MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT (Doc. 36)

Plaintiff Theodore Furtado Medeiros has filed a First Amended Complaint (“FAC”) for Damages against Defendants Merced County Sheriff Deputy Clark (# 5142) and Merced County Sheriff Deputy Eric Macias (# 5185), individually and in their official capacities, and Does 1-20. The FAC alleges:

The First Cause of Action is for violation of 42 U.S.C. § 1983 for excessive force, arrest without probable cause, imprisonment and false and malicious prosecution, and covering up these acts and depriving plaintiff of rights to recover for his damages, and alleges in pertinent part:

The Second Cause of Action is for malicious prosecution, and alleges in pertinent part:

The Third Cause of Action is for false imprisonment and alleges in pertinent part:

Defendants move to dismiss the FAC for failure to state a claim upon which relief can be granted.

Plaintiff concedes that the Second Cause of Action is barred by California Government Code § 821.6.

A. GOVERNING STANDARDS.

A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory or where the complaint presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir.1984). In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.2002). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191 , 1200 (9th Cir.2003). “A district court should grant a motion to dismiss if plaintiffs have not pled ‘enough facts to state a claim to relief that is plausible on its face.’ ” Williams ex rel. Tabiu v. Gerber Products Co., 523 F.3d 934, 938 (9th Cir. 2008), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 , 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007). “ ‘Factual allegations must be enough to raise a right to relief above the speculative level.’ ” Id. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic, id. at 555, 127 S.Ct. 1955 . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556 , 127 S.Ct. 1955 . The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully, Id. Wdiere a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id. at 557 , 127 S.Ct. 1955 . In Ashcroft v. Iqbal, —U.S.-, 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009), the Supreme Court explained:

Immunities and other affirmative defenses may be upheld on a motion to dismiss only when they are established on the face of the complaint. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir.1999); Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980) When ruling on a motion to dismiss, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. Parrino v. FHP, Inc., 146 F.3d 699, 705-706 (9th Cir.1998).

B. REQUEST FOR JUDICIAL NOTICE.

Defendants request the Court take judicial notice of the October 8, 2008 Minute Order in People v. Medeiros, No. MF48829, Merced County Superior Court and Plaintiffs initial Complaint filed in this action.

Plaintiff requests the Court take judicial notice of the October 7, 2009 Minute Order in People v. Medeiros, No. MF48829, Merced County Superior Court.

C. HECK v. HUMPHREY.

Defendants move to dismiss the First and Third Causes of Action on the ground that they are barred by Heck v. Humphrey, 512 U.S. 477 , 114 S.Ct. 2364 , 129 L.Ed.2d 383 (1994).

In Heck , the Supreme Court held that a Section 1983 action that calls into question the lawfulness of a plaintiffs conviction or confinement is not cognizable and does not, therefore, accrue until and unless the plaintiff can prove that his conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus. When a plaintiff files a Section 1983 action, the court must determine whether “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” 512 U.S. at 487 , 114 S.Ct. 2364 . On the other hand, if “the plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.” Id. Thus, a convicted plaintiff cannot bring a section 1983 claim arising out of alleged unconstitutional activities that resulted in his criminal conviction unless the conviction is set aside.

Heck at 486-87, 114 S.Ct. 2364 . Without such a showing of a “favorable termination,” the person’s cause of action under § 1983 has not yet accrued. Id. at 489, 114 S.Ct. 2364 . Thus if a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence, the complaint must be dismissed. Id. at 487 , 114 S.Ct. 2364 .

In moving to dismiss, Defendants rely on the “favorable termination” rule. The Ninth Circuit has found that “[tjhere is no question” that the “favorable termination” rule bars a convicted plaintiffs claim that defendants falsely arrested him and brought unfounded charges. Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.1996). Wrongful arrest and bringing false charges could not have occurred unless the plaintiff was innocent of the crime for which he was convicted. Guerrero v. Gates, 442 F.3d 697, 703 (9th Cir.2006).

Defendants argue that the fact that “deferred entry of judgment” was entered against Plaintiff in the underlying criminal proceedings on the condition that Plaintiff stay more than 100 yards away from 609 Fleming Road for one year does not con- statute a “favorable termination” for purposes of Heck v. Humphrey.

