1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERTO RIVAS, Case No. 8:22-cv-01586-JWH-ADS

12 Plaintiff,

ORDER REGARDING

13 v. PLAINTIFF’S MOTION TO

REMAND AND DEFENDANTS’

14 COUNTY OF ORANGE, an entity, MOTION TO DISMISS [ECF DANIEL VERGILIO, Nos. 12 & 15] 15 EMILIO LOPEZ,

CONOR CARDENAS,

16 JAMIE MARTINEZ, and

ANTHONY ALVAREZ,

17 Defendants. 18 19 20 21 22 23 24 25 26 27 1 Before the Court is the motion of Plaintiff Roberto Rivas to remand this 2 case to state court1 and the motion of Defendants the County of Orange, Daniel 3 Vergilio, Emilio Lopez, Connor Cardenas, Jaime Martinez, and Anthony 4 Alvarez to dismiss Rivas’s Amended Complaint.2 The Court finds this matter 5 appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15. 6 After considering the papers filed in support and in opposition,3 the Court 7 orders that both Motions are DENIED for the reasons set forth herein. 8 I. BACKGROUND 9 A. Factual Background 10 Rivas was arrested on drunk driving charges on August 2, 2019, and he 11 was placed in a holding cell during his in-processing.4 Although the facts leading 12 to the incident at issue are in dispute, Rivas alleges that Defendant Deputy 13 Daniel Vergilio ordered Rivas out of his holding cell, but Rivas did not 14 comprehend that command because he does not understand English.5 Rivas and 15 Vergilio then engaged in a physical confrontation, and Defendants Deputies 16 Emilio Lopez and Connor Cardenas joined Vergilio in restraining Rivas.6 17 During the altercation, Rivas sustained injuries including a broken forearm, 18 which prompted Defendants to provide Rivas with medical aid.7 19 20 1 Pl.’s Mot. to Remand (the “Remand Motion”) [ECF No. 12]. 21 2 Defs.’ Mot. to Dismiss (the “Motion”) [ECF No. 15]. 22 3 The Court considered the following papers: (1) First Am. Compl. (the “Amended Complaint”) (including its attachments) [ECF No. 1-5]; (2) Remand 23 Motion (including its attachments); (3) Defs.’ Opp’n to the Remand Motion [ECF No. 18]; (4) Pl.’s Reply in Supp. of the Remand Motion; (5) Motion 24 (including its attachments) (6) Pl.’s Opp’n to the Motion (the “Opposition”) [ECF No. 19]; and (7) Def.’s Reply in Supp. of the Motion (the “Reply”) [ECF 25 No. 20]. 26 4 Amended Complaint ¶ 22. 5 Id. at ¶ 23; Motion 2:3-12. 27 6 Amended Complaint ¶ 25. 1 B. Procedural Background 2 Rivas filed his initial Complaint in state court in May 2020.8 In December 3 2020, Rivas identified Deputies Vergilio, Cardenas, and Lopez as Doe 4 Defendants.9 Rivas filed his First Amended Complaint in May 2021, asserting 5 the following causes of action: 6 • Assault; 7 • Battery; 8 • Negligence; 9 • Deprivation of Civil Rights Under Color of Law [42 U.S.C. §§ 1983, 1985, 10 1986, & 1988]; 11 • Deprivation of Civil Rights Under Color of Law (Monell Claim) [42 12 U.S.C. § 1985]; and 13 • Conspiracy to Interfere with Civil Rights [42 U.S.C. § 1985]. 14 Meanwhile, Rivas was prosecuted under Cal. Penal Code § 148(a)(1) for 15 resisting a peace officer. In March 2022, a jury found Rivas guilty with respect 16 to the charge for resisting Vergilio, but not guilty with respect to the charge for 17 resisting Lopez and Martinez.10 In his civil case, in July 2022 Rivas added 18 Deputies Jamie Martinez and Anthony Alverez as Doe Defendants. The 19 following month, Defendants removed the action to this Court.11 20 II. LEGAL STANDARD 21 A. Removal and Remand 22 Federal courts are courts of limited jurisdiction. Accordingly, “[t]hey 23 possess only that power authorized by Constitution and statute.” Kokkonen v. 24 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In every federal case, the 25

