Dyer v. City of Auburn ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DALTON EDWARD DYER, No. 2:21-cv-02182-JAM-JDP 11 Plaintiff, 12 v. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ 13 CITY OF AUBURN, et. al, MOTION TO DISMISS AND DENYING DEFENDANTS’ MOTION TO STRIKE 14 Defendants. 15 16 I. BACKGROUND1 17 This action arises from an October 12, 2018, incident in 18 which Dalton Edward Dyer (“Plaintiff”) alleges City of Auburn 19 Police Officers Joshua Eagan (“Eagan”) and Matthew Nichols 20 (“Nichols”) wrongfully detained, searched, beat, tased, and 21 arrested him. See First Am. Compl. (“FAC”), ECF No. 9. That 22 day, Plaintiff was riding in the passenger seat of a friend’s 23 vehicle when Officer Eagan arrested the friend on a suspected 24 DUI. Id. ¶ 13. After Eagan placed the friend in his patrol 25 vehicle, Plaintiff asked for permission to speak to his friend, 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for May 3, 2022. 1 which Eagan granted. Id. ¶¶ 14-15. Plaintiff approached the 2 back of the vehicle and began talking to his friend. Id. ¶ 15. 3 At that point, Officer Nichols arrived on the scene. Id. ¶ 16. 4 Nichols approached Plaintiff from behind, pushed him up against 5 the patrol car, and starting rifling through his pockets. Id. 6 Nichols then pinned Plaintiff’s hands behind his back as Eagan 7 repeatedly punched him in the face. Id. ¶ 17. Plaintiff cried 8 out various times: “I’m not doing nothing!” Id. ¶¶ 18-19. The 9 two officers then grabbed him by his arms and swung him around. 10 Id. ¶ 19. Eagan deployed his taser twice, hitting both Plaintiff 11 and Nichols and causing both to collapse to the ground. Id. 12 ¶ 20. Thereafter Plaintiff was arrested. Id. ¶ 21. 13 In the months following his arrest, Plaintiff alleges 14 unidentified officers followed him, stationed cars outside of his 15 home, and threatened him on the internet. Id. ¶ 28. Plaintiff 16 was charged with a misdemeanor count for willful resistance, 17 delay, and obstruction of Officers Nichols and Eagan. Id. ¶ 24. 18 That misdemeanor will be dismissed contingent upon Plaintiff 19 obeying all laws through February 10, 2022.2 Id. ¶ 25. 20 This lawsuit followed. See Compl., ECF No. 1. In the 21 operative complaint, Plaintiff asserts seventeen federal and 22 state law claims against the City of Auburn, John Ruffcorn, 23 Joshua Eagan, and Matthew Nichols (“Defendants”). See generally 24 FAC. Before the Court is Defendants’ motion to dismiss and to 25 strike. See Mot., ECF No. 11-1. Plaintiff filed an opposition. 26 See Opp’n, ECF No. 16. Defendants replied. See Reply, ECF No. 27 2 Plaintiff notes in opposition that the charges were in fact 28 dismissed. Opp’n at 4. 1 17. For the reasons set forth below, the Court grants in part 2 and denies in part Defendants’ motion to dismiss and denies 3 Defendants’ motion to strike. 4 5 II. OPINION 6 A. Motion to Strike 7 A Rule 12(f) motion asks the Court to strike portions of a 8 complaint that are “redundant, immaterial, impertinent or 9 scandalous.” Fed. R. Civ. P. 12(f). However, “[m]otions to 10 strike are disfavored and infrequently granted.” Neveu v. City 11 of Fresno, 392 F.Supp.2d 1159, 1170 (E.D. Cal. 2005). It must be 12 “clear that the matter to be stricken could have no possible 13 bearing on the subject matter of the litigation.” Id. Moreover, 14 “courts often require a showing of prejudice by the moving 15 party.” Wynes v. Kaiser Permanente Hosp., No. 2:10-cv-00702-MCE- 16 GGH, 2011 WL 1302916, at *12 (E.D. Cal. Mar. 31, 2011). 17 Here, Defendants move to strike paragraphs 8, 9, and 28 of 18 the operative complaint. Mot. at 14-15. According to 19 Defendants, paragraph 8 concerns “an unrelated lawsuit”; 20 paragraph 9 concerns “an unrelated alleged 2017 incident 21 involving Defendant Nichols while employed with a different 22 agency”; and paragraph 28 alleges “in the months that followed 23 [Plaintiff’s arrest]” he was “harassed by the police.” Id. at 24 14. Defendants contend these paragraphs should be stricken as 25 impertinent because they do not bear sufficient connection to the 26 events here. Id. at 15. 27 Plaintiff counters that all the information in these 28 paragraphs is relevant. Opp’n at 13-15. Specifically, as to 1 paragraph 9, the allegations that Officer Nichols previously shot 2 multiple suspects, shot a police dog, and then tried to cover up 3 this misconduct are relevant to the negligent hiring claim. Id. 4 at 13-14. Additionally, Plaintiff argues these same facts are 5 relevant to “his inclination to use excessive force and to lie, 6 making paragraph 9 relevant to: Counts I, IV, V, VI, VII, VIII, 7 IX, XI XII, and XIV.” Id. at 14. 