1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DIANNE McCORMICK, Case No.: 20cv1753 JM (AGS)
12 Plaintiff,
13 v. ORDER ON MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED 14 COUNTY OF SAN DIEGO, SAN DIEGO COMPLAINT SHERIFFS DEPUTIES; DOES 1-10, 15 Defendants. 16 17 18 The County of San Diego (“the County) moves to partially dismiss Plaintiff’s First 19 Amended Complaint (“FAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 20 No. 13.) The motion has been fully briefed and the court finds it suitable for submission 21 without oral argument in accordance with Civil Local Rule 7.1(d)(1). For the below 22 reasons, the motion is DENIED IN PART and GRANTED IN PART. 23 I. BACKGROUND 24 In her FAC, Plaintiff alleges that on the morning of January 11, 2020, deputy sheriffs 25 came onto her property and asked to speak with Ms. Clark, the girlfriend of Plaintiff’s 26 tenant. (FAC ¶ 9.) The Deputies were there to perform a “Fourth Waiver compliance 27 check” on Ms. Clark, a parolee. (Id.) Plaintiff did not know why the Deputies were asking 28 to speak with Ms. Clark, and the Deputies did not tell her why. (Id.) Plaintiff led the 1 deputies by foot down the road, up the driveway, up the walkway, and up the stairs to see 2 if the front door was unlocked. (¶ 10.) According to Deputy Norby’s report, Detective 3 Castro and Deputy Norby each advised her not to enter her home. (Id.) Plaintiff denies 4 that any such warning or command was given. (Id.) 5 As she was halfway inside the open front door, Deputy Norby, without warning, 6 grabbed her left arm and forcefully pulled her backward into the door jam, then forced her 7 down to the ground. (¶ 11.) As Deputy Norby handcuffed her, Deputy Krawczyk pulled 8 her head back by her ponytail and slammed her head onto the hardwood floor. (Id.) She 9 was placed under arrest for violating California Penal Code § 148(a)(1). (Id.) The San 10 Diego County District Attorney’s Office later declined to issue charges. (Id.) 11 Plaintiff brings claims for: (1) false arrest under federal law; (2) excessive force 12 under federal law; (3) negligence; (4) false arrest under California law; (5) battery; and 13 (6) violation of the Bane Act, California Civil Code § 52.1(b). Plaintiff seeks 14 compensatory damages, punitive damages, attorneys’ fees, and costs. The County moves 15 to dismiss Plaintiff’s claims for false arrest, as well as her Bane Act claim. (Doc. No. 13.) 16 The County also requests the court take judicial notice of body worn camera video footage 17 of the arrest, as well as some still frames of the video. (Doc. No. 13-2.) 18 II. LEGAL STANDARDS 19 In deciding a motion to dismiss a complaint under Rule 12(b)(6), the court must 20 “take all allegations of material fact as true and construe them in the light most favorable 21 to the non-moving party.” Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 22 1995). The court must also draw all reasonable inferences in favor of the claimant. Retail 23 Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 24 2014). Dismissal may be based on a lack of a cognizable legal theory or on the absence of 25 facts that would support a valid theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 26 699 (9th Cir. 1990). A complaint “‘must contain either direct or inferential allegations 27 respecting all the material elements necessary to sustain recovery under some viable legal 28 theory.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007) (quoting Car Carriers, 1 Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). “A pleading that offers 2 ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will 3 not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). 4 “[C]ourts ‘are not bound to accept as true a legal conclusion couched as a factual 5 allegation.’” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 6 (1986)). Rather, the claim must be “‘plausible on its face,’” meaning that the plaintiff must 7 plead sufficient factual allegations to “allow[] the court to draw the reasonable inference 8 that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting 9 Twombly, 550 U.S. at 570). In pursuing a motion to dismiss, the defendant bears the burden 10 of showing the plaintiff has failed to state a plausible claim. See Shay v. Apple Inc., Case 11 No.: 20cv1629-GPC(BLM), 2021 WL 75690, at *3 (S.D. Cal. Jan. 8, 2021). 