1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAM CARR, Case No.: 19-CV-1139 JLS (MDD)
12 Plaintiff, ORDER (1) DENYING MOTIONS TO 13 v. DISMISS, (2) GRANTING PLAINTIFF EXTENSION OF TIME 14 COUNTY OF SAN DIEGO; SAN NUNC PRO TUNC WITHIN WHICH DIEGO SHERIFF’S DEPARTMENT; 15 TO SERVE DEFENDANT JEFFREY CHU; JOE MCMANUS; and MCMANUS, AND (3) DEEMING 16 DOES 1–10, inclusive, PLAINTIFF TO HAVE TIMELY 17 Defendants. AND PROPERLY SERVED DEFENDANT MCMANUS 18
19 (ECF Nos. 3, 8, 13) 20
21 Presently before the Court are the fully-briefed Motions to Dismiss filed by 22 Defendants County of San Diego (the “County”) (“Cty. Mot.,” ECF No. 3), Jeffrey Chu 23 (“Chu Mot.,” ECF No. 8), and Joseph McManus (“McManus Mot.,” ECF No. 13) 24 (together, the “Motions”). The Court vacated the hearings on the Motions and took them 25 under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF 26 Nos. 6, 17. Having carefully considered Plaintiff William Carr’s Complaint (“Compl.,” 27 ECF No. 1), the evidence, the Parties’ arguments, and the law, the Court DENIES the 28 Motions to Dismiss, GRANTS NUNC PRO TUNC Plaintiff an extension of time within 1 which to serve Defendant McManus, and DEEMS Defendant McManus timely and 2 properly served on September 23, 2019. 3 THE COUNTY AND CHU MOTIONS 4 I. Background1 5 Plaintiff is a 31-year-old Type 1 diabetic. Compl. ¶ 21. Diabetes is a disorder of the 6 endocrine system characterized by high blood glucose levels resulting from defects in 7 insulin secretion, insulin inaction, or both. Id. ¶ 22. In Type 1 diabetes, the pancreas stops 8 making insulin or only makes a tiny amount, meaning that a person with Type 1 diabetes 9 must receive insulin from an outside source. Id. ¶ 23. Plaintiff treats his diabetes using an 10 insulin pump. Id. ¶ 21. 11 If insulin lowers blood glucose below 70 mg/dL, a potentially life-threatening 12 condition known as hypoglycemia can develop. Id. ¶ 24. Symptoms of mild to moderate 13 hypoglycemia include tremors, sweating, lightheadedness, confusion, and drowsiness. Id. 14 Although hypoglycemia usually can be treated easily and effectively by consuming a 15 source of glucose, such as fruit juice, it can become severe and life-threatening if not treated 16 promptly. Id. Symptoms of severe hypoglycemia include the inability to swallow, 17 convulsions, and unconsciousness. Id. 18 On July 25, 2018, after attending a service and drumming in the band at the Light 19 Church in Encinitas, California, Plaintiff felt his blood glucose level falling. Id. ¶ 27. 20 Plaintiff therefore went to a nearby diner for a snack. Id. While tending to Plaintiff, diner 21 staff determined that Plaintiff appeared to be in medical distress; consequently, the 22 manager called 911 for assistance. Id. ¶ 28. 23 / / / 24
25 1 The facts alleged in Plaintiff’s Complaint are accepted as true for purposes of the Defendants’ Motions, 26 see Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1249 (9th Cir. 2007) (holding that, in ruling on a motion to dismiss, the Court must “accept all material allegations of fact as true”), as are any adjudicative facts 27 not subject to reasonable dispute, such as matters of public record, of which the Court properly may take 28 judicial notice. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (citing Fed. 1 At approximately 6:45 p.m., several County of San Diego Sheriff’s deputies, 2 including Defendants Chu and McManus, arrived at the diner. Id. ¶ 29. They already had 3 information that Plaintiff was in medical distress, id. ¶ 31, and, by this time, Plaintiff was 4 slumped over in his chair at the diner’s lunch counter. Id. ¶ 30. Plaintiff stated that he was 5 diabetic and in need of some sugar, id. ¶ 32, and asked Defendant whether somebody could 6 check his blood sugar. Id. ¶ 33. 7 Instead of assisting Plaintiff, Defendants surrounded Plaintiff, forcibly head locked 8 him, and slammed him to the ground. Id. ¶¶ 34, 39. Defendant Chu tased Plaintiff in the 9 back, causing Plaintiff to cry out in pain. Id. ¶ 39. Defendants then dragged Plaintiff out 10 of the diner and onto the curb in handcuffs. Id. ¶ 40. At no time did Defendants reasonably 11 perceive that a crime was about to be committed, that Plaintiff was acting aggressively, or 12 that Plaintiff posed an immediate threat of harm. Id. ¶¶ 35, 36–37. Plaintiff neither actively 13 resisted Defendants nor attempted to evade arrest. Id. ¶¶ 36, 38. 14 When Emergency Medical Technicians responded to the scene, they immediately 15 administered dextrose sugar and confirmed that Plaintiff’s blood sugar level had fallen to 16 a dangerously low level, consistent with Plaintiff’s loss of consciousness. Id. ¶ 41. 17 Nonetheless, Defendants kept Plaintiff in handcuffs, including when he was taken to the 18 hospital in an ambulance. Id. Defendant McManus subsequently cited Plaintiff for two 19 misdemeanors, trespassing and resisting peace officers, although the District Attorney’s 20 Office declined to prosecute. Id. ¶ 42. 21 On November 30, 2018, Plaintiff’s counsel filed a “Claim Against the County of San 22 Diego.” See Cty. Request for Judicial Notice (“RJN,” ECF No. 3-2) Ex. A, ECF No. 3-3.2 23 The claim indicated that the underlying incident occurred on July 15, 2018, at 24
25 2 Defendants request that the Court take judicial notice of Plaintiff’s claim, which “is a public record, filed 26 with the Claims Division of the County of San Diego.” RJN at 2. The request is unopposed. Because Plaintiff’s claim is a proper subject of judicial notice for purposes of the County and Chu Motions, see, 27 e.g., Ramachandran v. City of Los Altos, 359 F. Supp. 3d 801, 812 (N.D. Cal. 2019) (citing Khoja, 889 28 F.3d at 998; Kim v. City of Belmont, No. 17-cv-02563-JST, 2018 WL 500269 (N.D. Cal. Jan. 22, 2018)), 1 approximately 6:45 p.m., at the East Village Asian Diner, located at 628 S. Coast Hwy 101, 2 Encinitas, CA 92024. Id. Plaintiff’s counsel described the events of July 25, 2018 as 3 follows: 4 William Carr is an insulin-dependent diabetic who plays drums every weekend at the Light Church in Encinitas. On July 15, 5 2018, Will took an afternoon breach between church services to 6 have a bite to eat at the nearby East Village Asian Diner because he felt his blood sugar getting low. Restaurant staff called 911 7 when he appeared listless and unresponsive. Instead of helping, 8 deputies forced him to the ground, tased him, handcuffed/ arrested him. 9
