1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LOUIS HERZOG, No. 2:21-cv-01174-MCE-CKD 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 MIGUEL A. LOPEZ-CUEN, an individual; CALIFORNIA HIGHWAY 15 PATROL, a California Governmental Department; STATE OF CALIFORNIA, 16 a Governmental Entity; and DOES 1–8, 17 Defendants. 18 19 On May 28, 2021, Plaintiff Louis Herzog (“Plaintiff”) filed a Complaint in the 20 Superior Court of California, County of San Joaquin, against Defendants Miguel A. 21 Lopez-Cuen (“Lopez-Cuen”), California Highway Patrol (“CHP”), and the State of 22 California (the “State” and collectively with Lopez-Cuen and CHP, “Defendants”), 23 alleging the following claims for relief: (1) unreasonable search and seizure under the 24 Fourth Amendment in violation of 42 U.S.C. § 1983 (“§ 1983”) against Lopez-Cuen; 25 (2) violations of the California Unruh Civil Rights Act, California Civil Code § 51 (“Unruh 26 Act”), against Defendants; (3) violations of the California Bane Act, California Civil Code 27 § 52.1 (“Bane Act”), against Defendants; (4) Intentional Infliction of Emotional Distress 28 (“IIED”) against Defendants; and (5) False Imprisonment and Arrest against Defendants. 1 Ex. A, Not. Removal, ECF No. 1, at 4–22 (“Compl.”). Defendants subsequently removed 2 the case to this Court pursuant to 28 U.S.C. § 1331. Not. Removal, ECF No. 1 at 2. 3 Presently before the Court are two motions by Defendants: (1) Motion to Dismiss 4 Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6),1 ECF No. 4, 5 and (2) Motion to Strike Plaintiff’s Complaint pursuant to Rule 12(f), ECF No. 5. For the 6 reasons set forth below, Defendants’ Motion to Dismiss is GRANTED in part and 7 DENIED in part, and their Motion to Strike is GRANTED.2 8 9 BACKGROUND3 10 11 Plaintiff is a psychiatric nurse practitioner and treats people who have substance 12 abuse disorders and who are part of a court-ordered substance abuse program. On 13 April 15, 2020, at around 4:40 PM, Plaintiff alleges that he was leaving his place of 14 business when he was pulled over by CHP Officer Lopez-Cuen, who claimed that the 15 reason for the stop was because Plaintiff pulled out in front of him. After Plaintiff 16 provided his driver’s license and copy of insurance, Lopez-Cuen ordered Plaintiff out of 17 the vehicle and had Plaintiff do a field sobriety test. Throughout the encounter, Lopez- 18 Cuen repeatedly asked Plaintiff if he did drugs or alcohol to which Plaintiff repeatedly 19 denied. Lopez-Cuen then asked Plaintiff if he was on any medication, to which Plaintiff 20 replied that he took fluoxetine (Prozac) and that he only takes it around 8:00 AM. Lopez- 21 Cuen then handcuffed Plaintiff, placed him in the back of the patrol car, and 22 administered a breathalyzer test which read 0.0. Plaintiff was taken by Lopez-Cuen to 23 San Joaquin General Hospital for a blood test and subsequently spent the night in the 24 San Joaquin County Jail. After being released the following morning around 1:06 AM, 25

1 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure. 26

2 Because oral argument would not be of material assistance, the Court ordered these matters 27 submitted on the briefs. E.D. Local Rule 230(g).

