Sanchez v. City of Roseville ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 FELIX SANCHEZ, JR., No. 2:19-cv-01086-WBS-DB 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT 15 CITY OF ROSEVILE; ROSEVILLE POLICE DEPARTMENT; DANIEL 16 MEDINA; CURTIS WATKINS; ADARIS WILSON; BRANDON FERNANDEZ; DOES 17 1 through 3, inclusive, 18 Defendants. 19 20 ----oo0oo---- 21 Plaintiff Felix Sanchez, Jr. (“plaintiff”) brought this 22 action against the City of Roseville (“Roseville”); the Roseville 23 Police Department; Officers Daniel Medina, Curtis Watkins, and 24 Adaris Wilson; Sergeant Brandon Fernandez; and DOES 1-3 seeking 25 damages against defendants under 42 U.S.C. § 1983 for violation 26 of the Fourth Amendment and malicious prosecution, and for 27 violation of the Tom Bane Civil Rights Act, California Civil Code 28 § 52.1(c). Before the court is the Motion for Summary Judgment 1 brought by the City of Roseville, Roseville Police Department, 2 Officers Daniel Medina, Curtis Watkins, Adaris Wilson, and 3 Sergeant Brandon Fernandez. (Defs.’ Mot. for Summ. J.) (Docket 4 No. 11.) 5 I. Factual and Procedural Background1 6 1 Plaintiff makes several evidentiary objections to defendants’ Separate Statement of Undisputed Facts on the grounds 7 that the statements are undisputed but irrelevant or vague. (See Pl.’s Resp. to Statement of Undisputed Facts) (Docket No. 14.) 8 “[O]bjections to evidence on the ground that is irrelevant, speculative, and/or argumentative, or that it constitutes an 9 improper legal conclusion are all duplicative of the summary judgment standard itself, yet attorneys insist on using 10 evidentiary objections as a vehicle for raising this point. A court can award summary judgment only when there is no genuine 11 dispute of material fact. It cannot rely on irrelevant facts, and thus relevance objections are redundant.” Burch v. Regents 12 of Univ. of Cal., 433 F.Supp.2d 1110, 1119 (E.D. Cal. 2006.) 13 Additionally, the Ninth Circuit has long held that “to survive summary judgment, a party does not necessarily have to 14 produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rule of 15 Civil Procedure 56.” Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir. 2003.) “As a practical matter, the court finds this 16 entire exercise of considering evidentiary objections on a motion for summary judgment to be futile and counterproductive.” See 17 Burch, 433 F. Supp. 2d at 1122. Accordingly, the court denies these evidentiary objections at this time. 18 Defendants make three evidentiary objections to the exhibits 19 submitted by plaintiff in opposition to defendants’ motion for summary judgment. They first argue that plaintiff’s citation to 20 the printout from the Roseville Police Department website lacks foundation and is not properly authenticated. (See Pl.’s Opp’n. 21 to Mot. for Summ. J., Ex. 1. (Docket No. 12).) The printout is undated, and plaintiff cites no evidence that the Roseville 22 Police Department had the capabilities described on the page at the time of the subject incident in May 2018. The Ninth Circuit 23 has “repeatedly held that ‘documents which have not had a proper foundation laid to authenticate them cannot support [or defend 24 against] a motion for summary judgment.’” Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1182 (9th Cir. 1988) (quoting Canada 25 v. Blain’s Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987)). Accordingly, the court will sustain this evidentiary objection. 26 Defendants next object to the deposition testimony of 27 Lieutenant Mancini that Officer Medina was released from probation because he struggled to assess situations as they 28 evolved. (See Pl.’s Opp’n. to Mot. for Summ. J., Ex. 14 Dep. Tr. 1 On May 15, 2018, Roseville Police Department (“RPD”) 2 Officers Medina, Watkins, and Wilson were on patrol in the City 3 of Roseville. (See Undisputed Material Fact (“UMF”) 1, Docket 4 No. 11-2).) At approximately 11:10 P.M., an anonymous caller, 5 later confirmed to be plaintiff’s niece Olivia Sanchez, called 6 the City of Roseville’s non-emergency police dispatch line and 7 stated that she wished to report a truck on her street. (See UMF 8 8.) She said that “a couple of guys just got home. Honestly, by 9 the way that they kind of got out of the truck, I would assume 10 that they are drunk, and the truck is parked the wrong way.” 11 (Id.) She later testified in a deposition that prior to her 12 call, she happened to be driving through an intersection down the 13 street from plaintiff’s residence when she saw the truck parked 14 in front of plaintiff’s residence and the occupants get out of 15 the vehicle. (See UMF 10.) 16 At approximately 11:12 P.M., RPD dispatch radioed to 17 the officers that there was a reported potential violation of 18 California Vehicle Code § 23152, driving under the influence. 19 (See UMF 12–14.) Officers Watkins and Medina arrived at 20 approximately 11:17 P.M. and located an unoccupied white Chevy 21 Silverado pick-up truck parked on the left side of the road with 22 of Lt. Phil Mancini at 24:10-25:20.) Defendants contend this is 23 inadmissible character evidence because the subject incident was not one of the reasons why Officer Medina was released. The 24 defendants also object to the Placer County Jail Records which plaintiff attempts to use to demonstrate his claim that the 25 officers did not have reasonable suspicion that plaintiff was intoxicated. (See Pl.’s Opp’n. to Mot. for Summ. J., Ex. 2 at 26 16–25.) Because the court does not rely on these documents in resolving the instant motion, the court need not decide these 27 evidentiary objections at this time. 28 1 its driver’s side tires closest to the curb in front of the 2 residence at 309 Lorraine Avenue (later determined to be 3 plaintiff’s residence). (See UMF 18.) Officer Wilson arrived at 4 the residence at approximately 11:20 P.M. (See UMF 20.) The 5 vehicle was unoccupied and there was nobody in the nearby area. 6 (See UMF 21.) Officers Watkins and Medina discussed the 7 situation and then Officer Medina started writing a parking 8 citation for a violation of Roseville Municipal Code section 9 11.20.050 which provides: “No person shall stop, park or leave 10 standing a vehicle on the left-hand side of a two-way street.” 11 (See UMF 22.) 12 When Officer Medina was preparing a citation, plaintiff 13 walked down the driveway of the residence at 309 Lorraine Avenue 14 toward them. (See UMF 24.) Plaintiff suspected that the 15 officers were writing a ticket for the truck. (See UMF 26.) 