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Victoria v. City of San Diego

United States District Court, S.D. California

September 23, 2019

CITY OF SAN DIEGO, DAVID DUNHOFF, individually and in his official capacity, et al. Defendants.


          Hon. Anthony J. Battaglia, United States District Judge.

         Pending before the Court are seven motions: (1) Defendants City of San Diego and Shelley Zimmerman’s motion to dismiss; (2) Defendant Timothy Coyle’s motion to dismiss; (3) Defendant David Dunhoff’s motion to dismiss; (4) Defendant Adam George’s motion to dismiss; (5) Defendant J. Johnson’s motion to dismiss; (6) Defendant Justin Montoya’s motion to dismiss; and (7) Defendant David Wolff’s motion to dismiss. (Doc. Nos. 50, 5152, 53, 54, 55, and 56.) Plaintiff filed oppositions to all the motions. (Doc. Nos. 61, 62, 63, 64, 65, 66, 67, and 68.) As will be explained in greater detail below, and based on the arguments presented in the papers and presented at the February 13, 2019 hearing on this motion, the Court GRANTS the City of San Diego and Shelley Zimmerman’s motion to dismiss, GRANTS in part and DENIES in part David Dunhoff’s motion to dismiss, GRANTS in part and DENIES in part Justin Montoya’s motion to dismiss, GRANTS in part and DENIES in part J. Johnson’s motion to dismiss, GRANTS in part and DENIES in part Timothy Coyle’s motion to dismiss, GRANTS in part and DENIES in part Adam George’s motion to dismiss, and GRANTS David Wolff’s motion to dismiss.

         I. BACKGROUND[1]

         The following allegations are taken from Plaintiff Arvaunti Victoria’s third amended complaint (“TAC”). (Doc. No. 46.) This complaint arises out of a traffic stop on September 9, 2016. On September 9, 2016, Plaintiff was riding his motorcycle near Miramar and Kearney Mesa Roads. (Doc. No. 46 ¶ 16.) Despite not having a decibel meter, the officers claimed they stopped Plaintiff for having loud pipes and no license plate. (Id.)

         On September 9, 2016, Defendant Coyle and Officer Harper were surveilling the Off Base Bar for an assault that occurred on September 4, 2016. (Id. ¶¶ 16, 17.) The officers observed Plaintiff arrive on a motorcycle and don a vest containing the emblem of the “Chosen Few.” (Id. ¶ 18.) When Plaintiff left the bar, the officers followed him. (Id. ¶ 19.) Defendants George and Johnson pulled over Plaintiff. (Id.) Defendant George informed Plaintiff that the reason for the stop was that Plaintiff had loud pipes. (Id.) Then either Defendant George or Defendant Johnson noticed Plaintiff’s motorcycle did not have a license plate or a registration tag. (Id.) Plaintiff explained to the officers that the pipes were stock pipes and complied with all California emissions and volume standards. (Id. ¶ 20.) None of the six defendant officers had a decibel meter or any type of device that would measure the sound of the exhaust pipes. (Id. ¶ 21.)

         After the initial stop, several more officers appeared. (Id. ¶ 22.) Defendant Montoya conducted a search of Plaintiff’s saddlebags by stating the search could be done “the easy way or the hard way.” (Id.) After that comment, Plaintiff consented to the search. (Id.) Defendants Coyle and Johnson conducted the search. (Id.) One of the officers discovered the vest for the “Chosen Few.” (Id.) Plaintiff was also wearing several large rings on his hand. (Id. ¶ 23.) Plaintiff was then arrested and charged with possession of metal knuckles. (Id.)

         Plaintiff’s cell phone was also seized. (Id. ¶ 24.) Defendant Montoya demanded Plaintiff provide him with the password for the phone. (Id.) Defendant Montoya told Plaintiff that if he did not provide the cell phone password Defendant Montoya would order Plaintiff’s motorcycle impounded. (Id.) After this statement, Plaintiff provided Defendant Montoya with his cell phone password. (Id.) However, Defendant Montoya was unable to unlock the phone and ordered the motorcycle to be impounded. (Id.)

         Plaintiff was then placed in a police car to be transported to jail. (Id.) On the way to jail, Defendant Dunhoff gave Plaintiff “a second chance” to unlock his phone. (Id.) Defendant Dunhoff stated that if Plaintiff provided Defendant Dunhoff access to his phone, someone could pick up the motorcycle instead of it being impounded. (Id.) Plaintiff unlocked the phone himself this time. (Id.)