26 8 Opposition 2:25-3:2. 9 Id. at 3:4-6. 27 10 Id. at 4:20-28. 1 basis for federal jurisdiction must appear affirmatively from the record. See 2 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006). “The right of 3 removal is entirely a creature of statute and a suit commenced in a state court 4 must remain there until cause is shown for its transfer under some act of 5 Congress.” Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002) (internal 6 quotation marks omitted). Where Congress has acted to create a right of 7 removal, those statutes, unless otherwise stated, are strictly construed against 8 removal jurisdiction. See id. 9 To remove an action to federal court under 28 U.S.C. § 1441, the 10 removing defendant “must demonstrate that original subject-matter jurisdiction 11 lies in the federal courts.” Syngenta, 537 U.S. at 33. As such, a defendant may 12 remove civil actions in which either (1) a federal question exists; or (2) complete 13 diversity of citizenship between the parties exists and the amount in controversy 14 exceeds $75,000. See 28 U.S.C. §§ 1331 & 1332. “Complete diversity” means 15 that “each defendant must be a citizen of a different state from each plaintiff.” 16 In re Digimarc Corp. Derivative Litigation, 549 F.3d 1223, 1234 (9th Cir. 2008). 17 The right to remove is not absolute, even where original jurisdiction 18 exists. In other words, the removing defendant bears the burden of establishing 19 that removal is proper. See Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684 20 (9th Cir. 2006) (noting the “longstanding, near-canonical rule that the burden 21 on removal rests with the removing defendant”); Gaus v. Miles, Inc., 980 F.2d 22 564, 566 (9th Cir. 1992) (“[t]he strong presumption against removal jurisdiction 23 means that the defendant always has the burden of establishing that removal is 24 proper” (quotation marks omitted)). Any doubts regarding the existence of 25 subject matter jurisdiction must be resolved in favor of remand. See id. 26 (“[f]ederal jurisdiction must be rejected if there is any doubt as to the right of 27 removal in the first instance”). 1 B. Rule 12(b)(6)—Failure to State a Claim 2 A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil 3 Procedure tests the legal sufficiency of the claims asserted in a complaint. See 4 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In ruling on a Rule 12(b)(6) 5 motion, “[a]ll allegations of material fact are taken as true and construed in the 6 light most favorable to the nonmoving party.” Am. Family Ass’n v. City & 7 County of San Francisco, 277 F.3d 1114, 1120 (9th Cir. 2002). Although a 8 complaint attacked by a Rule 12(b)(6) motion “does not need detailed factual 9 allegations,” a plaintiff must provide “more than labels and conclusions.” Bell 10 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 11 To state a plausible claim for relief, the complaint “must contain 12 sufficient allegations of underlying facts” to support its legal conclusions. Starr 13 v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). “Factual allegations must be 14 enough to raise a right to relief above the speculative level on the assumption 15 that all the allegations in the complaint are true (even if doubtful in fact) . . . .” 16 Twombly, 550 U.S. at 555 (citations and footnote omitted). Accordingly, to 17 survive a motion to dismiss, a complaint “must contain sufficient factual matter, 18 accepted as true, to state a claim to relief that is plausible on its face,” which 19 means that a plaintiff must plead sufficient factual content to “allow[] the Court 20 to draw the reasonable inference that the defendant is liable for the misconduct 21 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks 22 omitted). A complaint must contain “well-pleaded facts” from which the Court 23 can “infer more than the mere possibility of misconduct.” Id. at 679. 