Victoria v. City of San Diego

• Court: District Court, S.D. California
• Decided: September 23, 2019
• Docket: 3:17-cv-01837
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ARVAUNTI VICTORIA, Case No.: 17-CV-1837-AJB-NLS

12 Plaintiff, ORDER: 13 v. (1) GRANTING DEFENDANTS CITY 14 CITY OF SAN DIEGO, DAVID OF SAN DIEGO AND SHELLEY DUNHOFF, individually and in his 15 ZIMMERMAN’S MOTION TO official capacity, et al. DISMISS; 16 Defendants. 17 (2) GRANTING IN PART AND DENYING IN PART DAVID 18 DUNHOFF’S MOTION TO DISMISS; 19 (3) GRANTING IN PART AND 20 DENYING IN PART JUSTIN 21 MONTOYA’S MOTION TO DISMISS; 22

23 (4) GRANTING IN PART AND DENYING IN PART J. JOHNSON’S 24 MOTION TO DISMISS; 25 (5) GRANTING IN PART AND 26 DENYING IN PART TIMOTHY 27 COYLE’S MOTION TO DISMISS;

28 1 (6) GRANTING IN PART AND DENYING IN PART ADAM 2 GEORGE’S MOTION TO DISMISS; 3 AND

4 (7) GRANTING DAVID WOLFF’S 5 MOTION TO DISMISS 6 7 (Doc. Nos. 50, 51, 52, 53, 54, 55, 56)

8 Pending before the Court are seven motions: (1) Defendants City of San Diego and 9 Shelley Zimmerman’s motion to dismiss; (2) Defendant Timothy Coyle’s motion to 10 dismiss; (3) Defendant David Dunhoff’s motion to dismiss; (4) Defendant Adam George’s 11 motion to dismiss; (5) Defendant J. Johnson’s motion to dismiss; (6) Defendant Justin 12 Montoya’s motion to dismiss; and (7) Defendant David Wolff’s motion to dismiss. (Doc. 13 Nos. 50, 51 52, 53, 54, 55, and 56.) Plaintiff filed oppositions to all the motions. (Doc. Nos. 14 61, 62, 63, 64, 65, 66, 67, and 68.) As will be explained in greater detail below, and based 15 on the arguments presented in the papers and presented at the February 13, 2019 hearing 16 on this motion, the Court GRANTS the City of San Diego and Shelley Zimmerman’s 17 motion to dismiss, GRANTS in part and DENIES in part David Dunhoff’s motion to 18 dismiss, GRANTS in part and DENIES in part Justin Montoya’s motion to dismiss, 19 GRANTS in part and DENIES in part J. Johnson’s motion to dismiss, GRANTS in part 20 and DENIES in part Timothy Coyle’s motion to dismiss, GRANTS in part and DENIES 21 in part Adam George’s motion to dismiss, and GRANTS David Wolff’s motion to dismiss. 22 I. BACKGROUND1 23 The following allegations are taken from Plaintiff Arvaunti Victoria’s third amended 24 complaint (“TAC”). (Doc. No. 46.) This complaint arises out of a traffic stop on September 25 9, 2016. On September 9, 2016, Plaintiff was riding his motorcycle near Miramar and 26

27 1 The following allegations are taken from the TAC and are construed as true for the limited purpose of 28 1 Kearney Mesa Roads. (Doc. No. 46 ¶ 16.) Despite not having a decibel meter, the officers 2 claimed they stopped Plaintiff for having loud pipes and no license plate. (Id.) 3 On September 9, 2016, Defendant Coyle and Officer Harper were surveilling the Off 4 Base Bar for an assault that occurred on September 4, 2016. (Id. ¶¶ 16, 17.) The officers 5 observed Plaintiff arrive on a motorcycle and don a vest containing the emblem of the 6 “Chosen Few.” (Id. ¶ 18.) When Plaintiff left the bar, the officers followed him. (Id. ¶ 19.) 7 Defendants George and Johnson pulled over Plaintiff. (Id.) Defendant George informed 8 Plaintiff that the reason for the stop was that Plaintiff had loud pipes. (Id.) Then either 9 Defendant George or Defendant Johnson noticed Plaintiff’s motorcycle did not have a 10 license plate or a registration tag. (Id.) Plaintiff explained to the officers that the pipes were 11 stock pipes and complied with all California emissions and volume standards. (Id. ¶ 20.) 12 None of the six defendant officers had a decibel meter or any type of device that would 13 measure the sound of the exhaust pipes. (Id. ¶ 21.) 14 After the initial stop, several more officers appeared. (Id. ¶ 22.) Defendant Montoya 15 conducted a search of Plaintiff’s saddlebags by stating the search could be done “the easy 16 way or the hard way.” (Id.) After that comment, Plaintiff consented to the search. (Id.) 17 Defendants Coyle and Johnson conducted the search. (Id.) One of the officers discovered 18 the vest for the “Chosen Few.” (Id.) Plaintiff was also wearing several large rings on his 19 hand. (Id. ¶ 23.) Plaintiff was then arrested and charged with possession of metal knuckles. 20 (Id.) 21 Plaintiff’s cell phone was also seized. (Id. ¶ 24.) Defendant Montoya demanded 22 Plaintiff provide him with the password for the phone. (Id.) Defendant Montoya told 23 Plaintiff that if he did not provide the cell phone password Defendant Montoya would order 24 Plaintiff’s motorcycle impounded. (Id.) After this statement, Plaintiff provided Defendant 25 Montoya with his cell phone password. (Id.) However, Defendant Montoya was unable to 26 unlock the phone and ordered the motorcycle to be impounded. (Id.) 27 Plaintiff was then placed in a police car to be transported to jail. (Id.) On the way to 28 jail, Defendant Dunhoff gave Plaintiff “a second chance” to unlock his phone. (Id.) 1 Defendant Dunhoff stated that if Plaintiff provided Defendant Dunhoff access to his phone, 2 someone could pick up the motorcycle instead of it being impounded. (Id.) Plaintiff 3 unlocked the phone himself this time. (Id.) 4 Defendant Wolff then signed a sworn affidavit to obtain a search warrant for 5 Plaintiff’s cell phone. (Id. ¶ 41.) Defendant Wolff was not present at Plaintiff’s arrest, but 6 the events in the affidavit were relayed to him by Defendant Coyle. (Id.) 7 After Plaintiff’s arrest, he paid $8,000 for bail as a result of the incident. (Id. ¶ 49.) 8 The charges against Plaintiff were ultimately dismissed. (Id. ¶ 55.) However, Plaintiff 9 claims he continues to suffer from mental and emotional distress from the incident. Thus, 10 Plaintiff alleges the following causes of action: (1) violations of 42 U.S.C. § 1983— 11 violation of his Fourth Amendment right—illegal detention against all individual 12 Defendants; (2) false arrest against all individual Defendants; (3) illegal search against 13 individual Defendants; (4) deliberate indifference against all Defendants; (5) deliberate 14 indifference in regards to the purported custom and policies of the San Diego Police 15 Department; (6) violation of the California Constitution Article I, § 13 against Defendants 16 Coyle, Montoya, Dunhoff, Johnson, and George; (7) violation of California Civil Code § 17 52.1 against Defendants Montoya and Dunhoff; (8) injunctive relief pursuant to the Bane 18 Act—California Civil Code § 52.1—against Defendants Montoya and Dunhoff; and (9) 19 infliction of emotional distress against all individual Officer Defendants. (See generally 20 Doc. No. 46.) 21 Plaintiff filed his complaint on September 11, 2017. (Doc. No. 1.) On September 21, 22 2017, Plaintiff amended his complaint. (Doc. No. 3.) On November 17, 2017, a joint 23 motion to amend/correct the complaint was filed, (Doc. No. 15), which was granted on 24 November 20, 2017, (Doc. No. 16). On January 5, 2018, the two motions to dismiss were 25 filed. (Doc. Nos. 23, 24.) On September 5, 2018, the Court granted the City Defendants’ 26 motion to dismiss, granted in part and denied in part officer Defendants’ motion to dismiss 27 and granted Plaintiff leave to amend. (Doc. No. 44.) On September 19, 2018, Plaintiff filed 28 his third amended complaint (“TAC”). (Doc. No. 46.) On October 30, 2018, the seven 1 motions to dismiss were filed. (Doc. Nos. 50, 51, 52, 53, 55, 56.) 2 II. LEGAL STANDARD 3 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings 4 and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state 5 a claim upon which relief may be granted. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 6 2001). The court may dismiss a complaint as a matter of law for: “(1) lack of a cognizable 7 legal theory or (2) insufficient facts under a cognizable legal claim.” SmileCare Dental 8 Grp. v. Delta Dental Plan of Cal., Inc., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). 9 However, a complaint survives a motion to dismiss if it contains “enough facts to state a 10 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 11 (2007). 12 Notwithstanding this deference, the reviewing court need not accept legal 13 conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for 14 the court to assume “the [plaintiff] can prove facts that [he or she] has not alleged . . . .” 