1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ENMANUEL ISAIAS ERAZO Case No. 4:24-cv-03525-KAW

MACHADO,

8 ORDER GRANTING DEFENDANTS' Plaintiff, MOTION TO DISMISS PLAINTIFF'S 9 FIRST AMENDED COMPLAINT v. 10 Re: Dkt. No. 17 DANIEL BOYD, et al., 11 Defendants. 12 13 On October 16, 2024, Defendants Petaluma Police Department, Daniel Boyd, Prince Nagi, 14 Rony Flores, and Uriel Vazquez filed a motion to dismiss the first amended complaint. (Defs.’ 15 Mot., Dkt. No. 17.) 16 Upon review of the moving papers, the Court finds this matter suitable for resolution 17 without oral argument pursuant to Civil Local Rule 7-1(b), and, for the reasons set forth below, 18 GRANTS the motion to dismiss with leave to amend. 19 I. BACKGROUND 20 On June 11, 2024, Plaintiff Enmanuel Isaías Erazo Machado filed a lawsuit alleging civil 21 rights violations against Defendant Petaluma Police Department and Petaluma Police Officers 22 Daniel Boyd, Prince Nagi, Rony Flores, and Uriel Vazquez. (Dkt. No. 1.) 23 On April 20, 2023, Plaintiff alleges that he traveled to Sonoma County from Texas to serve 24 his ex-wife with “custody papers to appear in Texas because she fled Texas to hide in California 25 due to the custody process [that] was open….” (First Am. Compl., “FAC,” Dkt. No. 15 at 3.) 26 Plaintiff alleges that their two children were staying with his ex-wife in Sonoma County, but 27 Plaintiff attempted to take them back to Texas without the consent of his ex-wife. See id. Plaintiff 1 children and return with them to Texas because of an alleged civil order granting Plaintiff custody 2 of the children and because “California does not have jurisdiction or legal authority under any 3 statu[t]e to retain” Plaintiff or his daughters. Id. 4 After receiving a corresponding 911 call regarding a child abduction, Defendants procured 5 an Arrest Warrant for Plaintiff, executed by a judge of the Sonoma County Superior Court. 6 (Defs.’ Request for Judicial Notice, “Defs.’ RJN,” Dkt. No. 17-1, Ex. A.) The warrant found that 7 probable cause existed to believe that Plaintiff had committed violations of California Penal Code 8 §§ 422(a) (Threaten Crime with Intent to Terrorize), 207 (Kidnapping), 459 (Burglary), and 242 9 (Battery). Id. 10 In light of the potential danger to the abducted children, Defendants “pinged” Plaintiff’s 11 cell phone to determine his location but did so without a warrant. (See FAC at 3.) The California 12 Highway Patrol (“CHP”) then located Plaintiff in Los Banos, California, and arrested him at 13 gunpoint. Id. 14 On April 25, 2023, Defendants procured a search warrant to search the contents of 15 Plaintiff’s cell phone as part of their investigation, which was also executed by a judge of the 16 Sonoma County Superior Court. (Defs.’ RJN, Ex. B.) The Office of the Sonoma County District 17 Attorney subsequently charged Plaintiff with multiple crimes, but the charges were dismissed at 18 the preliminary hearing. (FAC at 3.) 19 On August 6, 2024, Plaintiff filed the first amended complaint. (First Am. Compl., “FAC,” 20 Dkt. No. 15.) On August 16, 2024, Defendants filed the instant motion to dismiss. (Defs.’ Mot., 21 Dkt. No. 17.) On August 18, 2024, Plaintiff filed an opposition. (Pl.’s Opp’n, Dkt. No. 18.) On 22 August 26, 2024, Defendants filed a reply. (Defs.’ Reply, Dkt. No. 21.) On September 10, 2024, 23 Plaintiff filed exhibits (Dkt. No. 23) without leave of court, so they are stricken and will not be 24 considered in connection with this motion. 25 II. LEGAL STANDARD 26 A. Motion to Dismiss 27 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss based 1 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Block, 250 2 F.3d 729, 732 (9th Cir. 2001). 3 In considering such a motion, a court must “accept as true all of the factual allegations 4 contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation 5 omitted), and may dismiss the case or a claim “only where there is no cognizable legal theory” or 6 there is an absence of “sufficient factual matter to state a facially plausible claim to relief.” 7 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing 8 Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro, 250 F.3d at 732) (internal quotation 9 marks omitted). 