1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANDRE M. ROSS, Case No. 24-cv-09475-JSC
8 Plaintiff, ORDER RE: MOTION TO DISMISS 9 v. AMENDED COMPLAINT
10 COUNTY OF LAKE, et al., Re: Dkt. No. 27 Defendants. 11
12 Andre M. Ross sues County of Lake, Demetrius Donaldson, Jeffrey Mora, Corey Paulich, 13 Rob Howe, Mireya G. Turner, and Officer C. Colen (collectively, “Defendants”) alleging 14 violations of his constitutional rights. (Dkt. No. 1.) After the Court granted Defendants’ motion 15 to dismiss, Mr. Ross filed an amended complaint. (Dkt. Nos. 24, 26.) Now pending before the 16 Court is Defendants’ motion to dismiss the amended complaint. (Dkt. No. 27.) Having carefully 17 considered the parties’ submissions, the Court concludes oral argument is not required, see N.D. 18 Cal. Civ. L.R. 7-1(b), vacates the August 21, 2025 hearing, and GRANTS Defendants’ motion to 19 dismiss. 20 COMPLAINT ALLEGATIONS 21 The Court’s May 2025 order summarizes the allegations in Mr. Ross’s prior complaint. 22 (Dkt. No. 26 at 1-3.)1 His amended complaint2 adds allegations that Mr. Ross’s motor vehicle was 23 “lawfully parked on [his] residential address in Kelseyville, California in the County of Lake.” 24 (Dkt. No. 26 ¶ 1.) On approximately July 1, 2023, Mr. Ross “communicated [a] criminal activity 25 1 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the 26 ECF-generated page numbers at the top of the documents. 2 In filing his amended complaint, Mr. Ross did not comply with the Court’s standing orders, 27 which require parties to “concurrently file a redlined or highlighted version comparing the 1 report regarding the subject vehicle, and the damage(s) caused to that vehicle by persons then 2 unknown, to the LAKE COUNTY SHERIFF’S OFFICE using that local law enforcement 3 agency’s internet based crime reporting system.” (Id.) No defendant undertook action to 4 investigate or respond to this report. (Id.) 5 On August 16, 2023, Officer C. Colen “appeared at Plaintiff’s 8707 Wight Way, 6 Kelseyville address in order to take photographs and to tag Mr. Ross’s recently disabled motor- 7 vehicle as a ‘public nuisance’ requiring removal thereby publicizing . . . the availability of a 8 visibly intact, well-maintained and perhaps valuable motor vehicle.” (Id. ¶ 2.) 9 On August 23, 2023, “a group of one or more persons equipped with burglary tools and 10 Defendant COUNTY OF LAKE’s false publication regarding the motor vehicle’s ‘abandoned’ 11 status, entered onto the Plaintiff’s premises to complete their theft of the subject motor vehicle.” 12 (Id.) In response, Mr. Ross discharged a single warning shot “to audibly warn criminals observed 13 engaging in criminal activity, from a safe distance, that the residents/occupants of 8707 Wight 14 Way, Kelseyville were armed and would be able to defend themselves if need be.” (Id.) 15 The amended complaint proceeds to describe Plaintiff’s arrest, mugshot, and DNA swab in 16 the same manner as the prior operative complaint. Because those allegations are summarized in 17 the Court’s prior order at Docket No. 24, the Court does not repeat them here. 18 The amended complaint asserts five causes of action. The first cause of action, brought 19 under 42 U.S.C. § 1983, alleges all defendants deprived Mr. Ross of certain constitutional rights, 20 including (a) the right to be free from unreasonable searches and seizures; (b) the right to be free 21 from arrest without probable cause; (c) the right not to be deprived of life or liberty without due 22 process of law; (d) the right to be free from the use of excessive force by police officers and other 23 government actors; (e) the right to be free from cruel and unusual punishment; (f) the right to be 24 free from interferences with the zone of privacy; and (g) the right to be free from inclusion in 25 permanent government records branding an innocent citizen as a suspect of criminal activity. (Id. 26 ¶ 24.) The second cause of action alleges County of Lake demonstrated deliberate indifference to 27 the pattern and practice of “illegal search, seizure, and arrest of citizens, as well as the use of 1 against all defendants alleges Mr. Ross’s arrest, booking mugshot, and DNA swab violated his 2 privacy and constitutional rights. (Id. ¶¶ 31-33.) The fourth cause of action, a Bane Act claim, 3 alleges a violation of Plaintiff’s constitutional rights. (Id. ¶¶ 37-38.) The fifth cause of action 4 alleges all defendants violated the Fourth Amendment “[b]y entering onto the subject Premises 5 and/or the curtilage of that residential real property, without the property owner’s prior consent.” 