15 Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 16 519, 526 (1983). On the other hand, “[w]hen there are well-pleaded factual allegations, a 17 court should assume their veracity and then determine whether they plausibly give rise to 18 an entitlement to relief.” Iqbal, 556 U.S. at 679. The court only reviews the contents of the 19 complaint, accepting all factual allegations as true, and drawing all reasonable inferences 20 in favor of the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). 21 III. DISCUSSION 22 The Court will first address Defendants’ request for judicial notice. The Court will 23 then address each motion to dismiss in turn. 24 A. Defendants’ Request for Judicial Notice 25 Federal Rule of Evidence 201 states that a “court may judicially notice a fact that is 26 not subject to reasonable dispute because it: (1) is generally known within the trial court’s 27 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose 28 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). 1 Defendants City of San Diego and Defendant Zimmerman’s motion to dismiss 2 contained a request for judicial notice of thirteen exhibits: (1) People of the State of 3 California v. Chosen Few, M.C., et al. (“Chosen Few Case”); (2) “Judgment After Default 4 Against 9 Defendants” filed in the Chosen Few Case; (3) the declaration of Jenal filed in 5 the Chosen Few Case; (4) the warrant and affidavit in support of Victoria/Plaintiff; (5) the 6 police report at issue in this matter; (6) Police Magazine article; (7) California Highway 7 Patrol Information Bulletin; (8) Title 13 California Code of Regulations section 1036(d)(1); 8 (9) Plaintiff’s Second Amended Complaint; (10) San Diego Population of 3.3 million 9 people; (11) San Diego Police Street Gang Unit Mission; (12) Commission on Gang 10 Prevention and Intervention purpose statement; and (13) 2015 to 2020 Commission on 11 Gang Prevention and Intervention strategic action plan. (See generally Doc. No. 50-2.) 12 Plaintiff asserts no objections to Defendants’ request for judicial notice. (Doc. No. 61 at 13 10–11.) 14 As to Exhibits One through Three, as they are public records and documents from 15 the state court, judicial notice is appropriate. See Gerritsen v. Warner Bros. Entm’t Inc., 16 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015) (“It is well established that a court can take 17 judicial notice of its own files and records under Rule 201 of the Federal Rules of 18 Evidence.”); see also Molus v. Swan, No. 05-CV-452-MMA (WVc), 2009 WL 160937, at 19 *2 (S.D. Cal. Jan. 22, 2009) (“Courts also may take judicial notice of their own records[.]”). 20 However, the Court may not take judicial notice of findings of facts from another case. See 21 Walker v. Woodford, 454 F. Supp. 2d 1007, 1022 (S.D. Cal. Sept. 12, 2006). Accordingly, 22 the Court GRANTS Defendants’ request for judicial notice of Exhibits One through Three 23 for this limited purpose. 24 As to the arrest warrant, the Court will only take judicial notice of the reasonably 25 undisputed facts such as the existence of the warrant, its filing date, and the date of the stop 26 and arrest at issue, among other things. Thus, for this limited purpose, the Court GRANTS 27 Defendants’ request for judicial notice of Exhibit Four. See Bunkley v. Verber, No. 17-CV- 28 05797-WHO, 2018 WL 1242168, at *2 (N.D. Cal. Mar. 9, 2018) (explaining that the court 1 could take judicial notice of the arrest warrant as it was not subject to reasonable dispute); 2 see also Ferguson v. United States, No. 15-CV-1253, 2016 WL 4793180, at *3 (S.D. Cal. 3 Sept. 14, 2016) (taking judicial notice of an arrest warrant because it was a “matter[] of 4 public record, and the parties [did] not dispute [its] authenticity.”). 5 In regard to the police report, despite the fact that some records of a state agency 6 may be proper subjects of judicial notice, a district court “may not take judicial notice of 7 documents filed with an administrative agency to prove the truth of the contents of the 8 documents.” Zuccaro v. Martinez Unified School Dist., No. 16-CV-2709-EDL, 2016 WL 9 10807692, at *5 (N.D. Cal. Sept. 27, 2016); see also Knighten v. City of Anderson, No. 15- 10 CV-1751-TLN-CMK, 2016 WL 1268114, at *5 (E.D. Cal. Mar. 31, 2016) (refusing to take 11 judicial notice of police reports and facts contained in the report because they were subject 12 to reasonable dispute between the parties). Thus, the Court only GRANTS limited judicial 13 notice of Exhibit Five. 14 Exhibits Six, Seven, Eight, Eleven, Twelve, and Thirteen are all incorporated by 15 reference in the TAC, which the TAC necessarily relies on, and a document upon which 16 the TAC necessarily concerns. Accordingly, the Court may take judicial notice of these 17 documents. See U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Coto Settlement v. 18 Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). Thus, the Court GRANTS judicial notice 19 of Exhibits Six, Seven, Eight, Eleven, Twelve, and Thirteen. 20 Exhibit Nine is simply a copy of Plaintiff’s Second Amended Complaint, and thus 21 is appropriate for judicial notice. See Gerritsen, 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 22 2015) (“It is well established that a court can take judicial notice of its own files and records 23 under Rule 201 of the Federal Rules of Evidence.”). Accordingly, the Court GRANTS 24 judicial notice of Exhibit Nine. 25 Exhibit Ten is simply that the population of San Diego is 3.3 million people, and 26 thus is appropriate for judicial notice as it is public knowledge. Fed. R. Evid. 201(b); see 27 Reyn’s v. Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). 28 Accordingly, the Court GRANTS judicial notice of Exhibit Ten. 1 In sum, the Court GRANTS the City Defendants’ request for judicial notice of these 2 thirteen documents. (Doc. No. 50-2.) 3 B. Defendants City of San Diego and Shelley Zimmerman’s Motion to Dismiss 4 City Defendants assert Plaintiff’s allegations are nothing more than legal 5 conclusions and should be dismissed under Rule 8. (See generally Doc. No. 50-1.) Worth 6 noting is that Plaintiff has agreed not to request that Chief Zimmerman remain in this case 7 in her official capacity. (Doc. No. 61 at 18.) Accordingly, the Court will not address any 8 claims against Chief Zimmerman in her official capacity and those claims are dismissed. 9 i. First Through Third Causes of Action Against Zimmerman in her Individual 10 Capacity 11 Plaintiff’s first through third causes of action allege violations of Plaintiff’s Fourth 12 Amendment right protecting against unreasonable search and seizure. (See generally Doc. 13 No. 46.) 14 42 U.S.C. § 1983 “provides a cause of action for the ‘deprivation of any rights, 15 privileges, or immunities secured by the Constitution and laws’ of the United States.” 16 Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). 17 Section 1983 is not itself a source of substantive rights, but merely provides a method for 18 vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393–94 19 (1989). Specifically, Section 1983 provides a cause of action for the violation of 20 constitutional or other federal rights by persons acting under color of state law. Nurre v. 21 Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009). 22 For supervisory liability for deliberate indifference, a plaintiff has been able to hold 23 supervisors individually liable under § 1983 suits when “culpable action, or inaction, is 24 directly attributed to them.” Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011). In Larez 25 v. City of Los Angeles, 946 F.2d 630 (9th Cir. 1991), the Ninth Circuit explained that to be 26 held liable, the supervisor need not be “directly and personally involved in the same way 27 as are the individual officers who are on the scene inflicting constitutional injury.” Id. at 28 645. Rather, the supervisor’s participation could include his or her “own culpable action or 1 inaction in the training, supervision, or control of his subordinates,” “his acquiescence in 2 the constitutional deprivations of which the complaint is made,” or “conduct that showed 3 a reckless or callous indifference to the rights of others.” Id. at 646 (internal citations, 4 quotation marks, and alterations omitted). 