16 Plaintiff and the officers then had a conversation. (See UMF 17 27.) Plaintiff informed the officers that the truck belonged to 18 his brother, Steve Sanchez, but that he had driven the truck and 19 parked it where it was located. (See UMF 28.) Officer Medina 20 asked plaintiff if he had been drinking. (See UMF 29.) 21 Plaintiff stated that he drank three beers earlier that evening. 22 (See UMF 30.) Officer Medina asked plaintiff if he had anything 23 to drink since returning home and plaintiff refused to answer the 24 question. (See UMF 31.) Plaintiff stated that he could get 25 someone to move the truck or they could ticket it. (See UMF 33.) 26 Plaintiff stated that he was going back inside, turned around, 27 and began walking toward his residence. (See UMF 34.) 28 As plaintiff turned and started walking toward his 1 residence, the officers said something to the effect of “Come 2 here” and “You can’t just leave.” (See UMF 35.) Plaintiff took 3 approximately two more steps towards his home. (See UMF 36.) 4 Officer Medina grasped plaintiff on the left while Officer Wilson 5 grasped plaintiff on the right to stop him from continuing to 6 walk away from them. (See UMF 37.) Plaintiff is approximately 7 5’11” tall and weighs 250 pounds. (See UMF 25.) Plaintiff 8 flexed his arms and tensed up.2 (See UMF 38.) Officer Wilson 9 used a “leg sweep” maneuver, putting his leg behind plaintiff’s 10 legs and pulling plaintiff backward over his leg, to take 11 plaintiff to the ground. (See UMF 39.) The officers took 12 plaintiff to the ground on his back and then rolled plaintiff 13 onto his stomach. (See UMF 40.) Plaintiff’s arms were 14 underneath his body when he was rolled onto his stomach. (See 15 UMF 41.) The officers yelled at plaintiff to stop resisting. 16 (See UMF 42.)3 After the officers handcuffed plaintiff, they 17 picked him up and asked him if he was injured, to which he said 18 no. (See UMF 44.) The officers then walked plaintiff to Officer 19 Wilson’s patrol vehicle and put him in the back seat. (See UMF 20 45.) 21 Officer Watkins requested for a patrol supervisor, 22 2 Plaintiff contends that he did not actively resist but 23 rather was being pulled backwards down his driveway and his reactions were an involuntary movement to regain his balance to 24 keep from falling. (See Pl.’s Resp. to Statement of Undisputed Facts, Fact 38.) 25 3 Plaintiff contends that he was not resisting, but was 26 unable to move his arms from under his body after the officers rolled him over onto his arms and that he told the officers, “I’m 27 not resisting, pull my f***ing arms!” (See Pl.’s Resp. to Statement of Undisputed Facts, Fact 37.) 28 1 Sergeant Fernandez, to respond to the scene. (See UMF 46.) 2 Sergeant Fernandez spoke to plaintiff while plaintiff was in the 3 back of Officer Wilson’s patrol vehicle. (See UMF 48.) Sergeant 4 Fernandez read plaintiff his Miranda Rights and plaintiff 5 indicated that he understood them. (See UMF 49–50.) Sergeant 6 Fernandez informed plaintiff that the vehicle was parked the 7 wrong way on the street to which plaintiff responded: “I know.” 8 (UMF 51.) Plaintiff told Sergeant Fernandez that he did not want 9 to re-park the vehicle because he was concerned it could subject 10 him to being arrested for driving under the influence (“DUI”). 11 (See UMF 52.) Plaintiff explained to Sergeant Fernandez that he 12 had been at a concert for the Downtown Tuesday Night in 13 Roseville, went and got some fast food, had a few beers, and then 14 his wife looked out at the house and noticed the police were 15 there. (See UMF 53.) Plaintiff stated that he “didn’t want to 16 get in the truck and drive because, you know, like I said, I’m 17 not, like, totally wasted but- you know, legally drunk, but I 18 don’t wanna take that chance because, you know, I have a 19 commercial license.” (Id.) 20 Plaintiff told Sergeant Fernandez that he had told the 21 other officers that he had driven the vehicle earlier and parked 22 it where it was parked. (See UMF 54.) Plaintiff told Sergeant 23 Fernandez that he said to the officers “I’m going back inside” to 24 which they responded “Well, come here. You’re not-- you can’t 25 just leave . . .” to which plaintiff replied “Well, I’m going 26 back inside.” (See UMF 55.) Sergeant Fernandez told Plaintiff: 27 “So you’re -- you’re intoxicated at this point” and plaintiff 28 responded: “I said I’ve had -- I’m not denying that I didn’t have 1 a few beers you know? But like I said, with a commercial 2 license, I’m not gonna get in a truck and give them the 3 opportunity to say, ‘Oh, now you’re driving?’” (See UMF 56.) 4 Sergeant Fernandez told plaintiff that he thought that the main 5 reason plaintiff was in the back of the police car was because 6 the other officers wanted plaintiff to stop. (See UMF 57.) 7 Sergeant Fernandez told plaintiff that the other officers “gave 8 you a lawful order not to go back inside and you tried to go back 9 inside and that’s -- could you -- could we agree on that?” (Id.) 10 Plaintiff responded: “Yeah, they said, ‘Come here.’ I said -- I’m 11 in the driveway, so you know, ‘Okay.’ I’m -- I’m home . . . . I’m 12 not bothering anybody, just trying to find out. And, you know, I 13 don’t know why they didn’t just say why they were here.” (See 14 UMF 58.) Sergeant Fernandez said: “Okay. So, you tried to go 15 back inside, they -- had to physically stop you from going bac 16 inside. Is that what happened?” (See UMF 59.) Plaintiff 17 replied: “I was in my driveway.” (See UMF 60.) Later, Sergeant 18 Fernandez asked plaintiff whether he was injured or needed 19 medical attention and plaintiff stated that he would not go to 20 the doctor for this. (See UMF 61–62.) Plaintiff also told 21 Sergeant Fernandez that when the officers grasped him, he “tensed 22 up.” (See UMF 63.) 23 Plaintiff was arrested and transported to jail by 24 Officer Wilson for violating California Penal Code Section 25 148(a)(1). (See UMF 69.) California Penal Code Section 148(a)(1) 26 states that: “Every person who willfully resists, delays, or 27 obstructs any public officer, peace officer. . . in the discharge 28 or attempt to discharge any duty of his or her office or 1 employment, when no other punishment is prescribed, shall be 2 punished by a fine not exceeding one thousand dollars ($1,000), 3 or by imprisonment in a county jail not to exceed one year, or by 4 both that fine and imprisonment.” See Cal. Pen. Code § 5 148(a)(1). Plaintiff posted bail the next morning and was 6 released from jail. (See UMF 70.) The Placer County District 7 Attorney’s Office filed a criminal complaint against plaintiff 8 charging him with violating California Penal Code § 148(a)(1). 