6 (Id. ¶ 41.) 7 DISCUSSION 8 Defendants move to dismiss the amended complaint. Because various and overlapping 9 claims are asserted across the five causes of action, the Court organizes this order by claim rather 10 than by cause of action. 11 I. VEHICLE INSPECTION/TAGGING 12 A. Fourth Amendment Claim 13 Mr. Ross’s fifth cause of action alleges “all defendants” violated the Fourth Amendment 14 “[b]y entering onto the subject Premises and/or the curtilage of that residential real property, 15 without the property owner’s prior consent and without an inspection warrant justifying any such 16 entry, in order to post an order requiring removal of a lawfully parked motor vehicle.” (Dkt. No. 17 26 ¶ 41.) Mr. Ross asserts this “is a violation of 41 U.S.C. §§ 1983 and 19853.” (Id.) Similarly, 18 Mr. Ross’s first cause of action alleges “all defendants” violated his constitutionally protected 19 rights, including “[t]he right to be free from unreasonable searches and seizures, as guaranteed by 20 the Fourth and Fourteenth Amendments to the United States Constitution.” (Id. ¶ 24(a).) 21 Defendants move to dismiss these claims on the ground the amended complaint fails to establish a 22 reasonable expectation of privacy. 23 The Court agrees. As the Court’s prior order explained: 24 For Fourth Amendment purposes, the question is whether Mr. Ross 25
26 3 The Court disregards Mr. Ross’s reference to section 1985 here and elsewhere in the amended complaint. In its prior order, the Court granted Defendants’ motion to dismiss Mr. Ross’s section 27 1981, 1985, and 1986 claims without leave to amend because “Mr. Ross fail[ed] to allege race- “exhibited an actual, subjective expectation of privacy in the area 1 entered” and if so, whether that expectation is “one that society is prepared to accept as reasonable and therefore legitimate.” Maisano 2 v. Welcher, 940 F.2d 499, 503 (9th Cir. 1991). To establish a reasonable expectation of privacy in a driveway, for example, a 3 plaintiff “must support that expectation by detailing the special features of the driveway itself (i.e. enclosures, barriers, lack of 4 visibility from the street) or the nature of activities performed upon it.” Id. 5 6 (Dkt. No. 28 at 5.) The Court continued: “Because the complaint fails to allege facts regarding the 7 location of his vehicle and his reasonable expectation of privacy in that location, Mr. Ross fails to 8 allege a Fourth Amendment claim related to the tagging of his vehicle.” (Id.) 9 The amended complaint suffers the same flaw. Mr. Ross alleges in late June 2023, his 10 motor vehicle was “lawfully parked on Plaintiff ANDRE M. ROSS (“Plaintiff ROSS” or “Mr. 11 Ross”) residential address in Kelseyville, California in the County of Lake.” (Dkt. No. 26 ¶ 1.) 12 Mr. Ross also alleges the abatement notice was posted on August 16, 2023, when Officer Colen 13 “appeared at Plaintiffs 8707 Wight Way, Kelseyville address in order [sic] take photographs and 14 to tag Mr. Ross’s recently disabled motor-vehicle as a ‘public nuisance.’” (Id. ¶ 2.) Even 15 assuming Mr. Ross did not move the vehicle between late June 2023 and August 16, 2023, that the 16 vehicle was on Mr. Ross’s property is alone insufficient to support a plausible inference Mr. Ross 17 had a reasonable expectation of privacy in that location. In United States v. Humphries, 636 F.2d 18 1172, 1178 (9th Cir. 1980), an officer entered the defendant’s private driveway to check the 19 license plate on a car parked there. The Ninth Circuit “conclude[d] that the entry and 20 identification did not violate any reasonable expectation of privacy held by [the defendant],” 21 noting the car “was visible from the street” and it did “not appear from the record that the 22 driveway was enclosed by a fence, shrubbery or other barrier.” Id. at 1179. Similarly here, Mr. 23 Ross again fails to allege facts supporting an inference he had a reasonable expectation of privacy 24 in the location where the car was parked. Mr. Ross’s amended complaint, like his prior complaint, 25 fails to allege where specifically the car was parked and what features—fence, shrubbery, etc.