5 Thus, a defendant may be held liable as a supervisor under § 1983 “if there exists 6 either (1) his or her personal involvement in the constitutional deprivation, or (2) a 7 sufficient causal connection between the supervisor’s wrongful conduct and the violation.” 8 Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). “[A] plaintiff must show the supervisor 9 breached a duty to plaintiff which was the proximate cause of the injury. The law clearly 10 allows actions against supervisors under section 1983 as long as a sufficient causal 11 connection is present and the plaintiff was deprived under color of law of a federal secured 12 right.” Redman v. Cty. of San Diego, 942 F.2d 1435, 1447 (9th Cir. 1991). “The requisite 13 causal connection can be established . . . by setting in motion a series of acts by others . . . 14 or by knowingly refus[ing] to terminate a series of acts by others, which [the supervisor] 15 knew or reasonably should have known would cause others to inflict a constitutional 16 injury[.]” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 17 First, Plaintiff alleges Defendant Zimmerman knew of the violations of 18 constitutional rights and failed to act to prevent them. Second, Plaintiff alleges Defendant 19 Zimmerman promulgated or implemented a policy violating constitutional rights of 20 “motorcycle club” riders, and this policy was the moving force behind the violations. Here, 21 Plaintiff alleges there have been twenty complaints in a four-year period complaining of 22 suspicion-less stops. (Doc. No. 46 ¶ 39.) However, Plaintiff does not allege these 23 complaints were all made by “motorcycle club” riders. Further, twenty incidents over a 24 four-year period in a city of 3,000,000 people does not establish a policy based on a pattern. 25 See Rizzo v. Goode, 423 U.S. 362, 371 (1976). Plaintiff has simply failed to allege any 26 specific and non-conclusory allegations that Defendant Zimmerman personally 27 participated in Plaintiff’s alleged constitutional violation, implemented or promogulated 28 1 an unconstitutional policy, had knowledge of an unconstitutional policy, or failed to protect 2 Plaintiff. 3 ii. Ninth Cause of Action Against Defendant Zimmerman in her Individual 4 Capacity 5 Plaintiff alleges a claim of Intentional Infliction of Emotional Distress (“IIED”) 6 against Defendant Zimmerman in her own capacity. A claim for IIED requires a prima 7 facie showing of “(1) extreme and outrageous conduct by the defendant with the intention 8 of causing, or reckless disregard of the probability of causing, emotion distress; (2) the 9 plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate 10 causation of the emotional distress by defendant’s outrageous conduct.” Sabow v. United 11 States, 93 F.3d 1445, 1454 (9th Cir. 1996). Here, Plaintiff’s claim again fails to allege 12 sufficient facts to establish Defendant Zimmerman’s individual liability for a claim of 13 IIED. Defendant Zimmerman was not at the scene of the traffic stop nor did she implement 14 a policy that caused Plaintiff’s IIED. 15 Accordingly, Defendant Zimmerman in both her individual and official capacity is 16 dismissed. 17 iii. The First Through Fifth Causes of Action Against the City 18 “A municipality can be found liable under 42 U.S.C. § 1983 only where the 19 municipality itself causes the constitutional violation at issue; respondeat superior or 20 vicarious liability will not attach under section 1983.” Buckheit v. Dennis, 713 F. Supp. 2d 21 910, 920 (N.D. Cal. 2010) (citing Monell v. New York Dep’t of Social Servs., 436 U.S. 658, 22 694–95 (1978)). Plaintiff must then allege that: (1) he was deprived of his constitutional 23 rights by the City of San Diego; (2) that the City of San Diego had customs or policies 24 “which amounted to deliberate indifference” to his constitutional rights; and (3) that these 25 policies were the “moving force behind the constitutional violations.” Buckheit, 713 F. 26 Supp. 2d at 920 (citation omitted). 27 Plaintiff first asserts that Defendant Zimmerman had a formal or de facto policy to 28 harass and suppress motorcycle clubs it considered to be gangs in the City of San Diego. 1 (Doc. No. 46 ¶ 10.) Plaintiff claims that a policy exists since twenty complaints were filed 2 in the period of four years claiming suspicion-less stops. As explained above, this does not 3 establish a pattern or policy. 4 During the hearing on this matter, Plaintiff claimed that Exhibit Eleven to 5 Defendants’ motion established a written policy. Exhibit Eleven is the mission statement 6 of the Street Gang Unit as published on the City of San Diego’s website. In pertinent part 7 the statement is as follows: 8 The collective mission of the Street Gang Unit is to reduce gang related crimes and active gang membership in the City of San 9 Diego. This is accomplished through vigorous prosecution of 10 gang members involved in criminal activity by use of covert surveillance and special operations, proactive field contacts and 11 arrests of gang members. These strategies reduce gang related 12 criminal activity in our communities and enhances the feeling of safer neighborhoods for the residents of San Diego. 13

14 (Doc. No. 50-1, Ex. 11.) This statement simply does not plausibly establish a written policy 15 to harass and suppress motorcycle clubs. Plaintiff asserts that the pleading level for “a claim 16 of municipal liability under § 1983 is sufficient to withstand a motion to dismiss even if 17 the claim is based on nothing more than a bare allegation that the individual officers’ 18 conduct conformed to an official policy or practice.” (Doc. No. 61 at 15 (quoting Butler v. 19 Los Angeles Cty., 617 F. Supp. 2d 994, 1000 (C.D. Cal. 2008)).) However, Plaintiff has 20 failed to even plausibly plead the first step, which is that a policy to harass and suppress 21 motorcycle clubs even exists. Plaintiff has simply failed to allege sufficient factual claims 22 to establish the plausible existence of a de facto policy, practice, or custom, or to establish 23 a policy based on the pattern of exhibited contacts and complaints. Accordingly, Plaintiff 24 simply has failed to allege a § 1983 claim for municipal liability. 25 Plaintiff next asserts a ratification theory of supervisorial liability. To establish 26 municipal liability under a ratification theory, a plaintiff must allege facts that support the 27 finding that the municipality had knowledge of the alleged constitutional violations. See 28 Garrison v. Burke, 165 F.3d 565, 572, n.6 (7th Cir. 1999). However, Plaintiff’s only 1 allegation that supports this theory is “this policy is approved, supported, ratified and 2 overseen at the highest level of the police force.” (Doc. No. 46 ¶ 38.) This conclusory 3 allegation is simply not enough to support a ratification theory of supervisorial liability. 4 Plaintiff then alleges a theory of liability based upon Defendants’ failure to train its 5 subordinates. To establish this theory, Plaintiff must allege facts supporting that (1) 6 Defendants have an inadequate training program, (2) there was deliberate indifference on 7 the part of Defendants inadequately training its law enforcement officers, and (3) that the 8 inadequate training “actually caused” a deprivation of Plaintiff’s constitutional rights. See 9 Merritt v. Cnty. of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989). Plaintiff asserts that the 10 failure to train allegations are supported by the policy itself. (Doc. No. 61 at 16.) However, 11 as the Court has concluded, Plaintiff has failed to allege any such policy. Accordingly, 12 Plaintiff has failed to establish a theory of liability based upon Defendants’ failure to train 13 its subordinates. 14 Accordingly, the City is dismissed. 15 C. Defendant David Dunhoff’s Motion to Dismiss 16 Defendant Dunhoff is sued in both his individual capacity and official capacity 17 arising from the event of Plaintiff’s traffic stop. 18 i. First Through Third Causes of Action Against Defendant Dunhoff in his 19 Individual Capacity 20 42 U.S.C. § 1983 states: 21 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes 22 to be subjected, any citizen of the United States or other person 23 within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, 24 shall be liable to the party injured in an action at law, suit in 25 equity, or other proper proceeding for redress . . . .