12 III. DISCUSSION 13 A. Body Camera Video 14 As an initial matter, the County requests the court take judicial notice of body camera 15 video and audio of the incident leading to Plaintiff’s arrest (“the recording”), as well as 16 some still frames of the video, under Rule 201 of the Federal Rules of Evidence. (Doc. 17 No. 13-2 at 1.) The County also argues the recording is incorporated by reference into the 18 FAC. (Id. at 2-3.) Plaintiff does not oppose judicial notice of the recording, but opposes 19 judicial notice of the still frames because “videos are more authentic” and photographs 20 “lack the necessary context.” (Doc. No. 14 at 8 n.1.) 21 Judicial notice permits a court consider an adjudicative fact if it is “not subject to 22 reasonable dispute.” Fed. R. Evid. 201(b). A fact is “not subject to reasonable dispute” if 23 it “can be accurately and readily determined from sources whose accuracy cannot 24 reasonably be questioned.” Fed. R. Evid. 201(b)(1)-(2). A court may take judicial notice 25 of matters of public record without converting a motion to dismiss into a motion for 26 summary judgment. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 27 2018) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)). 28 1 “Unlike rule-established judicial notice, incorporation-by-reference is a judicially 2 created doctrine that treats certain documents as though they are part of the complaint 3 itself.” Khoja, 899 F.3d at 1002. Courts “are permitted to consider documents that were 4 not physically attached to the complaint where the documents’ authenticity is not contested, 5 and the plaintiff’s complaint necessarily relies on them.” Sams v. Yahoo! Inc., 713 F.3d 6 1175, 1179 (9th Cir. 2013). 7 In cases where the plaintiff objects to the court’s consideration of police body camera 8 or dashboard camera video in deciding a motion to dismiss, district courts consistently 9 decline, under Sams, to consider the video under the incorporation by reference doctrine. 10 See Estate of Smith v. City of San Diego, Case No.: 16-cv-2989-WQH-MDD, 2018 WL 11 3706842, at *3 (S.D. Cal. Aug. 3, 2018) (plaintiff argued the complaint did not necessarily 12 rely on numerous videos of a police shooting submitted by the defendants); Lee v. City of 13 San Diego, Case No.: 18cv0159 W (BLM), 2019 WL 117775, at *5 (S.D. Cal. Jan. 7, 2019) 14 (plaintiff argued the complaint did not refer to the videos and that his claims did not depend 15 on the videos); Brown v. City of San Diego, Case No.: 3:17-cv-00600-H-WVG, 2017 WL 16 3993955, at *2 (S.D. Cal. Sept. 11, 2017) (plaintiff contested the video’s authenticity by 17 arguing that he did not know if the video was all the video in the case and whether the 18 video had been edited). 19 Other district courts have considered police body worn camera and dash board 20 camera recordings on motions to dismiss, despite the plaintiff’s objection, without 21 converting the motion into a motion for summary judgment See Muhaymin v. City of 22 Phoenix, No. CV-17-04565-PHX-SMB, 2019 WL 699170, at *3 (D. Ariz. Feb. 20, 2019) 23 (considering multiple videos, despite the plaintiff’s objections to their authenticity, because 24 the defendant officers submitted an affidavit stating that the videos were complete, 25 unredacted, and unedited); Covert v. City of San Diego, Case No.: 15cv2097 AJB (WVG), 26 2017 WL 1094020, at *5 (S.D. Cal. Mar. 23, 2017) (considering the video despite the 27 plaintiff’s argument the camera was turned off during the moment of alleged excessive 28 force because the plaintiff did not assert the video was altered or tainted in anyway); see 1 also Rosales v. County of San Diego, Case No.: 19-CV-2303 JLS (LL), 2021 WL 37723, 2 at *17 (S.D. Cal. Jan. 5, 2021) (relying on Covert to decline defendant’s motion to strike 3 video evidence where the defendants challenged authenticity for the first time in their 4 reply); Lihosit v. Flam, No. CV-15-01224-PHX-NVW, 2016 WL 2865870, at *4 (D. Ariz. 5 May 17, 2016) (considering video where the plaintiff’s counsel conceded the images and 6 sounds were accurate). 