Elizabeth Cruz and Hilarino Aparicio v. City of San Diego, California, a Municipal Corporation; et al.

• Court: District Court, S.D. California
• Decided: January 30, 2026
• Docket: 3:24-cv-00287
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELIZABETH CRUZ and HILARINO Case No.: 24-cv-00287-AJB-MSB APARICIO, 12 ORDER GRANTING IN PART AND Plaintiffs, DENYING IN PART DEFENDANTS’ 13 v. MOTIONS TO DISMISS AND TO CITY OF SAN DIEGO, CALIFORNIA, a 14 STRIKE Municipal Corporation; et al.,

15 Defendants. (Doc. No. 36) 16

17 18 Presently before the Court is Defendants City of San Diego (the “City”), Chief David 19 Nisleit, Sergeant Matthew Ruggiero, Officer Jeremy Avalos, and Officer Jonah Tafoya’s 20 (collectively, “Defendants”) motion to dismiss Plaintiffs Elizabeth Cruz and Hilarino 21 Aparicio’s (collectively, “Plaintiffs”) Second Amended Complaint (“SAC”), pursuant to 22 Rule 12(b)(6) of the Federal Rules of Civil Procedure.1 (Doc. No. 36.) Defendants also 23 seek to strike portions of Plaintiffs’ SAC which they allege are impertinent, immaterial, 24 and scandalous under Rule 12(f). (Id.) For the reasons stated herein, the Court GRANTS 25 in part and DENIES in part Defendants’ motions to dismiss and to strike. 26

27 1 All future references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless 28 1 I. BACKGROUND 2 This action arises out of the death of Imanol Aparicio (“Decedent”) who was shot 3 by on-duty police officers on or about November 13, 2023. (SAC, Doc. No. 35, ¶¶ 3, 12.) 4 Plaintiffs allege that when police officers encountered Decedent, he ran from the police to 5 evade arrest. (Id. ¶ 33.) In response, Police Officers fired numerous gunshots at Decedent. 6 (Id. ¶ 13.) After Decedent was shot with the first bullet, he was incapacitated. (Id. ¶ 30.) 7 Even after the officers saw that Defendant was laying prone and incapacitated, they 8 continued to fire shots into his body. (Id. ¶¶ 13, 16.) 9 Plaintiffs further allege that Decedent suffered a serious head injury several years 10 prior, which may have caused brain damage. (Id. ¶ 33.) At the time of the incident, 11 Defendants were aware of Decedent’s identity and special needs. (Id.) Plaintiffs allege the 12 officers did not announce themselves as police prior to the fatal shooting, and did not give 13 an adequate verbal warning that deadly force would be used. (Id. ¶ 29.) Plaintiffs further 14 allege that no gun was pointed at police. (Id. ¶ 33.) 15 Finally, Plaintiffs allege that Defendants City of San Diego, Police Chief David 16 Nesleit, and Does 1–3 trained police for “combat shooting,” wherein police are trained to 17 “empty” their gun instead of first employing non-lethal methods. (Id. ¶ 18.) This policy 18 requires officers to continue shooting a suspect, even after the suspect is incapacitated. (Id.) 19 Defendants City of San Diego, Police Chief David Nesleit, and Does 1–3 were aware that 20 California congressional hearings found such a policy and practice to result in excessive 21 force and death and that, as a result of such findings, California amended state laws to 22 direct use of non-lethal force as a preference to lethal force. (Id. ¶¶ 48, 59.) Despite being 23 aware of these findings and directives, Defendants continued to implement and train 24 officers to implement the policy preferring lethal force, including the policy of emptying 25 firearms into incapacitated suspects. (Id.) 26 Plaintiffs now bring this 42 U.S.C. § 1983 case, along with state law claims. Plaintiff 27 Elizabeth Cruz, the mother of Decedent, sues individually and in her representative 28 capacity on behalf of Decedent. (Id. ¶ 4) Additionally, Plaintiff Hilarino Aparicio, 1 Decedent’s father, sues individually and in his representative capacity. (Id. ¶ 5.) Based on 2 the allegations, Plaintiffs bring the same eight causes of action against Defendants as raised 3 in the First Amended Complaint. (See generally id.) 4 Defendants move to dismiss all of Plaintiffs’ claims pursuant to Rule 12(b)(6) and 5 to strike certain allegations pursuant to Rule 12(f). (See generally Doc. No. 36.) 6 II. REQUEST FOR JUDICIAL NOTICE 7 Defendants request the Court take judicial notice of specific allegations within 8 Plaintiffs’ initial complaint and First Amended Complaint (“FAC”), recasting the 9 allegations as “admissions” by Plaintiffs. (Doc. Nos. 36-2 at 1-2 (request for judicial 10 notice); 36-2 at 3–24 (Initial Complaint); 36-2 at 34–54 (First Amended Complaint).) 11 A court may take judicial notice of court filings. Reyn’s Pasta Bella, LLC v. Visa 12 USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). “However, while the authenticity and 13 existence of a particular order, motion, pleading or judicial proceeding, which is a matter 14 of public record, is judicially noticeable, veracity and validity of its contents are not.” 15 Esparza v. Kohl’s, Inc., 723 F. Supp. 3d 934, 940 (S.D. Cal. 2024) (internal punctuation 16 and citation omitted). 17 The Court does not consider allegations in previous complaints, which have been 18 amended, as admissions of facts. See Ramirez v. Cnty. Of San Bernardino, 806 F.3d 1002, 19 1008 (9th Cir. 2015) (“It is well-established in our circuit that an amended complaint 20 supersedes the original, the latter being treated thereafter as non-existent.”) (quotations 21 omitted). Accordingly, with the limitation above in mind, the Court GRANTS Defendants’ 22 request (Doc. No. 36-2.) pursuant to Rule 201(c)(2) of the Federal Rules of Evidence and 23 takes judicial notice of Plaintiffs’ initial Complaint (36-2 at 3-24.) and First Amended 24 Complaint (Doc. Nos. 36–2 at 34–54.) for the limited purpose of identifying that these 25 filings and the allegations therein exist. 26 III. MOTION TO DISMISS PURSUANT TO RULE 12(b)(6) 27 Defendants seek to dismiss Plaintiffs’ SAC against all Defendants pursuant to Rule 28 12(b)(6) for numerous alleged deficiencies. 1 A. Legal Standard 2 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings 3 and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state 4 a claim upon which relief may be granted. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 5 2001). The court may dismiss a complaint as a matter of law for: “(1) lack of a cognizable 6 legal theory or (2) insufficient facts under a cognizable legal claim.” SmileCare Dental 7 Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). To 8 defeat a motion to dismiss, a complaint must contain “enough facts to state a claim to relief 9 that is plausible on its face.” Twombly, 550 U.S. at 570. However, “some threshold of 10 plausibility must be crossed at the outset” before a case can move forward. Id. at 588 11 (internal quotations and alterations omitted). 12 Notwithstanding this deference, the reviewing court need not accept legal 13 conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, “[w]hen there 14 are well-pleaded factual allegations, a court should assume their veracity and then 15 determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 16 679. The court only reviews the contents of the second amended complaint, accepting all 17 factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving 18 party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). “In sum, for a complaint to 19 survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences 20 from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” 21 Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations and citation 22 omitted). 