Jones v. County of San Diego

Opinion

1 2 3 4 5 6 7 10 11 KENNETH JONES Case No.: 20CV1989-GPC(DEB)

12 Plaintiff, ORDER GRANTING DEFENDANT 13 v. COUNTY OF SAN DIEGO’S MOTION TO DISMISS THE FAC 14 COUNTY OF SAN DIEGO, a WITH LEAVE TO AMEND AND government entity, SAN DIEGO POLICE 15 DENYING DEFENDANT’S MOTION DEPARTMENT, a government entity, TO STRIKE 16 CITY OF SAN DIEGO, a government

entity, ALPINE SHERIFF’S 17 [Dkt. No. 8.] DEPARTMENT, a government entity and 18 DOES 1 through 50, inclusive, 19 Defendants. 20 21 Before the Court is Defendant County of San Diego’s motion to dismiss the first 22 amended complaint for failure to state a claim pursuant to Federal Rule of Civil 23 Procedure (“Rule”) 12(b)(6) and motion to strike under Rule 12(f).1 (Dkt. No. 8.) 24 Plaintiff filed an opposition. (Dkt. No. 15.) Defendant filed a reply. (Dkt. No. 16.) 25 Based on the reasoning below, the Court GRANTS Defendant’s motion to dismiss with 26 leave to amend and DENIES Defendant’s motion to strike. 27 28 1 Background 2 On October 8, 2020, Plaintiff Kenneth Jones (“Plaintiff”) filed a “42 U.S.C. § 1983 3 civil rights complaint” but alleged state law claims of negligence, assault, battery, 4 vicarious liability under California Government Code section 815.2, negligent infliction 5 of emotional distress and intentional infliction of emotional distress against the County of 6 San Diego, San Diego Police Department, City of San Diego and Alpine Sheriff’s 7 Department. (Dkt. No. 1, Compl.) After the Court issued an order to show cause why 8 the complaint should not be dismissed for lack of subject matter jurisdiction, Plaintiff 9 filed the operative first amended complaint (“FAC”) against the same defendants. (Dkt. 10 Nos. 3, 4.) The FAC alleges race discrimination under 42 U.S.C. § 1983 and 42 U.S.C. § 11 2000(d). (Dkt. No. 4, FAC ¶¶ 48-65.) It also alleges state law claims of negligence, 12 assault, battery, vicarious liability under California Government Code section 815.2, 13 negligent infliction of emotional distress, and intentional infliction of emotional distress. 14 (Id. ¶¶ 66-163.) On August 12, 2021, Defendants City of San Diego and San Diego 15 Police Department were dismissed pursuant to a joint motion. (Dkt. Nos. 11, 13.) 16 According to the FAC, Plaintiff, an African-American male, is a resident of Los 17 Angeles, California. (Dkt. No. 4, FAC ¶¶ 15, 24.) In March 2018, Plaintiff was at Viejas 18 Casino and was granted permission to drive his brother’s girlfriend’s 2017 Dodge 19 Challenger. (Id. ¶ 28.) Eight or nine of Defendant County of San Diego’s officers, who 20 were all Caucasian, refused “to believe [Plaintiff’s] assertion regarding the vehicle” and 21 immediately “engaged in violent arresting procedures.” (Id. ¶¶ 25, 29, 30.) Plaintiff 22 pulled into the Viejas Casino parking lot, he put his hands out the window, and with 23 permission unlocked the door with his left hand. (Id. ¶ 32.) He then exited the vehicle 24 with both hands raised walking backward away from the vehicle. (Id. ¶ 33.) He 25 complied and went down to his knees on the ground. (Id. ¶ 34.) Initially, the eight or 26 nine Caucasian officers aggressively twisted Plaintiff’s wrists to handcuff him. (Id. ¶¶ 27 35, 36.) Once handcuffed, the officers started to aggressively and repeatedly beat, kick, 28 and punch Plaintiff. (Id. ¶ 37.) One officer kicked Plaintiff in the eye causing severe 1 injury. (Id. ¶ 38.) After the beating, one officer smirked telling Plaintiff to file a 2 complaint “as if absolved for committing these violent, inhumane and purely 3 discriminatory acts.” (Id. ¶ 39.) After being arrested, the charges for the stolen vehicle 4 were dropped. (Id. ¶ 41.) Plaintiff asserts that it was clear that the beating was due to his 5 race. (Id. ¶ 44.) 6 Plaintiff alleges he filed a claim with Defendant pursuant to California 7 Government Code section 911.2 but the claim was denied. (Id. ¶ 8.) He then filed the 8 complaint in this Court. (Dkt. No. 1, Compl.) 9 Defendant County of San Diego moves to dismiss the FAC arguing that the claims 10 are barred by the statute of limitations and the claims fail to state a claim. (Dkt. No. 8.) 