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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

9 10 11 DALE E. PHILLIPS, ) Case No. 8:23-CV-00622-CAS (BFM) ) 12 ) Plaintiff, ) ORDER APPROVING FINDINGS 13 ) ) AND RECOMMENDATIONS OF 14 v. ) UNITED STATES MAGISTRATE )

JUDGE

15 )

THE IRVINE COMPANY LLC ET AL, )

) 16 ) Defendant. ) 17 ) ) 18 19 20 I. INTRODUCTION 21 On May 6, 2024, United States Magistrate Judge Brianna Fuller Mircheff 22 (the “Magistrate Judge”) issued a Report and Recommendation granting three 23 motions to dismiss filed by the defendants in this case. Dkt. 94 (“R&R”). On May 24 20, 2024, plaintiff Dale E. Phillips (“plaintiff”) filed his objections to the R&R. 25 Dkt. 96 (“Objections”). 26 Pursuant to 28 U.S.C. § 636, the Court has reviewed the records and files 27 herein, the R&R of the Magistrate Judge, and plaintiff’s Objections thereto. After 1 having made a de novo determination of the portions of the R&R to which 2 plaintiff’s objections were directed, the Court accepts the report, findings, and 3 recommendations of the Magistrate Judge. 4 II. BACKGROUND 5 On April 6, 2023, plaintiff filed his original complaint, alleging twenty-eight 6 claims for relief against defendants the Irvine Company, LLC, doing business as 7 Fashion Island, Miguel Ramirez, S. Hernandez, Fashion Island Guard Doe 1, 8 Fashion Island Guard Doe 2, the Newport Beach Police Department (the “NBPD”), 9 Officer Doe 1, Officer Doe 2, Chief of Police Jon Lewis, John Doe, and Does 5-20, 10 inclusive. Dkt. 1. 11 On June 3, 2023, plaintiff filed his first amended complaint (“FAC”). Dkt. 12 30. In his FAC, plaintiff names Officer Doe 1 and Officer Doe 2 as Lieutenant 13 Eric Little and Officer Christian Cornelius (collectively the “officers”) of the 14 NBPD. Id. On June 29, the City of Newport Beach (the “City”), Officer 15 Cornelius, Lieutenant Little, and Chief Lewis (collectively the “City Defendants”), 16 filed a motion to dismiss. Dkt. 39. On August 7, 2023, Hernandez also filed a 17 motion to dismiss. On September 11, 2023, the Magistrate Judge issued a report 18 and recommendation and a minute order staying briefing on Hernandez’s motion to 19 dismiss pending the Court’s order on the report and recommendation. Dkts. 62, 20 64. On October 20, 2023, the Court accepted the report and recommendation, 21 granting the motion to dismiss filed by the City Defendants, with leave to amend. 22 Dkt. 66. 23 On November 20, 2023, plaintiff filed his second amended complaint. Dkt. 24 69 (“SAC”). Therein, plaintiff alleges seventy-two claims for relief stemming 25 from the incident at Fashion Island and subsequent interactions with the NBPD 26 addressed in his earlier complaints. See generally dkt. 69 (“SAC”). The instant 27 R&R addresses three motions to dismiss plaintiff’s SAC: one filed by the City 1 Defendants, dkt. 79, and two filed by groups of defendants associated with 2 Universal Protection Service, which is the company that employs the security 3 guards at Fashion Island (the “UPS Defendants”), dkts. 76, 90. 4 On December 4, 2023, defendant Hernandez, one of the UPS Defendants 5 filed his motion to dismiss the SAC. Dkt. 76. On December 6, 2023, the Newport 6 Beach Defendants filed their motion to dismiss the SAC. Dkt. 79. On February 9, 7 2024, the remaining UPS Defendants filed their motion to dismiss the SAC. Dkt. 8 90. Plaintiff opposed each motion to dismiss. Dkts. 82, 83, 92. Each set of 9 defendants filed a reply. Dkts. 86, 87, 93. 10 The facts at issue are comprehensively set forth in the R&R, thus the Court 11 does not repeat them unless relevant to the Court’s decision. R&R at 3-7. 12 III. LEGAL STANDARD 13 “A judge of the court may accept, reject, or modify, in whole or in part, the 14 findings or recommendations made by the magistrate judge.” 28 U.S.C. § 15 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (stating “[t]he district judge must 16 determine de novo any part of the magistrate judge's disposition that has been 17 properly objected to,” and “[t]he district judge may accept, reject, or modify the 18 recommended disposition; receive further evidence; or return the matter to the 19 magistrate judge with instructions”). Proper objections require “specific written 20 objections to the proposed findings and recommendations” of the magistrate judge. 