Gonzales v. City Of San Jose

• Court: District Court, N.D. California
• Decided: June 15, 2020
• Docket: 5:19-cv-08195
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7

9 GABRIEL GONZALES, Case No. 19-cv-08195-NC 10 Plaintiff, ORDER GRANTING 11 v. DEFENDANTS’ MOTION TO 12 DISMISS; GRANTING LEAVE TO CITY OF SAN JOSE and DAVID AMEND 13 LEZAMA, Re: Dkt. No. 26 14 Defendants. 15

16 Before the Court is defendants the City of San Jose and San Jose Police Department 17 Officer David Lezama’s motion to dismiss plaintiff Gabriel Gonzales’s first amended 18 complaint. See Dkt. No. 26. This case arises out of SJPD’s arrest of Gonzales when 19 Gonzales was on his bicycle, where Officer Lezama struck Gonzales with his patrol 20 vehicle as Gonzales biked on the sidewalk. See Dkt. No. 23. 21 The Court finds that the complaint fails to state sufficient facts to allege (1) that 22 Officer Lezama used excessive force; (2) the City’s Monell liability; (3) violation of the 23 Bane Act; or (4) intentional infliction of emotional distress. Additionally, because 24 Gonzales failed to comply with the Government Claims Act when he filed his original 25 complaint, he is barred from adding state law causes of action in his later amended 26 complaint. 27 Accordingly, the Court GRANTS the motion to dismiss and GRANTS Gonzales 1 I. Background 2 A. Factual Allegations 3 Plaintiff Gabriel Gonzales alleges the following facts in the First Amended 4 Complaint.1 Dkt. No. 24, FAC. The Court assumes these factual allegations to be true for 5 the purpose of deciding of the motion to dismiss. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 6 336, 337–38 (9th Cir. 1996). 7 On December 9, 2019, Gonzales rode his bicycle to the gas station around 10:00 8 p.m. to pick up some Gatorade. FAC ¶ 16. He had an ear bud in his left ear to listen to 9 music but did not use his right ear bud so that he could hear surrounding noises. FAC ¶ 10 20. The ear buds were not visible because he also wore a face shield for biking that 11 covered them. FAC ¶ 21. While he rode in the designated bike lane, San Jose Police 12 Department Officer David Lezama drove ahead of him on the road. FAC ¶ 24. Lezama 13 slowed down, and Gonzales eventually passed Lezama’s patrol vehicle. FAC ¶¶ 25–26. 14 Lezama pulled up to Gonzales and started to yell at him, ordering him to pull over. FAC 15 ¶¶ 27–29. Gonzales did not notice that Lezama was yelling until several seconds later 16 because of his ear bud and face shield. FAC ¶¶ 26–27, 29. Gonzales was alarmed by 17 Lezama’s facial expression and body language, which conveyed a “significant level of 18 anger and hostility.” FAC ¶ 30. Noticing Lezama’s anger and fearful for his safety, 19 Gonzales responded by saying, “Why, I’m not doing anything?” FAC ¶¶ 34–35. Lezama 20 then “screamed at the top of his lungs” at Gonzales, “Because I told you to!” FAC ¶ 36. 21 Gonzales became afraid, and responded, “No.” FAC ¶ 40. Gonzales then stopped, lifted 22

23 1 The plaintiff alleged additional facts in his Opposition to the motion to dismiss: “[Gonzales] was knocked off and thrown from the bicycle; his entire torso is thrown on to 24 the hood, his head banging off the hood.” Dkt. No. 32, Opposition, at 6. Defendants also alleged in their Reply that “[Gonzales] lurch[ed] forward off the bicycle onto the car’s 25 hood, but he then calmly and without issue pushes off the hood and stands next to the patrol car.” Dkt. No. 35, Reply, at 4 n.2. For the purpose of deciding this motion to 26 dismiss, the Court declines to review these facts as they are not alleged in the FAC. The Court does not rely upon any materials outside of the FAC in this order. Because the 27 Court is granting Gonzales leave to amend, Gonzales can include all relevant facts in the 1 his bicycle onto the sidewalk, and cycled in the opposite direction. FAC ¶¶ 40-41. 2 Lezama “punched the patrol vehicle accelerator and went up to the next light and 3 quickly took a U-turn.” FAC ¶ 43. Lezama “came flying down” the road, shouting 4 through the patrol car speaker “words to the effect of ‘pull over you son of a bitch,’ or ‘I’m 5 going to get you, you son of a bitch.’” FAC ¶ 44. He then flipped another U-turn, wheels 6 spinning and screeching as the patrol car fishtailed, and accelerated toward Gonzales. 