26 Thus, to establish § 1983 liability, a plaintiff must show both (1) the deprivation of a right 27 secured by the Constitution and laws of the United States, and (2) that the deprivation was 28 1 caused by a person acting under color of state law. Chudacoff v. Univ. Med. Ctr. of S. Nev., 2 649 F.3d 1143, 1149 (9th Cir. 2011). A person deprives another of a right “if he does an 3 affirmative act, participates in another’s affirmative acts, or omits to perform an act which 4 he is legally required to do so that it causes the deprivation of which complaint is made.” 5 Johnson, 588 F.2d at 743. “The inquiry into causation must be individualized and focus on 6 the duties and responsibilities of each individual defendant whose acts or omissions are 7 alleged to have caused Plaintiff’s constitutional deprivation.” Leer v. Murphy, 844 F.2d 8 628, 633 (9th Cir. 1988) (citing Rizzo, 423 U.S. at 370–ؘ 71). 9 As to Plaintiff’s first cause of action, Plaintiff has not pled any facts expressing that 10 Defendant Dunhoff personally participated in Plaintiff’s illegal detention. Further, Plaintiff 11 does not dispute this fact in his opposition, but rather focuses on the arrest and search of 12 Plaintiff’s phone in relation to Defendant Dunhoff. Because Defendant Dunhoff did not 13 personally participate in Plaintiff’s detention and Plaintiff alleges no facts that he caused 14 Plaintiff to be detained, the first cause of action is dismissed as to Defendant Dunhoff. 15 Plaintiff’s second cause of action revolves around the false arrest of Plaintiff. The 16 absence of probable cause is a necessary element of a § 1983 false arrest claim. See 17 Yousefian v. City of Glendale, 779 F.3d 1010, 1014 (9th Cir. 2015). “[P]robable cause 18 exists when under the totality of circumstances known to the arresting officers, a prudent 19 person would have concluded that there was a fair probability that [the Plaintiff] had 20 committed a crime.” Grant v. City of Long Beach, 315 F.3d 1081, 1085 (9th Cir. 2003) 21 (citing United States v. Smith, 970 F.2d 789, 792 (9th Cir. 1986)). “When there has been 22 communications among [officers], probable cause can rest upon the investigating [officers] 23 ‘collective knowledge.’” United States v. Del Vizo, 918 F.2d 821, 826 (9th Cir. 1990). 24 Here, Plaintiff was arrested for having metal knuckles and conspiracy to commit a 25 felony for the benefit of a street gang in violation of California Penal Codes §§ 21810 and 26 186.22(b)(1). Under Cal. Penal Code § 16920 “metal knuckles” are defined as: 27 any device or instrument made wholly or partially of metal that is worn for purposes of offense or defense in or on the hand and 28 1 that either protects the wearer’s hand while striking a blow or increases the force of impact from the blow or injury to the 2 individual receiving the blow. The metal contained in the device 3 may help support the hand or fist, provide shield to protect it, or consist of projections or studs which would contact the 4 individual receiving a blow. 5 Defendant Dunhoff argues that Plaintiff has not alleged factual allegations 6 supporting Defendant Dunhoff’s participation in the false arrest, however, Plaintiff has 7 alleged that Defendant Dunhoff was at the scene and that all the officers participated 8 together in deciding what charges to assert. See Del Vizo, 918 F.2d at 826. Accordingly, 9 Plaintiff has alleged sufficient allegations to show Defendant Dunhoff’s participation in 10 the false arrest. 11 Defendant Dunhoff argues that Plaintiff’s claim also fails as it is insufficient as a 12 matter of law. However, as pled, Plaintiff alleges that his rings were mere jewelry. Similar 13 rings to the ones he was wearing are sold in several stores. Furthermore, being a member 14 of a gang is not a crime. People v. Rodriguez, 55 Cal. 4th 1125, 1147 (2012). Accordingly, 15 Plaintiff has alleged factual allegations alleging that there was no probable cause to arrest 16 him. 17 Plaintiff’s third cause of action alleges an illegal search. “[I]f the search and seizure 18 without a warrant are made upon probable cause, that is, upon a belief, reasonably arising 19 out of circumstances known to the seizing officer, that an automobile or other vehicle 20 contains that which by law is subject to seizure and destruction, the search and seizure are 21 valid.” Carroll v. United States, 267 U.S. 132, 149 (1925); see also United States v. Hartz, 22 458 F.3d 1011, 1017 (9th Cir. 2006). Here, Plaintiff has alleged sufficient factual 23 allegations to show that the officers did not have sufficient probable cause and reasonable 24 suspicion to pull Plaintiff over, search his motorcycle for weapons and arrest him. 25 Defendant Dunhoff argues that Plaintiff has failed to allege his personal participation in 26 the search. However, Plaintiff specifically alleges that Defendant Dunhoff illegally 27 28 1 searched his phone on the drive to the police station. (Doc. No. 46 ¶ 24.) Accordingly, 2 Plaintiff has alleged a claim against Defendant Dunhoff for the third cause of action. 3 ii. Fourth Cause of Action Against Defendant Dunhoff in his Individual Capacity 4 Plaintiff’s fourth cause of action against Defendant Dunhoff is for deliberate 5 indifference of Plaintiff’s right to be free from arbitrary detainment, traffic stops, search 6 and arrest without probable cause or reasonable suspicion. “Deliberate indifference is a 7 stringent standard of fault, requiring proof that a municipal actor disregarded a known or 8 obvious consequence of his action.” Board of Cnty. Comm’rs of Bryan Cnty., Okl. v. 9 Brown, 520 U.S. 397, 410 (1997). Here, since Plaintiff has pled sufficient facts that 10 Defendant Dunhoff participated in his illegal arrest and search of his phone, Plaintiff has 11 alleged sufficient factual allegations for the basis of a deliberate indifference claim for his 12 right to be free from arbitrary detainment, traffic stops, search and arrest without probable 13 cause or reasonable suspicion. 14 iii. Fifth Cause of Action Against Defendant Dunhoff in his Individual Capacity 15 Plaintiff’s fifth cause of action against Defendant Dunhoff is for deliberate 16 indifference under a failure to train legal theory. A municipality may be held liable under 17 a theory of omission for failure to adequately train. See Cloutheir v. Cnty. of Contra Cost, 18 591 F.3d 1232, 1249 (9th Cir. 2010), overruled on other grounds by, Castro v. Cnty. of Los 19 Angeles, 833 F.3d 1060 (9th Cir. 2016). Here, Plaintiff has pled this action against 20 Defendants Zimmerman and the City of San Diego. Defendant Dunhoff is an agent of the 21 City and the City would be the municipality for which liability would attach. Plaintiff has 22 not alleged that Defendant Dunhoff is the supervisor who would be in charge of training. 23 The suit against Defendant Dunhoff in his individual capacity is redundant and improperly 24 pled. Further, the Court has already discussed above that Plaintiff has failed to allege 25 sufficient factual allegations to state a claim for deliberate indifference on the basis of 26 failure to train against the City. Accordingly, Plaintiff’s fifth cause of action against 27 Defendant Dunhoff is dismissed. 28 / / / 1 iv. Sixth Cause of Action Against Defendant Dunhoff in his Individual Capacity 2 Plaintiff’s sixth cause of action against Defendant Dunhoff is for violation of 3 California Constitution Art. 1 Section 13. As explained above, the Court has held that 4 Plaintiff has not sufficiently pled a policy that officers conduct suspicion-less stops to 5 harass motorcycle riders. The policy would be the basis for which Plaintiff states there is 6 violation of Article 1 of Section 13 of the California Constitution. Accordingly, this cause 7 of action is dismissed. 