11 Plaintiff responded and Defendant replied. (Dkt. Nos. 15, 16.) 12 Discussion 13 A. Legal Standard as to Federal Rule of Civil Procedure 12(b)(6) 14 Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state a 15 claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal under Rule 16 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient 17 facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t., 901 18 F.2d 696, 699 (9th Cir. 1990). Under Federal Rule of Civil Procedure 8(a)(2), the 19 plaintiff is required only to set forth a “short and plain statement of the claim showing 20 that the pleader is entitled to relief,” and “give the defendant fair notice of what the . . . 21 claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 22 544, 555 (2007). 23 A complaint may survive a motion to dismiss only if, taking all well-pleaded 24 factual allegations as true, it contains enough facts to “state a claim to relief that is 25 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 26 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 27 content that allows the court to draw the reasonable inference that the defendant is liable 28 for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of 1 action, supported by mere conclusory statements, do not suffice.” Id. “In sum, for a 2 complaint to survive a motion to dismiss, the non-conclusory factual content, and 3 reasonable inferences from that content, must be plausibly suggestive of a claim entitling 4 the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) 5 (quotations omitted). In reviewing a Rule 12(b)(6) motion, the Court accepts as true all 6 facts alleged in the complaint, and draws all reasonable inferences in favor of the 7 plaintiff. al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). 8 Where a motion to dismiss is granted, “leave to amend should be granted ‘unless 9 the court determines that the allegation of other facts consistent with the challenged 10 pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight Sys., Inc., 11 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture 12 Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would 13 be futile, the Court may deny leave to amend. See DeSoto, 957 F.2d at 658; Schreiber, 14 806 F.2d at 1401. 15 B. Federal Rule of Civil Procedure 12(f) 16 Rule 12(f) provides that the court “may strike from a pleading an insufficient 17 defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 18 12(f). “The function of a 12(f) motion to strike is to avoid the expenditure of time and 19 money that must arise from litigating spurious issues by dispensing with those issues 20 prior to trial . . . .” Whittlestone, Inc. v. Handi–Craft Co., 618 F.3d 970, 973 (9th Cir. 21 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on 22 other grounds 510 U.S. 517 (1994)). 23 C. 42 U.S.C. § 1983 - Statute of Limitations 24 Defendant argues the 42 U.S.C. § 1983 (“§ 1983”) claim for race discrimination is 25 barred by the two-year statute of limitations because the alleged incident occurred in 26 March 2018 and the complaint was not filed until October 8, 2020. (Dkt. No. 8-1 at 11- 27 12.) Plaintiff does not dispute that his claims are time barred but argues he is entitled to 28 equitable tolling because he was incarcerated on another matter from May 2018 – July 1 2020 and suffered a stroke while imprisoned in June 2018. (Dkt. No. 15 at 12-16.) He 2 also contends that he promptly filed his complaint three months after he was released 3 from prison. (Id. at 14.) 4 “For actions under 42 U.S.C. § 1983, courts apply the forum state’s statute of 5 limitations for personal injury actions, along with the forum state’s law regarding tolling, 6 including equitable tolling, except to the extent any of these laws is inconsistent with 7 federal law.” Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (citation omitted); see 8 also Elliott v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1994). The statute of 9 limitations for personal injury actions under California law is two years. See Cal. Code 10 Civ. P. § 335.1; see also Jones, 393 F.3d at 927. 