United States District Court, S.D. California
(1) GRANTING DEFENDANTS CITY OF SAN DIEGO AND SHELLEY
ZIMMERMAN’S MOTION TO DISMISS; (2) GRANTING IN PART AND
DENYING IN PART DAVID DUNHOFF’S MOTION TO DISMISS; (3)
GRANTING IN PART AND DENYING IN PART JUSTIN MONTOYA’S
MOTION TO DISMISS; (4) GRANTING IN PART AND DENYING IN PART
J. JOHNSON’S MOTION TO DISMISS; (5) GRANTING IN PART
AND DENYING IN PART TIMOTHY COYLE’S MOTION TO DISMISS;
(6) GRANTING IN PART AND DENYING IN PART ADAM GEORGE’S
MOTION TO DISMISS; AND (7) GRANTING DAVID WOLFF’S
MOTION TO DISMISS (DOC. NOS. 50, 51, 52, 53, 54, 55,
Anthony J. Battaglia, United States District Judge.
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.
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.)
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.)
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.)
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.
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
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.)
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.)
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.)
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).
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.
Court will first address Defendants’ request for
judicial notice. The Court will then address each motion to
dismiss in turn.
Defendants’ Request for Judicial Notice
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).
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.)
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
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]
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
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
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
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.
the Court GRANTS the City Defendants’
request for judicial notice of these thirteen documents.
(Doc. No. 50-2.)
Defendants City of San Diego and Shelley
Zimmerman’s Motion to Dismiss
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.
First Through Third Causes of Action Against Zimmerman in her
first through third causes of action allege violations of
Plaintiff’s Fourth Amendment right protecting against
unreasonable search and seizure. (See generally Doc.
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.
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
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).
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.
Ninth Cause of Action Against Defendant Zimmerman in her
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
Defendant Zimmerman in both her individual and official
capacity is dismissed.
The First Through Fifth Causes of Action Against the
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
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.
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 ...