9 (See UMF 70.) Plaintiff filed a Motion to Suppress. (See UMF 10 72.) The Court granted the Motion to Suppress and the District 11 Attorney’s office dismissed plaintiff’s criminal case. (See UMF 12 74–75.) 13 II. Discussion 14 Summary judgment is proper “if the movant shows that 15 there is no genuine dispute as to any material fact and the 16 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 17 P. 56(a). A material fact is one that could affect the outcome 18 of the suit, and a genuine issue is one that could permit a 19 reasonable jury to enter a verdict in the non-moving party’s 20 favor. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). 21 The party moving for summary judgment bears the initial 22 burden of establishing the absence of a genuine issue of material 23 fact and can satisfy this burden by presenting evidence that 24 negates an essential element of the non-moving party’s case. 25 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 26 Alternatively, the movant can demonstrate that the non-moving 27 party cannot provide evidence to support an essential element 28 upon which it will bear the burden of proof at trial. Id. If 1 the moving party has properly supported its motion, the burden 2 shifts to the non-moving to set forth specific facts to show that 3 there is a genuine issue for trial. See id. at 324. “Where the 4 record taken as a whole could not lead a rational trier of fact 5 to find for the non-moving party, there is no genuine issue for 6 trial.” Matsuhita Elec. Indus. Co. v. Zenith Radio Corp., 475 7 U.S. 574, 587 (1986). Any inferences drawn from the underlying 8 facts must, however, be viewed in the light most favorable to the 9 party opposing the motion. See id. 10 A. Claim Under 42 U.S.C. § 1983 for Violation of Fourth 11 Amendment 12 Plaintiff’s first claim for relief is alleged against 13 Defendant Officers Medina, Watkins, Wilson and Sergeant Fernandez 14 for a violation of his Fourth Amendment rights pursuant to 42 15 U.S.C. § 1983. (See Compl. at ¶¶ 9–28.) (Docket No. 1.) 16 Plaintiff alleges that he was (1) illegally detained, (2) 17 subjected to excessive and unreasonable force, and (3) illegally 18 arrested and charged with violating California Penal Code § 148. 19 (Id.) The court will examine each allegation in turn. 20 1. Unlawful Detention 21 Defendants argue that it was objectively reasonable to 22 detain plaintiff under the totality of the circumstances because 23 they had a reasonable suspicion that plaintiff was driving under 24 the influence of alcohol. (See Defs.’ Mot. for Summ. J. at 9.) 25 Plaintiff disagrees and contends that the officers lacked 26 reasonable suspicion, supported by particularized and objective 27 facts, that the truck was being operated by an impaired driver. 28 1 (See Pl.’s Opp’n. to Mot. for Summ. J. at 15.) 2 The Fourth Amendment prohibits unreasonable searches 3 and seizures, and its protections extend to brief investigatory 4 stops of persons or vehicles that fall short of traditional 5 arrest. See United States v. Arvizu, 534 U.S. 266, 273 (2002). 6 Officers may briefly stop and detain someone if there is a 7 reasonable suspicion to believe that criminal activity may be 8 afoot. Id. (citing Terry v. Ohio, 39 U.S. 1, 9 (1968).) To 9 determine whether officers had reasonable suspicion, courts must 10 look at the totality of the circumstances of each case to see 11 whether the detaining officer had a particularized and objective 12 basis for suspecting legal wrongdoing. See Arvizu, 534 U.S. at 13 273. 14 Although an officer’s reliance on a mere hunch is 15 insufficient to justify a stop, the likelihood of criminal 16 activity need not rise to the level required for probable cause, 17 and it falls considerably short of satisfying a preponderance of 18 the evidence standard. Id. at 274 (internal citations omitted). 19 The facts which establish reasonable suspicion need not be 20 inconsistent with innocence. See United States v. Tiong, 224 21 F.3d 1136 (9th Cir. 2000). 22 Defendants contend that they had reasonable suspicion 23 to detain plaintiff for driving under the influence in violation 24 of California Vehicle Code § 23152, which provides that: “(a) It 25 is unlawful for a person who is under the influence of any 26 alcoholic beverage to drive a vehicle; and (b) It is unlawful for 27 a person who has 0.08 percent or more, by weight, of alcohol in 28 his or her blood to drive a vehicle.” See Cal. Vehicle Code § 1 23152 (a–b). However, when the officers arrived at plaintiff’s 2 residence, the vehicle was unoccupied and no one was in the area. 3 (See UMF 21.) The only information they had was that a white 4 Chevy Silverado was parked the wrong way and that two males got 5 out of the vehicle and looked as though they had been drinking. 6 (See UMF 14.) The defendants were not told that the reporting 7 party observed the truck being operated or when the truck was 8 operated. (See Pl.’s Opp’n. to Mot. for Summ. J. at 15.) 9 Officer Watkins admitted that there could be any number of 10 explanations as to why the truck was parked the wrong direction 11 and the position of the truck did not necessarily indicate that 12 the driver was drunk or was intending to leave soon. (See Pl.’s 13 Opp’n. to Mot. for Summ. J. at Ex. 10, Dep. Tr. of Curtis Watkins 14 at 24:17–23.) 15 Plaintiff did inform the defendants that he had 16 consumed three beers earlier in the evening. (See UMF 30.) 17 However, defendants had no way of knowing how long it had been 18 since plaintiff had consumed the beers or whether plaintiff had 19 consumed alcohol since returning to his house. Even assuming 20 that the defendants could actually smell the aroma of alcohol on 21 the plaintiff during that brief encounter outside from 5-10 feet 22 away, the smell of alcohol is merely an indication that the 23 person consumed alcohol but does not indicate how much alcohol 24 was consumed or when. (See Pl.’s Opp’n. to Mot. for Summ. J. at 25 16.) Considering the evidence in the light most favorable to 26 plaintiff, the court concludes that there is a genuine issue of 27 material fact as to whether the officers had reasonable suspicion 28 to detain the plaintiff for a suspected DUI. 1 2. Unreasonable Use of Force 2 The Fourth Amendment permits law enforcement officers 3 to use only such force to effect an arrest as is “objectively 4 reasonable” under the circumstances. See Headwaters Forest 5 Defense v. Cty. of Humboldt, 276 F.3d 1125, 1130 (9th Cir. 6 2002)(quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). The 7 essence of the Graham objective reasonableness analysis is that 8 the force which was applied must be balanced against the need for 9 that force. See id. (internal citations omitted.) 