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Kenneth Schwenk v. Chula Vista Police

April 18, 2013


The opinion of the court was delivered by: M. James LorenzUnited States District Court Judge


On September 8, 2011, Plaintiff Kenneth Schwenk commenced this action against Defendant Chula Vista Police Department ("CVPD") alleging violations of his civil rights under 28 U.S.C. § 1983 along with other tort claims. Thereafter, Plaintiff amended his complaint to add Defendant City of Chula Vista ("City"). Defendants now move to dismiss the Second Amended Complaint ("SAC") or, in the alternative, strike portions of the SAC. Plaintiff opposes.

The Court found this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). (Doc. 23.) For the following reasons, the Court GRANTS IN PART and DENIES IN PART Defendants' motion to dismiss, and DENIES Defendants' motion to strike.


This action arises from Plaintiff getting arrested at the Port of San Diego. (SAC ¶ 9.) At the time of the incident, Plaintiff was an employee of "San Diego Glass," a glass and window repair company based in La Mesa, California. (Id. ¶ 10.)

About a year before the arrest, on or about September 13, 2009, Anthony's Fish Grotto, a restaurant located in Chula Vista, California, hired Plaintiff through San Diego Glass to repair a window that was broken during a burglary that took place the day before. (SAC ¶ 12.) Plaintiff "made contact" with the window frame and surrounding area in order to complete the glass installation at the restaurant. (Id. ¶ 13.) He concluded the installation on September 15, 2009.

On or about October 17, 2010, as Plaintiff was about to leave on a cruise, officers from the San Diego Harbor Police arrested Plaintiff and took him off of the cruise ship. (SAC ¶ 14.) The arrest was based on a warrant issued by the CVPD regarding the burglary at Anthony's Fish Grotto on September 12, 2009. (Id.) According to Plaintiff, CVPD alleged that he was involved in the September 12, 2009 burglary based on his fingerprints found on the window frame that he touched during the window repair. (Id. ¶ 15.) Furthermore, Plaintiff alleges that "CVPD possessed video surveillance footage from Anthony's Fish Grotto which reflects the actual individual who was involved in the burglary on September 12, 2009." (Id. ¶ 16.) Plaintiff contends that the surveillance video "clearly reflects that Plaintiff had no involvement in the burglary whatsoever." (Id.) Despite the video and the "knowledge of the true identity of the person involved in the burglary," Plaintiff alleges that Defendants issued a warrant that resulted in his arrest and detainment. (Id. ¶ 17.)

On September 8, 2011, Plaintiff commenced this action against CVPD alleging violations his civil rights under 28 U.S.C. § 1983 along with claims for negligence and false imprisonment. The Court granted CVPD's motion to dismiss and gave Plaintiff leave to amend his complaint. Thereafter, Plaintiff amended his complaint to add the City as a defendant. The Court then granted the parties' joint motion to give Plaintiff leave to again amend his complaint but for the express purpose of dismissing his negligence claim with prejudice. Though Plaintiff was given until June 28, 2012 to file his SAC, he did not actually file his SAC until September 11, 2012. Defendants now move to dismiss the SAC or, in the alternative, strike portions of the SAC. Plaintiff opposes.


The court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. Navarro v.

Block, 250 F.3d 729, 732 (9th Cir. 2001). The court must accept all allegations of material fact as true and construe them in light most favorable to the nonmoving party. Cedars-Sanai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). Material allegations, even if doubtful in fact, are assumed to be true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the court need not "necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal quotation marks omitted). In fact, the court does not need to accept any legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause action will not do." Twombly, 550 U.S. at 555 (internal citations omitted). Instead, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id. Thus, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). "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. "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."

A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

Generally, courts may not consider material outside the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). However, documents specifically identified in the complaint whose authenticity is not questioned by parties may also be considered. Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995) (superceded by statutes on other grounds). Moreover, the court may consider the full text of those documents, even when the complaint quotes only selected portions. Id. It may also consider material properly subject to judicial notice without converting the motion into one for summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).


A. Involuntary Dismissal Under Federal Rule of Civil ...

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