Valdez v. Naderi

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 STEPHEN CHARLES VALDEZ, Case No. 24-cv-01087-TSH

11 Plaintiff, ORDER GRANTING MOTION TO 12 v. DISMISS

13 SALAR NADERI, et al., Re: Dkt. No. 33, 35 14 Defendants.

15 16 I. INTRODUCTION 17 Pending before the Court is a Motion to Dismiss Plaintiff’s First Amended Complaint 18 pursuant to Federal Rule of Civil Procedure 12(b)(6) brought by Defendants City and County of 19 San Francisco, Salar Naderi and Marc Jimenez. ECF No. 33. Plaintiff Stephen Valdez filed an 20 Opposition (ECF No. 44) and Defendants filed a Reply (ECF No. 45). The Court finds this matter 21 suitable for disposition without oral argument and VACATES the September 26, 2024 hearing. 22 See Civ. L.R. 7-1(b). For the reasons stated below, the Court GRANTS the motion.1 23 II. BACKGROUND 24 Plaintiff Stephen Valdez alleges that Defendants Salar Naderi and Marc Jimenez, both 25 police officers for the San Francisco Police Department (“SFPD”), used excessive force to detain 26 him. First Amended Complaint (“FAC”) ¶¶ 2, 7, ECF No. 29. Plaintiff alleges that on January 1, 27 1 2023, he was walking down Market Street in San Francisco when Officer Naderi approached him, 2 told him he was being detained for littering, and physically pushed Plaintiff to a police vehicle. 3 FAC ¶ 10. Officer Jimenez “assisted in this detainment.” FAC ¶ 10. Mr. Valdez alleges that he 4 initially “refused to comply with the officers and gave an alias as his name” and “argu[ed] that the 5 officers’ actions were illegal and that he did not have to comply.” FAC ¶ 11. When Mr. Valdez 6 attempted to leave, Officer Jimenez grabbed Plaintiff and put his hands behind his back. FAC 7 ¶ 11. Mr. Valdez alleges he then complied with the officers’ instructions. FAC ¶ 11. Mr. Valdez 8 alleges that Officer Naderi then grabbed Mr. Valdez by the ears, dragged him to the ground, 9 twisted his neck into an awkward position and smashed his face into the concrete while applying 10 his weight to Mr. Valdez’s neck and spine. FAC ¶ 12. Mr. Valdez was knocked unconscious. 11 FAC ¶ 12. Mr. Valdez alleges that at one point, Officer Naderi stopped exerting pressure and 12 looked at Mr. Valdez’s neck, “then covered [Mr. Valdez’s] neck with his hoodie and continued to 13 apply pressure to the same location.” FAC ¶ 13. Mr. Valdez alleges Officer Naderi repeatedly 14 threatened to punch him if he moved and continued to apply pressure to Mr. Valdez’s neck while 15 he lay on his stomach with his hands behind his back. FAC ¶¶ 14–15. Mr. Valdez alleges that 16 body camera footage corroborates these allegations. FAC ¶¶ 11–14. 17 Multiple officers then arrived at the scene, who ultimately requested an ambulance. FAC 18 ¶ 16. The San Francisco Fire Department determined that Mr. Valdez had suffered a neck injury. 19 FAC ¶ 16. Mr. Valdez was placed in a neck brace and transported to the hospital, where medical 20 staff determined he had sustained spinal cord injuries including cervical disc herniation, cervical 21 spinal stenosis and cervical myelopathy. FAC ¶¶ 9, 17, 18. During his hospitalization, Mr. 22 Valdez underwent multiple surgeries and procedures to treat injuries to his cervical spine, 23 including a bilateral interior cervical discectomy at C5-C6; bilateral foraminotomies at C5-C6; 24 interbody graft and fusion at C5-C6; placement of anterior cervical plate; and fluoroscopic 25 guidance. FAC ¶¶ 9, 18. Mr. Valdez alleges that he continues to suffer from numbness in his 26 right hand and severe carpal tunnel syndrome as a result of these injuries. FAC ¶ 19. 27 Mr. Valdez alleges that following the events of January 1, 2023, Officer Naderi 1 and fear “for his well-being and livelihood.” FAC ¶¶ 20–21. Mr. Valdez ultimately relocated to 2 another state because of Officer Naderi’s alleged harassment. FAC ¶ 21. 3 On February 22, 2024, Mr. Valdez filed a pro se action in this Court based on federal 4 question jurisdiction. Compl. ¶ 3, ECF No. 1. On May 1, 2024, Defendants filed a motion to 5 dismiss Plaintiff’s complaint. ECF No. 22. On May 30, 2023, Plaintiff filed his First Amended 6 Complaint (“FAC”), which superseded Plaintiff’s original complaint. ECF Nos. 29 (FAC), 32 7 (order finding as moot Defendant’s motion to dismiss). 