28 3 The following recitation of facts is taken, sometimes verbatim, from Plaintiff’s Complaint. 1 Plaintiff took a drug test through his employer which showed he tested negative for all 2 drugs tested in that employer test. Plaintiff alleges that he now has an arrest on his 3 formerly unblemished record.4 4 5 STANDARDS 6 7 A. Motion to Dismiss Pursuant to Rule 12(b)(6) 8 On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all 9 allegations of material fact must be accepted as true and construed in the light most 10 favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 11 (9th Cir. 1996). Rule 8(a)(2) “requires only ‘a short and plain statement of the claim 12 showing that the pleader is entitled to relief’ in order to ‘give the defendant fair notice of 13 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 14 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A 15 complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual 16 allegations. However, “a plaintiff’s obligation to provide the grounds of his entitlement to 17 relief requires more than labels and conclusions, and a formulaic recitation of the 18 elements of a cause of action will not do.” Id. (internal citations and quotations omitted). 19 A court is not required to accept as true a “legal conclusion couched as a factual 20 allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 21 555). “Factual allegations must be enough to raise a right to relief above the speculative 22 level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur R. Miller, 23 Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the pleading must 24 contain something more than “a statement of facts that merely creates a suspicion [of] a 25 legally cognizable right of action”)). 26 4 Although referenced in other pleadings, the Complaint does not explicitly allege the statutory 27 provision underlying Plaintiff’s arrest. See, e.g., Not. Removal, ECF No. 1 ¶ 2 (California Vehicle Code § 23152); Pl.’s Opp’n Defs.’ Mot. Dismiss, ECF No. 8, at 4 (same). California Vehicle Code § 23152(f) 28 states that “[i]t is unlawful for a person who is under the influence of any drug to drive a vehicle.” 1 Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket 2 assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3 (internal citations and 3 quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard 4 to see how a claimant could satisfy the requirements of providing not only ‘fair notice’ of 5 the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing Wright & 6 Miller, supra, at 94, 95). A pleading must contain “only enough facts to state a claim to 7 relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . have not nudged their 8 claims across the line from conceivable to plausible, their complaint must be dismissed.” 9 Id. However, “[a] well-pleaded complaint may proceed even if it strikes a savvy judge 10 that actual proof of those facts is improbable, and ‘that a recovery is very remote and 11 unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). 12 A court granting a motion to dismiss a complaint must then decide whether to 13 grant leave to amend. Leave to amend should be “freely given” where there is no 14 “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice 15 to the opposing party by virtue of allowance of the amendment, [or] futility of the 16 amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. 17 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to 18 be considered when deciding whether to grant leave to amend). Not all of these factors 19 merit equal weight. Rather, “the consideration of prejudice to the opposing party . . . 20 carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 21 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that 22 “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group, 23 Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 24 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 25 1989) (“Leave need not be granted where the amendment of the complaint . . . 26 constitutes an exercise in futility . . . .”)). 27 /// 28 /// 1 B. Motion to Strike Pursuant to Rule 12(f) 2 The Court may strike “from any pleading any insufficient defense or any 3 redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “[T]he 4 function of a 12(f) motion to strike is to avoid the expenditure of time and money that 5 must arise from litigating spurious issues by dispensing with those issues prior to 6 trial. . . .” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). 7 Immaterial matter is that which has no essential or important relationship to the claim for 8 relief or the defenses being pleaded. