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Levy v. City of San Diego

United States District Court, S.D. California

February 6, 2014

DANIEL LEVY, an individual, Plaintiff,
THE CITY OF SAN DIEGO, a public entity; KERRY MENSOIR, an individual; C. DAVIS, an individual; J. GUSTAFSON, an individual; H. OLIVER, an individual; and DOES 1-15, inclusive, Defendants.


ROGER T. BENITEZ, District Judge.

Before this Court is Defendant City of San Diego's Motion to Dismiss. (Docket No. 2). For the reasons stated below, the Motion is DENIED.


On May 28, 2013, Plaintiff filed an action in state court against the above-named defendants pursuant to 42 U.S.C. § 1983, the California constitution, and the California Government Tort Claims Act. This action was removed to this Court on October 24, 2013. (Docket No. 1).

A. Events Giving Rise to the Action

Plaintiff's Complaint reveals that his claims stem from an incident on the morning of July 8, 2012. (Compl.) As stated by Plaintiff, Plaintiff was approached by Defendant Officer Mensoir of the San Diego Police Department as he was returning to his vehicle after stopping at a 7-Eleven. The officer asked him for his license and registration, and questioned him about wire cutters in the front seat. Levy informed him that he used the cutters to repair one of his company trucks, but the officer continued to demand information and asked Levy about a smell coming from the vehicle. Mensoir raised the cutters in the air and yelled at him to explain why they were in the car. Levy became concerned by the "irrational behavior and apparent intent to incriminate Levy." ( Id. ¶ 23). Levy refused to answer questions and said he wanted to speak to a lawyer. Levy was told he did not need and could not have a lawyer because he was not under arrest. Mensoir asked to search the vehicle, but Levy declined to have himself or his vehicle searched. Mensoir "became enraged" and placed him in handcuffs, saying he would not act that way if he had not done anything wrong. ( Id. ¶ 26).

Mensoir called Defendants Davis and Gustafson, and the officers and a K-9 dog searched the entire vehicle, including closed compartments and the trunk. Levy saw one of his employees getting gas next door, and asked the officers to speak to him to corroborate the story about fixing the truck. The officers spoke to the employee, but Levy was nonetheless arrested. After an hour in the back of the car, sobriety tests were performed on Levy. Levy passed all sobriety tests. The officers asked about his rapid pulse, and Levy said he was upset and embarrassed. Mensoir claimed to see a yellow substance on his nose and tongue, and a straw with the substance, but the straw was lost and Levy claims there was no substance. Levy's car was impounded, and he was not given a chance to make alternative arrangements for the car. Levy claims he was held for seventeen hours. Levy was charged with being under the influence of a controlled substance and possession of burglary tools. He was never prosecuted, and the charges were dismissed.

B. Levy's Claim Filed with the City of San Diego

Levy's attorney filed a claim with the City of San Diego on his behalf, signed on November 19, 2012. (Claim Against the City of San Diego). The claim appears to have been completed on a standard form. In the section for "Circumstances Giving Rise to the Claim, " Levy stated the date, time, and place of the events. ( Id. ) On the two lines given for "Other circumstances of the occurrence or transaction giving rise to the claim, " Levy stated that: "I was falsely arrested, detained for over 6 hours, booked into county jail and my car was impounded. The DA has refused to file charges against me." ( Id. at 2). In the third section for "Description of Claim, " Levy stated the "General description of the indebtedness, obligation, injury, damage or loss incurred" as: "Violation of civil rights, violation of due process, violation of 5th amendment rights, lost wages, attorneys fees, consequential damages, fines, towing fees, emotional distress, and pain and suffering." ( Id. ) When asked for the names of the public employees involved, if known, Levy listed the four individual defendants and "Does 1-15, inclusive." ( Id. ) In the damages section, he indicated that he was claiming more than $10, 000 in damages, and that it would not be a limited civil case. ( Id. ) He listed no additional witnesses beyond the four named defendants and "Does 1-15." ( Id. ) Levy attached a separate sheet itemizing his damages, including $250, 000 for emotional distress and $250, 000 for pain and suffering. Levy also attached a report from the Office of the District Attorney stating that the no formal charges have been filed because the case was reviewed and rejected. According to "Attachment A" of the claim, an arrest report was also included.

The claim was denied by the City on February 4, 2013.

C. Levy's Court Complaint

Levy states a variety of claims in his Complaint, including violation of his right to be free from unreasonable searches and seizures and/or arbitrary force, violation of his right to due process and equal protection of the laws, false imprisonment, negligence and negligent infliction of emotional distress, false arrest, conspiracy to violate civil rights, deprivation of rights under 1983, misrepresentation in police reports, and intentional infliction of emotional distress.

Defendants filed their Motion to Dismiss on October 30, 2013. Defendants ask that this Court dismiss certain causes of action on the basis that they were not properly ...

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