23 B. Analysis 24 The Court will address each of Defendants’ arguments for dismissal in turn. 25 1. Defendants’ Reliance on Plaintiffs’ FAC 26 As an initial matter, Defendants rely heavily on allegations found within Plaintiffs’ 27 FAC which are not present in the SAC. (See generally Doc. No. 36-1.) This is improper. 28 See Ramirez, 806 F.3d at 1008 (“It is well-established in our circuit that an amended 1 complaint supersedes the original, the latter being treated thereafter as non-existent.”). 2 Defendants argue that “[a] prior pleading is admissible against the pleader as an 3 admission” and thus the Court should consider allegations in Plaintiffs’ FAC that do not 4 exist in Plaintiffs’ SAC. (Doc. Nos. 36-1 at 11; 36-2 at 2 (citing on Andrews v. Metro N. 5 Commuter R. Co., 882 F.2d 705 (2d Cir. 1989)).) Defendants’ sole basis for this proposition 6 is a lone Second Circuit case. The Court agrees with Plaintiffs that Defendants’ reliance is 7 misplaced. (See Doc. No. 38 at 5.) In addition to being non-binding on this Court, Andrews 8 is unpersuasive in the motion to dismiss context as it addresses the propriety of a district 9 court’s refusal to permit jurors to (1) be informed that the original complaint was amended 10 and (2) examine the original complaint so that they could contrast it with the amended 11 complaint. See Andrews, 882 F.2d at 707. 12 Regardless of Andrews, the Ninth Circuit has also held that “a statement in a 13 complaint may serve as a judicial admission” at later stages of litigation. See Sicor Ltd. v. 14 Cetus Corp., 51 F.3d 848, 859 (9th Cir. 1995) (considering an appeal of summary 15 judgment). Defendants point to no authority, however, that extends this proposition so far 16 afield as to undermine the standard for adjudicating Rule 12(b)(6) motions. In fact, “there 17 is nothing in the Federal Rules of Civil Procedure to prevent a party from filing successive 18 pleadings that make inconsistent or even contradictory allegations.” PAE Gov’t Servs., Inc. 19 v. MPRI, Inc., 514 F.3d 856, 860 (9th Cir. 2007); see also Shirley v. Univ. of Idaho, Coll. 20 of L., 800 F.3d 1193, 1194 (9th Cir. 2015) (Kozinski, J., concurring) (“Inconsistency— 21 even direct contradiction—between a current complaint and an earlier one is not a basis for 22 dismissal. The fact that the earlier complaint is inconsistent may have collateral 23 consequences in the litigation, including possible sanctions under Rule 11 or undermining 24 the plaintiff’s credibility, but it does not render the current complaint legally insufficient 25 under Rule 12(b).”) (citations omitted). 26 Although the Court has taken judicial notice of the existence of Plaintiffs’ prior 27 complaints, the factual allegations therein will not be considered in adjudicating the instant 28 motion. See Salvato v. Ocwen Loan Servicing, LLC, No. 12-CV-0088 JLS POR, 2012 WL 1 3018051, at *4 (S.D. Cal. July 24, 2012) (“By striking or discounting the factual allegations 2 contained in a pleading because they contradict an earlier version, courts would be 3 improperly adjudicating a claim on the merits.”).2 4 2. Claims Against Officer Defendants 5 Once again, Defendants seek wholesale dismissal of all claims against Sergeant 6 Ruggiero and Officers Avalos and Tafoya (collectively, “Officer Defendants”) on the basis 7 that Plaintiffs fail to allege any actions taken by Officer Defendants. (Doc. No. 36-1 at 9– 8 10, 14–15.) Plaintiffs bring the excessive force, denial of due process, two wrongful death 9 claims, and violation of the Bane Act. (Id. at 9–10.) 10 Plaintiffs respond that “[t]his argument was previously rejected by the Court” so 11 “Defendant is precluded from rearguing the issue.” (Doc. No. 38 5–6.) However, “[t]he 12 law of the case doctrine does not apply here.” Askins v. U.S. Dep’t of Homeland Sec., 899 13 F.3d 1035, 1043 (9th Cir. 2018). “[I]nvoking the law of the case doctrine [on a motion to 14 dismiss would] . . . h[o]ld plaintiffs to a higher standard than if they had pleaded their 15 amended complaint originally.” Id. Rather, the Court must “simply . . . consider[] the 16 amended complaint on its merits.”3 Id. 17 Considering the substance of Defendants’ argument, Plaintiffs’ SAC states “the 18 decedent was shot by on-duty Police Officer Defendants above named,” “above named 19 Police Defendants fired numerous gunshots at Decedent IMANOL APARICIO, including 20 two shots after he was already down on the ground,” “above named Police Defendants 21 should have employed non-lethal methods first,” Decedent “posed no immediate threat of 22 death or serious injury to Defendant Police Officers above named,” “[a]bove named 23 Defendant Police did not show a reverence for human life, or the constitution or individual 24 25 2 Plaintiffs provide an explanation for the omitted allegations (Doc. No. 38 at 4–5), which 26 Defendants vehemently oppose (Doc. No. 39 at 2). As Defendants provide no sound legal basis for the Court to consider allegations outside the SAC on a motion to dismiss, the Court need not wade into the 27 dispute further at this stage of litigation and on the motion currently before it. 3 In addition to being legally unsound, Plaintiffs’ law-of-the-case argument is logically 28 1 rights of Decedent to life and liberty,” “above-named police officers were acting on the 2 supposed and actual permission and consent of Defendant City of San Diego,” and “[t]he 3 conduct of all named police Defendants and DOES 1–10 was willful, wanton, malicious, 4 and done with reckless disregard.” (SAC ¶¶ 7, 12–15, 31, 42.) 5 While still not a model of clarity, Defendants and the Court may infer as to who 6 Plaintiffs refer. Additionally, the wholesale dismissal of all claims against Sergeant 7 Ruggiero and Officers Avalos and Tafoya is premature at this stage. Accordingly, 8 Defendants’ motion to dismiss is DENIED to the extent it seeks wholesale dismissal of all 9 claims against Officer Defendants. 10 3. Excessive Force Claim 11 Plaintiffs’ first cause of action is an excessive force claim brought on behalf of 12 Decedent, as successors in interest to Decedent’s estate, against all Defendants. (SAC 13 ¶¶ 23–36.) Defendants raise several bases as to why the Court should dismiss Plaintiffs’ 14 excessive force claim. Specifically, Defendants assert Plaintiffs fail to plead sufficient facts 15 to state a claim because Plaintiffs make no allegations of conduct by Defendant Officers, 16 Plaintiffs rely on conclusory statements only, and Plaintiffs’ claim against Chief Nisleit 17 and the City are duplicative of their Monell4 claims.5 (Doc. No. 36-1 at 9–13.) 18 i. Failure to State a Claim Against Defendant Officers 19 “Allegations of excessive force during an investigatory stop or arrest of a free citizen 20 are examined under the Fourth Amendment’s prohibition against unreasonable seizures.” 21 Villanueva v. California, 986 F.3d 1158, 1169 (9th Cir. 2021). “At th[e motion to dismiss] 22 stage, our question is whether the officers employed an ‘objectively unreasonable’ amount 23

