Astorga v. County of San Diego

Opinion

6 7 10 11 TYLER ASTORGA, an individual, ) Case No.: 3:21-cv-00463-BEN-KSC ) Plaintiff, 12 ) ORDER: 13 v. ) ) (1) GRANTING-IN-PART THE 14 COUNTY OF SAN DIEGO; KEVIN ) COUNTY’S MOTION TO BOEGLER, in his individual 15 capacity; and DOES 1-25, inclusive, ) DISMISS ) 16 Defendants. ) (2) DENYING THE COUNTY’S MOTION TO STRIKE 17 ) ) 18 ) [ECF No. 9] 19 ) 21 Plaintiff Tyler Astorga brings this action against Defendants the County of San 22 Diego (the “County”) and Kevin Boegler (“Deputy Boegler”).1 Before the Court is the 23 County’s Motion to Dismiss and Strike portions of Plaintiff’s First Amended Complaint. 24 ECF No. 9. The Motion was submitted on the papers without oral argument pursuant to 25 Civil Local Rule 7.1(d)(1) and Rule 78(b) of the Federal Rules of Civil Procedure. See 26 ECF No. 14. After considering the papers submitted, supporting documentation, and 27 1 Doe Defendants 1 through 25 were dismissed sua sponte in this Court’s prior order 28 1 applicable law, the Court GRANTS-IN-PART the Motion to Dismiss, and DENIES the 2 Motion to Strike. 4 This case is one of several cases filed in the Southern District pertaining to the Black 5 Lives Matter riot2 that took place on May 30, 2020, in La Mesa, California. See, e.g., 6 Horton v. County of San Diego et al., Case No. 3:21-cv-00400-H-BGS; Segura v. City of 7 La Mesa et al., Case No. 3:21-cv-00565-JM-MDD; Woolsey v. County of San Diego et al., 8 Case No. 3:21-cv-00877-BEN-AHG. 9 A. Statement of Facts3 10 Plaintiff alleges that on May 30, 2020, he and his friends decided to join in a Black 11 Lives Matter protest taking place in La Mesa, California. ECF No. 6 (the “FAC”) at 3,4 ¶ 12 1. When he arrived in La Mesa, Plaintiff alleges “he was taken aback by the energy and 13 sheer number of people” and “[a]fter some time, [he] and his friends decided to leave the 14 protest area and head home.” Id. at 3, ¶ 3. Plaintiff claims he “arrived at his car around 15 midnight and began driving home.” Id. at 3, ¶¶ 3–4. 16

17 2 It is grossly inappropriate for courts to make or express factual findings or 18 conclusions when deciding motions to dismiss. See United States v. Nukida, 8 F.3d 665, 672 (9th Cir. 1993) (explaining that resolution of a question of fact was inappropriate at 19 the motion to dismiss stage); Michael Grecco Prods., Inc. v. Ziff Davis, LLC, 830 F. App’x 20 233, 234 (9th Cir. 2020) (same). Factual findings or conclusions are within the purview of 21 motions for summary judgment or after trial when the parties have had an opportunity to present evidence and rebut baseless or unfavorable allegations. The Court uses the term 22 protest in analyzing the County’s Motion to Dismiss based on the allegations contained in 23 Plaintiff’s First Amended Complaint (the “FAC”). See infra Part III.A.2. However, the Court does not conclude that the events that took place in La Mesa on May 30, 2020, in 24 fact, constituted a protest. 25 3 The majority of the facts set forth are taken from the FAC and for purposes of ruling on the County’s Motion to Dismiss, the Court assumes the truth of the allegations pled and 26 liberally construes all allegations in favor of the non-moving party. Manzarek v. St. Paul 27 Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 4 Unless otherwise indicated, all page number references are to the ECF-generated 28 1 While driving his car past the intersection of La Mesa Boulevard and Spring Street, 2 Plaintiff alleges “he yelled out the window, ‘Fuck the police,’ in the direction of several 3 officers as a final act of protest.” Id. at 3, ¶ 4. Plaintiff maintains he “did not throw 4 anything” at Deputy Boegler, “did not attempt to hit any officers with his vehicle,” was not 5 driving recklessly or in an illegal manner, and that he “was following traffic laws . . . .” Id. 6 at 3, ¶ 7. 7 Plaintiff alleges that Deputy Boegler responded to Plaintiff’s statement by shooting 8 “Plaintiff and his vehicle with several metal-projectile beanbag rounds, fired from a 9 shotgun.” Id. at 3, ¶ 5. Plaintiff alleges that “[o]ne of the rounds struck [him] in the head, 10 lacerating his forehead.” Id. Plaintiff claims he “is unsure if he briefly lost consciousness” 11 after being struck with a metal-projectile beanbag round, “but can recall that he 12 immediately stopped driving and sort of pulled/rolled over to the side of the road.” Id. at 13 3, ¶ 6. Plaintiff alleges that “[l]arge amounts of blood poured from [his] head,” and that he 14 “saw the lead-filled sack next to him, which he believed to be the projectile [that was] shot 15 at him.” Id. 16 Plaintiff claims he was dizzy and covered in blood, and that his friend drove him to 17 the hospital, where “doctors confirmed [Plaintiff] had suffered multiple lacerations to his 18 head and physical pain caused by a kinetic impact projectile.” Id. at 4, ¶¶ 9–10. Six months 19 after being hit with the projectile, Plaintiff claims he “still suffers, among other things, 20 permanent scarring on his head, emotional distress, post-traumatic stress disorder and other 21 neurological symptoms.” Id. at 4, ¶ 10. 