1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 FAITH WILSON, ) Case No. CV 24-02605 DDP (PVCx) ) 12 Plaintiff, ) ) 13 v. ) ORDER GRANTING DEFENDANT CITY OF ) POMONA’S MOTION TO DISMISS 14 CITY OF POMONA, ) ) 15 Defendants. ) [Dkt. 15] ___________________________ ) 16 17 Presently before the court is Defendant City of Pomona (“The 18 City”)’s Motion to Dismiss Plaintiffs’ Complaint. Having 19 considered the submissions of the parties and heard oral argument, 20 the court grants the motion and adopts the following Order. 21 I. Background 22 On March 30, 2022, Plaintiff Faith Wilson was at home with her 23 two children, K.W. and E.O., when City of Pomona Police Officer 24 Defendant A. Chavez (“Officer Chavez”) arrived at the house with 25 Joel Raul Orozco (“Orozco”).1 Complaint ¶ 19. According to the 26 Complaint, Orozco had sexually abused K.W. and was subject to a 27 28 1 Although the Complaint appears to make reference to both a 1 restraining order restraining him from approaching Plaintiff, K.W., 2 E.O., and the house. Compl. ¶¶ 18-19. Plaintiffs watched Officer 3 Chavez and Orozco through an outdoor surveillance camera and E.O. 4 began to cry as Officer Chavez and Orozco approached through the 5 front yard. Id. When Officer Chavez and Orozco knocked on the 6 front door, Plaintiff informed Officer Chavez through the door 7 about the restraining order and informed him that her children were 8 inside the house. Id. ¶ 20. Plaintiff told Officer Chavez 9 multiple times that Orozco was restrained from approaching her, the 10 children, and the house. Id. Officer Chavez nevertheless 11 “demanded” that Plaintiff exit the house. Id. ¶ 21. Plaintiff K.W. 12 became upset and begged Plaintiff to stay inside. Id. Officer 13 Chavez then told Orozco to get into his car. Id. Once Orozco was 14 in the car, Plaintiff went outside. Id. 15 While outside, Officer Chavez began asking Plaintiff about her 16 social media posts regarding Orozco “being a registered sex 17 offender and his criminal convictions.” Compl. ¶ 22. Officer 18 Chavez “accused Plaintiff of harassing and misusing information 19 about Orozco.” Id. Officer Chavez also repeatedly told Plaintiff 20 “that she was a liar and that he had snapshots of her criminal 21 activity,” and accused her of being “malicious.” Id. ¶ 22. 22 Plaintiff again informed Officer Chavez that Orozco was subject to 23 a restraining order, which had issued because Orozco “was found 24 guilty of molesting her two children.” Id. ¶ 23. Officer Chavez 25 then “instructed Plaintiff Wilson to go to the front yard by the 26 street, where Orozco was in sight.” Id. ¶ 25. While Plaintiff was 27 standing near Orozco, Officer Chavez cited Plaintiff with a 28 “Misdemeanor Notice to Appear (City of Pomona), Citation No. 1 P485166, for violation of California Penal Code 290.46(i).”2 Id. ¶ 2 26-27. 3 On May 16, 2022, the City of Pomona Police Department sent 4 written notice to Plaintiff Wilson that the citation “was 5 rejected,” and that “[t]his arrest was determined to be a detention 6 only.” Compl. ¶ 29. The Police Department later sent another 7 letter to Plaintiff informing her that the department’s Internal 8 Affairs Unit sustained an allegation against Officer Chavez for 9 unsatisfactory performance. Id. ¶ 30. 10 Plaintiff, on her own behalf and as guardian ad litem of 11 Plaintiff K.W., brought the instant suit pursuant to 42 U.S.C. § 12 1983 against the City of Pomona, the Pomona Police Department, 13 Officer Chavez, and several doe defendants. Plaintiffs’ Complaint 14 alleges Fourth Amendment claims for unlawful detention and 15 excessive force, a Fourteenth Amendment claim for deliberate 16 fabrication of evidence, and municipal liability claims. Defendant 17 City of Pomona now moves to dismiss all claims. 18 II. Legal Standard 19 A complaint will survive a motion to dismiss when it 20 “contain[s] sufficient factual matter, accepted as true, to state a 21 claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 22 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 23 24 2 Section 290.46(i) states, “Any person who is required to register pursuant to Section 290 who enters an internet website 25 established pursuant to this section shall be punished by a fine not exceeding one thousand dollars ($1,000), imprisonment in a 26 county jail for a period not to exceed six months, or by both that fine and imprisonment.” Cal. Penal Code § 290.46(i). Section 27 290.46(j) provides that “[a] person is authorized to use information disclosed pursuant to this section only to protect a 28 person at risk.” Cal. Penal Code § 290.46(j)(1). 1 U.S. 544, 570 (2007)). When considering a Rule 12(b)(6) motion, a 2 court must “accept as true all allegations of material fact and 3 must construe those facts in the light most favorable to the 4 plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). 5 Although a complaint need not include “detailed factual 6 allegations,” it must offer “more than an unadorned, 7 the-defendant-unlawfully-harmed-me accusation.” Iqbal,556 U.S. at 8 678. Conclusory allegations or allegations that are no more than a 9 statement of a legal conclusion “are not entitled to the assumption 10 of truth.” Id. at 679. In other words, a pleading that merely 11 offers “labels and conclusions,” a “formulaic recitation of the 12 elements,” or “naked assertions” will not be sufficient to state a 13 claim upon which relief can be granted. Id. at 678 (citations and 14 internal quotation marks omitted). 