1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MARY TOMELLOSO, RUBEN H. No. 2:21-cv-00507-MCE-JDP

TOMELLOSO,

11 Plaintiffs, 12 MEMORANDUM AND ORDER v. 13

CITY OF VACAVILLE, NATHAN

14 BENEVIDES, DANIEL TORRES and DOES 1 to 50, 15 Defendants. 16

17 18 Through the present lawsuit, Plaintiff Ruben Tomelloso (“Ruben”) alleges that his 19 home was illegally searched, and he was handcuffed while that search was conducted, 20 without a warrant and absent probable cause. Ruben’s wife, Mary Tomelloso (“Mary”), 21 while not present at the time of the search, is also a named Plaintiff. Defendants include 22 two City of Vacaville (“City”) police officers who engaged in the search, Nathan 23 Benevides and Daniel Torres, as well as the City itself. Plaintiffs’ lawsuit asserts five 24 separate causes of action, which include a claim for violations of 42 U.S.C. § 1983 as 25 well as state common law claims for assault and battery, false imprisonment, negligence 26 and intentional infliction of emotional distress. After the matter was initiated in state 27 court, Defendants removed the matter here, citing federal question jurisdiction under 28 28 U.S.C. § 1331 given Plaintiffs’ assertion of a federal § 1983 claim. 1 Presently before the Court is Defendants’ Motion to Dismiss (ECF No. 6), brought 2 pursuant to Federal Rule of Civil Procedure 12(b)(6), on grounds that Plaintiffs’ 3 Complaint fails to state viable claims with respect to certain Defendants named in the 4 various causes of action. As set forth below, that Motion is GRANTED. 5 6 BACKGROUND1 7 8 According to Plaintiffs’ Complaint, on the afternoon of January 22, 2020, 9 numerous City police officers, including Defendants Benevides and Torres, arrived at 10 372 Elsinore Drive in Vacaville, California, where the Tomellosos, who have been 11 married over fifty years, have lived since approximately 1988. Ruben, who is retired, 12 was the only one at home and the officers told him they were there to search both his 13 home and the vehicles in his driveway. The officers allegedly declined to respond when 14 Ruben asked whether they had a valid search warrant. Instead, they removed Ruben 15 from the house and locked handcuffs “onto his wrists with great force” that caused 16 “significant pain.” Pls.’ Compl., ECF No. 1, Ex. A, ¶ 18. The officers then forced Ruben 17 to sit outside, in the cold and in “clear view of all his neighbors,” while they searched the 18 entire property, including at least one of the Tomelloso vehicles, during the next 45 to 90 19 minutes. Id. at ¶ 14. 20 Once Ruben was allowed to return inside after the officers departed, he found 21 “personal property strewn about the house, drawers and cabinets open, and the house 22 in general disarray.” Id. at ¶ 17. Ruben claims at no time was he informed of the legal 23 basis for his search and detention, and Plaintiffs claim that the officers found no 24 evidence of any crime and took nothing from the home as potential evidence. Plaintiffs 25 further allege that at no time were they ever charged with or prosecuted for a crime as a 26 result of the search. 27 1 Unless otherwise indicated, the facts set forth in this section are taken, at times verbatim, from 28 the allegations contained in Plaintiffs’ Complaint. 1 STANDARD 2 3 On a motion to dismiss for failure to state a claim under Federal Rule of Civil 4 Procedure 12(b)(6), all allegations of material fact must be accepted as true and 5 construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. 6 Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) “requires only ‘a short and plain 7 statement of the claim showing that the pleader is entitled to relief’ in order to ‘give the 8 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell 9 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 10 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require 11 detailed factual allegations. However, “a plaintiff’s obligation to provide the grounds of 12 his entitlement to relief requires more than labels and conclusions, and a formulaic 13 recitation of the elements of a cause of action will not do.” Id. (internal citations and 14 quotations omitted). A court is not required to accept as true a “legal conclusion 15 couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 16 Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief 17 above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & 18 Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the 19 pleading must contain something more than “a statement of facts that merely creates a 20 suspicion [of] a legally cognizable right of action”)). 