10 Id. When asked “how or wherein the County of San Diego or its employees were at fault,” 11 counsel explained: 12 When confronted with someone having a medical emergency, 13 Deputies should not have forced Mr. Carr to the ground, tasing him, handcuffing him, arresting him, publicly humiliating him in 14 his community, leaving him in handcuffs on the way to and at 15 the hospital even after learning that he was suffering from diabetic hypoglycemia, and citing him for a crime. 16
17 Id. Plaintiff claimed pain, lacerations, and severe emotional distress. Id. 18 Following the denial of his claim on January 16, 2019, see Compl. ¶ 3, Plaintiff filed 19 the instant Complaint against the County and Deputies Chu and McManus on June 17, 20 2019. See generally Compl. Plaintiff alleges six causes of action for (1) illegal detention 21 and arrest in violation of his Fourth Amendment rights; (2) excessive force in violation of 22 his Fourth Amendment rights; (3) false arrest/false imprisonment; (4) negligence; 23 (5) violation of the Ralph Act, Cal. Civ. Code § 51.7; and (6) violation of the Bane Act, 24 Cal. Civ. Code § 52.1. See generally id. ¶¶ 44–94. 25 II. Legal Standard 26 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 27 defense that the complaint “fail[s] to state a claim upon which relief can be granted,” 28 generally referred to as a motion to dismiss. The Court evaluates whether a complaint 1 states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil 2 Procedure 8(a), which requires a “short and plain statement of the claim showing that the 3 pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual 4 allegations,’ . . . it [does] demand more than an unadorned, the-defendant-unlawfully- 5 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 6 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to 7 provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 8 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 9 Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A 10 complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual 11 enhancement.’” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557). 12 To survive a motion to dismiss, “a complaint must contain sufficient factual matter, 13 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 14 Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible 15 when the facts pled “allow the court to draw the reasonable inference that the defendant is 16 liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 17 556). That is not to say that the claim must be probable, but there must be “more than a 18 sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent 19 with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting 20 Twombly, 550 U.S. at 557). This review requires context-specific analysis involving the 21 Court’s “judicial experience and common sense.” Id. at 678 (citation omitted). “[W]here 22 the well-pleaded facts do not permit the court to infer more than the mere possibility of 23 misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is 24 entitled to relief.’” Id. 25 Claims that allege fraud must meet the heightened pleading standard of Federal Rule 26 of Civil Procedure 9(b), which requires that “[i]n alleging fraud or mistake, a party must 27 state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 28 9(b). Allegations of fraud must be “specific enough to give defendants notice of the 1 particular misconduct which is alleged to constitute the fraud charged so that they can 2 defend against the charge and not just deny that they have done anything wrong.” Semegen 3 v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985); see also Cooper v. Pickett, 137 F.3d 616, 4 627 (9th Cir. 1997) (noting that particularity requires plaintiff to allege the “who, what, 5 when, where, and how” of the alleged fraudulent conduct). 6 Where a complaint does not survive 12(b)(6) analysis, the Court will grant leave to 7 amend unless it determines that no modified contention “consistent with the challenged 8 pleading . . . [will] cure the deficiency.” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 9 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 10 1393, 1401 (9th Cir. 1986)). 11 III. Analysis 12 The County and Defendant Chu have filed substantially identical Motions seeking 13 dismissal of Plaintiff’s state-law causes of action on three grounds: (1) Plaintiff’s claim did 14 not contain sufficient information to notify Defendant of the causes of action he intended 15 to bring against them, (2) Plaintiff’s claim under the Ralph Act fails to allege that 16 Defendants victimized Plaintiff because of his diabetes, and (3) Plaintiff’s claims under the 17 Bane Act fails to allege that Defendants had a specific intent to violate his rights. See Cty. 18 Mot. at 1–2, 4–8; Chu Mot. at 1–2, 3–8. 19 A. Sufficiency of Plaintiff’s Claim Under the California Tort Claims Act 20 The California Tort Claims Act, Cal. Govt. Code §§ 810 et seq., requires a plaintiff 21 to submit “a general description of the indebtedness, obligation, injury, damage or loss 22 incurred,” along with the “name or names of the public employee or employees causing 23 the injury, damage, or loss, if known” prior to filing a suit against a public entity for money 24 damages. Cal. Gov’t Code §§ 910, 945.4, 950.6. According to the California Supreme 25 Court, 26 The purpose of these statutes is “to provide the public entity sufficient information to enable it to adequately investigate 27 claims and to settle them, if appropriate, without the expense of 28 litigation.” . . . Consequently, a claim need not contain the detail 1 and specificity required of a pleading, but need only “fairly describe what [the] entity is alleged to have done.” . . . As the 2 purpose of the claim is to give the government entity notice 3 sufficient for it to investigate and evaluate the claim, not to eliminate meritorious actions . . . , the claims statute “should not 4 be applied to snare the unwary where its purpose has been 5 satisfied” . . . .