21 Fed. R. Civ. P. 72(b)(2). “A judge of the court shall make a de novo determination 22 of those portions of the report or specified proposed findings or recommendations 23 to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also United States v. 24 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“The statute makes it clear that 25 the district judge must review the magistrate judge's findings and recommendations 26 de novo if objection is made, but not otherwise.”). Where no objection has been 27 made, arguments challenging a finding are deemed waived. See 28 U.S.C. § 1 636(b)(1)(C) (“Within fourteen days after being served with a copy, any party may 2 serve and file written objections to such proposed findings and recommendations 3 as provided by rules of court.”). Moreover, “[o]bjections to a R&R are not a 4 vehicle to relitigate the same arguments carefully considered and rejected by the 5 Magistrate Judge.” Chith v. Haynes, 2021 WL 4744596, at *1 (W.D. Wash. Oct. 6 12, 2021). 7 IV. DISCUSSION 8 The Court first addresses the claims brought against the City Defendants. 9 Plaintiff brings four claims for relief against Lieutenant Little and Officer 10 Cornelius. SAC ¶¶ 284-301. These are: violation of due process pursuant to 42 11 U.S.C. § 1983 (“§ 1983”) in performance of their official duties; violation of equal 12 protection pursuant to § 1983 in performance of their official duties; negligence; 13 and negligent infliction of emotional distress. R&R at 8. Plaintiff brings two 14 claims for relief against Chief Lewis. SAC ¶¶ 302-305. These are, first, failure to 15 train under § 1983 on the theory that Chief Lewis “knew or should have known 16 that [the NBPD’s] inadequate [training] program was likely to result in an equal 17 protection violation based on a pattern of similar violations, and the failure to 18 adequately train caused [p]laintiff’s rights to due process and equal protection to be 19 violated.” Second, plaintiff brings a claim against Chief Lewis for acts of 20 subordinates pursuant to § 1983 based on an allegation that Chief Lewis knew or 21 should have known of the wrongful conduct of the other officers, that this conduct 22 created a substantial risk of harm to plaintiff, and that he disregarded that risk by 23 failing to prevent the officers’ wrongful conduct. R&R at 8-9. Plaintiff also brings 24 one claim against the City for a violation of California Government Code § 815.6, 25 for violation of a mandatory duty, based on a provision of the California 26 Constitution providing victims the right to be treated fairly and with respect and to 27 be free from intimidation, which he claims was violated when officers refused to 1 take a police report, “implied he was a sexual deviant, failed to investigate the 2 accuracy of the sexual deviant allegation, and ridiculed him.” Id. at 7-8. 3 With regard to the claims against Lieutenant Little and Officer Cornelius, 4 the Court concludes that the R&R is correct to determine that plaintiff fails to state 5 a claim. Plaintiff’s due process and equal protection claims are based on the 6 failure to prepare a police report, which without more, is not a constitutional 7 violation. The failure to prepare a police report, as the Magistrate Judge explained, 8 does not amount to a due process violation because citizens do not have an 9 affirmative entitlement to have officers enforce the law on their behalf. R&R at 15 10 (citing Castle Rock v. Gonzales, 545 U.S. 748, 768 (2005)). In his objections, 11 plaintiff contends that Castle Rock instructed lower courts to look for positive 12 entitlements in sources such as state law, and that pursuant to California law 13 individuals have “‘the right to expect that crimes will be thoroughly investigated 14 ….’” Objections at 7 (citing In re Vicks, 56 Cal. 4th 274, 282 (2013)). The Court 15 concludes that even if this is the case, this “right” under California law does not 16 amount to an affirmative entitlement to have a police report prepared in every 17 circumstance as plaintiff asserts. 