7 Here, as noted above, Plaintiff does not object to the County’s request to take judicial 8 notice of the recording, or to view it as incorporated into the FAC. Additionally, in her 9 FAC, Plaintiff “explicitly denies that . . . . warnings or commands [to stay outside her 10 home] were given, as is amply demonstrated by the Body Worn Camera footage.” (FAC 11 ¶ 10.) Plaintiff’s lack of opposition, combined with her reference and at least partial 12 reliance on the recording in the FAC, are sufficient grounds for the court to consider the 13 recording in deciding the County’s motion to dismiss under Rule 12(b)(6).1 See Lihosit, 14 2016 WL 2865870, at *3 (considering video and transcript of the plaintiff’s arrest because, 15 under Sams, the complaint “necessarily relies on the circumstances surrounding [the 16 plaintiff’s] arrest” and “[w]hile these are not ‘documents’ in the traditional sense, they are 17 essential to a full understanding of the events underlying [the] complaint, and [the plaintiff] 18 does not dispute their authenticity”). Accordingly, the court will consider the recording 19 and audio of the body camera recording as though it is part of the FAC. See Khoja, 899 20 F.3d at 1002. 21 22 23 1 In its request, the County does not specifically recognize or discuss the distinction 24 between judicial notice and the incorporation by reference doctrine. (See Doc. No. 13-2 at 25 5.) Based on the cases addressing consideration of body worn camera video, it does not appear necessary, as the County suggests, that the court take judicial notice of the recording 26 that is incorporated by reference into the FAC. Accordingly, although the court will 27 consider the recording in deciding the instant motion, the County’s request to take judicial notice of the recording, and still frames thereof, is DENIED AS MOOT. Additionally, 28 1 B. False Arrest 2 Plaintiff brings claims for false arrest under both federal and state law. (FAC ¶¶ 15- 3 19, 29-33.) The County argues that Plaintiff’s claims fail because probable cause existed 4 to arrest Plaintiff for violating California Penal Code § 148(a)(1). (Doc. No. 13-1 at 4-8.) 5 For the below reasons, Plaintiff sufficiently pleads plausible claims for false arrest. 6 1. Probable Cause 7 “If an officer has probable cause to believe that an individual has committed even a 8 minor criminal offense in his presence, he may, without violating the Fourth Amendment, 9 arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). An unlawful 10 arrest claim under 42 U.S.C. § 1983 is cognizable if the arrest was without probable cause. 11 Dubner v. City & County of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001). “Probable 12 cause to arrest exists when officers have knowledge or reasonably trustworthy information 13 sufficient to lead a person of reasonable caution to believe that an offense has been or is 14 being committed by the person being arrested.” United States v. Lopez, 482 F.3d 1067, 15 1072 (9th Cir. 2007). “The determination of probable cause is based upon the totality of 16 the circumstances known to the officers at the time of the arrest.” Velazquez v. City of 17 Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015) (citations, quotation marks, and 18 alterations omitted). “The evidence need support ‘only the probability, and not a prima 19 facie showing, of criminal activity.’” Illinois v. Gates, 462 U.S. 213, 235 (1983). 20 Similarly, under California law, “[a] peace officer may . . . . arrest a person whenever 21 . . . . [t]he officer has probable cause to believe that the person to be arrested has committed 22 a public offense in the officer’s presence.” CAL. PENAL CODE § 836(a)(1); see also 23 Johanson v. Dep’t of Motor Vehicles, 36 Cal. App. 4th 1209, 1216 (1995) (“A warrantless 24 arrest by a peace officer for a misdemeanor is lawful only if the officer has reasonable 25 cause to believe the misdemeanor was committed in the officer’s presence.”). “Reasonable 26 or probable cause means such a state of facts as would lead a man of ordinary caution or 27 prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the 28 accused. Reasonable and probable cause may exist although there may be some room for 1 doubt.” People v. Mower, 28 Cal. 4th 457, 473 (2002) (citations and internal quotation 2 marks omitted). 