Christopher Dawel Gomez v. Jose De La Torre

• Court: District Court, S.D. California
• Decided: January 29, 2026
• Docket: 3:23-cv-02026
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER DAWEL GOMEZ, Case No.: 23-cv-2026-WQH-DDL

12 Plaintiff, REPORT AND 13 v. RECOMMENDATION FOR ORDER GRANTING IN PART 14 AND DENYING IN PART 15 JOSE DE LA TORRE, DEFENDANT DE LA TORRE’S Defendant. MOTION TO DISMISS 16

17 Before the Court is Defendant Jose De La Torre’s Motion to Dismiss 18 (“Motion”). Dkt. No. 88. This Report and Recommendation is submitted to United 19 States District Judge William Hayes pursuant to 28 U.S.C. § 636(b) and Civil Local 20 Rule 72.1. For the reasons stated below, the undersigned RECOMMENDS the 21 Motion be GRANTED IN PART AND DENIED IN PART. 22 I. 23 INTRODUCTION 24 Plaintiff Christopher Gomez alleges that two San Diego Sheriff’s Office 25 deputies, Defendants Emilio Gonzalez and Jose De La Torre, violated his 26 constitutional rights by using excessive force during his booking at the San Diego 27 Central Jail. Dkt. No. 49 – First Amended Complaint (“FAC”), ¶¶ 17-20. 28 Defendants Gonzalez and the County of San Diego have answered Plaintiff’s 1 Amended Complaint, but De La Torre moves to dismiss, arguing that (1) Gomez 2 did not exhaust his administrative remedies prior to bringing suit; (2) Gomez’s 3 federal claims are barred under Heck v. Humphrey, 512 U.S. 477 (1994); and 4 (3) Gomez’s state law claims must be dismissed because he failed to allege 5 compliance with the California Government Tort Claims Act. 6 The Court previously addressed and rejected identical arguments on the 7 issues of exhaustion of administrative remedies and the Heck doctrine in 8 recommending denial of a functionally identical motion to dismiss brought by 9 Gonzalez, and De La Torre’s arguments in the instant motion fail for the same 10 reasons. However, De La Torre is correct that Gomez fails to allege compliance 11 with the Government Claims Act, which compels dismissal of his state law claims. 12 II. 13 BACKGROUND 14 A. Procedural History 15 On November 1, 2023, Plaintiff (proceeding pro se) filed a civil rights 16 complaint pursuant to 42 U.S.C. § 1983 against Gonzalez and the “San Diego 17 Central Jail.” See Dkt. No. 1. Plaintiff alleged that Gonzalez engaged in “excessive 18 force [and] cruel and unusual punishment” during Plaintiff’s arrest and processing 19 on April 23, 2023, and that the “San Diego Central Jail” failed to protect him from 20 cruel and unusual punishment. On November 14, 2023, after conducting the 21 screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), the Court dismissed 22 San Diego Central Jail, finding it was not subject to suit under § 1983. Dkt. No. 3 23 at 5. However, the Court found Plaintiff’s allegations against Gonzalez were 24 sufficient to meet the “low threshold” for proceeding. Id. at 7. 25 On April 26, 2024, Gonzalez moved to dismiss the Complaint, arguing that 26 Plaintiff failed to exhaust his administrative remedies, the Heck doctrine bars his 27 claims, and he failed to allege sufficient facts to state an excessive force theory of 28 liability under § 1983. Dkt. No. 11. Plaintiff opposed the motion. Dkt. No. 21. On 1 November 6, 2024, the Court issued a Report and Recommendation (“R&R”) 2 recommending denial of the motion to dismiss. Specifically, the R&R concluded 3 that (1) the issue of whether Plaintiff exhausted his administrative remedies could 4 not be decided on a motion to dismiss, (2) whether the Heck doctrine bars Plaintiff’s 5 § 1983 claims could not be resolved on the current record, and (3) Plaintiff’s 6 Complaint stated a claim for the use of excessive force. Dkt. No. 25. Thereafter, 7 District Judge Hayes adopted the R&R in full and denied the motion to dismiss. 8 Dkt. No. 30. 