22 B. Procedural History 23 On March 16, 2021, Plaintiff filed his original Complaint pleading the following 24 claims for relief: (1) excessive force against Deputy Boegler and Does 1 through 50 25 pursuant to 42 U.S.C. § 1983 and his Fourth Amendment rights; (2) failure to properly train 26 against the County of San Diego pursuant to 42 U.S.C. § 1983 and Monell v. Department 27 of Social Services of the City of New York, 436 U.S. 658 (1978); (3) battery against Deputy 28 Boegler; (4) intentional infliction of emotional distress against Deputy Boegler; (5) 1 violation of the Ralph Act, Cal. Civ. Code § 51.7 (the “Ralph Act”), against Deputy 2 Boegler, the County of San Diego, and Does 1 through 25; and (6) violation of the Bane 3 Civil Rights Act, Cal. Civ. Code § 52.1 (the “Bane Act”), against Deputy Boegler, the 4 County of San Diego, and Does 1 through 25. See ECF No. 1. 5 On June 26, 2021, Plaintiff filed his First Amended Complaint, which alleges the 6 same causes of action but omits one previously named Defendant. See FAC. On 7 September 9, 2021, the County filed the instant Motion to Dismiss and Strike portions of 8 the FAC. See ECF No. 9 (the “Motion”). 10 The County seeks to dismiss the claims filed against it pursuant to Federal Rule of 11 Civil Procedure 12(b)(6) and strike Plaintiff’s claims for punitive damages pursuant to Rule 12 12(f). As explained below, the Court GRANTS-IN-PART the Motion to Dismiss and 13 DENIES the Motion to Strike. 14 A. Motion to Dismiss 15 Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed 16 when a plaintiff’s allegations fail to set forth a set of facts which, if true, would entitle the 17 complainant to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. 18 Iqbal, 556 U.S. 662, 679 (2009) (holding that a claim must be facially plausible to survive 19 a motion to dismiss). The pleadings must raise the right to relief beyond the speculative 20 level; a plaintiff must provide “more than labels and conclusions, and a formulaic recitation 21 of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citing Papasan 22 v. Allain, 478 U.S. 265, 286 (1986)). On a motion to dismiss, a court accepts as true a 23 plaintiff’s well-pleaded factual allegations and construes all factual inferences in the light 24 most favorable to the plaintiff. See Manzarek, 519 F.3d at 1031. A court is not required 25 to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. 26 “Generally, unless the court converts the Rule 12(b)(6) motion into a summary 27 judgment motion, it cannot consider material outside the complaint (e.g., facts presented 28 in briefs, affidavits or discovery materials).” Phillips & Stevenson, California Practice 1 Guide: Federal Civil Procedure Before Trial § 9:211 (The Rutter Group April 2020). Thus, 2 in evaluating a Rule 12(b)(6) motion, review is ordinarily limited to the contents of the 3 complaint and material properly submitted with it. Van Buskirk v. Cable News Network, 4 Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach Studios, Inc. v. Richard Feiner & Co., 5 Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Courts may also consider any statements 6 made in a pleading or motion, including concessions made in plaintiff’s response to the 7 motion to dismiss as well as in response to any other pleading or motion. Fed. R. Civ. P. 8 10(c). 9 When a motion to dismiss is granted, the court must decide whether to grant leave 10 to amend. The Ninth Circuit has a liberal policy favoring amendments, and thus, leave to 11 amend should be freely granted. See, e.g., DeSoto v. Yellow Freight System, Inc., 957 F.2d 12 655, 658 (9th Cir. 1992). However, a court need not grant leave to amend when permitting 13 a plaintiff to amend would be an exercise in futility. See, e.g., Rutman Wine Co. v. E. & J. 14 Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987) (“Denial of leave to amend is not an abuse 15 of discretion where the pleadings before the court demonstrate that further amendment 16 would be futile.”). 