Turner v. Modesto Police Department ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEPHEN TURNER, Case No. 1:23-cv-00210-ADA-SAB 12 Plaintiff, ORDER DISCHARGING ORDER TO SHOW CAUSE RE DIVERSITY 13 v. JURISDICTION 14 MODESTO POLICE DEPARTMENT, et al., SCREENING ORDER GRANTING LEAVE TO FILE AMENDED COMPLAINT 15 Defendants. (ECF Nos. 1, 6, 7, 8) 16 THIRTY DAY DEADLINE 17 18 I. 19 INTRODUCTION AND BACKGROUND 20 Plaintiff Stephen Turner is appearing pro se and in forma pauperis in this action. 21 Plaintiff filed this action on February 13, 2023. (ECF No. 1.) On May 10, 2023, the Court 22 issued an order requiring Plaintiff to show cause in writing as to why this action should not be 23 dismissed for lack of jurisdiction based on Plaintiff’s claim of Nevada citizenship. (ECF No. 6.) 24 On June 2, 2023, and June 5, 2023, Plaintiff filed responses to Court’s order to show cause. 25 (ECF Nos. 7, 8.) For the reasons explained herein, the Court discharges the order to show cause, 26 and issues the following screening order finding Plaintiff’s complaint fails to establish diversity 27 jurisdiction, and fails to state a claim. The Court shall grant Plaintiff leave to file a first amended complaint that addresses the diversity pleading deficiencies identified below, and in 1 consideration of the legal standards and findings below that Plaintiff’s five causes of action. If 2 Plaintiff 3 II. 4 SCREENING REQUIREMENT 5 Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court 6 determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which 7 relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from 8 such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) 9 (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); 10 Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis 11 proceedings which seek monetary relief from immune defendants); Cato v. United States, 70 12 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis 13 complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) 14 (affirming sua sponte dismissal for failure to state a claim). The Court exercises its discretion to 15 screen the plaintiff’s complaint in this action to determine if it “(i) is frivolous or malicious; (ii) 16 fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a 17 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). 18 In determining whether a complaint fails to state a claim, the Court uses the same 19 pleading standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a 20 short and plain statement of the claim showing that the pleader is entitled to relief . . .” Fed. R. 21 Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the 22 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 23 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 24 544, 555 (2007)). 25 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and 26 accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 27 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, 1 complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops 2 short of the line between possibility and plausibility of entitlement to relief.’ ” Id. (quoting 3 Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient factual content for 4 the court to draw the reasonable conclusion that the defendant is liable for the misconduct 5 alleged. Iqbal, 556 U.S. at 678. 6 III. 7 COMPLAINT ALLEGATIONS 8 The Court accepts Plaintiff’s allegations in the complaint as true only for the purpose of 9 the sua sponte screening requirement under 28 U.S.C. § 1915. 10 Plaintiff names the following Defendants: (1) the Modesto Police Department; (2) the 11 City of Modesto; (3) Galen Carroll, in his individual and official capacities, as Chief of Police of 12 Modesto Police Department; (4) Best Western Palm Court Inn (“Best Western”); (5) Best 13 Western International, Inc., doing business as BWH Hotel Group (“BWH”); (6) Rita Garcia, 14 general manager of Best Western Palm Court Inn; (6) Metro One Loss Prevention Services 15 Group (West Coast) Inc. (Compl., ECF No. 1.) Defendant also names “Doe” Defendants. Doe 16 1 and Doe 2 are Modesto police officers. Doe 3 is identified as a security guard for Best Western 17 Palm Court Inn and employed by Metro One. 18 Plaintiff alleges he checked in and registered at the Best Western Palm Court Inn on 19 October 20, 2022, and a friend also registered as an accompanying guest. (Compl. ¶ 19.) Best 20 Western requested Plaintiff’s vehicle make and model information and license plate information, 21 and Plaintiff listed his 1989 Ford E-150 van with a Nevada license plate number. That night, as 22 to not disturb his friend, Plaintiff chose to work on his phone in his van. (Compl. ¶ 20.) A 23 police officer in a vehicle followed another vehicle into the Best Western parking lot, and a 24 police officer stepped out of the vehicle, quickly spotted Plaintiff, and eyed him suspiciously 25 from about 25 yards away. (Id.) Plaintiff became uncomfortable, exited the vehicle, and sat at a 26 patio area. About fifteen minutes later Plaintiff saw the police officer go to the front desk. 27 Plaintiff returned to his van to work, after the police were gone. (Compl. ¶ 21.) In order 1 recline on a mattress, and fell asleep. About an hour and a half later, Plaintiff believes the Metro 2 One security guard called the Modesto Police Department to report someone sleeping in a van. 3 Plaintiff was awoken by Modesto police officers. (Compl. ¶ 23.) Plaintiff was extremely 4 frightened, and claims the police lacked reasonable and articulable suspicion to conduct the 5 investigation. The police shined lights and said “We know you’re in there, Mr. Turner. Get 6 Out!” (Id.) 7 A short while later, the police stated they would break into the vehicle if necessary. 8 Plaintiff prayed they would stop yelling and would go away, but upon the threat, put on a shirt 9 and exited the vehicle. (Compl. ¶ 24.) Plaintiff explained he was working on his phone and fell 10 asleep. The officers told Plaintiff he could not sleep in his van. Plaintiff explained he was a 11 registered guest. The officers never checked identification, never searched the van, and did not 12 search Plaintiff. However, Plaintiff claims he feared violence if he did not get out of the van. 13 Plaintiff states the encounter lasted about five (5) minutes, and that the officers said he could not 14 go back to his van. 15 Plaintiff told the officers he was going to return to his room. However, Plaintiff states 16 instead, he was so upset he decided to go the fitness center thinking exercise would calm him 17 down and relieve stress, but after 10 minutes, decided to leave to look for a restaurant. (Compl. ¶ 18 27.) Plaintiff then drove to a local truck stop and due to the severe stress and fatigue, he quickly 19 fell asleep. The next morning, Plaintiff returned to the hotel to “explain[] the details surrounding 20 the tragic event that transpired the previous night . . . requested to speak to the General Manager 21 Ms. Rita Garcia . . . [but] [u]nfortunately, to Plaintiff[’]s [] dismay, Garcia never exercised the 22 civility or courtesy to communicate with him.” (Compl. ¶ 32.) 23 Plaintiff brings claims only pursuant to California state law. Plaintiff’s first cause of 24 action is brought against the Modesto police officers for violation of the Bane Act, California 25 Civil Code § 52.1. Plaintiff’s second cause of action is for intentional infliction of emotional 26 distress against the Modesto police officers. Plaintiff’s third cause of action is for negligence or 27 gross negligence against Defendants Best Western, Metro One, Doe 3, and Rita Garcia. 1 against Defendants Best Western and Metro One. Plaintiff’s fifth cause of action is for violation 2 of the California Unfair Competition Law against Defendants Best Western, and Metro One. 3 Plaintiff seeks in excess of $200,000.00, as well as punitive damages and attorneys’ fees. 4 IV. 5 DISCUSSION 6 For the reasons explained below, while the Court discharges the order to show cause 7 regarding Plaintiff’s citizenship, the Court finds Plaintiff’s complaint insufficiently pleads 8 diversity jurisdiction. Therefore, if Plaintiff chooses to file an amended complaint, Plaintiff shall 9 address the insufficiencies identified below regarding diversity jurisdiction. Any amended 10 complaint shall state the state of citizenship of the Plaintiff and each Defendant, as specified 11 below. 