15 “When there are well-pleaded factual allegations, a court 16 should assume their veracity and then determine whether they 17 plausibly give rise to an entitlement of relief.” Iqbal,556 U.S. 18 at 679. Plaintiffs must allege “plausible grounds to infer” that 19 their claims rise “above the speculative level.” Twombly, 550 U.S. 20 at 555-56. “Determining whether a complaint states a plausible 21 claim for relief” is “a context-specific task that requires the 22 reviewing court to draw on its judicial experience and common 23 sense.” Iqbal, 556 U.S. at 679. 24 III. Discussion 25 The City’s motion to dismiss raises a number of different 26 arguments, including the arguments that (1) Plaintiff K.W. lacks 27 standing to bring any claim (Mot. at. 3); (2) Plaintiff Wilson’s 28 excessive force claim fails, as the Complaint does not allege that 1 any force was used (Id. at 5); (3) Plaintiff’s failure to allege a 2 deprivation of liberty is fatal to her deliberate fabrication of 3 evidence claim (Id. at 6); and (4) Plaintiffs’ Monell claims fail 4 (Id. at 7.) Plaintiffs’ opposition does not address any of these 5 arguments. “[F]ailure to respond in an opposition brief to an 6 argument put forward in an opening brief constitutes waiver or 7 abandonment in regard to the uncontested issue.” Stichting 8 Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 9 1132 (C.D. Cal. 2011) (citation omitted); See also Jenkins v. Cnty. 10 of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005) (deeming 11 claims abandoned where plaintiff’s opposition did not discuss 12 moving party’s arguments). Accordingly, all of Plaintiff K.W.’s 13 claims, as well as Plaintiff Wilson’s Second, Third, Fourth, and 14 Fifth Causes of action are dismissed for failure to oppose, with 15 leave to amend. 16 The City also seeks to dismiss Plaintiff Wilson’s First Cause 17 of Action for Unlawful Detention. Specifically, the City contends 18 that Plaintiff Wilson has failed to adequately allege an unlawful 19 detention because Defendant Chavez had reasonable suspicion to 20 believe that Plaintiff Wilson was making unlawful social media 21 posts about Orozco’s sex offender status. (Mot. at 5.) 22 “In order to satisfy the Fourth Amendment’s strictures, an 23 investigatory stop by the police may be made only if the officer in 24 question has a reasonable suspicion supported by articulable facts 25 that criminal activity may be afoot.” United States v. 26 Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en banc) 27 (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). By the 28 same token, “[i]t is well established,” and Plaintiffs do not 1 dispute, “that law enforcement officers may detain an individual 2 and conduct a brief investigative detention if there is reasonable 3 suspicion that criminal activity is afoot.” United States v. Cole, 4 948 F. Supp. 2d 1251, 1254 (W.D. Wash. 2013) (citing Terry v. Ohio, 5 392 U.S. 1 (1968)). Instead, citing Payton v. New York, 445 U.S. 6 573 (1980) and United States v. Nora, 765 F.3d 1049 (9th Cir. 7 2014), Plaintiffs appear to suggest that something beyond 8 reasonable suspicion was required here because “when Officer Chavez 9 ordered Plaintiff Wilson out of her home, Plaintiff was arrested 10 inside of her home.” (Opposition at 7.). 11 “The [Supreme] Court held in Payton that the Fourth Amendment 12 forbids arresting a suspect inside his home unless the police first 13 obtain an arrest warrant or an exception to the warrant requirement 14 applies.” Nora, 765 F.3d at 1054. For purposes of the Payton 15 rule, a person may be arrested inside the home even before she is 16 taken into physical custody. In United States v. Al-Azzawy, 784 17 F.2d 890 (9th Cir. 1985), for example, an arrest was effectuated 18 when “the police had completely surrounded appellee’s trailer with 19 their weapons drawn and ordered him through a bullhorn to leave the 20 trailer and drop to his knees.” Al-Azzawy, 784 F.2d at 893. 21 Similarly, in Nora, “some 20 to 30 officers arrived and surrounded 22 the house with weapons drawn,” and, aided by a hovering helicopter, 23 “used a public address system to order the occupants of the house 24 to come out.” Nora, 765 F.3d at 1052. And in Fisher v. City of 25 San Jose, 558 F.3d 1069 (9th Cir. 2009) (en banc), over sixty 26 police officers surrounded a suspect’s apartment before shutting 27 off the power to apartment, using “bullhorns and other voice 28 magnifying equipment,” and ultimately driving an armored vehicle onto the suspect’s patio. Fisher, 558 F.3d at 1072-73. 2 Here, however, the court need not determine whether Defendant 4|| Chavez’s actions resulted in an in-home arrest because, quite simply, Plaintiffs have not alleged any such fact. Notwithstanding Plaintiffs’ invocation of the Payton rule in their opposition to the instant motion, Plaintiffs’ Complaint does not allege that Plaintiff Wilson was arrested, either inside or outside of her home, at any point. Rather, the Complaint alleges that Wilson was 10} unlawfully detained. (Compl. Qf 31-32). And, as stated above, Plaintiffs do not dispute either that reasonable suspicion is sufficient to justify an investigatory detention or that Defendant Chavez had reasonable suspicion to suspect Plaintiff Wilson of unlawful activity. 15 Accordingly, Plaintiff’s First Cause of action is dismissed, with leave to amend.

IV. Conclusion

18 For the reasons stated above, the City’s Motion to Dismiss is GRANTED. All claims are dismissed, with leave to amend. Any amended complaint shall be filed within twenty days of the date of this Order. 22 IT IS SO ORDERED. /] Af)

25|| Dated: JUNE 11, 2024 MUAY OT

DEAN D. PREGERSON

26 United States District Judge