7 FAC ¶ 47. Lezama drove onto the sidewalk and struck Gonzales. FAC ¶¶ 43–48. When 8 the car stopped, Gonzales was pinned in a still upright position against the metal fence of 9 the Oak Hill Memorial Cemetery. FAC ¶ 48. 10 To arrest Gonzales, Lezama threw Gonzales against the hood of the patrol vehicle 11 and placed him in handcuffs. FAC ¶¶ 51, 52. Moments after, Lezama threw Gonzales on 12 the ground and started yelling at him for his failure to pull over when ordered. FAC ¶¶ 13 52–54. Gonzales was taken to Valley Medical Center in a neck brace. FAC ¶ 55. The 14 paramedics in the ambulance noted Gonzales’s accelerated heart rate, a result of 15 tachycardia, and upgraded the urgency level of his care. FAC ¶¶ 57, 58. Gonzales 16 suffered severe pain and suffering and significant emotional distress, was diagnosed with a 17 concussion, and is being evaluated for a torn anterior cruciate ligament. FAC ¶ 66. 18 B. Procedural History 19 On December 17, 2019, Gonzales filed a complaint, alleging a Fourth Amendment 20 violation for the use of excessive force under 42 U.S.C. § 1983 against Officer Lezama and 21 the City of San Jose.2 Dkt. No. 1. On March 17, 2020, Defendants filed an answer. Dkt. 22 No. 19. On April 17, 2020, Gonzales amended his complaint, adding three more claims in 23 addition to the § 1983 excessive force claim: (1) Monell liability against the City of San 24 Jose; (2) excessive force in violation of California’s Bane Act against both defendants; and 25

26 2 The original complaint is unclear as to whether Gonzales meant to bring claims against the City of San Jose. The City is listed in the caption and as a party, but not under any 27 claims for relief. The Court finds that the City of San Jose should be considered a 1 (3) intentional infliction of emotional distress against both defendants. Dkt. No. 23. On 2 April 24, 2020, Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6). Dkt. No. 26. 3 The Court held a hearing on the motion on June 10, 2020. Dkt. No. 39. All parties have 4 consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c). Dkt. Nos. 9, 5 14. 6 II. Legal Standard 7 A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal 8 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Under 9 Federal Rule of Civil Procedure 12(b)(6), a claim will not survive a motion to dismiss if it 10 did not plead sufficient facts to “state a facially plausible claim to relief.” Fed. R. Civ. P. 11 8(a), 12(b)(6). On a motion to dismiss, all allegations of material fact are taken as true and 12 construed in the light most favorable to the plaintiff. Cahill, 80 F.3d at 337– 38. The 13 Court, however, need not accept as true “allegations that are merely conclusory, 14 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. 15 Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint need not allege detailed 16 factual allegations, it must contain sufficient factual matter, accepted as true, to “state a 17 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 18 (2007). A claim is facially plausible when it “allows the court to draw the reasonable 19 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 20 U.S. 662, 678 (2009). 21 If a court grants a motion to dismiss, leave to amend should be granted unless the 22 pleading could not possibly be cured by the allegation of other facts. Lopez v. Smith, 203 23 F.3d 1122, 1127 (9th Cir. 2000). 24 III. Discussion 25 A. Excessive Force Under 42 U.S.C § 1983 26 Plaintiff claims that Officer Lezama’s excessive use of force violated his Fourth 27 Amendment rights under 42 U.S.C § 1983. 1 that: (1) the conduct complained of was committed by a person acting under color of state 2 law; and (2) the conduct violated a right secured by the Constitution or laws of the United 3 States. Gomez v. Toledo, 446 U.S. 635, 639 (1980). 4 Here, the conduct was committed by a police officer who was acting under color of 5 state law. As to whether the officer’s conduct violated a constitutional right, Gonzales 6 argues that Lezama’s use of force violated his Fourth Amendment right to be free from 7 excessive force. FAC ¶ 70. 8 A claim that a law enforcement officer used excessive force is governed by the 9 “reasonableness standard.” Graham v. Connor, 490 U.S. 386, 395 (1989). This analysis 10 requires “careful attention to the facts and circumstances in each particular case, including 11 the severity of the crime at issue, whether the suspect poses an immediate threat to the 12 safety of the officers or others, and whether he is actively resisting arrest or attempting to 13 evade arrest by flight.” Id. at 396. This question is also analyzed from “the perspective of 14 a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. 