Kiemariah Richmond v. City and County of San Francisco, et al.

• Court: District Court, N.D. California
• Decided: January 30, 2026
• Docket: 5:25-cv-05545
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 KIEMARIAH RICHMOND, Case No. 25-cv-05545-BLF

8 Plaintiff, ORDER GRANTING-IN-PART AND 9 v. DENYING-IN-PART DEFENDANTS’ MOTION TO DISMISS 10 CITY AND COUNTY OF SAN FRANCISCO, et al., [Re: ECF No. 18] 11 Defendants. 12 13 Before the Court is Defendants City and County of San Francisco, Sargant Ibarra, Deputy 14 Gee, Deputy Luo, Deputy Tang, and Deputy Toy’s (“Defendants”) Motion to Dismiss Plaintiff’s 15 First and Second Causes of Action in their entirety; Third, Fourth, and Sixth Causes of Action as 16 to Deputies Toy and Gee; and Sixth Cause of Action as to the City insofar as it is based on an 17 alleged assault that occurred on April 29, 2023. ECF No. 18 at 2 (“Mot.”); see also ECF No. 23 18 (“Reply”). Plaintiff Kiemariah Richmond (“Plaintiff”) opposes the motion. ECF No. 22 (“Opp.”). 19 The Court took Defendants’ motion under submission and carefully reviewed the parties’ briefs. 20 ECF No. 24. For the following reasons, Defendants’ motion is GRANTED-IN-PART and 21 DENIED-IN-PART. 22 I. BACKGROUND 23 This case arises from two separate instances of alleged physical violence against Plaintiff, 24 a 24-year-old pretrial detainee, while in the custody of the City and County of San Francisco 25 (“CCSF”). First Amended Compl. ¶¶ 1, 4, ECF No. 13 (“FAC”). Plaintiff was first booked into 26 CCSF custody on October 12, 2022. Id. ¶ 14. On or about April 29, 2023, Deputies Gee and Toy 27 allegedly allowed another prisoner out of his cell while Plaintiff’s hands were handcuffed behind 1 sprayed Plaintiff with oleoresin capsicum, told Lieutenant Michael Zehner that Plaintiff provoked 2 the attack, and did not immediately provide Plaintiff with medical assistance. Id. ¶¶ 16-18. 3 Separately, on or about September 1, 2024, Sergeant Ibarra allegedly extracted Plaintiff 4 from his cell and placed him in a safety cell. Id. ¶¶ 20-21. Deputies Luo and Tang then 5 physically assaulted Plaintiff, forcibly removed his clothing and searched his person, told Plaintiff 6 to dress in a smock, and then dragged Plaintiff in a wheelchair by the neck of his smock. Id. ¶¶ 7 22-23. Plaintiff alleges that both incidents caused injuries that necessitated trips to the hospital. 8 Id. ¶¶ 20, 26-27. 9 Plaintiff is currently imprisoned at Jail No. 3 in San Bruno, California. Id. ¶ 14. He filed 10 this lawsuit on July 1, 2025, asserting claims for failure to protect (First Claim), state-created 11 danger (Second Claim), excessive force (Third Claim), deliberate indifference to medical need 12 (Fourth Claim), and violation of the Bane Act (Sixth Claim).1 Compl. ¶¶ 32-51. He amended his 13 complaint on October 9, 2025, to add the allegation that “[s]ometime between April 2023 to April 14 2024, [he] lacked legal capacity due to his disability[] [or that,] [i]n the alternative, sometime 15 between April 2023 and April 2024, [he] may have lacked legal capacity due to his disability.” 16 FAC ¶ 4. Defendants’ Motion to Dismiss followed. 17 II. LEGAL STANDARD 18 A. Rule 12(b)(6) 19 Dismissal of a complaint is appropriate under Rule 12(b)(6) “if the complaint fails to state 20 a cognizable legal theory or fails to provide sufficient facts to support a claim.” Sinclair v. City of 21 Seattle, 61 F.4th 674, 678 (9th Cir. 2023). When considering a Rule 12(b)(6) motion, a court must 22 “take all allegations of fact as true and construe them in the light most favorable to the nonmoving 23 party.” Id. While a complaint need not contain detailed factual allegations, it “must contain 24 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 25 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 26 570 (2007)). 27 1 When “the statute of limitations is [raised as] an affirmative defense, the defendant bears 2 the burden of proving that the plaintiff filed beyond the limitations period.” Payan v. Armark 3 Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1123 (9th Cir. 2007). If the defendant meets its burden, 4 “[t]he burden of alleging facts which would give rise to tolling falls upon the plaintiff.” Hinton v. 5 Pac. Enters., 5 F.3d 391, 395 (9th Cir. 1993); see also U.S. v. Marolf, 173 F.3d 1213, 1218 n. 3 6 (9th Cir. 1999) (“The burden is on the plaintiff to show that equitable tolling is appropriate.”). 