8 v. Seventh and Eighth Causes of Action Against Defendant Dunhoff in his 9 Individual Capacity 10 Plaintiff’s seventh and eighth causes of action allege violations of California’s Bane 11 Act. The Bane Act, California Civil Code § 52.1, provides for a claim against anyone who: 12 “interferes by threats, intimidation, or coercion, or attempts to interfere by threats, 13 intimidation, or coercion, with the exercise or enjoyment by any individual or individuals 14 of rights secured by the Constitution or laws of the United States, or of the rights secured 15 by the Constitution or laws of this state …” The Bane Act does not require that a “threat, 16 intimidation or coercion” to be “independent” from the threats, intimidation, or coercion 17 inherent in the underlying constitutional violation. See Cornell v. City & Cnty. of San 18 Francisco, 17 Cal. App. 5th 766, 800 (2017); see also Craig v. Cty. of Santa Clara, No. 19 17-CV-02115-LHK, 2018 WL 3777363, at *19 (N.D. Cal. Aug. 9, 2018). Here, Plaintiff 20 has sufficiently alleged that Defendant Dunhoff stated he would give Plaintiff a “second 21 chance” and that if he unlocked the phone, Defendant Dunhoff would call someone to have 22 the motorcycle picked up rather than impounded. (Doc. No. 46 ¶ 24.) Accordingly, Plaintiff 23 has sufficiently plead the seventh and eighth causes of action against Defendant Dunhoff. 24 vi. Ninth Cause of Action Against Defendant Dunhoff in his Individual Capacity 25 Plaintiff’s ninth cause of action against Defendant Dunhoff is intentional infliction 26 of emotional distress (“IIED”). To establish a claim for IIED, a plaintiff must show: (1) 27 extreme and outrageous conduct by the defendant with the intention of causing, or reckless 28 disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffers severe 1 or extreme emotional distress; and (3) actual and proximate causation of the emotional 2 distress by the defendant’s outrageous conduct. Jaramillo v. City of San Mateo, 76 F. Supp. 3 3d 905, 925–26 (N.D. Cal. 2014)(citing Christensen v. Super Ct., 54 Cal. 3d 868, 903 4 (1991)). For the conduct to be considered outrageous, it “must be so extreme as to exceed 5 all bounds of that usually tolerated in a civilized community.” Cervantez v. J.C. Penny Co., 6 24 Cal. 3d 579, 593 (1979), overturned on other grounds by legislative action, Cal. Penal 7 Code § 243. 8 Here, Plaintiff has failed to allege any conduct on behalf of Defendant Dunhoff that 9 is so extreme to exceed all bounds of that which is usually tolerated in a traffic stop. 10 Plaintiff alleges in a conclusory fashion that he suffered mental and emotional distress as 11 result of the City’s policy and by his arrest, booking, processing and lock-up. This is simply 12 insufficient. See Landucci v. State Farm Ins. Co., 65 F. Supp. 3d 694, 712 (N.D. Cal. 2014) 13 (granting motion to dismiss because Plaintiff’s IIED claim conclusory alleged that 14 Defendants “caused her mental anguish, anxiety, and distress” and she “felt extremely 15 emotionally distressed and pained, fearing for her job and livelihood.”) Accordingly, 16 Plaintiff’s ninth cause of action is dismissed. 17 D. Defendant Justin Montoya’s Motion to Dismiss 18 Defendant Montoya is sued in both his individual capacity and official capacity 19 arising from the event of Plaintiff’s traffic stop. 20 i. First Through Third Causes of Action Against Defendant Montoya in his 21 Individual Capacity 22 As to Plaintiff’s first cause of action, Plaintiff has not pled any facts expressing that 23 Defendant Montoya personally participated in Plaintiff’s illegal detention. Further, 24 Plaintiff does not dispute this fact in his opposition, but rather focuses on the arrest and 25 search of Plaintiff’s saddlebags in relation to Defendant Montoya. Because Defendant 26 Montoya did not personally participate in Plaintiff’s detention and Plaintiff alleges no facts 27 that he caused Plaintiff to be detained, the first cause of action is dismissed as to Defendant 28 Montoya. 1 Defendant Montoya argues that Plaintiff has not alleged factual allegations 2 supporting Defendant Montoya’s participation in the false arrest, however, Plaintiff has 3 alleged that Defendant Montoya was at the scene and that all the officers participated 4 together in deciding on what charges to assert. See Del Vizo, 918 F.2d at 826. Accordingly, 5 Plaintiff has alleged sufficient allegations to show Defendant Montoya’s participation in 6 the false arrest and that there was a lack of probable cause for the arrest. 7 Plaintiff has alleged sufficient factual allegations to show that the officers did not 8 have sufficient probable cause and reasonable suspicion to pull Plaintiff over, search his 9 motorcycle for weapons and arrest him. Defendant Montoya argues that Plaintiff has failed 10 to allege his personal participation in the search. The Court agrees that Defendant Montoya 11 did not actively participate in the search of Plaintiff’s saddlebags or phone. Accordingly, 12 Plaintiff has failed to allege a claim against Defendant Montoya for the third cause of 13 action. 14 ii. Fourth Cause of Action Against Defendant Montoya in his Individual 15 Capacity 16 Plaintiff’s fourth cause of action against Defendant Montoya is for deliberate 17 indifference of Plaintiff’s right to be free from arbitrary detainment, traffic stops, search 18 and arrest without probable cause or reasonable suspicion. Here, since Plaintiff has pled 19 sufficient facts that Defendant Montoya participated in his illegal arrest, Plaintiff has 20 alleged sufficient factual allegations for the basis of a deliberate indifference claim for his 21 right to be free from arbitrary detainment, traffic stops, search and arrest without probable 22 cause or reasonable suspicion. 23 iii. Fifth Cause of Action Against Defendant Montoya in his Individual Capacity 24 Plaintiff’s fifth cause of action against Defendant Montoya is for deliberate 25 indifference under a failure to train legal theory. Here, Plaintiff has pled this action against 26 Defendants Zimmerman and the City of San Diego. Defendant Montoya is an agent of the 27 City and the City would be the municipality for which liability would attach. Plaintiff has 28 not alleged that Defendant Montoya is the supervisor that would be in charge of training. 1 The suit against Defendant Montoya in his individual capacity is redundant and improperly 2 pled. Further, the Court has already discussed above that Plaintiff has failed to allege 3 sufficient factual allegations to state a claim for deliberate indifference on the basis of 4 failure to train against the City. Accordingly, Plaintiff’s fifth cause of action against 5 Defendant Montoya is dismissed. 6 iv. Sixth Cause of Action Against Defendant Montoya in his Individual Capacity 7 Plaintiff’s sixth cause of action against Defendant Montoya is for violation of 8 California Constitution Art. 1 Section 13. As explained above, the Court has held that 9 Plaintiff has not sufficiently pled a policy that officers conduct suspicion-less stops to 10 harass motorcycle riders. The policy would be the basis for which Plaintiff states there is 11 violation of Article 1 of Section 13 of the California Constitution. Accordingly, this cause 12 of action is dismissed. 13 v. Seventh and Eighth Causes of Action Against Defendant Montoya in his 14 Individual Capacity 15 Here, Plaintiff has sufficiently alleged that Defendant Montoya stated he could 16 search Plaintiff’s saddlebags “the easy way or the hard way.” (Doc. No. 46 ¶ 22.) Further, 17 Defendant Montoya demanded that Plaintiff provide a password for his phone and if 18 Plaintiff failed to Defendant Montoya would have his motorcycle impounded. (Id. ¶ 24.) 19 Accordingly, Plaintiff has sufficiently plead the seventh and eighth causes of action against 20 Defendant Montoya. 21 vi. Ninth Cause of Action Against Defendant Montoya in his Individual Capacity 22 Here, Plaintiff has failed to allege any conduct on behalf of Defendant Montoya that 23 is so extreme to exceed all bounds of that which is usually tolerated in a traffic stop. 24 Plaintiff alleges in a conclusory fashion that he suffered mental and emotional distress as 25 result of the City’s policy and by his arrest, booking, processing and lock-up. This is simply 26 insufficient. See Landucci, 65 F. Supp. 3d at 712 (granting motion to dismiss because 27 Plaintiff’s IIED claim conclusory alleged that Defendants “caused her mental anguish, 28 1 anxiety, and distress” and she “felt extremely emotionally distressed and pained, fearing 2 for her job and livelihood.”) Accordingly, Plaintiff’s ninth cause of action is dismissed. 