George Verdugo v. City of San Jose, et al.

• Court: District Court, N.D. California
• Decided: March 23, 2026
• Docket: 5:25-cv-08776
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GEORGE VERDUGO, Case No. 25-cv-08776-SVK 8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART MOTION TO DISMISS WITH LEAVE TO AMEND 10 CITY OF SAN JOSE, et al., Re: Dkt. No. 17 11 Defendants. 12 Plaintiff brings this action against the City of San Jose (the “City”) and Officer Rocha 13 (collectively, “Defendants”), alleging violation of his Fourth and Fourteenth Amendment rights 14 and seeking damages under 42 U.S.C. § 1983. Dkt. 1 (the “Complaint”). Before the Court is 15 Defendants’ motion to dismiss the complaint. Dkt. 17 (the “Motion”). All Parties have consented 16 to magistrate-judge jurisdiction.1 Dkts. 15-16. The Motion was fully briefed on December 15, 17 2025. Dkts. 20, 26; see also Dkt. 22 (granting Defendants’ administrative motion for extension of 18 time to file the reply brief, in light of the longer time for Plaintiff’s opposition due to his mail- 19 filing status). Having considered the Parties’ submissions, the relevant law and the record in this 20 matter, the Court determines the Motion is suitable for resolution without oral argument, (see Civil 21 L.R. 7-1(b), and GRANTS IN PART and DENIES IN PART the Motion. 22 I. BACKGROUND 23 For the purposes of resolving the Motion, the Court takes the factual allegations of the 24 Complaint as true. See Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th 25 Cir. 2008) (courts generally “accept factual allegations in the complaint as true and construe the 26 1 Plaintiff also sued 10 Doe defendants. See Dkt. 1. These Doe defendants are not “parties” for 27 purposes of assessing whether there is complete consent to magistrate-judge jurisdiction. See 1 pleadings in the light most favorable to the nonmoving party.”). Here, the Complaint is also 2 supported by Plaintiff’s contemporaneously filed declaration, which tracks the allegations of the 3 Complaint and the Court deems to be a part thereof. 4 Plaintiff is an adult resident of San Jose, California. Dkt. 1, ¶ 3; Dkt. 3, ¶ 1. On October 5 15, 2023, Officer Rocha and several other officers of the San Jose Police Department entered 6 Plaintiff’s residence without a warrant. Dkt. 1, ¶ 8; Dkt. 3, ¶ 3. The officers asserted that they 7 had Plaintiff’s co-tenant’s consent to enter. Dkt. 1, ¶ 9; Dkt. 3, ¶ 4. At the time, Plaintiff objected 8 to their entry, affirmed that he did not consent to their entry, and told them to leave. Dkt. 1, ¶ 9; 9 Dkt. 3, ¶ 5. The officers did not leave and arrested Plaintiff for alleged violation of California 10 Penal Code § 314 (misdemeanor indecent exposure). Dkt. 1, ¶ 10; Dkt. 3, ¶ 6; Cal. Penal Code § 11 314. He was release later that evening and the Santa Clara County District Attorney declined to 12 file charges. Dkt. 1, ¶¶ 10-11; Dkt. 3, ¶¶ 6-7. 13 II. LEGAL STANDARD 14 Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a complaint if it 15 “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a 16 Rule 12(b)(6) motion, a plaintiff must allege “enough facts to state a claim to relief that is 17 plausible on its face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This facial- 18 plausibility standard requires a plaintiff to allege facts resulting in “more than a sheer possibility 19 that a defendant has acted unlawfully.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 20 In ruling on a motion to dismiss, a court may consider only “the complaint, materials 21 incorporated into the complaint by reference, and matters [subject to] judicial notice.” See UFCW 22 Loc. 1500 Pension Fund v. Mayer, 895 F.3d 695, 698 (9th Cir. 2018) (citation omitted). A court 23 must also presume the truth of a plaintiff’s allegations and draw all reasonable inferences in their 24 favor. See Boquist v. Courtney, 32 F.4th 764, 772 (9th Cir. 2022). However, a court need not 25 accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or 26 unreasonable inferences.” See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1008 (9th Cir. 27 2018) (citation omitted). 1 se pleadings liberally.” United States v. Qazi, 975 F.3d 989, 993 (9th Cir. 2020). “[B]efore 2 dismissing a pro se complaint the district court must provide the litigant with notice of the 3 deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend 4 effectively.