10 A claim is plausible on its face when a plaintiff “pleads factual content that allows the 11 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 12 Iqbal, 556 U.S. at 678 (citation omitted). In other words, the facts alleged must demonstrate “more 13 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 14 do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of 15 a cause of action” and “conclusory statements” are inadequate. Iqbal, 556 U.S. at 678; see also 16 Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996) (“[C]onclusory allegations of 17 law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a 18 claim.”). “The plausibility standard is not akin to a probability requirement, but it asks for more 19 than a sheer possibility that a defendant has acted unlawfully . . . When a complaint pleads facts 20 that are merely consistent with a defendant's liability, it stops short of the line between possibility 21 and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 22 557) (internal citations omitted). 23 Generally, if the court grants a motion to dismiss, it should grant leave to amend even if no 24 request to amend is made “unless it determines that the pleading could not possibly be cured by 25 the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citations 26 omitted). 27 B. Request for Judicial Notice 1 ruling on a motion to dismiss for failure to state a claim. Lee v. City of Los Angeles, 250 F.3d 668, 2 688 (9th Cir. 2001). A district court may take notice of facts not subject to reasonable dispute that 3 are “capable of accurate and ready determination by resort to sources whose accuracy cannot 4 reasonably be questioned.” Fed. R. Evid. 201(b); United States v. Bernal–Obeso, 989 F.2d 331, 5 333 (9th Cir. 1993). “[A] court may take judicial notice of ‘matters of public record,’” Lee, 250 6 F.3d at 689 (citing Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986)), and may 7 also consider “documents whose contents are alleged in a complaint and whose authenticity no 8 party questions, but which are not physically attached to the pleading” without converting a 9 motion to dismiss under Rule 12(b)(6) into a motion for summary judgment. Branch v. Tunnell, 10 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 11 307 F.3d 1119 (9th Cir. 2002). The court need not accept as true allegations that contradict facts 12 which may be judicially noticed. See Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 13 (9th Cir. 1987). 14 III. DISCUSSION 15 A. Request for Judicial Notice 16 As a preliminary matter, Defendants asks that the Court take judicial notice of two 17 documents in support of their motion to dismiss. (Defs.’ Req. for Judicial Notice, “RJN,” Dkt. No. 18 17-1.) The documents are purportedly true and correct copies of: A) Arrest Warrant, issued by 19 Superior Court of California for the County of Sonoma on April 202, 2023 by Judge Lawrence 20 Ornell for the arrest of Enmanuel I. Erazo-Machado, finding probable cause to believe that Erazo- 21 Machado committed violations of California Penal Code §§ 422(a) (Threaten Crime with Intent to 22 Terrorize), 207 (Kidnapping), 459 (Burglary), and 242 (Battery); B) Search Warrant, issued by the 23 Superior Court of California for the County of Sonoma on April 25, 2023 by Judge Julie Conger 24 for the search of the contents of Plaintiff’s cell phone, including data between January 1, 2021, 25 and April 25, 2023. (RJN at 1, Exs. A & B.) 26 Plaintiff does not oppose the request for judicial notice. 27 Under Rule 201, facts appropriate for judicial notice are those “not subject to reasonable 1 or (2) “can be accurately and readily determined from sources whose accuracy cannot reasonably 2 be questioned.” Fed. R. Evid. 201(b). Judicial notice may be taken “of court filings and other 3 matters of public record.” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). This 4 includes both arrest warrants and search warrants. See, e.g., Cooley v. City of Walnut Creek, No. 5 18-CV-00719-YGR, 2019 WL 1533430, at *2 (N.D. Cal. Apr. 9, 2019) (judicial notice taken of 6 existence of arrest warrant and statement of probable cause and filing date.) 7 Since Exhibits A and B are warrants issued by Sonoma County Superior Court judges, the 8 Court finds that they are properly subject to judicial notice. Thus, the Court GRANTS 9 Defendants’ request for judicial notice. 10 B. Motion to Dismiss 11 i. Failure to Satisfy Pleading Standards 12 Defendants move to dismiss on the grounds that the first amended complaint fails to allege 13 sufficient facts to support any of Plaintiff’s claims. (Defs.’ Mot. at 6-8.) Federal Rule of Civil 14 Procedure 8 requires “a short and plain statement of the claim showing that the pleader is entitled 15 to relief.” Fed. R. Civ. Pro. 8(a)(2). 16 Here, the operative complaint does not sufficiently identify the purported claims or the 17 actions the Police Department and individual defendants took that were unlawful, which is 18 insufficient to withstand a motion to dismiss under Rule 12(b)(6). See Twombly, 550 U.S. at 555. 