10 In assessing the reasonableness of the use of force, 11 the court should give “careful attention to the facts and 12 circumstances of each particular case, including the severity of 13 the crime at issue, whether the suspect poses an immediate threat 14 to the safety of the officers or others, and whether he is 15 actively resisting arrest or attempting to evade arrest by 16 flight.” Wilkinson v. Torres, 610 F.3d 546, 551 (9th Cir. 2010) 17 (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)). The 18 “reasonableness” of a particular use of force must be judged from 19 the perspective of a reasonable officer on the scene, rather than 20 with the 20/20 vision of hindsight. See Graham, 490 U.S. at 396. 21 Viewing the evidence in the light most favorable to the 22 plaintiff, the court concludes that there is a genuine issue of 23 material fact as to whether the amount of force used was 24 reasonable under the circumstances. The force which was applied 25 must be balanced against the need for that force. See Headwaters 26 Forest Defense, 276 F.3d at 1130. By the time they decided to 27 use force to detain plaintiff defendants did not have reasonable 28 grounds to arrest him for DUI. Accordingly, the potential crime 1 at issue at that time was only a minor municipal parking 2 violation. With regard to the amount of force used, Officer 3 Medina testified that he was trained to expect normal reactions 4 to being pushed and pulled, (see Pl.’s Opp’n. to Mot. for Summ. 5 J. at Ex. 9, Dep. Tr. of Daniel Medina at 84:23–85:21), and 6 affirmed that the officers were pulling plaintiff backwards down 7 the driveway. (Id.) 8 Defendants contend that given the plaintiff’s size, 9 standing 5’11” tall and weighing 250 pounds, it was objectively 10 reasonable for the officers to move plaintiff off of his feet via 11 a leg sweep maneuver and onto the ground where he could be 12 handcuffed and detained without a further altercation. (See 13 Defs.’ Mot. for Summ. J. at 13.) However, there is no indication 14 that the plaintiff posed an immediate threat to the safety of the 15 officers apart from his size and the fact that he tensed his 16 arms, as he could be expected to do, while being pulled backwards 17 down his driveway. 18 3. Unlawful Arrest 19 Defendants contend that they had probable cause to 20 arrest plaintiff for violating California Penal Code § 148. (See 21 Defs.’ Mot. for Summ. J. at 15.) “Probable cause exists if the 22 arresting officers had knowledge and reasonably trustworthy 23 information of facts and circumstances sufficient to lead a 24 prudent person to believe that [the arrestee] had committed or 25 was committing a crime.” See Gravelet-Blondin v. Shelton, 728 26 F.3d 1086, 1097–98 (9th Cir. 2013). “Because probable cause 27 deals with probabilities and depends on the totality of the 28 circumstances, it is a fluid concept that is not readily, or even 1 usefully, reduced to a neat set of legal rules. It requires only 2 a probability or a substantial chance of criminal activity, not 3 an actual showing of such activity.” See District of Columbia v. 4 Wesby, 138 S. Ct. 577, 586 (2018) (internal quotations and 5 citations omitted). 6 California Penal Code § 148(a)(1) provides that “every 7 person who willfully resists, delays, or obstructs any public 8 officer. . . in the discharge or attempt to discharge any duty of 9 his or her office of employment. . . shall be punished . . .” 10 Plaintiff took approximately two steps after he heard defendants 11 tell him to stop. (See UMF 36.) However, California Penal Code 12 § 148 does not criminalize a person’s failure to respond with 13 alacrity to police orders. See People v. Quiroga, 16 Cal. App. 14 4th 961 (1st Dist. June 22, 1993) (holding that plaintiff’s 15 refusal to stand up despite numerous commands by a police officer 16 did not violate California Penal Code § 148). 17 In Lassiter v. City of Bremerton, 556 F.3d 1049, 1053, 18 (9th Cir. 2009), the Ninth Circuit held that there was probable 19 cause to arrest the plaintiff for obstruction after the plaintiff 20 grabbed a police officer’s arm, because his conduct had the 21 practical effect of precluding the officers from securing the 22 scene and investigating a possible assault. See id. at 1053. In 23 contrast, the plaintiff here merely flexed his arms and “tensed 24 up” when Officer Medina and Officer Wilson grabbed him and began 25 pulling him backwards on the driveway. (See UMF 38.) Officer 26 Medina also admitted that plaintiff might have been confused 27 about what was going on because of the parking ticket situation, 28 lack of discussions about a DUI investigation, and failure to 1 tell plaintiff that he was legally detained and not free to leave 2 until seconds before the officers grabbed him. (See Pl.’s Opp’n. 3 to Mot. for Summ. J. at Ex. 9, Dep. Tr. of Daniel Medina at 64:1– 4 65:2.) 5 After reviewing all the evidence in the record, the 6 court concludes that there is a genuine issue of material fact as 7 to whether the defendant officers had probable cause to arrest 8 plaintiff for violation of California Penal Code § 148. 9 B. Qualified Immunity 10 Having found disputed issues of fact on the question of 11 whether defendants violated plaintiff’s Fourth Amendment rights, 12 the court must now determine whether defendants nonetheless are 13 entitled to qualified immunity for those violations. The 14 qualified immunity defense is available to defendants if 15 plaintiff’s Fourth Amendment rights at issue in this case were 16 not clearly established at the time that defendants committed the 17 violation. See Shafer v. Cty. of Santa Barbara, 868 F.3d 1110, 18 1117 (9th Cir. 2017). 19 The doctrine of qualified immunity “protects government 20 officials ‘from liability for civil damages insofar as their 21 conduct does not violate clearly established statutory or 22 constitutional rights of which a reasonable person would have 23 known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)(citing 24 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).) To determine 25 whether an officer is entitled to qualified immunity, the court 26 considers: (1) whether there has been a violation of a 27 constitutional right; and (2) whether the defendants’ conduct 28 violated “clearly established” federal law. Sharp v. Cty. of 1 Orange, 871 F.3d 901, 909 (9th Cir. 2016) (citing Kirkpatrick v. 2 Cty. Of Washoe, 843 F.3d 784, 788 (9th Cir. 2016)). 