21 Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket 22 assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3 (internal citations and 23 quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard 24 to see how a claimant could satisfy the requirements of providing not only ‘fair notice’ of 25 the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing Wright & 26 Miller, supra, at 94, 95). A pleading must contain “only enough facts to state a claim to 27 relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . have not nudged their 28 claims across the line from conceivable to plausible, their complaint must be dismissed.” 1 Id. However, “[a] well-pleaded complaint may proceed even if it strikes a savvy judge 2 that actual proof of those facts is improbable, and ‘that a recovery is very remote and 3 unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). 4 A court granting a motion to dismiss a complaint must then decide whether to 5 grant leave to amend. Leave to amend should be “freely given” where there is no 6 “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice 7 to the opposing party by virtue of allowance of the amendment, [or] futility of the 8 amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. 9 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to 10 be considered when deciding whether to grant leave to amend). Not all of these factors 11 merit equal weight. Rather, “the consideration of prejudice to the opposing party . . . 12 carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 13 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that 14 “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group, 15 Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 16 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 17 1989) (“Leave need not be granted where the amendment of the complaint . . . 18 constitutes an exercise in futility . . . .”)). 19 20 ANALYSIS 21 22 A. Section 1983 Claims 23 The First Cause of Action, asserted by both Plaintiffs, alleges violations of 24 42 U.S.C. § 1983 on multiple constitutional grounds, including rights pertaining to 25 1) unreasonable search and seizure under the Fourth Amendment of the United States 26 Constitution; 2) deprivation of life or liberty without due process as guaranteed by the 27 Fifth and Fourteenth Amendments; 3) excessive force under the Fourth, Fifth and 28 Fourteenth Amendments; 4) equal protection under the Fourteenth Amendment; and 1 5) privacy under the Fourth and Ninth Amendments. Compl., ¶ 24. The Complaint’s 2 factual allegations, however, relate only to claims of unlawful search and seizure, along 3 with potential excessive force in handcuffing Ruben. 4 Defendants’ Motion to Dismiss alleges that given those facts, Plaintiffs state no 5 viable claim besides the protections guaranteed by the Fourth Amendment. As 6 Defendants point out, because the Fourth Amendment explicitly identifies the right to be 7 free of unreasonable searches and seizures, the Supreme Court has held for § 1983 8 purposes that its provisions control over any other constitutional protections that also 9 may arguably apply. See, e.g., Albright v. Oliver, 510 U.S. 266, 271, 273 (1994) (“Where 10 a particular Amendment ‘provides an explicit textual source of constitutional protection’ 11 against a particular sort of government behavior, ‘that Amendment . . . must be the guide 12 for analyzing those claims.’”).2 In the context of unreasonable search and seizure and 13 excessive force claims, the Court consequently observed that “[t]he Framers considered 14 the matter of pretrial deprivations of library and drafted the Fourth Amendment to 15 address it.’” Id. at 274. It follows, then, that Plaintiffs’ efforts to invoke additional 16 protection on due process, equal protection or privacy grounds under the Fifth, Ninth or 17 Fourteenth Amendments for the same conduct must necessarily fail.3 18