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation and quotation marks 5 omitted). “A district court should not dismiss a pro se complaint without leave to amend unless ‘it 6 is absolutely clear that the deficiencies of the complaint could not be cured by amendment.’” Id. 7 (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.1988) (per curiam). 8 III. DISCUSSION 9 Defendants raise three arguments for dismissal. First, they argue that Plaintiff fails to 10 plausibly plead entry violative of the Fourth Amendment by Officer Rocha because Plaintiff 11 pleads that the officers had his co-tenant’s consent to enter, and that they were entering in 12 response to an exigency. Dkt. 17 at 6. Second, Defendants argue that—despite being named in 13 the caption—there are no claims alleged against the City. Dkt. 17 at 7. Defendants further allege 14 that the pleadings against Doe defendants are not permitted in federal court. Id. The Court 15 addresses each argument in turn. 16 A. Plaintiff’s Allegations Against Officer Rocha May Proceed 17 “The Fourth Amendment ordinarily requires that police officers get a warrant before 18 entering a home without permission.” Lange v. California, 594 U.S. 295, 298 (2021). However, 19 there are two exceptions relevant here. First, “[t]he Fourth Amendment recognizes a valid 20 warrantless entry and search of premises when police obtain the voluntary consent of an occupant 21 who shares, or is reasonably believed to share, authority over the area in common with a co- 22 occupant who later objects to the use of evidence so obtained.” Georgia v. Randolph, 547 U.S. 23 103, 106 (2006). Second, there is an “important exception [] for exigent circumstances. … An 24 officer, for example, may enter a home without a warrant to render emergency assistance to an 25 injured occupant, to protect an occupant from imminent injury, or to ensure his own safety.” 26 Lange v. California, 594 U.S. 295, 301 (2021) (cleaned up). Defendants argue that, based on the 27 facts pleaded in Plaintiff’s Complaint, even taken as true, Officer Rocha’s entry was justified. 1 Rocha,” lacked a warrant but “claimed they had consent to enter from a co-tenant.” Dkt. 1, ¶¶ 8-9. 2 However, Plaintiff also alleges that he “was present and repeatedly informed the officers that they 3 did not have his consent to enter and must leave.” Id., ¶ 9. This alone is sufficient to survive, as a 4 legal matter, the co-tenant consent exception set forth in Georgia v. Randoplh. See 547 U.S. at 5 114 (“Since the co-tenant wishing to open the door to a third party has no recognized authority in 6 law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, 7 without more, gives a police officer no better claim to reasonableness in entering than the officer 8 would have in the absence of any consent at all.”).2 9 As to the second exception, Defendants argue that the “emergency nature of the situation” 10 validated the officers’ entry as pleaded, because they were responding to the co-tenant’s report and 11 seeking “to protect her from Plaintiff’s indecent exposure or other criminal conduct.” Dkt. 17 at 6. 12 Here, however, Defendants’ motion is improper because neither the Complaint nor Plaintiff’s 13 accompanying declaration plead any of the facts surrounding the asserted emergency. See, 14 generally, Dkt. 1 at 2-3; Dkt. 3 at 1-3. Neither the co-tenant’s phone call or other report, nor the 15 officers’ statements as to why they had arrived, are pleaded. See id. Just as the Court may not 16 consider Plaintiff’s unpleaded facts raised in opposition, the Court cannot consider Defendants’ 17 asserted but unsubstantiated facts raised in the motion. Cf., supra, n. 2. 18 Accordingly, because Plaintiff has pleaded that he was “present and objecting” at the time 19 of his co-tenant’s consent and because there are no facts in the Complaint to substantiate the 20 nature of the asserted exigency, the Motion to Dismiss the claim against Officer Rocha is 21 DENIED. 