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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 LIZET GONZALEZ, Case No. 1:20-cv-01031-NONE-BAM 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 TO DENY DEFENDANTS’ MOTION TO v. DISMISS 14 CITY OF MODEST- MODESTO POLICE (Doc. No. 20) 15 DEPARTMENT, et al., 16 FOURTEEN-DAY DEADLINE Defendants. 17 18 I. INTRODUCTION 19 On July 23, 2020, Plaintiff Lizet Gonzalez (“Plaintiff”) filed this action against Defendants 20 City of Modesto - Modesto Police Department, Officer Jorge Contreras, Officer Cameron Irinaga, 21 Officer Brian Binkley, and Police Chief Galen L. Carroll. (Doc. 1.) 22 On November 12, 2020, Defendants moved to dismiss the complaint and Plaintiff responded with a first amended complaint. (Docs. 8, 10.) On December 23, 2020, Plaintiff filed a 23 Second Amended Complaint. (Doc. 18.) The Second Amended Complaint alleged five claims: (1) 24 deprivation of federal civil rights in violation of 42 U.S.C. § 1983, (2) Interference with exercise 25 and enjoyment of civil rights by threat, intimidation, or coercion in violation of Cal. Civ. Code § 26 52.1 (Tom Bane Civil Rights Act), (3) False Imprisonment, (4) Assault and battery, and (5) 27 Intentional infliction of emotional distress. (Doc. 18.) 1 Defendants then filed the present motion to dismiss the second claim in Plaintiff’s second 2 amended complaint on January 11, 2021. (Doc. 20.) Plaintiff filed her opposition on January 29, 3 2021, and Defendants replied on February 3, 2021. (Docs. 23, 24.) 4 The Motion was referred to the undersigned for issuance of findings and recommendations 5 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(a). Having considered the moving, 6 opposition, and reply papers, and for the reasons set forth below, the Court RECOMMENDS that 7 Defendants’ motion to dismiss the second claim in Plaintiff’s Second Amended Complaint be 8 DENIED. 9 II. FACTUAL BACKGROUND1 10 On or about June 23, 2019, Plaintiff, her brother, Juan Carlos Gonzalez, and her boyfriend 11 Francisco M. Sanchez attended a concert at John Thurmond Field, 601 Neece Drive, Modesto CA, 12 95351. (Second Amended Complaint, hereinafter “SAC” ¶ 16.) At some point during the night, Plaintiff and her brother Juan Carlos began arguing. (SAC ¶ 17.) Because the concert was packed, 13 there were people crowded around Plaintiff and her brother, including Plaintiff’s boyfriend Mr. 14 Sanchez. (SAC ¶ 17.) During the argument, Plaintiff and Juan Carlos both fell to the ground. (SAC 15 ¶ 17.) Mr. Sanchez and others began helping Plaintiff and Juan Carlos to their feet. (SAC ¶ 17.) Juan 16 Carlos was at this point intoxicated after purchasing alcohol at the event. (SAC ¶ 17.) 17 Without any inquiry of anyone, one of the officers (believed to be Officer Espinoza) 18 approached the siblings and accused Juan Carlos of trying to harm Plaintiff. (SAC ¶ 18.) The Officer 19 unholstered his taser, pointed it at Juan Carlos and ordered him to stop arguing with Plaintiff under 20 threat that he would use the taser. (SAC ¶ 18.) Officers Espinoza, Irinaga, and Sergeant Brinkley 21 then pinned Juan Carlos to the ground, punched him in the face and chest, subdued him until he was 22 unconscious, and cuffed him. (SAC ¶ 20.) Plaintiff attempted to explain that Juan Carlos was not a 23 threat to her, however, her attempts were ignored. (SAC ¶ 20.) 24 Plaintiff, fearing for her brother’s life, was extremely upset and worried. (SAC ¶ 21.) Plaintiff 25 begged the officers to stop hurting her brother and expressed her concern that they were killing him. 26 (SAC ¶ 21.) Plaintiff demanded that the officers (Espinoza, Irinaga, Brinkley and Contreras) identify 27 1 themselves and requested multiple times that the officers give her brother medical attention. (SAC 2 ¶ 21.) Officers then restrained Juan Carlos with a RIPP full restraint device so that he was completely 3 immobilized. (SAC ¶ 22.) 4 After witnessing her brother’s arrest, Plaintiff asked Officer Espinoza for an explanation of 5 why Juan Carlos was arrested and when he would receive medical attention. (SAC ¶ 24.) Officer 6 Espinoza stated that the brother was under arrest for drunk and disorderly conduct. (SAC ¶ 24.) 7 Plaintiff continued to argue there were no grounds for Juan Carlos’ arrest and plead with the officers 8 not to arrest him. (SAC ¶ 24.) Plaintiff also requested the officers identify themselves and provide 9 their badge numbers, but they refused. (SAC ¶ 24.) Plaintiff remained concerned for her brother and 10 continued to ask questions of the officers. (SAC ¶ 25.) Officers and Sergeant Binkley then told 11 Plaintiff to stop asking questions and leave the area or she would be arrested. (SAC ¶ 25.) However, 12 Plaintiff persisted in asking questions and was told again to leave because the “conflict had resolved.” (SAC ¶ 25.) Plaintiff continued to ask questions of the officers, while not interfering in 13 the police activity, or impeding the police action. ((SAC ¶ 26.) However, she was still threatened 14 with arrest. (SAC ¶ 26.) 