19 2 To the extent Ruben alleges excessive force in addition to unreasonable search and seizure during the course of the incident giving rise to this action, the Supreme Court, in Graham v. Connor, 20 490 U.S. 386, (1989) has made it clear that whether the force used to effect a particular seizure is reasonable” is also analyzed under the Fourth Amendment. Id. at 396, see also Mattos v. Agarano, 21 661 F.3d 433, 441 (9th Cir. 2011).

22 3 Plaintiffs have not opposed Defendants’ Motion to Dismiss the First Cause of Action to the extent it includes privacy and equal protection claims. While Plaintiffs do contend that due process rights under 23 the Fourteenth Amendment are properly implicated, the authority they cite for that proposition is distinguishable. In both Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) and Haygood v. Younger, 24 769 F.2d 1350 (9th Cir. 1985), for example, the incarcerated criminal defendants remained jailed for extended periods of time after they should have been released, with the Lee court recognizing that a 25 Fourteenth Amendment due process claim may indeed exist if, “after the lapse of a certain amount of time,” officials fail to release a detainee who they knew, or should have known, was so entitled. Lee, 250 F.3d at 683. That circumstance, however, bears no similarity to the present case, where Ruben’s 26 detention was only 45-90 minutes in length, and no authority has been cited that such a brief detention triggers due process concerns as opposed to the search and seizure protections guaranteed by the Fourth 27 Amendment. Indeed, an additional case cited by Plaintiffs, Oviatt v. Pearce, 954 F.2d 1470 (9th Cir. 1992), actually supports that distinction by recognizing that “the paradigmatic liberty interest in the due 28 process clause is freedom from incarceration,” as opposed to the brief detention involved here. 1 Moreover, to the extent that Mary is included as a party to Plaintiffs’ Fourth 2 Amendment cause of action, her claim fails on more fundamental grounds. The 3 Complaint makes it clear that she was not present at the time of the search and thus not 4 personally subject to either excessive force or unlawful seizure. Those claims, if any, 5 accrue to her husband. Mary cannot indirectly assert her husband’s alleged deprivations 6 in that regard since “constitutional claims are personal and cannot be asserted 7 vicariously.” Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997).4 The fact 8 that Mary was not at home during the search, however, does not foreclose her Fourth 9 Amendment claim for unreasonable search. A reasonable expectation of privacy can 10 trigger protections under the Fourth Amendment for search and seizure, and it is beyond 11 question that Mary had such an expectation in the sanctity of her own home irrespective 12 of whether she was there at the time the search was undertaken. See, e.g., U.S. v. 13 Jacobsen, 466 U.S. 109, 113 (1984). 14 In addition, with respect to the City’s inclusion as a defendant to Plaintiffs’ § 1983 15 claim, a public entity is subject to liability only when a violation of a federally protected 16 right can be attributed to: (1) an express municipal policy like an ordinance, regulation or 17 policy statement (Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691 18 (1978)); (2) a “widespread practice that, although not authorized by written law or 19 express municipal policy, is ‘so permanent and well settled as to constitute a ‘custom or 20 usage’ with the force of law” (City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); 21 (3) the decision of a person with “final policymaking authority” (Id. at 123); or 22 (4) inadequate training that is deliberately indifferent to an individual’s constitutional 23 rights (City of Canton v. Harris, 489 U.S. 378, 388 (1989)). 24 In pleading a § 1983 claim against a public entity under one or more of the above 25 theories, the Ninth Circuit has made it clear that the standards articulated by the 26 Supreme Court in Twombly and Iqbal apply. AE ex rel. Hernandez v. County of Tulare, 27 666 F.3d 631, 636 (9th Cir. 2012). As Iqbal noted, “threadbare allegations of a cause of