15 There are several allegations that could be construed as uses of force in the 16 complaint. The first use of force is when Lezama’s patrol vehicle struck Gonzales as he 17 tried to flee: “[Lezama took] the patrol vehicle up on to the sidewalk and striking 18 [Gonzales] with such force as to cause the injuries noted below . . . . when Lezama’s 19 vehicle came to a stop, [Gonzales] was pinned in a still upright position against the metal 20 fence of the Oak Hill Memorial Cemetery.” FAC ¶¶ 48, 49. The second use of force 21 occurred during the arrest, when Lezama “grabbed [Gonzales] and threw him up against 22 the hood of the patrol vehicle . . . and placed him in handcuffs.” FAC ¶ 51. The third use 23 of force occurred after the arrest when Officer Lezama “threw [Gonzales] on the ground . . 24 . and begin yelling at him, again on the topic of [Gonzales] failing to stop when [Lezama] 25 told him to.” FAC ¶ 54. 26 As to the first instance, defendants argue that Officer Lezama’s use of force during 27 the seizure was reasonable. Motion at 5. They point out that Officer Lezama asked 1 stop Gonzales, Lezama “use no more force than necessary” since Gonzales “did not even 2 fall.” Id. at 6. Defendants allege that “[p]laintiff was not knocked or thrown form [sic] his 3 bicycle—indeed, Plaintiff did not even fall when Officer Lezama’s patrol car made contact 4 with him—evinces the minor nature of Officer Lezama’s maneuver.” Id. The motion to 5 dismiss does not address whether the force used during or after the arrest was excessive. 6 Id. 7 Here, plaintiff has not alleged enough facts to plead that a constitutional violation 8 occurred. The complaint is not clear enough about the force used by the patrol vehicle that 9 stopped Gonzales. Was Gonzales still in an upright position after the car made contact 10 because the force of that contact was so light, or because he was pinned to the fence and 11 could not fall over? How did Gonzales go from that upright position to being taken to the 12 hospital in a neck brace? If Lezama used the patrol vehicle as a barricade to stop 13 Gonzales, the level of force might not be as great as if Lezama used the vehicle as an 14 impact weapon to hit Gonzales head-on. 15 Moreover, the fact that Gonzales attempted to evade arrest cuts against a finding of 16 excessive or unreasonable force. See Graham, 490 U.S. at 396. Gonzales expressly said 17 “no” to Lezama’s order and fled by biking in the opposite direction. FAC ¶¶ 40, 41. 18 Under these circumstances, it might be reasonable for officers to use forceful conduct to 19 arrest the plaintiff given his resisting arrest. Tatum v. City & Cty. of San Francisco, 441 20 F.3d 1090, 1096–97 (9th Cir. 2006). 21 The Court FINDS that Gonzales’s facts are insufficient to allege a violation of his 22 constitutional rights. Gonzales may amend the complaint to allege additional facts in 23 support of this claim. 24 1. Qualified Immunity 25 The “doctrine of qualified immunity protects government officials ‘from liability 26 for civil damages insofar as their conduct does not violate clearly established statutory or 27 constitutional rights of which a reasonable person would have known.’” Pearson v. 1 (1982)). The qualified immunity analysis is two-pronged, querying: (1) whether there was 2 a deprivation of a constitutional or statutory right, and (2) whether that constitutional or 3 statutory right was “clearly established” at the time of the incident. See Pearson, 555 U.S. 4 at 232. The Court may exercise its discretion in deciding which prong to address first in 5 light of the particular circumstances of each case. See id. at 236. 6 Above, the Court found that Gonzales has not alleged sufficient facts to plead a 7 violation of his constitutional rights. This conclusion holds as to the first prong of the 8 qualified immunity analysis. Because Gonzales has not alleged a constitutional 9 deprivation, the Court need not decide whether the right was clearly established. 10 Nonetheless, the Court discusses this prong of the qualified immunity analysis for the 11 purpose of aiding the parties in the next round of pleading. 