8 In his FAC, Plaintiff alleges (1) excessive force in violation of the Fourth Amendment to 9 the U.S. Constitution against Defendants Naderi and Jimenez pursuant to 42 U.S.C. Section 1983 10 (FAC ¶¶ 23–30); (2) failure to intervene in violation of the Fourth Amendment to the U.S. 11 Constitution against Defendant Jimenez and DOES 1–10 pursuant to 42 U.S.C. Section 1983 12 (FAC ¶¶ 31–34); (3) Monell claims pursuant to 42 U.S.C. § 1983 against Defendant City and 13 County of San Francisco, Defendant Naderi, Defendant Jimenez and Defendant DOES 1–10 (FAC 14 ¶¶ 35–37); (4) violation of the Bane Act, Cal. Civil Code 52.1 against Defendant City and County 15 of San Francisco, Defendant Naderi, Defendant Jimenez and Defendant DOES 1–10 (FAC ¶¶ 38– 16 41); (5) intentional infliction of emotional distress as against Defendant Naderi, Defendant 17 Jimenez and Defendant DOES 1–10 (FAC ¶¶ 42–45); (6) battery against Defendant Naderi, 18 Defendant Jimenez and Defendant DOES 1–10 (FAC ¶¶ 46–48). 19 In Defendants’ Motion to Dismiss, Defendants seek judgment on (1) Plaintiff’s Monell 20 claim (Claim Three); (2) Plaintiff’s state law claims under the Bane Act and for IIED and battery 21 (Claims Four, Five, and Six); (3) Plaintiff’s Bane Act claim against Officer Jimenez (Claim Four); 22 and (4) Plaintiff’s Intentional Infliction of Emotional Distress claim (Claim Five) against Officer 23 Jimenez. Mot. at 4–9. 24 III. LEGAL STANDARD 25 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 26 sufficiency of a claim. A claim may be dismissed only if it appears beyond doubt that the plaintiff 27 can prove no set of facts in support of his claim which would entitle him to relief.” Cook v. 1 must liberally construe a pro se litigant's complaint. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 2 Cir. 2012) (quoting Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011)). Rule 8 provides 3 that a complaint must contain a “short and plain statement of the claim showing that the pleader is 4 entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). Thus, a complaint must plead “enough facts to state a 5 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 6 Plausibility does not mean probability, but it requires “more than a sheer possibility that a 7 defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must 8 therefore provide a defendant with “fair notice” of the claims against it and the grounds for relief. 9 Twombly, 550 U.S. at 555 (quotations and citation omitted). 10 In considering a motion to dismiss, the court accepts factual allegations in the complaint as 11 true and construes the pleadings in the light most favorable to the nonmoving party. Manzarek v. 12 St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008); Erickson v. Pardus, 551 13 U.S. 89, 93–94 (2007). However, “the tenet that a court must accept as true all of the allegations 14 contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements 15 of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 16 678. 17 If a Rule 12(b)(6) motion is granted, the “court should grant leave to amend even if no 18 request to amend the pleading was made, unless it determines that the pleading could not possibly 19 be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en 20 banc) (citations and quotations omitted). A court “may exercise its discretion to deny leave to 21 amend due to ‘undue delay, bad faith or dilatory motive on part of the movant, repeated failure to 22 cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . ., 23 [and] futility of amendment.’” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892–93 (9th 24 Cir. 2010) (alterations in original) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). 25 IV. DISCUSSION 26 In Defendants’ Motion to Dismiss, Defendants seek judgment on (1) Plaintiff’s Monell 27 claim (Claim Three); (2) Plaintiff’s state law claims under the Bane Act and for IIED and battery 1 and (4) Plaintiff’s Intentional Infliction of Emotional Distress claim (Claim Five) against Officer 2 Jimenez. Mot. at 4–9. 3 A. Request for Judicial Notice 4 Defendants ask the Court to take judicial notice of four facts:

5 1. Plaintiff submitted a claim against the City and County of San Francisco on June 2, 2023. 6 2. Plaintiff submitted a first amended claim against the City and 7 County of San Francisco on June 27, 2023.