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 9 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994) (internal citations and 10 quotations omitted). Impertinent matter consists of statements that do not pertain, and 11 are not necessary, to the issues in question. Id. 12 13 ANALSYIS 14 15 A. Defendants’ Motion to Dismiss 16 Defendants seek dismissal of Plaintiff’s entire Complaint on grounds that each of 17 Plaintiff’s claims “are pled with conclusory allegations and a formulaic recitation of the 18 elements of the cause of action.” Defs.’ Mot. Dismiss, ECF No. 4, at 4–5. The Court will 19 address each claim in turn. 20 1. First Claim for Relief: Unreasonable Search and Seizure in Violation of the Fourth Amendment (§ 1983) 21 22 “To state a claim under § 1983, a plaintiff must allege the violation of a right 23 secured by the Constitution and laws of the United States, and must show that the 24 alleged deprivation was committed by a person acting under color of state law.” West v. 25 Atkins, 487 U.S. 42, 48 (1988). Under the Fourth Amendment, searches and seizures 26 must be objectively reasonable. City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) 27 (“A search or seizure is ordinarily unreasonable in the absence of individualized 28 suspicion of wrongdoing.”). 1 Here, Plaintiff does not challenge the initial traffic stop but rather alleges that 2 Lopez-Cuen’s subsequent actions were improper, specifically that Lopez-Cuen ordered 3 Plaintiff out of the car to perform a field sobriety test without reasonable suspicion and 4 searched Plaintiff without reasonable suspicion or probable cause. See Compl. ¶¶ 28– 5 39, 48–49. Defendants argue that Plaintiff’s § 1983 “claim is devoid of specific facts 6 identifying why Officer Lopez-Cuen did not have a lawful basis for searching Plaintiff 7 beyond legal conclusions that he violated Plaintiff’s Fourth Amendment rights.” Defs.’ 8 Mot. Dismiss, ECF No. 4, at 5; see also Defs.’ Reply ISO Mot. Dismiss, ECF No. 10, at 2 9 (stating that Lopez-Cuen “had an undisputed basis for stopping Plaintiff; properly 10 investigated a suspected DUI; and when Plaintiff admitted to taking prescription 11 medication, Officer Lopez-Cuen arrested him and took him to the local hospital for a 12 blood test.”). 13 Under both the reasonable suspicion and probable cause standards, the Court 14 must look at the totality of the circumstances in determining whether Lopez-Cuen’s 15 actions were unreasonable. See United States v. Arvizu, 534 U.S. 266, 273 (2002) 16 (stating that, under the reasonable suspicion standard, courts “must look at the totality of 17 the circumstances of each case to see whether the detaining officer has a particularized 18 and objective basis for suspecting legal wrongdoing.”) (citation and internal quotation 19 marks omitted); Dubner v. City and Cnty. of S.F., 266 F.3d 959, 966 (9th Cir. 2001) 20 (“Probable cause exists when, under the totality of the circumstances known to the 21 arresting officers (or within the knowledge of the other officers at the scene), a prudent 22 person would believe the suspect had committed a crime.”). Viewing the allegations in a 23 light most favorable to Plaintiff, the Court finds that the Complaint sufficiently states a 24 cognizable claim under the Fourth Amendment. 25 The pertinent allegations are that Lopez-Cuen stopped Plaintiff for pulling out in 26 front of him and that Plaintiff admitted to taking fluoxetine more than eight hours prior to 27 /// 28 /// 1 the stop.5 Compl. ¶¶ 27, 33–34. Plaintiff does not allege he exhibited any signs of 2 intoxication or impairment during his encounter with Lopez-Cuen. Defendants contend 3 that Plaintiff’s admission to taking prescription medication hours earlier was sufficient to 4 justify arresting him and taking him to the hospital for a blood test, Defs.’ Reply ISO Mot. 5 Dismiss, ECF No. 10, at 2, but that alone does not provide sufficient justification for such 6 actions. Accepting Plaintiff’s allegations as true for purposes of this Motion, Lopez-Cuen 7 did not have reasonable suspicion, let alone probable cause, to search and arrest 8 Plaintiff for driving under the influence. Therefore, Defendants’ Motion to Dismiss this 9 claim for relief is DENIED. 