24 III. DISCUSSION 25 A. Rivas’s Motion to Remand 26 The gravamen of Rivas’s Remand Motion is that: (1) the litigation has 27 been on-going for years in state court, and Defendants removed the action only 1 the action at this point exceeds the 30-day limit under 28 U.S.C. § 1446—based 2 upon the previously served Defendants Vergilio, Cardenas, and Lopez—and 3 thwarts the legislative purpose of the removal statute.12 4 Rivas ignores the text of 28 U.S.C. § 1446, though, which provides that 5 “[e]ach defendant shall have 30 days after receipt by or service on that 6 defendant of the initial pleading or summons” and that: 7 [i]f defendants are served at different times, and a later-served 8 defendant files a notice of removal, any earlier-served defendant may 9 consent to the removal even though that earlier-served defendant did 10 not previously initiate or consent to removal. 11 28 U.S.C. § 1446(b)(2)(B) & (C). Although the text of the removal statute by 12 itself is unambiguous, the Ninth Circuit has also affirmed that “each defendant 13 is entitled to thirty days to exercise his removal rights after being served.” 14 Destfino v. Reiswig, 630 F.3d 952, 956 (9th Cir. 2011). Here, Rivas may in 15 hindsight regret adding Martinez and Alvarez as Defendants and thereby 16 providing them an opportunity to remove the action from Rivas’s preferred 17 state-court forum, but the newly added Defendants properly removed the 18 instant action to this Court. Accordingly, the Remand Motion is DENIED. 19 B. Defendants’ Request for Judicial Notice 20 Defendants filed an unopposed request for judicial notice of the Orange 21 County Superior Court’s certified case packet in People v. Roberto Rivas, Case 22 No. 20CM05969, including: (1) Complaint Warrant—People v. Rivas; 23 (2) Complaint Warrant Amendment 1; (3) Verdict as to Counts 1, 2, and 3; 24 (4) Jury instructions; and (5) court minutes.13 Defendants also lodged with the 25 26 27 12 Remand Motion 1:22-2:2. 1 Court three videos depicting the altercation between Rivas and Defendants that 2 formed the basis of the instant action.14 3 In deciding a motion to dismiss, courts generally look only to the face of 4 the complaint and documents attached thereto. See Van Buskirk v. Cable News 5 Network, Inc., 284 F.3d 977, 980 (9th Cir.2002). The Court may consider, 6 however, materials that are subject to judicial notice under Rule 201 of the 7 Federal Rules of Evidence. See Gerritsen v. Warner Bros. Entertainment, Inc., 112 8 F. Supp. 3d 1101, 1020 (C.D. Cal. 2015). Rule 201 permits judicial notice of 9 facts that are “not subject to reasonable dispute” because they “can be 10 accurately and readily determined from sources whose accuracy cannot 11 reasonably be questioned.” Fed. R. Evid. 201(b). 12 Such facts include “matters of public record.” Intri-Plex Techs., Inc. v. 13 Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007). “The court may judicially 14 notice a fact that is not subject to reasonable dispute because it . . . can be 15 accurately and readily determined from sources whose accuracy cannot 16 reasonably be questioned.” Fed. R. Evid. 201(b)(c). In the Ninth Circuit, 17 “court filings and other matters of public record” are sources whose accuracy 18 cannot reasonably be questioned for the purposes of Rule 201. Reyn’s Pasta 19 Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006). “The court 20 . . . must take judicial notice if a party requests it and the court is supplied with 21 the necessary information.” Fed. R. Evid. 201(c)(2). 22 The Ninth Circuit also applies the “incorporation by reference” doctrine. 23 See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). Under that doctrine, 24 a court may “take into account documents whose contents are alleged in a 25 complaint and whose authenticity no party questions, but which are not 26 27 14 See Defs.’ Notice of Manual Filing or Lodging (the “Video”) [ECF 1 physically attached to the [plaintiff’s] pleading.” Id. (internal citations and 2 quotations omitted) (alteration in original). 