8 3. Plaintiff submitted a second amended claim against the City and County of San Francisco on June 29, 2023. 9 4. The City rejected Plaintiff’s claim by mailed letter on July 13, 10 2023. 11 ECF Nos. 35 at 2–3 (request for judicial notice); 33-1 (declaration of Brian Cauley); 34-1, 34-2, 12 34-3 and 34-4 (Exs. A – D to Cauley Decl). Mr. Valdez has not objected to the request. See 13 generally Opp’n. 14 Federal Rule of Evidence 201 allows the Court to “judicially notice a fact that is not 15 subject to reasonable dispute because it . . . can be accurately and readily determined from sources 16 whose accuracy cannot reasonably be questioned.” F.R.E. 201(b)(2). Courts may consider 17 “matters of public record” in deciding a motion to dismiss. Northstar Fin. Advisors Inc. v. 18 Schwab Invs., 779 F.3d 1036, 1042 (9th Cir. 2015) (quoting Coto Settlement v. Eisenberg, 593 19 F.3d 1031, 1038 (9th Cir. 2010)). 20 The Court takes judicial notice of Mr. Valdez’s June 2, June 27, and June 29, 2023 claims 21 claim against the City because they are matters of public record that are not subject to reasonable 22 dispute. The Court takes judicial notice of the fact that the City mailed a rejection letter to Mr. 23 Valdez’s then-counsel on July 13, 2023. See Roy v. Contra Costa Cnty., No. 15-CV-02672-TEH, 24 2015 WL 5698743, at *2 n.6 (N.D. Cal. Sept. 29, 2015) (taking judicial notice of plaintiff’s 25 Government Claim and city defendants’ notice rejecting claim). 26 27 1 B. Plaintiff’s Monell Claim 2 The Civil Rights Act, codified at 42 U.S.C. § 1983, provides in relevant part:

3 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States or other person 4 within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be 5 liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 6 7 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for 8 vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 393–94 (1989) 9 (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). “[M]unicipalities and other local 10 government units . . . [are] among those persons to whom § 1983 applies.” Monell v. Dep’t of Soc. 11 Servs. of City of New York, 436 U.S. 658, 690 (1978). 12 To establish municipal liability, plaintiffs “must prove that ‘action pursuant to official 13 municipal policy’ caused their injury.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting 14 Monell, 563 U.S. at 691). “The ‘official policy’ requirement was intended to distinguish acts of 15 the municipality from acts of employees of the municipality, and thereby make clear that 16 municipal liability is limited to action for which the municipality is actually responsible.” 17 Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (emphasis in original). Official municipal 18 policy includes “the decisions of a government’s lawmakers, the acts of its policymaking officials, 19 and practices so persistent and widespread as to practically have the force of law.” Connick, 563 20 U.S. at 61 (citations omitted). Such policy or practice must be a “moving force behind a violation 21 of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing 22 Monell, 436 U.S. at 694). An official municipal policy may be either formal or informal. City of 23 St. Louis v. Praprotnik, 485 U.S. 112, 131 (1988) (acknowledging that a plaintiff could show that 24 “a municipality’s actual policies were different from the ones that had been announced.”). 25 In the Ninth Circuit, a municipality may be liable under section 1983 under three possible 26 theories. Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 802 (9th Cir. 2018). The first is where 27 “execution of a government’s policy or custom, whether made by its lawmakers or by those whose 1 Monell, 436 U.S. at 694). “A policy or custom may be found either in an affirmative proclamation 2 of policy or in the failure of an official ‘to take any remedial steps after [constitutional] 3 violations.’” Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (quoting Larez v. City of Los 4 Angeles, 946 F.2d 630, 647 (9th Cir. 1991) (holding that a jury could find a policy or custom of 5 using excessive force from the police chief’s failure to discipline officers for such conduct)); see 6 also Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1235 (9th Cir. 2011) (holding “evidence of a 7 recurring failure to investigate and discipline municipal officers for constitutional violations can 8 help establish the existence of an unconstitutional practice or custom” of using excessive force). 