3 2. Section 148(a)(1) 4 The County argues Plaintiff’s false arrest claims fail because probable cause existed 5 to arrest Plaintiff for violating California Penal Code § 148(a)(1), which makes it a 6 misdemeanor to “willfully resist[], delay[], or obstruct[] any . . . . peace officer . . . . in the 7 discharge or attempt to discharge any duty of his or her office or employment[.]” The 8 elements of a § 148(a)(1) violation are “(1) the defendant willfully resisted, delayed, or 9 obstructed a peace officer, (2) when the officer was engaged in the performance of his or 10 her duties, and (3) the defendant knew or reasonably should have known that the other 11 person was a peace officer engaged in the performance of his or her duties.” In re 12 Muhammed C., 95 Cal. App. 4th 1325, 1329 (2002). “The offense is a general intent crime, 13 proscribing only the particular act (resist, delay, obstruct) without reference to an intent to 14 do a further act or achieve a future consequence.” Id. 15 3. The Recording 16 The recording shows that deputies spoke with Plaintiff for a period of time in her 17 driveway. Plaintiff stated, “no, we’re good, you can come in.” Plaintiff also stated, “is it 18 going to be gnarly” and a deputy stated something unintelligible. Plaintiff responded, 19 “well, “I’m not going to wait outside my house” and something to the effect of “but I wasn’t 20 planning on going in there this second.” The deputies inquired about whether the door was 21 locked and how many adults were in the house. As part of her response, Plaintiff stated 22 “she’s in her room.” Plaintiff led multiple deputies up the driveway to her front door. As 23 they were walking up the driveway to the front door, Plaintiff was told “just wait out here” 24 and “you’re going to have to stay out here.” When Plaintiff reached the front door, she 25 opened it and went inside. After crossing the threshold, Deputy Norby, who was 26 immediately behind her, grabbed her arm and stated “ma’am, you’re going to have to stay 27 out here” and “no, you’re going to stay out here,” to which Plaintiff replied, “this is my 28 home.” Plaintiff immediately moved or was moved by Deputy Norby away from the 1 doorway. Plaintiff stated, “I’m going to show you, it’s right down that hall to the left.” 2 Plaintiff also stated, “I’m not going down there.” The other deputies, including the one 3 recording with his body camera, proceeded with the compliance check and within 4 approximately one minute located and detained two individuals in a bedroom, one of whom 5 was Ms. Clark. 6 4. County’s Arguments 7 The County argues that probable cause to arrest Plaintiff for violating § 148(a)(1) 8 existed because “[t]hese deputies were acting within the course and scope of their duties as 9 law enforcement officers, as they were performing a ‘Fourth Waiver compliance check’ on 10 a parolee,” and Plaintiff “resisted, delayed, or obstructed” the deputies because “[s]he 11 failed to obey their numerous commands not to enter the house” and “pulled away from 12 Deputy Norby in order to enter.” (Doc. No. 13-1 at 6.) The County further argues that 13 “she obstructed and delayed the deputies’ ability to contact the parolee without interference 14 from other parties,” and “[h]er actions limited their ability to get through the door, required 15 two deputies to deal with the Plaintiff instead of the parolee, and may have prematurely 16 alerted the parolee to the law enforcement presence.” (Id. at 7.) 17 5. Analysis 18 Clearly, the recording shows that Plaintiff, for whatever reason, did not comply with 19 the verbal command to remain outside her home.2 The body camera recording also reveals 20 that Plaintiff may have “pulled away” from Deputy Norby when he grabbed her arm. 21 Deputy Norby was “delayed,” and perhaps “obstructed,” from otherwise participating in 22 the compliance check because he was preoccupied with arresting Plaintiff. Any other 23 24 25 2 In her FAC, “Plaintiff explicitly denies that such warnings or commands were given, as 26 is amply demonstrated by the Body Worn Camera footage.” (FAC ¶ 10.) In her opposition, 27 Plaintiff argues that “[i]f [she] did not hear any commands, as the video demonstrates and the aforementioned averment implies, then any action she took was not willful, and 28 1 deputy that assisted in the arrest prior to the completion of the compliance check would 2 have been similarly “delayed” and possibly “obstructed.” 3 When viewed in the light most favorable to Plaintiff, however, the totality of 4 circumstances known to the deputies at the time of the arrest, as alleged by Plaintiff and as 5 shown in the recording, sufficiently support the plausibility of Plaintiff’s claims for false 6 arrest based on a lack of probable cause that Plaintiff violated § 148(a)(1). In other words, 7 at this early stage in the litigation, Plaintiff sufficiently alleges that Deputy Norby and any 8 other arresting officer lacked a reasonable belief or strong suspicion that Plaintiff willfully 9 resisted, delayed, or obstructed a deputy when he was engaged in the performance of his 10 duties, and the County does not