8 As to paragraphs 8 and 28, Plaintiff contends these are 9 relevant to his intentional infliction of emotional distress 10 (“IIED”) claim. Id. Paragraph 8 references a news article 11 entitled Auburn Police Officer Allegedly Threatens Advocate of 12 Dalton Dyer, Jr. on Administrative Leave, which describes how 13 Eagan followed a supporter of Plaintiff home and displayed a 14 “white power hand signal.” FAC ¶ 8. Paragraph 28 provides: “In 15 the months that followed [Dyer’s] arrest, he was harassed by the 16 police. They would station police cars outside of his home and 17 would tail him when he would drive. An unknown officer even 18 tagged him in a Facebook post on the Placer County Sheriffs 19 Association page in a thinly veiled threat.” Id. ¶ 28. 20 Plaintiff contends these paragraphs provide evidence of 21 Defendants’ extreme and outrageous behavior, an element of an 22 IIED claim. Opp’n at 14. Further, Plaintiff argues the “white 23 power hand signal” allegation is relevant to Eagan’s “motive to 24 not intervene to stop Nichols’ unlawful detention and search, but 25 instead to join in by escalating to violence (Counts I, II, VI, 26 VII, XIII).” Id. at 15. 27 Defendants’ response to these arguments was in the portion 28 of their reply brief that went over the Court’s page limit for 1 reply memoranda. See Order re Filing Requirements at 1, ECF No. 2 3-2; see also Reply at 9-10. Thus, the Court did not consider 3 Defendants’ response. Id. Accordingly, Defendants fail to show 4 that paragraphs 8, 9, and 28 “could have no possible bearing” on 5 the case. See Neveu, 392 F.Supp.2d at 1170. Nor have they shown 6 prejudice resulting from inclusion of these paragraphs. See 7 Wynes, 2011 WL 1302916, at *12. 8 Defendants’ motion to strike is denied. 9 B. Motion to Dismiss 10 1. Legal Standard 11 “To survive a motion to dismiss [under 12(b)(6)], a 12 complaint must contain sufficient factual matter, accepted as 13 true, to state a claim for relief that is plausible on its 14 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 15 quotation marks and citation omitted). While “detailed factual 16 allegations” are unnecessary, the complaint must allege more 17 than “[t]hreadbare recitals of the elements of a cause of 18 action, supported by mere conclusory statements.” Id. In 19 considering a motion to dismiss, the court generally accepts as 20 true the allegations in the complaint and construes the pleading 21 in the light most favorable to the plaintiff. Lazy Y Ranch Ltd. 22 v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). “In sum, for a 23 complaint to survive a motion to dismiss, the non-conclusory 24 ‘factual content,’ and reasonable inferences from that content, 25 must be plausibly suggestive of a claim entitling the plaintiff 26 to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th 27 Cir. 2009). 28 /// 1 2. Analysis: Federal Claims 2 a. First Claim 3 Defendants argue the first Section 1983 claim for 4 unreasonable detention, search, and arrest should be dismissed as 5 against Eagan for insufficient facts. Mot. at 3. 6 “A person ‘subjects’ another to the deprivation of a 7 constitutional right, within the meaning of section 1983, if he 8 does an affirmative act, participates in another's affirmative 9 acts, or omits to perform an act which he is legally required to 10 do that causes the deprivation of which complaint is made.” 11 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (emphasis 12 added). The plaintiff must set forth specific facts as to each 13 individual defendant's causal role in the constitutional 14 deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 15 1988) (“Sweeping conclusory allegations will not suffice.”). 16 Plaintiff insists the following allegations are sufficient 17 to show Eagan participated in Nichol’s unlawful detention, 18 search, and arrest of Plaintiff: while Nichols forcibly pinned 19 Plaintiff’s hands behind his back, Eagan punched Plaintiff in the 20 face. Opp’n at 2 (citing to FAC ¶ 17). Eagan “kept swinging,” 21 and both officers tried to slam Plaintiff down, after which Eagan 22 tased Plaintiff. FAC ¶¶ 18-21. Contrary to Defendants’ 23 insistence otherwise, see Reply at 1-2, these allegations, which 24 the Court must take as true, are sufficient to allege Eagan’s 25 participation in Nichols’ “affirmative acts.” Johnson, 588 F.2d 26 at 743. Thus, Defendants’ argument for dismissal of the first 27 claim as to Eagan fails. 