3 Qualified immunity is a question of law to be decided 4 by the court. See Hunter v. Bryant, 502 U.S. 224, 228 (2009). 5 Qualified immunity attaches when an official’s conduct does not 6 violate clearly established statutory or constitutional rights of 7 which a reasonable person would have known. See Kisela v. 8 Hughes, 138 S. Ct. 1148, 1152 (2018) (internal citations 9 omitted). “To be clearly established, a legal principle must 10 have a sufficiently clear foundation in then-existing precedent.” 11 See Wesby, 138 S. Ct. at 589. The rule must be settled law, 12 which means it is dictated by “controlling authority” or a 13 “robust consensus of cases of persuasive authority.“ Id. at 589– 14 90 (internal citations omitted). It is not enough that the rule 15 is suggested by then-existing precedent; the precedent must be 16 clear enough that every reasonable official would interpret it to 17 establish the particular rule the plaintiff seeks to apply. See 18 id. at 590. In other words, qualified immunity protects all but 19 the plainly incompetent or those who knowingly violate the law. 20 See Kisela, 138 S. Ct. at 1152. It is the plaintiff who “bears 21 the burden of showing that the rights allegedly violated were 22 ‘clearly established.’” See Shafer, 868 F.3d at 1118 (internal 23 citations omitted). 24 1. Sergeant Fernandez 25 Sergeant Fernandez was not present or involved in the 26 alleged constitutional violations of unlawful detention and 27 excessive use of force. (See Defs.’ Mot. for Summ. J. at 16.) 28 In regard to the allegedly unlawful arrest, Sergeant Fernandez 1 was told by the other officers that plaintiff “refused to obey 2 lawful orders and struggled when officers attempted to detain 3 him.” (See Pl.’s Opp’n. to Mot. for Summ. J., Ex. 2 at 12.) 4 Plaintiff told Sergeant Fernandez that he continued to walk away 5 from the officers after he heard them say “come here” and “you 6 can’t just leave.” (See UMF 55, 57–60.) He also informed 7 Sergeant Fernandez that he “tensed up” when the officers grabbed 8 him. (See UMF 63.) Plaintiff contends that Sergeant Fernandez 9 should have investigated whether his subordinates were telling 10 him the truth when he arrived on scene and that he should have 11 intervened to prevent plaintiff’s arrest. (See Pl.’s Opp’n to 12 Mot. for Summ. J. at 32–34.) 13 However, as plaintiff’s counsel appeared to concede at 14 oral argument, there is no clearly established law which would 15 place a police sergeant on notice that he has a constitutional 16 obligation to ascertain whether his subordinates are telling him 17 the truth on the scene before making an arrest. Accordingly, the 18 court concludes that Sergeant Fernandez is entitled to qualified 19 immunity and will grant his summary judgment on the claims 20 against him. 21 2. Unlawful Detention 22 Plaintiff contends that defendants violated clearly 23 established law by detaining him to investigate a potential DUI. 24 (See Pl.’s Opp’n. to Mot. for Summ. J. at 15.) The strongest 25 case plaintiff cites in support of his contention is United 26 States v. Grigg, 498 F.3d 1070, 1079–81 (9th Cir. 2007).4 The 27 4 Plaintiff cites various other cases, but none are on point here. United States v. Valdes-Vega, 738 F.3d 1074, 1078 28 (9th Cir. 2013), and Rodriguez v. United States, 575 U.S. 348, 1 Ninth Circuit has long held that the Fourth Amendment constrains 2 officers who conduct stops to investigate completed misdemeanors. 3 See United States v. Grigg, 498 F.3d 1070, 1079–81 (9th Cir. 4 2007). In United States v. Grigg, police officers pulled over 5 the suspect’s vehicle to investigate a citizen complaint that the 6 suspect had been playing his car stereo at an excessive volume 7 earlier in the day. Id. at 1072. The Grigg court concluded that 8 this was insufficient to justify the officer’s detention of the 9 suspect. Id. at 1081. 10 Defendants contend that Grigg did not put the officers 11 here on notice that their detention of Plaintiff to investigate a 12 DUI was unlawful. (See Defs.’ Reply in Supp. of Mot. for Summ. 13 J. at 25.) (Docket No. 19.) The court agrees. First, it was not 14 necessarily clear that this DUI was a misdemeanor. Under certain 15 conditions a fourth DUI may be charged as a felony. See Cal. 16 Veh. Code § 23550. Because defendants had not identified 17 plaintiff before they encountered him, they had no way of knowing 18 whether he had prior DUI convictions. 19 Second, even assuming the officers would have known 20 350–51 (2015), focus on investigatory stops of vehicles. Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1175 (9th Cir. 21 2019), involved a shooting by a police officer on a BART train and where the court held that there was no likelihood of ongoing 22 or repeated danger or escalation when the officer was investigating a completed fight on a BART train and came upon a 23 group of black men merely talking amongst each other. See id. at 1175–76. In United States v. Hensley, 469 U.S. 221, 233 (1985), 24 the Supreme Court held that police officers had reasonable suspicion to perform an investigatory stop of defendant based on 25 a “wanted flyer” by another police department and were entitled to seize evidence discovered in plain view in course of their 26 lawful stop of defendant’s vehicle. Nothing in those cases would have placed defendants here on notice that they were not entitled 27 to detain plaintiff to investigate a DUI under the circumstances of this case. 28 1 they were investigating a misdemeanor DUI, Grigg instructs that 2 in determining whether the Fourth Amendment permits an officer to 3 detain a suspected misdemeanant, the court must “consider the 4 nature of the misdemeanor offense in question, with particular 5 attention to the potential for ongoing or repeated danger (e.g. 6 drunken and/or reckless driving), and any risk of escalation 7 (e.g., disorderly conduct, assault, domestic violence).” See 8 Grigg, 498 F.3d at 1079-81. Because Grigg specifically states 9 that the officers should pay attention to the potential for 10 ongoing or repeated danger, and highlights reckless and drunken 11 driving as activities that would lead to ongoing danger, Grigg 12 did not put the defendants on notice that their detention of 13 plaintiff to investigate a DUI was unlawful. 