11 Although state statute of limitations and tolling principles apply, federal law 12 determines when a cause of action accrues for a § 1983 claim. Belanus v. Clark, 796 13 F.3d 1021, 1025 (9th Cir. 2015). Under federal law, a cause of action accrues when the 14 plaintiff knows or has reason to know of the injury that is the basis of the action. 15 Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004); Kimes v. Stone, 84 F.3d 1121, 16 1128 (9th Cir. 1996). Thus, “[a]n action ordinarily accrues on the date of the injury.” Id. 17 Here, Plaintiff's claims accrued on the date of the alleged attack in March 2018.2 (Dkt. 18 No. 4, FAC ¶ 27.) Therefore, because the complaint was not filed until October 8, 2020, 19 his complaint is untimely. Plaintiff agrees that his complaint is untimely but equitable 20 tolling applies to his case. (Dkt. No. 15 at 12-13.) 21 Equitable tolling is a judge-made doctrine that permits tolling of the limitations 22 period “to prevent the unjust technical forfeiture of causes of action, where the defendant 23 would suffer no prejudice.” Lantzy v. Centex Homes, 31 Cal. 4th 363, 270 (2003). 24 “Application of California's equitable tolling doctrine requires a balancing of the injustice 25 26 27 2 While Plaintiff maintains that the two-year statute of limitation applies to his § 1983 claim, he incorrectly states that March 2020 is the accrual date. (Dkt. No. 15 at 14.) It appears that Plaintiff 28 1 to the plaintiff occasioned by the bar of his claim against the effect upon the important 2 public interest or policy expressed by the . . . limitations statute.” Jones, 393 F.3d at 928 3 (internal quotations omitted). 4 Under California law, a party claiming equitable tolling must show: “first, that the 5 plaintiff gave timely notice to the defendant of the plaintiff's claim; second, that the 6 resultant delay did not cause prejudice to the defendant’s position; and third, that the 7 plaintiff acted reasonably and in good faith.” Ervin v. Los Angeles Cnty., 84 F.3d 1018, 8 1019 (9th Cir.1988) (citing Addison v. State of Cal., 21 Cal. 3d 313, 319 (1978) 9 (“application of the doctrine of equitable tolling requires timely notice, and lack of 10 prejudice, to the defendant, and reasonable and good faith conduct on the part of the 11 plaintiff.”)). “[T]he effect of equitable tolling is that the limitations period stops running 12 during the tolling event, and begins to run again only when the tolling event has 13 concluded.” Lantzy, 31 Cal. 4th at 370. 14 The FAC alleges equitable tolling should apply to make his complaint timely 15 because he was released from incarceration in July 2020 and being incarcerated 16 prevented him from filing a suit. (Dkt. No. 4, FAC ¶ 9.) In his opposition, Petitioner 17 further explains that he was incarcerated on another matter in May 2018 in Riverside 18 County until July 2020. (Dkt. No. 15 at 14.) Moreover, while incarcerated, in June 2018, 19 he suffered a severe stroke requiring hospitalization until August 2018. (Id. at 14.) 20 Thereafter, Plaintiff was wheelchair bound and also suffered severe mental damage. (Id.) 21 Petitioner argues he is entitled to equitable tolling during his period of incarceration and 22 during the time surrounding his stroke and rehabilitation. 23 To the extent that Plaintiff claims that equitable tolling applies to the period he was 24 incarcerated from May 2018 - July 2020, it appears that he may be relying on tolling for 25 imprisonment under California Code of Civil Procedure section 352.1 applies.3 Section 26

27 3 In support, Plaintiff cites to a California state court website stating that tolling “may happen when 28 1 352.1 provides a two-year tolling of the statute of limitations to persons incarcerated, a 2 recognized disability, at the time the claim accrues. 3 If a person entitled to bring an action . . . is, at the time the cause of action accrued, imprisoned on a criminal charge . . . for a term less than for life, the 4 time of that disability is not a part of the time limited for the commencement 5 of the action, not to exceed two years.