10 2. Second Claim for Relief: Unruh Act (California Civil Code § 51) 11 Plaintiff contends Defendants violated the Unruh Act by discriminating against him 12 based on his medical condition. See Compl. ¶¶ 58, 60–63. The Unruh Act provides 13 that: 14 [a]ll persons within the jurisdiction of [the State of California] are free and equal, and no matter what their sex, race, color, 15 religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, 16 citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, 17 facilities, privileges, or services in all business establishments of every kind whatsoever. 18 19 Cal. Civ. Code § 51(b). Defendants seek dismissal of this claim on grounds that “Plaintiff 20 does not allege that he was not impaired by his use of prescription medication, nor does 21 he allege that he did not demonstrate symptoms of someone who may be under the 22 influence of prescription medication” in violation of the California Vehicle Code. Defs.’ 23 Mot. Dismiss, ECF No. 4, at 6; Defs.’ Reply ISO Mot. Dismiss, ECF No. 10, at 3. 24 Contrary to Defendants’ argument, the Court finds that Plaintiff’s Complaint 25 provides specific allegations of discrimination against Plaintiff based on his medical 26 5 The Court recognizes that the Complaint does not challenge whether the initial stop was 27 reasonable, but nonetheless, the alleged reason for the stop is still relevant to the totality of the circumstances inquiry as to whether Lopez-Cuen had reasonable suspicion and probable cause to search 28 and arrest Plaintiff for driving under the influence. 1 condition. Plaintiff alleges that Lopez-Cuen arrested him after Plaintiff admitted to taking 2 fluoxetine earlier that morning and adds that “Lopez-Cuen then teased Plaintiff about his 3 use of the medication given his job while transporting him to jail.” See Compl. ¶¶ 33–39, 4 62–63. As stated above, admitting to taking fluoxetine earlier in the day is insufficient on 5 its own to support a finding that Plaintiff was driving under the influence. Defendants’ 6 Motion to Dismiss the Unruh Act claim is thus DENIED. 7 3. Third Claim for Relief: Bane Act (California Civil Code § 52.1) 8 “The elements of a cause of action under the Bane Act are: (1) defendants 9 interfered by threat, intimidation, or coercion, or attempted to interfere . . .; (2) with the 10 exercise or enjoyment by any individual of rights secured by federal or state law.” 11 Ordonez v. Stanley, 495 F. Supp. 3d 855, 865–66 (C.D. Cal. 2020) (citing King v. State 12 of Cal., 242 Cal. App. 4th 265, 294 (2015)). “Plaintiff must allege defendants had a 13 specific intent to violate the rights of plaintiff.” Id. at 866 (citing Reese v. Cnty. of 14 Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018)). Further, a “plaintiff must prove that 15 the defendant(s) interfered (or attempted to interfere) with her rights . . . (and that the 16 defendant(s) did so other than by speech alone, unless the speech itself threatened 17 violence).” Doe by & through Doe v. Petaluma City Sch. Dist., 830 F. Supp. 1560, 1582 18 (N.D. Cal. 1993); see Johnson v. City of Atwater, No. 1:18-CV-00920-DAD-SAB, 19 2019 WL 4166842, at *7 (E.D. Cal. Sept. 3, 2019), report and recommendation adopted, 20 2019 WL 7290514 (E.D. Cal. Dec. 30, 2019) (citing Doe with approval); Johnson v. 21 Baca, No. CV 13-04496 MMM (AJWx), 2014 WL 12588641, at *15 (C.D. Cal. Mar. 3, 22 2014) (same); Austin B. v. Escondido Union Sch. Dist., 149 Cal. App. 4th 860, 882 23 (2007) (citing California jury instructions6 in holding that section 52.1 requires a threat or 24 act of violence). 25 Defendants contend that the Complaint fails to “allege any facts supporting the 26 conclusion that Officer Lopez-Cuen used threat, intimidation, or coercion to interfere with 27 Plaintiff’s rights” and that the mere facts that Plaintiff was searched, arrested, and

28 6 Previously CACI No. 3025, now CACI No. 3066. 1 subjected to a blood test do not give rise to a Bane Act claim. Defs.’ Mot. Dismiss, ECF 2 No. 4, at 6. However, some courts have found that “an unlawful search or seizure can 3 form the basis of a cause of action under § 52.1.” Martin v. Cnty. of San Diego, No. 03- 4 CV-1788-IEG (WMC), 2004 WL 7334370, at *4 (S.D. Cal. May 12, 2004); Watkins v. City 5 of Oakland, No. 17-cv-06002-JCS, 2018 WL 574906, at *9 (N.D. Cal. Jan. 26, 2018) 6 (holding “that, to state a claim under the Bane Act, [plaintiff] must plausibly allege that 7 Defendants had a specific intent to violate [his] right to freedom from unreasonable 8 seizure, and need not allege something beyond the coercion inherent in the wrongful 9 detention.”) (internal quotation marks omitted) (citing Cornell v. City and Cnty. of S.F., 10 17 Cal. App. 5th, 766, 801–02 (2017)). Viewing the allegations in a light most favorable 11 to Plaintiff, he has pleaded that his arrest was not supported by probable cause, thus 12 invoking a level of “coercion” prohibited by the Bane Act. Accordingly, Defendants’ 13 Motion to Dismiss as to this claim is DENIED. 