28 Defendants add that any portion of the first claim for which 1 Plaintiff attempts to proceed on a malicious prosecution theory 2 should be dismissed as redundant to the ninth claim for malicious 3 prosecution. Mot. at 4. However, Plaintiff clarifies in 4 opposition that he is not proceeding on a malicious prosecution 5 theory for this claim. Opp’n at 2. Accordingly, the Court 6 grants Defendants’ request to dismiss with prejudice any portion 7 of the first claim grounded in a malicious prosecution theory. 8 Reply at 2. 9 b. Third Claim 10 Defendants seek dismissal of the third Section 1983 claim 11 for a substantive due process violation. Mot. at 4. They argue 12 the officers’ actions here fall squarely within the Fourth 13 Amendment, rendering the Fourteenth Amendment substantive due 14 process claim redundant. Id. (citing to Graham v. Connor, 490 15 U.S. 386, 395 (1989) and Albright v. Oliver, 510 U.S. 266, 273 16 (1994)). 17 Plaintiff does not respond to Defendants’ legal argument 18 that the Fourth Amendment controls here. See Opp’n at 2-3. 19 Instead, he stands on his Fourteenth Amendment claim, insisting 20 his allegations state a substantive due process claim. Id. But 21 that misses the point. Defendants assert that Plaintiff may not 22 bring such a claim in the first instance because the Fourth 23 Amendment governs. Because Plaintiff did not address this legal 24 argument, the third claim is dismissed. See Resnick v. Hyundai 25 Motor America, Inc., Case No. CV 16-00593-BRO (PJWx), 2017 WL 26 1531192, at *22, (C.D. Cal. Apr. 13, 2017) (“Failure to oppose an 27 argument raised in a motion to dismiss constitutes waiver of that 28 argument.”). The Court further finds amendment would be futile 1 and dismissal with prejudice is appropriate. See Eminence Cap., 2 LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) 3 (“Dismissal with prejudice and without leave to amend is not 4 appropriate unless it is clear . . . that the complaint could not 5 be saved by amendment.”). 6 c. Fourth Claim 7 Defendants contend the fourth Section 1983 claim for 8 fabrication of evidence should be dismissed for lack of factual 9 support. Mot. at 4-5. To state a fabrication of evidence claim, 10 the plaintiff must plausibly allege that: “(1) the defendant 11 official deliberately fabricated evidence, and (2) the deliberate 12 fabrication caused the plaintiff's deprivation of liberty.” 13 Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017). Here, 14 Plaintiff asserts Officers Eagan and Nichols falsely claimed that 15 Plaintiff punched Nichols in order to fabricate probable cause to 16 search, detain, and arrest him. Opp’n at 3 (citing to FAC ¶¶ 47- 17 50). That fabrication, Plaintiff insists, caused his deprivation 18 of liberty. Id. However, the Court agrees with Defendants that 19 these conclusory allegations do not plausibly state a fabrication 20 of evidence claim. Reply at 3. In particular, Plaintiff has not 21 clearly set forth facts supporting a causal connection between 22 the fabricated evidence and the deprivation of liberty. See 23 generally FAC. The fourth claim is therefore dismissed without 24 prejudice. See Eminence Cap., LLC, 316 F.3d at 1052. 25 d. Ninth Claim 26 Defendants argue the ninth Section 1983 claim for malicious 27 prosecution should be dismissed for failure to allege favorable 28 termination of the misdemeanor charge. Mot. at 5-6. An element 1 of a malicious prosecution claim is “the prior proceeding . . . 2 was pursued to legal termination favorable to the plaintiff.” 3 McCubbrey v. Veninga, 39 F.3d 1054, 1055 (9th Cir. 1994) 4 (internal citations omitted). Here, Plaintiff has not alleged 5 favorable termination, as the operative complaint states the 6 misdemeanor against him is still ongoing. FAC ¶ 25. Plaintiff 7 concedes as much in opposition and requests leave to amend “to 8 clarify the dismissal has now occurred.” Opp’n at 4. 9 Plaintiff’s ninth claim is therefore dismissed without 10 prejudice.3 See Eminence Cap., LLC, 316 F.3d at 1052. 11 e. Eleventh Claim 12 Defendants contend the eleventh claim for conspiracy 13 pursuant to Sections 1983 and Section 1985 should be dismissed. 