sufficiently show otherwise.3 11 a. Resistance 12 With respect to whether Plaintiff “resisted” any of the deputies when engaged in the 13 performance of their duties, she did not necessarily resist the deputies in performing the 14 compliance check. Rather, her actions can be reasonably viewed as resisting the commands 15 to remain outside her home while the deputies performed the compliance check. Outside 16 of her failure to comply with the commands, Plaintiff assisted the deputies by: 17 (1) confirming that Ms. Clark was inside the house; (2) informing them where she was 18 located in the house; (3) telling them “you’re good, you can come in;” (4) promptly 19 escorting the deputies to her front door and opening it; and (5) once inside, and while 20 engaged with Deputy Norby, Plaintiff said “I’m going to show you, it’s right down that 21 hall to the left.” While it is reasonable to infer the deputies wanted Plaintiff to remain 22 outside for her safety, and also to prevent her from warning Ms. Clark,4 based on Plaintiff’s 23 prior cooperation, it is not reasonable to infer that Plaintiff, if allowed to accompany the 24 25 3 Plaintiff does not dispute that she knew the deputies were peace officers. 26
27 4 It is also reasonable to infer the deputies’ desire to avoid “prematurely” tipping-off Ms. Clark about to their presence was based, at least in part, on a desire to minimize the time 28 1 deputies into her home, would have attempted to warn Ms. Clark given the totality of 2 circumstances. Finally, the County’s argument that the deputies were concerned that 3 Plaintiff might have “prematurely” alerted Ms. Clark to their presence is at least somewhat 4 undermined by the fact that, soon after entering the house, the deputies repeatedly 5 announced themselves before entering any of the rooms. 6 Additionally, when the FAC and recording are viewed in the light most favorable to 7 Plaintiff, it is plausible that Plaintiff did not in fact “pull away” from Deputy Norby when 8 he grabbed her arm as she entered the door. As alleged by Plaintiff, it was Deputy Norby 9 that used force against her. (See FAC ¶ 11 (“As she was halfway inside the open front 10 door, intending to allow the deputies entry, Defendant Norby, without warning, grabbed 11 her left arm and forcefully pulled her backward into the door jam, and then forced her down 12 onto the ground.”).) Based on the recording, Plaintiff’s response to Deputy Norby’s use of 13 force essentially consisted of her turning around, then both Plaintiff and Deputy Norby 14 quickly moved away from the door opening and out of view of the body camera. It is not 15 clear if Plaintiff “pulled away” from Deputy Norby, or whether he pushed her. In due 16 course, it may be determined that Plaintiff did in fact “pull away” from Deputy Norby in 17 order to “resist” something he or another deputy was doing. Without the benefit of 18 discovery, however, including the perspectives of Plaintiff and Deputy Norby, it remains 19 plausible Plaintiff was not physically resisting Deputy Norby when he was engaged in the 20 performance of his duties. 21 b. Delay and Obstruction 22 With respect to whether Plaintiff “delayed” or “obstructed” any of the deputies when 23 engaged in their duties, Plaintiff’s noncompliance did not, per se, necessarily delay or 24 obstruct the deputies in performing the compliance check. As the recording confirms, 25 Plaintiff immediately opened the front door to let the deputies inside. When Deputy Norby 26 grabbed Plaintiff, both Deputy Norby and Plaintiff quickly moved aside. There is no 27 indication that Plaintiff delayed the other deputies in entering the home by intentionally or 28 1 unintentionally blocking the deputies’ entrance through the open door. After entering, the 2 other deputies located and detained Ms. Clark within approximately one minute. The 3 County does not explain what a successful compliance check entails, and other than Deputy 4 Norby’s unavailability to join the other deputies in searching for Ms. Clark, the County 5 does not specifically identify anything about the compliance check that was impeded. 