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Lutz v. Cbre Group, Inc.

United States District Court, Ninth Circuit

August 13, 2013

RAY LUTZ, Plaintiff,
v.
CBRE GROUP, INC., a Delaware corporation, LOWE S.D. CALIFORNIA PROPERTY, LLC, a New York limited liability company; ABM SECURITY SERVICES, INC.; MICHELLE ROUSSELLE, an individual; CITY OF SAN DIEGO; San Diego Police Chief WILLIAM LANSDOWNE; Assistant Chief BOYD LONG; Officer TONY LESSA; and DOES 4-260, Inclusive. Defendants.

ORDER GRANTING IN PART AND DENYING IN PART CBRE'S MOTION TO DISMISS WITHOUT LEAVE TO AMEND

JEFFREY T. MILLER, District Judge.

On October 30, 2012, Plaintiff Ray Lutz filed a complaint against CBRE Group, Inc. ("CBRE"), Lowe S.D. California Property, LLC, ABM Security Services, Inc. ("ABM"), Michelle Rousselle, the City of San Diego (the "City"), the City's Police Chief William Lansdowne, the City's Assistant Chief Boyd Long, and Officer Tony Lessa (collectively, "Defendants"). Lutz later filed for leave to file an amended complaint ("FAC"), which he did on January 22, 2013. On February 4, 2013, CBRE filed a motion to dismiss Lutz's complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) for failure to state a claim, which this court granted. On April 30, 2013, Lutz filed a second amended complaint ("SAC"), which CBRE again moved to dismiss on May 14, 2013. Lutz filed an opposition on June 24, 2013. This matter, which was scheduled for hearing on July 7, 2013, was taking under submission on July 1. For the following reasons, the court grants in part and denies in part CBRE's motion to dismiss the claims against it without leave to amend.

I. BACKGROUND

In the two months immediately prior to this action, a movement known as "Occupy San Diego" sought to raise awareness about the inequities of American society. SAC ¶ 25. As various state and local government agencies are located around Civic Center Plaza, Occupy San Diego frequently protested there in September and October 2011. Id . ¶ 25. On October 28, 2011, San Diego Police Department ("SDPD") officers raided Occupy San Diego's protest in Civic Center Plaza and arrested 51 individuals. Id . ¶ 26. Many witnesses to the raid claimed that the SDPD officers and San Diego sheriff's deputies used excessive force against individuals who had broken no laws and were not resisting arrest. They further claimed that the individuals were arrested without probable cause. Id . ¶ 28. Following this initial raid, the Occupy San Diego protests returned only to be raided again by SDPD officers. Id . ¶ 29.

On November 28, 2011, Lutz hand-delivered a letter and a copy of Robins v. Pruneyard Shopping Center , 23 Cal.3d 899, 910 (1979) (holding that California's constitution protected free speech and petitioning, reasonably exercised, in privately owned shopping centers), to Cyndi Poes, Real Estate Manager for the Civic Center Plaza office building and a CBRE employee. Id . ¶ 33. Lutz's letter indicated that he planned to register voters in Civic Center Plaza pursuant to his legal right to do so as outlined in the Pruneyard case.

The next day, Lutz returned at around noon and began to "set up a small, unobtrusive table in Civic Center Plaza adjacent to the stairs that lead from the bottom area of the plaza to the large raised area on which the Civic Center office building is located." Id . ¶ 36. The table was approximately 100 feet away from the Civic Center Plaza office building's entrance. Id.

As Lutz was setting up his table to register voters, several City police officers surrounded him. Id . ¶ 37. Lutz explained that the SDPD and the City were upset over the presence of Occupy San Diego protesters in Civic Center Plaza in the weeks prior. Lutz, who had previously been present in Civic Center Plaza when Occupy San Diego was protesting, believes that the Defendants associated him with Occupy San Diego. Id . ¶ 38.