14 Mot. at 6-7. As an initial matter, Plaintiff notes he is 15 withdrawing the Section 1985 portion of this claim. Opp’n at 5. 16 The Section 1985 claim is therefore dismissed with prejudice. 17 Turning to the Section 1983 claim, “the plaintiff must state 18 specific facts to support the existence of the claimed 19 conspiracy.” Burns v. County of King, 883 F.2d 819, 821 (9th 20 Cir. 1991) (emphasis added). The parties dispute whether 21 Plaintiff did so here. Mot. at 6; Opp’n at 5. After careful 22 review of the operative complaint, the Court agrees with 23 3 The Court briefly acknowledges the parties’ dispute about 24 whether the Supreme Court’s recent decision in Thompson v. Clark, 142 S.Ct. 1332 (2022) renders amendment of this claim futile. 25 Opp’n at 4; Reply at 4. But because the parties “have not done this issue justice by making what is effectively a passing 26 reference to it in their briefs . . . the Court declines to take 27 it up in that underdeveloped form.” Shen v. Albany Unified Sch. Dist., 3:17-cv-02478-JD, 2018 WL 4053482, at *4 (N.D. Cal. Aug. 28 24, 2018). 1 Defendants that “Plaintiff essentially labeled everything that 2 occurred to him as a conspiracy,” and in doing so, does not 3 clearly set forth specific facts to support the existence of a 4 conspiracy. Reply at 5. Accordingly, the Section 1983 portion 5 of the eleventh claim is dismissed without prejudice. See 6 Eminence Cap., LLC, 316 F.3d at 1052. 7 f. Thirteenth Claim 8 Defendants seek dismissal of the thirteenth claim for 9 failure to intervene pursuant to Sections 1983 and 1986. Mot. at 10 7-8. As an initial matter, Plaintiff notes he is withdrawing the 11 Section 1986 portion of this claim. Opp’n at 7. The Section 12 1986 claim is therefore dismissed with prejudice. 13 “Officers can be held liable for failing to intercede in 14 situations where excessive force is claimed to be employed by 15 other officers only if ‘they had an opportunity to 16 intercede.’” Hughes v. Rodriguez, 31 F.4th 1211, 1223 (9th Cir. 17 2022). The Ninth Circuit has instructed the officer must have 18 had a “realistic opportunity” to intercede. Cunningham v. Gates, 19 229 F.3d 1271, 1290 (9th Cir. 2000). 20 Here, Defendants contend Plaintiff did not allege sufficient 21 facts to state a failure to intervene claim against either Eagan 22 or Nichols. Mot. at 7. Plaintiff, however, points to the 23 following allegations: he had been “respectful and cooperative,” 24 he “had not broken any laws,” and Eagan had intended to allow 25 Dyer to walk home before Nichols arrived. Opp’n at 7 (citing to 26 FAC ¶¶ 15-17, 104). Instead, Eagan joined in Nichol’s search and 27 detention by punching Dyer in the face and continuously throwing 28 punches. Id. (citing to FAC ¶¶ 17, 104, 107). He also deployed 1 his taser. Id. (citing to FAC ¶¶ 18-20, 104-105). For his part, 2 Nichols could have stopped Eagan from continuing to throw punches 3 but did not. Id. (citing to FAC ¶¶ 18-19, 104-105, 107). These 4 allegations are sufficient to show each of the officers had a 5 realistic opportunity to intervene. Cunningham, 229 F.3d at 6 1290. 7 The Court did not consider Defendants’ response, which was 8 in the portion of their reply brief that went over the Court’s 9 page limit for reply memoranda. Order re Filing Requirements at 10 1; see also Reply at 6. Thus, their motion is denied as to the 11 Section 1983 portion of the thirteenth claim. 12 g. Sixteenth Claim 13 Defendants move to dismiss Plaintiff’s sixteenth Monell 14 cause of action for lack of factual support. Mot. at 8-9. 15 Municipalities may be held liable under Section 1983 for 16 constitutional injuries inflicted through a municipal policy or 17 custom. Monell v. Dep' t of Social Servs., 436 U.S. 658, 694 18 (1978). To properly state a Monell claim, allegations in a 19 complaint “may not simply recite the elements . . . but must 20 contain sufficient allegations of underlying facts to give fair 21 notice and to enable the opposing party to defend itself 22 effectively.” AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 23 631, 637 (9th Cir. 2012). 24 The parties vigorously dispute whether Plaintiff’s Monell 25 custom and practice and his failure to train and supervise claims 26 are factually supported. Mot. at 8; Opp’n at 7-8. The Court 27 agrees with Defendants that Plaintiff’s allegations are entirely 28 conclusory and therefore insufficient. See FAC ¶¶ 132-134. 