The FAC does not allege a deferred entry of judgment; it alleges “the Deputy District Attorney put plaintiffs case into ‘deferred prosecution’ on condition plaintiff stay 100 yards away from 609 Fleming Road for one year until October 7, 2009 at which time the case was dismissed.” Although Plaintiff correctly asserts that California Penal Code §§ 1000-1000.8 limits deferred entry of judgment to specified narcotics and drug abuse cases, as Defendants note, California Penal Code §§ 1001-1001.9 provides for misdemeanor pretrial diversion. It appears that this is what occurred in Plaintiffs underlying criminal case.

“[PJretrial diversion refers to the procedure of postponing prosecution of an offense filed as a misdemeanor either temporarily or permanently at any point in the judicial process from the point at which the accused is charged until adjudication.” Cal.Penal Code § 1001.1. Section 1001.2(b) provides:

Section 1001.3 provides that “[a]t no time shall a defendant be required to make an admission of guilt as a prerequisite for placement in a pretrial diversion program.” A divertee is entitled to a hearing before his pretrial diversion can be terminated for cause, Section 1001.4, and no statement or information procured therefrom, made by the defendant in connection with determination of eligibility for diversion or made subsequently to the granting of diversion or while participating in a diversion program, shall be admissible in any action or proceeding. Section 1001.5. At the time a defendant’s case is diverted, all bail is exonerated. Section 1001.6. “If the divertee has performed satisfactorily during the period of diversion, the criminal charges shall be dismissed at the end of the period of diversion.” Section 1001.9 provides:

support of their position.

In United States v. Bosser, 866 F.2d 315 (9th Cir.1989), the defendant, charged with forgery under the Assimilative Crimes Act, pled guilty to the charge and moved to defer acceptance of her guilty plea under Hawaii law. On appeal, the United States argued that the Hawaii deferred acceptance rule is a form of punishment within the meaning of the ACA. The Ninth Circuit agreed:

866 F.2d at 316-317 .

In United States v. Sylve, 135 F.3d 680 (9th Cir.1998), the defendant, who was charged under the Assimilative Crimes Act with driving under the influence of alcohol within a federal enclave in the State of Washington, moved for deferred prosecution under Washington law. The motion was denied. On appeal, the Ninth Circuit held that Washington’s deferred prosecution program was a form of punishment to be incorporated through the ACA: \

135 F.3d at 681-683 .

In DeLeon v. City of Corpus Christi, 488 F.3d 649 (5th Cir.2007), the plaintiff appealed the district court’s dismissal of his Section 1983 action as barred by Heck v. Humphrey. In the underlying criminal proceeding, the plaintiff was charged with aggravated assault of a police officer, pleaded guilty, and received a deferred adjudication. The Texas Code of Criminal Procedure, art. 42.01, § 1, provided:

The district court ruled that plaintiffs deferred adjudication barred his section 1983 claims pursuant to Heck because he had admitted his guilty to aggravated assault in a judicial confession. The Fifth Circuit addressed “whether a deferred adjudication in Texas is a ‘sentence or conviction’ for the purposes of Heck.” Id. at 652-653. In pertinent part, the Fifth Circuit ruled:

Id. at 655-656.

A case cited by Defendants in order to distinguish it is McClish v. Nugent, 483 F.3d 1231 (11th Cir.2007). In McClish , a plaintiff brought a Section 1983 action arising out of his arrest. The Eleventh Circuit ruled:

Id. at 1251.

In Vasquez Arroyo v. Starks, 589 F.3d 1091 (10th Cir.2009), the plaintiff brought a Section 1983 action alleging that, in two separate incidents, Kansas law enforcement authorities falsely arrested him for driving under the influence and disorderly conduct and forged plaintiffs signature on a pre-trial diversion agreement. The District Court dismissed the action pursuant to the “favorable termination” rule of Heck . The Tenth Circuit reversed:

The Supreme Court in Wallace [v. Kato] made clear that the Heck bar comes into play only when there is an actual conviction, not an anticipated one. 549 U.S. [384], at 393, 127 S.Ct. 1091 [ 166 L.Ed.2d 973 (2007) ] ... The Court explained why this is so:

Id.; see also Butler [v. Compton], 482 F.3d [1277], at 1279 [(10th Cir.2007)] (‘The starting point for the application of Heck ... is the existence of an underlying conviction or sentence that is tied to the conduct alleged in the § 1983 action.