24 25 4 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1987). 5 The Court disagrees with Defendants’ characterization that Plaintiffs are pleading a Monell claim 26 against Chief Nisleit with their first cause of action. Monell claims against municipalities and claims for supervisory liability against individuals, though similar, are distinct. However, because Plaintiffs allege 27 the same basis for supervisory liability against Chief Nisleit in their first and third causes of action, namely his involvement in the “combat shooting” policy, the Court will address the parties’ arguments regarding 28 1 of force under the ‘totality of the circumstances.’” Est. of Strickland v. Nevada Cnty., 69 2 F.4th 614, 619 (9th Cir. 2023) (quoting Brooks v. Clark Cnty., 828 F.3d 910, 920, 922 (9th 3 Cir. 2016)). 4 “Determining whether a particular use of force was reasonable ‘requires a careful 5 balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment 6 interests against the countervailing governmental interests at stake.’” Villanueva, 986 F.3d 7 at 1169 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). “To assess the government 8 interests, we evaluate a range of factors that include (1) the severity of the crime at issue, 9 (2) whether the suspect posed an immediate threat to the safety of the officers or others 10 (3) whether he was actively resisting arrest or attempting to evade arrest by flight, and any 11 other exigent circumstances that existed at the time of the arrest.” Id. (citation and internal 12 quotation marks omitted); see also Est. of Strickland, 69 F.4th at 619 (“[T]his list isn’t 13 exhaustive; we may also consider other relevant factors, such as the availability of less 14 intrusive alternatives to the force employed, whether proper warnings were given, and 15 whether it should have been apparent to officers that the person they used force against was 16 emotionally disturbed.”). “In cases involving use of deadly force against a fleeing suspect, 17 ‘the Supreme Court has crafted a more definitive rule,’ allowing an officer to use deadly 18 force ‘only if the officer has probable cause to believe that the suspect poses a threat of 19 serious physical harm, either to the officer or to others.’” Villanueva, 986 F.3d at 1169 20 (quoting Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020)). 21 Here, Plaintiffs allege that “[w]hen police officers named above encountered 22 Decedent IMANOL APARICIO[,] he ran from the police to evade arrest.” (SAC ¶ 33.) 23 “The involved police officers did not announce themselves as police prior to the fatal 24 shooting.” (Id. ¶ 29.) “After Decedent was shot with the first bullet, he was 25 incapacitated[;]” however “Defendant police officers continued to fire shots into the 26 incapacitated body of Decedent[.]” (Id. ¶ 30.) There are no allegations that Decedent had a 27 weapon of any kind, acted aggressively toward Defendant Officers, or had committed a 28 1 threatening or dangerous crime. (See generally SAC.) 2 Considering the Graham factors, the lethal force used is compared against no 3 allegations of a crime—let alone a severe crime—and no allegations demonstrating 4 Decedent posed a threat to the safety of Defendant Officers or others. Decedent was 5 attempting to evade arrest. However, “the Constitution does not tolerate the use of lethal 6 force to ‘seize an unarmed, nondangerous suspect by shooting him dead’ in the absence of 7 probable cause of a threat of serious physical harm.” Est. of Strickland, 69 F.4th at 621 8 (quoting Torres v. City of Madera, 648 F.3d 1119, 1128 (9th Cir. 2011)). Based on the 9 totality of the circumstances as set forth in the SAC, Plaintiffs state a claim for excessive 10 force against Defendant Officers.7 Defendants’ motion to dismiss with regard to the 11 excessive force claim against Defendant Officers is DENIED. 12 ii. Failure to State a Claim Against the City 13 Next, Defendants argue Plaintiffs’ excessive force claim as pleaded against the City 14 is duplicative of their third and fifth Monell claims. (Doc. No. 36-1 at 13.) Plaintiffs fail to 15 respond to this argument. (See generally Doc. No. 38; see also Doc. No. 39 at 3 (“Plaintiffs 16 do not address why the excessive force claim is brought against the City of San Diego. The 17 Court is authorized to find that Plaintiff’s [sic] failure to respond to Defendants’ arguments 18 means Plaintiffs concedes [sic] the issue.”).) 19 Under Monell, a municipality such as the City is not liable under § 1983 unless 20 “official municipal policy of some nature caused a constitutional tort.” 436 U.S. at 691. 21 More specifically, “it is when execution of a government’s policy or custom, whether made 22 23 24 6 The crux of Defendants’ argument is based improperly on allegations not within the SAC (see 25 Doc. No. 36-1 at 10–12), which the Court will not consider, see supra § III.B.1. 7 Defendants challenge as “conclusory statements” Plaintiffs’ allegations that Decedent posed no 26 immediate threat of death or serious injury to Defendant Officers, other non-lethal options were available and would have been sufficient to disable Decedent, and Defendants were aware of Decedent’s special 27 needs but failed to accommodate those special needs. (Doc. No. 36-1 at 10–12 (citing SAC ¶¶ 15, 32, 33).) The Court need not resolve the parties’ dispute regarding those allegations as the others not in dispute are 28 1 by its lawmakers or by those whose edicts or acts may fairly be said to represent official 2 policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. 3 at 694. 4 Considering Plaintiffs’ theory of the City’s liability regarding excessive force is the 5 policy of “combat shooting,” it is a Monell claim duplicative of the third and fifth causes 6 of action. As such, the Court GRANTS Defendants’ motion to dismiss the first cause of 7 action as to the City. See Segura v. City of La Mesa, 647 F. Supp. 3d 926, 940 (S.D. Cal. 8 2022) (“Courts may dismiss claims that essentially repeat another claim in the same 9 complaint.”). 10 4. Denial of Due Process Claim 11 Plaintiffs’ second cause of action asserts violation of Fourteenth Amendment due 12 process rights to familial association against all Defendants. (SAC ¶¶ 37–42.) Defendants 13 challenge the clarity of this cause of action pursuant to Rule 8 along with its sufficiency 14 pursuant to Rule 12(b)(6). 15 i. Clarity 16 Defendants premise their first attacks on the basis that the claim is being brought on 17 behalf of Decedent and a single Plaintiff. (Doc. No. 36-1 at 14.) To the extent the claim is 18 brought on behalf of Decedent, Defendants assert it is duplicative of the excessive force 19 claim, as the Court previously ruled. (Id.) To the extent it is brought on behalf of a single 20 Plaintiff, Defendants assert the claim violates Rule 8 because it is unclear which of the two 21 named Plaintiffs is asserting this claim. (Id.) 22 Plaintiffs assert that they have amended the second cause of action to clarify that it 23 is brought by Plaintiffs in their individual capacity and not brought on behalf of the 24 decedent.” (Doc. No. 38 at 10–11.) “The claim is for a depr[i]vation of familial 25 companionship without due process of law,” which “is distinct from a claim arising under 26 the Fourth Amendment.” (Id.) 27 Despite their assertion to the contrary, Plaintiffs did not in fact amend the complaint 28 to remove Decedent’s name. As noted by Defendants, the second cause of action is now 1 “brought by Plaintiffs Imanol Aparicio,” who is the decedent, “and Plaintiff for a violation 2 of their right to due process of law before removing familial rights.” (SAC ¶ 38.) 3 Considering Plaintiffs expressly disavow bringing this cause of action on behalf of 4 Decedent and the Court’s prior order finding such a claim brought on behalf of Decedent 5 to be duplicative of the Fourth Amendment claim, the Court GRANTS Defendants’ motion 6 to dismiss and DISMISSES with prejudice the second cause of action to the extent it is 7 pleaded on behalf of Decedent. The Court disagrees with Defendants that Plaintiffs’ use of 8 the singular rather than plural in one paragraph makes the cause of action unintelligible 9 such that it violates Rule 8. However, the Court GRANTS Plaintiffs leave to amend ¶ 38 10 of the SAC to clarify which specific Plaintiff, or both, bring the second cause of action and 11 to remove mention of Decedent. 