6 Cal. Civ. Proc. § 352.1. Under this section, Plaintiff must allege he was incarcerated 7 when his claims accrued. See Groce v. Claudat, 603 F. App'x 581, 582 (9th Cir. 2015) 8 (“The district court correctly determined that all of [the plaintiff's] claims ... were time- 9 barred because [the plaintiff] was not incarcerated when his claims accrued.”); see also 10 Wilkins v. Vancott, No. 17-CV-00340-YGR (PR), 2018 WL 3763316, at *3 (N.D. Cal. 11 Aug. 7, 2018) (“Tolling under section 352.1 is triggered by the plaintiff's arrest and 12 incarceration.”); Briceno v. Williams, Case No.: 16cv1665-JAH (AGS), 2018 WL 13 6040688, at *2 (S.D. Cal. Nov. 19, 2018) (“In order to trigger § 352.1 tolling, a plaintiff 14 must be imprisoned ‘at the time the cause of action accrued.’”). 15 In this case, FAC does not allege he was incarcerated at the time of the incident. In 16 his opposition, he explains that he was incarcerated two months after the incident. As 17 such, section 352.1 is inapplicable. Therefore, because the FAC only seeks equitable 18 tolling based on imprisonment tolling, the Court GRANTS Defendant’s motion to 19 dismiss the § 1983 claim as time barred. 20 However, facts raised in the opposition, not raised in the FAC, concerning the 21 stroke he suffered in June 2018 and subsequent rehabilitation, may allege entitlement to 22 equitable tolling. Cf. Gaston v. Palmer, 417 F.3d 1030, 1034-35 (9th Cir. 2005) 23 (physical and mental disabilities did not provide for equitable tolling because they did not 24 25 26 27 does not cite to the specific provision of the statute to support this assertion on the state court’s website. Therefore, the Court construes his argument as seeking tolling under section 352.1 of the California 28 1 prevent the prisoner from meeting other filing deadlines). Therefore, the Court GRANTS 2 Plaintiff leave to file a second amended complaint (“SAC”). 3 The Court also notes that even if Plaintiff had sufficiently alleged equitable tolling, 4 on a Rule 12(b)(6) motion, the “sole issue is whether the complaint, liberally construed in 5 light of our ‘notice pleading’ system, adequately alleges facts showing the potential 6 applicability of the equitable tolling doctrine.” Cervantes v. City of San Diego, 5 F.3d 7 1273, 1277 (9th Cir. 1993) (test for equitable tolling “requires reference to matters 8 outside the pleadings, and is not generally amenable to resolution on a Rule 12(b)(6) 9 motion, where review is limited to the complaint alone.”). Thus, “[w]hen a motion to 10 dismiss is based on the running of the statute of limitations, it can be granted only if the 11 assertions of the complaint, read with the required liberality, would not permit the 12 plaintiff to prove that the statute was tolled.” Jablon v. Dean Witter & Co., 614 F.2d 677, 13 682 (9th Cir. 1980). In this case, if equitable tolling had been adequately alleged, on a 14 Rule 12(b)(6) motion, the Court would not be in a position to make factual 15 determinations on whether equitable tolling applies. 16 D. First Cause of Action - Monell Claim 17 Even if not time barred, Defendant County of San Diego additionally argues that 18 the § 1983 claim fails to allege facts to support a Monell claim against it because the FAC 19 fails to allege the plausible existence of a policy, custom or practice that caused the 20 constitutional violation. (Dkt. No. 8-1 at 20-22.) Plaintiff argues he has sufficiently 21 alleged a Monell claim. (Dkt. No. 15 at 21-22.) 22 The FAC solely alleges a § 1983 claim solely against municipal entities, the 23 County of San Diego and the Alpine Sheriff’s Department.4 (Dkt. No. 4, FAC ¶¶ 48-65.) 24 Cities, counties and other local government entities are subject to claims under 42 U.S.C. 25 § 1983. Monell v. Dep't of Social Servs. of the City of New York, 436 U.S. 658 (1978). 