1 Plaintiff asks the Court to infer from his experience alone the 2 existence of a policy or custom. But that is insufficient to 3 state a Monell claim. See e.g., Cain v. City of Sacramento, No. 4 2:17-cv-00848-JAM-DB, 2017 WL 4410116, at *3 (E.D. Cal. Oct. 3, 5 2017) (noting “[d]istrict courts have dismissed complaints where 6 a plaintiff alleged a single incident of unconstitutional conduct 7 as the basis for their Monell claim”). 8 So too with Plaintiff’s failure to train, supervise, and 9 discipline claims: the allegations are conclusory and thereby 10 insufficient. See FAC ¶¶ 135-136. The sixteenth claim is thus 11 dismissed without prejudice. See Eminence Cap., LLC, 316 F.3d at 12 1052. 13 3. Analysis: State Law Claims 14 a. Tenth Claim 15 Plaintiff states in his opposition brief that the tenth 16 claim is withdrawn. Opp’n at 5. This claim is dismissed with 17 prejudice. 18 b. Fifth, Sixth, Seventh, Twelfth, Fourteenth, 19 and Fifteenth Claims Against the City 20 As to the City of Auburn, Defendants argue the fifth claim 21 for false arrest, sixth claim for battery, seventh claim for 22 excessive force, twelfth claim for conspiracy, fourteenth claim 23 for IIED, and fifteenth claim for negligent hiring and 24 supervision are barred by California Government Code Section 25 815. Mot. at 9. 26 That Section provides: “[e]xcept as otherwise provided by 27 statute: (a) A public entity is not liable for an injury, whether 28 such injury arises out of an act or omission of the public entity 1 or a public employee or any other person.” Cal. Gov. Code § 815, 2 subd. (a). This Section “abolished all common law or judicially 3 declared forms of liability for public entities, except for such 4 liability as may be required by the federal or state 5 Constitution . . . [t]hus in the absence of some constitutional 6 requirement, public entities may be liable only if a statute 7 declares them to be liable.” Cochran v. Herzog Engraving Co., 8 155 Cal.App.3d 405, 409 (1984). 9 Section 815 bars the fifth, sixth, seventh, twelfth, 10 fourteenth, and fifteenth claims directly against the City. Mot. 11 at 9. However, Plaintiff clarifies he is bringing vicarious 12 liability not direct liability claims against the City and that 13 he is doing so pursuant to Section 815.2 not Section 815. Opp’n 14 at 8-9. Further, Plaintiff brings forward ample authority 15 supporting his position that a municipality can be held 16 vicariously liable. Id. at 9. The Court did not consider 17 Defendants’ response, which was in the portion of their reply 18 brief that went over the Court’s page limit. Order re Filing 19 Requirements at 1; see also Reply at 7. 20 Accordingly, the fifth, sixth, seventh, twelfth, fourteenth, 21 and fifteenth claims for direct liability against the City are 22 dismissed with prejudice. However, Defendants’ motion is denied 23 as to those same claims against the City for vicarious liability. 24 c. Sixth and Seventh Claims 25 Defendants additionally argue the seventh claim for 26 unreasonable force is redundant to the sixth claim for battery. 27 Mot. at 9-10 (citing to Brown v. Ransweiler, 171 Cal.App.4th 516 28 (2009) and Munoz v. City of Union City, 120 Cal.App.4th 1077 1 (2004)). In opposition, Plaintiff did not address this argument. 2 See Opp’n. Indeed, Plaintiff did not discuss Brown or Munoz 3 whatsoever. Id. Plaintiff’s seventh claim is thus dismissed 4 with prejudice. See Resnick, 2017 WL 1531192, at *22; see also 5 Eminence Cap., LLC, 316 F.3d at 1052. 6 Plaintiff requests leave to amend his sixth claim for 7 battery to allege excessive force under the Fourth Amendment. 8 Opp’n at 3. Because Defendants’ response was in the portion of 9 their reply brief that violated the Court’s page limit, it was 10 not considered. Order re Filing Requirements at 1; see also 11 Reply at 7. Accordingly, Plaintiff’s request is granted. 12 d. Eighth Claim 13 Defendants contend the eighth claim under the Bane Act is 14 factually unsupported. Mot. at 10. 