Id. at ¶ 114.) To date, criminal charges are still pending.
A complaint survives a motion to dismiss if it contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court reviews the contents of the complaint, accepting all factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Notwithstanding this deference, the reviewing court need not accept "legal conclusions" as true. Ashcroft v. Iqbal, -- U.S. -- , 129 S.Ct. 1937, 1949 (2009). Moreover, it is improper for a court to assume "the [plaintiff] can prove facts that [he or she] has not alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). Accordingly, a reviewing court may begin "by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft, supra, 129 S.Ct. at 1950.
"When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (citing Twombly, 550 U.S. at 557).
A. City Defendants' Motion to Dismiss
The City Defendants move to dismiss the FAC on multiple grounds. First, the City Defendants assert that Plaintiff has failed to adequately allege facts to support his claims of unlawful arrest or excessive force. (City Defs.' Mot. to Dismiss at 3:5--4:21.) Second, the City Defendants contend that Plaintiff has not properly alleged a civil conspiracy. (Id. at 4:22--7:15.) Finally, the City Defendants request that the Court strike certain paragraphs in Plaintiff's FAC because they are "immaterial, argumentative and self-serving statements that have little or nothing to do with the allegations relating to his claims." (Id. at 7:17--8:8:8.) Because Plaintiff's causes of action for violations of his constitutional rights are based in part on his civil conspiracy cause of action, the Court shall address that cause of action first.
1. 42 U.S.C. § 1983 - Civil Conspiracy
In order to allege a conspiracy under § 1983, a plaintiff must show "an agreement or 'meeting of the minds' to violate constitutional rights." Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (citing United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540--41 (9th Cir. 1989) (en banc)). "To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy." Id. at 441. This agreement or meeting of the minds may be inferred on the basis of circumstantial evidence, such as the actions of the defendants. Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1301 (9th Cir. 1999). A showing that defendants committed acts that "are unlikely to have been undertaken without an agreement" may support the inference of conspiracy. Id. In addition, a conspiracy to violate constitutional rights must be predicated on a viable underlying constitutional claim. See Thornton v. City of St. Helens, 425 F.3d 1158, 1168 (9th Cir. 2005). In addition, the claim requires "an actual deprivation of constitutional rights." Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006). "The defendants must have, by some concerted action, intended to accomplish some unlawful objective for the purpose of harming another which results in damage." Mendocino Envtl. Ctr., 192 F.3d at1301.
As the Court noted in its first Order, Plaintiff cites various telephone conversations between Bronold, Sisson-Brown, McCullough, and Ninness at the time of the events in question. Plaintiff also identifies testimony by Ninness and McCullough that they were communicating during the pursuit, arrest, and subsequent transport of Plaintiff to police headquarters. Based on these allegations, the Court finds that an agreement or meeting of the minds could be inferred to support the agreement element of a conspiracy. The Court also finds that if Plaintiff is not ultimately convicted of DUI, the allegations would support the unlawful objective element. Accordingly, the Court finds that Plaintiff adequately alleges a conspiracy against Defendants Ninness and McCollough, and therefore DENIES Defendants' motion to dismiss the conspiracy claim.
2. 42 U.S.C. § 1983 - Unlawful Arrest
The City Defendants also move to dismiss Plaintiff's claim that Defendant McCollough violated Plaintiff's constitutional right to be free from an unlawful arrest on grounds that Plaintiff failed to allege what McCollough did, "through his own individual actions, to deprive Plaintiff of any of his rights." (City Defs.' Mot. to Dismiss at 3:24--4:4.)*fn2 In the Court's prior Order, the Court determined that Plaintiff's claim under § 1983 for unlawful seizure and imprisonment claim would be barred by Heck v. Humphrey, 512 U.S. 477 (1994) in the event that Plaintiff is convicted of DUI. The Court, however, determined that a stay, rather than dismissal, was appropriate in light of the Supreme Court's decision in Wallace v. Kato, 549 U.S. 384 (2007). In reaching this conclusion, the Court did not address the sufficiency of Plaintiff's claim under § 1983 for unlawful seizure and imprisonment.
Although the Court still intends to stay this cause of action, the Court finds good cause to address Defendant McCollough's argument. The Court has already noted that Plaintiff has adequately alleged that Defendant McCollough conspired with Defendant Ninness to violate Plaintiff's constitutional rights. Although McCollough may not have conducted the allegedly unlawful arrest himself, he can be held liable for Defendant Ninness's conduct by virtue of his role in the alleged conspiracy. Thus, based on Plaintiff's assertion that there was no probable cause to arrest him, and assuming Plaintiff is not convicted for DUI, Plaintiff's claims are sufficient to withstand Defendant's motion. Accordingly, the Court DENIES Defendant McCollough's motion to dismiss Plaintiff's claim for unlawful arrest and imprisonment.
The City Defendants also move to dismiss Plaintiff's cause of action for unlawful arrest and imprisonment to the extent it is based upon the 14th Amendment. The City Defendants assert that there is no cause of action for unlawful seizure under the 14th Amendment. (City Defs.' Mot. to Dismiss at 4:5--8.) It is well established that the Fourth Amendment protects the "right of the people to be secure in their persons . . . against unreasonable searches and seizures," and is applicable to the states through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961). Thus, the Court finds Plaintiff's citation to the Fourteenth Amendment acceptable to the extent Plaintiff does so for the sole purpose of grounding his Fourth Amendment claim. However, it is clearly established that the Fourth Amendment, not the Due Process Clause of the Fourteenth Amendment, governs claims for false arrest brought pursuant to 42 U.S.C. § 1983. See Awabdy v. City of Adelanto, 368 F.3d 1062, 1069 (9th Cir. 2004); Larson v. Neimi, 9 F.3d 1397, 1400--01 (9th Cir. 1993) ("Fourth Amendment standards must be used when a person asserts that a public official has illegally seized him."). Thus, to the extent Plaintiff cites to the Fourteenth Amendment to assert that Defendants violated his substantive due process rights guaranteed under the Fourteenth Amendment, the Court DISMISSES those claims without leave to amend.