12 A right is “clearly established” if a case can be identified “where an officer acting 13 under similar circumstances . . . was held to have violated” the Constitution. White v. 14 Pauly, 137 S. Ct. 548, 552 (2017). The case need not be “directly on point for a right to be 15 clearly established,” but “existing precedent must have placed the statutory or 16 constitutional question beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018); 17 see Sharp v. Cty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (holding that a plaintiff 18 seeking to overcome qualified immunity must point to prior case law that articulates a 19 constitutional rule specific enough to alert these deputies in this case that their particular 20 conduct was unlawful). The Supreme Court has “repeatedly told courts —and the Ninth 21 Circuit in particular—not to define clearly established law at a high level of generality.” 22 Id. Moreover, the plaintiff bears the burden of proof that the right allegedly violated was 23 clearly established. Tarabochia v. Adkins, 766 F.3d 1115, 1125 (9th Cir. 2014). 24 Here, Gonzales has not met his burden of showing that the right implicated was 25 clearly established at the time of the incident. The most glaring issue is that the plaintiff 26 cites no case with comparable facts—where an officer used a patrol vehicle to strike a 27 fleeing cyclist—where the officer was held to have violated the Constitution. FAC ¶¶ 69– 1 equally lacking. Defendants did not cite controlling case law, but pointed to one Eleventh 2 Circuit case and another California District Court case to argue that a police officer may 3 use significant force to stop a person fleeing on a bicycle without violating the Fourth 4 Amendment. Motion at 6–7; see Montanez v. City of Orlando, 678 F. App’x 905, 906 5 (11th Cir. 2017); Dulaney v. Dyer, No. 1:14-CV-1051-LJO-BAM, 2015 WL 6081842, at 6 *1 (E.D. Cal. Oct. 13, 2015). Importantly, neither case defendants cite involves patrol 7 vehicles; in fact, both involve officers using significant bodily force to tackle or take down 8 fleeing cyclists. See id. It seems to the Court that the amount of force from vehicular 9 impact could be significantly greater than mere bodily impact. See generally, Saetrum v. 10 Vogt, 673 F. App’x 688, 690 (9th Cir. 2016) (holding that using a patrol car as an impact 11 weapon to drive into a pedestrian plaintiff and knocking him to the ground violated clearly 12 established law); Woodward v. D’Onofrio, No. 14-12347, 2015 WL 6507395, at *3 (E.D. 13 Mich. Oct. 28, 2015) (holding that striking a bicycle with a patrol car in order to stop or 14 seize a person is a violation of a clearly established right to be free from excessive force). 15 Plaintiff argues that this is one of the exceptions where the alleged violation was so 16 obvious that the “standard of ‘common sense’ can meet the clearly established threshold” 17 and that “[precedent] directly on point is not necessary.” Opp. at 5. The Court disagrees. 18 While it is “common sense” that a patrol vehicle is capable of producing excessive force 19 and inflicting injuries to a bicyclist, it is unclear to the Court whether that happened in this 20 case. See Paige v. City of New Brunswick, 680 F. App’x 107, 112 (3d Cir. 2017) 21 (reasoning that facts are essential to determine the reasonableness of the police action) 22 (“For example, whether they deliberately rammed the bicycle with their cruiser, or simply 23 attempted to block [plaintiff’s] flight, is a hotly contested matter.”). 24 The Court is not persuaded that either party’s cases show whether the right was 25 clearly established. Because it is plaintiff’s burden to make this showing, the Court finds 26 that the burden was not met at this stage of the case. Additionally, if Gonzales pleads 27 more facts in the amended complaint, the Court will consider those new facts in 1 Accordingly, the Court GRANTS Defendants’ motion to dismiss Gonzales’s first 2 claim with LEAVE TO AMEND. 