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Title: Mong Kim Tran v. City of Garden Grove

November 14, 2011

TITLE: MONG KIM TRAN
v.
CITY OF GARDEN GROVE, ET AL.



The opinion of the court was delivered by: The Honorable David O. Carter, Judge

CIVIL MINUTES - GENERAL

DOCKET ENTRY

[I hereby certify that this document was served by first class mail or Government messenger service, postage prepaid, to all counsel (or parties) at their respective most recent address of record in this action on this date.]

Date:____________ Deputy Clerk:

Julie Barrera Not Present Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS: NONE PRESENT NONE PRESENT

PROCEEDING (IN CHAMBERS): GRANTING DEFENDANTS' MOTION TO DISMISS

Before the Court is a Motion to Dismiss filed by Defendants City of Garden Grove ("Garden Grove"), Garden Grove Police Department ("GGPD") and Charles Starnes ("Starnes") (collectively, "Defendants") in the above-captioned case ("Motion to Dismiss") (Docket 4). The Court finds this matter appropriate for decision without oral argument. Fed.R.Civ. P. 78; Local Rule 7-15. After considering the moving, opposing, and replying papers, the Court hereby GRANTS the Motion to Dismiss WITH LEAVE TO AMEND.

I. BACKGROUND

On or about October 28, 2009, Plaintiff Mong Kim Tran ("Plaintiff") was allegedly pulled over by Starnes while driving on Garden Grove Boulevard. Complaint, ¶ 12-13. Plaintiff stopped his vehicle and allegedly exited his vehicle after Starnes ordered him to do so. Id. at ¶ 14. Starnes allegedly questioned Plaintiff in a very aggressive and rude manner, accusing him of speeding. Id. Plaintiff avers that Starnes then forcefully struck Plaintiff in the face without cause or provocation, causing Plaintiff to fall to the

Id. Starnes allegedly struck Plaintiff in his arms and feet and handcuffed Plaintiff, causing him to fall unconscious, bleed, and suffer substantial pain. Id. Plaintiff avers that he was transported to Garden Grove Hospital for emergency treatment of his injuries. Id.

Plaintiff was the subject of misdemeanor criminal proceedings stemming from this encounter. Plaintiff was initially charged with one count of misdemeanor violation of California Penal Code § 241(c) assault on a police officer and § 243(b) battery on a police officer. Motion to Dismiss, 3. On December 14, 2010, the criminal complaint was amended to include a third count for a misdemeanor violation of California Penal Code § 148(a)(1) resisting a peace officer. Id. Plaintiff pled guilty to the charge of resisting a peace officer, and the two other counts were dismissed on motion of the Deputy District Attorney on the case. Id. Plaintiff was sentenced to three years probation and other various conditions.

Plaintiff is now filing the present civil action based on the alleged events of October 28, 2009. Plaintiff's Complaint alleges eight causes of action: (1) Fraudulent Investigation and Unlawful Seizure by Arrest, Detention, Prosecution, Conviction; (2) Withholding and/or Failure to Disclose Material Exculpatory Evidence by Defendants in Violation of the Procedural and Substantive Rights Guaranteed to Plaintiff; (3) Monetary Claim Against Defendant City; (4) Use of Excessive Force; (5) Battery; (6) Gross Negligence or Willful and Wanton Misconduct; (7) Abuse of Process; (8) Claims Against Defendant Officers Under 42 U.S.C. § 1983 for Violation of the Fourth and Fourteenth Amendments to the United States Constitution. Plaintiff requests (1) compensatory damages in the amount of "$2,000.000"*fn1 ; (2) punitive and exemplary damages against each individual defendant "in an amount appropriate to punish each individual defendant and deter others from engaging in similar misconduct"; (3) costs of suit; (4) reasonable attorney's fees; (5) pre- and post-judgment interest as permitted by law; (6) such other relief, including injunctive and/or declaratory relief, as the court deems proper.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed when a plaintiff's allegations fail to state a claim upon which relief can be granted. Dismissal for failure to state a claim does not require the appearance, beyond a doubt, that the plaintiff can prove "no set of facts" in support of its claim that would entitle it to relief. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1968 (2007) Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99 (1957)). In order for a complaint to survive a 12(b)(6) motion, it must state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). A claim for relief is facially plausible when the plaintiff pleads enough facts, taken as true, to allow a court to draw a reasonable inference that the defendant is liable for the alleged conduct. Id. at 1949. If the facts only allow a court to draw a reasonable inference that the defendant is possibly liable, then the complaint must be dismissed. Id. Mere legal conclusions are not to be accepted as true and do not establish a plausible claim for relief. Id. at 1950.Determining whether a complaint states a plausible claim for relief will be a context-specific task requiring the court to draw on its judicial experience and common sense. Id.

In evaluating a 12(b)(6) motion, review is "limited to the contents of the complaint." Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994). However, exhibits attached to the complaint, as well as matters of public record, may be considered in determining whether dismissal was proper without converting the motion to one for summary judgment. See Parks School of Business, Inc. v. , 51 F.3d 1480, 1484 (9th Cir. 1995); Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Further, a court may consider documents "on which the complaint 'necessarily relies' if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion." Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). "The Court may treat such a document as 'part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6)." Id.

Dismissal without leave to amend is appropriate only when the Court is satisfied that the deficiencies in the complaint could not possibly be cured by amendment. ...


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