12 Further, while the Court does not yet proceed to a recommendation to the District Judge 13 on a screening of Plaintiff’s causes of action, even if Plaintiff did appropriately plead diversity 14 jurisdiction, the Court additionally finds below that the complaint fails to state a cognizable 15 claim, and if the Court were to make a recommendation based on the current complaint as pled, 16 the Court would recommend the complaint be dismissed. It does not appear amendment would 17 be fruitful based on the current factual allegations and legal standards, however, given the 18 Plaintiff’s pro se status, and the threshold issue of diversity jurisdiction, the Court shall grant 19 leave to file an amended complaint. Plaintiff shall keep the below legal standards in mind in 20 deciding whether to file an amended complaint. 21 A. Although the Court shall Discharge the Order to Show Cause Re Plaintiff’s Citizenship, the Complaint Insufficiently Pleads Diversity Jurisdiction 22 23 1. General Legal Standards 24 “In this action, as in all actions before a federal court, the necessary and constitutional 25 predicate for any decision is a determination that the court has jurisdiction—that is the power— 26 to adjudicate the dispute.” United Invs. Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 27 (9th Cir. 2004) (quoting Toumajian v. Frailey, 135 F.3d 648, 652 (9th Cir. 1998)). “The 1 652 (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803)). “If that power is 2 missing, however, the court is not in a position to act and its decisions cannot generally be 3 enforced.” Toumajian, 135 F.3d at 652; see also United Invs. Life Ins. Co. v. Waddell & Reed 4 Inc., 360 F.3d 960, 967 (9th Cir. 2004) (“Here the district court had a duty to establish subject 5 matter jurisdiction over the removed action sua sponte, whether the parties raised the issue or 6 not.”). 7 Federal courts may exercise “diversity jurisdiction” when the amount in controversy 8 exceeds $75,000 and the parties are “citizens of different States.” 28 U.S.C. § 1332(a); Rainero, 9 844 F.3d at 840. Diversity jurisdiction requires “complete diversity,” meaning that the 10 citizenship of each plaintiff is different from the citizenship of each defendant. See, e.g., 11 Weeping Hollow Ave. Trust v. Spencer, 831 F.3d 1110, 1113 (9th Cir. 2016). A natural 12 person’s citizenship is determined by her “domicile,” which is the person’s “permanent home, 13 where she resides with the intention to remain or to which she intends to return.” Kanter v. 14 Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). A person’s State of residence is not 15 necessarily her State of citizenship. See id. 16 Because domicile, not residence, determines citizenship, allegations of residence are 17 insufficient to establish citizenship or diversity jurisdiction. See Scott, 865 F.3d at 195; Rainero, 18 844 F.3d at 839; Travaglio v. American Express Co., 735 F.3d 1266, 1268-69 (10th Cir. 2013); 19 Kanter, 265 F.3d at 857-58. “The party seeking to invoke the district court’s diversity 20 jurisdiction always bears the burden of both pleading and proving diversity jurisdiction.” 21 Rainero, 844 F.3d at 840 (quoting NewGen, LLC v. Safe Cit, LLC, 840 F.3d 606, 613-14 (9th 22 Cir. 2016)); see also Kanter, 265 F.3d at 857-58. 23 2. The Order to Show Cause Shall be Discharged 24 The Court required Plaintiff to address the claim of diversity jurisdiction, specifically, his 25 claim of Nevada citizenship. (See ECF No. 6.)1 Although the Court resolves all doubt against 26 1 The Court incorporates the discussion from the order to show cause. As stated the Court summarized therein, 27 “[g]iven Plaintiff has claimed California citizenship for years utilizing the federal court in the Northern District of California, and utilizing the California Address; given Plaintiffs’ current complaint identifies his mailing address as 1 the existence of jurisdiction, Geographic Expeditions, Inc. v. Est. of Lhotka ex rel. Lhotka, 599 2 F.3d 1102, 1107 (9th Cir. 2010), Plaintiff has addressed the discrepancies regarding his state 3 citizenship sufficiently for the Court to accept Plaintiff’s declaration of Nevada citizenship.2 The 4 Court shall discharge the order to show cause. However, such finding is without prejudice to any 5 appearing Defendants’ ability to challenge jurisdiction on such basis, and to conduct preliminary 6 discovery as to the issue of Plaintiff’s residency and citizenship. 7 3. Complaint Insufficiently Pleads Diversity Jurisdiction 8 Nonetheless, while the order to show cause regarding Plaintiff’s state citizenship shall be 9 discharged, the complaint is insufficient to establish diversity jurisdiction for the reasons 10 explained below. See Rainero v. Archon Corp., 844 F.3d 832, 840 (9th Cir. 2016) (“The party 11 seeking to invoke the district court’s diversity jurisdiction always bears the burden of both 12 pleading and proving diversity jurisdiction.” (quoting NewGen, 840 F.3d at 613-14)). The Court 13 shall grant leave to amend to plead the citizenship of all named Defendants in the first instance. 14 However, as further explained below, as currently pled, even if diversity jurisdiction were 15 properly pled, Plaintiff’s complaint would fail to state a claim. Accordingly, while the Court 16 must grant leave to amend unless clear that amendment would be futile, Plaintiff is notified that 17 for the reasons and legal authorities below, the Court would recommend the current complaint be 18 dismissed for failure to state a claim. 19 For purposes of diversity jurisdiction, Plaintiff claims he is a resident of the State of 20 Nevada, and a citizen of the State of Nevada. (Compl. ¶¶ 1, 12.) Plaintiff generally proffers the 21 Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). (Compl. ¶ 12.) Plaintiff does 22 not specifically claim the citizenship of any Defendant, rather referring to the Defendants as 23 from previously alleging Nevada residency, to California residency for purposes of representing California 24 subclasses, the Court hall require Plaintiff to address his claims of Nevada citizenship.” (ECF No. 6 at 8.) 25 2 In response to the order to show cause, Plaintiff declares that he is legally a Nevada resident because he is a registered voter in Nevada; possesses a valid Nevada driver’s license; and proffers his “legal address” is in Incline Village, Nevada. (ECF No. 7.) Plaintiff proffers his forwarding mailing address in California is not his legal 26 address or residence, but his son’s residence, and that he does not reside there. Plaintiff proffers he travels and finds it more convenient to have his mail forwarded to his son’s address. Plaintiff also submitted another declaration 27 explaining the reasoning as to why his residence changed between amended complaints in Northern District of California Case No. 4:21-cv-04071-JST. The Court finds the information sufficient to discharge the order to show 1 conducting business in the Eastern District of California, or referring to their principal place of 2 business. (See Compl. ¶¶ 2-13.) 3 Defendants Galen Carrol, Rita Garcia, and Does 1-3 are specified as conducting business 4 in the Eastern District, but Plaintiff does not allege their citizenship. (Compl. ¶¶ 4, 7, 9, 10.) 5 Plaintiff alleges Best Western Palm Court Inn is a business entity unknown, that 6 conducted business in the Eastern District, and has its principal place of business in the Eastern 7 District; that Best Western International, identified as incorporated, has its principal place of 8 business in the State of Arizona and has sufficient contacts to place it under the jurisdiction of 9 the Eastern District; and that Defendant Metro One, identified as incorporated, has their principal 10 place of business in the State of Illinois. (Compl. ¶¶ 5, 6, 8, 12.) 