— 26 support his reasonable expectation of privacy in that area. See id. (“Although a driveway may be 27 private under common law notions of property, it may not be for purposes of the fourth 1 rights when his car was tagged for abatement. 2 B. Fourteenth Amendment Claim 3 The fifth cause of action alleges “[b]y entering onto the subject Premises, and/or the 4 curtilage of that residential real property, without prior notice given to the owners of a lawfully 5 parked motor vehicle or a duly noticed opportunity for a hearing, Defendants, and each of them, 6 violated the Fourteenth Amendment to the Unites States Constitution, which is a violation of 41 7 U.S.C. §§ 1983 and 1985.” (Dkt. No. 26 ¶ 42.) Defendants move to dismiss on the ground 8 Plaintiff’s amended complaint fails to show any Fourteenth Amendment violation occurred. The 9 Court agrees. Its prior order noted “Mr. Ross fails to allege facts supporting a reasonable 10 inference his Fourteenth Amendment rights were violated,” (Dkt. No. 24 at 6), and Mr. Ross has 11 not added any allegations regarding this claim. So, Mr. Ross fails to state a claim any defendant 12 violated his Fourteenth Amendment rights when his car was tagged for abatement. 13 *** 14 The Court GRANTS Defendants’ motion to dismiss the vehicle tagging claims without 15 leave to amend. Under Federal Rule of Civil Procedure 15(a), “leave to amend should be granted 16 unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or 17 creates undue delay.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992). 18 Here, the Court identified the deficiencies in Mr. Ross’s prior complaint and provided Mr. Ross 19 leave to amend. Mr. Ross’s amended complaint did not cure the deficiencies. “To give plaintiff 20 leave to amend his complaint a second time . . . would constitute undue delay and prejudice to 21 defendants.” See Arkens v. Cnty. of Sutter, No. CV 2:16-951 WBS KJN, 2016 WL 5847036, at *6 22 (E.D. Cal. Oct. 6, 2016). So, dismissal is without leave to amend. See Soliman v. Philip Morris 23 Inc., 311 F.3d 966, 976 (9th Cir. 2002) (“In light of [the plaintiff’s] previous failed attempt to 24 amend his complaint, the district court did not abuse its discretion in denying further leave to 25 amend.”). 26 II. UNLAWFUL ARREST 27 Mr. Ross’s first cause of action alleges all defendants deprived him of “certain 1 cause, as guaranteed by the Fourth and Fourteenth Amendments.” (Dkt. No. 26 ¶ 24(b).) Mr. 2 Ross’s third cause of action similarly alleges “the arresting officers DID NOT have reasonable 3 suspicion and/or probable cause to arrest Plaintiff ROSS.”4 (Id. ¶ 30.) 4 Defendants move to dismiss these unlawful arrest claims on the ground Mr. Ross’s 5 admission of firing a shotgun with persons nearby supports probable cause for an arrest. 6 Specifically, Defendants argue Mr. Ross’s allegations “reveal probable cause” for a violation of 7 California Penal Code section 246.3, in addition to other penal code sections. (Dkt. No. 27 at 9.) 8 Section 246.3 creates an offense when “any person . . . willfully discharges a firearm in a grossly 9 negligent manner which could result in injury or death to a person.” “California courts have 10 defined the elements of a section 246.3 offense to include: ‘(1) the defendant unlawfully 11 discharged a firearm; (2) the defendant did so intentionally; and (3) the defendant did so in a 12 grossly negligent manner which could result in the injury or death of a person.’” United States v. 13 Coronado, 603 F.3d 706, 711 (9th Cir. 2010) (quoting People v. Overman, 126 Cal. App. 4th 14 1344, 1361 (2005)). 15 The Court agrees with Defendants. Although the amended complaint adds allegations 16 related to the shotgun’s discharge, those allegations fall short of supporting a plausible inference 17 that Mr. Ross’s arrest was without probable cause. The amended complaint characterizes the 18 incident as “a law-abiding citizen’s firing of a single shotgun shell from a location approximately 19 twenty-five yards away from the vehicle that had been broken into.” (Dkt. No. 26 ¶ 2.) It 20 continues:
21 That single discharge was a safe, sober and appropriate “California warning shot” made by a law-abiding gun owner in defense of self 22 and in defense of personal property. The discharge was made to audibly warn criminals observed engaging in criminal activity, from 23 a safe distance, that the residents/occupants of 8707 Wight Way, Kelseyville were armed and would be able to defend themselves if 24 need be. Plaintiff informed defendants before his arrest that the discharge was made to “scare away” the persons then breaking into 25 the Plaintiffs motor vehicle. Before the subject discharge, Plaintiff had no way to safely determine how many persons were involved in 26 said activities and Plaintiff had no way to determine in advance 27 whether or not any of the intruders were carrying a firearm. 1 2 (Id.) 3 That the shot was “safe, sober and appropriate” and that it was fired “from a safe distance” 4 are conclusions, whereas a complaint must contain factual allegations. See Ashcroft v. Iqbal, 556 5 U.S. 662, 678 (2009) (“A pleading that offers labels and conclusions . . . will not do.”) (cleaned 6 up). And the factual allegations themselves are lacking. The amended complaint alleges “[t]he 7 real properties in the vicinity of 8707 Wight Way, Kelseyville are rural, remote and well 8 separated,” (Dkt. No. 26 ¶ 2), which supports an inference neighbors were not nearby when Mr. 9 Ross fired the “warning shot.” Nevertheless, Mr. Ross still fails to allege where he stood when he 10 fired the “warning shot,” in what direction he fired it, and the location of the individuals he 11 intended to “scare away” when he fired the shot. Meanwhile, Mr. Ross alleges “[b]efore the 12 subject discharge, [he] had no way to safely determine how many persons were involved in said 13 activities and . . . no way to determine in advance whether or not any of the intruders were 14 carrying a firearm.” (Dkt. No. 26 ¶ 2.) That Mr. Ross could not ascertain facts about the 15 individual(s) on his property before he fired the warning shot supports an inference the officers 16 had probable cause to arrest Mr. Ross for a violation of Penal Code section 246.3—that is, his 17 inability to see them supports an inference the discharge was grossly negligent. The amended 18 complaint also alleges “there were no physical injuries caused to any person involved in any 19 criminal activity,” “no physical injuries caused to any onlookers or bystanders or nosy neighbors 20 then present,” and no property damage. (Dkt. No. 26 ¶ 2.) But California Penal Code section 21 246.3 “does not require any intent to cause harm.” See Coronado, 603 F.3d at 711. 22 Moreover, like the prior complaint, the amended complaint lacks facts about what the 23 arresting officers knew. See Luchtel v. Hagemann, 623 F.3d 975, 979 (9th Cir. 2010) (“Probable 24 cause exists when under the totality of circumstances known to the arresting officers, a prudent 25 person would have concluded that there was a fair probability that the suspect had committed a 26 crime.”) (cleaned up). The amended complaint alleges Mr. Ross “informed defendants before his 27 arrest that the discharge was made to ‘scare away’ the persons then breaking into the Plaintiffs 1 verbal reports from bystanders of what might have been, at most, a misdemeanor offense in a more 2 densely populated neighborhood.” (Id.) But Mr. Ross still does not allege he told the arresting 3 officers where he stood when he fired the shot, in what direction he fired it, and where the 4 intruders were at the time. So, even drawing inferences in Mr. Ross’s favor, the amended 5 complaint does not plausibly allege the arresting officers lacked probable cause to conclude Mr. 6 Ross discharged a shotgun in grossly negligent manner. See People v. Nieto Benitez, 4 Cal. 4th 7 91, 114 (1992) (Mosk. J., concurring) (hypothesizing that if, “in a remote part of a rural county, a 8 hunter, for no apparent reason, fired a bullet into the air at a 45–degree angle, causing a human 9 death on the ground some distance away,” such act would be illegal under section 246.3 because it 10 “could result in injury or death” and “was somewhat dangerous even though performed in a thinly 11 populated area”). 