3 Here, the Court finds both the state court criminal filings and the lodged 4 videotapes proper materials for judicial notice. Both sides in the instant action 5 acknowledge and incorporate by reference the jury verdict in Rivas’s criminal 6 trial, and they refer to the materials in their respective filings. Additionally, in 7 his Opposition Rivas includes screenshots from the videotapes, and in his 8 Complaint he refers to those activities; as such, the matter is entitled to judicial 9 notice.15 Because the matter is uncontested and accepted by both parties, 10 Defendants’ request for judicial notice is GRANTED. 11 C. Heck-Barred Claims 12 Defendants contend that Rivas’s Complaint is barred as a matter of law 13 pursuant to the “favorable termination rule” outlined in Heck v. Humphrey, 512 14 U.S. 477 (1994).16 “Under Heck v. Humphrey, a state prisoner cannot recover 15 damages in a [42 U.S.C.] § 1983 suit if a judgment in favor of the plaintiff would 16 necessarily imply the invalidity of his conviction or sentence . . . unless the 17 plaintiff can demonstrate that the conviction or sentence has already been 18 invalidated.” Guerrero v. Gates, 442 F.3d 697, 703 (9th Cir. 2006) (citation 19 omitted). “Heck, in other words, says that if a criminal conviction arising out of 20 the same facts stands and is fundamentally inconsistent with the unlawful 21 behavior for which section 1983 damages are sought, the 1983 action must be 22 dismissed.” Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) 23 With particular relevance to Rivas’s Complaint and his conviction under 24 Cal. Penal Code § 148(a)(1) for resisting a peace officer, the Ninth Circuit holds 25 that because “a defendant can’t be convicted under § 148(a)(1) if an officer used 26 27 15 Opposition 1:15-21. 1 excessive force at the time of the acts resulting in the conviction,” it follows that 2 “an excessive force claim can’t survive the Heck bar if it’s predicated on 3 allegedly unlawful actions by the officer at the same time as the plaintiff’s conduct 4 that resulted in his § 148(a)(1) conviction.” Sanders v. City of Pittsburg, 14 F.4th 5 968, 971 (9th Cir. 2021) (emphasis in original). Alternatively, if the plaintiff can 6 separate the unlawful actions by a police officer from the lawful actions that 7 formed the basis of his Cal. Penal Code § 148(a)(1) conviction, then Heck would 8 not bar a plaintiff’s § 1983 claim—even if they occurred during one continuous 9 action. See id. at 972. While a plaintiff is thus allowed to break a continuous 10 transaction into different segments for the purpose of a § 1983 claim, he may not 11 “slice up the factual basis of a § 148(a)(1) conviction to avoid the Heck bar.” Id. 12 Here, Rivas asserts that his Complaint is not Heck-barred because he was 13 convicted of resisting only Vergilio, and he was acquitted of resisting Lopez and 14 Martinez.17 Furthermore, Rivas argues that because Vergilio was dismissed as a 15 Defendant in the instant action,18 Rivas’s § 1983 claims could not implicate the 16 validity of his Cal. Penal Code § 148(a)(1) conviction.19 Defendants contend 17 that Rivas is mistaken because video of the incident shows that Rivas’s 18 altercation with Vergilio cannot be separated from his altercation with Lopez 19 and Martinez.20 All Defendants were simultaneously restraining Rivas, and the 20 video is clear that Rivas exhibited the same resistance against Vergilio as he did 21 against all other Defendants. 22 Whether Rivas’s resistance of Vergilio was temporally and spatially 23 proximate from his resistance of Lopez and Martinez is irrelevant; the jury’s 24 25 17 Opposition 6:23-27. 26 18 See Stip. and Joint Request for Order Dismissing Def. Deputy Daniel Vergilio [ECF No. 14]. 27 19 Opposition 8:2-4. 1 not-guilty verdict in Rivas’s criminal trial regarding Lopez and Martinez is 2 dispositive under Ninth Circuit authority, and his Complaint is not barred by 3 Heck. In Lemos v. Cnty. of Sonoma, 40 F.4th 1002 (9th Cir. 2022) (en banc), cert. 4 denied sub nom. Cnty. of Sonoma, California v. Lemos, 143 S. Ct. 429 (2022), the 5 Ninth Circuit reversed and remanded a district court’s dismissal of a plaintiff’s 6 § 1983 claim alleging that a sheriff’s deputy used excessive force in arresting her, 7 and the facts of that case map onto the instant action concerning Defendant’s 8 Heck arguments. 