3 B. Monell Liability 4 In a § 1983 action, a municipality is liable when the alleged actions implement a 5 municipal policy or custom in violation of constitutional rights. Monell v. Dep’t of Soc. 6 Servs. of the City of N.Y., 436 U.S. 658, 690 (1978). Under the Monell doctrine, Gonzales 7 must show that he was injured under an expressly adopted official policy, a long-standing 8 practice or custom, or the decision of a final policy maker. See Ellins v. City of Sierra 9 Madre, 710 F.3d 1049, 1066 (9th Cir. 2013). Generally, a municipality cannot be held 10 liable under § 1983 “solely because it employs a tortfeasor.” Monell, 426 U.S. at 691. 11 Rather, § 1983 liability may be imposed only when a municipal “policy” or “custom” is 12 the “moving force” behind a violation of federally protected rights. Id. at 694. 13 Here, Gonzales does not allege sufficient facts to support his claim that his injury 14 resulted from an official policy, a long-standing practice or custom, or the decision of a 15 final policy maker. In the FAC, Gonzales describes the city’s official policies as 16 “unconstitutional” without citing any policy statement, ordinance, regulation, or decision 17 officially adopted or promulgated by the City of San Jose. FAC ¶ 63. Absent a formal 18 policy, a plaintiff must show a “longstanding practice or custom which constitutes the 19 standard operating procedure of the local government entity.” Trevino v. Gates, 99 F.3d 20 911, 918 (9th Cir. 1996). Gonzales’s vague allegations also fail here. Gonzales contends 21 that “[the city] has had prior incidents of the use of a patrol vehicle to ram or strike a 22 fleeing suspect . . . .” FAC ¶¶ 62–63 (emphasis added). However, the description of 23 “prior incidents” is too vague to amount to a long-standing practice or custom. See 24 Clemmons v. City of Long Beach, 379 F. App’x 639, 641 (9th Cir. 2010) (holding that 25 improper custom may not be predicated on isolated or sporadic incidents; it must be 26 founded upon practices of sufficient duration, frequency and consistency that the conduct 27 has become a traditional method of carrying out policy). Gonzales mentioned two prior 1 nearly ten years apart . . . .” FAC ¶ 4. However, two incidents are not sufficient to 2 establish a custom. Meehan v. Los Angeles County, 856 F.2d 102 (9th Cir.1988). 3 Inadequacy of training may also “serve as the basis for § 1983 liability,” but only 4 when a plaintiff can prove “deliberate indifference”—a “stringent standard of fault, 5 requiring proof that a municipal actor disregarded a known or obvious consequence of his 6 action.” Board of Comm’rs of Bryan County. v. Brown, 520 U.S. 397, 410 (1997) 7 (requiting a pattern of similar constitutional violations under a failure-to-train theory). 8 Under this theory, Gonzales alleges that “[the city] failed to adequately supervise and train 9 [d]efendants to refrain from striking a fleeing suspect . . . with a police patrol vehicle” and 10 “[defendant city] has demonstrated deliberate indifference to this patten and practice of 11 Constitutional violations by its employees by failing to take necessary . . . measures . . . .” 12 FAC ¶¶ 76–77. Similarly here, Gonzales has not alleged enough facts to show that the city 13 acted with deliberate indifference as to its officers striking fleeing suspects because these 14 are mere conclusory statements. 15 Because Gonzales’s Monell claim contains conclusory legal statements rather than 16 specific facts, the Court finds that the Monell claim is insufficiently pleaded, and 17 GRANTS the motion to dismiss the § 1983 claim against San Jose with LEAVE TO 18 AMEND. 19 C. The Bane Act (California Civil Code § 52.1) 20 To bring a claim under California’s Bane Act, the plaintiff must satisfy two distinct 21 elements: (1) intentional interference or attempted interference with a state or federal 22 constitutional or legal right, and (2) that the interference or attempted interference was by 23 threats, intimidation, or coercion. Allen v. City of Sacramento, 234 Cal. App. 4th 41, 67 24 (2015); see also Cal Civ. Code § 52.1. Qualified immunity does not apply to claims under 25 the Bane Act, because qualified immunity is a federal doctrine that does not extend to state 26 tort claims against government employees. Venegas v. Cnty. of Los Angeles, 153 Cal. 27 App. 4th 1230, 1244–46 (2007). “[T]he elements of [an] excessive force claim under Civil 1 1096, 1105 (9th Cir. 2014). Thus, if a plaintiff cannot prove a constitutional violation 2 under § 1983, he cannot bring a cause of action under a Bane Act violation either. Pryor v. 3 City and Cty. of San Francisco, 671 F. App’x 751, 752 (9th Cir. 2017). 