11 “Absent unusual circumstances, a party seeking to invoke diversity jurisdiction should be 12 able to allege affirmatively the actual citizenship of the relevant parties.” Kanter, 265 F.3d at 13 857. While Plaintiff has alleged his own citizenship, Plaintiff does not sufficiently identify the 14 citizenship of the other Defendants, and this is insufficient to establish diversity jurisdiction. See 15 Murphy v. Allstate Ins. Co., No. 220CV753KJMEFBPS, 2020 WL 5095862, at *2 (E.D. Cal. 16 Aug. 28, 2020) (“Plaintiff alleges that he resides in Pittsburg, California—which suggests he is a 17 Citizen of California—but he does not provide any allegations establishing defendant's 18 citizenship.”); Salazar v. Wells Fargo Bank, N.A., No. 217CV2420MCEEFBPS, 2019 WL 19 951439, at *2 (E.D. Cal. Feb. 27, 2019) (“The complaint indicates that plaintiffs have resided in 20 California since 2012, suggesting they are citizens of California. But the complaint is silent as to 21 the citizenship of both Wells Fargo and Quality.”). 22 Plaintiff shall allege the citizenship of the named individual Defendants to the best of his 23 ability, Rita Garcia and Galen Carrol. The lack of citizenship of the Doe Defendants is not fatal 24 to Plaintiff’s claims at this stage, however, could destroy diversity jurisdiction if the parties are 25 named and substituted in, and happen to be Nevada citizens.3 26 3 Some courts may require a Plaintiff shall attempt to plead the citizenship of a Doe Defendant. See Fineman v. Lutz-Laidlaw P'ship, No. 20CV695-L(WVG), 2020 WL 1905783, at *2 (S.D. Cal. Apr. 17, 2020) (“Plaintiffs have 27 not alleged the citizenship of each of Lutz-Laidlaw Partnership's partners and have therefore not alleged its citizenship. Plaintiffs have not alleged the citizenship of any of the Doe Defendants, whether business entities or 1 In addition to not expressly stating the citizenship of the corporate Defendants BWI and 2 Metro One, Plaintiff only provides the principal place of business and not the state of 3 incorporation. “[A] corporation shall be deemed to be a citizen of every State and foreign state 4 by which it has been incorporated and of the State or foreign state where it has its principal place 5 of business.” 28 U.S.C. § 1332(c)(1). Therefore, Plaintiff shall plead the state of incorporation 6 of each corporation named as a Defendant, in addition to the principal place of business. See 7 Tiesing v. 357 Customs Inc., No. CIVS070115GEBEFBPS, 2008 WL 2705553, at *1 (E.D. Cal. 8 July 10, 2008) (“[A] plaintiff must specifically allege the diverse citizenship of all parties . . . she 9 has alleged only that she ‘resid[es]’ in California and that 357 Customs, Inc. is a corporation 10 organized and in good standing under the laws of the State of Florida . . . she did not allege facts 11 regarding its principal place of business.”). 12 Plaintiff states Best Western Palm Court Inn “is a business entity unknown . . . [and] [a]t 13 all times relevant herein, [Best Western] conducted business in the Eastern District of 14 California.” (Compl. ¶ 5.) Plaintiff thus shall be required to allege the citizenship of this 15 Defendant. Kanter, 265 F.at 857 (“Absent unusual circumstances, a party seeking to invoke 16 diversity jurisdiction should be able to allege affirmatively the actual citizenship of the relevant 17 parties.”). 18 The Court notes that the California Secretary of State website indicates that “Best 19 Western Palm Court Hotel, LLC” had a dissolution filed on August 7, 2012.4 Partnerships and 20 LLCs are citizens of every state of which its owners/members are citizens. Johnson v. Columbia 21 Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) (“We therefore join our sister 22 circuits and hold that, like a partnership, an LLC is a citizen of every state of which its 23 owners/members are citizens.”). If Defendant Best Western is an LLC, Plaintiff must plead the 24 a Doe Defendant with an unspecified citizenship is strictly fatal at this stage. See Soliman v. Philip Morris Inc., 311 25 F.3d 966, 971 (9th Cir. 2002) (“The citizenship of fictitious defendants is disregarded for removal purposes and becomes relevant only if and when the plaintiff seeks leave to substitute a named defendant.”). 26 4 Courts may take judicial notice of “a fact that is not subject to reasonable dispute because it … can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). 27 Courts routinely take judicial notice of information contained in the California Secretary of State’s website. See, e.g., Gerritsen v. Warner Bros. Ent. Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015); Applied Underwriters, Inc. 1 citizenship of all members. “[T]o properly establish diversity jurisdiction ‘with respect to a 2 limited liability company, the citizenship of all of the members must be pled.’ ” Cartessa 3 Aesthetics LLC v. Aesthetics Biomedical Inc., No. CV-19-05827-PHX-DWL, 2019 WL 4 6875379, at *1 (D. Ariz. Dec. 17, 2019) (emphasis added by quoting source) (quoting NewGen, , 5 840 F.3d at 611); Amalgamated Leasing & Trading, Inc. v. Sumber Mas, LLC, No. 6 CV1503246TJHFFMX, 2015 WL 13047918, at *1 (C.D. Cal. June 2, 2015) (“Plaintiffs alleging 7 diversity jurisdiction where a party is a limited liability company must allege the citizenship of 8 all of the company’s members.” (citing Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 9 894, 899 (9th Cir. 2005)); Bender v. Yates, No. 23CV485-L-DEB, 2023 WL 2583277, at *1–2 10 (S.D. Cal. Mar. 17, 2023) (“The Complaint does not provide any information regarding the 11 membership of either of the two limited liability company Defendants [and] [b]ecause Plaintiffs 12 do not properly allege citizenship of any of the parties, they have not alleged complete diversity 13 as required for subject matter jurisdiction under 28 U.S.C. § 1332(a).”). 14 Accordingly, Plaintiff shall, to the best of his ability, allege the citizenship of the 15 individual Defendants Galen Carrol and Rita Garcia; Defendants BWI, and Metro One, by 16 identifying their principal place of business and state of incorporation; and shall allege the 17 citizenship of Best Western, including each member of the company if an LLC or partnership. 18 See Rivera v. Countrywide Home Loans, No. CV 15-6086-GW (FFMX), 2015 WL 12781238, at 19 *2 (C.D. Cal. Nov. 12, 2015) (“Plaintiff alleges that Countrywide is ‘a business or corporation 20 organized under Federal and state law and headquartered in Charlotte, North Carolina,’ . . . and 21 Cartozian and Associates is ‘a business of unknown organization doing business in Los Angeles 22 County California,’ [however,] [i]n order for the Court to determine whether diversity 23 jurisdiction exists, Plaintiff must state what type of entity Countrywide is, what type of entity 24 Cartozian and Associates is, and allege each entity's citizenship accordingly [and] [f]or example, 25 if either entity is a corporation, Plaintiff must state so, and further state the entity's place of 26 incorporation and principal place of business.”); United Prod. & Tech. Ltd. v. Above Edge, LLC, 27 No. CV212661DMGAFMX, 2023 WL 2661174, at *2 (C.D. Cal. Feb. 3, 2023) (“Rule 8 requires 1 citizenship of each party, and thus Plaintiff was required to allege the citizenship of Qiu—and 2 any other members of the partnership—in its original pleadings [and the] failure to do so renders 3 the Complaint defective on its face.”); Kanvick v. Braunworth, No. 316CV00053RCJVPC, 2016 4 WL 5346957, at *2 (D. Nev. Aug. 30, 2016) (“To establish diversity jurisdiction, plaintiff must 5 expressly allege the state citizenship of each defendant, not only their state of residence and 6 United States citizenship.”) (emphasis in original); Pigg v. Gamble, No. C-12-5009 TEH PR, 7 2012 WL 5464624, at *2 (N.D. Cal. Nov. 8, 2012) (“In order to sufficiently allege diversity 8 jurisdiction, Plaintiff must specify the state of citizenship for each individual and business he is 9 suing.”). 10 The Court shall grant leave to amend to correct the deficiencies identified above that 11 preclude finding subject matter jurisdiction. See 19th Cap. Grp., LLC v. 3 GGG's Truck Lines, 12 Inc., No. CV 18-2493 PA (RAOX), 2018 WL 6219886, at *2-3 (C.D. Cal. Apr. 3, 2018) 13 (Plaintiffs must identify the citizenship of each member of Element LLC to adequately allege the 14 citizenship of Element LLC . . . Despite these deficiencies a district court may, and should, grant 15 leave to amend when it appears that subject matter jurisdiction may exist, even though the 16 complaint inadequately alleges jurisdiction.”). 