6 Stockett v. Ass’n of Cal. Water Agencies Joint Powers Ins. Auth., 34 Cal. 4th 441, 446 7 (2004) (citations omitted). 8 Although the County and Defendant Chu concede that Plaintiff submitted a timely 9 claim to the County, see Cty. Mot. at 1; Chu Mot. at 1; see also RJN Ex. A, they contend 10 that Plaintiff’s claim did not comply with the California Tort Claims Act in two respects: 11 (1) it did not reflect each cause of action filed against them, and (2) it omitted certain 12 material facts later alleged in Plaintiff’s Complaint. See Cty. Mot. at 1–2, 4–6; Chu Mot. 13 at 1, 3–6. 14 1. Causes of Action 15 Defendants contend that “each cause of action must have been reflected in a timely 16 claim,” Cty. Mot. at 4 (quoting Nelson v. California, 139 Cal. App. 3d 72, 79 (1982)); Chu 17 Mot. at 4 (quoting Nelson, 139 Cal. App. 3d at 79), whereas Plaintiff’s “claim only reflects 18 a cause of action for use of force against unnamed deputies,” and not “causes of action for 19 false arrest, negligence, and violation of California Civil Code Sections 51.7 and 52.1.”3 20 Cty. Mot. at 5; Chu Mot. at 4–5. Plaintiff counters that he is not required to identify each 21 separate cause of action in his claim to comply with the requirements of the California Tort 22 Claims Act. ECF No. 4 (“Cty. Opp’n”) at 3; ECF No. 14 (“Chu Opp’n”) at 3. 23 / / / 24
25 3 To the extent that the County contends that dismissal of the state law claims against it is merited because 26 Plaintiff failed to name the County on the claim form, see Cty. Mot. at 5; Cty. Opp’n at 3, the Ninth Circuit has explicitly rejected this argument. See Mabe v. San Bernardino Cty., Dep’t of Pub. Soc. Servs., 237 27 F.3d 1101, 1111 (9th Cir. 2001) (dismissing grant of summary judgment in favor of county defendant 28 where the county was not specifically listed on the claim form because “the [claim] document itself is 1 Plaintiff is correct: Contrary to Defendants’ interpretation, Nelson does not require 2 a plaintiff to specify each cause of action he intends to assert; rather, it requires only that 3 “each cause of action . . . be[] reflected in a timely claim.” See 139 Cal. App. 3d at 79 4 (emphasis added). This is because “[i]t is not the purpose of the claims statutes to prevent 5 surprise. Rather, the purpose of these statutes is to provide the public entity sufficient 6 information to enable it to adequately investigate claims and to settle them, if appropriate, 7 without the expense of litigation.” City of San Jose v. Super. Ct., 12 Cal. 3d 447, 455 8 (1974) (citing Eastlick v. City of Los Angeles, 29 Cal. 2d 661, 667 (1947); Jackson v. Bd. 9 of Educ., 250 Cal. App. 2d 856, 859 (1967)). Accordingly, the California Supreme Court 10 has clarified that “[o]nly where there has been a ‘complete shift in allegations, usually 11 involving an effort to premise civil liability on acts or omissions committed at different 12 times or by different persons than those described in the claim,’ have courts generally found 13 the complaint barred.” Stockett, 34 Cal. 4th at 447 (quoting Blair v. Super. Ct., 218 Cal. 14 App. 3d 221, 226 (1990)). “In other words, it is permissible to plead additional theories 15 where the ‘additional theories [are] based on the same factual foundation as those in the 16 claim, and the claim provide[s] sufficient information to allow the public agency to conduct 17 an investigation into the merits of the claim.’” Sanders v. City of Fresno, No. CIVA 05- 18 0469 AWISMS, 2006 WL 1883394, at *6 (E.D. Cal. July 7, 2006) (alterations in original) 19 (quoting Dixon v. City of Livermore, 127 Cal. App. 4th 32, 42 (2005)). 20 The Court concludes that the state law causes of action are fairly reflected in 21 Plaintiff’s claim. Plaintiff’s state law causes of action are for false arrest, negligence, 22 violation of the Ralph Act, and violation of the Bane Act. See Compl. ¶¶ 58–94. Here, 23 Plaintiff’s claim provides, in relevant part and in full: 24 Specify the particular occurrence, event, act or omission you claim caused the injury or damage (use additional paper if 25 necessary): 26 William Carr is an insulin-dependent diabetic who plays drums 27 every weekend at the Light Church in Encinitas. On July 15, 28 2018, Will took an afternoon breach between church services to 1 have a bite to eat at the nearby East Village Asian Diner because he felt his blood sugar getting low. Restaurant staff called 911 2 when he appeared listless and unresponsive. Instead of helping, 3 deputies forced him to the ground, tased him, handcuffed/arrested him. 4
5 State how or wherein the County of San Diego or its employees were at fault. Give the name(s) of the County 6 department and employee(s) causing the damage or injury: 7 When confronted with someone having a medical emergency, 8 Deputies should not have forced Mr. Carr to the ground, tasing 9 him, handcuffing him, arresting him, publicly humiliating him in his community, leaving him in handcuffs on the way to and at 10 the hospital even after learning that he was suffering from 11 diabetic hypoglycemia, and citing him for a crime.