18 Plaintiff also objects to the R&R and the finding that the preparation of a 19 police report is discretionary because the Court “had authority and an obligation to 20 pose the question to the California Supreme Court.” Objections at 8. The Court 21 concludes that “the decision to certify a question to a state supreme court rests in 22 the sound discretion of the district court.” Eckard Brandes, Inc. v. Riley, 338 F.3d 23 1082, 1087 (9th Cir. 2003) (internal quotations and citations omitted). The Ninth 24 Circuit has held that “[e]ven where state law is unclear, resort to the certification 25 process is not obligatory.” Riordan v. State Farm Mut. Auto. Ins. Co., 589 F.3d 26 999, 1009 (9th Cir. 2009) (citing Lehman Bros. v. Schein, 416 U.S. 386, 390 27 (1974)). The Court concludes that the Magistrate Judge was correct to decline to 1 certify the question of whether state law creates an entitlement to have a police 2 report prepared to the California Supreme Court. The Court clearly has discretion 3 to decline plaintiff’s request for certification, even when the law is unclear, which 4 the Court concludes in this case it is not. 5 As to plaintiff’s equal protection violation claim against Lieutenant Little 6 and Officer Cornelius, the Court concludes that the Magistrate Judge was right that 7 plaintiff has failed to establish that the officers knew he was a Mormon or that the 8 officers treated him differently on that basis. R&R at 16. Plaintiff has also failed 9 to establish that he is a member of any other protected class and, as the R&R 10 explains, seems to be stating his equal protection claim on the basis that he was 11 denied a police report when other victims of crime would have been provided one. 12 Id. (citing SAC ¶¶ 116-118). This is not the proper basis for an equal protection 13 claim, which requires plaintiff to demonstrate that “defendants acted with an intent 14 or purpose to discriminate against the plaintiff based on membership in a protected 15 class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Plaintiff bears 16 the burden of providing evidence of a discriminatory intent or motive, which 17 plaintiff has failed to do here. Navarro v. Block, 72 F.3d 712, 716 (9th Cir. 1995). 18 Plaintiff also “has never suggested that NBPD has a policy or custom of refusing to 19 take police reports from him, or from individuals who are homeless or members of 20 the [Mormon Church], or whom they believe to be sexual deviants, or on any other 21 basis.” R&R at 17. The R&R correctly concludes that “[w]ithout such allegations, 22 any claim that NBPD treats similarly situated individuals differently in terms of 23 providing police reports would be doomed to fail.” Id. (citing Monell v. Dep’t of 24 Soc. Servs. of City of N.Y., 436 U.S. 658, 690 (1978). 25 The Court notes that plaintiff also alleges negligence and negligent infliction 26 of emotional distress claims against Officer Cornelius and Lieutenant Little. The 27 R&R concludes that plaintiff fails to establish any duty owed to him, as necessary 1 to prove either negligence-based claim against the officers. R&R at 18. Though 2 the Court explained this in its prior order, the Magistrate Judge points out, plaintiff 3 in his SAC still fails to adequately allege claims based on negligence, and thus they 4 are properly dismissed. Id. 5 The Court also agrees with the conclusion reached in the R&R that plaintiff 6 fails to state claims against Officer Cornelius and Lieutenant Little in their official 7 capacities, as well as in their individual capacities. Id. at 18-19. These claims, as 8 explained in the R&R, are duplicative of the claims against Chief Lewis, and thus 9 should be dismissed, and should also be dismissed for the same reasons they 10 should be dismissed as against Chief Lewis, explained below. Id. at 19 (citing 11 Vance v. City of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996)). 