7 B. Leave to Amend 8 In deciding whether to grant leave to amend, the Court must consider the factors set forth 9 by the Supreme Court in Foman v. Davis, 371 U.S. 178 (1962), and discussed at length by the 10 Ninth Circuit in Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2003). A district 11 court ordinarily must grant leave to amend unless one or more of the Foman factors is present: (1) 12 undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure deficiencies by 13 amendment, (4) undue prejudice to the opposing party, or (5) futility of amendment. Id. at 1052. 14 “[I]t is the consideration of prejudice to the opposing party that carries the greatest weight.” Id. 15 However, a strong showing with respect to one of the other factors may warrant denial of leave to 16 amend. Id. 17 III. REQUESTS FOR JUDICIAL NOTICE 18 Defendants request that the Court take judicial notice of the fact that Plaintiff submitted a 19 claim under the Government Claims Act to CCSF on December 3, 2024, related to the incident on 20 April 29, 2023. See Req. for Judicial Notice ¶ 1, ECF No. 19; Ex. A to Req. for Judicial Notice, 21 ECF No. 19-1. Defendants argue that this fact is admissible as an adjudicative fact under the 22 Federal Rules of Evidence because it is a matter of public record. See Req. for Judicial Notice at 23 1-2 (citing Fed. R. Evid. 201(b)). Plaintiff does not dispute this request and relies on the same 24 date in his briefing. See Opp. at 5. 25 Separately, Plaintiff requests that the Court take judicial notice of the fact that CCSF 26 provided a notice of action upon his claim on January 21, 2025. See Kim Decl. ¶ 5, ECF No. 22- 27 1; Kim Decl., Ex. A, ECF No. 22-2. Additionally, counsel for Plaintiff submitted a declaration 1 underwent forensic psychological evaluations on August 8, 2024, and September 29, 2024, and 2 that he was diagnosed with seven medical conditions; and (3) Plaintiff submitted multiple 3 grievances related to the April 29, 2023, incident before filing his government claim. See Kim. 4 Decl. ¶¶ 2-4. Plaintiff does not provide argument for why the Court should consider these 5 materials when resolving the Motion to Dismiss, see Kim Decl. at 1-2; see also Opp. at 4, while 6 Defendants argue that “the Court should not consider the attorney’s declaration at this stage,” 7 Reply at 5. 8 Typically, “when ruling on a motion to dismiss, [the Court] must disregard facts that are 9 not alleged on the face of the complaint or contained in documents attached to the complaint.” 10 Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). However, a court may take judicial notice 11 of adjudicative facts that are “not subject to reasonable dispute.” Fed. R. Evid. 201(b). A fact is 12 “not subject to reasonable dispute” if it is “generally known,” or “can be accurately and readily 13 determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. 14 Evid. 201(b)(1)–(2). On this basis, a court “may take judicial notice of matters of public record.” 15 United States v. 14.02 Acres of Land, 547 F.3d 943, 955 (9th Cir. 2008) (citation and quote marks 16 omitted); see also Interstate Nat. Gas Co. v. Southern California Gas Co., 209 F.2d 380, 385 17 (9th Cir. 1953) (“We may take judicial notice of records and reports of administrative bodies.”). 18 Accordingly, the Court takes judicial notice of both letters since neither is subject to 19 reasonable dispute. The Court observes that the claim letter does not indicate whether Plaintiff 20 filed his claim with CCSF on December 3, 2024. See Ex. A to Req. for Judicial Notice. However, 21 the notice of action adequately shows that the claim was filed on December 3, 2024, and that 22 CCSF responded on January 21, 2025. See Kim Decl., Ex. A at 1. Thus, the Court takes judicial 23 notice that Plaintiff submitted a claim to CCSF concerning the April 29, 2023, incident on 24 December 3, 2024, and that CCSF provided a notice of action on January 21, 2025. 