12 . . . 13 Give a description of the injury, as is known at the time of 14 this claim: 15 Pain, lacerations, and severe emotional distress. 16
17 RJN Ex. A. Plaintiff’s claim, which indicates that he was handcuffed and arrested for 18 nothing more than suffering a diabetes-related medical emergency, fairly reflects each of 19 Plaintiff’s state law causes of action. See, e.g., IDC v. City of Vallejo, No. 2:13-CV-1987 20 DAD, 2013 WL 6670557, at *4 (E.D. Cal. Dec. 18, 2013) (concluding that claim 21 concerning use of excessive force fairly reflected “the complaint’s claims for false arrest, 22 the intentional and negligent infliction of emotional distress, violation of California Civil 23 [Code] § 51.7, negligence[,] and respondeat superior,” which “do not represent a complete 24 shift in allegations or an effort to premise civil liability on acts or omissions committed at 25 different times or by different persons, but instead are merely different theories of liability 26 predicated on the same fundamental actions or failure to act alleged against the defendants 27 in the Government Tort Claim form submitted by plaintiff”) (citing White v. Super. Ct., 225 28 Cal. App. 3d 1505, 1511 (1990)). 1 For example, Plaintiff’s cause of action for false arrest is premised on Defendants 2 Chu and McManus “detain[ing] PLAINTIFF without reasonable suspicion and arrest[ing] 3 him without probable cause,” see Compl. ¶ 59, while Plaintiff’s cause of action for 4 negligence contends that Defendants breached their “duty . . . [to] us[e] appropriate tactics 5 and not us[e] any force unless reasonably necessary” by, for example, “fail[ing] to properly 6 and adequately assess the need to detain, arrest[,] and use violent force against 7 PLAINTIFF” and “unjustifi[ably] us[ing] . . . a taser.” See id. ¶¶ 67, 68(a), (c). Similarly, 8 Plaintiff’s Ralph and Bane Act causes of action are based on the same incidence of alleged 9 excessive force, alleging that Defendants, “without warning or justification . . . [,] 10 unnecessarily and unreasonably headlocked PLAINTIFF, slammed PLAINTIFF to the 11 ground with force and violence, tased PLAINTIFF, dragged PLAINTIFF out of the 12 restaurant in handcuffs, and restrained PLAINTIFF in handcuffs for at least 30 minutes.” 13 Id. ¶¶ 72, 85. Because all of these causes of action are all “rooted in the same fundamental 14 facts” relayed in Plaintiff’s claim, i.e., Defendants Chu’s and McManus’ use of excessive 15 force in arresting Plaintiff during a diabetes-induced medical crisis, each cause of action is 16 fairly reflected in Plaintiff’s claim. See, e.g., Acevedo v. City of Farmersville, No. 17 118CV01747LJOSAB, 2019 WL 3003996, at *8 (E.D. Cal. July 10, 2019) (causes of 18 action for violations of the Bane Act and the Unruh Civil Rights Act; negligent hiring, 19 supervision, and training; and IIED fairly reflected in claim relaying “unlawful assault and 20 battery”); IDC, 2013 WL 6670557, at *3 (causes of action for false arrest, intentional and 21 negligent infliction of emotional distress, violation of the Ralph Act, negligence, and 22 respondeat superior fairly reflected in claim regarding excessive force); Burke v. City of 23 Santa Monica, No. CV0902259MMMPLAX, 2010 WL 11549360, at *22 (C.D. Cal. Dec. 24 8, 2010) (causes of action for intentional infliction of emotional distress, negligence, and 25 respondeat superior fairly reflected in claim for assault and battery, although cause of 26 action for false arrest not fairly reflected where claim failed to mention the plaintiff’s 27 arrest). 28 / / / 1 2. Material Facts 2 Defendants additionally argue that “certain material facts alleged in the Complaint 3 are noticeably missing from the claim.” Cty. Mot. at 5; Chu Mot. at 5–6. Defendants 4 contend, for example, that the claim does not state that Defendants knew or should have 5 known that Plaintiff was diabetic prior to his arrest, whereas the Complaint relies heavily 6 on the Defendants having such information. See Cty. Mot. at 5 (citing RJN Ex. A; Compl. 7 ¶¶ 31–32, 68, 72, 77); Chu Mot. at 5–6 (citing RJN Ex. A; Compl. ¶¶ 31–33, 68, 72, 77). 8 Plaintiff counters that “Plaintiff’s claim explicitly put Defendant[s] . . . on notice that [the] 9 deputies broke the law by directing violence at Plaintiff and arresting him because of his 10 diabetic hypoglycemia which made him listless and unresponsive,” which allowed the 11 County “effectively [to] investigate the incident.” Cty. Opp’n at 4 (citing RJN Ex. A); Chu 12 Opp’n at 4 (citing RJN Ex. A). 