3 E. Defendant J. Johnson’s Motion to Dismiss 4 Defendant Johnson is sued in both his individual capacity and official capacity 5 arising from the event of Plaintiff’s traffic stop. 6 i. First Through Third Causes of Action Against Defendant Johnson in his 7 Individual Capacity 8 Plaintiff’s first cause of action involves the illegal detention of Plaintiff against 9 Defendant Johnson. The Fourth Amendment requires that a detention be supported by facts 10 and inferences that demonstrate a reasonable suspicion that the person detained may be 11 involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 30 (1968). The Fourth Amendment 12 requires only reasonable suspicion in the context of investigative traffic stops. United 13 States v. Lopez–Soto, 205 F.3d 1101, 1104–05 (9th Cir.2000). To satisfy the Fourth 14 Amendment’s reasonableness requirement, an officer must have “specific, articulable facts 15 which, together with objective and reasonable inferences, form the basis for suspecting that 16 the particular person detained is engaged in criminal activity.” Id. (quoting United States 17 v. Michael R., 90 F.3d 340, 346 (9th Cir.1996)). 18 A traffic stop is reasonable at its inception if the detaining officer, at the very least, 19 reasonably suspects the driver has violated the law. An investigative stop is not subject to 20 strict time limitations as long as the officer is pursuing the investigation in a diligent and 21 reasonable manner. United States v. Sharpe, 470 U.S. 675, 686–87 (1985). The period of 22 detention may be permissibly extended if new grounds for suspicion of criminal activity 23 continue to unfold. United States v. Mayo, 394 F.3d 1271, 1275 (9th Cir. 2005). 24 Defendant Johnson attempts to argue that police officers have reasonable suspicion 25 to stop a vehicle for violation of vehicular licensing laws where the officer saw neither 26 license plates nor a temporary permit before he made the stop. See Brocato v. Perez, No. 27 17-CV-0053-RJC, 2017 WL 603304, at *4 (C.D. Cal. Oct. 4, 2017). While this may be 28 true, Plaintiff states that neither Defendant Johnson nor Defendant George noticed that 1 Plaintiff’s motorcycle did not have a license plate or registration tag displayed until after 2 the stop. A traffic stop must be reasonable at its inception. Plaintiff alleges that Defendant 3 George specifically stated that the stop was for loud pipes. (Doc. No. 46 ¶ 19.) Since the 4 Court must accept Plaintiff’s factual allegations as true at this point, the lack of license 5 plate and registration tag may not serve as the reasonable suspicion for the traffic stop. 6 Here, Plaintiff was stopped on the basis that his pipes were loud. Plaintiff asserts 7 that he told Defendants that the pipes were stock pipes, the exhaust pipes were installed at 8 the factory and comply with all California emissions and volume standards and 9 specifications. (Doc. No. 46 ¶ 20.) Further, Defendants did not make any attempt to 10 measure the decibel level of the pipes. (Id. ¶ 21.) In fact, Defendants did not mention the 11 loud pipes again after Defendant George’s comment to Plaintiff. Based on Plaintiff’s 12 pleadings, loud pipes may not serve as reasonable suspicion for the stop at this stage of the 13 litigation. Accordingly, Plaintiff has sufficiently alleged facts that there was no reasonable 14 suspicion for the traffic stop and thus, resulted in an illegal detention. 15 Defendant Johnson argues that Plaintiff has not alleged factual allegations 16 supporting Defendant Johnson’s participation in the false arrest, however, Plaintiff has 17 alleged that Defendant Johnson was at the scene and that all the officers participated 18 together in deciding on what charges to assert. See Del Vizo, 918 F.2d at 826. Accordingly, 19 Plaintiff has alleged sufficient allegations to show Defendant Johnson’s participation in the 20 false arrest and there was a lack of probable cause for the arrest. 21 Plaintiff’s third cause of action alleges an illegal search. Here, Plaintiff has alleged 22 sufficient factual allegations to show that the officers did not have sufficient probable cause 23 and reasonable suspicion to pull Plaintiff over, search his motorcycle for weapons and 24 arrest him. Defendant Johnson argues that Plaintiff has failed to allege his personal 25 participation in the search. However, Plaintiff specifically alleges that Defendant Johnson 26 illegally searched his saddlebags. (Doc. No. 46 ¶ 22.) Accordingly, Plaintiff has alleged a 27 claim against Defendant Johnson for the third cause of action. 28 / / / 1 ii. Fourth Cause of Action Against Defendant Johnson in his Individual Capacity 2 Plaintiff’s fourth cause of action against Defendant Johnson is for deliberate 3 indifference of Plaintiff’s right to be free from arbitrary detainment, traffic stops, search 4 and arrest without probable cause or reasonable suspicion. Here, since Plaintiff has pled 5 sufficient facts that Defendant Johnson participated in his illegal arrest, Plaintiff has alleged 6 sufficient factual allegations for the basis of a deliberate indifference claim for his right to 7 be free from arbitrary detainment, traffic stops, search and arrest without probable cause 8 or reasonable suspicion. 9 iii. Fifth Cause of Action Against Defendant Johnson in his Individual Capacity 10 Plaintiff’s fifth cause of action against Defendant Johnson is for deliberate 11 indifference under a failure to train legal theory. Here, Plaintiff has pled this action against 12 Defendants Zimmerman and the City of San Diego. Defendant Johnson is an agent of the 13 City and the City would be the municipality for which liability would attach. Plaintiff has 14 not alleged that Defendant Johnson is the supervisor that would be in charge of training. 15 The suit against Defendant Johnson in his individual capacity is redundant and improperly 16 pled. Further, the Court has already discussed above that Plaintiff has failed to allege 17 sufficient factual allegations to state a claim for deliberate indifference on the basis of 18 failure to train against the City. Accordingly, Plaintiff’s fifth cause of action against 19 Defendant Johnson is dismissed. 20 iv. Sixth Cause of Action Against Defendant Johnson in his Individual Capacity 21 Plaintiff’s sixth cause of action against Defendant Johnson is for violation of 22 California Constitution Art. 1 Section 13. As explained above, the Court has held that 23 Plaintiff has not sufficiently pled a policy that officers conduct suspicion-less stops to 24 harass motorcycle riders. The policy would be the basis for which Plaintiff states there is 25 violation of Article 1 of Section 13 of the California Constitution. Accordingly, this cause 26 of action is dismissed. 27 / / / 28 / / / 1 v. Ninth Cause of Action Against Defendant Johnson in his Individual Capacity 2 Here, Plaintiff has failed to allege any conduct on behalf of Defendant Johnson that 3 is so extreme to exceed all bounds of that is usually tolerated in a traffic stop. Plaintiff 4 alleges in a conclusory fashion that he suffered mental and emotional distress as result of 5 the City’s policy and by his arrest, booking, processing and lock-up. This is simply 6 insufficient. See Landucci, 65 F. Supp. 3d at 712 (granting motion to dismiss because 7 Plaintiff’s IIED claim conclusory alleged that Defendants “caused her mental anguish, 8 anxiety, and distress” and she “felt extremely emotionally distressed and pained, fearing 9 for her job and livelihood.”) Accordingly, Plaintiff’s ninth cause of action is dismissed. 