12 The Magistrate Judge also concludes that the claims against Chief Lewis 13 should be dismissed, a finding the Court adopts. The R&R explains that plaintiff is 14 not able to state a failure to train claim because he has not shown that Chief 15 Lewis’s subordinates, Lieutenant Little and Officer Cornelius, committed any 16 constitutional violation. R&R at 19-20 (citing Benavidez v. Cnty. of San Diego, 17 993 F.3d 1134, 1153-54 (9th Cir. 2021). Additionally, plaintiff fails to point to a 18 pattern of constitutional violations by untrained employees, as required to state a 19 claim. Id. at 20 (citing Connick v. Thompson, 563 U.S. 51, 62 (2011)). The 20 Magistrate Judge concludes that despite the explanation of this deficiency in the 21 Court’s prior order dismissing plaintiff’s First Amended Complaint, plaintiff failed 22 to allege a pattern of constitutional violations in his SAC and makes only the 23 conclusory claim that “he will be able to prove ‘a pattern of similar violations.’” 24 Id. (citing SAC ¶ 303). In his objections, plaintiff contends that the Court has 25 generally imposed a pleading standard that is excessively high, citing this example 26 in particular and arguing that he is being asked “to prove his allegations, doing so 27 without the benefit of discovery privileges.” Objections at 4. The Court concludes 1 that the Magistrate Judge imposed the appropriate pleading standard on plaintiff 2 pursuant to Bell Atlantic Corp v. Twombly, 550 U.S. 544 (2007), and that on this 3 claim to which plaintiff raises particular objection, the Ninth Circuit has said that 4 “an inadequate training policy itself cannot be inferred from a single incident.” 5 Hyde v. City of Willcox, 23 F.4th 863, 875 (9th Cir. 2022). Accordingly, the 6 Magistrate Judge was correct to recommend dismissal of the failure to train claim, 7 and did not impose an excessively stringent pleading standard on plaintiff in doing 8 so. 9 Additionally, the Court agrees with the Magistrate Judge’s finding that Chief 10 Lewis is not liable under § 1983 for the acts of his subordinates because plaintiff 11 has not alleged any unconstitutional acts by subordinates, nor has he demonstrated 12 that Chief Lewis was personally involved in any constitutional deprivation or that 13 there is a sufficient causal connection between Chief Lewis’s wrongful conduct 14 and a constitutional violation. R&R at 21. 15 As to the California Government Code claim against the City, the Court 16 concludes that the Magistrate Judge was right that this claim is barred because 17 plaintiff failed to present it to the City within six months. Id. at 22 (citing Cal. 18 Govt. Code §§ 905, 911.2(a)). The R&R correctly explains that plaintiff’s late 19 discovery of Officer Cornelius and Lieutenant Little’s names is not a basis for late 20 filing, nor is the fact that he alleges his injury is ongoing. Id. at 22-23. The Court 21 agrees with the determination in the R&R that plaintiff’s claim does not qualify for 22 any kind of tolling and that he “has not alleged any new injury that he suffered 23 within the six months before he presented his claim” more than a year after it 24 accrued, thus his claim is untimely, and must be dismissed. Id. at 23. The 25 Magistrate Judge notes that this was addressed in the Court’s prior order and that 26 plaintiff raises one new argument for timeliness, which is that “the statute of 27 limitations is tolled for as long as he has not been permitted to ‘appeal’ the 1 ‘charge’ of sexual deviancy,” however, the Court explains that he faces no such 2 formal charge. Id. at 23-24 (citing SAC ¶ 146). 3 In his objections, plaintiff restates this same argument, contending that the 4 Magistrate Judge relied on the statute of limitations as “a practical bar to all his 5 state-related claims despite a clear showing of lasting injuries that accrue to this 6 day.” Objections at 5. The Court notes that the R&R relies on the time bar only in 7 relation to the single claim against the City. R&R at 21-24. The Court also 8 concludes that this objection does not raise new arguments beyond those properly 9 addressed in the R&R, the analysis of which the Court concludes is correct. 