17 If Plaintiff chooses to file an amended complaint that addresses the jurisdictional issues 18 above, Plaintiff shall consider the Court’s findings below. Again, while the Court does not yet 19 proceed to a recommendation to dismiss Plaintiff’s causes of action because of the threshold 20 jurisdictional deficiencies, even if Plaintiff did appropriately plead diversity jurisdiction, the 21 Court additionally finds below that the complaint fails to state a cognizable claim, and if the 22 Court were to make a recommendation based on the current complaint as pled, the Court would 23 recommend the complaint be dismissed. 24 B. Plaintiff has not Stated a Claim for a Bane Act Violation 25 Plaintiff’s first cause of action is for violation of California’s Bane Act, brought against 26 the Defendant Modesto Police Officers, i.e. Defendants Doe 1 and Doe 2. (Compl. ¶ 39-48.) 27 Plaintiff alleges that the Defendant police officers interfered or attempted to interfere, through 1 the U.S. Constitution, the California Constitution, and other California law. (Compl. ¶ 40.) 2 Plaintiff alleges that by such threats, intimidation, and coercion, Plaintiff reasonably believed 3 that if he exercised his right against unlawful seizure and entry, Doe 1 and Doe 2 would commit 4 violence against him or his property. (Compl. ¶ 41.) 5 1. Bane Act Generally 6 California Civil Code § 52.1 provides a cause of action for violations of constitutional 7 and statutory rights. McFarland v. City of Clovis, 163 F. Supp. 3d 798, 806 (E.D. Cal. 2016) 8 (citing Rivera v. County of L.A., 745 F.3d 384, 393 (9th Cir.2014)). “The essence of a § 52.1 9 claim is that ‘the defendant, by the specified improper means (i.e., threats, intimidation or 10 coercion), tried to or did prevent the plaintiff from doing something he or she had the right to do 11 under the law or to force the plaintiff to do something that he or she was not required to do under 12 the law.’ ” McFarland, 163 F. Supp. 3d at 806 (quoting Jones v. Kmart Corp., 17 Cal.4th 329, 13 334, 70 Cal.Rptr.2d 844, 949 P.2d 941 (1998); Shoyoye v. County of L.A., 203 Cal.App.4th 947, 14 955–56, 137 Cal.Rptr.3d 839 (2012)). “Therefore, there are two distinct elements for a § 52.1 15 claim: (1) intentional interference or attempted interference with a state or federal constitutional 16 or legal right, and (2) the interference or attempted interference was by threats, intimidation or 17 coercion.” McFarland, 163 F. Supp. 3d at 806 (citing Allen v. City of Sacramento, 234 18 Cal.App.4th 41, 67, 183 Cal.Rptr.3d 654 (2015)). 19 The Bane Act was enacted in response to the increasing incidence of hate crimes in 20 California. Bender v. Cnty. of Los Angeles, 217 Cal. App. 4th 968, 977, 159 Cal. Rptr. 3d 204, 21 212 (2013); Reese v. Cnty. of Sacramento, 888 F.3d 1030, 1040 (9th Cir. 2018). “The Bane Act 22 civilly protects individuals from conduct aimed at interfering with rights that are secured by 23 federal or state law, where the interference is carried out ‘by threats, intimidation or coercion.’ ” 24 Reese, 888 F.3d at 1040 (citation omitted). 25 In Cornell, the California Court of Appeal found that “[p]roperly read, the statutory 26 phrase ‘threat, intimidation or coercion’ serves as an aggravator justifying the conclusion that the 27 underlying violation of rights is sufficiently egregious to warrant enhanced statutory remedies, 1 Cal. Rptr. 3d 356, 383 (2017). “Accordingly, Cornell held that ‘the egregiousness required by 2 Section 52.1 is tested by whether the circumstances indicate the arresting officer had a specific 3 intent to violate the arrestee’s right to freedom from unreasonable seizure.’ ” Reese v. Cnty. of 4 Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018) (quoting Cornell, 225 Cal. Rptr. 3d at 383-84). 5 Based on Cornell, the Ninth Circuit “dr[e]w two conclusions as to the necessary showing for an 6 excessive force claim under the Bane Act[:] First, the Bane Act does not require the ‘threat, 7 intimidation or coercion’ element of the claim to be transactionally independent from the 8 constitutional violation alleged[;] . . . Second, the Bane Act requires a ‘a specific intent to violate 9 the arrestee’s right to freedom from unreasonable seizure.’ ” Reese, 888 F.3d at 1043 (quoting 10 Cornell, 225 Cal.Rptr.3d at 382–83). 11 “[F]ederal courts in California have found that a threat of arrest from law enforcement 12 can constitute ‘coercion’ under the Bane Act, even without a threat of violence.” Adjaye v. 13 White, No. CV 20-8940-JGB(E), 2021 WL 4353101, at *8 (C.D. Cal. July 1, 2021) (quoting 14 Cuviello v. City of Vallejo, 2020 WL 6728796, at *8); see also Black Lives Matter, 398 F. Supp. 15 3d at 680–81 (“[C]ourts have consistently held that a threat of arrest from law enforcement can 16 be ‘coercion’ under the Bane Act, even without a threat of violence per se.” (citing Cuviello v. 17 City of Stockton, No. CIV. S-07-1625 LKK, 2009 WL 9156144, at *17 (E.D. Cal. Jan. 26, 18 2009))). Courts have based these holdings on the reasoning that the “particular coercive power 19 of law enforcement officers has led courts to impose liability when detention, rather than 20 violence, is threatened . . . [as] [t]he threat of detention or arrest is included in the plain meaning 21 of ‘coercion.’ ” Adjaye, 2021 WL 4353101, at *8 (quoting Cuviello, 2009 WL 9156144, at *17) 22 (collecting cases); Black Lives Matter, 398 F. Supp. 3d at 680 (same). 23 2. Plaintiff Fails to State a Bane Act Violation 24 “The Fourth Amendment permits brief investigative stops . . . when a law enforcement 25 officer has ‘a particularized and objective basis for suspecting the particular person stopped of 26 criminal activity.’ ” Navarette v. California, 572 U.S. 393, 396, 134 S. Ct. 1683, 1687, 188 L. 27 Ed. 2d 680 (2014) (quoting United States v. Cortez, 449 U.S. 411, 417–418, 101 S.Ct. 690, 66 1 suspicion of criminal activity, is a ‘narrowly drawn exception to the probable cause requirement 2 of the Fourth Amendment.’ ” United States v. Dudley, No. 220CR00037GMNNJK, 2021 WL 3 2793854, at *5 (D. Nev. Apr. 8, 2021) (quoting Terry v. Ohio, 392 U.S. 1, 26 (1968)); see also 4 People v. Souza, 9 Cal. 4th 224, 231, 885 P.2d 982 (1994) (“A detention is reasonable under the 5 Fourth Amendment when the detaining officer can point to specific articulable facts that, 6 considered in light of the totality of the circumstances, provide some objective manifestation that 7 the person detained may be involved in criminal activity.”). 8 Assuming there was an investigatory stop, detention, or seizure,5 the Court finds no Bane 9 Act violation alleged. Plaintiff specifically alleges that the security guard called the Modesto 10 police department to report that someone was sleeping in a van in the parking lot of Best 11 Western. (Id. at ¶ 22.) At 10:45 p.m., the police shined lights into the van and said “We know 12 you’re in there, Mr. Turner. Get Out!” (Id. at ¶ 23) A short while later, the police stated they 13 would break into the vehicle if necessary. Plaintiff prayed they would stop yelling and would go 14 away, but upon the threat, put on a shirt and exited the vehicle. (Id. at ¶ 24.) Plaintiff explained 15 he was working on his phone and fell asleep. The officers told Plaintiff he could not sleep in his 16 van. Plaintiff explained he was a registered guest. The officers never checked identification, 17 never searched the van, and did not search Plaintiff. However, Plaintiff claims he feared 18 violence if he did not get out of the van. Plaintiff states the encounter lasted about five (5) 19 minutes, and that the officers said he could not go back to his van. 20 In addition to the allegation that the security guard called the police department, Plaintiff 21 also alleges the police officers told Plaintiff they had a report of someone sleeping in a van. (Id. 22 at ¶ 9.) Plaintiff alleges the police officers told Plaintiff he couldn’t sleep in his van, told 23 Plaintiff that this was private property, and Plaintiff questions: “Did the individual Defendant 24 police officers somehow think Plaintiff . . . was trespassing?” (Id. at ¶ 24.) At one point in the 25 complaint, Plaintiff states Defendants knew or should have known that a registered guest 26 5 “[M]ere police questioning does not constitute a seizure.” Fla. v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389 (1991) “[E]ven when officers have no basis for suspecting a particular individual, they 27 may generally ask questions of that individual . . . ask to examine the individual’s identification . . . and request consent to search his or her luggage . . . as long as the police do not convey a message that compliance with their 1 sleeping in a vehicle registered with the hotel is not a crime; and Defendants knew or should 2 have known that no reasonable person would have called the Modesto Police. (Id. at ¶ 57.) 