10 F. Defendant Timothy Coyle’s Motion to Dismiss 11 Defendant Coyle is sued in both his individual capacity and official capacity arising 12 from the event of Plaintiff’s traffic stop. 13 i. First Through Third Causes of Action Against Defendant Coyle in his 14 Individual Capacity 15 As to Plaintiff’s first cause of action, Plaintiff has not pled any facts expressing that 16 Defendant Coyle personally participated in Plaintiff’s illegal detention. Further, Plaintiff 17 does not dispute this fact in his opposition, but rather focuses on the arrest and search of 18 Plaintiff’s saddlebags in relation to Defendant Coyle. Because Defendant Coyle did not 19 personally participate in Plaintiff’s detention and Plaintiff alleges no facts that he caused 20 Plaintiff to be detained, the first cause of action is dismissed as to Defendant Coyle. 21 Defendant Coyle argues that Plaintiff has not alleged factual allegations supporting 22 Coyle’s participation in the false arrest, however, Plaintiff has alleged that Defendant 23 Coyle was at the scene and that all the officers participated together in deciding on what 24 charges to assert. See Del Vizo, 918 F.2d at 826. Accordingly, Plaintiff has alleged 25 sufficient allegations to show Defendant Coyle’s participation in the false arrest and that 26 there was a lack of probable cause for the arrest. 27 Plaintiff’s third cause of action alleges an illegal search. Here, Plaintiff has alleged 28 sufficient factual allegations to show that the officers did not have sufficient probable cause 1 and reasonable suspicion to pull Plaintiff over, search his motorcycle for weapons and 2 arrest him. Defendant Coyle argues that Plaintiff has failed to allege his personal 3 participation in the search. However, Plaintiff specifically alleges that Defendant Coyle 4 illegally searched his saddlebags. (Doc. No. 46 ¶ 22.) Accordingly, Plaintiff has alleged a 5 claim against Defendant Coyle for the third cause of action. 6 ii. Fourth Cause of Action Against Defendant Coyle in his Individual Capacity 7 Plaintiff’s fourth cause of action against Defendant Coyle is for deliberate 8 indifference of Plaintiff’s right to be free from arbitrary detainment, traffic stops, search 9 and arrest without probable cause or reasonable suspicion. Here, since Plaintiff has pled 10 sufficient facts that Defendant Coyle participated in his illegal arrest, Plaintiff has alleged 11 sufficient factual allegations for the basis of a deliberate indifference claim for his right to 12 be free from arbitrary detainment, traffic stops, search and arrest without probable cause 13 or reasonable suspicion. 14 iii. Fifth Cause of Action Against Defendant Coyle in his Individual Capacity 15 Plaintiff’s fifth cause of action against Defendant Coyle is for deliberate indifference 16 under a failure to train legal theory. Here, Plaintiff has pled this action against Defendants 17 Zimmerman and the City of San Diego. Defendant Coyle is an agent of the City and the 18 City would be the municipality for which liability who would attach. Plaintiff has not 19 alleged that Defendant Coyle is the supervisor would be in charge of training. The suit 20 against Defendant Coyle in his individual capacity is redundant and improperly pled. 21 Further, the Court has already discussed above that Plaintiff has failed to allege sufficient 22 factual allegations to state a claim for deliberate indifference on the basis of failure to train 23 against the City. Accordingly, Plaintiff’s fifth cause of action against Defendant Coyle is 24 dismissed. 25 iv. Sixth Cause of Action Against Defendant Coyle in his Individual Capacity 26 Plaintiff’s sixth cause of action against Defendant Coyle is for violation of California 27 Constitution Art. 1 Section 13. As explained above, the Court has held that Plaintiff has 28 not sufficiently pled a policy that officers conduct suspicion-less stops to harass motorcycle 1 riders. The policy would be the basis for which Plaintiff states there is violation of Article 2 1 of Section 13 of the California Constitution. Accordingly, this cause of action is 3 dismissed. 4 v. Ninth Cause of Action Against Defendant Coyle in his Individual Capacity 5 Here, Plaintiff has failed to allege any conduct on behalf of Defendant Coyle that is 6 so extreme to exceed all bounds of that which is usually tolerated in a traffic stop. Plaintiff 7 alleges in a conclusory fashion that he suffered mental and emotional distress as result of 8 the City’s policy and by his arrest, booking, processing and lock-up. This is simply 9 insufficient. See Landucci, 65 F. Supp. 3d at 712 (granting motion to dismiss because 10 Plaintiff’s IIED claim conclusory alleged that Defendants “caused her mental anguish, 11 anxiety, and distress” and she “felt extremely emotionally distressed and pained, fearing 12 for her job and livelihood.”) Accordingly, Plaintiff’s ninth cause of action is dismissed. 13 G. Defendant Adam George’s Motion to Dismiss 14 Defendant George is sued in both his individual capacity and official capacity arising 15 from the event of Plaintiff’s traffic stop. 16 i. First Through Third Causes of Action Against Defendant George in his 17 Individual Capacity 18 Plaintiff’s first cause of action involves the illegal detention of Plaintiff against 19 Defendant George. Similar to Defendant Johnson, Defendant George attempts to argue that 20 police officers have reasonable suspicion to stop a vehicle for violation of vehicular 21 licensing laws where the officer saw neither license plates nor a temporary permit before 22 he made the stop. See Brocato, 2017 WL 603304, at *4. While this may be true, Plaintiff 23 states that neither Defendant Johnson nor Defendant George noticed that Plaintiff’s 24 motorcycle did not have a license plate or a registration tag displayed until after the stop. 25 A traffic stop must be reasonable at its inception. Plaintiff alleges that Defendant George 26 specifically stated that the stop was for loud pipes. (Doc. No. 46 ¶ 19.) Since the Court 27 must accept Plaintiff’s factual allegations as true at this point, the lack of license plate and 28 registration tag may not serve as the reasonable suspicion for the traffic stop. 1 Here, Plaintiff was stopped on the basis that his pipes were loud. Plaintiff asserts 2 that he told Defendants that the pipes were stock pipes, the exhaust pipes were installed at 3 the factory and comply with all California emissions and volume standards and 4 specifications. (Doc. No. 46 ¶ 20.) Further, Defendants did not make any attempt to 5 measure the decibel level of the pipes. (Id. ¶ 21.) In fact, Defendants did not mention the 6 loud pipes again after Defendant George’s comment to Plaintiff. Based on Plaintiff’s 7 pleadings, loud pipes may not serve as reasonable suspicion for the stop at this stage of the 8 litigation. Accordingly, Plaintiff has sufficiently alleged facts that there was no reasonable 9 suspicion for the traffic stop and thus, resulted in an illegal detention. 10 Defendant George argues that Plaintiff has not alleged factual allegations supporting 11 Defendant George’s participation in the false arrest, however, Plaintiff has alleged that 12 Defendant George was at the scene and that all the officers participated together in deciding 13 on what charges to assert. See Del Vizo, 918 F.2d at 826. Accordingly, Plaintiff has alleged 14 sufficient allegations to show Defendant George’s participation in the false arrest and that 15 there was a lack of probable cause for the arrest. 16 Plaintiff has alleged sufficient factual allegations to show that the officers did not 17 have sufficient probable cause and reasonable suspicion to pull Plaintiff over, search his 18 motorcycle for weapons and arrest him. Defendant George argues that Plaintiff has failed 19 to allege his personal participation in the search. The Court agrees that Defendant George 20 did not actively participate in any search of Plaintiff’s belongings. Accordingly, Plaintiff 21 has failed to allege a claim against Defendant George for the third cause of action. 