19 Plaintiff fails to identify which claims are against which defendants. The Court notes that the only 20 facts pertaining to Defendants Nagi and Vazquez concern their responding to Plaintiff’s ex-wife’s 21 911 call to report the abduction of her children, and that Vazquez provided Spanish-language 22 translation for the ex-wife. (See FAC at 3.) To the extent that Plaintiff argues that the officers 23 changed the ex-wife’s statements by making a false report to Defendant Boyd, Plaintiff does not 24 allege which of the officers made the purported changes. See id. Similarly, Plaintiff does not 25 explain how Defendant Boyd lied to procure the arrest warrant or how he could have lied if he had 26 been provided with a false report by the other officers. As to Defendant Flores, Plaintiff only 27 alleges that “[D]etective [F]lores was instructed [by] [D]etective [B]oyd to ping my phone to get 1 complaint fails to plead sufficient facts of each defendant’s purported wrongdoing to provide fair 2 notice of the claims alleged them and the grounds upon which those claims rest. 3 Accordingly, the first amended complaint is insufficiently pled and must be amended to 4 comply with the Iqbal-Twombly pleading standard. The second amended complaint should clearly 5 delineate each legal claim, and state facts indicating the nature and grounds for each claim. 6 Merely incorporating the preceding paragraphs, as Plaintiff has done, is insufficient. Indeed, each 7 cause of action should clearly state the alleged violation, the statutory authority, who was 8 involved, the relevant facts, and how the claim satisfies the elements rendering it a viable cause of 9 action. 10 Additionally, the second amended complaint must also comport with Rule 10(b) of the 11 Federal Rules of Civil Procedure, such that each paragraph must be separately numbered. 12 Plaintiff’s first amended complaint runs afoul of this requirement. 13 ii. Claims on the merits 14 While the claims themselves are not sufficiently pled under Iqbal-Twombly and are 15 dismissed for that reason, to assist Plaintiff with amending his complaint, the Court will further 16 address each claim below. 17 a. Monell Claims 18 Defendants seek dismissal of Plaintiff’s Monell claims. (Defs.’ Mot. at 18.) Specifically, 19 Plaintiff’s first and fourth causes of action appear to be asserted against all defendants, including 20 the City of Petaluma. Id. 21 A municipality or governmental entity cannot be found liable under 42 U.S.C. § 1983 on a 22 theory of respondeat superior. Monell v. New York City Dep't of Social Services, 436 U.S. 658, 23 691 (1978). Rather, in order to hold a municipality liable for a municipal employee's conduct 24 under Monell, a plaintiff must show that (1) that the plaintiff “possessed a constitutional right of 25 which [he or she] was deprived; (2) that the municipality had a policy; (3) that this policy amounts 26 to deliberate indifference to the plaintiff's constitutional rights; and, (4) that the policy is the 27 moving force behind the constitutional violation.” Plumeau v. Sch. Dist. No. 40 Cty. of Yamhill, 1 municipality's failure to train its employees in a relevant respect evidences a ‘deliberate 2 indifference’ to the rights of its inhabitants can such a shortcoming be properly thought of as a city 3 ‘policy or custom’ that is actionable under § 1983.” City of Canton, Ohio v. Harris, 489 U.S. 378, 4 388 (1989). 5 Generally, “[p]roof of a single incident of unconstitutional activity is not sufficient to 6 impose liability under Monell, unless proof of the incident includes proof that it was caused by an 7 existing, unconstitutional municipal policy, which policy can be attributed to a municipal 8 policymaker.” City of Oklahoma v. Tuttle, 471 U.S. 808, 823–24 (1985). While “a single incident 9 is ultimately insufficient to establish liability, a plaintiff can survive a motion to dismiss by stating 10 a plausible Monell claim based on failure to train, so long as the allegations apply to all 11 individuals that are trained using the policy at issue.” Anakin v. Contra Costa Reg'l Med. Ctr., No. 12 16-CV-00161-MEJ, 2016 WL 2893257, at *6 (N.D. Cal. May 18, 2016) (citing Dasovich v. 13 Contra Costa Cty. Sheriff Dep't, No. 14-CV-00258-MEJ, 2014 WL 4652118, at *5 (N.D. Cal. 14 Sept. 17, 2014)) 15 As Defendants argue, Plaintiff’s amended complaint is devoid of any facts to support a 16 Monell claim. (See Defs.’ Mot. at 20.) 17 Thus, all claims against the City are subject to dismissal on this basis. If Plaintiff cannot 18 adequately allege facts regarding the existence of an unconstitutional policy or custom, he should 19 not name the City as a defendant in the second amended complaint. 