15 To state a Bane Act claim, plaintiffs must allege defendant 16 had a specific intent to violate their rights. Reese v. Cty. of 17 Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018). Defendants 18 emphasize Plaintiff does not allege facts indicating any specific 19 intent to violate his rights; instead “he merely concludes that 20 any detention, search or force used was done with ‘reckless 21 disregard’ for his rights.” Mot. at 10. In response, Plaintiff 22 directs the Court to his allegation that Eagan and Nichols acted 23 with a “reckless disregard” for his rights. Opp’n at 3-4. But 24 Plaintiff fails to identify any facts supporting that conclusory 25 allegation. Id. What Plaintiff directs the Court to – 26 paragraphs 29, 70, and 74 – do not contain facts but rather legal 27 conclusions. See FAC ¶¶ 29, 70, 74. For instance, Paragraph 29 28 states: “The conduct of Defendants OFC. EAGAN and OFC. NICHOLS 1 was willful, wanton, malicious, and done with reckless disregard 2 for the rights and safety of MR. DYER and caused MR. DYER to 3 suffer physical and emotional injuries.” The Court need not 4 “accept as true a legal conclusion couched as a factual 5 allegation.” Iqbal, 556 U.S. at 678. As such, the eighth claim 6 is dismissed without prejudice. See Eminence Cap., LLC, 316 F.3d 7 at 1052. 8 e. Twelfth Claim 9 Defendants likewise argue the twelfth claim for common law 10 conspiracy is factually unsupported. Mot. at 10. 11 “The elements of an action for civil conspiracy are the 12 formation and operation of the conspiracy and damage resulting to 13 plaintiff from an act or acts done in furtherance of the common 14 design.” Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 15 Cal.4th 503, 511 (1994). Here, the Court agrees with Defendants 16 that no facts support the formation of an agreement to violate 17 Plaintiff’s rights. Mot. at 10. In opposition, Plaintiff cites 18 to Baker v. State of California, No. CIV-S-05-0589GEBKJM, 2005 WL 19 1683671 (E.D. Cal. July 11, 2005). Opp’n at 5-6. But Baker does 20 not save this claim because the issue here is lack of factual 21 support. Id. Indeed, the very paragraphs Plaintiff quotes from 22 and directs the Court to are conclusory and devoid of facts. See 23 Opp’n at 6 (citing to FAC ¶¶ 100-102). In particular, there are 24 no facts from which this Court can infer Eagan and Nichols formed 25 an agreement. The twelfth claim is therefore dismissed without 26 prejudice. See Eminence Cap., LLC, 316 F.3d at 1052. 27 f. Fourteenth and Fifteenth Claims 28 Defendants raise various arguments as to why the fourteenth 1 claim for IIED and the fifteenth claim for negligent hiring and 2 supervision should be dismissed. Mot. at 11-13. First, as to 3 Police Chief Ruffcorn, Defendants contend these claims are barred 4 by the two-year statute of limitations. Id. at 11-12 (citing to 5 Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 806 (2005)). 6 Here, the alleged injury occurred on October 12, 2018. FAC ¶ 13. 7 But Plaintiff first asserted claims against Defendant Ruffcorn in 8 the amended complaint filed on January 31, 2022, more than three 9 years later. See FAC. Plaintiff does not dispute this in 10 opposition. See Opp’n at 9-10. Rather, Plaintiff contends the 11 statute of limitations tolled under California Government Code 12 Section 945.3. Id. 13 That Section provides: “No person charged by indictment, 14 information, complaint, or other accusatory pleading charging a 15 criminal offense may bring a civil action for money or damages 16 against a peace officer or the public entity employing a peace 17 officer based upon conduct of the peace officer relating to the 18 offense for which the accused is charged, including an act or 19 omission in investigating or reporting the offense or arresting 20 or detaining the accused, while the charges against the accused 21 are pending before a superior court. Any applicable statute of 22 limitations for filing and prosecuting these actions shall be 23 tolled during the period that the charges are pending before a 24 superior court.” Cal. Gov. Code § 945.3. Defendants argue 25 tolling under this Section does not apply because Ruffcorn is not 26 the peace officer alleged to have arrested Plaintiff, nor is his 27 allegedly wrongful conduct – namely his hiring and supervision of 28 Nichols - related to the criminal charges. Mot. at 12. 1 Plaintiff insists the opposite. Opp’n at 9-10 (citing to 2 Guy v. Lorenzen, 547 F.Supp.3d 927, 950 (S.D. Cal. 2021)). 3 Defendants’ response was in the portion of their reply brief that 4 violated the Court’s page limit and thus was not considered. 5 Order re Filing Requirements at 1; see also Reply at 8-9. 