9 The plaintiff in Lemos was convicted under Cal. Penal Code § 148(a) for 10 “willfully resisting, delaying, or obstructing [a] deputy” sheriff during an 11 investigation of a suspected domestic dispute. Lemos, 40 F.4th at 1003. The 12 district court instructed the jury that the plaintiff could be found guilty of 13 resisting the deputy based upon any one of four facts: 14 (1) if she “made physical contact with [the deputy] as he was trying 15 to open the truck door”; (2) if she “placed herself between” [the 16 deputy] and [Lemos’s sister]; (3) if she “blocked [the deputy] from 17 opening the truck door and seeing or speaking with” [Lemos’s 18 sister]; or (4) if she “pulled away when [the deputy] attempted to 19 grab her” (just before he tackled her). Although the instructions 20 required the jury to agree unanimously on which act Lemos 21 committed, the verdict form did not require the jury to identify a 22 specific act. The jury found Lemos guilty. 23 Id. at 1005. In granting summary judgment for the defendants, the district court 24 reasoned that “there was ‘no temporal or spatial distinction or other separation 25 between the conduct for which Lemos was convicted, by a jury, and the conduct 26 which forms the basis of her Section 1983 claim.’” Id. Much like Defendants 27 here, in Lemos the defendants argued that the deputy’s actions formed “one 1 force would be inconsistent with a Section 1983 claim based on an event from 2 that same encounter.” Id. 3 The Ninth Circuit reversed the district court, holding that “[a]n action 4 under section 1983 is barred if—but only if—success in the action would 5 undermine the jury’s findings in a way that ‘would necessarily imply or 6 demonstrate that the plaintiff’s earlier conviction was invalid.’” Id. (citing 7 Smith v. City of Hemet, 394 F.3d 689, 699 (9th Cir. 2005)) (emphasis in original). 8 The Lemos court stated that when “a jury is instructed that it may find a 9 defendant guilty based on one of several different events, then a guilty verdict 10 does not necessarily ‘determine[] the lawfulness of the officers’ actions’ 11 throughout the entire encounter.” Id. at 1008 (citing Smith, 394 F.3d at 699) 12 (emphasis in original). 13 Here, Defendants’ Motion is more easily resolved than in Lemos because a 14 jury found Rivas not guilty of resisting Lopez and Martinez, and no charges were 15 ever brought against Rivas concerning the other Defendants.21 Although Lopez 16 and Martinez restrained Rivas at the same time as Virgilio, a successful § 1983 17 action against Defendants would not necessarily invalidate Rivas’s criminal 18 conviction for resisting Virgilio. The Ninth Circuit’s holding in Lemos is clear 19 that Heck’s bar to § 1983 claims is strictly construed; claims are permitted even 20 when a plaintiff is convicted but the arresting officer provides possible grounds 21 for excessive force or for other violations of the plaintiff’s constitutional rights. 22 Accordingly, the Motion is DENIED with respect to Defendants’ argument 23 that Rivas’s Complaint is barred by Heck. 24 D. Qualified Immunity 25 In the alternative to their Heck-bar argument, Defendants move to dismiss 26 Rivas’s Complaint under the doctrine of qualified immunity. 27 1 “The doctrine of qualified immunity protects government officials from 2 liability for civil damages insofar as their conduct does not violate clearly 3 established statutory or constitutional rights of which a reasonable person would 4 have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation 5 marks omitted) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To 6 determine whether an officer is entitled to qualified immunity, the Court asks, in 7 the order it chooses, (1) whether the alleged misconduct violated a constitutional 8 right; and (2) whether the right was clearly established at the time of the alleged 9 misconduct. See Hernandez v. City of San Jose, 897 F.3d 1125, 1132 (9th Cir. 10 2018). 