15 Since her questions were not answered, Plaintiff began taking pictures of the Sergeant 16 Binkley and the other officers’ name tags. (SAC ¶ 37.) Sergeant Binkley, with the help of Officers 17 Irinaga and Espinoza, grabbed her phone and proceeded with force to pull Plaintiff’s arms behind 18 her back and placing handcuffs on her to restrain her movements. (SAC ¶ 27.) The handcuffs were 19 applied tightly, and Plaintiff’s requests that the handcuffs be loosened were ignored. (SAC ¶ 27.) 20 Plaintiff was then placed in the back of a police vehicle and booked into the Stanislaus Public Safety 21 Center. (SAC ¶ 27.) 22 Plaintiff alleges that each of the Officers threatened, coerced, and intimidated her with arrest 23 if she did not stop filming them and asking questions; both of which are an exercise of her First 24 Amendment rights. (SAC ¶ 28.) Plaintiff also alleges that there was no cause, probable or otherwise, 25 for her arrest as “resisting arrest” cannot be the predicate crime. (SAC ¶ 28.) 26 Following Plaintiff’s arrest, Defendants also placed her boyfriend, Mr. Sanchez, under arrest 27 when he began asking questions. (SAC ¶ 30.) Officers and Sergeant Binkley determined that Mr. 1 Sanchez’ questions were “prolong[ing] their exit” and then arrested him, charging him with 2 “resisting arrest.” (SAC ¶ 30.) At Plaintiff’s arraignment the following day, the charge of “resisting 3 arrest”’ was dismissed. (SAC ¶ 31.) 4 III. LEGAL STANDARD 5 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is a challenge to 6 the sufficiency of the allegations set forth in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th 7 Cir. 2001). A 12(b)(6) dismissal is proper where there is either a “lack of a cognizable legal theory” 8 or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica 9 Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In determining whether a complaint states a claim 10 upon which relief may be granted, the Court accepts as true the allegations in the complaint, 11 construes the pleading in the light most favorable to the party opposing the motion, and resolves all 12 doubts in the pleader’s favor. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). Under Rule 8(a), a complaint must contain “a short and plain statement of the claim showing 13 that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim 14 is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A 15 plaintiff is required to allege “enough facts to state a claim to relief that is plausible on its face.” 16 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads content that 17 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 18 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a 19 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 20 unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). 21 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 22 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading is 23 insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the elements of a 24 cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of 25 the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). 26 Moreover, it is inappropriate to assume that the plaintiff “can prove facts that it has not alleged or 27 that the defendants have violated the . . . laws in ways that have not been alleged[.]” Associated Gen. 1 Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). In practice, 2 “a complaint . . . must contain either direct or inferential allegations respecting all the material 3 elements necessary to sustain recovery under some viable legal theory.” Twombly, 550 U.S. at 562. 4 “Dismissal without leave to amend is proper if it is clear that the complaint could not be 5 saved by amendment.” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008). To the 6 extent that the pleadings can be cured by the allegation of additional facts, the Court will afford the 7 plaintiff leave to amend. Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 8 247 (9th Cir. 1990) (citations omitted). 9 IV. DISCUSSION 10 In the motion to dismiss, Defendants challenge Plaintiff’s second claim for violation of Cal. 11 Civ. Code § 52.1. Defendants contend that Plaintiff’s second claim alleging violation of Cal. Civ. 12 Code § 52.1 fails to establish that a threat, intimidation, or coercion was used because Plaintiff only alleges that Defendants threatened to place her under arrest. (Doc. 20.) Defendants argue that 13 the threat of arrest or detention is insufficient to support a claim under Cal. Civ. Code § 52.1. 14 Plaintiff notes that Defendants base their argument that “speech alone” does not constitute a threat, 15 coercion, or intimidate under Cal. Civ. Code § 52.1 is based the statute’s language prior to 16 amendment in 2018.2 (Doc. 23 at 1.) Plaintiff also argues that Defendants misrepresent the quantity 17 of facts provided in the complaint, and that Plaintiff’s complaint is compliant with notice pleading. 18 (Id.) 19 California Civil Code section 52.1, known as the Bane Act, authorizes a claim for relief 20 “against anyone who interferes, or tries to do so, by threats, intimidation, or coercion, with an 21 individual’s exercise or enjoyment of rights secured by federal or state law.” Jones v. Kmart Corp., 22 23