13 According to the California Supreme Court, “[t]he claim . . . need not specify each 14 particular act or omission later proven to have caused the injury,” and “[a] complaint’s 15 fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as 16 the complaint is not based on an ‘entirely different set of facts.’” Stockett, 34 Cal. 4th at 17 447 (citing Stevenson v. San Francisco Housing Auth., 24 Cal. App. 4th 269, 278 (1994); 18 Blair, 218 Cal. App. 3d at 225). “Where the complaint merely elaborates or adds further 19 detail to a claim, but is predicated on the same fundamental actions or failures to act by the 20 defendants, courts have generally found the claim fairly reflects the facts pled in the 21 complaint.” Id. (citing White, 225 Cal. App. 3d at 1510–11). In short, “[i]f the claim gives 22 adequate information for the public entity to investigate, additional detail and elaboration 23 in the complaint is permitted.” Id. at 499. 24 The Court concludes that Plaintiff’s claim fairly reflects the facts alleged in his 25 Complaint. Plaintiff’s claim emphasizes—repeatedly—that he is diabetic and that he was 26 suffering a medical emergency at the time of the incident. See generally RJN Ex. A. 27 Further, that the emergency medical technicians who responded to the diner’s 911 call 28 confirmed to Defendants Chu and McManus that Plaintiff was suffering from diabetic 1 hypoglycemia is not necessarily inconsistent with Defendants Chu and McManus inferring 2 based on Plaintiff’s symptoms and information gleaned from diner staff that Plaintiff was 3 suffering a medical emergency. In short, the facts in Plaintiff’s claim “provide[d] the 4 public entity sufficient information to enable it to adequately investigate claims and to 5 settle them, if appropriate, without the expense of litigation.” Stockett, 34 Cal. 4th at 446 6 (quoting City of San Jose, 12 Cal. 3d at 455). Because Plaintiff’s Complaint “merely 7 elaborate[s] or add[s] further detail to a claim which was predicated on the same 8 fundamental facts,” see Blair, 218 Cal. App. 3d at 226, it does not impermissibly “shift the 9 fundamental facts about h[is] injury.” See White, 225 Cal. App. 3d at 1511. 10 For all these reasons, the Court DENIES the County and Chu Motions to the extent 11 they seek dismissal of Plaintiff’s state law causes of action for failure to comply with the 12 prerequisites of California Tort Claims Act. 13 B. Sufficiency of Plaintiff’s Ralph and Bane Act Claims 14 Plaintiff alleges causes of action for violation of the Ralph and Bane Acts because 15 “DEFENDANTS used violence on and intimidated PLAINTIFF[] because of a perceived 16 disability, when without warning or justification DEFENDANTS unnecessarily and 17 unreasonably headlocked PLAINTIFF, slammed PLAINTIFF to the ground with force and 18 violence, tased PLAINTIFF, dragged PLAINTIFF out of the restaurant in handcuffs, and 19 restrained PLAINTIFF in handcuffs for at least 30 minutes.” Compl. ¶¶ 72, 85. The 20 County and Defendant Chu assert that Plaintiff has failed to state a claim under either 21 statute. See Cty. Mot. at 6–8; Chu Mot. at 6–7. 22 1. The Ralph Act 23 The Parties agree that, to plead a prima facie cause of action under the Ralph Act, 24 Plaintiff must allege that (1) the defendant threatened or committed a violent act against 25 the plaintiff, (2) the plaintiff was harmed, (3) a substantial motivating reason for the 26 defendant’s conduct was his perception that the plaintiff was a member of a protected 27 group, and (4) the defendant’s conduct was a substantial factor in causing the plaintiff’s 28 harm. Compare Cty. Mot. at 6 (citing Knapps v. City of Oakland, 647 F. Supp. 2d 1129, 1 1167–68 (N.D. Cal. 2009); Meggs v. City of Berkeley, No. C 02-0693 MHP, 2004 WL 2 3241926, at *3 n.12 (N.D. Cal. Apr. 28, 2004)); and Chu Mot. at 6–7 (citing Knapps, 647 3 F. Supp. 2d at 1167–68; Meggs, 2004 WL 3241926, at *3 n.12), with Cty. Opp’n at 4–5 4 (citing Judicial Council of California Civil Jury Instructions (“CACI”) 3063); and Chu 5 Opp’n at 4–5 (citing CACI 3063). 6 The County and Defendant Chu contend that Plaintiff fails to state a claim because 7 “the Complaint does not contain any factual allegations to support that the individual 8 deputies had a bias against persons with diabetes or that they were motivated to use 9 violence against Plaintiff because of his diabetes.” Cty. Mot. at 6–7; accord Chu Mot. at 10 7; see also ECF No. 5 (“Cty. Reply”) at 3; ECF No. 16 (“Chu Reply”) at 3. Plaintiff 11 counters that “the facts alleged in the Complaint reflect Defendants’ awareness of 12 Plaintiff’s Diabetes and hostility to the symptoms of Plaintiff’s Diabetes.” Cty. Opp’n at 13 6; Chu Opp’n at 6. 14 The Court concludes that a reasonable inference may be drawn from the facts alleged 15 in Plaintiff’s Complaint that a substantial, motivating reason for Defendants Chu’s and 16 McManus’ conduct was their perception that Plaintiff had a medical condition or disability. 17 Plaintiff alleges that “he appeared to be in medical distress,” prompting the diner’s manager 18 to call 911. Compl. ¶ 28. By the time Defendants Chu and McManus arrived at the diner, 19 they already had learned that Plaintiff “was in medical distress from a physical disability,” 20 id. ¶ 31, and they found Plaintiff “slumped over in his chair at the diner’s lunch counter.” 