589 F.3d at 1095-1096 .

Plaintiff responds that Heck v. Humphrey does not bar his § 1983 claim and the cases relied upon by Defendants are inapplicable:

Defendants reply that whether or not Plaintiff pled guilty is irrelevant because Plaintiff stipulated to a restraining order for a full year as a deferred prosecution.

The Ninth Circuit decisions upon which Defendants rely do not address the application of Heck v. Humphrey and do not control resolution of this issue.

In Nonnette v. Small, 316 F.3d 872 (9th Cir.2002), cert. denied, 540 U.S. 1218 , 124 S.Ct. 1503 , 158 L.Ed.2d 152 (2004), the plaintiff brought a Section 1983 action challenging the revocation of good time credits and the imposition of administrative segregation following a prison disciplinary proceeding. The District Court dismissed the case based on Heck . By the time the appeal was heard, the plaintiff had been released from prison and was on parole. The Ninth Circuit noted that as a result of his release, any federal habeas challenge to the disciplinary proceedings would be dismissed as moot, as plaintiff had “fully served the period of incarceration that he is attacking.” Id. at 875-876. Although a prisoner who has completed a sentence and seeks to challenge his or her conviction in habeas may do so because of the “collateral consequences that survive [the prisoner’s release],” habeas is not available to former prisoners who attack a deprivation of good time credits because such former prisoners who challenge a term of incarceration for a parole violation have no collateral consequences stemming from the challenged action. Id., citing Spencer v. Kemna, 523 U.S. 1, 14-16 , 118 S.Ct. 978 , 140 L.Ed.2d 43 (1998). The Ninth Circuit then inquired whether the unavailability of a remedy in habeas corpus because of mootness permitted the plaintiff to maintain a Section 1983 action for damages, even though success in that action would necessarily imply the invalidity of the disciplinary proceedings that caused revocation of the good-time credits. Id. at 876. “Informed as we are by the opinions in Spencer , we conclude that Heck does not preclude Nonnette’s § 1983 action.” Id. at 877. In Guerrero v. Gates, 442 F.3d 697, 704-705 (9th Cir.2006), the Ninth Circuit ruled emphasized that where habeas relief is not available through no fault of the plaintiff, Heck does not bar a Section 1983 action.

Here, because Plaintiff was never convicted of any crime, he could not challenge the misdemeanor pretrial diversion through appeal or habeas corpus. Plaintiff was never incarcerated and suffers no collateral consequences as a result of the misdemeanor pretrial diversion. See Nickerson v. Portland Police Bureau, 2008 WL 4449874 at *8 (D.Or., Sept. 30, 2008): “With no habeas remedy available, and no allegations of any collateral consequences stemming from a traffic conviction, Heck does not bar plaintiffs section 1983 equal protection claim.”; see also Cole v. Doe 1 thru 2 Officers of the City of Emeryville Police Dep’t, 387 F.Supp.2d 1084, 1092-1093 (N.D.Cal.2005).

Defendants’ motion to dismiss the First Cause of Action as barred by Heck is DENIED.

D. PROBABLE CAUSE.

Defendants move to dismiss all three causes of action on the ground that probable cause to arrest is demonstrated by the allegations of the Complaint and the FAC.

“ ‘Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person arrested.’ ” Rodis v. City and County of San Francisco, 558 F.3d 964, 969 (9th Cir.2009), cert. denied, —U.S.-, 130 S.Ct. 1050 ,—L.Ed.2d-(2010).