6 Plaintiff’s legal arguments therefore went unaddressed, and 7 Defendants do not show dismissal is warranted on these grounds. 8 Defendants next argue the fourteenth claim against Ruffcorn 9 fails because Plaintiff cannot base an IIED claim on negligent 10 hiring. Mot. at 12-13. “A cause of action for intentional 11 infliction of emotional distress exists when there is (1) extreme 12 and outrageous conduct by the defendant with the intention of 13 causing, or reckless disregard of the probability of causing, 14 emotional distress; (2) the plaintiff's suffering severe or 15 extreme emotional distress; and (3) actual and proximate 16 causation of the emotional distress by the defendant's outrageous 17 conduct.” Hughes v. Pair, 46 Cal.4th 1035, 1050 (2009). Here, 18 Defendants argue Ruffcorn’s negligent hiring of Nichols is not 19 intentional conduct, and therefore cannot form the basis of an 20 IIED claim. Mot. at 13. Further, Defendants claim this is 21 redundant to the fifteenth claim for negligent hiring. Id. 22 Plaintiff responds that his allegations show Ruffcorn acted 23 with more than mere negligence but rather “reckless disregard” 24 when he hired Nichols. Opp’n at 10-11. Specifically, Plaintiff 25 insists “the FAC sufficiently alleges that Ruffcorn hired Nichols 26 having reason to know facts that would have led a reasonable man 27 to realize that the hire created an unreasonable risk of harm to 28 others substantially greater than ordinary negligence.” Id. at 1 11. As such, his claim may proceed on this “reckless disregard” 2 theory. Id. Lastly, as to Defendants’ challenge that this claim 3 is redundant, Plaintiff points out the elements of each claim are 4 distinct and therefore this claim is not redundant. Id. Once 5 again, Defendants’ response to Plaintiff’s arguments was in the 6 portion of their reply brief which was not considered because it 7 violated the Court’s page limit. Order re Filing Requirements at 8 1; see also Reply at 9. In failing to address Plaintiff’s 9 arguments, Defendants do not establish dismissal of the 10 fourteenth claim against Ruffcorn is warranted on these alternate 11 grounds. 12 Turning to fifteenth claim for negligent hiring and 13 supervision, Defendants again argues this claim fails as against 14 the City because it is barred by California Government Code 15 Section 815. Mot. at 13. However, as discussed above, Plaintiff 16 is not proceeding under Section 815; that is, Plaintiff is not 17 trying to hold the City directly liable. Opp’n at 11. Instead, 18 he is proceeding on a vicarious liability theory. Id. As the 19 Court concluded above: the fifteenth claim is dismissed as to any 20 claim of direct liability against the City, but Defendants’ 21 motion is denied as to the vicarious liability portion of the 22 fifteenth claim against the City. 23 Finally, as to the fifteenth claim against Ruffcorn, 24 Defendants contend Plaintiff did not allege sufficient facts of a 25 special relationship between Plaintiff and Ruffcorn. Mot. at 13 26 (citing to C.A. v. William S. Hart Union High School Dist., 53 27 Cal.4th 861 (2012)). “Absent such a special relationship, there 28 can be no individual liability to third parties for negligent 1 hiring, retention or supervision of a fellow employee, and hence 2 no vicarious liability under section 815.2.” William S. Hart, 53 3 Cal.4th at 877. Here, Defendants argue there are no facts 4 supporting the existence of a special relationship between 5 Plaintiff and Ruffcorn. Mot. at 13. The Court agrees. Accord 6 Fuentes v. City of San Diego, No. 3:16-cv-02871-BEN-JMA, 2017 WL 7 2670976, at *3 (S.D. Cal. June 20, 2017) (“Plaintiffs generally 8 allege that the City and/or SDPD have a duty to protect people 9 from harm and exercise care in selection, retention, training, 10 and supervision of their employees. However, these alleged 11 duties do not resemble the enhanced duties imposed on school 12 personnel that formed the basis for their special relationship 13 with the minor plaintiff in William S. Hart.”). 14 Plaintiff’s citations to cases involving the readily 15 distinguishable contexts of school and jail do not save his claim 16 from dismissal. Opp’n at 11-12 (citing to William S. Hart, 53 17 Cal.4th at 869 (school) and Giraldo v. Cal. Dep’t of Corr., 168 18 Cal.App.4th 231, 250–51 (2008)(jail)). At most, those cases 19 support Plaintiff’s contention that this claim does not fail as a 20 matter of law.4 But they do not change the factual deficiencies. 