12 ii. Failure to State a Claim Against Defendant Officers 13 In turning to the substance of Plaintiffs’ second cause of action, the Court will 14 consider whether the factual allegations state a Fourteenth Amendment claim for either 15 Plaintiff. 16 “This circuit has recognized that parents have a Fourteenth Amendment liberty 17 interest in the companionship and society of their children.” Wilkinson v. Torres, 610 F.3d 18 546, 554 (9th Cir. 2010) (citing Curnow ex rel. Curnow v. Ridgecrest Police, 952 F.2d 321, 19 325 (9th Cir. 1991)). “A claim asserting that police officers violated these Fourteenth 20 Amendment rights during a police shooting must show that the officers’ conduct ‘shocks 21 the conscience.’” Ochoa v. City of Mesa, 26 F.4th 1050, 1056 (9th Cir. 2022) (quoting 22 Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008)). To determine whether conduct 23 shocks the conscience, “the court must first ask ‘whether the circumstances are such that 24 actual deliberation by the officer is practical.’” Wilkinson, 610 F.3d at 554 (quoting Porter, 25 546 F.3d at 1137) (internal punctuation omitted). 26 “On one hand, the deliberate-indifference test applies if the situation at issue 27 ‘evolved in a time frame that permits the officer to deliberate before acting.’” Ochoa, 26 28 F.4th at 1056 (quoting Porter, 546 F.3d at 1137). “On the other hand, where a law 1 enforcement officer makes a snap judgment because of an escalating situation, his conduct 2 may only be found to shock the conscience if he acts with a purpose to harm unrelated to 3 legitimate law enforcement objectives.” Wilkinson, 610 F.3d at 554. “Illegitimate 4 objectives include ‘when the officer had any ulterior motives for using force against the 5 suspect, such as to bully a suspect or get even, or when an officer uses force against a 6 clearly harmless or subdued suspect.’” Ochoa, 26 F.4th at 1056 (quoting Foster v. City of 7 Indio, 908 F.3d 1204, 1211 (9th Cir. 2018)). 8 Defendants argue that “Plaintiffs failed to plead any factual basis to support the 9 requisite intent,” which Defendants assert is the purpose-to-harm standard because the 10 officers were making snap judgments in an escalating situation. (Doc. No. 36-1 at 15.) 11 Defendants additionally argue that the alleged conduct “was clearly related to legitimate 12 law enforcement objectives[.]” (Id.) 13 In opposition, Plaintiffs argue that they have alleged sufficient facts to state a claim 14 under either the purpose-to-harm or deliberate-indifference standards because Defendants 15 fired the initial shot when no one’s safety was in danger and the subsequent shots were 16 fired after Decedent was incapacitated. (Doc. No. 38 at 11.) “Each shot left the officers 17 time to reflect and evidence both an intent to harm and indifference to the decedent’s life 18 and safety—thus to his parents right to companionship with their son.” (Id.) “The conduct 19 of the officers both shocks the conscience and demonstrate an indifference to the life and 20 safety of decedent.” (Id.) 21 Looking to the factual allegations of the SAC, Decedent was fleeing Defendant 22 Officers, unarmed and without any indications that he posed a threat deadly or otherwise. 23 Under such circumstances, the deliberate indifference standard applies. Defendant Officers 24 “use[d] force against a clearly harmless” and subsequently clearly “subdued suspect,” thus 25 they “act[ed] with a purpose to harm unrelated to legitimate law enforcement objectives.” 26 See Ochoa, 26 F.4th at 1056. Therefore, either Plaintiff has stated a Fourteenth Amendment 27 due process claim against Defendant Officers based on loss of familial association. The 28 Court DENIES Defendants’ motion to dismiss on this ground. 1 iii. Failure to State a Claim Against Chief Nisleit and the City 2 Defendants seek to dismiss the second cause of action as to Chief Nisleit and the 3 City because there are no allegations against either found therein, so “[i]t is unknown under 4 what basis Plaintiffs purport to bring this claim[.]” (Doc. No. 36-1 at 15–16.) Plaintiffs fail 5 to address this argument with regard to this cause of action. (See generally Doc. No. 38; 6 see also Doc. No. 39 (“Plaintiffs do not address why the Fourteenth Amendment claim also 7 names Chief Nisleit and the City as Defendants.”).) 8 The Court GRANTS Defendants’ motion to dismiss this cause of action as to Chief 9 Nisleit and the City. 10 5. Custom, Policy, & Practice of Lethal Force 11 Plaintiffs’ third cause of action asserts Chief Nisleit and the City maintained a 12 custom, policy, and practice of using lethal force before non-lethal force in violation of 13 Decedent’s Fourth Amendment and Plaintiffs’ Fourteenth Amendment rights. (SAC ¶¶ 43– 14 56.) 15 i. Failure to State a Claim Against Chief Nisleit 16 Defendants assert that Plaintiffs fail to state a claim against Chief Nisleit in his 17 individual capacity because “they fail[] to allege sufficient facts.” (Doc. No. 36-1 at 18.) 18 Specifically, Defendants argue “Plaintiffs cite no cases of San Diego officers unnecessarily 19 using lethal force by ‘continuing to fire bullets into suspects after they are incapacitated.’” 20 (Id.) 21 “A supervisory official may be held liable under § 1983 only ‘if there exists either 22 (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient 23 causal connection between the supervisor’s wrongful conduct and the constitutional 24 violation.’” Keates v. Koile, 883 F.3d 1228, 1242–43 (9th Cir. 2018) (quoting Starr v. 25 Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). “Under the latter theory, supervisory liability 26 exists even without overt personal participation in the offensive act if supervisory officials 27 implement a policy so deficient that the policy itself is a repudiation of constitutional 28 rights’ and is the moving force of a constitutional violation.” Crowley v. Bannister, 734 1 F.3d 967, 977 (9th Cir. 2013) (cleaned up); see also Rodriguez v. Cnty. of L.A., 891 F.3d 2 776, 798 (9th Cir. 2018) (quoting Starr, 652 F.3d at 1207–08) (cleaned up) (“The requisite 3 causal connection can be established by setting in motion a series of acts by others or by 4 knowingly refusing to terminate a series of acts by others, which the supervisor knew or 5 reasonably should have known would cause others to inflict a constitutional injury.”). 6 In the third cause of action, Plaintiffs allege: 7 For some time prior to 11/13/2023, Defendants City of San Diego, Police Chief David N[i]sleit, and Does 1-3 trained police for “combat shooting”– 8 empty the gun instead of non-lethal methods being employed as first option. 9 The policy expressly calls for continuing to fire bullets into suspects after they are incapacitated. This practice and policy violates the Fourth, Fifth, and 14th 10 Amendments to the United States Constitution as well as California Penal 11 Code Section 835. This is the policy of the City of San Diego and San Diego Police Department, which is advances and approved of by Police Chief David 12 N[i]sleit, and constitutes a reckless disregard for the constitutional rights of 13 suspects and their family. 