9 Second, “a local government can fail to train employees in a manner that amounts to 10 ‘deliberate indifference’ to a constitutional right, such that ‘the need for more or different training 11 is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that 12 the policymakers of the city can reasonably be said to have been deliberately indifferent to the 13 need.’” Rodriguez, 891 F.3d at 802 (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)). 14 Third, a municipality may be liable under section 1983 if “the individual who committed 15 the constitutional tort was an official with final policy-making authority or such an official ratified 16 a subordinate's unconstitutional decision or action and the basis for it.” Id. at 802–03 (quoting 17 Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1097 (9th Cir. 2013) (internal quotation marks and 18 citation omitted)). 19 1. Plaintiff’s Monell Claim Against Individual Defendants Fails Because Monell Does Not Apply to Individual Defendants 20 21 Defendants contend Plaintiff fails to state a Monell claim against Officers Naderi and 22 Jimenez and DOES 1–10 because Monell is not viable against individual Defendants. Mot. at 4. 23 Plaintiff alleges that these individual Defendants “were acting pursuant to a policy or custom of 24 Defendant City of San Francisco to willfully fail to investigate, fail to discipline, fail to adequately 25 train, and thereby condone repeated constitutional violations by [SFPD] officers, including . . . 26 using excessive force in violation of the Fourth Amendment.” FAC ¶ 36. But “Monell does not 27 concern liability of individuals acting under color of state law.” Guillory v. Orange Cnty., 731 1 against local government bodies. Because a plaintiff cannot bring a Monell claim against an 2 individual, Plaintiff’s Monell claims against the individual Defendants must be dismissed. 3 Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s Monell claim 4 against Officers Naderi and Jimenez and Defendant DOES 1–10, without leave to amend. 5 2. Plaintiff’s Monell Claim Against the City and County of San Francisco Fails Because He Does Not Allege Facts of Sufficient Specificity to Impose Liability 6 on the City 7 Defendants contend Plaintiff’s Monell claim against the City must fail because the City is 8 not liable under Section 1983 for the acts of its employees under a respondeat superior theory and 9 because Plaintiff fails to allege prior similar constitutional violations to establish a pattern of such 10 violations. Mot. at 4–6. 11 “[A] municipality cannot be held vicariously liable under section 1983 for the acts of its 12 employees. . . . Under Monell, a municipality may be liable only if the alleged constitutional 13 violation was committed pursuant to an official policy, custom or practice.” Lelaind v. City & 14 Cnty. of San Francisco, 576 F. Supp. 2d 1079, 1088-89 1093 (N.D. Cal. 2008) (citing Monell, 436 15 U.S. 658 ). The fact that Officers Naderi and Jimenez and DOES 1–10 were employed by the City 16 as officers with SFPD, coupled with alleged constitutional violations by the individual 17 Defendants, is therefore not enough on its own to state a section 1983 (i.e. Monell) claim against 18 the City. 19 In support of his opposition to Defendants’ motion to dismiss Plaintiff’s Monell claim 20 against the City, Plaintiff states he has attached PDFs of SFPD annual reports, an article from The 21 Standard, an email to City and County of San Francisco’s Department of Police Accountability 22 requesting certain public records, and “misconduct violations by [SFPD] that were investigated 23 and disciplined.” See Opp’n at 1, 2, 5. A district court generally may not consider any material 24 beyond the pleadings in ruling on a Rule 12(b)(6) motion without treating the motion as a Rule 56 25 motion for summary judgment. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (per 26 curiam); Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001); see Fed. R. Civ. P. 12(d). “A 27 court may, however, consider certain materials—documents attached to the complaint, documents 1 motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 2 908 (9th Cir. 2003). Plaintiff did not attach any of these materials to his FAC, nor may the Court 3 consider them incorporated by reference. Plaintiff did not refer to any of these documents in his 4 FAC, nor do they appear to inform the allegations that make up his current Section 1983 claim 5 against the City. See generally FAC; FAC ¶¶ 35–37. Because these documents are outside the 6 scope of what the Court may consider in deciding a motion to dismiss under Rule 12(b)(6), the 7 Court excludes these documents from consideration in ruling on this motion. 