25 The Court will not, however, consider the declaration from Plaintiff’s counsel. Plaintiff 26 offers no argument for why the Court may consider this testimony when resolving the Motion to 27 Dismiss, see Kim Decl. at 1-2; Opp. at 4, and the Court does not independently see a basis for 1 judicial notice. Accordingly, the Court will not consider the facts alleged in counsel’s declaration 2 at paragraphs 2-4 when resolving Defendants’ Motion to Dismiss. See Kim Decl. ¶¶ 2-4. 3 IV. DEFENDANTS’ MOTION TO DISMISS 4 Defendants seek to dismiss the causes of action in the FAC pertaining to the April 5 29, 2023, incident on the grounds that (A) Plaintiff’s claims are time-barred by the statute of 6 limitations and (B) the Bane Act claim is barred because Plaintiff failed to submit a claim to CCSF 7 within six months, as required under the Government Claims Act. Mot. at 4-7; Reply at 1-5. 8 Plaintiff does not dispute that his claims are subject to a two-year statute of limitations and that he 9 did not file suit within that time for the April 29, 2023, incident. See Opp. at 3-5. Plaintiff also 10 acknowledges that he was required to file a claim within six months. See id. at 5. However, 11 Plaintiff contends that the statute of limitations was tolled by statute due to his detention and 12 disability or, alternatively, under principles of equitable tolling. See id. at 3-5. Plaintiff also 13 argues that Defendants waived their defense that his claim was untimely by failing to provide 14 notice within 45 days. See id. at 5 (citing Cal. Gov't Code § 911.3(b)). 15 A. Statute of Limitations 16 Because the parties agree that Plaintiff failed to file suit within the applicable two-year 17 statutory period, Defendants have satisfied their burden of proving that Plaintiff filed suit beyond 18 the limitations period. Accordingly, the burden shifts to Plaintiff to allege facts that would give 19 rise to tolling. See Hinton, 5 F.3d at 395. Plaintiff argues that there are three bases for finding 20 that the statute of limitations has been tolled: (i) statutory tolling based on imprisonment; 21 (ii) statutory tolling based on disability; or (iii) equitable tolling. See Opp. at 3-5. Defendants 22 argue that imprisonment does not apply to Plaintiff because he was a pretrial detainee, not a 23 convicted felon, and that even if imprisonment does apply, Plaintiff did not plead facts sufficient 24 to show that he was detained continuously. See Reply at 2-3. Defendants also argue that Plaintiff 25 failed to plead facts demonstrating that he is entitled to either statutory tolling for disability or 26 equitable tolling. See id. at 3-4. 27 i. Statutory Tolling for Imprisonment 1 Plaintiff’s claims, before addressing whether Plaintiff has pled facts sufficient to entitle him to 2 tolling. 3 a. Statutory tolling for imprisonment under Cal. Civ. Proc. § 352.1(a) applies to pretrial detainees. 4 In California, the statute of limitations is tolled for up to two years “[i]f a person . . . [is] 5 imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term 6 less than for life[.]” Cal. Civ. Proc. § 352.1(a). Whether Section 352.1 tolls the statute of 7 limitations for pretrial detainees has not been decided by the California Supreme Court. See 8 Prescott v. Contra Costa Cnty., No. 24-cv-01660-HSG, 2024 WL 3090489, at *2 (N.D. Cal. 9 June 21, 2024). “In the absence of a controlling California Supreme Court decision,” the Court 10 “must apply the law as it believes the California Supreme Court would apply it.” Gravquick A/S v. 11 Trimble Navigation Int’l, Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003) (instructing the Court to 12 “predict how the California Supreme Court would decide the issue, using intermediate appellate 13 court decisions, statutes, and decisions from other jurisdictions as interpretive aids.”); see also 14 Venegas v. Cnty. of Riverside, No. 5:18-cv-02293-JLS-SHK, 2025 WL 1409580, at *4 (C.D. Cal. 15 May 13, 2025) (“[T]he United States Supreme Court has cautioned that federal courts must not 16 disregard the decisions of intermediate state court[s], but must also look to other sources to 17 ‘ascertain from all the available data what the state law is and apply it.’” (quoting West v. Am. Tel. 18 & Tel. Co., 311 U.S. 223, 236-37 (1940)). 