2. 42 U.S.C. § 1983 - Excessive Force
In the Court's prior Order, the Court denied the City Defendants' motion to dismiss these claims against Defendants McCollough and Ninness to the extent Defendants contended that Plaintiff had failed to allege sufficient facts to support these claims. (See Order at 5:24--6:14.) Accordingly, the Court again DENIES the City Defendants' motion.
The City Defendants also move to dismiss Plaintiff's allegations under § 1983 for excessive force to the extent Plaintiff claims Defendants' conduct violated the Eighth and Fourteenth Amendments. (City Defs.' Mot. to Dismiss at 4:15--21.) An allegation that the use of excessive force during an arrest violated the Eighth Amendment right not to be subjected to cruel and unusual punishment does not state a claim on which relief can be granted. The Eighth Amendment does not apply until after there has been an adjudication of guilt. See Bell v. Wolfish, 441 U.S. 520, 535 (1979). Because Plaintiff was not convicted of a crime when he claims he was subjected to excessive force, the Court GRANTS the City Defendants' motion and DISMISSES the excessive force claim to the extent it is based on the Eighth Amendment without leave to amend.
As with claims of false arrest, claims of excessive force are not cognizable under the due process clause of the Fourteenth Amendment. See Graham v. Connor, 490 U.S. 386 (1989). Thus, to the extent Plaintiff's citation to the Fourteenth Amendment is for the purpose of claiming that the force used against him violated his substantive due process rights guaranteed by the Fourteenth Amendment, the Court also DISMISSES those claims without leave to amend.
3. City Defendants' request to strike certain paragraphs of the FAC
Finally, the City Defendants request that the Court strike certain paragraphs of the FAC on grounds that they are "immaterial, argumentative and self-serving statements that have little or nothing to do with the allegations relating to his claims." (City Defs.' Mot. to Dismiss at 7:21--25.) Plaintiff opposes the request, arguing that each paragraph is supportive of his claims. (Pl.'s Opp. at 5:9--12.)
Rule 12(f) of the Federal Rules of Civil Procedure provide that a court may strike from a pleading "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). The function of a motion to strike is to avoid the unnecessary expenditures that arise throughout litigation by dispensing of any spurious issues prior to trial. Chong v. State Farm Mut. Auto. Ins. Co., 428 F. Supp. 2d 1136, 1139 (S.D. Cal. 2006); Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Rule 12(f) motions "are generally regarded with disfavor because of the limited importance of pleading in federal practice, and because they are often used as a delaying tactic." Neilson v. Union Bank of Calif., N.A., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003). Thus, courts generally grant a motion to strike only where "it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation." Leduc v. Kentucky Cent. Life Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992).
The Court has reviewed the City Defendants' request as well as the referenced paragraphs they seek to strike. The Court does not find good cause to strike any of the paragraphs identified by the City Defendants because it is not absolutely clear at this time that the factual allegations contained within these paragraphs could have no possible bearing on the subject matter of the litigation. Accordingly, the Court DENIES Defendant's request to strike portions of the FAC.
B. Attorney Defendants' Motion to Dismiss
The Attorney Defendants seek dismissal of Plaintiff's complaint for several reasons. First, they contend that Plaintiff's claims should be stricken because Plaintiff has failed to comply with Cal. Civil Code § 1714.10. (Attorney Defs.' Mot. to Dismiss at 4:22--8:1.) Second, the Attorney Defendants contend that Plaintiff fails to plead sufficient facts to support his civil conspiracy claim. (Id. at 8:2--12:26.)
1. Failure to comply with Cal. Civil Code § 1714.10
Cal. Civil. Code § 1714.10 is a California provision that requires a plaintiff to obtain an order from a court before asserting that an attorney engaged in a conspiracy with his or her client. Specifically, the provision provides:
(a) No cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorney's representation of the client, shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes the claim for civil conspiracy to be filed after the court determines that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action.
Cal. Civ. Code § 1714.10.
"[F]ederal courts are to apply state substantive law and federal procedural law." Hanna v. Plumer, 380 U.S. 460, 465 (1965). In determining whether a particular statute is procedural rather than substantive in nature, courts look to whether the statute "really regulates procedure," namely, "the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them." Id. at 464. See also Naranjo v. The Salvation Army, 2006 U.S. Dist. LEXIS 72229, at *3 (N.D. Cal. 2006) (holding California Code of Civil Procedure § 425.16, which sets forth requirement that party obtain court approval prior to seeking punitive damages from religious organizations, is procedural in nature because it neither contains substantive elements of punitive damages claims nor limits recovery in any way); Jackson v. East Bay Hospital, 980 F. Supp. 1341, 1352 (N.D. Cal. 1997) (holding California Civil Code § 425.13, which requires that a party obtain court approval prior to seeking punitive damages against health care provider, to be procedural).
Here, the Court finds Cal. Civ. Code § 1714.10 to be procedural in nature. The California Court of Appeals has construed the provision to be a "prefiling procedure to determine whether the proposed conspiracy pleading is legally sufficient." See Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone, 107 Cal. App. 4th 54, 83 (2003). See also Pavicich v. Santucci, 85 Cal. App. 4th 382, 394 (2000) (describing Section 1714.10 as a "procedural hurdle"). Moreover, at least one federal district court declined to strike a plaintiff's claims for failing to comply with the statute after finding the provision to be procedural in nature. See Franklin v. Allstate Corp., 2007 U.S. Dist. ...