22 ii. Fourth Cause of Action Against Defendant George in his Individual Capacity 23 Plaintiff’s fourth cause of action against Defendant George is for deliberate 24 indifference of Plaintiff’s right to be free from arbitrary detainment, traffic stops, search 25 and arrest without probable cause or reasonable suspicion. Here, since Plaintiff has pled 26 sufficient facts that Defendant George participated in his illegal arrest, Plaintiff has alleged 27 sufficient factual allegations for the basis of a deliberate indifference claim for his right to 28 1 be free from arbitrary detainment, traffic stops, search and arrest without probable cause 2 or reasonable suspicion. 3 iii. Fifth Cause of Action Against Defendant George in his Individual Capacity 4 Plaintiff’s fifth cause of action against Defendant George is for deliberate 5 indifference under a failure to train legal theory. Here, Plaintiff has pled this action against 6 Defendants Zimmerman and the City of San Diego. Defendant George is an agent of the 7 City and the City would be the municipality for which liability would attach. Plaintiff has 8 not alleged that Defendant George is the supervisor that would be in charge of training. 9 The suit against Defendant George in his individual capacity is redundant and improperly 10 pled. Further, the Court has already discussed above that Plaintiff has failed to allege 11 sufficient factual allegations to state a claim for deliberate indifference on the basis of 12 failure to train against the City. Accordingly, Plaintiff’s fifth cause of action against 13 Defendant George is dismissed. 14 iv. Sixth Cause of Action Against Defendant George in his Individual Capacity 15 Plaintiff’s sixth cause of action against Defendant George is for violation of 16 California Constitution Art. 1 Section 13. As explained above, the Court has held that 17 Plaintiff has not sufficiently pled a policy that officers conduct suspicion-less stops to 18 harass motorcycle riders. The policy would be the basis for which Plaintiff states there is 19 violation of Article 1 of Section 13 of the California Constitution. Accordingly, this cause 20 of action is dismissed. 21 v. Ninth Cause of Action Against Defendant George in his Individual Capacity 22 Here, Plaintiff has failed to allege any conduct on behalf of Defendant George that 23 is so extreme to exceed all bounds of that which is usually tolerated in a traffic stop. 24 Plaintiff alleges in a conclusory fashion that he suffered mental and emotional distress as 25 result of the City’s policy and by his arrest, booking, processing and lock-up. This is simply 26 insufficient. See Landucci, 65 F. Supp. 3d at 712 (granting motion to dismiss because 27 Plaintiff’s IIED claim conclusory alleged that Defendants “caused her mental anguish, 28 1 anxiety, and distress” and she “felt extremely emotionally distressed and pained, fearing 2 for her job and livelihood.”) Accordingly, Plaintiff’s ninth cause of action is dismissed. 3 H. Defendant David Wolff’s Motion to Dismiss 4 Based on Plaintiff’s TAC and Plaintiff’s counsel’s comments at the hearing on this 5 motion, Defendant Wolff was not present during the traffic stop or arrest. Plaintiff does 6 state that Defendant Wolff arrived at or near the point of the saddlebag search in his TAC. 7 (Doc. No. 46 ¶ 22.) However, Defendant Wolff is not mentioned again in regard to the 8 traffic stop incident. Later in the TAC, Plaintiff states Defendant Wolff was not present at 9 the arrest of Plaintiff and his affidavit for the warrant was based on events described to him 10 by Defendant Coyle. (Id. ¶ 41.) Plaintiff does not address this discrepancy in his opposition. 11 Further, Plaintiff’s counsel at the February 14, 2019 hearing on this instant motion stated 12 that Defendant Wolff’s role was obtaining the search warrant. Accordingly, the Court will 13 dismiss the first, second, fourth and ninth causes of action as to Defendant Wolff without 14 prejudice as it does not appear he was present during the traffic stop and arrest. 15 Plaintiff alleges that Defendant Wolff obtained a search warrant for Plaintiff’s phone 16 based on information received from Defendant Coyle. While, the TAC alleges that a 17 warrant was obtained based on a false affidavit, Plaintiff fails to allege that the warrant was 18 ever actually executed. The warrant was obtained after the stop and arrest. The only search 19 Plaintiff actually alleges is the search of his saddlebags during the stop and arrest and he 20 unlocks his phone while in the police car on the way to the station. Accordingly, if the 21 warrant was not executed, Defendant Wolff did not participate in an illegal search. Thus, 22 the Court will dismiss the third cause action as to Defendant Wolff. 23 Plaintiff’s fifth cause of action against Defendant Wolff is for deliberate indifference 24 under a failure to train legal theory. Here, Plaintiff has pled this action against Defendants 25 Zimmerman and the City. Defendant George is an agent of the City and the City would be 26 the municipality for which liability would attach. Plaintiff has not alleged that Defendant 27 Wolff is the supervisor that would be in charge of training. The suit against Defendant 28 Wolff in his individual capacity is redundant and improperly pled. Further, the Court has 1 already discussed above that Plaintiff has failed to allege sufficient factual allegations to 2 state a claim for deliberate indifference on the basis of failure to train. Accordingly, 3 Plaintiff’s fifth cause of action against Defendant Wolff is dismissed. 4 I. Officer Defendants in Their Official Capacity 5 Official-capacity suits “generally represent only another way of pleading an action 6 against an entity of which an officer is an agent.” Monell, 436 U.S. at 690 n.55. In Kentucky 7 v. Graham, the Supreme Court noted that plaintiffs in § 1983 actions “no longer . . . need 8 to bring official-capacity actions against local government officials, …[because] under 9 Monell, … local government units can be sued directly for damages and injunctive or 10 declaratory relief.” 473 U.S. 159, 167 n.14 (1985). “District courts in this circuit have 11 followed the above reasoning when deciding whether to dismiss claims against official 12 capacity officers when the local government entity is also a named defendant.” Mendez v. 13 Baca, 11-CV-4771-JHN-PJWx, 2011 WL 13147363, at *3 (C.D. Cal. Oct. 12, 2011). 14 Here, Plaintiff’s opposition does not address this contention that the claims against 15 the Defendant Officers and against the City are redundant. Accordingly, the Court finds 16 the causes of action in the Defendant Officers’ official-capacity redundant and dismisses 17 all claims against the Defendant Officers in their official-capacity. 18 IV. CONCLUSION 19 As explained in greater detail above, the Court GRANTS the City of San Diego and 20 Shelley Zimmerman’s motion to dismiss WITHOUT LEAVE TO AMEND, GRANTS 21 in part and DENIES in part David Dunhoff’s motion to dismiss WITHOUT LEAVE TO 22 AMEND, GRANTS in part and DENIES in part Justin Montoya’s motion to dismiss 23 WITHOUT LEAVE TO AMEND, GRANTS in part and DENIES in part J. Johnson’s 24 motion to dismiss WITHOUT LEAVE TO AMEND, GRANTS in part and DENIES in 25 part Timothy Coyle’s motion to dismiss WITHOUT LEAVE TO AMEND, GRANTS in 26 part and DENIES in part Adam George’s motion to dismiss WITHOUT LEAVE TO 27 AMEND, and GRANTS David Wolff’s motion to dismiss WITHOUT LEAVE TO 28 AMEND. 1 Further, the Court summarizes what causes of action remain against which 2 Defendants. The City of San Diego, Shelley Zimmerman, and David Wolff are dismissed 3 ||from this action. Against David Dunhoff, the second, third, fourth, seventh and eighth 4 ||causes of action remain. Against Justin Montoya, the second, fourth, seventh and eighth 5 causes of action remain. Against J. Johnson, the first, second, third, and fourth causes of 6 ||action remain. Against Timothy Coyle, the second, third, and fourth causes of action 7 ||remain. Against Adam George, the first, second, and fourth causes of action remain. 8 9 || IT IS SO ORDERED. 10 Dated: September 23, 2019 OQ Sez : Hon, Anthony J.Battaglia 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30