14 Defendants City of San Diego, Police Chief David Nesleit, and Does 1-3 were 15 aware of the policy and State congressional hearings finding such policies and practice resulted in excessive force and death and directed non-lethal method 16 be employed in preference to lethal force. In spite of the State legislative 17 findings and amendments to the law in the State of California, Defendants, and each of them continued with the policy of lethal forces as a preference in 18 their training and policy, including emptying firearms into incapacitated 19 suspects who were in no position to pose a danger to law enforcement or the public after being incapacitated. 20 21 By reason of the policies and practices of Defendants City of San Diego and the Police Chief David Nesleit Imanol Aparicio, and DOES 1-10, 22 DECEDENT was severely injured and subjected to pain and suffering and lost 23 his life. 24 (SAC ¶¶ 47–49.) 25 Plaintiffs allege that Chief Nisleit trained officers on a “combat shooting” policy, 26 wherein police are trained to “empty” their gun instead of first employing non-lethal 27 methods and to continue shooting even after a suspect is incapacitated. (SAC ¶¶ 18, 47.) 28 Defendants argue that “emptying a firearm into a suspect is not necessarily unconstitutional 1 but depends on the Graham factors.” (Doc. No. 39 at 4.) However, Plaintiffs do not allege 2 a policy that is metered by circumstances, but rather a policy where the response is 3 uniformly lethal. Such a policy, taken as true, would be so deficient as to be a repudiation 4 of the Constitution and the rights protected therein. See Crowley, 734 F.3d at 977. Finally, 5 Plaintiffs provide sufficient allegations that this “combat shooting” policy was 6 implemented by Defendant Officers who shot and killed Decedent by continuing to shoot 7 even after Decedent was incapacitated, making the policy the moving force behind the 8 constitutional violations.8 (See SAC ¶¶ 13, 16, 49.) See also Crowley, 734 F.3d at 977. 9 The Court DENIES Defendants’ motion to dismiss the third cause of action as to 10 Chief Nisleit. However, Plaintiffs’ first cause of action alleges the same theory of 11 supervisory liability against Chief Nisleit with regard only to Decedent’s Fourth 12 Amendment rights. (See SAC ¶ 30; see also Doc. Nos. 36-1 at 13 (Defendants arguing the 13 claims are duplicative); Doc. No. 38 (Plaintiffs failing to respond to this argument.) 14 Because such a claim is entirely subsumed in the third cause of action, the Court GRANTS 15 Defendants’ motion to dismiss the first cause of action as to Chief Nisleit. See Segura, 647 16 F. Supp. 3d at 940. 17 ii. Failure to State a Claim Against the City 18 Defendants assert that Plaintiffs fail to state a claim against the City because they do 19 “not establish a constitutional violation,” they do “not plead facts to establish the 20 persistency of this alleged policy,” and the claim “appears to be alleging a failure to 21 adequately train, which is redundant of Plaintiff’s [sic] next claim.” (Doc. No. 36-1 at 17.) 22 “The Supreme Court in Monell held that municipalities may only be held liable 23 under section 1983 for constitutional violations resulting from official county policy or 24 custom.” Benavidez v. Cnty. of S.D., 993 F.3d 1134, 1153 (9th Cir. 2021). “In order to 25

26 8 Considering that the third cause of action is brought by Plaintiffs on behalf of Decedent and on 27 behalf of themselves (see SAC ¶ 47), the constitutional violations at issue are a violation of Decedent’s Fourth Amendment right to be free from excessive force and a violation of Plaintiffs’ Fourteenth 28 1 establish liability for governmental entities under Monell, a plaintiff must prove ‘(1) that 2 the plaintiff possessed a constitutional right of which she was deprived; (2) that the 3 municipality had a policy; (3) that this policy amounts to deliberate indifference to the 4 plaintiff’s constitutional right; and, (4) that the policy is the moving force behind the 5 constitutional violation.’” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) 6 (quoting Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir.1997)). 7 “The Supreme Court has made clear that policies can include written policies, unwritten 8 customs and practices, failure to train municipal employees on avoiding certain obvious 9 constitutional violations, and, in rare instances, single constitutional violations are so 10 inconsistent with constitutional rights that even such a single instance indicates at least 11 deliberate indifference of the municipality.” Benavidez, 993 F.3d at 1153 (internal citations 12 omitted). 13 As the Court has found that Plaintiffs have sufficiently pleaded a Fourth Amendment 14 claim on behalf of Decedent and a Fourteenth Amendment claim on behalf of themselves, 15 the first element is met. With regard to the second element, Plaintiffs allege that the City 16 has a formal policy of “combat shooting,” wherein police are trained to “empty” their gun 17 instead of first employing non-lethal methods and to continue shooting even after a suspect 18 is incapacitated. (SAC ¶¶ 18, 47.) Considering the third element, such a policy—if taken 19 as true—would amount to deliberate indifference to both Decedent’s right to be free of 20 excessive force and Plaintiffs’ rights to due process, especially because Plaintiffs allege 21 that the City was aware of, but disregarded, California congressional findings and laws 22 disavowing such policies. (See id. ¶¶ 18, 48, 59.) Finally, under the circumstances alleged 23 in the operative complaint, this “combat shooting” policy was implemented by Defendant 24 Officers who shot and killed Decedent by continuing to shoot even after Decedent was 25 incapacitated.9 (See SAC ¶¶ 13, 16, 49.) Plaintiffs have pleaded sufficient facts in their 26

27 9 The allegations that the City trained officers on this policy supports that the policy was the moving 28 1 third cause of action to allege a Monell claim against the City. 2 Though cloaked in the language of a motion to dismiss, the majority of Defendants’ 3 argument challenges whether Plaintiffs have sufficiently demonstrated the actual existence 4 of the policy. (See Doc. No. 36-1 at 16–17 (relying on case law addressing such claims on 5 summary judgment).) Such an argument is improper on a motion to dismiss where factual 6 allegations are taken as true. 7 The Court DENIES Defendants’ motion to dismiss the third cause of action as to 8 the City. 9 6. Failure to Train 10 Plaintiffs’ fifth cause of action asserts Chief Nisleit and the City failed to properly 11 train police officers regarding use of deadly force. (SAC ¶¶ 57–66.) 12 “Failure to train may constitute a basis for Monell liability where the failure amounts 13 to deliberate indifference to the rights of those who deal with municipal employees.” 14 Benavidez v. Cnty. of S.D., 993 F.3d 1134, 1153 (9th Cir. 2021). “To allege a failure to 15 train, a plaintiff must include sufficient facts to support a reasonable inference (1) of a 16 constitutional violation; (2) of a municipal training policy that amounts to a deliberate 17 indifference to constitutional rights; and (3) that the constitutional injury would not have 18 resulted if the municipality properly trained their employees.” Id. at 1153–54. “To prevail 19 on a claim of supervisory liability for failure to train, the plaintiff must show that the 20 official was ‘deliberately indifferent to the need to train subordinates, and the lack of 21 training actually caused the constitutional harm or deprivation of rights.’” Hyde v. City of 22 Willcox, 23 F.4th 863, 874 (9th Cir. 2022) (quoting Flores v. Cnty. of L.A., 758 F.3d 1154, 23 1159 (9th Cir. 2014)). Although a “pattern of similar constitutional violations by untrained 24 employees is ordinarily necessary to demonstrate deliberate indifference for purposes of 25 failure to train[,]” Connick v. Thompson, 563 U.S. 51, 62 (2011), “the need to train officers 26 27 28 1 in the constitutional limitations on the use of deadly force can be said to be ‘so obvious,’ 2 that failure to do so could properly be characterized as ‘deliberate indifference’ to 3 constitutional rights[,]” City of Canton, Ohio v. Harris, 489 U.S. 378, 390 n.10 (1989) 4 (citing Tennessee v. Garner, 471 U.S. 1 (1985)). 