11 Qualified immunity exists to shield an officer from liability for “mere 12 mistakes in judgment, whether the mistake is one of fact or one of law.” Butz v. 13 Economou, 438 U.S. 478, 507 (1978). To determine whether the law was clearly 14 established, courts do not “require a case directly on point,” but existing 15 precedent must have placed the “constitutional question beyond debate.” 16 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). When this test is properly applied, 17 it protects “all but the plainly incompetent or those who knowingly violate the 18 law.” Id. at 743. 19 Rivas contends that the Court should deny the Motion on qualified 20 immunity grounds because Defendants failed to raise that issue during the 21 L.R. 7-3 conference of counsel.22 Defendants respond that although they did not 22 explicitly state during that L.R. 7-3 conference that they would move to dismiss 23 Rivas’s Complaint on the basis of qualified immunity, Defendants’ counsel did 24 transmit an email to Rivas’s counsel asserting that “the deputies would be 25 26 27 1 entitled to qualified immunity.”23 Rivas’s position prevails. This Court takes 2 L.R. 7-3 seriously and requires the parties to comply with it. 3 In addition, attempting to resolve Defendants’ qualified immunity 4 defense now places the Court in the difficult position of deciding “far-reaching 5 constitutional questions on a nonexistent factual record.” Wong v. United 6 States, 373 F.3d 952, 957 (9th Cir. 2004). Civil rights cases, in particular, are the 7 kinds of cases where “dealing with qualified immunity on a motion to dismiss 8 may be inappropriate.” Hunt v. City of Los Angeles, 2013 WL 12164626, at *9 9 (C.D. Cal. Aug. 19, 2013) (citing Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 10 2001) (“[A] complaint is generally not dismissed under [Rule] 12(b)(6) on 11 qualified immunity grounds.”)). Thus, “although government officials have the 12 right to raise qualified immunity on a motion to dismiss, it is not necessarily 13 advisable to do so in every case since an ‘ill-considered filing of a qualified 14 immunity appeal on the pleadings alone can lead not only to a waste of scarce 15 public and judicial resources, but to the development of legal doctrine that has 16 lost its moorings in the empirical world, and that might never need to be 17 determined were the case permitted to proceed, at least to the summary 18 judgment stage.’” Id. (quoting Wong, 373 F.3d at 957). 19 Here, although Defendants have provided videotape footage of the 20 altercation between Rivas and Defendants,24 neither side has provided argument 21 contextualizing the evidence, and neither has sufficiently analyzed the legal 22 authorities that pertain to qualified immunity. As such, under the current 23 circumstances, the Court finds that the “instant briefing is insufficient for the 24 [C]ourt to make a qualified immunity determination.” Id. 25 26 27 23 Reply 5:12-17. 1 Rivas also contends that the doctrines of res judicata and issue preclusion 2\|| prevent Defendants from raising qualified immunity again before this Court, 3|) because the Orange County Superior Court denied Defendants’ previous 4|| motion for summary judgment based upon qualified immunity.” In view of the || Court’s denial of Defendants’ Motion for the reasons articulated above, it need 6|| not address those arguments now. E. Monell Claims 8 Defendants’ short arguments for the dismissal of Rivas’s Monell claims 9|| for municipal liability are contingent upon the success of Defendants’ Heck- based and qualified immunity-based arguments.”° Because those arguments fail, 11|| the Court declines to dismiss Rivas’s Monell claims. 12 IV. CONCLUSION 13 For the foregoing reasons, the Court hereby ORDERS as follows: 14 1. Defendants’ request for judicial notice is GRANTED. 15 2. Rivas’s Motion to remand is DENIED. 16 3. Defendants’ Motion to dismiss is DENIED. 17 IT IS SO ORDERED. MO 19|| Dated: April 14, 2023 .

20 Gut ED STATES DISTRICT JUDGE 21 22 23 24 25 26 25” Opposition 12:24-13:1. 26 ~~ Motion 17:1-22.