8 Plaintiff’s Monell claim is primarily based on a longstanding practice or custom theory, 9 alleging the City “maintained a widespread practice or custom condoning and failing to prevent 10 constitutional violations of [SFPD] and its members causing Plaintiff’s injuries” and that Officers 11 Naderi and Jimenez and DOES 1–10 “were acting pursuant to a policy or custom of Defendant 12 City of San Francisco to willfully fail to investigate, fail to discipline, fail to adequately train, and 13 thereby condone repeated constitutional violations by [SFPD] officers, including . . . using 14 excessive force in violation of the Fourth Amendment.” FAC ¶¶ 36, 37. To plead a Monell claim 15 through a longstanding practice or custom, it “must be so ‘persistent and widespread’ that it 16 constitutes a ‘permanent and well settled city policy.’” Trevino v. Gates, 99 F.3d 911, 918 (9th 17 Cir. 1996). “Liability for improper custom may not be predicated on isolated or sporadic 18 incidents; it must be founded upon practices of sufficient duration, frequency and consistency that 19 the conduct has become a traditional method of carrying out policy.” Id. (citations omitted). 20 Although the Ninth Circuit has not “established what number of similar incidents would be 21 sufficient to constitute a custom or policy,” Oyenik v. Corizon Health Inc., 696 F. App’x 792, 794 22 (9th Cir. 2017), Plaintiff’s FAC fails to allege facts to support an inference that the practices were 23 so “persistent and widespread” as to constitute a City policy. See Navarro v. Block, 72 F.3d 712, 24 714 (9th Cir. 1995) (“Proof of random acts or isolated events is insufficient to establish custom.”). 25 The FAC does not contain specific factual allegations supporting the existence of a policy, 26 custom, or practice beyond Plaintiff’s own experiences. Plaintiff does not reference any specific 27 instances of unlawful conduct or events that form the basis for “a policy or custom . . . to willfully 1 constitutional violations[.]” FAC ¶¶ 36, 37. Rather, his Monell allegations against the City are 2 completely threadbare and conclusory. 3 Plaintiff alleges that the City’s policies or customs included “fail[ing] to adequately train” 4 SFPD officers. FAC ¶¶ 36. “A plaintiff alleging a failure to train claim under Monell must show: 5 (1) she was deprived of a constitutional right, (2) the municipality had a training policy that 6 amounts to deliberate indifference to the constitutional rights of the persons with whom its police 7 officers are likely to come into contact, and (3) her constitutional injury would have been avoided 8 had the municipality properly trained those officers.” Bryant v. City of Antioch, No. 21-Ccv- 9 00590-TSH, 2021 WL 3565443, at *7 (N.D. Cal. Aug. 12, 2021) (citing Young v. City of Visalia, 10 687 F. Supp. 2d 1141, 1148 (E.D. Cal. 2009)). As with liability based on improper practice or 11 custom, Plaintiff’s allegations regarding inadequate training or supervision are threadbare and 12 conclusory. 13 Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s Monell claim 14 against the City and County of San Francisco. The Court GRANTS Plaintiff leave to amend. 15 C. Compliance with the Government Claims Act 16 Defendants contend Plaintiff’s state law claims must be dismissed for failure to comply 17 with the Government Claims Act. Mot. at 6–8. The California Government Claims Act, Cal. 18 Gov’t Code § 810 et seq., “is a comprehensive statutory scheme that sets forth the liabilities and 19 immunities of public entities and public employees for torts.” Cordova v. City of Los Angeles, 61 20 Cal. 4th 1099, 1104–05 (2015) (quotation marks omitted). The Government Claims Act requires 21 plaintiffs to present “‘all claims for money or damages against local public entities’ . . . to the 22 responsible public entity before a lawsuit is filed.” City of Stockton v. Superior Court, 42 Cal. 4th 23 730, 734 (2007) (quoting Cal. Gov’t Code § 905). The Government Claims Act also applies to 24 claims against public employees and former public employees for acts or omissions committed 25 within the scope of their employment as public employees. Cal. Gov’t Code § 950.2. See also 26 Briggs v. Lawrence, 230 Cal. App. 3d 605, 613 (1991) (noting “what amounts to a requirement 27 that (with exceptions not relevant here) one who sues a public employee on the basis of acts or 1 employer pursuant to the procedure for claims against public entities”) (emphasis in original); 2 Olson v. Manhattan Beach Unified Sch. Dist., 17 Cal. App. 5th 1052, 1055 n.1 (2017) (“The 3 defense of noncompliance with the Government Claims Act also applies to the claims against 4 [individual defendant public employee].)” 