12 In his “declaration in opposition to defendant(s)’ motion(s) to dismiss,” Mr. Ross asserts 13 the officers lacked probable cause to arrest him for destroying and concealing evidence in 14 violation of Penal Code section 135. (Dkt. No. 29 at 3.) However, on a motion to dismiss, a court 15 cannot look to matters beyond the complaint without converting the motion into one for summary 16 judgment. Fed. R. Civ. P. 12(d). There are exceptions to this rule for materials incorporated by 17 reference or subject to judicial notice, but Mr. Ross does not argue either exception, nor is either 18 exception appropriate here. So, the Court cannot consider Mr. Ross’s testimony in his declaration 19 in ruling on Defendants’ motion to dismiss. 20 Even if the statements in Mr. Ross’s declaration were alleged in the complaint, it would 21 not change the Court’s analysis. “As long as the officers had some reasonable basis to believe 22 [Mr. Ross] had committed a crime, the arrest is justified as being . . . based on probable cause.” 23 See Blankenhorn, 485 F.3d at 473. As described above, accepting all facts in the amended 24 complaint as true and drawing all inferences in Mr. Ross’s favor, the amended complaint does not 25 plausibly support an inference the arresting officers lacked probable cause to arrest Mr. Ross. To 26 the contrary, it supports an inference the arresting officers had probable cause to arrest Mr. Ross 27 for violating section 246.3; whether there was probable cause to also arrest Mr. Ross for violating 1 exist as to any offense that could be charged under the circumstances.”). 2 So, the Court GRANTS Defendants’ motion to dismiss the unlawful arrest claims without 3 leave to amend. Even were Mr. Ross to amend his complaint to include the statements in his 4 declaration, the complaint would not state a section 1983 claim for unlawful arrest. So, 5 amendment would be futile. See Johnson, 975 F.2d at 607. Furthermore, because the Court 6 previously identified the deficiencies with this cause of action and Mr. Ross failed to cure them, 7 granting further leave to amend would prejudice Defendants. See id. 8 III. DNA SWAB 9 Mr. Ross’s first cause of action alleges all defendants deprived him of “certain 10 constitutionally protected rights, including . . . [t]he right to be free from interferences with the 11 zone of privacy, as protected by the Fourth and Ninth Amendments.” (Dkt. No. 26 ¶ 24(f).) And 12 his third cause of action alleges “Defendants, and each of them, acted in order to forcefully seize a 13 sample of Plaintiff ROSS’s DNA following his arrest . . . in violation of Plaintiff[] ROSS’s 14 privacy right(s).” (Dkt. No. 26 ¶ 33.) Defendants move to dismiss the DNA swab claim on the 15 ground Plaintiff was charged with a felony. 16 As the Court’s prior order explained, in Haskell v. Harris, 745 F.3d 1269, 1271 (9th Cir. 17 2014), the Ninth Circuit considered whether “California’s DNA collection scheme [is] 18 constitutional as applied to anyone arrested for, or charged with, a felony offense by California 19 state or local officials.” In light of Maryland v. King, 569 U.S. 435 (2013), the Ninth Circuit 20 concluded “the answer is clearly yes.” Haskell, 745 F.3d at 1271. King and Haskell involved 21 individuals arrested for felony offenses. Because Mr. Ross’s prior complaint did not allege on 22 what grounds he was arrested—whether for a felony or misdemeanor offense—the Court 23 dismissed the DNA swab claims. 24 The amended complaint suffers the same flaw. Mr. Ross still does not allege on what 25 ground he was arrested. On this point, Defendants ask the Court to take judicial notice of Mr. 26 Ross’s arrest report, which they assert shows the arresting charge was “a felony arrest for violation 27 of section 246.3(A) of California Penal Code: Willful discharge of firearm in a grossly negligent 1 of “matters of public record,” the court may not do so for the truth of the facts recited therein. Lee 2 v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001); see also United States v. Ritchie, 342 3 F.3d 903, 909 (9th Cir. 2003) (“[T]he existence and content of a police report are not properly the 4 subject of judicial notice.”) (cleaned up). So, the Court declines to take judicial notice of the arrest 5 report’s representation that Mr. Ross was charged with a felony. Nevertheless, because Mr. Ross 6 himself does not allege on what ground he was arrested, he has not plausibly alleged the DNA 7 swab was unconstitutional. 