14 Because plaintiff fails to identify sufficiently 15 specific constitutional precedents to alert defendants that their 16 particular conduct was unlawful, defendants are entitled to 17 qualified immunity for the alleged unlawful detention of 18 plaintiff. Accordingly, the court will grant defendants summary 19 judgment on this claim. 20 3. Unreasonable Use of Force 21 The court next examines whether it was clearly 22 established that the use of force exerted by the officers in this 23 case was unreasonable. Plaintiff contends that he was subjected 24 to excessive and unreasonable force by Officers Medina, Wilson, 25 and Watkins. (See Pl.’s Opp’n. to Mot. for Summ. J. at 26.) 26 Defendants argue that they did not violate clearly established 27 law when Officer Medina and Officer Wilson grasped plaintiff to 28 stop him from leaving the scene and used a leg sweep to take 1 plaintiff to the ground after plaintiff resisted. (See Defs.’ 2 Reply in Supp. of Mot. for Summ. J. at 26.) 3 As a preliminary matter, plaintiff contends that he was 4 “gang tackled” at various points in his opposition, (see Pl.’s 5 Opp’n to Mot. for Summ. J. at 26), and at oral argument. 6 However, there is simply no evidence that plaintiff was “gang 7 tackled” or even tackled at all. The only evidence that 8 plaintiff cites to justify his statement that he was “gang 9 tackled” is that Officers Medina, Wilson, and Watkins ended up 10 going to the ground too. (See Pl.’s Resp. to Statement of 11 Undisputed Facts, Fact 40.) However, plaintiff’s own description 12 of the event in the statement of undisputed facts belies his 13 contention that he was gang tackled; he states that Officer 14 Wilson grabbed plaintiff’s right arm and pulled him further down 15 the driveway to do a leg sweep to kick plaintiff’s legs out from 16 under him, causing plaintiff to fall onto his back on the 17 concrete driveway. (See Pl.’s Resp. to Statement of Undisputed 18 Facts, Fact 37.) Nowhere in plaintiff’s description of the 19 events does a “gang tackle” occur. (See id.) 20 The reason attempts to categorize the force used as a 21 “gang tackle” because in Blankenhorn v. City of Orange, 485 F.3d 22 463, 481 (9th Cir. 2007), the Ninth Circuit held that a “gang 23 tackle” was an unreasonable use of force under the circumstances 24 of that case. See id. However, as the Ninth Circuit made clear 25 in Blankenhorn, “neither tackling nor punching a suspect to make 26 an arrest necessarily constitutes excessive force.” See id. at 27 477. Rather, the Ninth Circuit held that “the clear principle 28 that force is only justified where there is a need for force 1 would have placed a prudent officer on notice that gang-tackling 2 without first attempting a less violent means of arresting a 3 relatively calm trespass subject -– especially one who had been 4 cooperative in the past and was at the moment not actively 5 resisting arrest -- was a violation of that person’s Fourth 6 Amendment rights.” See Blankenhorn, 485 F.3d at 481. 7 The Supreme Court has cautioned that “use of excessive 8 force is an area of the law in which the result depends very much 9 on the facts of each case, and police officers are entitled to 10 qualified immunity unless existing precedent ‘squarely governs’ 11 the specific facts at issue.” See Kisela, 138 S. Ct. at 1153. 12 The facts of Blankenhorn, which dealt with a trespass subject who 13 had previously cooperated with police and was not actively 14 resisting arrest, are readily distinguishable from the facts here 15 and could not have placed defendants on notice that their conduct 16 was illegal. 17 The other cases cited by plaintiff similarly do not 18 support a finding that the officers violated clearly established 19 law when they grasped his arms to stop him from leaving and used 20 a leg sweep to take him to the ground after he tensed up his 21 arms.5 Plaintiff attempts to rely on Tekle v. United States, 511 22 5 The majority of the cases cited by plaintiff are applications of state law. See Cal. Pen. Code § 242; See 23 Judicial Council of California: Civil Jury Instructions (“CACI”), Rule 1305, Battery by Peace Officer (2020); Edson v. City of 24 Anaheim, 63 Cal. App. 4th 1269, 1272 (4th Dist. 1998); Evans v. City of Bakersfield, 22 Cal. App. 4th 321, 331 (5th Dist. 1994). 25 However, the standard requires that the defendant violated clearly established federal law, not California state law. See 26 Sharp, 871 F.3d at 909. Plaintiff also cites Andrews v. City of Henderson, Case No. 2:18-CV-1625 JCM (BNW), 2020 WL 5750434 at *1 27 (D. Nev. Sept. 25, 2020). City of Henderson was decided after the subject incident and thus could not have placed defendants on 28 notice that their conduct was illegal. 1 F.3d 839, 844–45 (9th Cir. 2007). In Tekle, approximately 2 twenty-three armed officers saw a barefoot, eleven year old, 3 unarmed boy eleven year old boy exit the house where he lived 4 with his father, the suspect. (See id. at 846.) He did not 5 attempt to flee or resist officers, but complied with their 6 requests and laid face down on the driveway. (See id.) The 7 police then held a gun to his head, searched him, pulled him up 8 from behind by the chain of the handcuffs, and pointed their guns 9 on him for fifteen to twenty minutes. (See id.) Because the 10 facts of Tekle are completely distinguishable from the facts at 11 issue here and involved a totally different type of force, Tekle 12 could not have placed defendants on notice that their conduct in 13 this case was unlawful. 14 Plaintiff next cites Young v. County of Los Angeles, 15 655 F.3d 1156, 1166 (9th Cir. 2011). In Young, the police 16 initiated a traffic stop for a seat belt violation. See id. at 17 1158. While the plaintiff sat on the sidewalk eating a snack and 18 waiting for a ticket to be written, the police officer proceeded 19 to pepper spray him and strike him multiple times with his baton. 20 See id. at 1160. Again, because the facts of Young are wholly 21 distinguishable from the facts at issue here and involved a 22 totally different type of force, Young could not have placed 23 defendants on notice that their conduct here was unlawful. 24 Because plaintiff fails to identify sufficiently 25 specific constitutional precedents to alert the defendants that 26 their particular conduct was unlawful, defendants are entitled to 27 28 1 qualified immunity for the alleged unreasonable use of force. 2 Accordingly, the court will grant defendants summary judgment on 3 this claim. 