21 Id. ¶ 30. Plaintiff informed Defendants Chu and McManus that he “was diabetic and 22 needed some sugar,” id. ¶ 32, and he asked them whether “someone would check his blood 23 sugar.” Id. ¶ 33. Instead of providing the requested medical aid, Defendants Chu and 24 McManus “unreasonably detained and/or arrested PLAINTIFF, and used excessive and 25 unreasonable force.” Id. ¶ 34. Further, Defendants had not reasonably perceived that a 26 crime was about to be committed and Plaintiff at no time posed an immediate threat to 27 anybody’s safety. See id. ¶¶ 35, 37. 28 / / / 1 Accepting these facts as true and drawing all reasonable inferences in Plaintiff’s 2 favor—as the Court must at this stage, see Vasquez, 487 F.3d at 1249—the Court can 3 plausibly infer that Defendants acted with violence against Plaintiff because he was 4 exhibiting symptoms of a disability. See, e.g., Robinson v. Cty. of Shasta, 384 F. Supp. 3d 5 1137, 1163 (E.D. Cal. 2019) (denying defendant’s motion for summary judgment on Ralph 6 Act claim where the responding officer was presumably aware that the plaintiff suffered 7 from mental health issues, the plaintiff “exhibited symptoms of his mental health issues,” 8 and the responding officer called the plaintiff a “nut” and “tackled [the plaintiff] and hit 9 him with the pepper spray canister”). The Court therefore DENIES the County and Chu 10 Motions to the extent they seek dismissal of Plaintiff’s Ralph Act cause of action for failure 11 to state a claim. 12 2. The Bane Act 13 The County and Defendant Chu argue that Plaintiff has failed to state a prima facie 14 cause of action under the Bane Act because he has failed to allege that Defendants “had 15 ‘specific intent’ to violate his constitutional rights,” Cty. Mot. at 7 (quoting Reese v. City 16 of Sacramento, 888 F.3d 1030, 1040 (9th Cir. 2018)); Chu Mot. at 7 (quoting Reese, 888 17 F.3d at 1040), i.e., that Defendants “committed the act in question with the particular 18 purpose of depriving [Plaintiff] of his civil rights.” Cty. Mot. at 7 (emphasis in original) 19 (citing Cornell v. Cty. of San Francisco, 17 Cal. App. 4th 766, 803 (2017)); Chu Mot. at 20 7–8 (emphasis in original) (citing Cornell, 17 Cal. App. 4th at 803). Plaintiff responds that 21 “a reckless disregard for a person’s constitutional rights is evidence of a specific intent to 22 deprive that person of those rights,” Cty. Opp’n at 9 (emphasis in original) (quoting Reese, 23 888 F.3d at 1045) (citing Nehad v. Browder, 929 F.3d 1125, 1142 n.15 (9th Cir. 2019)); 24 Chu Opp’n at 9 (emphasis in original) (quoting Reese, 888 F.3d at 1045) (citing Nehad, 25 929 F.3d at 1142 n.15), and that “[t]he facts pled in the Complaint reflect, at a minimum, 26 Defendant Deputies’ reckless disregard of Plaintiff’s Fourth Amendment rights.” Cty. 27 Opp’n at 9; Chu Opp’n at 9. The County and Defendant Chu reply that “[r]eckless 28 disregard . . . is the legal equivalent of willfulness,” Cty. Reply at 4 (second alteration in 1 original) (quoting United States v. Reese, 2 F.3d 870, 881 (9th Cir. 1993)); Chu Reply at 4 2 (second alteration in original) (quoting Reese, 2 F.3d at 881), and that “Plaintiff does not 3 allege facts in the Complaint to show the deputies willfully violated his constitutional rights 4 by using force even through they knew it was unwarranted.” Cty. Reply at 4–5; accord 5 Chu Reply at 4. 6 Again, taking Plaintiff’s allegations as true and drawing all reasonable inferences in 7 his favor, the Court concludes that Plaintiff alleges a specific intent to violate his Fourth 8 Amendment rights at this early stage in the proceedings. As in Cornell, based on the 9 allegations in Plaintiff’s Complaint, the Court could “conclude[] not only that [Defendant 10 Chu] and [Defendant McManus] were unconcerned from the outset with whether there was 11 legal cause to detain or arrest [Plaintiff], but that when they realized their error, they 12 doubled-down on it, knowing they were inflicting grievous injury on their prisoner,” 13 thereby satisfying the specific intent standard. See 17 Cal. App. 5th at 804. The Court 14 therefore DENIES the County and Chu Motions to the extent they seek dismissal of 15 Plaintiff’s Bane Act cause of action for failure to state a claim. 16 THE MCMANUS MOTION 17 I. Background4 18 Plaintiff filed his Complaint on June 17, 2019. See generally Compl. On June 5, 19 2019, Defendants’ counsel emailed Plaintiff’s counsel, offering to waive service on behalf 20 of Defendants Chu and McManus if the County would be permitted to file a response to 21 Plaintiff’s Complaint on the same date as the other Defendants, approximately 60 days 22 after the County’s deadline. Decl. of Kate D. Jones (“Jones Decl.,” ECF No. 13-2) ¶ 3; 23 Decl. of Joseph M. McMullen (“McMullen Decl.,” ECF No. 15-1) ¶ 3. Plaintiff’s counsel 24 indicated that he would agree if Defendants would file an answer and no Rule 12 motions. 25