10 Accordingly, the Court agrees that the claim against the City must be dismissed. 11 The R&R recommends that all claims against the City Defendants be 12 dismissed with prejudice. Id. at 24. The Court agrees with this conclusion. As the 13 Magistrate Judge points out, “[p]laintiff’s allegations did not change significantly 14 between the First and Second Amended Complaints,” and though plaintiff received 15 instruction from the Court in its prior order about the deficiencies in his claims, he 16 has failed to adequately address the flaws in his amended pleading. Id. The Court 17 concurs with the Magistrate Judge’s analysis that “the problems with [p]laintiff’s 18 arguments against the [City] Defendants are not ones that [p]laintiff is likely to 19 cure,” given the flaws in his underlying legal theories. Id. Because leave to amend 20 appears to be futile, the Court adopts the Magistrate Judge’s recommendation that 21 the claims against the City Defendants should be dismissed with prejudice. The 22 Court notes plaintiff’s global objection as to the pleading standard applied in the 23 R&R but finds, as the Magistrate Judge did, that plaintiff has failed to bring his 24 claims across the line from possible to plausible on his third opportunity to do so in 25 this SAC. Objections at 3-4; Twombly, 550 U.S. 554. 26 The R&R also recommends dismissing all claims against the UPS 27 defendants with leave to amend. The Court agrees that dismissal of these claims is 1 warranted, for the reasons set forth in the R&R, and that as the Magistrate Judge 2 notes, plaintiff should be given leave to amend since he “has not previously been 3 advised of the deficiencies in these claims.” R&R at 25. By way of a footnote, the 4 Magistrate Judge points out that “[i]t is not clear whether dismissal of the § 1983 5 claims against the [City] Defendants, the only federal claims in the SAC, affects 6 the Court’s jurisdiction on the remaining claims,” and that plaintiff has alleged 7 diversity jurisdiction as an alternative basis for this Court’s jurisdiction, but in his 8 SAC he states only that “‘one of the parties is domiciled in a different state’ though 9 he does not say which one.” Id. at 24, n.3 (citing SAC ¶ 20). The R&R goes on to 10 note that the Irvine Company, LLC “answered and appeared to agree that there is 11 diversity jurisdiction in the case,” and states that if the Court accepts the R&R, the 12 Court “will address the question of jurisdiction in a further order.” Id. The Court 13 concludes that such an order would be appropriate, and notes that though the Irvine 14 Company, LLC in its answer seemed to accept that jurisdiction pursuant to 28 15 U.S.C. § 1332(a) is appropriate, for this to be the case, all defendants would need 16 to be diverse (not just one as plaintiff asserts). Dkt. 74 ¶ 20; 28 U.S.C. § 1332(a); 17 Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) (holding that 28 U.S.C. § 1332 (a) 18 “applies only to cases in which the citizenship of each plaintiff is diverse from the 19 citizenship of each defendant”). The Court also notes that LLCs, such as the Irvine 20 Company, LLC, “have the citizenship of their owners/members.” Johnson v. 21 Columbia Properties Anchorage, LP, 437 F.3d 894, 902 (9th Cir. 2006). 22 V. CONCLUSION 23 Having completed its review, the Court accepts the findings and 24 recommendations set forth in the R&R. 25 Accordingly, IT IS ORDERED that the City Defendants’ motion to dismiss 26 is GRANTED with prejudice and without leave to amend and the City Defendants 27 are dismissed from this case. 1 The two motions to dismiss filed by the UPS Defendants are GRANTED, 2 || without prejudice and with leave to amend. 3 Plaintiff is given 30 days leave in which to file a Third Amended Complaint 4 remedying the deficiencies in his SAC, or to notify the Court that he intends to 5 || proceed on the claims in the SAC which have not been dismissed. 6 7 Dated: March 7, 2025 Abn bie L bugle

CHRISTINA A. SNYDER.

9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 11