At the hearing, Defendants referred to California Penal Code § 602(m):

California Penal Code § 7 provides:

A violation of Section 602(m) requires occupation of the property, “ ‘a nontransient, continuous type of possession.’” In re Catalano, 29 Cal.3d 1 , 10 n. 8, 171 Cal.Rptr. 667 , 623 P.2d 228 (1981), citing People v. Wilkinson, 56 Cal.Rptr. 261 , 248 Cal.App.2d Supp. 906 , 910 (1967); see also Edgerly v. City and County of San Francisco, 599 F.3d 946, 954 (9th Cir.2010):

Defendants refer to allegations in Plaintiffs initial complaint where he admits he was on the property without permission:

Defendants also refer to the allegations in the initial Complaint that Plaintiffs footprints were found in the tack room and Plaintiffs tire tracks were all around the dirt on the property:

Defendants refer to the allegations in the FAC that “Deputy Clark told plaintiff that his son, Scott Clark, saw plaintiff walk to and from the tack room and carry something out.”

As explained in Team Enterprises, LLP v. Western Inv. Real Estate Trust, 2009 WL 1451635 at *4 (E.D.Cal., May 20, 2009):

It is highly doubtful that the allegations in the initial Complaint constitute admissions; the allegations purport to recite what the Defendants told Plaintiff, all of which Plaintiff denies is true. Accepted as true, these allegations do not appear to provide probable cause to arrest for trespassing in violation of Penal Code § 602(m). Although Plaintiff admits he was on the property and he did not have permission to enter, the allegations in the FAC do not infer that Plaintiff entered the property to occupy it. The officers allegedly found footprints and tire tracks on the property that matched Plaintiffs shoes and tires, and Defendant Clark’s son told Defendant Clark that he had seen Plaintiff go into the tack room and carry something out. The fact that Plaintiff denies he went into the tack room or even got out of his car does not negate probable cause unless Plaintiff can establish that Defendants made up everything, including the report by Defendant Clark’s son. Defendants’ motion to dismiss on the ground that probable cause exists on the face of the FAC is DENIED. Factual issues that can be resolved only by summary judgment or trial exist.

E. QUALIFIED IMMUNITY.

Defendants move to dismiss the First Cause of Action on the ground of qualified immunity from liability for damages under Section 1983.

Qualified immunity serves to shield government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). In Pearson v. Callahan, —U.S.-, 129 S.Ct. 808 , 172 L.Ed.2d 565 (2009), the Supreme Court summarized the purpose of qualified immunity:

Deciding qualified immunity normally entails a two-step analysis. Saucier v. Katz, 533 U.S. 194 , 201, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). First, “taken in the light most favorable to the party asserting the injury, do the facts alleged show the officers’ conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194 , 201, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). If the court determines that the conduct did not violate a constitutional right, the inquiry is over and the officer is entitled to qualified immunity. However, if the court determines that the conduct did violate a constitutional right, Saucier’s second prong requires the court to determine whether, at the time of the violation, the constitutional right was “clearly established.” Id. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202, 121 S.Ct. 2151 . This inquiry is wholly objective and is undertaken in light of the totality of the specific factual circumstances of each case. Id. at 201, 121 S.Ct. 2151 . Even if the violated right is clearly established, Saucier recognized that, in certain situations, it may be difficult for a police officer to determine how to apply the relevant legal doctrine to the particular circumstances he faces. If an officer makes a mistake in applying the relevant legal doctrine, he is not precluded from claiming qualified immunity so long as the mistake is reasonable. If “the officer’s mistake as to what the law requires is reasonable, ... the officer is entitled to the immunity defense.” Id. at 205, 121 S.Ct. 2151 . In Pearson , the Supreme Court ruled that “while .the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory.” Pearson, id. at 818. “The judges of the district courts and the courts of appeal should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. In Brosseau v. Haugen, 543 U.S. 194 , 125 S.Ct. 596 , 160 L.Ed.2d 583 (2004), the Supreme Court reiterated: or, indeed, even the burdens of litigation. It is important to emphasize that this inquiry ‘must be undertaken in light of the specific context of the case, not as a broad general proposition.’ Id., at 201 , 121 S.Ct. 2151 . As we previously said in this very context:

The Court of Appeals acknowledged this statement of law, but then proceeded to find fair warning in the general tests set out in Graham and [Tennessee v.] Garner [ 471 U.S. 1 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985) ] ... In so doing, it was mistaken. Graham and Gamer, following the lead of the Fourth Amendment’s text, are cast at a high level of generality. See Graham v. Connor, supra, [ 490 U.S. 386 ] at 396 [ 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989) ] (“ ‘[T]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application’ ”). Of course, in an obvious case, these standards can ‘clearly establish’ the answer, even without a body of relevant case law.’

