ORDER RE: MOTIONS TO DISMISS
LARRY ALAN BURNS, District Judge.
This civil rights case arises out of two separate encounters between Helstern and law enforcement during the somewhat recent "Occupy San Diego" protests, in which Helstern was participating. She asserts thirteen claims against each of the Defendants. The first five are torts under California law: (1) false arrest and imprisonment; (2) assault and battery; (3) intentional infliction of emotional distress; (4) trespass to chattels and conversion; and (5) negligence. The next seven are § 1983 claims for (6) interference with free speech and assembly; (7) illegal seizure of property; (8) unlawful seizure and arrest; (9) excessive force; (10) unconscionable conditions of confinement; (11) excessive force; and (12) municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (1978). Helstern's final claim alleges a violation of her civil rights under California law pursuant to California's Bane Act, Cal. Civ. Code § 52.1.
Now pending before the Court are the City and County's motions to dismiss. The City's motion is very brief; it argues for the dismissal of Helstern's fifth claim because there's no government liability for common law negligence. The County's motion to dismiss is more comprehensive; it takes on all of Helstern's claims. The Court will discuss the motions separately below.
I. Factual Allegations
Helstern's first encounter with law enforcement occurred in the early morning of October 28, 2011, when police officers raided an "Occupy" protester camp at the San Diego Children's Park where she was staying. Helstern alleges that upon seeing officers in riot gear, she walked over to her scooter where she was unexpectedly tackled by one. She further alleges that the officer twisted her arm and placed her in plastic handcuffs, causing her pain, swelling, and numbness in spite of repeated complaints. Meanwhile, Helstern was detained with other protesters in the back of a van for four hours. Despite requests, Helstern and the other protesters were denied water, medical attention, and bathroom breaks. Some protesters eventually relieved themselves in the van, in close proximity to Helstern. She was then processed by the Sheriff's Department at the Las Colinas Detention Facility and placed in a holding cell for five hours, where she received minimal medical attention, before being released with a citation. She alleges that her scooter was seized, and the keys were never returned. Helstern's hands had to be treated and took three weeks to heal.
The second incident took place on December 12, 2011, as "Occupy" protesters gathered at the entrance to the Port of San Diego. Helstern was standing in front of a truck that was cued to enter the Port when she alleges an officer ran towards her, and she ran away but tripped on a median. She further alleges that the officer pinned her down and "threatened to hurt her if she did not reach her hands behind her." (Comp. ¶ 37.) Helstern contends that she complied, and was eventually booked at Las Colinas Detention Facility and later released.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss a complaint for failure to state a claim upon which relief may be granted. In considering a motion to dismiss, the Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. United Transp. Union v. BNSF Ry. Co., 710 F.3d 915, 930 (9th Cir. 2013). Assertions that are mere "legal conclusions, " however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To survive a motion to dismiss, a plaintiff needs to plead sufficient facts to state a claim for relief that is plausible on its face. Id.
Upon granting a motion to dismiss for failure to state a claim, the Court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a). Dismissal with prejudice and without leave to amend is not appropriate unless it is clear that the complaint could not be saved by amendment. Harris v. Cnty. of Orange, 682 F.3d 1126, 1131 (9th Cir. 2013).
III. City's Motion to Dismiss
The City moves to dismiss Helstern's negligence claim only. Its argument is simple: Governmental tort liability in California must be authorized by statute, and Helstern doesn't identify such a statute for negligence. The City is right. "[I]n California, all government tort liability is dependant upon the existence of an authorizing statute or enactment', and to state a cause of action every fact essential to the existence of a statutory liability must be pleaded with particularity, including the existence of a statutory duty." Searcy v. Hemet Unified Sch. Dist., 177 Cal.App.3d 792, 802 (Cal.Ct.App. 1986). See also de Villers v. County of San Diego, 156 Cal.App.4th 238, 255-56 (Cal.Ct.App. 2007) ("We conclude that a direct claim against a governmental entity asserting negligent hiring and supervision, when not grounded in the breach of a statutorily imposed duty owed by the entity to the injured party, may not be maintained."); Cowing v. City of Torrance, 60 Cal.App.3d 757, 761 (Cal.Ct.App. 1976) ("There is no common law governmental tort liability in California; and except as otherwise provided by statute, there is no liability on the part of a public entity for any act or omission of itself, a public employee, or any other person.").
In her opposition brief, Helstern identifies the statutes her complaint is missing: California Civil Code § 1714, which recognizes that "[e]veryone is responsible... for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, " and Cal. Gov't Code § 815.2(a), which holds public entities liable for acts or omissions of an employee "within the scope of his employment if the act or omission would... have given rise to a cause of action against that employee or his personal representative."
The City is right to argue in response that these statutes belong in Helstern's complaint, where the negligence claim is actually asserted. The City's motion to dismiss is therefore GRANTED, and Helstern's negligence claim is DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND. She may file a First Amended Complaint that pieces together the statutory puzzle giving rise to a negligence ...