9 Plaintiff filed his FAC on June 6, 2025. Dkt. No. 49. The FAC asserts claims 10 against Gonzalez, De La Torre, the County of San Diego and the San Diego 11 County Sheriff’s Department as follows: 12 Cause of Action Defendants 13 First Cause of Action Gonzalez, De La Torre, and “County 14 “Violation of Civil Rights Causing of San Diego dba San Diego County 15 Injury” Sheriff’s Department” 16 Second Cause of Action County of San Diego and San Diego 17 “Failure to Supervise Causing County Sheriff’s Department 18 Constitutional Violation” 19 Third Cause of Action County of San Diego and San Diego 20 “Violation of [§ 1983] For County Sheriff’s Department 21 Custom and Practice (Monell)” 22 Fourth Cause of Action Gonzalez, De La Torre, County of 23 Negligence San Diego, and San Diego County 24 Sheriff’s Department 25 Fifth Cause of Action Gonzalez and De La Torre 26 Battery 27 28 1 B. Factual Allegations 2 Plaintiff alleges he was “involved in a car collision” on April 18, 2023. FAC 3 ¶ 17. He was “taken into custody by San Diego Police officers and transported to 4 San Diego County Jail.” Id., ¶ 18. At the San Diego Central Jail, Gonzalez and 5 De La Torre “use[d] force that rendered Plaintiff unconscious and to suffer physical, 6 mental and emotional injuries.” Id., ¶ 19. Specifically, Plaintiff alleges that 7 Gonzalez and De La Torre (1) grabbed his finger in a painful manner, (2) berated 8 and taunted him, (3) punched him in the face, (4) threw him to the ground, 9 (5) placed their body weight on his back and tied his legs down while applying a 10 choke hold, and (6) placed a “spit sock” over his head. Id., ¶ 20. 11 III. 12 LEGAL STANDARDS 13 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) 14 “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th 15 Cir. 2001).1 To survive a motion to dismiss, a complaint must plead “enough facts 16 to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 17 550 U.S. 544, 570 (2007); Fed. R. Civ. P. 12(b)(6). The court must “accept all 18 allegations of material fact in the complaint as true and construe them in the light 19 most favorable to the non-moving party,” Cedars-Sinai Med. Ctr. v. Nat’l League 20 of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007), but need not “accept as 21 true allegations that are merely conclusory, unwarranted deductions of fact, or 22 unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F. 3d 1049, 1055 (9th 23 Cir. 2008). “[F]or a complaint to survive a motion to dismiss, the non-conclusory 24 factual content, and reasonable inferences from that content, must be plausibly 25 suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 26 27 1 Unless otherwise noted, all internal quotations marks, ellipses, brackets, 28 1 F.3d 962, 969 (9th Cir. 2009). 2 IV. 3 DISCUSSION 4 A. Consideration of Matters Outside the Complaint 5 De La Torre submits documents outside of the pleadings with his motion. 6 “Generally, district courts may not consider material outside the pleadings when 7 assessing the sufficiency of a complaint[.]” Khoja v. Orexigen Therapeutics, Inc., 8 899 F.3d 988, 998 (9th Cir. 2018). “A court may take judicial notice of matters of 9 public record without converting a motion to dismiss into a motion for summary 10 judgment . . . [b]ut a court cannot take judicial notice of disputed facts contained in 11 such public records.” Id. at 999. 12 De La Torre requests the Court take judicial notice of a document titled 13 “Notice of Returned Claim,” issued by the Office of County Counsel Claims and 14 Investigation Division to Plaintiff on January 2, 2024; three records from The 15 People of the State of California v. Christopher Gomez, San Diego Superior Court 16 case number CD298705; and portions of Plaintiff’s deposition transcript in this 17 matter. Dkt. Nos. 88-3, 88-4, 88-5, 88-6 and 88-7. Plaintiff’s opposition does not 18 address the request for judicial notice. 19 Pursuant to Federal Rule of Evidence 201, the Court may take judicial notice 20 of facts “generally known within [its] territorial jurisdiction” or that “can be accurately 21 and readily determined from sources whose accuracy cannot reasonably be 22 questioned.” Fed. R. Evid. 201(b)(1) and (2). The Court may take judicial notice 23 of “court filings and other matters of public record.” Reyn's Pasta Bella, LLC v. 24 Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir.2006). 25 The Court takes judicial notice of the Notice of Returned Claim form as a 26 public record that is “not subject to reasonable dispute.” Reid v. City of Oakland, 27 No. 25-CV-00383-JST, 2025 WL 2172721, at *3 (N.D. Cal. July 31, 2025) (taking 28 judicial notice of claim form). See Est. of Upton v. Cnty. of Riverside, No. EDCV 1 23-2655 JGB (SHKX), 2024 WL 4403899, at *2 (C.D. Cal. Aug. 26, 2024) (taking 2 judicial notice of “Notice of Returned Claim” form). 