543 U.S. at 198-199 , 125 S.Ct. 596 . However, as explained in Wilkins v. City of Oakland, 350 F.3d 949, 956 (9th Cir.2003), cert. denied sub nom. Scarrot v. Wilkins, 543 U.S. 811 , 125 S.Ct. 43 , 160 L.Ed.2d 14 (2004):

Probable cause to arrest exists if, “under the totality of the circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the plaintiff] had committed a crime.” Beier v. City of Lewiston, 354 F.3d 1058, 1065 (9th Cir.2004). The proper inquiry where an officer is claiming qualified immunity for a false arrest claim is “whether a reasonable officer could have believed that probable cause existed to arrest the plaintiff.” Franklin v. Fox, 312 F.3d 423, 437 (9th Cir.2002). Qualified immunity does not depend on whether probable cause actually existed.

Defendants argue that the allegations in the initial Complaint and the FAC demonstrate their entitlement to qualified immunity. Defendants contend that they were not required to perform a final investigation proving guilt beyond a reasonable doubt and that, even if there assessment of the facts was incorrect, those facts nonetheless established probable cause that Plaintiff had trespassed on property and taken something from the tack room on that property.

Plaintiff responds that, because a violation of California Penal Code § 459 carries a mandatory four year prison term, reasonable officers would have conducted a thorough investigation into the facts of the case. Plaintiff further asserts, upon information and belief, that discovery will show:

Citing Spurlock v. Satterfield, 167 F.3d 995, 1004-1007 (6th Cir.1999), Plaintiff contends that law enforcement officers are not entitled to qualified immunity for non-testimonial acts, i.e., allegations that they wrongfully investigated, prosecuted, fabri cated evidence, manufactured probable cause, and conspired to maliciously prosecute.

In Spurlock , plaintiffs, whose convictions on reprosecution for murder were subsequently vacated, sued the deputy sheriff and other defendants for civil rights violations under Sections 1981, 1983 and 1988, and for malicious prosecution. On appeal, the Sixth Circuit rejected Defendant Satterfield’s assertion that he was entitled to qualified immunity from liability because none of the alleged acts, standing alone, caused constitutional injuries, and that, in any event, these acts did not violate clearly established constitutional rights. The Sixth Circuit held:

Id. at 1005-1007. See also Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir.1985) (“[I]f an arrest is made in bad faith, there may be a cause of action under § 1983 as an illegal, unconstitutional arrest”).

Defendants reply that Plaintiff merely repeats the allegations of the FAC and further contend that Spurlock is distinguishable because Plaintiff concedes that his cause of action for malicious prosecution is barred by California Government Code § 821.6.

Defendants’ attempt to distinguish Spurlock is without merit. Although Plaintiff concedes dismissal of the Second Cause of Action for malicious prosecution under state law, the First Cause of Action for violation of Section 1983 also alleges malicious prosecution.

Defendants’ motion to dismiss on the ground of qualified immunity is DENIED. As noted above, it is arguable that Defendants did not have probable cause to arrest Plaintiff for trespassing in violation of Penal Code § 602(m) and that Defendants are not entitled to qualified immunity. See Edgerly, supra, 599 F.3d at 954 . The facts underlying Plaintiff’s arrest for burglary are disputed. Given Plaintiffs allegations that Defendants fabricated probable cause for the burglary and manufactured evidence, dismissal of the First Cause of Action on the basis of qualified immunity from liability is inappropriate at this juncture.

F. THIRD CAUSE OF ACTION FOR FALSE IMPRISONMENT

Defendants move to dismiss the Third Cause of Action for false imprisonment on two grounds.

Defendants cite Harris v. Business, Transp. and Housing Agency, 2007 WL 1574553 at *8 (N.D.Cal., May 30, 2007):

Asserting that Plaintiff has not stated a claim for false arrest, Defendants contend that the Third Cause of Action fails to state a claim.

