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Mendy v. City of Fremont

United States District Court, N.D. California

May 2, 2014

CITY OF FREMONT, et al., Defendants.


MAXINE M. CHESNEY, District Judge.

Before the Court is defendants' "Motion to Dismiss Plaintiffs' Second Amended Complaint, " filed March 27, 2014.[1] Plaintiffs John Ray Mendy ("J. Mendy") and Mary Mendy ("M. Mendy") have filed opposition, to which defendants have replied. Having read and considered the papers filed in support of and in opposition to the motion, the Court rules as follows.[2]


Plaintiffs, who reside in Fremont, California, allege that beginning "on or about 2004-2005, " there have been "at least 40 or so contacts between CSO Codey and [p]laintiffs" in which CSO Codey "either ticketed or caused the towing of [plaintiffs'] vehicles, in knowingly wrongful fashion." (See Second Amended Complaint ("SAC") ¶ 8.) Plaintiffs also allege that one such contact occurred on May 17, 2012, and that, on said date, plaintiff M. Mendy, after "observing CSO Codey commence a towing, " exited her home and "verbally (only) expressed her objections to the towing, " as well as her "feelings regarding CSO Codey's perceived romantic/flirtatious overtures to her husband, [plaintiff] J. Mendy, " which comments were not "complimentary." (See id.) Plaintiffs further allege that Officer Luevano, who had "arrived in the street, " ordered M. Mendy to "get back" and to "place her hands behind her back." (See id.) According to plaintiffs, although M. Mendy "obeyed, " she was placed under arrest "in a deliberately forceful manner, " was falsely accused of being "intoxicated, " and was taken to jail, where she stayed "for at least four hours, " after which time she was "released without the assertion of any violation of law." (See id.) Plaintiffs also allege that after M. Mendy had been "driven away, " J. Mendy was "informed" by Sgt. Bocage, who was "in the presence" of Sgt. Codey and "other officers, " that "every time they saw him (J. Mendy) they would draw a gun on him." (See SAC ¶¶ 8, 27.)

Plaintiffs allege that at the scene of the above-described incident, they gave "notification" to the officers at the scene of their "intent to formally complain, " that on May 18, 2012, they made a "similarly-stated intent to complain, "[3] and, further, that on May 19, 2012, they told Sgt. Campbell on the telephone that they "would be commencing a formal complaint." (See SAC ¶ 14.) Plaintiffs also allege that, on June 12, 2012, they "went to the Department to personally register a complaint with Internal Affairs" and "separately met with Internal Affairs investigators." (See SAC ¶ 10.) Plaintiffs further allege that, "during the complaint, " they were advised by Sgt. Campbell that former Chief Steckler "would made [sic] the final decision as to whether or not anyone would be subject to discipline." (See id.) According to plaintiffs, "no discipline was imposed." (See id.)

Plaintiffs allege that while they were at the Department on June 12, 2012, they were "informed" by an "as-yet unidentified supervisor of CSO Codey" that, if they proceeded with their complaint, "the Department would find something with which to criminally charge [p]laintiffs." (See id.) Plaintiffs allege they nonetheless requested an investigation into the events occurring on May 17, 2012, and that defendants then "falsely represented the facts, events, and circumstances which occurred on May 17, 2012... to the Alameda County District Attorney's Office" (see id.; see also SAC ¶¶ 14, 38), which, "relying upon the misrepresentations, " filed a criminal complaint "falsely accusing" plaintiffs of violating § 148(a)(1) of the Penal Code (see SAC ¶ 10). The criminal case, plaintiffs allege, "culminat[ed] in a favorable judicial dismissal" on December 18, 2012, "the day of trial." (See id.)

Based on the above allegations, plaintiffs assert claims under 42 U.S.C. § 1983, as well as a state law claim for malicious prosecution.


Dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. See Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990). Rule 8(a)(2), however, "requires only a short and plain statement of the claim showing that the pleader is entitled to relief.'" See Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). Consequently, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations." See id. Nonetheless, "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 of action will not do." See id. (internal quotation, citation, and alteration omitted).

In analyzing a motion to dismiss, a district court must accept as true all material allegations in the complaint, and construe them in the light most favorable to the nonmoving party. See NL Indus., Inc. v. Kaplan , 792 F.2d 896, 898 (9th Cir. 1986). "To survive a motion to dismiss, a complaint must contain sufficient factual material, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 570). "Factual allegations must be enough to raise a right to relief above the speculative level[.]" Twombly , 550 U.S. at 555. Courts "are not bound to accept as true a legal conclusion couched as a factual allegation." See Iqbal , 556 U.S. at 678 (internal quotation and citation omitted).


By motion filed December 26, 2013, defendants moved to dismiss certain claims alleged in plaintiffs' First Amended Complaint ("FAC"), which motion the Court granted by order filed February 12, 2014. In said order, the Court afforded plaintiffs leave to amend the dismissed claims, and plaintiffs thereafter filed the SAC. In the instant motion, defendants argue that plaintiffs have failed to cure the deficiencies identified in the Court's February 12, 2014 order.

The Court considers each of the challenged ...

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