19 Plaintiff relies on a recent unpublished Ninth Circuit decision, Mosteiro v. Simmons, to 20 argue that the California Supreme Court would likely find “that §352.1(a) extends to a pre-trial 21 detainee in county jail who is held in continuous custody.” No. 22-16780, 2023 WL 5695998, 22 at *1 (9th Cir. Sep. 5, 2023); see also Elliot v. City of Union City, 25 F.3d 800, 803 (9th Cir. 1994) 23 (holding that predecessor statute tolled the statute of limitations for “all post-arrest custody”); 24 Opp. at 3. Defendants reply that the Court should not follow Mosteiro because it is neither 25 precedential “[n]or is it persuasive[,]” although Defendants ignore Elliot and do not articulate why 26 Mosteiro is unpersuasive. Reply at 3. Instead, Defendants urge the Court to rely on a California 27 Court of Appeals case, Austin v. Medicis, 21 Cal. App. 5th 577, 589-97 (2018), which held that 1 tolling under Section 352.1 is available only to convicted persons incarcerated in a prison, not 2 pretrial detainees. See id. at 2. 3 The Court is persuaded by the reasoning in Mosteiro that the California Supreme Court 4 would likely decide that Section 352.1 tolls the statute of limitations for individuals who are 5 continuously held in pretrial detention, rather than adopting Austin. “Statutory interpretation 6 under California law begins with the words themselves, giving them ‘their plain and 7 commonsense meaning[.]’” Herrera v. Zumiez, Inc., 953 F.3d 1063, 1071 (9th Cir. 2020) 8 (quoting Murphy v. Kenneth Cole Prods., Inc., 155 P.3d 284, 289 (Cal. 2007)). Here, the plain 9 and ordinary meaning of “criminal charge” is “the specific crime the defendant is accused of 10 committing[.]” Mosteiro, 2023 WL 5695998, at *2 (emphasis added). Additionally, interpreting 11 “‘imprisoned on a criminal charge’ to mean only a ‘term of imprisonment in the state prison,’ . . . 12 would render superfluous the very next phrase in the same sentence: ‘in execution under the 13 sentence of a criminal court for a term less than for life[.]’” Id.; see also Elliot, 25 F.3d at 802 n.2 14 (“It is the second phrase . . . that covers post-conviction incarceration, i.e., confinement in an 15 actual prison”). Thus, the full phrase “‘imprisoned on a criminal charge’ plainly encompasses pre- 16 trial detention” according to the ordinary meaning of the term and in the broader context of the 17 statute. Id. (emphasis added); see also Venegas, 2025 WL 1409580, at *5 (“Considered in 18 context, ‘imprisoned on a criminal charge’ clearly includes those in custody pending trial.”). 19 Austin is at odds with the fundamental rules of statutory construction because it 20 “conclude[ed] that § 352.1(a) is ambiguous[] [by] consider[ing] only the word ‘imprisoned,’ 21 [while] disregarding not just the phrase in which it is used (‘imprisoned on a criminal charge’), but 22 the immediately following clause in the same sentence (‘or in execution under the sentence of a 23 criminal court’).” Mosteiro, 2023 WL 5695998, at *2. The fact that “this single word ‘isolated 24 from its context is susceptible [to] more than one meaning’ does not render it ambiguous.” Id. 25 (citation omitted). As a result, Austin is improperly “driven entirely by legislative history” when 26 the statute is not ambiguous. Venegas, 2025 WL 1409580, at *5; see also Prescott, 2024 WL 27 3090489, at *4 (“The Austin court’s interpretation . . . appears to sidestep the plain meaning of the 1 Accordingly, the Court reaches the same conclusion as “most courts” since Mosteiro was 2 decided, Pull v. Todd, 2025 WL 3719213, at *4 (E.D. Cal. Dec. 23, 2025); see also Venegas, 2025 3 WL 1409580, at *4; Prescott, 2024 WL 3090489, at *5; Hood v. Rosen, No. 2:23-cv-1980-KJM- 4 JDP (P), 2025 WL 689796, at *3 (E.D. Cal. Mar. 4, 2025); Gosztyla v. French, No. 2:21-cv- 5 01403-DJC-EFB (PC), 2024 WL 3400126, at *3 (E.D. Cal. July 12, 2024); Lintvelt v. Snyder, No. 6 2:23-cv-2253-DJC-CSK PS, 2024 WL 3385839, at *2 (E.D. Cal. July 12, 2024); Moore v. Butte 7 Cnty., No. 2:22-cv-01517-DJC-JDP (PC), 2024 WL 2853263, at *1 (E.D. Cal. June 5, 2024); 8 Frias v. Cnty. of San Diego, No. 3:22-CV-00675-JO-AHG, 2023 WL 8285195, at *3 (S.D. Cal. 9 Nov. 29, 2023), and finds that “there is convincing evidence that the California Supreme Court 10 would interpret §352.1(a) differently than Austin” by holding that it applies to pretrial detainees, 11 Mosteiro, 2023 WL 5695998, at *4. 