26 4 The Court properly may consider evidence outside the pleadings in resolving a motion under Rule 27 12(b)(5). Garcia v. Sheridan Fed. Corr. Inst., No. 3:18:CV-00176-HZ, 2019 WL 722565, at *2 (D. Or. 28 Feb. 20, 2019) (citing Lachick v. McMonagle, No. CIV. A. 97-7369, 1998 WL 800325, at *2 (E.D. Pa. 1 Jones Decl. ¶ 3; McMullen Decl. ¶ 4. The Parties failed to reach an agreement. Jones 2 Decl. ¶ 4; McMullen Decl. ¶ 5. 3 Plaintiff’s counsel retained R.T. Hansell of San Diego Service of Process, LLC to 4 serve Defendant McManus. See generally McMullen Decl. Ex. A, ECF No. 15-2. After 5 an unsuccessful attempt at personal service at the San Diego Sheriff Department’s 6 Encinitas Substation on July 25, 2019, see id., an employee of the Sheriff’s Department, 7 Mary Housley, accepted the summons and complaint on July 26, 2019. See id.; see also 8 McMullen Decl. ¶ 6. 9 On August 1, 2019, Defendants’ counsel informed Plaintiff’s counsel that she did 10 not believe that service on Ms. Housley constituted effective service. Jones Decl. ¶ 5; 11 McMullen Decl. ¶ 7. Defendants’ counsel again offered to waive service under Rule 4(d). 12 Jones Decl. ¶ 5; McMullen Decl. ¶ 7. Plaintiff’s counsel responded that he would agree if 13 Defendants Chu and McMullen would respond to Plaintiff’s Complaint in 21 days, rather 14 than 60. Jones Decl. ¶ 6. Again, the Parties failed to reach an agreement. See id. 15 Mr. Hansell continued attempting to effect personal service on Defendant McManus 16 at the Encinitas Substation, making six unsuccessful service attempts between August 8, 17 2019 and September 16, 2019. See McMullen Decl. ¶ 8 & Ex. A. On September 17, 2019, 18 the day after Plaintiff’s service deadline has passed, Plaintiff’s counsel emailed 19 Defendants’ counsel to request waiver of service for Defendant McManus. Jones Decl. 20 ¶ 8; McMullen Decl. ¶ 9. Defendants’ counsel responded that she would not agree to waive 21 service outside of the 90-day time limit imposed by Rule 4(m). Jones Decl. ¶ 9; McMullen 22 Decl. ¶ 9. 23 Plaintiff’s counsel then hired a private investigator, John Ballard of John Ballard 24 Investigations, who served Defendant McManus in person on September 23, 2019. 25 McMullen Decl. ¶ 10; see also ECF No. 9. Plaintiff filed his proof of service on September 26 24, 2019, see ECF No. 9, and Defendant McManus filed his Motion on October 15, 2019. 27 See generally McManus Mot. 28 / / / 1 II. Legal Standard 2 The court cannot exercise jurisdiction over a defendant without proper service of 3 process. See Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987); 4 S.E.C. v. Ross, 504 F.3d 1130, 1138–39 (9th Cir. 2007). Federal Rule of Civil Procedure 5 12(b)(5) authorizes a defendant to move for dismissal resulting from “insufficient of 6 service of process.” Fed. R. Civ. P. 12(b)(5). Once a defendant challenges service, the 7 plaintiff bears the burden of establishing the validity of service under Federal Rule of Civil 8 Procedure 4. See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). If the plaintiff is 9 unable to satisfy its burden of demonstrating effective service, a court may either dismiss 10 the action or quash service, providing the plaintiff the opportunity to serve the defendant 11 again effectively. See Stevens v. Sec. Pac. Nat’l Bank, 538 F.2d 1387, 1389 (9th Cir. 12 1976). “Where it appears that effective service can be made and there is no unfair prejudice 13 to the defendant, quashing service rather than dismissing the action, and leaving the 14 plaintiff free to effect proper service, is the appropriate course.” Wick Towing, Inc. v. 15 Northland, No. C15-1864JLR, 2016 WL 3461587, at *2 (W.D. Wash. June 21, 2016) 16 (citing Umbenhauer v. Woog, 969 F.2d 25, 30 (3d Cir. 1992)). 17 III. Analysis 18 The Parties do not contest that Plaintiff failed properly to serve Defendant McManus 19 until September 23, 2019, seven days after the expiration of Plaintiff’s 90-day deadline to 20 effect service under Rule 4(m). See ECF No. 9; see also McMullen Decl. ¶ 10; ECF No. 21 18 at 2. Defendant McManus therefore requests that the Court dismiss Plaintiff’s 22 Complaint as to him or, alternatively, quash the proof of service filed September 24, 2019, 23 and require Plaintiff to request an extension of time properly to serve Defendant McManus. 24 See ECF No. 13-1 at 1–2, 6. Plaintiff urges the Court to extend the time for service, arguing 25 that he has shown good cause for the seven-day delay and that dismissal or quashing of 26 service would only result in further delay of this litigation. See ECF No. 15 at 4. 