4 4. Unlawful Arrest 5 The cases cited by plaintiff do not support his 6 contention that the defendants violated clearly established law 7 when they arrested plaintiff for violating California Penal Code 8 §148. 6 The only federal case cited by plaintiff in support of 9 his proposition is Velasquez v. City of Long Beach, 793 F.3d 10 1010, 1018–19 (9th Cir. 2015). In Velasquez, Long Beach police 11 officers were responding to a noise complaint when an officer 12 decided to detain the plaintiff for refusing to comply with 13 orders, and brought the plaintiff to the ground when he felt him 14 “sort of pull away.” See id. at 1015. When the plaintiff in 15 Velasquez allegedly refused to comply with defendant’s orders to 16 roll on his stomach, the officer struck him eleven times with his 17 baton. See id. Plaintiff was then arrested for violation of 18 California Penal Code § 148(a)(1). See id. The district court 19 granted judgment as a matter of law on the unlawful arrest issue 20 under Federal Rule of Civil Procedure 50(a) to the City of Long 21 Beach. See id. at 1017. The Velasquez decision did not 22 establish that plaintiff was unlawfully arrested for violation of 23 6 The majority of the cases cited by plaintiff are again 24 state court cases interpreting state law. See People v. Quiroga, 16 Cal. App. 4th 961 (1st Dist. 1993); In re Muhammed, 95 25 Cal.App.4th 1325, 1329 (6th Dist. 2002); People v. Francis A. 40 Cal.App.5th 399, 408 (1st Dist. 2019; People v. Allen, 109 26 Cal.App.3d 981, 987 (5th Dist. 1980). However, as noted above, the standard requires that the defendant violated clearly 27 established federal law, not California state law. See Sharp, 871 F.3d at 909. 28 1 California Penal Code § 148; rather, the court held that the 2 district court erred in granting judgment as a matter of law and 3 remanded the case for a new trial. See id. at 1030. As such, 4 Velasquez could not have placed defendants on notice that their 5 conduct was illegal. 6 Because plaintiff fails to identify sufficiently 7 specific constitutional precedents to alert defendants that their 8 particular conduct in arresting plaintiff for violating 9 California Penal Code § 148 was unlawful, the defendants are 10 entitled to summary judgment on the allegedly unlawful arrest of 11 plaintiff. Accordingly, the court will grant defendants summary 12 judgment on this claim. 13 C. Claim Under 42 U.S.C. § 1983 for Malicious Prosecution 14 Plaintiff’s second claim for relief alleges federal 15 malicious prosecution under 42 U.S.C. § 1983. (See Compl. ¶¶ 29– 16 31.) Under Ninth Circuit precedent, in order to prevail on a § 17 1983 claim of malicious prosecution, a plaintiff “must show that 18 defendants prosecuted [him] with malice and without probable 19 cause, and that they did so for the purpose of denying [him] 20 equal protection or another specific constitutional right.”7 21 Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995). 22 Malicious prosecution actions are not limited to suits against 23 prosecutors but may be brought, as here, against other persons 24 who have wrongfully caused the charges to be filed. See 25 Galbraith v. Cty. of Santa Clara, 307 F.3d 1119, 1126–27 (9th 26 7 Although plaintiff alleges that defendants prosecuted 27 him for the purpose of denying a specific constitutional right, plaintiff has not identified which specific constitutional right 28 defendants prosecuted him to deny. 1 Cir. 2002). 2 “[T]he decision to file a criminal complaint is 3 presumed to result from an independent determination on the part 4 of the prosecutor, and thus, precludes liability for those who 5 participated in the investigation or filed a report that resulted 6 in the initiation of proceedings.” Awabdy v. City of Adelanto, 7 368 F.3d 1062, 1067 (9th Cir. 2004). However, the presumption of 8 prosecutorial independence does not bar a subsequent § 1983 claim 9 against state or local officials who improperly exerted pressure 10 on the prosecutor, knowingly provided misinformation to him, 11 concealed exculpatory evidence, or otherwise engaged in wrongful 12 or bad faith conduct that was actively instrumental in causing 13 the initiation of the proceedings. Id. 14 If a plaintiff has evidence, for example, that the 15 district attorney was subjected to unreasonable pressure by the 16 police officers, that the officers knowingly withheld relevant 17 information with the intent to harm plaintiff, or that the 18 officers knowingly supplied false information, the plaintiff has 19 the burden to produce it. See Smiddy v. Varney, 803 F.2d 1469, 20 1471–72 (9th Cir. 1986). In addition, “an individual seeking to 21 bring a malicious prosecution claim must generally establish that 22 the prior proceedings terminated in such a manner as to indicate 23 his innocence.8 See Awabdy, 368 F.3d at 1068. In the absence of 24 evidence to rebut the presumption, the presumption is sufficient 25 to require summary judgment for the defendant. (Id.) 26 Plaintiff contends that the defendants induced the 27 8 It is undisputed that the District Attorney dismissed Plaintiff’s criminal case after plaintiff prevailed on his Motion 28 to Suppress. (See UMF 74–75.) 1 criminal prosecution by corruption, fabricated evidence, and 2 suppression of exculpatory evidence. (See Pl.’s Opp’n to Mot. 3 for Summ. J. at 38.) Plaintiff cites two examples of this 4 alleged fabrication to rebut the presumption of independent 5 prosecutorial judgment. (See Pl.’s Opp’n to Mot. for Summ. J. at 6 38-42.) First, plaintiff points to Officer Medina and Officer 7 Wilson’s vacillations as to where plaintiff was standing in their 8 reports, the motion to suppress hearing, and their depositions. 9 (Id. at 39.) Plaintiff additionally contends that Officers 10 Wilson and Medina lied when they said they could smell alcohol 11 emanating from plaintiff because plaintiff had only consumed 12 three beers earlier in the evening, had eaten 6 tacos, and was 13 outside at least 10 feet away from the officers. (Id. at 39–41.) 14 Plaintiff also points to the fact that Officer Watkins did not 15 state that he smelled alcohol on plaintiff and Sergeant Fernandez 16 did not state that plaintiff was slurring his words. (Id. at 17 41.) 