5 A plaintiff’s complaint must “allege facts demonstrating or excusing compliance with this 6 claim presentation requirement[.]” State of California v. Superior Ct., 32 Cal. 4th 1234, 1237 7 (2004). See also Mangold v. Cal. Pub. Utilities Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995) 8 (requiring plaintiff to “allege compliance or circumstances excusing compliance” with the 9 California Tort Claims Act). 10 Plaintiff’s FAC does not state that he filed a claim with the City or when he filed that 11 claim. Nor does Plaintiff’s FAC state that his claim was denied and on what date. Plaintiff 12 alleges that Officers Naderi and Jimenez were acting in the scope of their employment when they 13 committed the acts giving rise to Plaintiff’s claims. FAC ¶ 2. Because Plaintiff’s FAC fails to 14 allege compliance or circumstances excusing compliance with the Government Claims Act, his 15 state law claims against both the City and Officers Naderi and Jimenez must be dismissed. 16 The Ninth Circuit has “repeatedly held that a district court should grant leave to amend 17 even if no request to amend the pleading was made, unless it determines that the pleading could 18 not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th 19 Cir. 2000). 20 Defendants contend amendment of Plaintiff’s state law claims is futile because Plaintiff 21 failed to bring his claims within six months of the date the City provided notice of rejection of his 22 claims. Mot. at 7–8. See Cal. Gov’t Code § 945.6(a)(1) (requiring plaintiff to file lawsuit “not 23 later than six months after the date [the notice of rejection] is personally delivered or deposited in 24 the mail.”) The City mailed a notice rejecting Mr. Valdez’s June 2, June 27, and June 29 claims to 25 his then-counsel, Mosley C. Collins III, on July 13, 2023. ECF No. 34-4. Mr. Valdez filed his 26 original complaint in this Court seven months later, on February 22, 2024, and filed the FAC on 27 May 30, 2024. ECF Nos. 1, 29. Mr. Valdez does not dispute that he failed to bring his state 1 Valdez contends he had two years to bring his claims because he did not personally receive notice 2 from the City that his claim had been denied. Opp’n at 3; see Cal. Gov’t Code § 945.6(a)(2) 3 (requiring plaintiff to file suit “within two years from the accrual of the cause of action” when 4 “written notice is not given”). But notice to a party’s counsel is considered notice to the client, 5 and Plaintiff does not dispute that he had a lawyer when the City rejected his claims. Opp’n at 3 6 (stating that “the court was notified in December 2023 that [Plaintiff’s counsel] removed 7 themselves as representation for plaintiff.”). See, e.g., Watson v. Sutro, 86 Cal. 500, 516–17 8 (1890) (“Notice to counsel or attorney is constructive notice to client.”) 9 In his opposition, Plaintiff asserts that his former counsel did not notify him of any 10 deadlines. Opp’n at 3. In support of this assertion, Plaintiff offers an unsigned declaration 11 indicating that his former counsel did not inform him of the deadline to file his claims. See ECF 12 No. 44-3. Because this declaration was neither attached to Plaintiff’s FAC nor referenced within 13 it, the Court cannot consider it in deciding this motion. See Swartz, 476 F.3d at 763. 14 Still, “[t]he doctrine of equitable tolling may [] apply to the [six month] limitation periods 15 imposed by” the Government Claims Act. J.M. v. Huntington Beach Union High Sch. Dist., 2 16 Cal. 5th 648, 657 (2017). See also Turnacliff v. Westly, No. 05-cv-05303-SI, 2006 WL 1867721, 17 at *3 (N.D. Cal. July 6, 2006) (noting “the doctrine of equitable tolling rests upon the reasoning 18 that a claim should not be barred unless the defendant would be unfairly prejudiced if the plaintiff 19 were allowed to proceed.”). The Court provides leave to amend in case Plaintiff may be able to 20 allege facts to show that the deadline to file suit was subject to equitable tolling, or if there is some 21 other basis to allege that he complied with the Government Claims Act or that compliance was 22 somehow excused. 23 Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s state law 24 claims. The Court GRANTS leave to amend. 25 V. CONCLUSION 26 For the reasons stated above, the Court GRANTS Defendants’ motion to dismiss. The 27 Court GRANTS Plaintiff leave to amend his Monell claim as to the City and County of San 1 Amended Complaint shall be filed by October 23, 2024. 2 IT IS SO ORDERED. 3 4 || Dated: September 25, 2024 5 TAA. □□ THOMAS S. HIXSON 6 United States Magistrate Judge 4 8 9 10 11 12

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