12 b. Section 352.1(a) does not toll Plaintiff’s sixth claim for violation of the Bane Act. 13 Section 352.1(a) does not toll the statute of limitations for any “action against a public 14 entity or public employee upon a cause of action for which a claim is required to be presented in 15 accordance with [the Government Claims Act].” Cal. Civ. Proc. § 352.1(b). Defendants argue 16 that Plaintiff’s Bane Act claim is subject to the Government Claims Act, meaning that it is not 17 tolled by Section 352.1(a). See Mot. at 5; Reply at 2. Plaintiff acknowledges “that he was 18 required to submit a timely claim pursuant to the Government Claims Act” and does not respond 19 to this argument. Opp. at 5. 20 A plaintiff must “present[] a written claim for damages” under “California Government 21 Code § 911.2[] as a condition precedent to filing any civil action [for damages] under the . . . Bane 22 Act[.]” Inman v. Anderson, 294 F. Supp. 3d 907, 926 (N.D. Cal. 2018). Thus, Plaintiff’s Bane 23 Act claim is indeed subject to the Government Claims Act and is, therefore, exempt from statutory 24 tolling under Section 352.1. Cf. Ashker v. Schwarzenegger, No. C 05-03286 CW, 2009 WL 25 801557, at *23 (N.D. Cal. Mar. 25, 2009), aff’d, 465 F. App’x 718 (9th Cir. 2012) (holding that 26 Section 352.1(a) does not apply to state causes of action for which a damages claim must be 27 presented). c. Plaintiff sufficiently alleged facts to establish tolling under Section 352.1(a) 1 for his remaining causes of action. 2 Section 352.1 applies only to pretrial detainees who are held in continuous custody. 3 Mosteiro, 2023 WL 5695998, at *1. Defendants argue that “Plaintiff does not plead that he was 4 held in continuous custody during the relevant period.” Reply at 3. Instead, Plaintiff “alleges only 5 that the incident occurred while he was in County Jail, and that he is currently in County Jail[,]” 6 which Defendants argue is insufficient. Id. (citing FAC ¶¶ 4, 14). 7 On a motion to dismiss, the Court construes the pleadings in the light most favorable to the 8 nonmoving party and draws all reasonable inferences in their favor. See Sinclair, 61 F.4th at 678. 9 Adhering to these principles, Plaintiff has alleged sufficient facts to demonstrate that he was 10 continuously detained. Plaintiff alleges that he was booked into County Jail on October 12, 2022, 11 assaulted in jail on or about April 29, 2023, and then again on or about September 1, 2024, and 12 that he is currently detained. FAC ¶¶ 4, 14-15, 20. In other words, Plaintiff has alleged that he 13 was imprisoned in county jail in 2022, 2023, 2024, and 2025. The Court can reasonably infer 14 from these allegations that Plaintiff was continuously detained. Thus, Plaintiff has sufficiently 15 pled facts demonstrating that he is entitled to statutory tolling under Section 352.1(a) for his 16 remaining causes of action. 17 ii. Statutory Tolling for Disability 18 Plaintiff also argues that the statute of limitations is tolled under Section 352 because he 19 pled that he “lacked legal capacity due to his disability.” FAC ¶ 4; see also Opp. 3-4. Because the 20 statute of limitations is tolled by Plaintiff’s pretrial detention, the Court does not reach this 21 argument for Plaintiff’s First through Fourth claims for relief. As for Plaintiff’s Bane Act claim, 22 Section 352—like Section 352.1—does not apply when a claim for damages must be presented 23 under the Government Claims Act. See Cal. Civ. Proc. § 352(b). Thus, for the reasons previously 24 stated, Section 352 does not toll Plaintiff’s Bane Act claim either. 25 iii. Equitable Tolling 26 Plaintiff alternatively argues that he is entitled to equitable tolling. Opp. at 4. Defendants 27 reply that Plaintiff has not alleged sufficient facts to establish equitable tolling. Reply at 4. 1 whether Plaintiff is entitled to equitable tolling for this cause of action. See Ashker, 2009 WL 2 801557, at *23 (considering equitable tolling when Section 352.1(b) precluded statutory tolling). 3 “Under California law, equitable tolling ‘reliev[es] plaintiff from the bar of a limitations 4 statute when, possessing several legal remedies, he reasonably and in good faith, pursues one 5 designed to lessen the extent of his injuries or damage.’” Cervantes v. City of San Diego, 5 F.3d 6 1273, 1275 (9th Cir. 1993) (quoting Addison v. California, 21 Cal. 3d 313, 317 (1978)). 