20 b. First Amendment claim 21 The first cause of action is for a First Amendment violation under 42 U.S.C. § 1983. (FAC 22 at 4.) While the complaint does not specify which defendants this cause of action is against, it 23 generally alleges that Plaintiff’s First Amendment right to familial association was violated. Id. 24 Defendants move to dismiss this claim on the grounds that Plaintiff fails to plead any 25 constitutional violations, nor does he identify any facts. (Defs.’ Mot. at 9.) Furthermore, 26 Defendants contend that, as to Plaintiff’s right to familial association, he does not state a claim, 27 because he does not allege that “he was engaged in an activity protected under the First 1 commission of a felony), nor does he allege that his participation in a protected activity was a 2 substantial or motivating factor in Defendants’ alleged conduct, or how Defendants’ alleged 3 conduct would chill a person of ordinary firmness from continuing to engage in the protected 4 activity.” (Defs.’ Mot. at 10-11.) Defendants continue by arguing that “engaging in self-help to 5 enforce an alleged civil custody order, by way of taking Plaintiff’s children from his ex-wife 6 without her consent, is not a protected activity under the First Amendment, and Plaintiff can 7 present no authority to the contrary.” Id. at 11. 8 Plaintiff’s opposition fails to address these arguments, or his First Amendment claim at all. 9 (See Pl.’s Opp’n at 4.) 10 “The substantive due process right to family or to familial association is well established,” 11 and the state’s interference with this liberty interest without due process of law is remediable 12 under section 1983. Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1079 (9th Cir. 2011) (citation 13 omitted). “To amount to a violation of substantive due process, however, the harmful conduct 14 must shock [ ] the conscience’ or ‘offend the community's sense of fair play and decency.’” 15 Rochin v. California, 342 U.S. 165, 172-73 (1952). The “shocks-the-conscience” standard is, 16 depending on the circumstances, met either by showing that a defendant (1) acted with “deliberate 17 indifference” or (2) with a “purpose to harm” for reasons unrelated to legitimate law enforcement 18 objectives. Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008) (citing Cnty. of Sacramento v. 19 Lewis, 523 U.S. 833, 846 (1998)). 20 Here, the operative complaint is devoid of any allegation that Defendants deprived Plaintiff 21 of his relationship with his children. (See FAC at 4.) Nor does he allege that Defendants took 22 custody of them. Id. Defendants responded to a 911 call regarding an alleged kidnapping and 23 promptly procured an arrest warrant supported by probable cause, which does not shock the 24 conscience. Even so, Plaintiff is permitted leave to amend to allege facts supporting an alleged 25 deprivation of familial association. If, however, Plaintiff is unable to do so, he is encouraged to 26 not include this claim in his second amended complaint. 27 c. Second cause of action 1 of action appears to be for malicious prosecution. (FAC at 4-5.) To prevail on a malicious 2 prosecution claim, Plaintiff “must show that the defendants prosecuted [him] with malice and 3 without probable cause, and that they did so for the purpose of denying [him] equal protection or 4 another specific constitutional right.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 5 2004) (quoting Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995)). 6 First, Plaintiff pleads no facts to state a claim for malicious prosecution. Instead, he 7 merely alleges that he was “detained[,] arrested[,] jailed and maliciously prosecuted based upon a 8 fabricated police report prepared by government agents under the guise of their sworn duty as 9 officer[s] of the law.” (FAC at 5.) 10 Second, malicious prosecution is not a violation of § 1983 or the Fourteenth Amendment. 11 (See FAC at 5.) Rather, it is a state law claim. Thus, “to the extent that Plaintiff is seeking 12 damages for malicious prosecution, he must exhaust his administrative remedies under the 13 California Tort Claims Act, and plead that he has done so.” Zepeda v. Schuld, No. 4:13-CV- 14 05761-KAW, 2017 WL 1833271, at *6 (N.D. Cal. May 8, 2017). If Plaintiff has not filed an 15 administrative claim, he cannot bring the cause of action at this time. Id. 16 Thus, Plaintiff fails to state a claim for malicious prosecution. While this claim has 17 already been dismissed with leave to amend, if Plaintiff cannot allege facts to suggest that 18 Defendants prosecuted him with malice and that he complied with the California Tort Claims Act, 19 he should not include this cause of action in his second amended complaint. 