17 1. Immunity from Direct Tort Liability 18 The County claims it is immune from suit pursuant to California Government Code 19 sections 815 and 820.2. Although sections 815 and 820.2 may provide a defense to the 20 state law claims for relief under the Ralph Act and the Bane Act (as discussed infra), they 21 do not provide a defense to the federal claims for relief brought under 42 U.S.C. § 1983. 22 Pursuant to California Government Code section 815, “[a] public entity is not liable 23 for an injury, whether such injury arises out of an act or omission of the public entity or a 24 public employee or any other person.” Cal. Gov’t Code § 815. Section 815 eliminated all 25 non-statutory forms of tort liability against public entities in California. See Becerra v. 26 Cnty. of Santa Cruz, 68 Cal. App. 4th 1450, 1456 (1998) (citing Cal. Gov’t Code § 815) 27 (“In California, all government tort liability must be based on statute.”); In re Groundwater 28 Cases, 154 Cal. App. 4th 659, 687 (2007) (“[T]here is no common law tort liability for 1 public entities in California; such liability is wholly statutory.”). 2 An exception to section 815 is section 815.2, which allows for vicarious liability of 3 public entities based on the acts or omissions of employees. See Cal. Gov’t Code § 815.2 4 (“A public entity is liable for injury proximately caused by an act or omission of an 5 employee of the public entity within the scope of his employment if the act or omission 6 would, apart from this section, have given rise to a cause of action against that employee 7 or his personal representative.”). As such, federal courts have held that public entities can 8 be sued for vicarious liability under California civil rights statutes. Gant v. Cnty. of Los 9 Angeles, 772 F.3d 608, 623 (9th Cir. 2014) (explaining in its Bane Act analysis that 10 “[u]nder California law, public entities are liable for actions of their employees within the 11 scope of employment” to the extent their employees are liable); Pierce v. Cnty. of Marin, 12 291 F. Supp. 3d 982, 998 (N.D. Cal. 2018) (holding that public entities can be held 13 vicariously liable under the Bane Act); San Diego Branch of Nat’l Ass’n for Advancement 14 of Colored People v. Cnty. of San Diego, No. 16-cv-02575-JLS-MSB, 2019 WL 329539, 15 at *12 (S.D. Cal. Jan. 25, 2019) (quoting D.V. v. City of Sunnyvale, 65 F. Supp. 3d 782, 16 787 (N.D. Cal. 2014)) (“Courts have consistently held that public entities may be held 17 vicariously liable . . . for police officers’ violations of §52.1 [the Bane Act].”); Di-az v. 18 Tesla, Inc., No. 3:17-cv-06748-WHO, 2019 WL 7311990, at *14 (N.D. Cal. Dec. 30, 2019) 19 (citing the Bane Act and explaining that “[e]mployers can be vicariously liable for the 20 actions of their employees under this section.”); Gonzalez v. Cnty. of Los Angeles, No. CV 21 08-02177-DDP-RZX, 2008 WL 2951272, at *2 (C.D. Cal. July 28, 2008) (discussing the 22 plaintiffs’ civil rights claims, including those under the Bane and Ralph Acts, and 23 explaining that “[p]laintiffs need to clarify whether they are suing the County in its 24 vicarious liability for the actions of its employees . . .” and that they “may not sue the 25 County for direct liability under these statutes.”). 26 The County argues it is not directly liable for Plaintiff’s claims under the Ralph Act 27 or Bane Act, because it is a public entity. Motion at 9. The County cites California 28 Government Code section 815 in arguing that direct common law tort liability has been 1 abolished. Motion at 9. The County maintains that Plaintiff’s allegations of “direct 2 liability against [it] do not arise under any ‘statute imposing liability’ or the ‘rigidly 3 delineated circumstances’ under which the County may be directly liable.” Id. at 10. The 4 County argues that Plaintiff fails to allege the facts necessary to meet each element of these 5 statutory claims, because “[o]nly Deputy Boegler is alleged to have engaged in intentional 6 violent action, and not the County.” Id. at 11. 7 Plaintiff argues that although California Government Code section 815 bars direct 8 liability against a public entity, section 815.2 provides an exception allowing vicarious 9 liability when the entity’s employees engage in tortious acts or omissions. ECF No. 12 10 (the “Oppo.”) at 4. Plaintiff further argues his allegations are for vicarious liability against 11 the County and “not for any direct liability or liability based on common law.” Id. Plaintiff 12 explains the FAC “clearly state[s] that the County ‘is liable in respondeat superior for the 13 conduct of’” Deputy Boegler. Id. (citing FAC at 10, ¶ 50; 12, ¶ 61). 