6 c. Duty 7 With respect to whether Plaintiff resisted, delayed, or obstructed a deputy “when the 8 officer was engaged in the performance of his or her duties,” see Muhammed C., 95 Cal. 9 App. 4th at 1329, the County provides little, if any, support for its implied argument that 10 the deputies were delayed and obstructed when they “were acting within the course and 11 scope of their duties as law enforcement officers, as they were performing a ‘Fourth Waiver 12 compliance check’ on a parolee.” (Doc. No. 13-1 at 6.) The only cases cited by the County 13 in support of its argument are Colten v. Kentucky, 407 U.S. 104, 109 (1972) and Mam v. 14 City of Fullerton, No. 8:11-CV-1242-JST, 2013 WL 951401, at *4 (C.D. Cal. Mar. 12, 15 2013), both of which are distinguishable because they involved commands by police to 16 move away from the immediate vicinity of an arrest or traffic stop.6 17 Here, Plaintiff was ordered to remain outside her own home while deputies 18 attempted to conduct a compliance check on a parolee who Plaintiff apparently confirmed 19
20 21 5 The County’s argument that “[h]er actions limited [the deputies’] ability to get through the door” is contradicted, at least to some degree, by the video. Based on the recording, 22 and without the benefit of further factual development, perhaps it could be argued that the 23 physical altercation that occurred between Plaintiff and Deputy Norby in the threshold delayed the other deputies from proceeding inside for, at most, one to three seconds. 24
25 6 Colton involved the constitutionality of Kentucky’s disorderly conduct law under which an officer ordered a third party claiming an interest in the outcome of a traffic stop to “move 26 on.” 407 U.S. at 109. Thinking the car would be towed, the plaintiff wanted to arrange 27 transportation for his friends riding in the vehicle. Id. at 106-07. In Colton, however, the plaintiff refused repeated commands to stop engaging the officer in conversation while he 28 1 was inside the home. As noted above, the County offers no explanation as to what a 2 “Fourth Waiver compliance check” entails. The County also provides no support 3 concerning the deputies’ authority or “duty” to perform compliance checks, nor does the 4 county cite or rely upon cases where law enforcement officers may lawfully control or limit 5 a third party’s physical movements when searching premises or conducting an 6 investigation. See Muehler v. Mena, 544 U.S. 93, 100 (2005) (handcuffing occupants of a 7 premises for two to three hours while executing a search warrant is reasonable); Maryland 8 v. Wilson, 519 U.S. 408, 413-414 (1997) (officers may order passengers out of a vehicle 9 during a vehicle stop); Michigan v. Summers, 452 U.S. 692 (1981) (officers executing a 10 search warrant for contraband have authority to detain the occupants of the premises while 11 a proper search is conducted in order to prevent flight, minimize risk of harm to the officers, 12 and facilitate the orderly completion of the search); Dawson v. City of Seattle, 435 F.3d 13 1054, 1066, 1069 (9th Cir. 2006) (while executing a search warrant for evidence, as 14 opposed to a search for contraband, officers may detain tenants of a boarding house and 15 prohibit them from smoking or using the bathroom unattended). 16 Finally, the County does not attempt to reconcile or apply the multitude of cases 17 addressing whether the failure to obey police commands constitutes probable cause to 18 make an arrest under § 148(a)(1). See, e.g., Lull v. Cty. of Sacramento, No. 2:17-cv-1211- 19 TLN-EFB PS, 2020 WL 5495279, at *3 (E.D. Cal. Sept. 11, 2020) (refusing to answer 20 officer’s questions or provide identification while plaintiff was loading a kayak onto his 21 car, and attempting to ignore the officer by walking around him, was not probable cause 22 for arrest), report and recommendation adopted, No. 2:17-cv-01211-TLN-EFB, 2020 WL 23 5943980 (E.D. Cal. Oct. 7, 2020); Logan v. L.A. Airports Police Dep’t, Case No. CV 17- 24 2971 PA (JDEx), 2018 WL 6136138, at *5 (C.D. Cal. July 23, 2018) (plaintiff pled 25 plausible claim for unlawful arrest for allegedly refusing to sign a citation); Quintero v. 26 City of Escondido, Case No.: 15-cv-2638-BTM-BLM, 2017 WL 4005345, at *9 (S.D. Cal. 27 Sept. 11, 2017) (plaintiff’s refusal to step outside his apartment while holding his child, 28 and adjusting his feet when an officer grabbed his arm, was not probable cause to arrest); 1 see also Gonzalez v. City of Huntington Beach, No. 19-56046, 2021 WL 321070, at *4 (9th 2 Cir. Feb. 1, 2021) (Kennelly, J., dissenting) (opining that a reasonable jury could find that 3 probable cause did not exist to arrest plaintiff for disregarding command not to go into a 4 house because the video and audio evidence reasonably may be viewed as depicting a 5 consensual