26 27 28 1 While municipalities, their agencies and their supervisory personnel cannot be held liable 2 under § 1983 on any theory of respondeat superior or vicarious liability, they can, 3 however, be held liable for deprivations of constitutional rights resulting from their 4 formal policies or customs. Id. at 691-93. Liability only attaches where the municipality 5 itself causes the constitutional violation through “execution of a government's policy or 6 custom, whether made by its lawmakers or by those whose edicts or acts may fairly be 7 said to represent official policy.” Id. at 694. 8 To prevail, a plaintiff must prove “(1) [the plaintiff] had a constitutional right of 9 which he was deprived; (2) the municipality had a policy; (3) the policy amounts to 10 deliberate indifference to his constitutional right; and (4) ‘the policy is the moving force 11 behind the constitutional violation.’” Gordon v. Cnty. of Orange, 6 F.4th 961, 973 (9th 12 Cir. 2021) (citing Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011)). The 13 “failure to train may amount to a policy of ‘deliberate indifference,’ if the need to train 14 was obvious and the failure to do so made a violation of constitutional rights likely.” 15 Dougherty, 654 F.3d at 900 (citing City of Canton v. Harris, 489 U.S. 378 (1989)). In 16 addition, “a failure to supervise that is ‘sufficiently inadequate’ may amount to 17 ‘deliberate indifference.’” Id. (citing Davis v. City of Ellensburg, 869 F.2d 1230, 1235 18 (9th Cir. 1989). For purposes of surviving a Rule 12(b)(6) challenge based on an 19 unconstitutional policy or custom, a plaintiff must “(1) identify the challenged 20 policy/custom; (2) explain how the policy/custom is deficient; (3) explain how the 21 policy/custom caused the plaintiff harm; and (4) reflect how the policy/custom amounted 22 to deliberate indifference, i.e. show how the deficiency involved was obvious and the 23 constitutional injury was likely to occur.” Young v. City of Visalia, 687 F. Supp. 2d 1155, 24 1163 (E.D. Cal. 2010) (citations omitted). 25 In this case, the FAC fails to allege any specific custom or policy that is 26 unconstitutional and summarily states that Plaintiff was subject to “adverse policies”. 27 (Dkt. No. 4, FAC ¶ 55.) In opposition, Plaintiff fails to identify what allegations in the 28 FAC support his argument that he alleged a custom or policy and merely maintains that 1 the County has a policy that “police officers can use force against a potential criminal” 2 and its “policy granting the use of force allowed Defendant County and its police officers 3 to use said for excessively which is a common issue with Defendant County. . . .”5 (Dkt. 4 No. 15 at 22.) Even if these arguments were alleged in the FAC, they are conclusory and 5 do not satisfy the pleading standard for a Monell claim. Accordingly, the Court 6 additionally GRANTS Defendant County of San Diego’s motion to dismiss the first 7 cause of action under Monell. 8 E. State Law Claims 9 1. Government Claims Act 10 Defendant argues that all state law claims should be dismissed because the FAC 11 does not allege that Plaintiff complied with the Government Claims Act. (Dkt. No. 8-1 at 12 16.) Defendant further contends that the state law claims are time barred because they 13 were not filed within two years of accrual or six months of claim rejection under section 14 945.6. (Dkt. No. 8-1 at 12-13.) Plaintiff disagrees arguing that equitable tolling applies 15 to his state law claims. (Dkt. No. 15 at 17-18.) 16 Under California’s pleading standard against a public entity under the Government 17 Claims Act, “a plaintiff must allege facts demonstrating or excusing compliance with the 18 claim presentation requirement. Otherwise, his complaint . . . fail[s] to state facts 19 sufficient to constitute a cause of action.” State of California v. Superior Ct., 32 Cal. 4th 20 1234, 1243 (2004); Robinson v. Alameda Cnty., 875 F. Supp. 2d 1029, 1043 (N.D. Cal. 21 2012). 22 Here, the FAC summarily alleges that he filed a claim as required by section 911.2 23 but his claim was denied. (Dkt. No. 4, FAC ¶ 8.) This summary allegation does not 24