5 Defendants assert a laundry list of alleged deficiencies with little to no explanation. 6 (See Doc. No. 36-1 at 18–19.) Specifically, Defendants argue (1) Plaintiffs’ allegations are 7 “conclusory,” “vague,” and “devoid of factual content to support this claim,” (2) “Plaintiffs 8 misapply federal Constitutional law and attempt to use a change in state law to support a 9 Constitutional claim,” (3) “Plaintiffs fail[] to allege a constitutional violation,” 10 (4) “Plaintiffs fail to allege any pattern of similar constitutional violations that would 11 support a finding of deliberate indifference,” and (5) “a list of officer-involved shootings 12 does not establish that these incidents were substantially similar to Decedent’s.” (Id.) 13 However, as discussed supra, the Court has found that Plaintiffs have sufficiently 14 alleged a Fourth Amendment violation on behalf of Decedent and a Fourteenth 15 Amendment violation on behalf of themselves. Contrary to Defendants’ assumptions 16 regarding the necessity of a pattern, Plaintiffs allege the City and Chief Nisleit trained 17 officers in a “combat shooting” policy—an action that, if taken as true, “could properly be 18 characterized as deliberate indifference” because the policy fails “to train officers in the 19 constitutional limitations on the use of deadly force” but rather requires the use of such 20 force. See Canton, 489 U.S. at 390 n.10. 21 As with the third cause of action which is based on the same facts, Plaintiffs have 22 pleaded sufficient facts in their fifth cause of action to allege both a Monell claim against 23 the City and a supervisory liability claim against Chief Nisleit for failure to train officers 24 with regard to the use of lethal force. Accordingly, the Court DENIES Defendants’ motion 25 as to the fifth cause of action. 26 7. Wrongful Death 27 Plaintiffs’ sixth and seventh causes of action allege wrongful death pursuant to 28 California common and statutory law. (See SAC ¶¶ 67–79.) As a threshold matter, 1 Defendants assert that the two claims are duplicative of each other. (Doc. No. 36-1 at 20.) 2 Plaintiffs misapprehend Defendants’ stance by arguing the sixth cause of action is not 3 duplicative of the § 1983 claims that precede it. (Doc. No. 38 at 19–20.) Based on both the 4 allegations of the SAC and on Plaintiffs’ explanation thereof, the Court finds the sixth and 5 seventh causes of action are duplicative. 6 Turning to the substance of the wrongful death causes of action, Defendants assert 7 the claims fail as a matter of law because Defendant Officers’ use of force was reasonable 8 based on the totality of the circumstances. (See Doc. No. 36-1 at 20.) The crux of 9 Defendants’ argument, again, is based improperly on allegations not within the SAC (see 10 Doc. No. 36-1 at 10–12), which the Court will not consider, see supra § III.B.1. 11 “The elements of a wrongful death action are the underlying tort (in this case, 12 battery), a resulting death, and damages.” B.B. v. Cnty. of L.A., 10 Cal. 5th 1, 31 (2020) 13 (Liu, J., concurring). “The elements of civil battery are: (1) defendant intentionally 14 performed an act that resulted in a harmful or offensive contact with the plaintiff’s person; 15 (2) plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused 16 injury, damage, loss or harm to plaintiff.” A.B. v. Cnty. of S.D., 112 Cal. App. 5th 404, 416 17 (2025), as modified on denial of reh’g (July 18, 2025). Plaintiffs’ “common law battery 18 cause of action, like [their] section 1983 claim, requires proof that [Defendant Officers] 19 used unreasonable force.” See Yount v. City of Sacramento, 43 Cal. 4th 885, 902 (2008); 20 see also Hayes v. Cnty. of S.D., 57 Cal. 4th 622, 629 (2013) (“This court has long 21 recognized that peace officers have a duty to act reasonably when using deadly force.”). 22 As discussed supra § III.B.3, Plaintiffs’ allegations, accepted as true, are sufficient 23 to state a claim that Defendant Officers’ use of lethal force under the circumstances was 24 unreasonable. As such, Defendants’ motion to dismiss the seventh cause of action is 25 DENIED as to Defendant Officers. 26 The seventh cause of action is brought against Chief Nisleit and the City as being 27 “vicariously liable.” (SAC ¶¶ 73, 78.) Plaintiffs’ allegations that Chief Nisleit is 28 “vicariously liable” due to his official capacity as Chief of Police are properly brought 1 against the City pursuant to California Government Code § 815.2(a). (See Doc. No. 36-1 2 at 19–20 (“To the extent Plaintiffs bring these claims against Chief Nisleit in his official 3 capacity, they are duplicative of the claims against the City. No facts establish a special 4 relationship between Chief Nisleit and Plaintiffs or Decedent.”).) Accordingly, the Court 5 GRANTS Defendants’ motion to dismiss the seventh cause of action as to Chief Nisleit 6 only and DENIES the motion as to the City. 7 Considering that the sixth cause of action is duplicative of the seventh cause of action 8 and the Court has found the latter states a claim, the Court GRANTS Defendants’ motion 9 to dismiss the sixth cause of action in its entirety. See Segura, 647 F. Supp. 3d at 940. 10 8. Negligent Failure to Train 11 Plaintiffs’ eighth cause of action asserts that “all the Defendants were negligent” for 12 (a) failure to train employees concerning the use of force, (b) failure to assess the need to 13 detain, arrest, and use force, (c) in their tactics and handling of the situation with Decedent, 14 (d) the detention, arrest, and use of force against Decedent, (e) failure to give appropriate 15 verbal warnings prior to shooting, and (f) failure to properly train and supervise all 16 employees. (SAC ¶¶ 80–82.) 17 Defendants assert the claim must be dismissed as to Chief Nisleit and the City 18 because “Plaintiffs fail[] to plead any factual support for supervisory liability,” “facts to 19 establish a special relationship resulting in any duty,” or facts to establish “any relationship 20 between a failure to train and any resulting harm.” (Doc. No. 36-1 at 20–21.) Defendants 21 also argue that the claim must be dismissed against the City to the extent it is brought 22 directly as “[t]here is no statutory basis for direct liability against a public entity for 23 negligent hiring, training, or supervision.” (Id. at 21 (citing de Villers v. Cnty. of S.D., 156 24 Cal. App. 4th 238, 252 (2007)).) Finally, Defendants argue that the claim must be dismissed 25 to the extent Plaintiffs seek to bring it on behalf of themselves as it is a survivor claim. (Id.) 26 Plaintiffs opposition consists of quoting Hayes v. Cnty. of S.D., 57 Cal. 4th 622 27 (2013), for approximately two pages, followed by four lines of argument and five lines 28 quoting the cause of action: 1 In 2020, AB 392 amended the standards of the duty of law enforcement in using force. The City of San Diego and Sherriff’s Department ignored the 2 change in State policy and limits and continued their preference for lethal 3 violence. Decedent was totally disable, specifically including: Negligent tactics and handling of the situation with DECEDENT, including pre-shooting 4 negligence; The negligent detention, arrest, and use of force, including deadly 5 force, against Decedent, Imanol Aparicio; The failure to give an appropriate verbal warning prior to shooting; and the failure to properly train and 6 supervise all police employees. 