22 //// 23 2 Plaintiff also points out in opposition that under Illinois v. Rodriguez, 497 U.S. 177 (1990), the 24 officers must have had “a reasonable belief that a third party has authority to consent.” Dkt. 20 at 3. Plaintiff’s opposition sets forth a variety of facts from which Plaintiff asks this Court to draw 25 the inference that Officer Rocha’s belief that the co-tenant’s consent was authoritative was not reasonable. See Dkt. 20 at 4-6, 14-15. However, none of these facts are contained in Plaintiff’s 26 Complaint. A court “‘may not look beyond the complaint to a plaintiff’s moving papers, such as a memorandum in opposition to a defendant’s motion to dismiss’ in determining whether to grant 27 the Motion.” Castillo v. City of San Jose, No. 24-CV-00701-SVK, 2025 WL 1370811, at *3 n.2 1 B. Plaintiff’s Claims Against the City Are Dismissed with Leave to Amend 2 As to the City’s arguments for its dismissal, the Court agrees with Defendants. Although 3 the Complaint names the City as a Defendant and Plaintiff raises Monell arguments on opposition, 4 (see, e.g., Dkt. 20 at 3, 6, 7-8, 18-20 (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 5 (1978)), the Complaint itself is devoid of any of Plaintiff’s Monell-related allegations. Plaintiff 6 does not allege, for example: that supervisors ratified Officer Rocha’s conduct, (see Dkt. 20 at 7 19); that the City’s officers have a pattern and custom of entering homes despite an occupant’s 8 refusal, (id.); or that the City fails to train and supervise its officers appropriately on such home- 9 entry issues, (id. at 20). As noted above, a court “‘may not look beyond the complaint to a 10 plaintiff’s moving papers, such as a memorandum in opposition to a defendant’s motion to 11 dismiss’ in determining whether to grant the Motion.” Castillo, 2025 WL 1370811, at *3 n.2 12 (quoting Schneider, 151 F.3d at 1197). However, “particularly in the case of a pro se Plaintiff, the 13 Court may look to proffered facts in an opposition in determining whether to grant leave to 14 amend.” Id.; see also, e.g., Flickinger v. Castillo, 2025 WL 3255026, at *5 (N.D. Cal. Aug. 27, 15 2025), report and recommendation adopted, No. 24-CV-02915-NW, 2026 WL 517973 (N.D. Cal. 16 Feb. 25, 2026). 17 Accordingly, Defendants’ Motion to Dismiss the claims against the City is GRANTED 18 with leave to amend. If Plaintiff wishes to pursue a Monell claim against the City, he must 19 plausibly allege that the City maintains a custom, practice, or policy that inflicts the injury at issue 20 in this case. See Monell v. Dep’t of Soc. Servcs. of N.Y., 436 U.S. 658, 690-91 (1978). 21 C. Plaintiff’s Pleading as to Doe Defendants is Permissible at this Stage 22 Finally, “general allegations that [Doe Defendants] committed wrongdoing” is improper 23 and “the use of ‘John Doe’ to identify a defendant is not favored.” Villarreal v. Cnty. of Monterey, 24 254 F. Supp. 3d 1168, 1194-95 (N.D. Cal. 2017). Nonetheless, while cases lacking “specific 25 allegations” against Doe Defendants are improper, where a plaintiff has specific allegations 26 against officers and/or supervisors but “is unaware of any particular officer’s name,” the plaintiff 27 “may name ‘Doe Officers’ and amend the pleading within three years to add their names once she 1 2015 WL 333011, at *5 (N.D. Cal. Jan. 23, 2015) (citing Viehmever v. City of Santa Ana, 67 F. 2 || Fed. App’x. 470, 472 (9th Cir.2003)). 3 Plaintiffs “Doe” proffered allegations here fall in two categories: first, there are 4 || allegations in the Complaint as to additional “San Jose Policy Department officers ... [who] 5 entered Plaintiffs residence without a warrant.” See Dkt. 1, Jf] 8-9. Second, in his opposition, 6 || Plaintiff suggests that there were “supervisors” that “ratified the unconstitutional conduct.” Dkt. 7 {| 20 at 20. 8 The first category of Doe Defendants is permissible. There are concrete, specific 9 || allegations as to the Doe officers’ conduct, and it appears that the only difference between them 10 || and Officer Rocha is that Plaintiff does not know their names. See Dkt. 1, 8-9. Accordingly, 11 Defendants’ Motion to Dismiss all Doe Defendants from the Complaint is DENIED. 12 However, for clarity of the record, any allegations against Doe Defendants other than the 13 allegedly-entering officers are DISMISSED with leave to amend for the same reasons as the 14 || claims against the City are dismissed, as set forth above. © 2 15 || IV, CONCLUSION 16 For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED IN PART and 2 17 || DENIED IN PART. The claims against the City are dismissed with leave to amend, while the Z 18 claims against Officer Rocha and the other Doe officers may proceed. Once the names of the 19 || other Doe officers are known, Plaintiff must amend his Complaint to name such officers. 20 If Plaintiff wishes to amend his Complaint to state claims against the City or other 21 unnamed “supervisors,” he may do so no later than April 22, 2026. 22 23 SO ORDERED. 24 Dated: March 23, 2026 25 26 Season varYu— SUSAN VAN KEULEN 27 United States Magistrate Judge 28