3 Plaintiff alleges in the factual allegation section that Doe 1 and Doe 2 lacked reasonable and 4 articulable suspicion to conduct the investigation. (Id. at ¶ 23.) 5 “[R]easonable suspicion exists when an officer is aware of specific, articulable facts 6 which, when considered with objective and reasonable inferences, form a basis for particularized 7 suspicion.” United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (emphasis 8 in original); see also . “A detention is reasonable under the Fourth Amendment when the 9 detaining officer can point to specific articulable facts that, considered in light of the totality of 10 the circumstances, provide some objective manifestation that the person detained may be 11 involved in criminal activity.” People v. Souza, 9 Cal. 4th 224, 231, 885 P.2d 982 (1994). 12 “A traffic stop is lawful at its inception if it is based on a reasonable suspicion that any 13 traffic violation has occurred, even if it is ultimately determined that no violation did occur.” 14 Brierton v. Dep’t of Motor Vehicles, 130 Cal. App. 4th 499, 510, 30 Cal. Rptr. 3d 275, 281 15 (2005) (emphasis in original) (citations omitted)); see also People v. Wells, 38 Cal. 4th 1078, 16 1082, 136 P.3d 810, 812 (2006) (“[A]n officer may stop and detain a motorist on reasonable 17 suspicion that the driver has violated the law.”) (collecting cases). A parking violation may 18 provide officers with reasonable suspicion to conduct [an] investigatory stop. See United States 19 v. Alvarado, 763 F. App'x 609, 611 (9th Cir. 2019) (“The district court correctly concluded that 20 the officers had reasonable suspicion to conduct an investigatory stop when they seized Alvarado 21 . . . [as] [t]he officers had reasonable suspicion that Alvarado was committing an ongoing 22 parking violation based on a tip demonstrating ‘sufficient indicia of reliability.’ ” (quoting 23 Navarette v. California, 572 U.S. 393, 397–401, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014); citing 24 United States v. Choudhry, 461 F.3d 1097, 1101–02 (9th Cir. 2006))).6 Alvarado involved the 25 6 See People v. Bennett, 197 Cal. App. 4th 907, 916, 128 Cal. Rptr. 3d 595, 601–02 (2011) (“On appeal, the Ninth Circuit [in Choudhry] held the parking violation justified the investigatory stop . . . At the outset, the Ninth Circuit 26 rejected Choudhry's distinction between criminal traffic violations and civil traffic violations.”); Choudhry, 461 F.3d at 1101–02 (“[Whren] held that a traffic violation was sufficient to justify an investigatory stop, regardless of 27 whether (i) the violation was merely pretextual . . . (ii) the stop departed from the regular practice of a particular precinct . . . or (iii) the violation was common and insignificant . . [t]hus, under Whren, so long as Officers Silver 1 following allegations: 2 The tipster provided his name and phone number to the dispatcher, and reported a suspicious vehicle––a green Honda Accord––in a 3 residential cul-de-sac. When the officers arrived at the specified location, they found a car closely matching the description and 4 location provided by the tipster, parked adjacent to a narrow length of curb between two driveways. The tipster also provided specific 5 allegations of ongoing, observable criminal activity––that the car was parked in a red zone. The officers were not required to 6 corroborate that there was an ongoing parking violation before conducting the investigatory stop. See United States v. Williams, 7 846 F.3d 303, 309–10 (9th Cir. 2016) (concluding there was reasonable suspicion because the officers were able to verify a tip 8 regarding the make, model, and location of a car, even though they did not verify the allegations of ongoing, observable criminal 9 activity prior to the stop). 10 Alvarado, 763 F. App’x at 611. 11 Based on the relevant legal authority, whether construed as a call about a trespass, a 12 parking violation, or other report from the security guard about a guest violating a hotel policy 13 such as one against camping or sleeping in the hotel parking lot, the Court finds no Bane Act 14 violation because the police officers, Doe 1 and Doe 2, were made aware of specific, articulable 15 facts which, when considered with objective and reasonable inferences, formed a basis for 16 particularized suspicion of a crime. See United States v. Mati, 466 F. Supp. 3d 1046, 1054 (N.D. 17 Cal. 2020) (“Parking violations and other traffic violations are sufficient to establish reasonable 18 suspicion.” (citing Choudhry, 461 F.3d at 1098)); United States v. Coleman, 518 F. App'x 561 19 (9th Cir. 2013) (“Based on the totality of the circumstances, the officers had reasonable suspicion 20 to believe Coleman was trespassing or about to trespass on private property.”); United States v. 21 Parker, 919 F. Supp. 2d 1072, 1079 (E.D. Cal. 2013); United States v. Sanders, 95 F. Supp. 3d 22 1274, 1281 (D. Nev. 2015) (“Even reasonable suspicion of a parking violation can justify an 23 investigatory stop of a vehicle.” (citing Choudhry, 461 F.3d 1097, 1101)); Coleman v. Hubbard, 24 No. 6:11-CV-6022-AA, 2013 WL 3047306, at *3 (D. Or. June 15, 2013) (“[T]he undisputed 25 evidence establishes that Officer Hubbard had reasonable suspicion to detain plaintiffs . . . 26 Officer Hubbard was dispatched to the cemetery after receiving a report of potential trespass and 27 under the Fourth Amendment . . . Choudhry . . . argues that in California, parking laws are distinct from other traffic laws because of California's separate civil-administrative scheme for enforcing parking penalties [but] find [the] 1 sexual activity, and that Officer Hubbard observed plaintiff's vehicle in the cemetery, parked as 2 described in the report.”). 3 The Court finds the fact Plaintiff registered the vehicle with the hotel has no bearing on 4 whether the officers had reasonable suspicion of a trespass or other crime. See Gonzalez v. City 5 of Huntington Beach, 843 F. App’x 859, 862 (9th Cir. 2021) (“Looking at the ‘totality of the 6 circumstances,’ the Officers had reasonable suspicion that Gonzalez trespassed on Scafuto's 7 property . . . Specifically, based on Scafuto's claim that Gonzalez trespassed on his property and 8 Scafuto's identification of Gonzalez, the Officers had ‘a particularized and objective basis’ 9 sufficient to justify stopping Gonzalez . . . [and] [t]his is true even assuming that it was a legal 10 impossibility for Gonzalez to have trespassed upon Scafuto’s backyard.”) (citations omitted); 11 Easley v. Cnty. of Santa Clara, 702 F. App'x 552, 554 (9th Cir. 2017) (“Deputy Wallace had 12 reasonable suspicion to briefly detain Easley for investigative purposes when he observed his 13 vehicle parked on private property where Easley admitted that he did not know the owner, 14 appeared to be under the influence, and where burglaries had recently been reported.”); Glass v. 15 Robinson, No. CV-19-04883-PHX-ROS, 2022 WL 252395, at *3 (D. Ariz. Jan. 27, 2022) 16 (“Robinson at least had reasonable suspicion Glass had committed trespass and DUI. That 17 reasonable suspicion meant Robinson was permitted to use some force to prevent Glass from 18 leaving the scene during the Terry stop.”). 