3 The Court also takes judicial notice of the records from Plaintiff’s Superior 4 Court criminal case. See Gonzales v. City of Los Angeles, No. 5 220CV03519JGBMAA, 2021 WL 4442409, at *3 (C.D. Cal. Mar. 10, 2021), report 6 and recommendation adopted, No. 220CV03519JGBMAA, 2021 WL 4434341 7 (C.D. Cal. May 27, 2021) (taking judicial notice of court document as “a public 8 record that is not subject to reasonable dispute,” and collecting cases). These 9 documents are relevant to the Court’s disposition of De La Torre’s argument that 10 the Heck doctrine bars Plaintiff’s claims. For these reasons, the Court takes 11 judicial notice of the charges brought against Plaintiff, his subsequent guilty plea 12 to two of those counts, and his resulting sentence and incarceration, as reflected 13 in the Superior Court documents. 14 The Court declines to take judicial notice of Plaintiff’s deposition transcript. 15 “Courts in this circuit have denied requests for judicial notice of deposition 16 transcripts pursuant to Federal Rule of Evidence 201(b)(2).” Hinrichsen v. Bank 17 of Am., N.A., No. 17CV219-DMS(RBB), 2018 WL 11649570, at *3 (S.D. Cal. June 18 5, 2018) (collecting cases). De La Torre provides no contrary authority that would 19 support taking judicial notice of Plaintiff’s deposition testimony. 20 B. De La Torre’s Arguments 21 As noted above, De La Torre’s arguments that Plaintiff failed to exhaust his 22 administrative remedies and that the Heck doctrine bars Plaintiff’s federal claims 23 are identical to the arguments previously raised by Gonzalez in a prior motion to 24 dismiss. Accordingly, the analysis of those arguments below mirrors the prior 25 R&R’s discussion of Gonzalez’s motion, and the Court recommends denial of De 26 La Torre’s motion on these grounds for the same reasons set forth in the R&R. 27 / / / 28 / / / 1 1. Exhaustion of administrative remedies 2 In his original Complaint, Plaintiff responded “No” to the question whether he 3 had “previously sought and exhausted all forms of available relief from the proper 4 administrative officials” regarding the acts alleged in the Complaint. Dkt. No. 1 at 5 6. As best the Court can tell, the FAC does not address exhaustion of 6 administrative remedies. 7 De La Torre asserts the FAC is subject to dismissal because Plaintiff “admits 8 in his pleadings that he failed to exhaust all forms of available administrative relief.” 9 Dkt. No. 88-1 at 6. Plaintiff responds that the Court already addressed this issue 10 in denying Gonzalez’s motion. He further contends “the FAC adds allegations 11 explaining Plaintiff’s incarceration status, limited access, and reasonable belief 12 that grievance procedures were unavailable or ineffective,” although he fails to cite 13 the relevant FAC paragraphs that he contends contain this information. Dkt. No. 14 92 at 4. 15 a Legal standards 16 An inmate bringing a § 1983 action must exhaust “such administrative 17 remedies as are available” before filing suit in federal court. 42 U.S.C. §1997e(a). 18 This requirement “give[s] an agency the opportunity to correct its own mistakes 19 before being dragged into federal court” and “promote[s] greater efficiency and 20 economy in resolving claims.” McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 21 2015). Exhaustion of available remedies “is mandatory,” but a prisoner’s “failure 22 to exhaust a remedy that is effectively unavailable does not bar a claim from being 23 heard in federal court.” Soto v. Sweetman, 882 F.3d 865, 869-70 (9th Cir. 2018). 24 Failure to exhaust is an affirmative defense for which the defendant bears 25 the burden of proof. Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc). 26 To prevail, the defendant must show “there was an available administrative remedy 27 [the plaintiff] did not exhaust.” Eaton v. Blewett, 50 F.4th 1240, 1246 (9th Cir. 28 2022). In “rare cases,” a prisoner’s failure to exhaust may be “clear from the face 1 of the complaint,” and the defendant may “successfully move under Rule 12(b)(6) 2 for failure to state a claim.” Albino, 747 F.3d at 1169. To grant a motion to dismiss 3 on the basis of a prisoner’s failure to exhaust, the district court must “be able to 4 conclude from the face of the complaint that a prisoner has not exhausted his 5 administrative remedies and that he is without valid excuse.” Id. (quoting Aquilar- 6 Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007)). 