20 d. Unlawful Arrest, Search, and Seizure 21 The third cause of action is for Fourth Amendment violations pursuant to § 1983. (FAC at 22 5.) This claim is premised on his alleged unlawful seizure and an alleged unlawful search of his 23 cell phone. Id. Specifically, Plaintiff alleges that the “unlawful seizure detention and prolonged 24 detention of Enmanual Erazo by the defendants were without lawful basis reasonable suspicion 25 probable cause or legal warrant or any recognized exception thereto or justification or excuse and 26 were thus unreasonable and in violation of Mr. Erazo fourth amendment right.” Id. Plaintiff also 27 alleges that the “unlawful search of Mr. Erazo[’s] cellphone and separately upon being jailed were 1 electronic communication act or any other recognized exception thereto, or justification or excuse 2 and were thus unreasonable and in violation of Mr. Erazo fourth amendment rights.” Id. 3 As currently pled, both of these claims are not actionable. Liability under section 1983 4 “arises only upon a showing of personal participation by the defendant.” Taylor v. List, 880 F.2d 5 1040, 1045 (9th Cir. 1989). There is no “team liability” under section 1983; a plaintiff cannot 6 hold an officer liable merely because of his membership in a group without a showing of 7 individual participation in the specific alleged unlawful conduct. Chuman v. Wright, 76 F.3d 292, 8 294 (9th Cir. 1996). A plaintiff is required to establish “integral participation” by each officer in 9 order to support an alleged violation against that officer. Id. (quoting Melear v. Spears, 862 F.2d 10 1177, 1186 (5th Cir. 1989)); Jones v. Williams, 297 F.3d 930, 935 (9th Cir. 2007). Integral 11 participation requires “some fundamental involvement in the conduct that allegedly caused the 12 violation.” Blankenhorn v. City of Orange, 485 F.3d 463, 481 fn.12 (9th Cir. 2007). 13 As to the claim for unlawful seizure, there was a valid arrest warrant. (Arrest Warrant, 14 RJN, Ex. A.) To the extent that Plaintiff alleges that Detective Boyd fabricated his affidavit to 15 obtain the arrest warrant, Plaintiff must explain how Defendants knew the information was wrong 16 at the time the warrant was issued. (See FAC at 3.) 17 As to the claim for unlawful search of his cell phone, Defendants contend that a warrant 18 was not required to “ping” Plaintiff’s cell phone due to exigent circumstances. (Defs.’ Mot. at 15.) 19 Identifying the location of abducted children is an exigent circumstance. See U.S. v. Brooks, 367 20 F.3d 1128, 1135 (9th Cir. 2004) (“[W]e define exigent circumstances as those circumstances that 21 would cause a reasonable person to believe that entry … was necessary to prevent physical harm 22 to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or 23 some other consequence improperly frustrating legitimate law enforcement efforts.”) Here, based 24 on Plaintiff’s own allegations and admissions, as well as the judicially-noticed Arrest Warrant, the 25 Officers reasonably believed that determining Plaintiff’s location via his cell phone “would ensure 26 the safety of a potential kidnapping victim” – the two children Plaintiff took without permission. 27 See Hill v. City of Fountain Valley, 70 F.4th 507, 516-17 (9th Cir. 2023) (finding that an “exigent 1 kidnappers’ family members out of their home). Even so, the validity of the warrantless ping is 2 predicated on the validity of the arrest warrant itself. 3 Thus, Plaintiff must amend the claims for unlawful seizure and unlawful search, but should 4 do so separately, as they are separate alleged violations of the Fourth Amendment. 5 e. Conspiracy 6 Plaintiff’s fourth cause of action is for conspiracy pursuant to sections 1983 and 1988. 7 (FAC at 6.) Civil conspiracy is not an independent cause of action; rather, it is a “mechanism for 8 subjecting co-conspirators to liability when one of their members committed a tortious act.” Beck 9 v. Prupis, 529 U.S. 494, 503 (2000). “To survive a motion to dismiss, plaintiff[s] must allege with 10 sufficient particularity that [defendants] reached some exclusive or tacit understanding or 11 agreement ... It is not enough to show that defendants might have had a common goal unless there 12 is a factually specific allegation that they directed themselves toward this by virtue of a mutual 13 understanding or agreement.” Lincoln v. Tuso, No. 96-1297, 1996 WL 708592, at *6 (N.D. Cal. 14 Dec. 5, 1996) (internal quotations and citation omitted). 