25 26 5 In support of a policy or custom, Plaintiff cites to Exhibit 3 attached to his opposition which is an article entitled “County Supervisors approved almost $2 million in damages so far this year.” (Dkt. No. 27 15 at 58-65.) However, on a motion to dismiss, the Court is limited to review of the pleadings. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). Accordingly, the Court declines to consider this 28 1 sufficiently assert compliance with the claim presentment procedure that sets out specific 2 deadlines. In the FAC, Plaintiff fails to provide any specifics dates as to his claim history 3 in order for the Court to determine whether he has alleged compliance with the 4 Government Claims Act.6 Accordingly, the Court GRANTS Defendant’s motion to 5 dismiss for failing to allege compliance with the Government Claims Act.7 6 Even though the Court grants dismissal of the state law claims for not properly 7 alleging compliance with the Government Claims Act, the Court considers the County’s 8 additional argument seeking to dismiss the state law claims in order to provide Plaintiff 9 with guidance when he files his second amended complaint. 10 2. Failure to Allege State Law Claims 11 The County moves to dismiss the state law claims for negligence, assault, battery, 12 negligent infliction of emotional distress and intentional infliction of emotional distress 13 because it is immune from direct liability of common law torts under California 14 Government Code section 815. (Dkt. No. 8-1 at 17-19.) Plaintiff responds that the 15 County is vicariously liable for the state law claims but agrees to dismiss the negligent 16 infliction of emotional distress claim. (Dkt. No. 15 at 19-21.) Accordingly, the Court 17 additionally GRANTS dismissal of the cause of action for negligent infliction of 18 emotional distress as unopposed. (Id. at 19.) 19 In his FAC, Plaintiff relies on Government Code section 815.2(a) to support the 20 County’s liability on the second cause of action for negligence, third cause of action for 21 22 23 6 In opposition, Plaintiff provides specific facts to explain the history of his claim presentation to the County but they are not alleged in the FAC. 24 7 Defendant also maintains that the state law claims are time barred because they were not filed within 25 two years of accrual or six months of claim rejection under Government Code section 945.6. (Dkt. No. 8-1 at 12-13.) In support, Defendant relies on Plaintiff’s late government claim presented to the County 26 and the County’s denial, which are documents outside the FAC. (Dkt. No. 8-3, Osborn Decl.) On a Rule 12(b)(6) motion, a court cannot consider materials outside the complaint. See Harrell v. City of 27 Gilroy, Case No. 17-CV-05204-LHK, 2018 WL 3845862, at *12 (N.D. Cal. Aug. 13, 2018) (“consideration of non-judicially noticeable facts outside the complaint is improper”). Therefore, the 28 1 assault and fourth cause of action for battery but not for the claim for intentional 2 infliction of emotional distress. (Dkt. No. 4, FAC ¶¶ 78, 94, 112.) 3 The California Tort Claims Act (“CTCA”) provides the exclusive scope of tort 4 liability for government entities and employees. Cal. Gov’t Code § 810, et seq. The 5 CTCA abolished common law governmental tort liability. Becerra v. Cnty. of Santa 6 Cruz, 68 Cal. App. 4th 1450, 1457 (1998). Thus, “in the absence of some constitutional 7 requirement, public entities may be liable only if a statute declares them to be liable.” Id. 8 (emphasis in original); see also Cal. Gov't Code § 8158; Michael J. v. Los Angeles Cnty. 9 Dept. of Adoptions, 201 Cal. App. 3d 859, 866 (1988) (“Under the Act, governmental tort 10 liability must be based on statute; all common law or judicially declared forms of tort 11 liability, except as may be required by state or federal Constitution, were abolished”); 12 Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876, 899 (2008) (“section 815 abolishes 13 common law tort liability for public entities”). 