Officer Lessa advised Lutz that he could not set up his table in that location. Id . ¶ 39. Lutz responded that he had a legal right to be present to register voters and handed Officer Lessa a copy of the Pruneyard case. Id . ¶ 39. Lutz further informed Officer Lessa that he had delivered a letter and copy of the Pruneyard case explaining this right to Poes the previous day. Id . ¶ 40. Officer Lessa responded that he did not believe that Lutz had delivered the aforementioned letter and then went inside the Civic Center Plaza office building. Id . ¶ 40.

When Officer Lessa returned, he was accompanied by a woman named Michelle Rousselle, an ABM employee who claimed to be the manager at the Civic Center Plaza office building, and a still-unidentified male referred to in the SAC as "Doe 10." Id . ¶ 42. ABM allegedly provided security on behalf of CBRE. Lutz had already registered several voters and three people were waiting in line to register. Id . ¶ 43. Rousselle asked Lutz to move his table six feet south of his current location into a public area of Civic Center Plaza. Id . ¶ 44.

Lutz did not want to move his table because he "knew" officers were arresting individuals who set up tables in the suggested location and he did not want to be arrested. Id . ¶ 44. He was also only planning on staying for one hour and had parked in a one-hour spot nearby. Id . ¶ 46. Knowing that he had a legal right to be present, Lutz refused to move. Id . ¶ 47. Lutz also asked why his table could not be there, and Officer Lessa only replied that they didn't want tables in that area. Id . ¶ 50. Officer Lessa provided him with no legal authority. Id.

After refusing to move, Lutz was arrested. Id . ¶ 52. When concerned bystanders inquired why Lessa was being arrested, SDPD officers replied, "trespassing." Id . On information and belief, Lutz alleges that Rousselle or Doe 10 had initiated a citizen's arrest by reporting Plaintiff's alleged offense to Officer Lessa and other SDPD officers and requested that they arrest him. Id . ¶ 53. Rousselle and/or Doe 10 also allegedly executed a document with the SDPD attesting to the fact that they had conducted a "citizen's arrest" of Lutz. Id.

Lutz was placed in handcuffs, which were applied too tightly, although he requested that SDPD officers, including Officer Lessa, loosen his handcuffs. Id . ¶ 56. These constrictive handcuffs allegedly caused Lutz to suffer wrist pain for weeks after his arrest. Id . ¶ 65.

Lutz was also forced to remain in a police vehicle for an excessive time, where he allegedly became fearful for his safety due to the violent behavior of an unidentified male arrestee in the police vehicle next to him. Id . ¶ 58. Once he was finally driven to the Central Jail, he was left in the police vehicle for approximately one hour. Id . ¶ 59.

He was later placed in a holding cell at Central Jail where he remained until approximately midnight on November 20, 2012, about 11 hours after his arrest. Id . ¶ 64. Lutz claims physical and emotional injuries as well as damage to his reputation. Id . ¶ 71.

Lutz alleges that CBRE is the actual agent of Lowe, who owns the Civic Center Plaza building and employs CBRE to manage it. Id . ¶ 74. Lutz further alleges that either CBRE or Lowe hired ABM to perform security services for the Civic Center Plaza building and is therefore an agent of either CBRE or Lowe. Id . ¶¶ 75, 76. Lutz alleges that Rousselle, as an ABM employee, is thereby an agent for ABM, CBRE, and Lowe. Id . ¶ 77.

In addition, Lutz alleges that the City, Officer Lessa, and Doe defendant SDPD officers who arrested, handcuffed, and transported him are also agents of ABM, CBRE, and Lowe because they are members of the San Diego Downtown Partnership ("Downtown Partnership"). Id . ¶¶ 78-81. To participate in the Downtown Partnership, Lowe, CBRE, and/or ABM executed an agreement entitled "Letter of Agency" and filed it with the SDPD and/or the city. Lutz "alleges, on information and belief, that the Letter of Agency authorizes SDPD to act on behalf of Defendants LOWE, CBRE, and/or ABM and subject to said Defendants' control on the grounds of the Civic Center Plaza office building." Id . ¶ 83. Lutz further ...


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