19 Plaintiff concedes he was sleeping in his van in the hotel parking lot at 10:45 p.m.; 20 specifically alleges that the security guard called the police to report such fact; and therefore the 21 police officers had reasonable suspicion to conduct an investigation of a reported trespass. Even 22 though a vehicle or guest may be registered at a hotel, that does not mean the guest is allowed to 23 do whatever they please in the parking lot in their vehicle, or that a hotel security guard is not 24 allowed to report a person sleeping in the vehicle of a hotel parking lot. See Allred v. Harris, 14 25 Cal. App. 4th 1386, 1390, 18 Cal. Rptr. 2d 530 (1993) (“[A]s a tenant, had a possessory interest 26 in the parking lot and walkways, had the landlord's specific authorization to take steps necessary 27 for the security of the parking areas and was affected by the defendants' activities which were 1 946 (N.D. Cal. 2015) (the general rule is that “landowners and tenants have a right to exclude 2 persons from trespassing on private property; the right to exclude persons is a fundamental 3 aspect of private property ownership.” (quoting Allred, 14 Cal. App. 4th at 1390)); Rakas v. 4 Illinois, 439 U.S. 128, 143 n.12, 99 S. Ct. 421, 430, 58 L. Ed. 2d 387 (1978) (“One of the main 5 rights attaching to property is the right to exclude others.”). In other words, even though 6 Plaintiff claims that a guest sleeping in a vehicle may not be a crime, a hotel has the right to 7 restrict hotel guests from camping in their vehicles in the parking lot, or restricting the number of 8 people or cars associated with a hotel room, or limiting the type of activities allowed in the hotel 9 or the parking lot, among other things.7 10 The Court further finds that considering the investigatory stop was based on reasonable 11 suspicion, the request to exit the vehicle and threat to break into the vehicle if Plaintiff did not 12 comply, do not state a Bane Act violation. 13 “The touchstone of our analysis under the Fourth Amendment is always the 14 reasonableness in all the circumstances of the particular governmental invasion of a citizen's 15 personal security.” United States v. Williams, 419 F.3d 1029, 1031–32 (9th Cir. 2005) (quoting 16 Pennsylvania v. Mimms, 434 U.S. 106, 108–09, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977)). 17 “Whether a seizure is reasonable turns ‘on a balance between the public interest and the 18 individual's right to personal security free from arbitrary interference by law officers.’ ” 19 20 7 In this regard, and as relevant to the negligence claim, “[a]lthough they are not insurers of safety, it is undisputed that owners or possessors of land, and particularly innkeepers, have a duty of care to protect invitees or tenants from 21 the reasonably foreseeable criminal or tortious conduct of third persons.” Gray v. Kircher, 193 Cal. App. 3d 1069, 1072–73, 236 Cal. Rptr. 891, 892–93 (Ct. App. 1987) (collecting cases). Therefore, the hiring of the security guard, 22 and enforcement of policies or reporting of a person sleeping in their vehicle in the hotel parking lot may be a part of the duty to protect all patrons of the hotel. See Delgado v. Trax Bar & Grill, 36 Cal. 4th 224, 229, 113 P.3d 1159, 23 1160–61 (2005) (“It is established that business proprietors such as shopping centers, restaurants, and bars owe a duty to their patrons to maintain their premises in a reasonably safe condition, and that this duty includes an 24 obligation to undertake reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.”). “The existence of such a duty is a question 25 of law to be determined on a case-to-case basis . . . after consideration of a number of factors, including ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's 26 conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and 27 prevalence of insurance for the risk involved.’ ” Gray v. Kircher, 193 Cal. App. 3d 1069, 1072–73, 236 Cal. Rptr. 891, 892–93 (Ct. App. 1987) (citations omitted). 1 Williams, 419 F.3d at 1031 (quoting Mimms, 434 U.S. at 109). 2 “[I]t is well established that an officer effecting a lawful traffic stop may order the driver 3 and the passengers out of a vehicle.” Williams, 419 F.3d at 1030; see Mimms, 434 U.S. at 111. 4 As the Supreme Court explained: 5 [W]e are asked to weigh the intrusion into the driver’s personal liberty occasioned not by the initial stop of the vehicle, which was 6 admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis. 7 The driver is being asked to expose to view very little more of his person than is already exposed. The police have already lawfully 8 decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver's seat of 9 his car or standing alongside it. Not only is the insistence of the police on the latter choice not a “serious intrusion upon the sanctity 10 of the person,” but it hardly rises to the level of a “ ‘petty indignity.’ ” Terry v. Ohio, supra, 392 U.S. at 17, 88 S.Ct. at 1877. 11 What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety. 12 13 Mimms, 434 U.S. at 111. 14 Therefore, for the above explained reasons and based on Plaintiff’s allegations, the Court 15 finds no Bane Act violation. See United States v. Ngumezi, 980 F.3d 1285, 1289 (9th Cir. 2020) 16 (“Ordering a driver out of a car is indeed an ‘intrusion into the driver’s personal liberty’—albeit 17 one that the Court in Mimms described as a ‘de minimis’ intrusion that ‘hardly rises to the level 18 of a ‘petty indignity.’ ” (quoting Mimms, 434 U.S. at 111)); Williams, 419 F.3d at 1033 (“We 19 are convinced that in this case the continuing importance of, and the public interest in, promoting 20 officer safety outweighs the marginal intrusion on personal liberty.”). 21 C. Intentional Infliction of Emotion Distress Claim 22 Plaintiff’s second cause of action is for intentional infliction of emotional distress against 23 the Modesto police officers, Doe 1 and Doe 2, only. (Compl. ¶¶ 49-55.) Plaintiff alleges 24 Defendants Doe 1 and Doe 2 knew or should have known Plaintiff was susceptible to suffering 25 severe emotional distress from the actions taken against him; that Defendants’ actions were 26 malicious, oppressive, and/or in reckless disregard of Plaintiff’s constitutional rights; shocked 27 the conscience; and caused Plaintiff to suffer severe emotional distress. (Compl. ¶¶ 50-52.) 1 law are: “(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of 2 the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and 3 proximate causation of the emotional distress.” Wong v. Tai Jing, 189 Cal.App.4th 1354, 1376 4 (2010) (quoting Agarwal v. Johnson, 25 Cal.3d 932, 946 (1979)); see also Adom v. City of Los 5 Angeles, No. 521CV00711JFWKES, 2023 WL 3958913, at *18 (C.D. Cal. May 17, 2023). 6 Conduct is “outrageous if it is ‘so extreme as to exceed all bounds of that usually tolerated in a 7 civilized community.’ ” Simo v. Union of NeedleTrades, Industrial & Textile Employees, 322 8 F.3d 602, 622 (9th Cir. 2002) (quoting Saridakis v. United Airlines, 166 F.3d 1272, 1278 (9th 9 Cir. 1999)). The emotional distress must be “of such a substantial quantity or enduring quality 10 that no reasonable man in a civilized society should be expected to endure it.” Simo, 322 F.3d at 11 622. 12 Based on the Court’s findings in the previous section concerning reasonable suspicion 13 and the ability of a law enforcement officer to order a person out of a vehicle, as well as 14 Plaintiff’s generalized and conclusory allegations regarding emotional distress, the Court finds 15 Plaintiff’s complaint fails to state a claim for intentional infliction of emotional distress. See 16 Raudelunas v. City of Vallejo, No. 221CV00394KJMJDP, 2022 WL 329200, at *11 (E.D. Cal. 17 Feb. 3, 2022) (“The court assumes all factual allegations are true and construes them in the light 18 most favorable to Mr. Raudelunas and finds Officer Brown’s actions were not so extreme as to 19 exceed all bounds of that usually tolerated in a civilized society . . . Officer Brown followed Mr. 20 Raudelunas after he had fled the scene of an accident; when Mr. Raudelunas exited his vehicle, 21 Officer Brown directed Mr. Raudelunas to ‘get on the ground’ and when Mr. Raudelunas did not 22 comply, she deployed her taser one time, causing Mr. Raudelunas to fall to the ground . . . 23 Because Mr. Raudelunas does not allege actions that constitute ‘outrageous conduct’ as a matter 24 of law . . .the court dismisses his intentional infliction of emotional distress claim with leave to 25 amend, if possible within the confines of Rule 11.”); Mimms, 434 U.S. at 111); Williams, 419 26 F.3d at 1033; Choudhry, 461 F.3d at 1098; Gonzalez, 843 F. App’x at 862; Coleman v. Hubbard, 27 No. 6:11-CV-6022-AA, 2013 WL 3047306, at *4 (D. Or. June 15, 2013) (“Officer Hubbard's 1 toward plaintiffs does not constitute outrageous conduct sufficient to support an IIED claim.”). 2 D. Negligence or Gross Negligence Claim 3 Plaintiff’s third cause of action is for negligence or gross negligence against Defendants 4 Best Western, BWI, Metro One, Doe 3 (the security guard), and Rita Garcia. (Compl. ¶¶ 56-61.) 