14 To the extent the FAC alleges a number of state claims asserting direct liability 15 against the County, they must be dismissed. However, California Government Code 16 section 815.2 “makes a public entity vicariously liable for its employee’s negligent acts 17 or omissions within the scope of employment.” Eastburn v. Regional Fire Protection 18 Auth., 31 Cal. 4th 1175, 1180 (2003); see also Rivera v. Cnty. of Los Angeles, 745 F.3d 19 384, 393 (9th Cir. 2014) (public entitles are liable for the actions of their employees) 20 (citing California Government Code section 815.2(a)). Further, if the employees are 21 immune from liability, the public entitles are also immune. Rivera, 745 F.3d at 393 22 (citing California Government Code section 815.2(b)). 23 On the causes of action for negligence, assault and battery, the FAC alleges 24 vicarious liability against the County under Government Code section 815.2. (Dkt. No. 25 26 27 8 A public entity is not liable under state law “for an injury, whether such injury arises out of an act or omission of the public entity or public employee or any other person” except “as otherwise provided by 28 1 4, FAC ¶¶ 78, 94, 112.) Here, if the state law claims had not been dismissed for failing to 2 allege compliance with the Government Claims Act, the Court would deny Defendant’s 3 motion to dismiss the second, third and fourth causes of action against the County for the 4 claims which are premised on vicarious liability. See D.V. v. City of Sunnyvale, 65 F. 5 Supp. 3d 782 (N.D. Cal. 2014) (entity was “therefore vicariously liable for any assault 6 and battery or negligence by its officers”); Rojas v. Sonoma Cnty., No. C–11–1358 EMC, 7 2011 WL 5024551, at *6 (N.D. Cal. Oct. 21, 2011) (denying County's motion to dismiss 8 assault and battery, false arrest/imprisonment, and intentional and negligent infliction for 9 emotional distress where county could be held liable under vicarious liability). 10 However, as to the seventh cause of action for intentional infliction of emotional 11 distress claim (“IIED”), the FAC does not assert vicarious liability against the County; 12 therefore, in addition to granting dismissal of the seventh cause of action for failing to 13 comply with the Government Claims Act, the Court also GRANTS dismissal of the 14 seventh claim because Plaintiff has not alleged a statutory basis for the claim. 15 F. Motion to Strike Punitive Damages 16 Defendant further moves, under Rule 12(f), to strike the prayer for punitive 17 damages because they are not recoverable against a public entity under state law and 18 under § 1983. (Dkt. No. 8-1 at 23.) Plaintiff disagrees. (Dkt. No. 15 at 23-24.) 19 In Whittlestone, Inc., the Ninth Circuit held that a Rule 12(f) motion to strike is not 20 the procedural means to attack a punitive damages prayer on the grounds that it is 21 precluded as a matter of law. Whittlestone, Inc., 618 F.3d at 974-75. The court explained 22 that these arguments were “better suited for a Rule 12(b)(6) motion or a Rule 56 motion, 23 not a Rule 12(f) motion.” Id. at 974. Therefore, under Whittlestone, Defendant’s motion 24 to strike punitive damages as legally barred is improper under Rule 12(f), but the Court 25 considers its argument under a Rule 12(b)(6) motion. 