8 So, the Court GRANTS Defendants’ motion to dismiss the DNA swab claim without leave 9 to amend. As with the claims above, the Court’s prior order specifically identified the deficiencies 10 in Mr. Ross’s complaint, and the amended complaint did not cure those deficiencies. 11 IV. MONELL CLAIMS 12 Defendants move to dismiss any Monell claim asserted against the County because 13 “Plaintiff cannot establish any underlying constitutional violation” and because “Plaintiff has still 14 not alleged any policy attributable to the County.” (Dkt. No. 27 at 12-13.) The Court agrees in 15 both regards. First, as discussed above, Mr. Ross does not allege a violation of his Fourth or 16 Fourteenth Amendment rights. See Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 17 2011) (“In order to establish liability for governmental entities under Monell, a plaintiff must 18 prove . . . that [the plaintiff] possessed a constitutional right of which he was deprived.”) (cleaned 19 up). 20 Second, Mr. Ross does not allege a County of Lake “deliberate policy, custom, or practice 21 . . . was the moving force behind [a] constitutional violation [he] suffered.” See Vanegas v. City of 22 Pasadena, 46 F.4th 1159, 1167 (9th Cir. 2022). Mr. Ross’s second cause of action contains 23 allegations resembling a recitation of the Monell elements. Mr. Ross alleges (1) County of Lake 24 “has been given notice on repeated occasions of a pattern of ongoing constitutional violations and 25 other practices by defendants named herein . . . consisting of the use of the illegal search, seizure, 26 and arrest of citizens, as well as the use of excessive force against citizens”; (2) despite notice, 27 County of Lake “fail[ed] to take necessary, appropriate, or adequate measures to prevent the 1 “demonstrates the existence of an informal custom or policy which tolerates and promotes the 2 continued illegal search, seizure, and arrest of citizens, as well as the continued use of excessive 3 force against citizens by officers employed by Defendant LAKE COUNTY SHERIFF’S 4 OFFICE.” (Dkt. No. 26 ¶ 27.) But these allegations fail to specify what constituted the “informal 5 custom or policy.” 6 So, the Court GRANTS Defendants’ motion to dismiss the Monell claims. That said, the 7 Court grants Mr. Ross leave to amend his complaint for purposes of alleging County of Lake had a 8 policy of posting photographs of arrestees and such policy violates his constitutional rights. Mr. 9 Ross embeds this claim in other causes of action, alleging Defendants deprived him “of certain 10 constitutionally protected rights, including . . . [t]he right to be free . . . from . . . inclusion in 11 permanent government records branding an innocent citizen as a suspect of criminal activity.” 12 (Dkt. No. 26 ¶ 24(e), (g).) Mr. Ross also alleges Defendants “acted to publically [sic] post and 13 published on the internet the ‘LCSO Mugshot’ . . . in violation of Plaintiff ROSS’s due process 14 rights under the Fourteenth Amendment.” (Id. ¶ 32.) By embedding the claim in this way, Mr. 15 Ross disregarded the Court’s prior order that the amended complaint “set forth each separate claim 16 in a separate cause of action and each cause of action . . . identify the specific defendant(s) against 17 whom the claim is made.” (Dkt. No. 24 at 14-15.) However, as the Court previously noted, Mr. 18 Ross’s amended complaint may be able to state a claim against County of Lake for its policy of 19 posting arrestees’ photographs. See, e.g., Maricopa, Cnty. of, Arizona, 116 F.4th 935, 939, 947 20 (9th Cir. 2024) (holding “Maricopa County’s policy of posting photographs of arrestees” was not 21 “constitutionally permissible” since “[t]he state may not punish pretrial detainees without an 22 adjudication of guilt”). While the claim was improperly embedded alongside other claims, 23 Defendants’ motion to dismiss does not address the legal sufficiency of this claim. Therefore, the 24 Court GRANTS Mr. Ross leave to amend the claim regarding posting photographs of arrestees. 25 But dismissal of all other Monell claims is without leave to amend. 