7 California courts have established that a “plaintiff’s pursuit of a remedy in another forum 8 equitably tolls the limitations period if the plaintiff’s actions satisfy [three] factors: 1) timely 9 notice to the defendants in filing the first claim; 2) lack of prejudice to the defendants in gathering 10 evidence for the second claim; and 3) good faith and reasonable conduct in filing the second 11 claim.” Id. At the motion to dismiss stage, “the complaint . . . [must] adequately allege[] facts 12 showing the potential applicability of the equitable tolling doctrine.” Id. at 1277. For example, 13 “the continued pendency of prior actions suffices to overcome a motion to dismiss” as does the 14 “timely initiation of administrative efforts[.]” Id. 15 Plaintiff does not allege in his complaint that he pursued an alternative remedy. 16 Nevertheless, Plaintiff argues that he is entitled to equitable tolling because he filed a claim on 17 December 3, 2024. See Opp. at 5. But this fact is insufficient to establish entitlement to equitable 18 tolling. As Defendants correctly argue in reply, Plaintiff’s claim was not timely. See Reply at 4; 19 see also Kim Decl., Ex. A. And the fact that Plaintiff submitted a claim on December 3, 2024, 20 less than two years after the alleged assault occurred on April 29, 2023, does not explain why 21 Plaintiff failed to file his lawsuit until July 1, 2025, after the two-year statute of limitations period 22 lapsed. Thus, Plaintiff has not adequately alleged that he acted reasonably and in good faith to 23 pursue a remedy in an alternative forum. See Cervantes, 5 F.3d at 1275. 24 * * * 25 In sum, the Court finds that Section 352.1 tolled the two-year statute of limitations for 26 Plaintiff’s First through Fourth claims for relief. However, Sections 352.1 and 352 cannot toll the 27 statute of limitations for Plaintiff’s Bane Act claim, and Plaintiff has not established that he is 1 Plaintiff’s First through Fourth Causes of Action. The Sixth Cause of Action is DISMISSED as to 2 Deputies Toy and Gee, as well as the City insofar as it is based on the April 29, 2023, incident. 3 Although the Court does not consider the declaration from Plaintiff’s counsel for purposes 4 of resolving Defendants’ Motion to Dismiss, the Court observes that it seeks to establish an 5 alternative basis for equitable tolling. See Kim Decl. ¶ 4 (stating that Plaintiff “submitted multiple 6 grievances related to the April 29, 2023 incident”). Because this indicates a potential basis for 7 amendment, and since the Court finds that none of the other Foman factors weigh against 8 permitting amendment, dismissal is WITH LEAVE TO AMEND. 9 B. Government Claim 10 Alternatively, Defendants argue that Plaintiff’s Bane Act claim is barred insofar as it 11 concerns the April 29, 2023, incident because Plaintiff failed to file a government claim within six 12 months of the accrual of the cause of action, as required by Section 911.2 of the Government 13 Claims Act. See Mot. at 6-7; see also Kim Decl., Ex. A at 1 (claim filed December 3, 2024). 14 Because the claim is subject to dismissal due to the statute of limitations, the Court need not 15 consider this argument. However, if Plaintiff amends his complaint to reassert equitable tolling, 16 he is advised to include all relevant facts concerning the satisfaction or waiver of the Government 17 Claim process. 18 19 20 21 22 23 24 25 26 27 ' V. ORDER For the foregoing reasons, IT IS HEREBY ORDERED that: 2 (1) Defendants’ Motion to Dismiss the First Amended Complaint, ECF No. 13, is 3 GRANTED-IN-PART and DENIED-IN-PART as follows: 4 a. The motion to dismiss the First through Fourth Causes of Action is DENIED. 5 b. Claim six for violation of the Bane Act is DISMISSED WITH LEAVE TO 6 AMEND as to Deputies Toy and Gee, and to the City insofar as it is based on 7 the April 29, 2023, incident. 8 (2) If Plaintiff chooses to amend his complaint, he SHALL file a second amended 9 complaint within 30 days after the date of this order, by March 2, 2026. Plaintiff may 10 not add new claims or parties without express leave of the Court. 1] Dated: January 30, 2026 a 12

13 H LABSON FREEMAN United States District Judge 14

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