14 The County replies that Plaintiff is alleging direct liability and not vicarious liability, 15 and that the FAC refutes Plaintiff’s vicarious liability theory. ECF No. 15 (the “Reply”) 16 at 7. The County further argues that “vicarious liability was not the subject of the motion 17 to dismiss” and because “Plaintiff now disavows the allegations in the FAC stating the 18 County is liable on a direct liability theory,” dismissal should be granted. Id. at 8. 19 Reading the FAC in the light most favorable to Plaintiff, the Court finds that 20 Plaintiff’s allegations under the Ralph Act and Bane Act support claims for vicarious 21 liability against the County and not direct liability. As Plaintiff points out, the FAC states 22 the County is liable in respondeat superior for Deputy Boegler’s conduct, in the course of 23 his employment. FAC at 10, ¶ 50; 12, ¶ 61. The FAC also cites section 815.2 of the 24 California Government Code as the basis for vicarious liability. See id. Furthermore, 25 “[t]he County does not dispute that [it] can be vicariously liable for the acts of its employee, 26 Deputy Boegler.” Reply at 8. Because the Court finds Plaintiff’s FAC plausibly pleads 27 vicarious liability, it is incorrect to dismiss Plaintiff’s claims under the Ralph and Bane 28 Acts. See Burgess v. Cnty. of San Diego, No. 21-cv-00616-MMA-MSB, 2021 WL 1 5810662, at *7 (S.D. Cal. Dec. 7, 2021) (denying a motion to dismiss based on the 2 plaintiff’s allegations that the city was liable in respondeat superior under the Bane Act). 3 The County also argues that Plaintiff’s Ralph Act and Bane Act allegations “fail to 4 state a direct liability claim . . . to the extent that they are based on the same theory as 5 [Plaintiff’s] Monell allegations—the County’s policies and practices.” Motion at 11. The 6 County asserts it is immune from liability pursuant to California Government Code section 7 820.2, which states that public employees are not liable for injuries resulting from 8 discretionary acts or omissions, whether or not the discretion was abused. Id. (citing Cal. 9 Gov’t Code § 820.2). The County further explains section 815.2(b) “extends that 10 discretionary act immunity to the public entity whose employee’s conduct is at issue . . . .” 11 Motion 11–12 (citing Cal. Gov’t Code § 815.2(b)). 12 Although the issue of immunity can be properly decided on a motion to dismiss, see 13 Steinle v. City & Cnty. of San Francisco, 919 F.3d 1154, 1162 (9th Cir. 2019), the Court 14 does not find immunity at this stage. Plaintiff mentions officer discretion when referring 15 to a specific policy in his Monell claim allegations, but Plaintiff also alleges a separate 16 claim of excessive force. See FAC at 7, ¶ 25; 4–5, ¶¶ 11–15. Section “820.2 does not 17 shield liability from government employees who use excessive force in carrying out their 18 duties.” Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 799 (9th Cir. 2018) (citing 19 Blankenhorn v. City of Orange, 485 F.3d 463, 487 (9th Cir. 2007)). Because all reasonable 20 inferences must be drawn in favor of Plaintiff, the Court does not read Plaintiff’s Ralph 21 and Bane Act claims as being based on Plaintiff’s Monell claim regarding the County’s 22 policies. See Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 23 938, 945 (9th Cir. 2014). These claims could just as likely be based on Plaintiff’s claim 24 for excessive force. Therefore, at this stage in the proceedings, the Court will not dismiss 25 Plaintiff’s Ralph and Bane Act claims based on California Government Code section 820.2 26 immunity. Accordingly, the Court DENIES the County’s Motion to Dismiss Plaintiff’s 27 claims under the Ralph Act and Bane Act. 28 1 2. Monell Claim for Failure to Train 2 “[A] municipality cannot be held liable under § 1983 on a respondeat superior 3 theory.” Monell, 436 U.S. at 691. Rather, “liability under 42 U.S.C. § 1983 may be 4 imposed on local governments only when their official policies or customs cause their 5 employees to violate another’s constitutional rights.” Merritt v. Cnty. of Los Angeles, 875 6 F.2d 765, 769 (9th Cir. 1989) (citing Monell, 436 U.S. at 691). “The Supreme Court has 7 made clear that policies can include written policies, unwritten customs and practices, 8 failure to train municipal employees on avoiding certain obvious constitutional violations 9 . . . and, in rare instances, single constitutional violations are so inconsistent with 10 constitutional rights that even such a single instance indicates at least deliberate 11 indifference of the municipality.” Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1153 12 (9th Cir. 2021) (citing City of Canton v. Harris, 489 U.S. 378, 387 (1989); Bd. of Cnty. 13 Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 405–406 (1997)). “Analyzing 14 claims against municipal entities for failure to train employees regarding federal 15 constitutional rights is a subsection of the Monell analysis.” Abdi v. Cnty. of San Diego, 16 No. 3:18-cv-00713-BEN-KSC, 2018 WL 6248539, at *4 (S.D. Cal. Nov. 29, 2018) (citing 17 Monell, 436 U.S. at 658). “A municipality’s culpability for a deprivation of rights is at its 18 most tenuous where a claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 19 51, 61 (2011) (citing Okla. City v. Tuttle, 471 U.S. 808, 822–23 (1985) (plurality opinion)). 20 To properly plead failure to train under Monell, the plaintiff must plausibly allege: 21 “(1) an inadequate training program, (2) deliberate indifference on the part of the County 22 in adequately training its law enforcement officers, and (3) whether the inadequate training 23 “actually caused” a deprivation of [the plaintiff’s] constitutional rights.” Merritt, 875 F.2d 24 at 770. To show deliberate indifference, a plaintiff must ordinarily show “[a] pattern of 25 similar constitutional violations by untrained employees.” Connick, 563 U.S. at 62 (citing 26 Bryan Cnty., 520 U.S. at 409). There must be some form of “actual or constructive notice 27 that a particular omission in their training program causes city employees to violate 28 citizens’ constitutional rights . . . .” Connick, 563 U.S. at 61. “A single employee who was 1 inadequately trained is not enough; ‘there must be a “widespread practice.”’” Hendrix v. 2 City of San Diego, No. 20-cv-00045-TWR-NLS, 2021 WL 3892671, at *8 (S.D. Cal. Aug. 3 11, 2021) (quoting Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1159 (9th Cir. 2012)). 4 “The standard is deliberately high in these types of cases because applying a less 5 demanding standard would circumvent the rule against respondeat superior liability of 6 municipalities.” Abdi, No. 3:18-cv-00713-BEN-KSC, 2018 WL 6248539, at *4 (citing 7 Bryan Cnty., 520 U.S. at 392). 8 The County makes several challenges to Plaintiff’s Monell claim. First, the County 9 argues Plaintiff fails to plausibly plead “an official practice/custom of using ‘excessive 10 force’ based on the use of force on the night of the incident.” Motion at 13. The County 11 explains that because Plaintiff’s FAC is based on one alleged incident and cites no other 12 incidents related to the alleged policy, custom, or practice, the allegations fall short. Id. at 13 14–15. Second, the County argues that Plaintiff fails to identify an explicit written policy 14 that directed the violation and “instead relies on allegations that an unwritten policy and 15 policy failures caused the excessive force.” Id. at 13. The County further claims Plaintiff 16 fails to plead facts describing the nature of the policy, custom, or practice alleged. Id. 17 Third, the County argues Plaintiff’s FAC provides no facts regarding deputy training, or 18 how any failure to train caused the violation alleged here. Id. at 18. Fourth, the County 19 argues that “[n]o training is required for any citizen, let alone a peace officer to know that 20 shooting a projectile at someone who was posing no threat is wrong.” Id. at 17. Finally, 21 the County contends that Plaintiff fails to plead the County’s “notice that an omission in 22 training or supervision could cause such an occurrence . . . .” Id. 23 Plaintiff argues the FAC specifically identifies the SDSD Specialty Munitions policy 24 “and the various ways in which it is deficient and thus led to [Plaintiff’s] injury.” Oppo. 25 at 6. Plaintiff contends the allegations describe inadequacies in the policy and the bases 26 for insufficient training, including deficient “guidelines on when to deploy specialty 27 munitions.” Id. at 6. Plaintiff further argues the FAC alleges how certain phrasing suggests 28 a lack of formal training on specialty munitions and “indicate[s] that the County’s failure 1 to train caused his injuries.” Id. Plaintiff also challenges the County’s argument that the 2 FAC mentions only one incident, arguing it clearly states that “multiple peaceful protesters 3 were harmed by kinetic impact projectiles and similar . . . weapons fire by SDSD deputies 4 . . . .” Id. at 7. Plaintiff contends these allegations state not just a single “bad act by one 5 officer, but rather a widespread deficiency in training of SDSD deputies.” Id. 6 The County replies that although Plaintiff points to the Specialty Munitions policy, 7 the “Monell claim is based on what the policy does not, but should, say.” Reply at 3. The 8 County argues the policy is therefore, not one that “directs officers to shoot unarmed 9 drivers of vehicles who do not pose a threat . . . .” Id. The County explains the policy must 10 have directed the excessive force underlying Plaintiff’s claim—because the allegations 11 regarding the policy are based on omissions, Plaintiff fails to plead the additional and 12 required facts “supporting official adoption [of the policy] and deliberate choice by the 13 County.” Id. at 2–3. 