14 4. Fourth Claim for Relief: IIED 15 An IIED claim consists of the following elements: 16 (i) outrageous conduct by defendant, (ii) an intention by defendant to cause, or reckless disregard of the probability of 17 causing, emotional distress, (iii) severe emotional distress, and (iv) an actual and proximate causal link between the 18 tortious conduct and the emotional distress. 19 Nally v. Grace Cmty. Church, 47 Cal. 3d 278, 300 (1988). To be “outrageous,” the 20 conduct must be so extreme as to exceed all bounds of that usually tolerated in a 21 civilized community,” Davidson v. City of Westminster, 32 Cal. 3d 197, 209 (1982), and 22 “[s]evere emotional distress [is] distress of such substantial quantity or enduring quality 23 that no reasonable man in a civilized society should be expected to endure it.” 24 Fletcher v. W. Nat’l Life Ins. Co., 10 Cal. App. 3d 376, 397 (1970). 25 The Court need not address the nature of Defendants’ conduct because Plaintiff’s 26 general allegation that his emotional distress resulted in “fear, embarrassment, 27 nervousness, nausea, anxiety, worry, shame, humiliation, distress, shock, and 28 sleeplessness and other physical manifestation[s]” is insufficient to state a cause of 1 action for IIED. Compl. ¶ 81. Even liberally construed, Plaintiff’s IIED allegations are 2 conclusory and merely recite the elements of this common law tort. Therefore, this claim 3 is DISMISSED with leave to amend. 4 5. Fifth Claim for Relief: False Imprisonment and Arrest 5 “The tort of false imprisonment “consists of the nonconsensual, intentional 6 confinement of a person, without lawful privilege, for an appreciable length of time, 7 however short.” Fermino v. Fedco, Inc., 7 Cal. 4th 701, 715 (1994). “Restraint may be 8 effectuated by means of . . . arrest.” Id. Under the California Penal Code, “an officer 9 cannot be held civilly liable for false imprisonment where the officer, ‘acting within the 10 scope of his or her authority,’ made a ‘lawful’ arrest or ‘had reasonable cause to believe 11 the arrest was lawful.’” Blankenhorn v. City of Orange, 485 F.3d 463, 486 (9th Cir. 2007) 12 (9th Cir. 2007) (citing Cal. Penal Code § 847(b)). Because, as alleged, Plaintiff has 13 pleaded that he was arrested without probable cause, the Motion to Dismiss this claim is 14 DENIED. 15 B. Defendants’ Motion to Strike 16 In his Request for Relief, Plaintiff, in part, seeks “[p]unitive damages in the 17 amount of $1,000,000 against each defendant.” Compl. at 18. Defendants ask the 18 Court to strike the request for punitive damages against CHP and the State because 19 such a request against these Defendants is barred as a matter of law. Defs.’ Mot. Strike, 20 ECF No. 5, at 3. Plaintiff does not oppose Defendants’ Motion. Pl.’s Non-Opp’n Defs.’ 21 Mot. Strike, ECF No. 9. 22 It is well-established that public entities are immune from punitive damages under 23 § 1983 and California law. City v. Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 24 (1981) (holding that “a municipality is immune from punitive damages under 42 U.S.C. 25 § 1983”); Westlands Water Dist. v. Amoco Chem. Co., 953 F.2d 1109, 1113 (9th Cir. 26 1992) (“California Government Code § 818 bars any award of punitive damages against 27 a public entity.”); Cal. Gov’t Code § 818 (“Notwithstanding any other provision of law, a 28 public entity is not liable for damages awarded under Section 3294 of the Civil Code or 1 other damages imposed primarily for the sake of example and by way of punishing the 2 defendant.”). Accordingly, Defendants’ Motion to Strike punitive damages from the 3 Request for Relief against CHP and the State is GRANTED without leave to amend. 4 5 CONCLUSION 6 7 For the foregoing reasons, Defendants’ Motion to Dismiss Plaintiff’s Complaint, 8 ECF No. 4, is GRANTED with leave to amend as to the IIED claim, but otherwise 9 DENIED. Defendants’ Motion to Strike the punitive damages request from Plaintiff’s 10 Complaint, ECF No. 5, is GRANTED without leave to amend. Not later than twenty (20) 11 days following the date this Memorandum and Order is electronically filed, Plaintiff may 12 (but is not required to) file an amended complaint. If no amended complaint is timely 13 filed, the claims for relief dismissed by virtue of this Memorandum and Order will be 14 dismissed with prejudice and without further notice to the parties. 15 IT IS SO ORDERED. 16 17 Dated: March 15, 2022 18 19 20 21 22 23 24 25 26 27 28