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James Warner, Troy Warner v. County of San Diego

February 14, 2011


The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge


Defendants have filed a motion to dismiss certain of the claims asserted in Plaintiffs' Complaint. For the reasons discussed below, Defendants' motion is GRANTED IN PART and DENIED IN PART.


The following facts are taken from the Complaint, and the Court makes no finding as to the truthfulness of the allegations.

On April 26, 2009, James Warner was having a get-together at his house with family and friends, including Troy Warner, Shad Warner, Nicole Warner, Erica Iwasckiewicz, and Iwo Iwasckiewicz. (Compl. ¶ 12.) That afternoon, a neighbor, Michael May, called the Sheriff's department, claiming that James Warner's son, Jacob, was playing music too loud in his car. (Compl. ¶ 13.) When Sheriff's deputies arrived at the Warner residence, there was no music playing and the deputies left. (Id.)

Later, at 7:52 p.m., Deputy Zachary Harris arrived to investigate the noise complaint. (Compl. ¶ 14.) Harris took a statement from May, who claimed that around 7:30 p.m., James Warner walked to the end of his driveway and shouted, "I'm going to kick that fat piece of sh__'s ass, as well as that skinny f___." (Id.)

Harris decided that he was going to arrest James Warner for a violation of California Penal Code § 422 (Criminal Threats). (Compl. ¶ 15.) Harris called for back up support, directing them to bring non-lethal weapons, and also requested a helicopter. (Compl. ¶ 16.)

Sergeant Persichilli and Deputies Byrne, Astorga, Mayordeleon, Julian, Glover, Cantu, Hernandez, Boer, Carlos, Hurtado, and Washington responded. (Compl. ¶ 16.) Deputy Washington forced his way into the house and handcuffed Jacob Warner, a minor. (Compl. ¶ 16.) Deputy Harris and other deputies went in search of James Warner, who was in the backyard in a jacuzzi. (Compl. ¶ 17.) James Warner and several other adults walked toward the back gate to talk to the officers. (Id.) The officers pointed weapons in their direction and locked laser target beams on their bodies. (Compl. ¶ 18.) James Warner was wearing only soaking wet boxers and had his hands in the air. (Id.) Deputy Harris grabbed Warner around the neck, swept his feet out from under him, tasered him, handcuffed him, and took him to a patrol car. (Id.)

In the meantime, family members and friends were yelling to the deputies to find out what was happening. (Compl. ¶ 19.) The deputies opened fire with pepperball rounds, shooting several people and the house. (Id.) The group went into the house and called 911. Each time they tried to go outside to find out what was happening, they were fired upon. (Id.) Deputies forced their way into the house, handcuffed everyone, including some of the children, took them outside in the cold night for hours, eventually releasing all but four. (Id.) One deputy seized a digital camera card out of a camera owned by James Warner. (Id.) Two of Mr. Warner's brothers, Troy and Shad, as well as his sister-in-law, Erica Iwaszkiewicz, were arrested. (Id.)

James, Troy, and Shad Warner were charged with violating California Penal Code §§ 422, 148(a)(1), and 415(3). (Compl. ¶ 20.) Erica Iwaszkiewicz was released with a citation. (Id.) On June 9, 2009, James, Shad and Troy Warner entered a plea of guilty to violating California Penal Code § 415(3) (disturbing the peace). (Compl. ¶ 21.) No factual allegations were admitted in connection with the pleas by Shad and Troy Warner. (Id.) The factual basis for James Warner's plea was yelling out his front door earlier in the day. (Id.)

The Complaint asserts the following claims (1) violation of 42 U.S.C. § 1983 by unlawful search, false arrest and seizure, unlawful detention, excessive force, and conspiracy to deprive civil rights; (2) violation of 42 U.S.C. § 1983 via unlawful policies, customs, or habits; (3) negligence; (4) assault and battery; (5) civil conspiracy; (6) false arrest and imprisonment; (7) violation of Cal. Civ. Code § 52.1.


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). When reviewing a motion to dismiss, the allegations of material fact in plaintiff's complaint are taken as true and construed in the light most favorable to the plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Although detailed factual allegations are not required, factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "A plaintiff's obligation to prove the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. "[W]here the well-pleaded facts do not ...

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