14 Plaintiff’s FAC fails to plausibly allege all elements of the County’s failure to train 15 under Monell. However, the County is incorrect in many of its assertions. The FAC 16 specifically points to SDSD’s Specialty Munitions policy and describes multiple alleged 17 deficiencies therein, including how officers are not properly trained or held accountable 18 respecting enforcement of the policy. FAC at 5–7, ¶¶ 17, 24–26. Plaintiff alleges the 19 policy has insufficient guidelines on the manner in which to deploy specialty munitions, 20 and no restrictions on using these “munitions against someone who is operating a vehicle.” 21 FAC at 7, ¶ 25. Plaintiff further alleges the ambiguous phrasing that “Trained”5 personnel 22 can deploy “specialty munitions as deemed reasonable and necessary based upon the 23 circumstances of the incident” provides “insufficient guidance” for officers. Id. Plaintiff 24 also alleges that the policy lacks sufficient requirements for documentation, “which allows 25

26 5 Plaintiff also questions the reason for placing the word “Trained” in quotation marks 27 and suggests the possibility “that perhaps there is not actual formal training on specialty munitions,” given that the phrase “trained personnel” appears two other times in SDSD 28 1 officers to evade accountability.” Id. at 7, ¶ 26. Plaintiff explains the policy only suggests 2 that officers photograph the scene to accurately depict any resulting damage or injury. Id. 3 Because this is a suggestion and not a requirement, Plaintiff claims the County failed to 4 adequately supervise its officers and “ensure[] compliance with its use of force guidelines.” 5 Id. Plaintiff’s allegations, therefore, plausibly plead an inadequate training program.6 6 Although Plaintiff provides detailed allegations regarding inadequacies in officer 7 training, Plaintiff fails to plead that the County’s inaction rises to the level of deliberate 8 indifference. Plaintiff makes a general allegation that the County’s failure to train “was 9 deliberately indifferent to [his] Fourth Amendment rights and done with conscious 10 disregard for the dangers of harm and injury to him and others similarly situated.” Id. at 8, 11 ¶ 27. But to plead deliberate indifference, Plaintiff must allege a pattern of constitutional 12 violations sufficient to constitute widespread inadequate training, and that the County had 13 notice of such. See Connick, 563 U.S. at 61–62. Plaintiff alleges that: (1) “[m]ultiple 14 peaceful protestors were harmed by kinetic impact projectiles and similar ‘intermediate 15 force’ weapons fired by SDSD deputies, which suggests . . . a widespread deficiency in . . 16 . training;” and (2) the County was “aware of the widespread problems with the use of 17 excessive force” and has a widespread history of failing to investigate misconduct and take 18 remedial actions against deputies. FAC at 6, ¶ 23; 6, ¶¶ 19–20. These allegations are too 19 conclusory to meet the standard for deliberate indifference. 20 First, Plaintiff does not plead the number of incidents that occurred or any specific 21 examples, preventing the Court from evaluating the extent of the alleged violations and 22 23

24 6 The Court also disagrees with the County’s argument that no training is required to 25 know that shooting a projectile at a person who poses no threat is wrong. See Horton v. Cnty. of San Diego, No. 21-cv-00400-H-BGS, 2021 WL 2156180, at *4 (S.D. Cal. May 26 27, 2021) (explaining that by drawing all reasonable inferences in favor of the plaintiff, 27 “[t]he Court rejects the County’s contention that no training is required to know that shooting a projectile at someone who was waiting quietly is wrong.”) (internal quotations 28 1 whether they form a pattern or widespread practice. 