First of all, the Third Cause of Action is predicated on state law, not Section 1983. Secondly, the allegations of the FAC allege that Plaintiffs arrest was not supported by probable cause but, rather, was based on fabricated facts.

Defendants further move to dismiss the Third Cause of Action on the ground that Defendants are entitled to immunity from liability under state law.

Defendants cite California Government Code § 820.2:

There is fairly recent California Supreme Court authority discussing immunity under Section 820.2 for discretionary acts, which is not cited by Defendants. In Caldwell v. Montoya, 10 Cal.4th 972 , 42 Cal.Rptr.2d 842 , 897 P.2d 1320 (1995), the California Supreme Court, citing Johnson v. State, 69 Cal.2d 782 , 73 Cal.Rptr. 240 , 447 P.2d 352 (1968), ruled:

10 Cal.4th at 981-982 , 42 Cal.Rptr.2d 842 , 897 P.2d 1320 . See also Barner v. Leeds, 24 Cal.4th 676 , 102 Cal.Rptr.2d 97 , 13 P.3d 704 (2000). In Gillan v. City of San Marino, 147 Cal.App.4th 1033, 1051 , 55 Cal.Rptr.3d 158 (2007), the Court of Appeals held:

Defendants’ motion to dismiss on the ground of Section 820.2 immunity is DENIED.

Defendants cite California Government Code § 821.6:

Plaintiff responds by citing California Government Code § 820.4:

As explained in Asgan v. City of Los Angeles, 15 Cal.4th 744, 751 , 63 Cal.Rptr.2d 842 , 937 P.2d 273 (1997):

Here, because Plaintiff concedes dismissal of the Second Cause of Action for malicious prosecution because of Section 821.6, Defendants’ reliance on Section 821.6 is moot and the motion to dismiss on this ground is DENIED.

Defendants also cite Hernandez v. City of Pomona, 46 Cal.4th 501 , 94 Cal.Rptr.3d 1 , 207 P.3d 506 (2009), asserting that “the California Supreme Court made it clear that under California law, a law enforcement officer’s decision to effectuate a lawful arrest is not actionable in tort.”

In Hernandez , family members of a decedent brought a negligence action against city police officers and the city, after decedent was shot and killed by officers while fleeing arrest. The California Supreme Court granted review to consider:

207 P.3d at 510 . In the course of so holding, the California Supreme Court stated:

Id. at 518-519 .

Defendants assert:

Assuming that probable cause existed to arrest Plaintiff, Defendants are correct that they cannot be liable in tort for that arrest (except for perhaps excessive force). However, Hernandez addressed an issue and factual circumstances far different from those involved in this action.

In Defendants’ reply brief, Defendants assert that Plaintiff did not respond to them assertion of statutory immunities for state law causes of action. This is simply not correct; Plaintiff did respond. Defendants also assert:

Plaintiffs response to this aspect of the motion to dismiss complied with these requirements, even assuming they apply to a response to a motion to dismiss in the district court.

CONCLUSION

For the reasons stated, Defendants’ motion to dismiss the First Amended Complaint is GRANTED IN PART AND DENIED IN PART. The Second Cause of Action for malicious prosecution is DISMISSED as barred by California Government Code § 821.6.

IT IS SO ORDERED.

. To the extent that Defendants' motion to dismiss based on Heck is directed to the state law causes of action, by its terms, Heck v. Humphrey applies to a Section 1983 action. See Numo v. County of San Bernardino, 58 F.Supp.2d 1127 , 1130 n. 3 (C.D.Cal.1999): Defendants similarly fail to address the state claims pled in the third cause of action of the FAC. Heck is a rule of federal law that, absent its adoption by the California courts, has no application to these state law claims. Nonetheless, the Court concludes that, if the federal civil rights causes of action must be dismissed, it will decline to exercise its discretion to retain the state law causes of action. . California Penal Code § 602.8(a) provides: Any person who without the written permission of the landowner, the owner’s agent, or the person in lawful possession of the land, wilfully enters any lands under cultivation or enclosed by fence, belonging to, or occupied by, another, or who willfully enters upon uncultivated or unenclosed lands where signs forbidding trespass are displayed at intervals not less than three to the mile along all exterior boundaries and at all roads and trails entering the land, is guilty of a public offense.