encounter); Bennett-Martin v. Plasencia, 804 F. App’x 560, 565 (9th Cir. 2020) 6 (Marbley, J., dissenting) (opining that refusing to hang up a cell phone is not probable 7 cause for arrest because “a violation of section 148(a)(1) requires more than mere 8 noncooperation with an officer’s orders”) (citing People v. Quiroga, 16 Cal. App. 4th 961 9 (1993)); Maric v. Alvarado, 748 F. App’x 747, 750 (9th Cir. 2018) (refusing command by 10 officers investigating possible domestic violence to step outside one’s own home was not 11 probable cause for an arrest because it was clear the plaintiff’s wife and child were 12 unharmed, and because the defendants did not “cite any law which indicates that a person 13 must acquiesce to a police officer’s request that he leave his own home”); In re Gregory 14 S., 112 Cal.App.3d 764, 778 (1980) (a violation of § 148 may occur where an officer “had 15 the legal right . . . . to detain,” the defendant was “aware of the officer’s desire” to detain 16 him, and the defendant did not “permit himself to be detained”). 17 In sum, given the “duty” element for § 148(a)(1) violations, the issue of whether 18 probable cause existed to arrest Plaintiff for resisting, delaying, or obstructing any of the 19 deputies may depend, at least in part, on (1) whether, under the circumstances, the deputies 20 had authority to command Plaintiff to remain outside her home, and (2) whether the 21 commands for Plaintiff to remain outside her own home can be viewed independently from 22 the deputies’ apparent duty to conduct the compliance check. See Smith v. City of Hemet, 23 394 F.3d 689, 695 (9th Cir. 2005) (en banc) (“For a § 148(a)(1) conviction to be valid, a 24 criminal defendant must have ‘resisted, delayed, or obstructed’ a police officer in the lawful 25 exercise of his duties. In California, the lawfulness of the officer’s conduct is an essential 26 element of the offense of resisting, delaying, or obstructing a peace officer.”) (emphasis in 27 original); Taylor v. City of Calaveras, Case No. 1:18-cv-00760-BAM, 2020 WL 7406527, 28 at *11 (E.D. Cal. Dec. 17, 2020) (finding that under Smith, “[i]t is not a crime to resist 1 unlawful orders.”). Based on the allegations, the recording, and the argument put forth by 2 the County, this court cannot state, as a matter of law, that Plaintiff willfully resisted, 3 delayed, or obstructed the deputies “when the [deputies were] engaged in the performance 4 of [their] duties,” Muhammed C., 95 Cal. App. 4th at 1329, or when the deputies were “in 5 the discharge or attempt to discharge any duty of [the deputies’] office or employment,” 6 CAL. PENAL CODE § 148(a)(1).7 Although it may ultimately be determined that probable 7 cause existed to arrest Plaintiff for violating § 148(a)(1), at this stage in the litigation, 8 Plaintiff has stated plausible claims for false arrest under both state and federal law. 9 C. Bane Act Violation 10 The County also argues Plaintiff’s Bane Act claim fails because “Plaintiff does not 11 allege sufficient facts showing any deputy had the intent required for a Bane Act violation 12 – a criminally specific intent to violate Plaintiff’s right to freedom from wrongful 13 detention.” (Doc. No. 13-1 at 9.) The County argues “the specific intent required is 14 disproven by the facts” because “[t]he video footage shows no indication that the deputies 15 acted with criminal intent towards Plaintiff, and reveal only the desire for Plaintiff to not 16 interfere with their contact with the parolee.” (Id. at 10.) 17 The Bane Act creates a private cause of action against anyone who “interferes by 18 threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or 19 coercion, with the exercise or enjoyment by an individual or individuals of rights secured 20 by the Constitution or laws of the United States, or laws and rights secured by the 21 Constitution or laws of California.” CAL. CIV. CODE § 52.1(a). The Bane Act requires “an 22 attempted or completed act of interference with a legal right, accompanied by a form of 23 coercion.” Jones v. Kmart Corp., 17 Cal. 4th 329, 334 (1998). “The Bane Act’s 24 requirement that interference with rights must be accomplished by threats, intimidation or 25