26 V. TOM BANE CIVIL RIGHTS ACT 27 Defendants assert “the Bane Act claim (and all state law claims) is untimely and barred for 1 “Government Code section 945.6, subdivision (a)(1) prescribes that an action against a public 2 entity must be brought within six months of written notice of a claim denial.” Him v. City & Cnty. 3 of San Francisco, 133 Cal. App. 4th 437, 441 (2005). “Timely claim presentation is not merely a 4 procedural requirement, but is a condition precedent to plaintiff’s maintaining an action against 5 defendant, and thus an element of the plaintiff’s cause of action.” A.M. v. Ventura Unified Sch. 6 Dist., 3 Cal. App. 5th 1252, 1257 (2016) (cleaned up). As such, “complaints that do not allege 7 facts demonstrating either that a claim was timely presented or that compliance with the claims 8 statute is excused are subject to [dismissal] for not stating facts sufficient to constitute a cause of 9 action.” Rubenstein v. Doe No. 1, 3 Cal. 5th 903, 906 (2017). 10 The amended complaint, like the prior complaint, alleges Mr. Ross “filed a timely 11 government tort claim with Defendant COUNTY OF LAKE on February 20, 2024, which was 12 subsequently rejected on or about June 24[,] 2024.” (Dkt. No. 26 ¶ 22 (emphasis added).) By 13 alleging rejection “on or about June 24,” Mr. Ross again fails to allege an exact date for purposes 14 of calculating the section 945.6 filing deadline. As the Court’s prior order stated, “[i]f the 15 rejection date for purposes of section 945.6 was precisely June 24, 2024, then the deadline to file 16 the complaint was December 24, 2024, and the complaint filed on December 30, 2024 was 17 untimely.” (Dkt. No. 24 at 10.) 18 Defendants note that, as stated in their prior motion to dismiss, they “understand that the 19 proof of service shows the actual date of mailing for the Government Tort Claim was June 26, 20 2024.” (Dkt. No. 27 at 5 n.1.) “The statute of limitations period is triggered from the date the 21 notice is deposited in the mail by the public entity, and not the date it is received by the claimant 22 or counsel.” Him, 133 Cal. App. 4th at 445. But even if the statute of limitations began running 23 on June 26, 2024, the deadline to file would be December 26, 2024, so the complaint filed on 24 December 30, 2024 was still untimely. See Edgington v. Cnty. of San Diego, 118 Cal. App. 3d 39, 25 42 (1981) (affirming that a complaint filed “one day too late” was barred by the statute of 26 limitations in section 945.6(a)(1)). 27 In his “declaration in opposition to defendant(s)’ motion(s) to dismiss,” Mr. Ross attaches 1 crossed the Golden Gate Bridge on Tuesday, December 24, 2025 at approximately 5:24 p.m., 2 during the course of driving from [his] home in Lake County to the Court Clerk’s counter for the 3 United States District Court of the Norther[n] District in order to hand-file [his] initial pleading in 4 this civil action.” (Dkt. No. 29 ¶ 2.) As discussed above, the Court cannot consider this 5 declaration in ruling on Defendants’ motion to dismiss. Accepting as true that Mr. Ross’s claim 6 was rejected on June 24, 2024—which is what is alleged in the amended complaint—Mr. Ross 7 had to file his complaint by December 24, 2024 to comply with California Government Code 8 section 945.6. Because Mr. Ross filed the present complaint on December 30, 2024, the 9 complaint was untimely based on the complaint’s allegations. 10 The Court therefore GRANTS Defendants’ motion to dismiss the Bane Act claim. The 11 dismissal is without leave to amend. In considering whether Mr. Ross could amend this claim, the 12 Court draws all inferences in Mr. Ross’s favor, including inferences from assertions Mr. Ross 13 made not in the complaint, but in oppositions and declarations. So, the Court assumes Mr. Ross 14 could amend his complaint to allege the statute of limitations period began running on June 26, 15 2024—the day, according to Defendants, the notice was deposited in the mail—meaning the 16 complaint had to be filed by December 26, 2024. The Court also assumes Mr. Ross could amend 17 his complaint to allege he went to the courthouse on December 24, 2024, only to find the 18 courthouse had closed early due to the holiday. Finally, the Court assumes Mr. Ross could amend 19 the complaint to allege he hand-delivered the complaint “to the Court Clerk’s Reception Box on 20 Friday, December 27, 2024,” which “was not back-dated by the Court Clerk who received the 21 filing the following Monday.” (Dkt. No. 18 at 5.) But whether he filed his complaint on 22 December 27 or December 30, 2024, both are after the December 26, 2024 filing deadline. Mr. 23 Ross does not allege or assert the courthouse was closed on December 26, 2024. So, the Court 24 denies Mr. Ross’s request to amend his Bane Act claim because amendment would be futile. 