21 The fifteenth claim against Ruffcorn is thus dismissed without 22 prejudice. See Eminence Cap., LLC, 316 F.3d at 1052. 23 g. Seventeenth Claim 24 Defendants argue the seventeenth claim for vicarious 25 liability should be dismissed because it is a theory of 26 4 Defendants’ response was again in a part of their reply brief 27 that violated the Court’s page limit. Order re Filing Requirements at 1; see also Reply at 9. The Court did not 28 consider it. 1 liability, not an independent cause of action. Mot. at 14 2 (citing to Gottschalk v. City & Cty. of San Francisco, No. C-12- 3 4531 EMC, 2013 WL 557010, at *8 (N.D. Cal. Feb. 12, 2013)). 4 Plaintiff responds that vicarious liability, while a theory of 5 liability, can also be pled as a separate count. Opp’n at 13 6 (citing to Goldsmith v. CVS Pharmacy, Inc., No. CV 20-00750-AB 7 (JCx), 2020 WL 3966004, at *10 (C.D. Cal. May 5, 2020)). 8 However, Plaintiff does not explain how this is not redundant to 9 the fifth, sixth, seventh, twelfth, fourteenth, and fifteenth 10 claims, for which he expressly states he is seeking to hold the 11 City liable under a vicarious liability theory. See Opp’n at 8- 12 9, 11. Nor does he account for the statement in his own cited 13 authority that: “vicarious liability is a theory of liability 14 that must attach to an underlying claim.” Goldsmith, 2020 WL 15 3966004, at *9. The seventeenth claim is therefore dismissed 16 with prejudice. 17 C. Sanctions 18 A violation of the Court’s standing order requires the 19 offending counsel, not the client, to pay $50.00 per page over 20 the page limit to the Clerk of Court. Order re Filing 21 Requirements at 1. Moreover, the Court did not consider 22 arguments made past the page limit. Id. Here, Defendants’ reply 23 brief exceeded the Court’s page limit by 5 pages. See Reply. 24 Defendants’ counsel must therefore send a check payable to the 25 Clerk for the Eastern District of California for $250.00 no later 26 than seven days from the date of this Order. 27 III. ORDER 28 For the reasons set forth above, the Court DENIES 1 Defendants’ motion to strike. Defendants’ motion to dismiss is 2 denied in part and granted in part as follows: 3 1. DENIED as to the first claim against Eagan; 4 2. GRANTED WITH PREJUDICE as to any portion of the first 5 claim which proceeds on a malicious prosecution theory; 6 3. GRANTED WITH PREJUDICE as to the third claim; 7 4. GRANTED WITHOUT PREJUDICE as to the fourth claim; 8 5. GRANTED WITHOUT PREJUDICE as to the ninth claim; 9 6. GRANTED WITH PREJUDICE as to the Section 1985 portion 10 of the eleventh claim; 11 7. GRANTED WITHOUT PREJUDICE as to the Section 1983 12 portion of the eleventh claim; 13 8. GRANTED WITH PREJUDICE as to the Section 1986 portion 14 of the thirteenth claim; 15 9. DENIED as to the Section 1983 portion of the thirteenth 16 claim; 17 10. GRANTED WITHOUT PREJUDICE as to the sixteenth claim; 18 11. GRANTED WITH PREJUDICE as to the tenth claim; 19 12. GRANTED WITH PREJUDICE as to the direct liability 20 portions of the fifth, sixth, seventh, twelfth, fourteenth, and 21 fifteenth claims against the City; 22 13. DENIED as to the vicarious liability portions of the 23 fifth, sixth, twelfth, fourteenth, and fifteenth claims against 24 the City; 25 14. GRANTED WITH PREJUDICE as to the seventh claim but 26 Plaintiff is GRANTED leave to amend his sixth claim to allege 27 excessive force under the Fourth Amendment; 28 15. GRANTED WITHOUT PREJUDICE as to the eighth claim; nee nnn mee ene nnn nnn en ne ee nnn nn enn nn ne on nn on on 1 16. GRANTED WITHOUT PREJUDICE as to the twelfth claim; 2 17. DENIED as to the fourteenth claim against Ruffcorn; 3 18. GRANTED WITHOUT PREJUDICE as to the fifteenth claim 4 against Ruffcorn; and 5 19. GRANTED WITH PREUDICE as to the seventeenth claim. 6 If Plaintiff elects to amend his complaint, he shall file a 7 second amended complaint within twenty days (20) of this order. 8 Defendants’ responsive pleadings are due twenty days (20) 9 thereafter. The Court strongly recommends that Plaintiff consider 10 consolidating and/or eliminating many of his seventeen claims for 11 relief. A “kitchen sink” approach to pleading in federal court 12 usually does not serve the Plaintiff well in the long run. 13 IT IS SO ORDERED. 14 | Dated: June 21, 2022 15 kA 16 teiren staves odermacr 7008 17 18 19 20 21 22 23 24 25 26 27 28 22