         Defendant Wolff then signed a sworn affidavit to obtain a search warrant for Plaintiff’s cell phone. (Id. ¶ 41.) Defendant Wolff was not present at Plaintiff’s arrest, but the events in the affidavit were relayed to him by Defendant Coyle. (Id.)

         After Plaintiff’s arrest, he paid $8, 000 for bail as a result of the incident. (Id. ¶ 49.) The charges against Plaintiff were ultimately dismissed. (Id. ¶ 55.) However, Plaintiff claims he continues to suffer from mental and emotional distress from the incident. Thus, Plaintiff alleges the following causes of action: (1) violations of 42 U.S.C. § 1983- violation of his Fourth Amendment right-illegal detention against all individual Defendants; (2) false arrest against all individual Defendants; (3) illegal search against individual Defendants; (4) deliberate indifference against all Defendants; (5) deliberate indifference in regards to the purported custom and policies of the San Diego Police Department; (6) violation of the California Constitution Article I, § 13 against Defendants Coyle, Montoya, Dunhoff, Johnson, and George; (7) violation of California Civil Code § 52.1 against Defendants Montoya and Dunhoff; (8) injunctive relief pursuant to the Bane Act-California Civil Code § 52.1-against Defendants Montoya and Dunhoff; and (9) infliction of emotional distress against all individual Officer Defendants. (See generally Doc. No. 46.)

         Plaintiff filed his complaint on September 11, 2017. (Doc. No. 1.) On September 21, 2017, Plaintiff amended his complaint. (Doc. No. 3.) On November 17, 2017, a joint motion to amend/correct the complaint was filed, (Doc. No. 15), which was granted on November 20, 2017, (Doc. No. 16). On January 5, 2018, the two motions to dismiss were filed. (Doc. Nos. 23, 24.) On September 5, 2018, the Court granted the City Defendants’ motion to dismiss, granted in part and denied in part officer Defendants’ motion to dismiss and granted Plaintiff leave to amend. (Doc. No. 44.) On September 19, 2018, Plaintiff filed his third amended complaint (“TAC”). (Doc. No. 46.) On October 30, 2018, the seven motions to dismiss were filed. (Doc. Nos. 50, 51, 52, 53, 55, 56.)


         A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state a claim upon which relief may be granted. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court may dismiss a complaint as a matter of law for: “(1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta Dental Plan of Cal., Inc., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). However, a complaint survives a motion to dismiss if it contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         Notwithstanding this deference, the reviewing court need not accept legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for the court to assume “the [plaintiff] can prove facts that [he or she] has not alleged . . . .” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). On the other hand, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. The court only reviews the contents of the complaint, accepting all factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).


         The Court will first address Defendants’ request for judicial notice. The Court will then address each motion to dismiss in turn.

         A. Defendants’ Request for Judicial Notice

         Federal Rule of Evidence 201 states that a “court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b).

         Defendants City of San Diego and Defendant Zimmerman’s motion to dismiss contained a request for judicial notice of thirteen exhibits: (1) People of the State of California v. Chosen Few, M.C., et al. (“Chosen Few Case”); (2) “Judgment After Default Against 9 Defendants” filed in the Chosen Few Case; (3) the declaration of Jenal filed in the Chosen Few Case; (4) the warrant and affidavit in support of Victoria/Plaintiff; (5) the police report at issue in this matter; (6) Police Magazine article; (7) California Highway Patrol Information Bulletin; (8) Title 13 California Code of Regulations section 1036(d)(1); (9) Plaintiff’s Second Amended Complaint; (10) San Diego Population of 3.3 million people; (11) San Diego Police Street Gang Unit Mission; (12) Commission on Gang Prevention and Intervention purpose statement; and (13) 2015 to 2020 Commission on Gang Prevention and Intervention strategic action plan. (See generally Doc. No. 50-2.) Plaintiff asserts no objections to Defendants’ request for judicial notice. (Doc. No. 61 at 10–11.)

         As to Exhibits One through Three, as they are public records and documents from the state court, judicial notice is appropriate. See Gerritsen v. Warner Bros. Entm’t Inc., 112 F.Supp.3d 1011, 1034 (C.D. Cal. 2015) (“It is well established that a court can take judicial notice of its own files and records under Rule 201 of the Federal Rules of Evidence.”); see also Molus v. Swan, No. 05-CV-452-MMA (WVc), 2009 WL 160937, at *2 (S.D. Cal. Jan. 22, 2009) (“Courts also may take judicial notice of their own records[.]”). However, the Court may not take judicial notice of findings of facts from another case. See Walker v. Woodford, 454 F.Supp.2d 1007, 1022 (S.D. Cal. Sept. 12, 2006). Accordingly, the Court GRANTS Defendants’ request for judicial notice of Exhibits One through Three for this limited purpose.