26 Here, the FAC generally seeks punitive damages. Defendant’s argument is correct 27 that it is immune from punitive damages under § 1983 and California state law. See City 28 of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (“a municipality is immune 1 from punitive damages under 42 U.S.C. § 1983”); Cal. Gov’t Code § 818 2 (“Notwithstanding any other provision of law, a public entity is not liable for damages 3 awarded under Section 3294 of the Civil Code or other damages imposed primarily for 4 the sake of example and by way of punishing the defendant.”). Accordingly, the Court 5 also GRANTS Defendant’s motion to dismiss the punitive damages claim against the 6 County with prejudice. 7 G. Motion to Strike Defendant Alpine Sheriff’s Department 8 Defendant County of San Diego also seeks to strike the Alpine Sheriff’s 9 Department as a redundant defendant because it is a subsidiary of the County and is not a 10 separate entity subject to suit. (Dkt. No. 8-1 at 23.) Plaintiff responds that if the Court 11 strikes the allegations against the Alpine Sheriff’s Department, then all relevant 12 allegations about the brutality Plaintiff suffered would be removed and he would not be 13 able to obtain relief. (Dkt. No. 15 at 25.) In reply, Defendant argues that Plaintiff 14 misunderstands Defendant’s motion to strike which is not directed at material allegations, 15 but at a named defendant. (Dkt. No. 16 at 8.) 16 The Alpine Sheriff’s Department does not exist as an entity. Instead, the San 17 Diego County Sheriff’s Department includes an Alpine substation. See 18 https://www.sdsheriff.gov/bureaus/law-enforcement-services-bureau/patrol-stations. 19 Therefore, Plaintiff appears to have misnamed the San Diego County Sheriff’s 20 Department as the Alpine Sheriff’s Department. Moreover, it appears that Defendant is 21 contending that the San Diego County Sheriff’s Department is not a suable entity. 22 The Ninth Circuit has held that a Sheriff’s Department is a separately suable entity, 23 separate from the County, and subject to suit in a § 1983 case. Streit v. Cnty. of Los 24 Angeles, 236 F.3d 552, 566 (9th Cir. 2001) (Los Angeles Sheriff’s Department is a 25 separately suable entity); see also C.B. v. Moreno Valley Unified Sch. Dist., -- F. Supp. 26 3d --. 2021 WL 2644101, at *5 (C.D. Cal. June 17, 2021) (citation omitted) (denying 27 County’s motion to dismiss Sheriff’s Department as redundant). Accordingly, to the 28 extent that Plaintiff seeks to name the San Diego County Sheriff’s Department as a 1 || defendant, the Court DENIES the County’s motion to dismiss because a Sheriff’s 2 || Department is a separate suable entity.’ 3 ||H. Leave to Amend 4 In the event the Court grants dismissal of the FAC, Plaintiff requests leave of Court 5 file a second amended complaint (“SAC”). (Dkt. No. 15 at 27-28.) Because the Court 6 || grants Defendant’s motion to dismiss, and the allegations in the FAC are not futile, the 7 Court GRANTS Plaintiff's request to file a SAC to cure the deficiencies noted in the 8 |lorder. See DeSoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401. 9 Conclusion 10 Based on the above, the Court GRANTS Defendant’s motion to dismiss the FAC 11 || with leave to amend and DENIES Defendant’s motion to strike the Sheriff's Department 12 ||as a defendant. Plaintiff shall file a SAC within 14 days of the filed date of this order. 13 || The hearing set on October 1, 2021 shall be vacated. 15 Dated: September 28, 2021 72 16 Hon. athe Ck 17 United States District Judge 18 19 20 21 22 23 24 2 26 ||° Despite the binding ruling in Streit, district courts in this circuit have concluded that municipal subsidiaries such as a police department or sheriff’s departments are not “persons” under § 1983. See 27 || Estate of Osuna v. Cnty. of Stanislaus, 392 F. Supp. 3d 1162, 1171 n.2 (E.D. Cal. 2018) (acknowledging 3g || that numerous districts have ruled that sheriff's department and police departments are not “persons” within the meaning of § 1983).