7 8 (Doc. No. 38 at 23.) 9 The eighth cause of action entirely lacks factual allegations and relies exclusively 10 on conclusory statements.10 Accordingly, the Court GRANTS Defendants’ motion on this 11 ground and DISMISSES without prejudice Plaintiffs’ eighth cause of action as to all 12 Defendants. 13 9. Bane Act 14 Plaintiffs’ final cause of action alleges that “[a]ll [D]efendants” violated the Bane 15 Act when Defendant Officers used deadly force without proper warning, where Decedent 16 did not pose an threat to anyone, had not verbally threatened anyone, and after the initial 17 shots was disabled on the ground, which demonstrated a reckless disregard for Decedent’s 18 constitutional rights. (See SAC ¶¶ 83–89.) 19 The Bane Act “provides a cause of action for violations of a plaintiff’s state or 20 federal civil rights committed by ‘threats, intimidation, or coercion.’” Chaudhry v. City of 21 L.A., 751 F.3d 1096, 1105 (9th Cir. 2014) (quoting Cal. Civ. Code § 52.1). “The elements 22 of a Bane Act claim are essentially identical to the elements of a § 1983 claim, with the 23 added requirement that the government official had a ‘specific intent to violate’ a 24 constitutional right.” Hughes v. Rodriguez, 31 F.4th 1211, 1224 (9th Cir. 2022). 25 /// 26 /// 27 28 1 “The specific intent inquiry for a Bane Act claim is focused on two questions: First, 2 ‘[i]s the right at issue clearly delineated and plainly applicable under the circumstances of 3 the case,’ and second, ‘[d]id the defendant commit the act in question with the particular 4 purpose of depriving the citizen victim of his enjoyment of the interests protected by that 5 right?’” Sandoval v. Cnty. of Sonoma, 912 F.3d 509, 520 (9th Cir. 2018) (quoting Cornell 6 v. City & Cnty. of S.F., 17 Cal. App. 5th 766, 803 (2017)). However, “such intent can be 7 proven by evidence of recklessness.” S.R. Nehad v. Browder, 929 F.3d 1125, 1142 n.15 8 (9th Cir. 2019). 9 Defendants assert that “Plaintiffs’ allegations are conclusory” and that, “[b]ecause 10 Plaintiffs did not properly plead a violation of Decedent’s Constitutional rights, there is no 11 Bane Act violation.” (Doc. No. 36-1 at 21.) Defendants also argue that the claim should be 12 dismissed specifically as to Chief Nisleit as there are no allegations regarding him. (Id. at 13 19.) 14 Despite alleging this cause of action against “all defendants,” Plaintiffs fail to plead 15 any allegations regarding the actions, inactions, or basis of liability for the City or Chief 16 Nisleit. As such, Plaintiffs fail to state a Bane Act claim against either the City or Chief 17 Nisleit. However, contrary to Defendants’ wholesale dismissal, Plaintiffs have alleged a 18 violation of Decedent’s Fourth Amendment rights by Defendant Officers and pleaded 19 sufficient facts to support that Defendant Officers acted with reckless disregard. See, e.g., 20 Bradley v. City of S.D., No. 3:24-CV-01216-CAB-JLB, 2025 WL 20437, at *4 (S.D. Cal. 21 Jan. 2, 2025) (“Taking these allegations as true and drawing all reasonable inferences in 22 Plaintiff’s favor, the Court cannot imagine that such conduct by Officer Doe could not 23 plausibly constitute an intentional, coercive act.”). Thus, Plaintiffs state a Bane Act claim 24 against Defendant Officers. Accordingly, the Court GRANTS Defendants’ motion to 25 dismiss the ninth cause of action as to the City and Chief Nisleit and DENIES the motion 26 on this ground with respect to Defendant Officers. 27 /// 28 /// 1 10. Service 2 Finally, Defendants seek to dismiss all claims against Doe defendants pursuant to 3 Rule 4(m), asserting that the service of process has not yet been effectuated despite the 4 ninety-day deadline well elapsing. (Doc. No. 36-1 at 9.) 5 Having only cited Rules 12(b)(6) and 8 as the basis of their motion, Defendants fail 6 to provide the appropriate standard for such a request: Rule 12(b)(5). Regardless, pursuant 7 to Rule 4(m)— 8 If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the 9 action without prejudice against that defendant or order that service be made 10 within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 11 12 Fed. R. Civ. P. 4(m). “[A]t minimum, ‘good cause’ means excusable neglect,” requiring 13 “(a) the party to be served received actual notice of the lawsuit; (b) the defendant would 14 suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were 15 dismissed.” In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001) (quoting Boudette v. Barnette, 16 923 F.2d 754, 756 (9th Cir. 1991)). However, even “if there is no good cause, the court has 17 the discretion to dismiss without prejudice or to extend the time period.” In re Sheehan, 18 253 F.3d at 512; see also Henderson v. United States, 517 U.S. 654, 658, 116 S. Ct. 1638, 19 1641, 134 L. Ed. 2d 880 (1996) (“Rule 4(m) . . . permits a district court to enlarge the time 20 for service even if there is no good cause shown.”). “In making extension decisions under 21 Rule 4(m) a district court may consider factors like a statute of limitations bar, prejudice 22 to the defendant, actual notice of a lawsuit, and eventual service.” Efaw v. Williams, 473 23 F.3d 1038, 1041 (9th Cir. 2007) (citation omitted). 24 Plaintiffs argue that good cause for an extension “exists where the Court[’]s docket 25 causes a delay in hearing on a motion to dismiss beyond the 90-day period” because “Rule 26 26(b)(1) stays any discovery until after the Rule 26 Conference.” (Doc. No. 38 at 3.) 27 Under the circumstances of the instant case, Plaintiffs’ argument is well taken. 28 Defendants ostensibly hold the information pertaining to the identity of any Doe defendants 1 and Defendants are under no obligation to proffer such information at this stage. Thus, until 2 Plaintiffs’ complaint survives the motion to dismiss stage, Plaintiffs are constrained to a 3 holding pattern respecting the process of the courts while the time ticks past. Defendants 4 fail assert that an extension would prejudice them. Due to the multiple rounds of motions 5 to dismiss, the Court has concerns that dismissal of any Doe defendants at this time, even 6 without prejudice, would have implications for Plaintiffs due to the statute of limitations 7 on their claims. See Wheeler v. City of Santa Clara, 894 F.3d 1046, 1059 (9th Cir. 2018) 8 (applying California’s two-year statute of limitations to § 1983 survivor and wrongful 9 death claims). 10 Accordingly, the Court DENIES Defendants’ motion to dismiss the Doe defendants 11 for lack of service and GRANTS Plaintiffs’ request for an extension of time. Plaintiffs 12 must serve any Doe defendants within thirty days of a Scheduling Order being issued by 13 the Court. 14 IV. MOTION TO STRIKE PURSUANT TO RULE 12(f) 15 Defendants move to strike myriad aspects of the SAC as immaterial, impertinent, or 16 otherwise improper. (Doc. No. 36-1 22–24.) 17 Federal Rule of Civil Procedure 12(f) permits a court to strike from any pleading 18 “any redundant, immaterial, impertinent, or scandalous matter.” Fed R. Civ. P. 12(f). 