         As to the arrest warrant, the Court will only take judicial notice of the reasonably undisputed facts such as the existence of the warrant, its filing date, and the date of the stop and arrest at issue, among other things. Thus, for this limited purpose, the Court GRANTS Defendants’ request for judicial notice of Exhibit Four. See Bunkley v. Verber, No. 17-CV-05797-WHO, 2018 WL 1242168, at *2 (N.D. Cal. Mar. 9, 2018) (explaining that the court could take judicial notice of the arrest warrant as it was not subject to reasonable dispute); see also Ferguson v. United States, No. 15-CV-1253, 2016 WL 4793180, at *3 (S.D. Cal. Sept. 14, 2016) (taking judicial notice of an arrest warrant because it was a “matter[] of public record, and the parties [did] not dispute [its] authenticity.”).

         In regard to the police report, despite the fact that some records of a state agency may be proper subjects of judicial notice, a district court “may not take judicial notice of documents filed with an administrative agency to prove the truth of the contents of the documents.” Zuccaro v. Martinez Unified School Dist., No. 16-CV-2709-EDL, 2016 WL 10807692, at *5 (N.D. Cal. Sept. 27, 2016); see also Knighten v. City of Anderson, No. 15-CV-1751-TLN-CMK, 2016 WL 1268114, at *5 (E.D. Cal. Mar. 31, 2016) (refusing to take judicial notice of police reports and facts contained in the report because they were subject to reasonable dispute between the parties). Thus, the Court only GRANTS limited judicial notice of Exhibit Five.

         Exhibits Six, Seven, Eight, Eleven, Twelve, and Thirteen are all incorporated by reference in the TAC, which the TAC necessarily relies on, and a document upon which the TAC necessarily concerns. Accordingly, the Court may take judicial notice of these documents. See U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). Thus, the Court GRANTS judicial notice of Exhibits Six, Seven, Eight, Eleven, Twelve, and Thirteen.

         Exhibit Nine is simply a copy of Plaintiff’s Second Amended Complaint, and thus is appropriate for judicial notice. See Gerritsen, 112 F.Supp.3d 1011, 1034 (C.D. Cal. 2015) (“It is well established that a court can take judicial notice of its own files and records under Rule 201 of the Federal Rules of Evidence.”). Accordingly, the Court GRANTS judicial notice of Exhibit Nine.

         Exhibit Ten is simply that the population of San Diego is 3.3 million people, and thus is appropriate for judicial notice as it is public knowledge. Fed.R.Evid. 201(b); see Reyn’s v. Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). Accordingly, the Court GRANTS judicial notice of Exhibit Ten.

         In sum, the Court GRANTS the City Defendants’ request for judicial notice of these thirteen documents. (Doc. No. 50-2.)

         B. Defendants City of San Diego and Shelley Zimmerman’s Motion to Dismiss

         City Defendants assert Plaintiff’s allegations are nothing more than legal conclusions and should be dismissed under Rule 8. (See generally Doc. No. 50-1.) Worth noting is that Plaintiff has agreed not to request that Chief Zimmerman remain in this case in her official capacity. (Doc. No. 61 at 18.) Accordingly, the Court will not address any claims against Chief Zimmerman in her official capacity and those claims are dismissed.

         i. First Through Third Causes of Action Against Zimmerman in her Individual Capacity

         Plaintiff’s first through third causes of action allege violations of Plaintiff’s Fourth Amendment right protecting against unreasonable search and seizure. (See generally Doc. No. 46.)

         42 U.S.C. § 1983 “provides a cause of action for the ‘deprivation of any rights, privileges, or immunities secured by the Constitution and laws’ of the United States.” Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393–94 (1989). Specifically, Section 1983 provides a cause of action for the violation of constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009).