4 In their motion to dismiss, defendants argue that a Bane Act claim requires a 5 showing of threats, intimidation or coercion in addition to an underlying constitutional 6 violation. Motion at 15. Defendants cite Shoyoye v. Cty. of Los Angeles, in which the 7 court ruled that the Bane Act requires showing that the defendant used coercion or 8 violence to interfere with a constitutional right in addition to the coercion inherent in the 9 detention itself. 203 Cal. App. 4th 947, 958 (Cal. Ct. App. 2012) (citations omitted); 10 Motion at 21. Plaintiff counters with Reese v. County of Sacramento, 888 F. 3d 1030 (9th 11 Cir. 2018), in which the court ruled that the use of excessive force can be enough to satisfy 12 the “coercion” element of § 52.1. Opp. at 19. Here, Reese is the controlling case as the 13 Ninth Circuit has reasoned that “reliance on Shoyoye is misplaced” when the claim is about 14 excessive force. Reese 888 F. 3d at 1042. In Reese, the Ninth Circuit held that “[n]othing 15 in the test of [§ 52.1] requires that the offending ‘threat, intimidation or coercion’ be 16 ‘independent’ from the constitutional violation alleged.” Reese v. Cty. of Sacramento, 888 17 F.3d 1030, 1043 (9th Cir. 2018) (quoting Cornell v. City & Cty. of San Francisco, 17 Cal. 18 App. 5th 766, 801 (Cal. App. 2017)). 19 Additionally, the Bane Act requires “a specific intent to violate the arrestee’s right 20 to freedom from unreasonable seizure.” Id. In other words, it must be that the officer 21 “intended not only the force, but its unreasonableness, its character as more than necessary 22 under the circumstances.” Id. at 1045 (internal quotation omitted) (quoting United States v. 23 Reese, 2 F.3d 870, 885 (9th Cir. 1993)). 24 Here, Gonzales’s complaint falls short of alleging a Bane Act violation because 25 Gonzales does not allege enough facts to show Lezama intended not only the force, but 26 also its unreasonableness when he struck Gonzales. Gonzales only alleges that “Lezama 27 sped up coming out of the U-turn and accelerated towards the oncoming [Gonzales],” 1 allege enough facts for a constitutional violation under § 1983, he has not pled a cause of 2 action for a constitutional violation under the Bane Act either. Pryor, 671 F. App’x 752. 3 Accordingly, the Court GRANTS Defendants’ motion to dismiss Gonzales’s Bane 4 Act violation claim with LEAVE TO AMEND. 5 D. Intentional Infliction of Emotional Distress (IIED) 6 Plaintiff brings claims for intentional infliction of emotional distress against both 7 officer Lezama and against the City of San Jose under a theory of respondeat superior. 8 FAC ¶¶ 90–91. 9 A claim for intentional infliction of emotional distress requires a plaintiff to show: 10 (1) extreme and outrageous conduct by the defendant with the intent of causing, or reckless 11 disregard of the probability of causing, emotional distress; (2) the plaintiff actually 12 suffering severe or extreme emotional distress; and (3) actual or proximate causation. 13 Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1001 (1993). Severe or extreme 14 emotional distress “may consist of any highly unpleasant mental reaction such as fright, 15 grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry.” 16 Fletcher v. Western National Life Ins. Co., 10 Cal. App. 3d 376, 396 (1970). 17 Here, Gonzales’s claim for IIED is insufficiently pleaded. First, Gonzales’s 18 allegation “Lezama [had] the specific intent to inflict severe mental and emotional distress 19 upon the Plaintiff, to wit, the anticipation of being struck by a moving vehicle” amounts to 20 a legal conclusion. FAC ¶ 89. Second, because the IIED claim alleges the same facts as 21 an excessive force claim, the Court will defer the IIED claim to the determination of the 22 excessive force claim. See, e.g. Dillman v. Tuolumne Cnty., 1:13–CV–00404 LJO, 2013 23 WL 1907379 (E.D. Cal. May 7, 2013); C.B. v. Sonora Sch. Dist., 691 F. Supp. 2d 1170, 24 1186 (E.D. Cal. 2010) (illustrating that courts have deferred dismissal of the IIED claim 25 when the excessive force claim has yet to be decided). Because there are not enough facts 26 alleged as to the constitutional violation, the Court is not convinced that Lezama engaged 27 in “extreme and outrageous conduct” with an “intent of causing, or reckless disregard of 1 Accordingly, the Court GRANTS the motion to dismiss the IIED claim with 2 LEAVE TO AMEND. 