15 In moving to dismiss, Defendants argue that “because Plaintiff has not alleged any 16 violation of his rights by Defendants, Defendants cannot be liable for civil conspiracy.” (Defs.’ 17 Mot. at 20.) Given the conclusory nature of Plaintiff’s claims, the Court agrees. 18 Thus, the conspiracy claim must be amended. In doing so, Plaintiff is advised that he must 19 specifically identify the defendants who allegedly engaged in the conspiracy and the facts that 20 suggest that they came to an agreement. See Crowe v. Cnty. of San Diego, 608 F.3d 406, 440 (9th 21 Cir. 2010). 22 f. Bane Act (Cal. Civil Code § 52.1) 23 Plaintiff’s fifth cause of action is for violation of the Bane Act, California Civil Code § 24 52.1. (FAC at 6.) Defendants move to dismiss this claim on the grounds that it is precluded due to 25 Plaintiff’s failure to comply with the claims presentation requirement. (Defs.’ Mot. at 21.) 26 Under the California Tort Claims Act, a suit for money or damages cannot be brought 27 against a public entity or its employee “until a written claim therefor has been presented to the 1 the board....” Cal. Gov. Code § 945.4. “A claim relating to a cause of action for ... injury to person 2 ... shall be presented ... not later than six months after the accrual of the cause of action.” Cal. Gov. 3 Code § 911.2 (a). This applies only to the causes of action brought under state law, including the 4 common law claims; there is no presentation requirement for claims brought under 42 U.S.C. § 5 1983. Casey v. City of Santa Rosa, No. 4:18-cv-07731-KAW, 2019 WL 2548140, at *3 (N.D. Cal. 6 June 20, 2019) 7 Notwithstanding, a claim may be presented after the six-month period has run by “written 8 application ... to the public entity for leave to present that claim.” Cal. Gov. Code § 911.4(a). The 9 application shall be presented to the public entity “within a reasonable time not to exceed one year 10 after the accrual of the cause of action and shall state the reason for the delay in presenting the 11 claim.” Cal. Gov. Code § 911.4(b). 12 Here, Plaintiff was arrested on April 20, 2023, so his claim would have accrued on that 13 date. Since the one-year period has run, if Plaintiff did not file a claim by April 22, 2024, all his 14 state law and common law claims would be time-barred absent allegations that would provide a 15 basis for tolling. Thus, Plaintiff is granted leave to amend, but he should only amend if he timely 16 filed a government claim or can plead allegations sufficient to toll the statute of limitations. If he 17 cannot do so, he should not amend this cause of action. 18 g. California Constitution Art. I 19 While not listed as a cause of action, Plaintiff claims the violation of his rights to 20 happiness, due process, and to protection against unreasonable search and seizure guaranteed by 21 Article I of the California Constitution. (FAC at 6-7.) While Defendants do not explicitly move to 22 dismiss this claim, it is also subject to dismissal for failure to comply with Rule 8(a)(2). See 23 discussion, supra, Part III.B.i. For example, the Court cannot ascertain under which section(s) of 24 Article I he is bringing his claims. Indeed, not all sections of Article I confer a private right of 25 action. See Roy v. Cty. of L.A., 114 F. Supp. 3d 1030, 1041 (C.D. Cal. 2015) (“sections 7 and 13 26 do not confer private rights of action for [monetary] damages”). 27 Accordingly, this unnumbered claim is dismissed with leave to amend. Should Plaintiff 1 and Plaintiff must specify the Article I section(s) under which he is bringing his claim. 2 iii. Officer Immunity pursuant to California Government Code 3 Finally, Defendants argue that the Officers are immune from liability pursuant to 4 Government Code sections 820.2 and 821.6, which immunizes them for their discretionary actions 5 and for actions such as reporting or investigating a crime. (Defs.’ Mot. at 24.) Plaintiff does not 6 address this argument or any other in his opposition, so it is considered waived, and motion may 7 be granted as to the officers on this basis. 8 Nonetheless, since Plaintiff is pro se and his complaint runs afoul of Rule 8, such that he 9 || has been granted leave to amend, the Court declines to address this argument. 10 IV. CONCLUSION 11 For the reasons set forth above, the motion to dismiss is GRANTED in full, with leave to 12 || amend. Plaintiff shall file an amended complaint within 21 days of this order. 5 13 In amending his complaint, Plaintiff is not permitted to add new claims or new parties.

IT IS SO ORDERED.

3 15 Dated: November 21, 2024 .

3 17 United States Magistrate Judge

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