7 b. Application 8 That Plaintiff did not pursue an administrative grievance is undisputed: he 9 indicated on his form Complaint he had not “sought and exhausted all forms of 10 available relief from the proper administrative officials regarding” the allegations in 11 his complaint. Dkt. No. 1 at 6. Bearing in mind that “Rule 8 does not require 12 plaintiffs to plead around affirmative defenses,” see U.S. Commodity Futures 13 Trading Comm’n v. Monex Credit Co., 931 F.3d 966, 972 (9th Cir. 2019), the Court 14 does not find Plaintiff’s check-the-box response is a sufficient basis upon which to 15 find conclusively that Plaintiff failed to exhaust his available administrative 16 remedies “without valid excuse.” Albino, 747 F.3d at 1169. 17 The record is devoid of any information regarding the administrative 18 remedies available to Plaintiff, the grievance procedures by which Plaintiff could or 19 should have pursued those remedies, or whether any failure to follow the 20 applicable procedures should be excused, either because of a sincerely held and 21 objectively reasonable fear of retaliation or another reason. Because there is a 22 “need for further factual development” on the issue of exhaustion, dismissal is 23 inappropriate. See McBride, 807 F.3d at 985. 24 Accordingly, the undersigned RECOMMENDS De La Torre’s Motion for 25 dismissal on this basis be DENIED without prejudice to raising the issue in a 26 27 28 1 subsequent summary judgment motion, on a more developed record. 2 2. The Heck Doctrine 3 De La Torre argues that since Plaintiff pled guilty to “resisting arrest through 4 force or violence” in violation of California Penal Code § 69, he is “now barred from 5 bringing § 1983 claims for malicious prosecution, false arrest and excessive use 6 of force” under Heck. Dkt. No. 88-1 at 8. Plaintiff responds the Court “fully 7 considered and rejected” this argument in denying Gonzalez’s motion to dismiss. 8 Dkt. No. 92 at 4. Plaintiff is correct. 9 a. Legal standards 10 In Heck, the Supreme Court held: 11 [W]hen a state prisoner seeks damages in a § 1983 suit, the district 12 court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, 13 the complaint must be dismissed unless the plaintiff can demonstrate 14 that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff’s action, even if successful, 15 will not demonstrate the invalidity of any outstanding criminal judgment 16 against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit. 17 18 512 U.S. at 487 (emphasis in original). Heck’s prohibition applies to convictions 19 resulting from a guilty plea. See Martell v. Cole, 115 F. 4th 1233, 1236 (9th Cir. 20 2024). 21 22 23 2 The Court is aware of the Ninth Circuit’s directive that “exhaustion should be 24 decided, if feasible, before reaching the merits of a prisoner’s claim.” Albino, 747 25 F.3d at 1170. If the District Court accepts this Report and Recommendation and the case proceeds, the undersigned will consider any reasonable proposal to 26 bifurcate discovery or otherwise expedite resolution of the issue of exhaustion. 27 See id. (“If discovery is appropriate, the district court may in its discretion limit discovery to evidence concerning exhaustion, leaving until later . . . discovery 28 1 The Heck court’s holding flows from the principle that a prisoner’s challenge 2 to the fact or duration of their confinement is at “the core of habeas corpus,” which 3 provides the “exclusive remedy” for unconstitutional imprisonment. Preiser v. 4 Rodriguez, 411 U.S. 475, 487-89 (further noting the appellant’s counsel “conceded 5 . . . a state prisoner challenging his underlying conviction and sentence on federal 6 constitutional grounds in a federal court is limited to habeas corpus”); accord 7 McDonough v. Smith, 588 U.S. 109, 118 n.6 (2019) (noting “Congress has 8 determined that a petition for writ of habeas corpus, not a § 1983 action, is the 9 appropriate remedy for state prisoners attacking the . . . fact or length of their 10 confinement”). 