3 E. The Government Claims Act 4 For claims brought under state (rather than federal) law, California’s Government 5 Claims Act requires a plaintiff to exhaust administrative remedies with a public entity 6 before filing a lawsuit against that entity for damages based on the same claim. State of 7 California v. Superior Court, 32 Cal. 4th 1234, 1237 (2004). In his complaint, a plaintiff 8 must allege compliance with the GCA to sufficiently plead his claim. Mangold v. 9 California Public Utilities Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). To exhaust 10 administrative remedies under the GCA, the plaintiff must both file an administrative 11 claim and the claim must have been rejected by the public entity. Cal. Gov. Code § 945.4 12 (2014); Cal. Gov. Code § 912.4 (2002). Rejection can come in the form of notice from the 13 entity or from 45 days with no response. Id. The California Supreme Court has held that 14 the exhaustion requirement is not merely a procedural requirement; rather, exhaustion 15 constitutes an element of every state law cause of action against a public entity. State of 16 California, 32 Cal. 4th at 1244 (rejecting the holding of Cory v. City of Huntington Beach, 17 43 Cal. App. 3d 131 (1974) that compliance with the GCA is a procedural requirement 18 rather than an element of any state law claim). This means that until a plaintiff’s 19 government claim has been rejected, his state law causes of action have not arisen because 20 one element does not exist. A cause of action must arise before a case is filed—a plaintiff 21 may not amend a complaint to add causes of action that arise later. Walton v. Kern Cty., 22 39 Cal. App. 2d 32, 34 (1940). So, if plaintiff has not exhausted administrative remedies 23 under the GCA when he files a complaint, his state law causes of action cannot later be 24 added to an amended complaint. 25 Such is the case here. The incident with Officer Lezama occurred on December 9, 26 2019. FAC ¶ 1. Plaintiff filed his government claim with the City of San Jose on 27 December 16, 2019. FAC ¶ 10. Plaintiff filed this case on December 17, 2019. Dkt. No. 1 complaint, which he filed on April 17, 2020, included state law claims for violation of the 2 Bane Act and for intentional infliction of emotional distress. Dkt. No. 24. In the 3 opposition to the motion to dismiss, Plaintiff acknowledges that his state law causes of 4 action had only accrued under the GCA when his claim with the City of San Jose had been 5 rejected—that is, after he filed the original complaint. Opp. at 15. 6 At the hearing on this motion, Plaintiff argued that the requirements of the GCA 7 have now technically been met and that the state law claims should thus proceed. Dkt. No. 8 39. But compliance with the GCA is more than a mere technicality. The purpose behind 9 the statute is to encourage would-be litigants to settle their cases with public entities before 10 the government has incurred the costs of defending a lawsuit. Le Mere v. Los Angeles 11 Unified Sch. Dist., 35 Cal. App. 5th 237, 247 (2019). The public entity is not afforded 12 time to investigate and resolve a claim that is filed the day before a lawsuit is filed. 13 Allowing the plaintiff to do so would be clearly out of step with the legislature’s intent in 14 enacting the GCA. 15 The motion to dismiss the state law claims for failure to comply with the 16 Government Claims Act is therefore GRANTED. The Court suspects that amendment to 17 cure this deficiency is futile. However, given Plaintiff’s leave to amend the rest of the 18 complaint, the Court grants LEAVE TO AMEND as to the GCA compliance to give the 19 plaintiff opportunity to allege further facts to show that his state law claims should not be 20 dismissed. 21 IV. Conclusion 22 The Court GRANTS Defendants’ motion to dismiss and GRANTS the plaintiff 23 LEAVE TO AMEND. If Gonzales chooses to amend, he must file his amended complaint 24 by July 10, 2020. If Gonzales does not file a timely amended complaint the Court will 25 enter judgment for defendants. The amended complaint may not add additional claims or 26 defendants without leave of Court. 27 1 IT IS SO ORDERED. 2 3 || Dated: June 15, 2020 hee —— _ NATHANAEL M. COUSINS 4 United States Magistrate Judge 5 6 7 8 9 10 11 12

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