19 “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money 20 that must arise from litigating spurious issues by dispensing with those issues prior to 21 trial[.]” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). However, 22 “Rule 12(f) is neither an authorized nor a proper way to procure the dismissal of all or a 23 part of a complaint.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 24 2010) (quoting Yamamoto v. Omiya, 564 F.2d 1319, 1327 (9th Cir. 1977)). The 25 “‘immaterial’ [i]s that which has no essential or important relationship to the claim for 26 relief or the defenses being plead.” Petrie v. Elec. Game Card, Inc., 761 F.3d 959, 967 (9th 27 Cir. 2014) (citation and internal quotation marks omitted). “‘Impertinent’ matter consists 28 of statements that do not pertain, and are not necessary, to the issues in question.” Quintara 1 Biosciences, Inc. v. Ruifeng Biztech, Inc., 149 F.4th 1081, 1089 (9th Cir. 2025) (citation 2 omitted). “Motions to strike are ‘generally disfavored because they are often used as 3 delaying tactics and because of the limited importance of pleadings in federal practice.’” 4 Corbett v. Pharmacare U.S., Inc., 544 F. Supp. 3d 996, 1004 (S.D. Cal. 2021) (quoting 5 Cortina v. Goya Foods, Inc., 94 F. Supp. 3d 1174, 1182 (S.D. Cal. 2015)). 6 First, Defendants move to strike references to the Fifth Amendment as “inapplicable 7 based on the facts alleged.” (Doc. No. 36-1 at 22–23.) In opposition, Plaintiffs assert that 8 “due process of law under the Fifth Amendment is the proper Standard for assessing the 9 Individual Plaintiff’s [sic] claims.” (Doc. No. 38 at 25.) 10 Because Plaintiffs allege violations of the Fifth Amendment throughout the SAC, 11 references to the Fifth Amendment are neither immaterial, see Petrie, 761 F.3d at 967, nor 12 impertinent, see Quintara Biosciences, 512 F.3d at 1174. To the extent Defendants assert 13 Plaintiffs’ Fifth Amendment allegations fail to state a claim or fail as a matter of law, a 14 Rule 12(b)(6) motion or Rule 56 motion would be the proper vehicle, not a motion to strike. 15 See Whittlestone, 618 F.3d at 974 (“Were we to read Rule 12(f) in a manner that allowed 16 litigants to use it as a means to dismiss some or all of a pleading (as [Defendants] would 17 have us do here), we would be creating redundancies within the Federal Rules of Civil 18 Procedure, because a Rule 12(b)(6) motion (or a motion for summary judgment at a later 19 stage in the proceedings) already serves such a purpose.”). Accordingly, Defendants’ 20 motion to strike references to the Fifth Amendment is DENIED. 21 Similarly, Defendants seek to strike reference to California Penal Code § 83511 as 22 “immaterial and impertinent” because [t]he violation of a California law which creates 23 protections that go beyond that guaranteed by federal law cannot serve as a basis for a 24 § 1983 claim.” (Doc. No. 36-1 at 22–23.) The SAC alleges that Defendants’ policy of 25 26 27 11 “An arrest is made by an actual restraint of the person, or by submission to the custody of an officer. The person arrested may be subjected to such restraint as is reasonable for his arrest and 28 1 “combat shooting” violates the U.S. Constitution and the California Penal Code, to which 2 Defendants recklessly disregarded. The reference relates to Plaintiffs’ claims that 3 Defendants acted with culpable intent. However, here again, the heart of Defendants’ 4 argument appears to challenge the merits of Plaintiffs’ allegation, for which a motion to 5 strike is the improper vehicle. Defendants’ motion to strike reference to California Penal 6 Code § 835 is DENIED. 7 Defendants seek to strike the sole reference to 42 U.S.C. §§ 1985 and 1986 as 8 immaterial because Plaintiffs do not bring any claims under those statutes. (Doc. No. 36-1 9 at 22–23.) Plaintiffs fail to substantively address this argument. (See generally Doc. No. 10 38.) In contrast to Plaintiffs’ references to the Fifth Amendment, the SAC only references 11 42 U.S.C. §§ 1985 and 1986 once as a basis of jurisdiction despite not alleging any claims 12 pursuant to either statute. (See SAC ¶ 1.) The reference to 42 U.S.C. §§ 1985 and 1986 is 13 immaterial. The Court GRANTS Defendants’ motion to strike reference to 42 U.S.C. 14 §§ 1985 and 1986. 15 Next, Defendants seek to strike references to “all improperly pleaded damages,” 16 including the prayer for punitive damages sought against the City and Chief Nisleit acting 17 in his official capacity. (Doc. No. 36-1 at 22–24.) “Rule 12(f) does not authorize district 18 courts to strike claims for damages on the ground that such claims are precluded as a matter 19 of law.” Whittlestone, 618 F.3d at 974–75. Accordingly, the Court DENIES Defendants’ 20 motion to strike Plaintiffs’ damages requests. 21 Finally, Defendants seek to strike certain allegations of negligence as “impertinent 22 and immaterial” that “are not actionable” and “confuse the claim” of negligent failure to 23 train. (Doc. No. 36-1 at 23–24.) The allegations relate to Plaintiffs’ alternative theory of 24 negligent failure to train. As such, they are not immaterial or impertinent. Whether that 25 theory is actionable is not the proper question for a motion to strike. Defendants’ motion 26 to strike Plaintiffs’ allegations of negligence is DENIED. 27 /// 28 /// 1 V. CONCLUSION 2 Based on the foregoing reasons, Court GRANTS in part and DENIES in part 3 Defendants’ motions to dismiss and to strike. (Doc. No. 36.) The Court ORDERS as 4 follows: 5 1. The Court GRANTS Defendants’ request for judicial notice (Doc. No. 36-2) 6 2. Defendants’ motion to dismiss is GRANTED as to: 7 a. The first cause of action as to the City and Chief Nisleit; 8 b. The second cause of action to the extent that it is pleaded on 9 behalf of Decedent; 10 c. The second cause of action as to Chief Nisleit and the City; 11 d. The sixth cause of action in its entirety; 12 e. The seventh cause of action as to Chief Nisleit only; 13 f. The eighth cause of action as to all Defendants; and 14 g. The ninth cause of action as to the City and Chief Nisleit. 15 3. Defendants’ motion to dismiss is DENIED in all other respects. 16 4. Defendants’ motion to strike is GRANTED with regard to the reference to 42 17 U.S.C. §§ 1985 and 1986 (SAC ¶ 1) and DENIED with regard to all other requests. 18 5. Plaintiffs are GRANTED leave to amend for the limited purposes of: 19 a. Removing reference to 42 U.S.C. §§ 1985 and 1986 in ¶ 1 of the SAC. 20 b. Clarifying ¶ 38 of the SAC by (i) identifying which specific Plaintiff, 21 or both, bring the second cause of action and (ii) removing mention of Decedent; 22 c. Amending the eighth cause of action to state a claim and to conform 23 with Rule 8; and 24 d. Amending the ninth cause of action as to the City and Chief Nisleit; 25 6. Plaintiffs are GRANTED an extension of time to serve any Doe defendants 26 until thirty days of a Scheduling Order being issued by the Court. 27 7. If Plaintiffs choose to file an amended complaint, it must comply with the 28 limited leave granted herein and be filed no later than February 13, 2026. Plaintiffs must 1 |}concurrently file a red-lined version of the amended complaint in compliance with Civil 2 || Local Rule 15.1.c. If Defendants wish to respond to the amended complaint pursuant to 3 |}Rule 12, such a motion must be limited to the causes of action which Plaintiffs 4 substantively amended. 5 IT IS SO ORDERED. 6 Dated: January 30, 2026 □

8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IR