24 2 Plaintiff argues that the Defendants reliance on the argument requiring more than speech to establish a threat, coercion, or intimidate is based on an outdated version of the statute. After amendment in 2018, the language of the 25 “speech alone limitation” at Cal. Civil Code § 52.1(k) stated that “speech alone is not sufficient to support an action brought pursuant to subdivision (a) or (b), except upon which a showing that the speech itself threatens violence against a specific person or group of persons.” Plaintiff argues that the failure of subsection (k) to cite subsection (c) 26 which establishes the private tort claim under the Bane Act, removed the “speech alone limitation” previously applicable to individual actions. (Doc. 23 at 18.) The Court, however, finds it unnecessary to address this statutory 27 construction argument as (1) the case law involving the Bane Act’s “speech alone limitation,” discussed infra, addresses the issue of whether speech alone can be threatening, coercive, or intimidating, and (2) Defendants do not 1 949 P.2d 941, 942 (1998). A claim under section 52.1 requires “an attempted or completed act of 2 interference with a legal right, accompanied by a form of coercion.” Id. at 944. The essence of a 3 Bane Act claim is that a defendant, through threats, intimidation, or coercion, tried to or did 4 prevent the plaintiff from doing something that he had the right to do under the law or to force the 5 plaintiff to do something that he was not required to do under the law. Austin B. v. Escondido 6 Union Sch. Dist., 57 Cal. Rptr. 3d 454, 472 (Cal. Ct. App. 2007) (quotation marks omitted). 7 A Bane Act claim must be based on a federal or state constitutional violation. Cotton v. San 8 Bernardino, 2020 WL 5900154, at *30 (C.D. Cal. Sept. 1, 2020). If there is no constitutional 9 violation, then there is no conduct upon which to establish a Bane Act claim. Cotton, 2020 WL 10 5900154 at *30. 11 In most cases, a plaintiff must identify a threat, intimidation, or coercion that was more 12 than speech alone. Cal. Civ. Code § 52.1(k). However, some Federal Courts in California, including the Eastern District of California, have found that a threat of arrest can constitute 13 coercion even without a threat of violence. Cuviello v. City of Vallejo, 2020 WL 6728796, at *21 14 (E.D. Cal. Nov. 16, 2020). This is because of the “coercive power of law enforcement officers has 15 led courts to impose liability when detention, rather than violence is threatened.” Cuviello v. City 16 of Stockton, 2009 WL 9156144, at *56 (January 23, 2009); see also Cole v. Doe, 387 F. Supp.2d 17 1084, 1102 (N.D. Cal. 2005) (finding a Bane Act violation where officers stopped and detained 18 Plaintiff in handcuffs until he consented to a search of his vehicle); see also Cuviello v. City and 19 Cty of San Francisco, 940 F.Supp.2d 1071, 1103 (N.D. Cal. 2013) (finding a Bane Act claim was 20 adequate when plaintiffs alleged defendants threatened them with arrest if they protested). In 21 relation to First Amendment rights, a threat of arrest may interfere with a plaintiff’s First 22 Amendment speech rights. Cuviello v. City and Cty of San Francisco, 940 F.Supp.2 at 1103. 23 Here, Plaintiff alleges that her First Amendment rights were violated when she was 24 threatened with arrest for asking multiple, repetitive questions of the officers involved in her 25 brother’s arrest. Further, Plaintiff alleges she was threatened with arrest for videotaping and 26 photographing the officers when they refused to respond to her questions. Finally, Plaintiff alleges 27 she was forcibly arrested after she refused to stop videotaping and leave the scene. 1 Defendants argue that threat of arrest is insufficient to establish the threat, coercion, or 2 intimidation requirement of a Bane Act claim. However, threat of arrest may be sufficient where 3 the threat interferes with a First Amendment right. Id.; see also Black Lives Matter-Stockton 4 Chapter v. San Joaquin Cty. Sheriff's Office, 398 F. Supp. 3d 660 (E.D. Cal. July 2, 2019) (finding 5 a Bane Act claim was sufficient where officers blocked individuals from entering a courthouse to 6 protest.) Further, Plaintiff was forcibly arrested when she persisted in videotaping the officers. 7 Therefore, Plaintiff states a cognizable Cal. Civil Code § 52.1, Bane Act claim. 8 V. Conclusion and Order 9 For the reasons stated, the Court finds that Plaintiff states a cognizable claim for relief 10 under the Bane Act. Accordingly, the Court HEREBY RECOMMENDS that Defendants’ motion 11 to dismiss, filed on January 11, 2021, be DENIED. 12 These Findings and Recommendation will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 13 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 14 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 15 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 16 specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” 17 on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 18 F.2d 1391, 1394 (9th Cir. 1991)). 19

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IT IS SO ORDERED.

21 22 Dated: February 14, 2022 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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