28 4 Tellingly, Plaintiffs do not appear to contend otherwise in their Opposition. 1 action’s requirements, supported by mere conclusory statements, must be ignored, with 2 only “well pleaded factual allegations” being sufficient to withstand pleading inquiry. 3 Ashcroft v. Iqbal, 556 U.S. at 678-79. Iqbal’s directive in this regard has been extended 4 in the context of municipal liability claims to require specific factual averments, including 5 both identifying the challenged policy/custom, delineating how the policy/custom at issue 6 was deficient, and how any deliberate indifference occasioned thereby harmed the 7 plaintiff. See Young v. City of Visalia, 687 F. Supp. 2d 1141, 1149 (E.D. Cal. 2009). 8 Here, Plaintiffs’ Complaint contains absolutely no factual allegations to support a 9 plausible municipal liability claim against the City. At most, the Complaint suggests that 10 the City is liable on respondeat superior grounds for alleged wrongdoing by its police 11 officers. The City, however, is not subject to such vicarious liability under § 1983 as a 12 matter of law. Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007); Monell, 436 U.S. 13 at 691. Because no facts are alleged relating to any City policy, pattern or custom that 14 could give rise to liability under § 1983. Consequently, Plaintiffs’ First Cause of Action 15 fails to state a viable claim against the City. 16 B. Tort Claim Pleading Requirements 17 Plaintiffs’ Second through Fifth Causes of Action, which allege assault and 18 battery, false imprisonment, negligence and intentional infliction of emotional distress, 19 respectively, against all Defendants, are state common law claims and as such are 20 subject to the claims’ presentation requirements contained within the California Tort 21 Claims Act, California Government Code §§ 810, et seq. 22 As Defendants point out, the Tort Claims Act, at §§ 945.4 and 950.2, requires the 23 presentation of a timely claim to the public entity and rejection of the claim as a condition 24 precedent to any lawsuit against a public entity or its employee. See Taylor v. Mitzel, 25 82 Cal. App. 3d 665, 671 (1978); Harman v. Mono General Hosp., 131 Cal. App. 3d 607, 26 613 (1982). Failure to comply with those requirements bars a plaintiff from thereafter 27 maintaining any civil action as to the entity or employee. DiCampli-Mintz v. County of 28 Santa Clara, 55 Cal. 4th 983, 990 (2012). “In federal court, the failure to allege facts that 1 either demonstrate or excuse compliance with the Government Claims statutes will 2 subject a state law claim to dismissal.” Hill v. City of Clovis, No. 1:11-cv-1391 AWI 3 SMS, 2012 WL 787609 at *10 (E.D. Cal. 2012), citing Mangold v. Cal. Public Utils. 4 Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). 5 Here, Plaintiffs simply assert that they “have complied with all governmental claim 6 requirements under California law prior to the filing of this action.” Pls.’ Compl., ¶ 10. 7 That allegation is no more than a legal conclusion and is unsupported by any facts 8 demonstrating compliance with the Tort Claims Act.5 Plaintiffs’ Second through Fifth 9 Causes of Action fail on that ground alone.6 10 11 CONCLUSION 12 13 For all the above reasons, Defendants’ Motion to Dismiss (ECF No. 6) is 14 GRANTED7 as follows: 15 1. Plaintiffs’ First Cause of Action is dismissed, with leave to amend, to the 16 extent it states claims premised on any constitutional provision besides the 17 Fourth Amendment to the United States Constitution and its protections 18 against unreasonable searches and seizures, and excessive force; 19 2. Plaintiffs First Cause of Action is dismissed, with leave to amend, as to any 20 claim asserted by Plaintiff Mary Tomelloso other than her claim that she was 21 subject to unlawful search in violation of the Fourth Amendment; 22

23 5 While Plaintiffs contend in their opposition that they both filed a tort claim and received a rejection of that claim from the City before filing suit, those after-the-fact allegations do not render their 24 Complaint sufficient as it currently stands.

25 6 Although Defendants assert that Plaintiffs’ state law claims also fail to state any viable substantive cause of action against the City, and further fails to state a claim for intentional infliction of emotional distress as to any Defendant, given Plaintiffs’ fundamental failure to satisfy the jurisdictional 26 presentation requirements for making those claims, it is not necessary to address those additional arguments at this juncture, and the Court declines to do so. 27

7 Having determined that oral argument would not be of material assistance, the Court ordered the 28 Motion submitted on the briefs pursuant to E.D. Cal. Local R. 230(g). 1 3. Plaintiffs’ First Cause of Action is dismissed, with leave to amend, as to any 2 claim asserted against the City of Vacaville; 3 4. Plaintiffs’ Second through Fifth Causes of Action are dismissed for failure to 4 allege compliance with the California Tort Claims Act, with leave to amend. 5 If Plaintiffs desire to file a First Amended Complaint, they are directed to do so not 6 || later than twenty (20) days following the date this Memorandum and Order is 7 || electronically filed. If no amended complaint is timely filed, the causes of action 8 || dismissed by virtue of this Order will be deemed dismissed with prejudice without further 9 | notice to the parties. 10 IT IS SO ORDERED. 11 12 | Dated: December 13, 2021 Matar LEK: Whig { AX Xo - " SENIOR UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28