         For supervisory liability for deliberate indifference, a plaintiff has been able to hold supervisors individually liable under § 1983 suits when “culpable action, or inaction, is directly attributed to them.” Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011). In Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir. 1991), the Ninth Circuit explained that to be held liable, the supervisor need not be “directly and personally involved in the same way as are the individual officers who are on the scene inflicting constitutional injury.” Id. at 645. Rather, the supervisor’s participation could include his or her “own culpable action or inaction in the training, supervision, or control of his subordinates, ” “his acquiescence in the constitutional deprivations of which the complaint is made, ” or “conduct that showed a reckless or callous indifference to the rights of others.” Id. at 646 (internal citations, quotation marks, and alterations omitted).

         Thus, a defendant may be held liable as a supervisor under § 1983 “if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the violation.” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). “[A] plaintiff must show the supervisor breached a duty to plaintiff which was the proximate cause of the injury. The law clearly allows actions against supervisors under section 1983 as long as a sufficient causal connection is present and the plaintiff was deprived under color of law of a federal secured right.” Redman v. Cty. of San Diego, 942 F.2d 1435, 1447 (9th Cir. 1991). “The requisite causal connection can be established . . . by setting in motion a series of acts by others . . . or by knowingly refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably should have known would cause others to inflict a constitutional injury[.]” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

         First, Plaintiff alleges Defendant Zimmerman knew of the violations of constitutional rights and failed to act to prevent them. Second, Plaintiff alleges Defendant Zimmerman promulgated or implemented a policy violating constitutional rights of “motorcycle club” riders, and this policy was the moving force behind the violations. Here, Plaintiff alleges there have been twenty complaints in a four-year period complaining of suspicion-less stops. (Doc. No. 46 ¶ 39.) However, Plaintiff does not allege these complaints were all made by “motorcycle club” riders. Further, twenty incidents over a four-year period in a city of 3, 000, 000 people does not establish a policy based on a pattern. See Rizzo v. Goode, 423 U.S. 362, 371 (1976). Plaintiff has simply failed to allege any specific and non-conclusory allegations that Defendant Zimmerman personally participated in Plaintiff’s alleged constitutional violation, implemented or promogulated an unconstitutional policy, had knowledge of an unconstitutional policy, or failed to protect Plaintiff.

         ii. Ninth Cause of Action Against Defendant Zimmerman in her Individual Capacity

         Plaintiff alleges a claim of Intentional Infliction of Emotional Distress (“IIED”) against Defendant Zimmerman in her own capacity. A claim for IIED requires a prima facie showing of “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotion distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by defendant’s outrageous conduct.” Sabow v. United States, 93 F.3d 1445, 1454 (9th Cir. 1996). Here, Plaintiff’s claim again fails to allege sufficient facts to establish Defendant Zimmerman’s individual liability for a claim of IIED. Defendant Zimmerman was not at the scene of the traffic stop nor did she implement a policy that caused Plaintiff’s IIED.

         Accordingly, Defendant Zimmerman in both her individual and official capacity is dismissed.

         iii. The First Through Fifth Causes of Action Against the City

         “A municipality can be found liable under 42 U.S.C. § 1983 only where the municipality itself causes the constitutional violation at issue; respondeat superior or vicarious liability will not attach under section 1983.” Buckheit v. Dennis, 713 F.Supp.2d 910, 920 (N.D. Cal. 2010) (citing Monell v. New York Dep’t of Social Servs., 436 U.S. 658, 694–95 (1978)). Plaintiff must then allege that: (1) he was deprived of his constitutional rights by the City of San Diego; (2) that the City of San Diego had customs or policies “which amounted to deliberate indifference” to his constitutional rights; and (3) that these policies were the “moving force behind the constitutional violations.” Buckheit, 713 F.Supp.2d at 920 (citation omitted).

         Plaintiff first asserts that Defendant Zimmerman had a formal or de facto policy to harass and suppress motorcycle clubs it considered to be gangs in the City of San Diego. (Doc. No. 46 ¶ 10.) Plaintiff claims that a policy exists since twenty complaints were filed in the period of four years claiming suspicion-less stops. As explained above, this does not establish a pattern or policy.

         During the hearing on this matter, Plaintiff claimed that Exhibit Eleven to Defendants’ motion established a written policy. Exhibit Eleven is the mission statement of the Street Gang Unit as published on the City of San Diego’s website. In pertinent part the statement is as follows:

The collective mission of the Street Gang Unit is to reduce gang related crimes and active gang membership in the City of San Diego. This is accomplished through vigorous prosecution of gang members involved in criminal activity by use of covert surveillance and special operations, proactive field contacts and arrests of gang members. These strategies reduce gang related criminal activity in ...

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