25 VI. INDIVIDUAL DEFENDANTS 26 Defendants assert Mr. Ross “fails to state sufficient facts identifying any particular conduct 27 that plausibly states claims for relief under the constitution” as against Defendants Deputy 1 Donaldson, Deputy More, Deputy Paulich, and Sheriff Howe.5 (Dkt. No. 27 at 13.) Previously, 2 the Court dismissed the individual capacity claims against Defendants Donaldson, Mora, Paulich, 3 and Howe because “[a]side from the recitation of the parties . . . , the complaint contain[ed] no 4 mention” of Defendants Donaldson, Mora, Paulich, and Howe. (Dkt. No. 24 at 14.) The amended 5 complaint is the same. Mr. Ross does not allege these officials through their individual actions 6 violated the Constitution. 7 The filings Mr. Ross submitted in opposition to Defendants’ motion to dismiss reference 8 Defendants Mora, Donaldson, and Howe. Specifically, Mr. Ross’s opposition asserts Deputy 9 Mora and Deputy Donaldson’s contention that Mr. Ross “took any action(s) to destroy or conceal 10 any evidence on August 23, 2023 was false” and made to supply a false justification for arrest. 11 (Dkt. No. 29 at 3.) And his declaration in support of his opposition to the motion to dismiss 12 asserts Deputies Donaldson and Mora and Sheriff Howe failed to investigate the break-in into Mr. 13 Ross’s vehicle. (Dkt. No. 30 at 3-4.) But the amended complaint does not contain these 14 allegations, and as discussed above, the Court cannot look to matters beyond the complaint on this 15 motion to dismiss. Moreover, as discussed above, whether the officers had probable cause to 16 arrest Mr. Ross for destroying or concealing evidence does not alter the conclusion about whether 17 the officers had probable cause to arrest Mr. Ross. Because the statements in Mr. Ross’s 18 opposition fail to cure the deficiencies previously identified in the complaint, the Court concludes 19 amendment would be futile and dismisses the individual capacity claims against Defendants 20 Donaldson, Mora, Paulich, and Howe without leave to amend.6 21
22 5 In parts of this section of their motion, Defendants state the complaint is insufficient as to Defendants Donaldson, Mora, Paulich, and Howe. (Dkt. No. 27 at 13.) Later in that same section, 23 the motion excludes Defendant Howe. (Id. (arguing Mr. Ross fails to state a claim “against Defendants Deputy Donaldson, Deputy Mora or Deputy Paulich.”).) The Court understands 24 Defendants to have moved to dismiss claims against Defendants Donaldson, Mora, Paulich, and Howe. 25 6 The amended complaint sues the individual defendants in their individual and official capacities. (Dkt. No. 26 ¶¶ 10, 12, 13, 14, 16.) The Court’s prior order “dismisse[d] the official capacity 26 claims against Rob Howe, Demetrius Donaldson, Jeffrey Mora, Corey Paulich, and Mireya Turner without leave to amend as redundant of the claims against the County and its departments.” (Dkt. 27 No. 24 at 14.) Defendants argue “[i]nsofar as Plaintiff has re-alleged his ‘official capacity’ claims 1 CONCLUSION 2 For the reasons stated above, the Court GRANTS Defendants’ motion to dismiss. Except 3 for Mr. Ross’s claim about the posting of his arrest photograph, the claims are dismissed without 4 || leave to amend. If Mr. Ross files an amended complaint, it should only include facts related to his 5 claim that County of Lake posted his mugshot in violation of his constitutional rights. It should 6 not include defendants or claims that have been dismissed without leave to amend. Moreover, Mr. 7 Ross may not amend his other claims, nor may he add additional claims or defendants, without 8 first seeking leave of the court. The deadline to file an amended complaint is September 9, 2025. 9 || If Mr. Ross does not file an amended complaint, judgment will be entered in Defendants’ favor on 10 all claims, including the posting the mugshot claim. 11 This Order disposes of Docket No. 27. 12 IT IS SO ORDERED. 13 Dated: August 7, 2025 fe Lie Set 15 ne CCVELINE SCOTT CORLEY = 16 United States District Judge
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