11 b. Application 12 De La Torre is correct that Plaintiff pled guilty to violating Penal Code § 69, 13 resisting an executive officer. A necessary element of that offense is that the 14 officer was performing “duty imposed . . . by law,” which necessarily means the 15 officer was using lawful force. See Cal. Penal Code § 69 (West 2016); see also 16 Winder v. McMahon, 345 F. Supp. 3d 1197, 1201 (C.D. Cal. 2018) (noting “an 17 element of a charge for resisting arrest (under either Penal Code § 148 or 18 § 69) is that the officer defendants acted properly, without the use of excessive 19 force”); Sanders v. City of Pittsburg, 14 F.4th 968, 971 (9th Cir. 2021) (finding 20 under similar statute “[t]he use of excessive force by an officer is not within the 21 performance of the officer’s duty”). 22 However, the Ninth Circuit holds that “[e]xcessive force used after an arrest 23 is made does not destroy the lawfulness of the arrest.” Sanford v. Motts, 258 F.3d 24 1117, 1120 (9th Cir. 2001). “Hence, if [De La Torre] used excessive force 25 subsequent to the time [Plaintiff] interfered with his duty, success in [Plaintiff’s] 26 27 28 1 section 1983 claim will not invalidate [his] conviction[, and] Heck is no bar.” Id. 2 As one court explained, “a plaintiff alleging excessive force does not collaterally 3 attack his conviction or deny that he resisted[, but] [r]ather . . . claims that he 4 suffered unnecessary injuries because the response to his resistance was not 5 objectively reasonable.” Hooper, 629 F.3d at 1133 (quoting VanGilder v. Baker, 6 435 F.3d 689, 692 (7th Cir. 2006)). 7 Therefore, to determine whether Heck bars Plaintiff’s excessive force claim, 8 the Court must look to the factual basis for Plaintiff’s guilty plea. See Martell, 115 9 F.4th at 1236 (“When the conviction is based on a guilty plea, we look at the record 10 to see which acts formed the basis for the plea.”). Neither the charging documents 11 nor the record of Plaintiff’s plea provide enough information for the Court to answer 12 the “question [of] whether the specific act for which the plaintiff was convicted was 13 resistance to the particular use of force the plaintiff alleges was unlawful.” Id. at 14 1238. The charging document merely recites the elements of the charge. Dkt. No. 15 88-4 at 3. Plaintiff’s guilty plea recites as follows: “I admit that on the dates 16 charged, I . . . unlawfully by means of threats and violence, attempted to deter an 17 executive officer from performing a duty imposed by law in the performance of his 18 duties in viol[ation] [of] P[enal] C[ode] [§] 69.” Dkt. No. 88-5 at 5. This factual basis 19

20 21 3 See also Sanders, 14 F.4th at 971 (finding Heck would not bar claim for excessive force “if the alleged excessive force occurred before or after the acts 22 that form the basis of the [conviction], even if part of one continuous transaction”) 23 (emphasis in original); Beets v. County of Los Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012) (“[A]n allegation of excessive force by a police officer would not be 24 barred by Heck if it were distinct temporally or spatially from the factual basis for 25 the person's conviction.”); Winder, 345 F. Supp. 3d at 1202 (finding a conviction under Penal Code § 69 “can be valid even if, during a single continuous chain of 26 events, some of the officer’s conduct was unlawful, because the conviction itself 27 requires only that some lawful police conduct was resisted, delayed, or obstructed during that continuous chain of events”) (citing Hooper v. Cnty. of San Diego, 629 28 1 does not identify the act upon which his conviction for violating Penal Code § 69 2 rests. 3 In sum, it is not clear from this record which act or acts of resistance form 4 the basis of Plaintiff’s guilty plea, where those acts fall in the timeline of events on 5 April 18, 2023, and – importantly – whether those acts can be divided temporally 6 or otherwise from Defendant’s alleged use of excessive force (which itself appears 7 to consist of two distinct and possibly divisible acts).4 Because “the record is silent 8 about which one (or more) of [Plaintiff’s] resisting or obstructing acts was (or were) 9 the factual predicate of his guilty plea,” the Court cannot conclude that Defendant 10 used excessive force “would necessarily imply the invalidity of [Plaintiff’s] 11 conviction.” See Martell, 115 F.4th at 1239; see also Winder, 345 F.Supp.3d at 12 1204-05 (contrasting Heck analysis at summary judgment where the record 13 included the “factual basis” for the plaintiff’s no contest plea with a motion to 14 dismiss, where all allegations must be taken as true, and it was “possible to 15 construe [Plaintiff’s] plea as consistent with the facts alleged in his complaint”). 16 The Court finds the current record is insufficient to support a finding that Heck bars 17 Plaintiff’s excessive force claim. 18 Accordingly, the undersigned RECOMMENDS Defendant’s motion for 19 dismissal on this basis be DENIED without prejudice to raising the issue at 20 summary judgment, on a more developed record. 21 3. Government Claims Act 22 De La Torre asserts Plaintiff’s negligence and battery claims must be 23 dismissed because Plaintiff failed to comply with the Government Claims Act, 24 which sets forth predicate requirements for bringing state-law claims against a 25

