United States District Court, N.D. California
May 8, 2015
EDGAR CHAN-SOSA, Plaintiff,
CALIFORNIA HIGHWAY PATROL, et al., Defendants.
ORDER RE: MOTION TO DISMISS Re: Dkt. No. 9
SUSAN ILLSTON, District Judge.
On January 13, 2013, plaintiff Edgar Chan-Sosa's sister was driving him and his three friends home from a San Francisco 49ers game. Complaint ¶ 11. Plaintiff was seated in the front seat, his friends were in the back "cargo area." Id. The vehicle was pulled over by California Highway Patrol ("CHP") Officers Allen and Jorgenson for a traffic violation. Id. The officers observed that the three individuals in the back seat were not wearing seat belts and that there was an open container of beer in the vehicle. Id. Plaintiff was not observed to have committed any violations of law. Id. The three passengers in the rear exited at the officers' request. Id. Allen directed one of them to sit down, placed his hands on his shoulder and back, pushed him into a concrete trash receptacle, knocking it over and falling on top of him. Id. In response plaintiff and his sister existed the car and expressed their disapproval of Officer Allen's conduct. Id. Officer Jorgenson removed his taser, put his hand on plaintiff's chest, and directed him to move away. Id. Plaintiff swatted Jorgenson's hand; in response, Jorgenson deployed his taser which struck plaintiff's left eye and right jacket sleeve, however the taser did not properly charge. Id. Plaintiff put his hands in the air, turned around and began to walk away. Id. With the taser still attached, Jorgenson employed a "stun drive" placing the taser unit into plaintiff's back and sending a charge to his eye and arm, causing serious injury. Id. Plaintiff was transported to Marin General Hospital where he underwent emergency surgery on his eye. Id. He is still receiving treatment for his injuries, and he may have to undergo additional surgeries to implant an artificial lens. Id. His left eye is currently unable to focus. Id.
Plaintiff filed the present action in Marin County Superior Court on July 23, 2014; on January 2, 2015, defendants removed this case to federal court. Docket No. 1. Plaintiffs alleges causes of action for (1) violation of civil rights under § 1983 (against Jorgenson and Allen), (2) violation of civil rights under § 1983 Monell liability (against the State of California, CHP, Jorgenson, and Allen), (3) unlawful customs, policies, habits, or procedures under § 1983 (against State of California and CHP), (4) California Constitution, Article I § 13 (against Jorgen, Allen, and State of California), (5) violation of civil rights under California Civil Code § 52.1(b) (against Jorgenson, Allen, State of California), (6) assault (against Jorgenson, Allen, State of California), (7) battery (against State of California, Jorgenson, Allen), (8) false arrest (against the State of California, CHP, Jorgenson, and Allen), (9) false imprisonment (against Jorgenson, Allen, State of California), (10) intentional infliction of emotional distress (against the State of California, CHP, Jorgenson, and Allen), (11) negligence (against the State of California, CHP, Jorgenson, and Allen), (12) negligent training and supervision under § 1983 (against State of California and CHP), (13) conspiracy (against Jorgenson and Allen), (14) injunctive relief (against the State of California, CHP, Jorgenson, and Allen). Complaint ¶¶ 17-84. Now before the Court is defendants' motion to dismiss for failure to state a claim. Docket No. 9.
I. § 1983 Claims and Injunctive Relief
Defendants argue that (1) § 1983 only allows actions against "persons, " therefore plaintiff's claims against state entities should be dismissed with prejudice; and (2) plaintiff's claim for injunctive relief should be dismissed with prejudice for lack of Article III standing. Def. Mot. at 5-7. Plaintiff admits that defendants "ha[ve] pointed out several errors in th[ese] claims [as] set forth in the complaint, " and therefore requests leave to amend. Pl. Opp'n at 7. On May 4, 2015, the Court DISMISSED these claims with leave to amend. Docket No. 25. Any amended complaint must be filed no later than June 5, 2015.
II. State Law Claims
Defendants argue that Chan-Sosa's state law claims must be dismissed with prejudice for failure to file this action within six months of the denial of his government claim. Def. Mot. at 8-10. California Government Code Section 945.4 provides that "no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with... Section 910... until a written claim therefore has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board...." Section 910, in turn, requires that the claim state the "date, place, and other circumstances of the occurrence or transaction which gave rise to the claim asserted" and provide "[a] general description of the... injury, damage or loss incurred so far as it may be known at the time of presentation of the claim." A claimant has six months from the date of claim denial to file a lawsuit. Cal. Gov't Code § 945.6(a)(1); see Castro v. Sacramento County. Fire Prot. Dist., 47 Cal.App.4th 927, 929 (1996) (affirming trial court's dismissal of case filed 19 days after the 6-month limitations period, despite attorney error being the cause).