18 The Ninth Circuit has established what types of 19 evidence are required to overcome the presumption that a 20 prosecutor exercises independent judgment in deciding to file 21 charges. See Newman v. County of Orange, 457 F.3d 991, 994 (9th 22 Cir. 2006). In Barlow v. Ground, 992 F.2d 1132, 1137 (9th Cir. 23 1992), the Ninth Circuit held that a civil rights plaintiff had 24 produced sufficient evidence to overcome the Smiddy presumption 25 because the prosecutor relied solely on the arresting officer’s 26 report which omitted critical information and an independent 27 witness corroborated at least part of the plaintiff’s version of 28 events. Id. at 1137. However, the Ninth Circuit has made clear 1 that a plaintiff’s account of the incident in question, by 2 itself, does not overcome the presumption of independent 3 judgment. See Newman, 457 F.3d at 994. 4 The court is not convinced that the discrepancies 5 between the officer’s reports cited by the plaintiff are 6 material. The fact that officers may have forgotten exactly 7 where they were standing on the driveway when questioned at their 8 depositions, over a year after the subject incident, is not 9 “ample evidence from which a reasonable jury could conclude that 10 the arresting officers, through false statements and material 11 omissions in their reports, prevented the prosecutor from 12 exercising independent judgment.” See Newman, 457 F.3d at 996 13 (citing Barlow, 943 F.2d at 1137). Nor does the fact that 14 certain officers did not smell alcohol or hear the plaintiff 15 slightly slurring words, establish that the other officers were 16 lying or that there were material omissions in the report. 17 After reviewing all the evidence in the record, the 18 court concludes that plaintiff has not provided evidence 19 sufficient to rebut the presumption of independent judgment and 20 survive summary judgment on his malicious prosecution claim. 21 Plaintiff has merely established that his account of the incident 22 in question conflicts with the account of the officers involved, 23 which does not suffice. See Newman, 457 F.3d at 994. 24 Accordingly, the court will grant summary judgment on this claim 25 to defendants. 26 D. State Law Claim Under Tom Bane Civil Rights Act 27 Plaintiff’s sole remaining claim for relief is based on 28 the Tom Bane Civil Rights Act, California Civil Code § 52.1(c). 1 (See Compl. ¶¶ 32–24.) Because the court will grant summary 2 judgment on plaintiff’s only federal claims, the court no longer 3 has federal question jurisdiction.9 4 Federal courts have “supplemental jurisdiction over all 5 other claims that are so related to claims in the action within 6 such original jurisdiction that they form part of the same case 7 or controversy under Article III of the United States 8 Constitution.” 28 U.S.C. § 1367(a). But a district court “may 9 decline to exercise supplemental jurisdiction . . . [if] the 10 district court has dismissed all claims over which it has 11 original jurisdiction.” 28 U.S.C. § 1367(c); see also Acri v. 12 Varian Assocs., Inc., 114 F.3d 999, 1001 n.3 (9th Cir. 1997) (en 13 banc) (explaining that a district court may decide sua sponte to 14 decline to exercise supplemental jurisdiction). 15 The Supreme Court has stated that “in the usual case in 16 which all federal-law claims are eliminated before trial, the 17 balance of factors to be considered under the pendent 18 jurisdiction doctrine--judicial economy, convenience, fairness, 19 and comity--will point toward declining to exercise jurisdiction 20 over the remaining state-law claims.” Carnegie–Mellon Univ. v. 21 Cohill, 484 U.S. 343, 350 n.7 (1988). 22 Here, comity weighs in favor of declining to exercise 23 supplemental jurisdiction over plaintiff’s state law claim under 24 the Tom Bane Act. The state courts are fully competent to 25 adjudicate such a claim. Indeed, that Act raises complex 26 questions of state law as to what is required to establish a 27 9 There is no suggestion that there is diversity 28 jurisdiction in this case, and the court finds none. 1 “specific intent to violate the arrestee’s right to freedom from 2 unreasonable seizure.” Reese v. Cty. of Sacramento, 888 F.3d 3 1030, 1043 (9th Cir. 2018) (citing Cornell v. City & Cty. of San 4 Francisco, 17 Cal. App. 5th 766, 799, (2017)).10 Such questions 5 are better left to the California courts to resolve. 6 As for judicial economy, plaintiff’s Tom Bane Act claim 7 has not been the subject of any significant litigation in this 8 case apart from being discussed briefly in the context of this 9 motion. Judicial economy does not weigh in favor of exercising 10 supplemental jurisdiction. And lastly, convenience and fairness 11 do not weigh in favor of exercising supplemental jurisdiction 12 over plaintiff’s remaining state law claim. The federal and 13 state fora are equally convenient for the parties. There is no 14 reason to doubt that the state court will provide an equally fair 15 adjudication of the issues. There is nothing to prevent 16 plaintiff from refiling his claims against the remaining 17 defendants in the state court,11 and any additional cost or delay 18 resulting therefrom should be minimal. Accordingly, the court 19 10 “The Bane Act’s requirement that interference with rights must be accomplished by threats, intimidation, or coercion 20 has been the source of much debate and confusion.” Cornell, 17 Cal. App. 5th at 801. In Chaudhry, the Ninth Circuit found the 21 Bane Act “does not require proof of discriminatory intent” and “that a successful claim for excessive force under the Fourth 22 Amendment provides the basis for a successful claim under § 52.1.” Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1105 (9th 23 Cir. 2014). But in Cornell, the California Court of Appeal clarified the Bane Act’s requirements, finding specific intent 24 was required to make out a claim. 25 11 “[T]he period of limitations for any claim asserted under [28 U.S.C. 1367(a)], and for any other claim in the same 26 action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled 27 while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling 28 period.” 28 U.S.C. § 1367(d). ene nnn nnn nn nnn nn nn nnn nO SE OED OE 1 declines to exercise supplemental jurisdiction and will dismiss 2 | plaintiff’s remaining state law claim without prejudice to 3 | vefiling in state court. 4 IT IS THEREFORE ORDERED that the Defendants’ Motion for 5 Summary Judgment (Docket No. 11) be, and the same hereby is, 6 | GRANTED on all of plaintiff’s federal claims. 7 IT IS FURTHER ORDERED that plaintiff’s remaining claim 8 against defendants under California law is DISMISSED WITHOUT 9 PREJUDICE to refiling in state court. 10 The Clerk of Court is instructed to enter judgment 11 accordingly. 12 | Dated: February 10, 2021 tleom ah. A. be—~ 13 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30