26 27 4 Indeed, although it appears undisputed based on Plaintiff’s allegations, it is not even clear from the charging documents and guilty plea which officer’s lawful 28 1 public entity or employee. See Cal. Gov. Code §§ 900 et seq. Plaintiff’s opposition 2 correctly notes that, as explained in the R&R, the Government Claims Act is 3 inapplicable to his federal claims under § 1983. See, e.g., Stone v. City and Cnty. 4 of San Francisco, 735 F. Supp. 340, 345 (N.D. Cal. 1990) (“a claimant need not 5 comply with California tort claim requirements prior to filing a section 1983 action”). 6 But Plaintiff fails to acknowledge that while his original Complaint alleged only 7 § 1983 claims, the FAC alleges state law claims for negligence and battery as to 8 which the California Government Claims Act applies. 9 “In order to bring suit for damages against a public entity, the California 10 Government Claims Act requires that a plaintiff give notice to the public entity with 11 written claims and that the public entity reject those claims.” Martinez v. Cnty. of 12 Riverside, No. EDCV222144JGBSHKX, 2023 WL 4680791, at *3 (C.D. Cal. June 13 8, 2023). Compliance with the statute is a “condition precedent” to the plaintiff’s 14 ability to maintain an action against a public or employee and thus is “an integral 15 part of [the] plaintiff’s cause of action.” Id. Because compliance is “an actual 16 element of the plaintiff's cause of action,” the plaintiff’s complaint “must allege facts 17 demonstrating or excusing compliance with the claim presentation requirement.” 18 McDaniel v. Diaz, No. 120CV00856NONESAB, 2020 WL 7425348, at *28 (E.D. 19 Cal. Dec. 18, 2020), amended, No. 120CV00856NONESAB, 2021 WL 39656 (E.D. 20 Cal. Jan. 5, 2021) (dismissing state law claims for failure to allege compliance with 21 Government Claims Act). 22 The County asserts that Plaintiff’s FAC fails to plead compliance with the 23 Government Claims Act, and the Court takes judicial notice of the Notice of 24 Returned Claim form. Plaintiff’s opposition does not respond to this argument, and 25 the FAC does not allege any facts demonstrating or excusing compliance with the 26 Act’s claim presentation requirement. The FAC’s failure to include such allegations 27 compels dismissal of Plaintiff’s negligence and battery claims. Martinez, 2023 WL 28 4680791, at *3. Because Plaintiff may be able to plead compliance with the Act, 1 || the Court recommends that dismissal be with leave to amend. /d. 2 Accordingly, the undersigned RECOMMENDS De La Torre’s motion to 3 ||dismiss Plaintiffs fourth cause of action (negligence) and fifth cause of action 4 || (battery) be GRANTED WITH LEAVE TO AMEND. 5 V. 6 CONCLUSION 7 For the reasons set forth above, the undersigned RECOMMENDS that the 8 || District Judge issue an Order: 9 1. Approving and adopting this Report and Recommendation in its entirety; 10 2. Denying De La Torre’s Motion to Dismiss Plaintiff's first cause of action; 11 3. Granting De La Torre’s Motion to Dismiss Plaintiff's fourth and fifth causes 12 of action with leave to amend; and 13 4. Directing Plaintiff to either file a Second Amended Complaint or elect to 14 stand on the First Amended Complaint. 15 IT IS HEREBY ORDERED that any objections to this Report and 16 || Recommendation must be filed by not later than February 5, 2026. Any response 17 ||to a party’s objections must be filed by not later than February 12, 2026. Failure 18 timely file objections may waive the right to raise those objections on appeal. 19 || See Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007). 20 || IT IS SO ORDERED. 21 || Dated: January 29, 2026 ait 22 Tb Lh, 23 ‘Hon. DavidD.LeshnerSCS™S 24 United States Magistrate Judge 25 26 27 28