7 See Bagley v. City of Sunnyvale, No. 2 16-cv-02250-JSC, 2017 WL 5068567, at *5 (N.D. Cal. Nov. 3, 2017) (explaining that “two 3 vaguely described incidents are insufficient to support a claim for municipal liability” for 4 failure to train); NeSmith v. Cnty. of San Diego, No. 15-cv-00629-JLS-JMA, 2016 WL 5 4515857, at *16 (S.D. Cal. Jan. 27, 2016) (quoting Connick, 563 U.S. at 72) (“Plaintiffs’ 6 generalized information on suicide rates in the County’s jails is, for purposes of plausibly 7 stating a claim for government entity liability, a step in the right direction. As presented, 8 however, it is too vague to establish the ‘pattern of violations necessary to prove deliberate 9 indifference . . . .’”). See also Est. of Osuna v. Cnty. of Stanislaus, 392 F. Supp. 3d 1162, 10 1173 (E.D. Cal. 2019) (holding that a sufficient number of incidents were alleged where 11 plaintiffs described at least three “prior cases in which defendants were either found liable 12 or agreed to pay a substantial monetary sum to resolve excessive use of force claims 13 brought against them.”); Nishimoto v. Cnty. of San Diego, No. 16-cv-01974-BEN-JMA, 14 2017 WL 2709742, at *5 (S.D. Cal. June 20, 2017) (finding a pattern of similar 15 constitutional violations for purposes of failure to train where the complaint described 16 seven comparable incidents supported by factual allegations). 17 Second, the FAC does not allege when or where the multiple peaceful protesters 18 were injured. The only protest mentioned in the FAC is the one that occurred in La Mesa, 19 where Plaintiff sustained his injuries. Based on the allegation that “multiple peaceful 20 protesters were harmed,” the reasonable inference that follows is that the protesters

21 7 The Court notes that a single constitutional violation can rise to the level of 22 deliberate indifference by the municipality. See Benavidez, 993 F.3d at 1154 (quoting City 23 of Canton, 489 U.S. at 390 n.10.) (“Where, for example, a ‘city has armed its officers with firearms[,] ... the need to train officers in the constitutional limitations on the use of deadly 24 force can be said to be ‘so obvious,’ that failure to do so could properly be characterized 25 as deliberate indifference to constitutional rights.”); Horton, No. 21-cv-00400-H-BGS, 2021 WL 2156180, at *4 (holding that a single incident of a plaintiff being shot in the chest 26 by a projectile—when the plaintiff posed no threat of harm to anyone—was sufficient to 27 allege a Monell claim against San Diego County). However, Plaintiff’s FAC and Opposition rely only on the allegation that multiple peaceful protesters were injured, 28 1 referenced were also harmed at the La Mesa demonstration. This type of contemporaneous 2 harm is generally insufficient to allege a widespread pattern of conduct adequate to put a 3 municipality on notice of deficient training. See Canton, 489 U.S. at 395 (O’Connor, J., 4 concurring in part and dissenting in part) (“[C]ontemporaneous or subsequent conduct 5 cannot establish a pattern of violations that would provide ‘notice to the cit[y] and the 6 opportunity to conform to constitutional dictates….’”); Hursh v. Cnty. of San Diego, No. 7 08-cv-02249-BEN-PCL, 2011 WL 2003353, at *3 (S.D. Cal. May 23, 2011) (The 8 “[p]laintiff’s assertion that multiple deputies failed to put him in a lower bunk does not 9 establish the requisite pattern . . . .”). All reasonable inferences must be drawn in favor of 10 Plaintiff, see Retail Property Trust, 768 F.3d at 945, but the Court is confined to the content 11 of the FAC and cannot assume facts not alleged. See Van Buskirk, 284 F.3d at 980 12 (“Ordinarily, a court may look only at the face of the complaint to decide a motion to 13 dismiss.”); Jack Russell Terrier Network of N. Ca. v. Am. Kennel Club, Inc., 407 F.3d 1027, 14 1035 (9th Cir. 2005) (“Although we assume the truth of the facts alleged in the complaint, 15 we cannot assume any facts necessary to the . . . claim that they have not alleged.”). 16 Plaintiff’s direct allegation that the County had notice of training deficiencies is also 17 conclusory, because it simply recites that the County was “aware of the widespread 18 problems with the use of excessive force.” FAC at 6, ¶ 19. Plaintiff does not need to prove 19 notice at this stage, but without more specific examples supported by at least some factual 20 allegations, the Court cannot determine whether a pattern of violations existed to put the 21 County on notice of its alleged failure to train. See Hendrix, No. 20-cv-00045-TWR-NLS, 22 2021 WL 3892671, at *8 (citations and internal quotations omitted) (“On a motion to 23 dismiss, the plaintiff need not prove that the supervisors had notice that the training on the 24 use of force was inadequate and consciously chose not to implement or improve the 25 training. Rather, the plaintiff must allege notice and conscious disregard. A single 26 employee who was inadequately trained is not enough; there must be a widespread 27 practice.”). See also Connick, 563 U.S. at 62 (“Policymakers’ ‘continued adherence to an 28 approach that they know or should know has failed to prevent tortious conduct by 1 employees may establish the conscious disregard for the consequences of their action—the 2 “deliberate indifference”—necessary to trigger municipal liability.’”). 