5 Plaintiff generally alleges that Defendants had a duty to use reasonable care to Plaintiff; 6 Defendants knew or should have known Plaintiff had the right to quiet enjoyment as a duly 7 registered guest; that Defendants knew or should have known that a registered guest sleeping in a 8 vehicle registered with the hotel is not a crime; and Defendants knew or should have known that 9 no reasonable person would have called the Modesto Police. (Compl. ¶ 57.) Plaintiff further 10 alleges Defendants demonstrated a lack of any care or an extreme departure from what a 11 reasonably careful person would do in the same situation to prevent harm to Plaintiff, and the 12 Defendants failed to act responsibly and appropriately. (Compl. ¶ 58.) 13 “Under California law, ‘[t]he elements of negligence are: (1) defendant’s obligation to 14 conform to a certain standard of conduct for the protection of others against unreasonable risks 15 (duty); (2) failure to conform to that standard (breach of duty); (3) a reasonably close connection 16 between the defendant’s conduct and resulting injuries (proximate cause); and (4) actual loss 17 (damages).’ ” Corales v. Bennett, 567 F.3d 554, 572 (9th Cir. 2009) (quoting McGarry v. Sax, 18 158 Cal.App.4th 983, 994, 70 Cal.Rptr.3d 519 (2008) (internal quotations omitted)). “Under the 19 doctrine of respondeat superior, an employer may be held vicariously liable for torts committed 20 by an employee within the scope of employment.” Mary M. v. City of Los Angeles, 54 Cal.3d 21 202, 208 (1991); accord Robinson v. Solano Cty., 278 F.3d 1007, 1016 (9th Cir. 2002). 22 As noted above, “[a]lthough they are not insurers of safety, it is undisputed that owners 23 or possessors of land, and particularly innkeepers, have a duty of care to protect invitees or 24 tenants from the reasonably foreseeable criminal or tortious conduct of third persons.” Gray, 193 25 Cal. App. 3d at 1072–73, 236 Cal. Rptr. 891, 892–93 (Ct. App. 1987) (collecting cases). 26 Therefore, the hiring of the security guard, and enforcement of policies or reporting of a person 27 sleeping in their vehicle in the hotel parking lot may be a part of the duty to protect all patrons of 1 (2005) (“It is established that business proprietors such as shopping centers, restaurants, and bars 2 owe a duty to their patrons to maintain their premises in a reasonably safe condition, and that this 3 duty includes an obligation to undertake reasonable steps to secure common areas against 4 foreseeable criminal acts of third parties that are likely to occur in the absence of such 5 precautionary measures.”); Allred, 14 Cal. App. 4th at 1390 (“[A]s a tenant, had a possessory 6 interest in the parking lot and walkways, had the landlord's specific authorization to take steps 7 necessary for the security of the parking areas and was affected by the defendants' activities 8 which were aimed at disrupting his normal business activities.”). 9 In any event, Plaintiff’s allegations are insufficient to state a claim for negligence against 10 the Defendants named as to this cause of action. There are no allegations concerning any Best 11 Western employees before the security guard, Doe 3, called the police department. The only 12 specific allegations pertaining to Rita Garcia is that she never exercised the civility or courtesy to 13 communicate with Plaintiff the morning following the incident, when Plaintiff attempted to 14 complain. (Compl. ¶ 32.) Plaintiff’s conclusory allegation of negligence or gross negligence is 15 insufficient to state a plausible claim against the Defendants named as to this cause of action. 16 E. Negligent Hiring, Supervision, Or Retention Of An Employee 17 Plaintiff’s fourth cause of action is for negligent hiring, supervision, or retention of an 18 employee against Defendants Best Western and Metro One. Plaintiff proffers California law on 19 negligent hiring, supervision, or retention of an employee makes an employer directly liable for 20 an employee’s negligence, recklessness, or intentional wrongful acts when the employer knew or 21 should have known that the employee was a risk to others. (Compl. ¶ 63.) Plaintiff alleges 22 Defendants knew or should have known that Defendants Garcia and Doe 3 were unfit or 23 incompetent to perform the work for which they were hired. (Compl. ¶ 64.) Plaintiff further 24 alleges Defendants knew or should have known that Defendants Garcia and Doe 3 were unfit or 25 incompetent and that it created a particular risk of harm to others. (Compl. ¶ 65.) 26 “Ordinarily, ‘[a]n employer may be liable to a third person for the employer's negligence 27 in hiring or retaining an employee who is incompetent or unfit.” Dent v. Nat'l Football League, 1 Cal.App.4th 1133, 91 Cal.Rptr.3d 864, 868 (2009)). “To establish liability, a plaintiff must 2 demonstrate the familiar elements of negligence: duty, breach, proximate causation, and 3 damages.” Id. “There are ‘two elements necessary for a duty to arise in negligent hiring and 4 negligent retention cases—the existence of an employment relationship and foreseeability of 5 injury.’ ” Dent, 902 F.3d at 1122 (quoting Phillips, 91 Cal.Rptr.3d at 870-71). 6 For similar reasons as to why the underlying negligence claim fails, Plaintiff fails to state 7 a claim for negligent hiring or supervisions. Additionally, while Plaintiffs’ complaint sets forth 8 conclusory statements and the elements of a cause of action, there are no supporting facts alleged 9 to infer that these Defendants knew or should have known that Doe 3 or Rita Garcia were unfit 10 or incompetent for their positions. “Threadbare recitals of the elements of a cause of action, 11 supported by mere conclusory statements” are insufficient to state a cognizable claim. Iqbal, 556 12 U.S. at 678. 13 F. California Unfair Competition Law 14 Plaintiff’s fifth cause of action is for violation of the California Unfair Competition Law 15 against Defendants Best Western, BWI, and Metro One. 16 Plaintiff proffers the UCL claim is “premised on an ‘unfair’ business act or practice.” 17 (Compl. 17.) Plaintiff generally alleges the acts, omissions, misrepresentations, practices and 18 non-disclosures of Defendants as alleged in the complaint, constituted a course of conduct of 19 unfair competition by means of unfair, unlawful and/or fraudulent business acts or practices 20 within the meaning of California Business and Professions Code § 17200, et seq. Plaintiff 21 argues the Defendants’ acts and practices are unfair to consumers/guests of Best Western, under 22 Section 17200, et seq.; are fraudulent or deceptive under the law; and “[t]he unfair business 23 practices of Defendants as described above [in the complaint] caused Plaintiff to sustain 24 injuries/damages.” (Compl. ¶ 73.) 25 The Court finds Plaintiff has failed to state a claim for violation of California’s unfair 26 competition law. “California's UCL prohibits unfair competition by means of any unlawful, 27 unfair or fraudulent business practice.” Birdsong v. Apple, Inc., 590 F.3d 955, 959 (9th Cir. 1 v. Ford Motor Co., 567 F.3d 1120, 1127 (9th Cir.2009). 2 “To have standing under California's UCL, as amended by California's Proposition 64, 3 plaintiffs must establish that they (1) suffered an injury in fact and (2) lost money or property as 4 a result of the unfair competition.” Birdsong, 590 F.3d at 959 (citing Cal. Bus. & Prof. Code § 5 17204; Walker v. Geico Gen. Ins. Co., 558 F.3d 1025, 1027 (9th Cir.2009)). “In approving 6 Proposition 64, the California voters declared their intent ‘to prohibit private attorneys from 7 filing lawsuits for unfair competition where they have no client who has been injured in fact 8 under the standing requirements of the United States Constitution.’ ” Birdsong, 590 F.3d at 9 959–60 (quoting Buckland v. Threshold Enters., Ltd., 155 Cal.App.4th 798, 814, 66 Cal.Rptr.3d 10 543 (Cal. Ct. App. 2007)). “Thus, to plead a UCL claim, the plaintiffs must show, consistent 11 with Article III, that they suffered a distinct and palpable injury as a result of the alleged 12 unlawful or unfair conduct.” Id. (“The requisite injury must be an invasion of a legally 13 protected interest which is (a) concrete and particularized, and (b) actual or imminent, not 14 conjectural or hypothetical.”). 