27 “When considering a motion to dismiss a complaint for untimely service, courts 28 must determine whether good cause for the delay has been shown on a case by case 1 basis.” In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). “[A]t a minimum, ‘good cause’ 2 means excusable neglect.” Id. (quoting Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 3 1991)). “In Boudette, [the Ninth Circuit] stated that a plaintiff may be required to show 4 the following factors in order to bring the excuse to the level of good cause: ‘(a) the party 5 to be served received actual notice of the lawsuit; (b) the defendant would suffer no 6 prejudice; and (c) plaintiff would be severely prejudiced if his complaint were 7 dismissed.’” In re Sheehan, 253 F.3d at 512 (quoting Boudette, 923 F.2d at 756 (citing 8 Hart v. United States, 817 F.2d 78, 80–81 (9th Cir.1987))). 9 As for notice, Defendant McManus clearly received notice of this lawsuit. Even 10 before Plaintiff attempted service of the Complaint and summons, Defendant McManus 11 was represented by counsel. See Jones Decl. ¶¶ 2–4; McMullen Decl. ¶¶ 2–5. Mr. Hansell 12 also left a copy of the Complaint and summons with Ms. Housley at Defendant McManus’ 13 place of employment on July 26, 2019. See Jones Decl. ¶ 5; McMullen Decl. ¶ 6 & Ex. A. 14 Further, Defendant McManus nowhere contends that he did not have notice of the lawsuit 15 prior to being personally served on September 23, 2019. It therefore appears that the “core 16 function of service[,] . . . to supply notice of the pendency of a legal action, in a manner 17 and at a time that affords the defendant a fair opportunity to answer the complaint and 18 present defendants and objections,” has been served. See Henderson v. United States, 517 19 U.S. 654, 672 (1996). 20 Turning to the second factor, despite recognizing that whether Defendant McManus 21 would suffer prejudice is a consideration, see ECF No. 13-1 at 4 (citing Pioneer Inv. Servs. 22 v. Brunswick Assoc. Ltd., 507 U.S. 380, 389–92 (1993)), Defendant McManus does not 23 even attempt to make such a showing, see id. at 4–5, and likely cannot, given the minimal 24 delay in service. See, e.g., White v. Las Vegas Metro. Police Dep’t, No. 25 219CV00386GMNNJK, 2019 WL 6915947, at *2 (D. Nev. Dec. 18, 2019) (denying 26 motion to dismiss and granting extension of time nunc pro tunc where the plaintiff served 27 the defendant 29 days after expiration of the 90-day deadline). 28 / / / 1 Finally, Plaintiff—unlike Defendant McManus—may be severely prejudiced if his 2 Complaint is dismissed at this stage. The County sent Plaintiff a notice of rejection of his 3 claim on January 16, 2019. See Compl. ¶ 3. Pursuant to California Government Code 4 sections 945.6(a)(1) and 950.6(b), Plaintiff was required to initiate any suit based on his 5 rejected claim within six months, or by July 16, 2019. Although Plaintiff filed suit on 6 June 17, 2019, see generally Compl., Plaintiff’s July 16, 2019 deadline has now long 7 passed. Plaintiff may be entitled to equitable tolling, see, e.g., Addison v. California, 21 8 Cal. 3d 313, 319 (1978); see also Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191, 9 1204 (9th Cir. 2014), but there exists the possibility that Plaintiff would be unable to refile 10 suit against Defendant McManus, thereby suffering severe prejudice. 11 Weighing the minimal prejudice to Defendant McManus against the potentially 12 severe prejudice facing Plaintiff, and given that “public policy favor[s] disposition of cases 13 on their merits,” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998); see 14 also Fed. R. Civ. P. 1 (“These rules . . . should be construed, administered, and employed 15 . . . to secure the just . . . determination of every action and proceeding.”), the Court 16 concludes in its discretion that dismissal is inappropriate and that Plaintiff is entitled to an 17 extension of time within which to serve Defendant McManus. See, e.g., Bastedo v. N. 18 Rose-Wolcott Cent. Sch. Dist., No. 10-CV-6162L, 2011 WL 2110812, at *2 (W.D.N.Y. 19 May 26, 2011). The Court therefore DENIES the McManus Motion and GRANTS NUNC 20 PRO TUNC Plaintiff a fourteen-day extension of time within which to serve Defendant 21 McManus, thereby extending the service deadline to September 30, 2019. Because 22 Defendant McManus does not contest service on September 23, 2019 on any grounds other 23 than its timeliness, the Court therefore CONCLUDES that Plaintiff properly and timely 24 served Defendant McManus on September 23, 2019. 25 CONCLUSION 26 In light of the foregoing, the Court DENIES the Motions to Dismiss (ECF Nos. 3, 27 8, 13). The Court GRANTS NUNC PRO TUNC a fourteen-day extension of time within 28 which Plaintiff is to serve Defendant McManus and, therefore, CONCLUDES that 1 Plaintiff properly and timely served Defendant McManus on September 23, 2019. 2 || Accordingly, Defendants SHALL RESPOND to Plaintiff's Complaint in accordance with 3 || Federal Rule of Civil Procedure 12(a)(4)(A). 4 IT IS SO ORDERED. 5 6 || Dated: March 3, 2020 , tt 7 ja Janis L. Sammartino 3 United States District Judge
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