3 Despite the above findings, Plaintiff may be able to amend his FAC to plausibly 4 allege a Monell failure to train. Accordingly, the County’s Motion to Dismiss Plaintiff’s 5 Monell claim against it is GRANTED8 without prejudice. 6 B. Motion to Strike Punitive Damages 7 Federal Rule of Civil Procedure 12(f) allows a court to “strike from a pleading an 8 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” 9 Immaterial matters are “those which ha[ve] no essential or important relationship to the 10 claim for relief or the defenses being pleaded.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 11 1527 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994) (internal quotation 12 marks omitted). Impertinent matters “do not pertain, and are not necessary, to the issues 13 in question.” Id. (internal quotations omitted). 14 The purpose of a Rule 12(f) motion “is to avoid the expenditure of time and money 15 that must arise from litigating spurious issues by dispensing with those issues prior to trial.” 16 Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (internal 17 quotations omitted). “Motions to strike are generally disfavored and ‘should not be granted 18 unless the matter to be stricken clearly could have no possible bearing on the subject of the 19 litigation.’” Luxul Tech. Inc. v. NectarLux, LLC, No. 14 -cv-03656-LHK, 2015 WL 20 4692571, at *3 (N.D. Cal. Aug. 6, 2015) (quoting Platte Anchor Bolt, Inc. v. IHI, Inc., 352 21 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004)). The decision to grant a motion to strike 22 ultimately lies within the discretion of the trial court. Rees v. PNC Bank, N.A., 308 F.R.D. 23 24 8 The County argues that Plaintiff’s ratification-based Monell claim fails, because the 25 FAC contains no “factual allegations regarding any approval or ratification of the claimed unconstitutional action by Deputy Boegler . . . .” Motion at 19. Plaintiff argues he is 26 bringing a Monell claim based on failure to train and not ratification, rendering the 27 County’s Motion to Dismiss on this ground as moot. Oppo. at 7 n.2. The Court agrees with Plaintiff but finds the issue moot, because the Court is dismissing Plaintiff’s Monell 28 1 || 266, 271-72 (N.D. Cal. 2015) (citing Whittlestone, 618 F.3d at 973). 2 The County argues the FAC does not limit its punitive damages to specific 3 Defendants and to the extent Plaintiff seeks punitive damages against the County, they 4 ||should be stricken. Motion at 20. The County contends that “punitive damages are not 5 recoverable against a public entity under either state law or Section 1983 and thus have no 6 relationship to the claims against the County.” /d. Plaintiff argues the County’s Motion to 7 || Strike is unnecessary because Plaintiff does not seek punitive damages against it. /d. at 7. 8 || Plaintiff explains that reading the “FAC in the light most favorable to him . . . it should be 9 ||assumed that Plaintiff was properly pleading punitive damages only against the proper 10 || party: Defendant Deputy Boegler.” Jd. The Court agrees. Although Plaintiff pleads 11 |}punitive damages generally in his prayer for relief, see FAC at 12, under each specific 12 ||claim for which he pleads punitive damages, Plaintiff lists only Deputy Boegler (and 13 || previously dismissed Doe Defendants). See id. at 8—9, 4 36; 9, 943; 10, Reading the 14 || FAC in the light most favorable to Plaintiff, and given Plaintiff's concession, the Court 15 || finds Plaintiff properly pleads punitive damages as to Deputy Beogler and not the County. 16 || Accordingly, the Court DENIES the County’s Motion to Strike. 17 |TV. CONCLUSION 18 The Court rules on the above Motions as follows: 19 1. The County’s Motion to Dismiss Plaintiff's claims under the Ralph Act and 20 || Bane Act is DENIED. 21 2. The County’s Motion to Dismiss Plaintiff's Mone// claim against the County 22 || for failure to train is GRANTED without prejudice. 23 3. The County’s Motion to Strike Plaintiff's claims for punitive damages is 24 || DENIED. 25 IT IS SO ORDERED. "

26 || DATED: May 17, 2022 07 HON. ROGER T. BENITEZ United States District Judge 28 -16-