15 Plaintiff alleges upon information and belief that DOE 3 (Security Guard) and Best 16 Western summoned the police to harass Plaintiff, violating the duty to provide him with 17 peaceful, quite enjoyment of his lodging. However, Plaintiff never alleges the police made any 18 contact with Plaintiff at the hotel room. Plaintiff alleges the police prevented him from returning 19 to his van, but does not allege he was prevented from returning to the hotel room. (Compl. ¶ 28.) 20 Plaintiff told the police officers he would return to the hotel room. (Compl. ¶ 27.) Plaintiff 21 thereafter used the hotel gym facilities after leaving the van and the encounter with police, 22 instead of returning to the room. (Compl. ¶ 27.) Plaintiff then chose to go to a restaurant, then 23 drove to a truck stop, and fell asleep. (Compl. ¶ 27.) Therefore, there is no allegation to support 24 a finding that Plaintiff lost money or property due to the actions of Best Western or Metro One. 25 Plaintiff was never restricted from using the hotel room by these Defendants, and Plaintiff chose 26 to not return to the hotel room. Plaintiff claims he was only dissatisfied with the customer 27 service at checkout, but does not even allege he requested or was refused a refund. 1 Properties, LLC, No. 221CV01304KJMJDP, 2022 WL 1155843, at *1 (E.D. Cal. Apr. 19, 2022) 2 (dismissing claim because plaintiff did “not claim she lost money or property as a result of 3 defendants’ allegedly unlawful actions.”); Ehret v. Uber Techs., Inc., 68 F. Supp. 3d 1121, 1132 4 (N.D. Cal. 2014) (“[S]tanding under the UCL is far narrower than traditional federal standing 5 requirements: ‘[w]e note UCl’s standing requirements appear to be more stringent than the 6 federal standing requirements [as] [w]hereas a federal plaintiff's injury in fact may be intangible 7 and need not involve lost money or property, Proposition 64, in effect, added a requirement that 8 a UCL plaintiff's injury in fact specifically involve lost money or property.’ ” (quoting Troyk v. 9 Farmers Group, Inc., 171 Cal.App.4th 1305, 1348 n. 31, 90 Cal.Rptr.3d 589 (2009))8; Hazel v. 10 Prudential Fin., Inc., No. 22-CV-07465-CRB, 2023 WL 3933073, at *6 (N.D. Cal. June 9, 2023) 11 (“[J]ust because Plaintiffs’ data is valuable in the abstract, and because ActiveProspect might 12 have made money from it, does not mean that Plaintiffs have ‘lost money or property’ as a 13 result.”); Causey v. Portfolio Acquisitions, LLC, No. 2:10-CV-2781-KJM-EFB, 2013 WL 14 246916, at *3 (E.D. Cal. Jan. 22, 2013) (“An absence of facts describing the money or property 15 allegedly lost is fatal to a plaintiff's Section 17200 claim.”); Kwikset Corp. v. Superior Ct., 51 16 Cal. 4th 310, 323, 246 P.3d 877, 885 (2011) (“Proposition 64 requires that a plaintiff have ‘lost 17 money or property’ to have standing to sue. The plain import of this is that a plaintiff now must 18 demonstrate some form of economic injury.”). 19 Even if Plaintiff did allege economic injury, Plaintiff’s conclusory allegations are 20 insufficient to state a claim against the named Defendants for unfair competition by means of 21 any unlawful, unfair or fraudulent business practice. 22 G. No Causes of Action Specifically Asserted Against Other Defendants 23 While Plaintiff lists the City of Modesto, the Modesto Police Department, and Galen 24 Carrol as Defendants, Plaintiff does not allege any of the five specific causes of action against 25 8 The Court views the issue essentially as a statutory construction issue, or more directly, a statutory eligibility issue. 26 Thus, “[t]he question before the Court is exclusively one of statutory interpretation: did the California Legislature intend to” allow a corporate entity to bring a claim for a Bane Act violation? See Valentine, 804 F. Supp. 2d at 27 1026–27 (“The question before the Court is exclusively one of statutory interpretation: did the California Legislature intend to limit the right of action under the CIPA and the CCCL to in-state plaintiffs?”). 1 these Defendants, nor does Defendant make any specific allegations against these Defendants.9 2 As currently pled, Plaintiff’s complaint does not contain enough factual details to permit the 3 Court to draw the reasonable inference that any of the Defendants are liable for the misconduct 4 alleged. Iqbal, 556 U.S. at 678. Therefore, Plaintiff’s complaint does not state any claim against 5 these Defendants. 6 H. Punitive Damages 7 Under the heading punitive damages, Plaintiff requests punitive damages against the 8 Modesto Police Officers, the Modesto Police Department, and Defendant City of Modesto. 9 (Compl. ¶ 74-77.) Under California law, a plaintiff is entitled to recover exemplary damages to 10 punish a defendant if a plaintiff proves by clear and convincing evidence that the defendant “has 11 been guilty of fraud, oppression, or malice….” Cal. Civ. Code § 3294(a). A request 12 for punitive damages is not a standalone cause of action, it is merely a type of remedy that is 13 dependent upon a viable cause of action. Marroquin v. Pfizer, Inc., 367 F. Supp. 3d 1152, 1168 14 (E.D. Cal. 2019); Bear v. Ohio Dept. of Rehab. & Corr., 156 F. Supp. 3d 898, 907 (N.D. Ohio 15 2016); Carino v. Standard Pac. Corp., 2014 WL 1400853 (E.D. Cal. Apr. 9, 2014); see also Caira 16 v. Offner, 126 Cal. App. 4th 12, 39 n. 20 (2005) (“[T]here is no separate cause of action 17 for punitive damages-they are only ancillary to a valid cause of action.”). Therefore, because 18 Plaintiffs have not alleged sufficient facts to support the underlying claim for each cause of 19 action, Plaintiff is not entitled to punitive damages as to any cause of action. 20 I. Leave to Amend 21 Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so 22 requires.’” Amerisource Bergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) 23 (quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the 24 amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue 25 delay in the litigation; or (4) is futile.” Id. 26 As Plaintiff is proceeding pro se in this action, the Court shall provide him with an 27 9 Plaintiff only mentions the Modesto Police Department, the City of Modesto, and Carrol, in relation to attorneys’ 1 opportunity to correct the deficiencies identified above concerning diversity jurisdiction. 2 Plaintiff shall additionally consider the above legal standards and findings concerning the 3 Court’s view that as currently pled, aside from the issues of diversity jurisdiction, the complaint 4 fails to state a claim. 5 V. 6 CONCLUSION AND ORDER 7 Based on review of the complaint in this action, Plaintiff has not established subject 8 matter jurisdiction, and has failed to state any cognizable claim. Nonetheless, the Court will 9 grant Plaintiff an opportunity to amend the complaint to cure the deficiencies identified in this 10 order. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Plaintiff’s amended complaint 11 should be brief, Fed. R. Civ. P. 8(a), but it must also state what each named defendant did that 12 led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at 678–79. Although 13 accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the 14 speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). Further, Plaintiff may not 15 change the nature of this suit by adding new, unrelated claims in his first amended complaint. 16 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). Finally, 17 Plaintiff is advised that an amended complaint supersedes the original complaint. Lacey v. 18 Maricopa Cnty., 693 F.3d 896, 927. Absent court approval, Plaintiff’s first amended complaint 19 must be “complete in itself without reference to the prior or superseded pleading.” E.D. Cal. 20 L.R. 220. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 1 Based on the foregoing, IT IS HEREBY ORDERED that: 2 1. The Court’s order to show cause issued on May 10, 2023, (ECF No. 6), is 3 DISCHARGED; 4 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a 5 first amended complaint curing the deficiencies identified by the Court in this 6 order; 7 3, The first amended complaint, including attachments, shall not exceed twenty-five 8 (25) pages in length; and 9 4. If Plaintiff fails to file a first amended complaint in compliance with this order, 10 the Court will recommend that this action be dismissed consistent with the 11 reasons stated in this order. 12 3 IT IS SO ORDERED. FA. ee 14 | Dated: _ July 9, 2023 Is UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28