26 27 7 Although Plaintiff does not specifically allege in her FAC the officers were not engaged in the performance of their duties, she makes several allegations that strongly imply they 28 1 coercion has been the source of much debate and confusion.” Cornell v. City & County of 2 San Francisco, 17 Cal. App. 5th 766, 801 (2017). In Venegas v. County of Los Angeles, 3 32 Cal. 4th 820, 843 (2004), the court held that “the egregiousness required by Section 52.1 4 is tested by whether the circumstances indicate the arresting officer had a specific intent to 5 violate the arrestee’s right to freedom from unreasonable seizure, not by whether the 6 evidence shows something beyond the coercion ‘inherent’ in the wrongful detention.” “A 7 finding of specific intent entails a legal determination that the right at issue be clearly 8 delineated and a factual determination that the defendant acted with the purpose of 9 depriving the plaintiff of enjoyment of that right.” Greer v. County of San Diego, Case 10 No.: 3:19-CV-0378-GPC-AGS, 2021 WL 615046, at *8 (S.D. Cal. Feb. 17, 2021) (citing 11 Cornell, 17 Cal. App. 5th at 801). The Ninth Circuit has found that (1) “the Bane Act does 12 not require the ‘threat, intimidation or coercion’ element of the claim to be transactionally 13 independent from the constitutional violation alleged,” and (2) “the Bane Act requires ‘a 14 specific intent to violate the arrestee’s right to freedom from unreasonable seizure.’” Reese 15 v. County of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018) (quoting Cornell, 17 Cal. 16 App. 5th at 799-801). The court in Reese further noted that specific intent to violate a 17 person’s constitutional rights may be established by showing the defendant acted with 18 reckless disregard for the person’s rights. Id. at 1045 (quoting United States v. Reese, 19 2 F.3d 870, 885 (9th Cir. 1993)). 20 Plaintiff argues “[t]he facts pled in the FAC reflect, at a minimum, the Deputies’ 21 reckless disregard of Plaintiff’s Fourth Amendment rights” and “the FAC alleges facts that 22 allow the Court to draw the reasonable inference that Defendant Deputies acted in reckless 23 disregard of Plaintiff’s Fourth Amendment rights.” (Doc. No. 14 at 18.) In her opposition, 24 however, Plaintiff does not specify any factual allegations that support the deputies’ 25 reckless disregard. Instead, Plaintiff points to her allegations that the deputies 26 “deliberately” subjected her to excessive force, and that the deputies acted with “reckless 27 disregard” for her rights, safety, and emotional well-being. (Id.) These allegations are 28 conclusory and merely recite the elements, as understood by Plaintiff, of a Banes Act 1 || violation. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. Additionally, □□□□□□□□□□□ 2 ||Banes Act claim refers to section 52.1(b), which creates a right of action for the state 3 ||attorney general, district attorneys, and city attorneys, not for private individuals. 4 || Accordingly, regardless of the applicable level of intent, Plaintiff fails to plead a plausible 5 || Banes Act violation because, other than incorporating all previous factual allegations, she 6 || does not specify any fact that supports the plausibility of her Banes Act claim.® 7 IV. CONCLUSION 8 For the foregoing reasons, the County’s Motion to Dismiss is DENIED IN PART 9 |}and GRANTED IN PART. The County’s motion to dismiss Plaintiff's claims for false 10 || arrest under state and federal law is DENIED. The County’s motion to dismiss □□□□□□□□□□□ 11 ||Banes Act claim is GRANTED. Plaintiffs request for leave to amend, (Doc. No. 14 at 12 is GRANTED. See Fed. R. Civ. P. 15(a) (leave to amend “should be freely granted 13 || when justice so requires”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) 14 ||(‘[T]he underlying purpose of Rule 15... . [is] to facilitate decision on the merits, rather 15 on the pleadings or technicalities.”) (internal quotation marks omitted); Moss v. U.S. 16 || Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009) (requests for leave should be granted with 17 “extreme liberality’). Plaintiff may file a second amended complaint, should she choose 18 || to file one, within 14 days of the filing of this order. The County’s response to the operative 19 ||}complaint is due within 21 days after the expiration of Plaintiffs deadline to file a second 20 ||amended complaint. See Fed. R. Civ. P. 15(a)(3). 21 IT IS SO ORDERED. 22 || DATED: March 10, 2021 He “if Yicoly, _ 73 F Y T. ILLER ited States District Judge 24 25
27 Plaintiff does not contest the County’s argument that, pursuant to California Government 28 Code § 815.2(a), the County is not vicariously liable if claims are dismissed against individual employees. 12