However, Cal. Gov't Code § 945.3 effectively tolls the six-month limitations period for individuals seeking to bring a civil suit for money damages against a peace officer or state entity while the individual is facing criminal charges which relate to the subject matter of the civil suit.
Section 945.3 provides:
No person charged by indictment, information, complaint, or other accusatory pleading charging a criminal offense may bring a civil action for money or damages against a peace officer or the public entity employing a peace officer based upon conduct of the peace officer relating to the offense for which the accused is charged, including an act or omission in investigating or reporting the offense or arresting or detaining the accused, while the charges against the accused are pending before a superior court.
Any applicable statute of limitations for filing and prosecuting these actions shall be tolled during the period that the charges are pending before a superior court.
On February 25, 2013, the government filed misdemeanor charges against plaintiff for battery against a peace officer and obstructing a peace officer, Cal. Penal Code §§ 148(a)(1), 243(b), and also filed two petitions for revocation of probation. On October 7, 2013, the government dismissed the misdemeanor charges. See Docket No. 10, RJN Exh. A. The probation revocation petitions remained pending until January 23, 2014 when the court found insufficient evidence to find a violation. Pl. Opp'n at 4. Plaintiff filed this action six-months later on July 23, 2014. See Compl.
Plaintiff timely filed his claim in compliance with Cal. Gov't Code § 945.4 with assistance of counsel; his claim was denied on August 15, 2013, which triggered the six-month clock to file suit under section 945.6(a)(1). See RJN Exh. B. Under the heading "Warning, " the notice of denial advised plaintiff of the six-month limitations period. Id. Both parties agree that the criminal charges against plaintiff tolled the limitations period until October, 7, 2013; however the parties disagree as to whether the petition for revocation triggers the tolling provisions under section 945.3. If the Court finds that it does not, than plaintiff's state law claims must be dismissed with prejudice as untimely.
In their briefs, the parties dispute whether a petition for probation revocation constitutes a "criminal charge" under Section 945.3. Neither party points to any controlling case law, preferring to reason by analogy. CHP argues that probation revocation proceedings do not constitute criminal charges, and cites cases holding that those facing probation revocation are not afforded the same protections as those charged with a criminal offense, such as double jeopardy, proof beyond a reasonable doubt, and the exclusionary rule. See Mot. at 9-10 (citing United States v. Winsett, 518 F.2d 51(9th Cir. 1978); In re Coughlin, 16 Cal.3d 52 (Cal. 1976); People v. Rodriguez, 51 Cal.3d 437 (Cal. 1990)). Plaintiff's opposition cites to cases which elaborate upon the due process protections afforded to those facing revocation of probation, such as written notice, an opportunity to be heard, right to confrontation, and a neutral arbiter. See Pl. Opp'n at 5-6.
However, the Court need not decide this issue in order to dispose of this motion. Neither party's brief discusses Torres v. City of Santa Ana, 108 F.3d 224 (9th Cir. 1997). In Torres, the plaintiff was arrested for two misdemeanors, and as a result, the government filed a petition for arraignment on probation violation. The plaintiff was on probation for robbery committed a few years prior to his arrest for committing misdemeanors. Torres filed a civil suit alleging excessive force during his arrest relating to the misdemeanors, and attempted to avail himself of section 945.3's tolling provision. The Ninth Circuit found that section 945.3 did not apply, and held that "Torres's civil complaint is not related to the petition for arraignment because Torres's probation pertains to his 1991 robbery conviction, and not to his 1994 arrest...Although the petition was triggered by the arrest upon which Torres's civil complaint is based, it relates only to Torres's original conviction for robbery." Torres 108 F.3d at 228; see also De Soet v. Cnty. of Los Angeles, No. B201659, 2009 WL 1200875, at *14 (Cal.Ct.App. 2009) (discussing Torres with approval).
The facts of this case are materially indistinguishable from Torres. Here too, plaintiff's probation revocation petition was triggered by the arrest upon which his civil action is based, yet it "relates" to a prior unrelated offense. Therefore the limitations period was not tolled on account of the petition for probation revocation, and Chan-Sosa's state law claims are therefore time barred. Accordingly, the Court GRANTS defendant's motion to dismiss plaintiff's state law claims with prejudice.
For the foregoing reasons, the Court GRANTS defendants' motion to dismiss plaintiff's state law claims with prejudice, and GRANTS defendants' motion to dismiss plaintiff's federal claims, with leave to amend. Any amended complaint must be filed no later than June 5, 2015. The initial Case Management Conference is rescheduled for July 24, 2015 at 3:00 p.m.
IT IS SO ORDERED.