1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 SAN JOSE DIVISION 4

ANDREW LEE JOHNSON,

5 Case No. 5:18-cv-06264-EJD Plaintiff, 6 ORDER RE MOTIONS TO DISMISS v. 7 Re: ECF Nos. 60, 67 COUNTY OF SANTA CLARA, et al., 8 Defendants. 9

10 Plaintiff Andrew Lee Johnson has brought suit against the City of San Jose, several police 11 officers in the city police department (“SJPD”), Santa Clara County, and multiple deputies 12 employed by the county for alleged civil rights violations arising from his 2014 arrest, three-year 13 pretrial detention, and eventual acquittal on charges of attempted murder. The Court previously 14 dismissed the original complaint and granted Johnson leave to amend. ECF No. 57. The court 15 now considers two motions to dismiss the First Amended Complaint (the “FAC”). One, filed by 16 the City of San Jose (the “City”) and police officers Marco Monzon, Jamie Hall, and Trent Tessler 17 (collectively, “City Defendants”) (ECF No. 60), seeks to dismiss Causes of Action Four through 18 Seven. The other, filed by Santa Clara County (the “County”) and Deputies Timur Ruban, 19 Matthew Reeves, and Pedro Dominguez (collectively, “County Defendants”) (ECF No. 67), seeks 20 dismissal of Causes of Action One, Two, and Nine. Defendant Jereh Lubrin has not responded to 21 the FAC. Johnson has agreed to dismiss the Third Cause of Action. See ECF No. 69 at 1. 22 Accordingly, the Court dismisses the Third Cause of Action. For the reasons discussed below, the 23 Court denies the motion brought by the City Defendants, and denies in part and grants in part the 24 motion brought by the County Defendants. 25 I. Judicial Notice 26 City Defendants ask the Court to take judicial notice of (1) Johnson’s Trombetta Motion, 27 (2) the District Attorney’s opposition thereto, (3) the trial court’s verbal order on the Trombetta 1 Motion, and (4) a July 21, 2017 order by the Sixth Circuit Court of Appeal. ECF No. 61. Courts 2 may take judicial notice of matters that are “not subject to reasonable dispute.” Fed. R. Evid. 3 201(b). It is well-established that “a court may take judicial notice of matters of public record 4 without converting a motion to dismiss into a motion for summary judgment,” so long as the court 5 does not take judicial notice of “disputed facts contained in such public records.” Khoja v. 6 Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018). “Courts have consistently held 7 that courts may take judicial notice of documents filed in other court proceedings. . . . While the 8 court cannot accept the veracity of the representations made in the documents, it may properly 9 take judicial notice of the existence of those documents and of the representations having been 10 made therein.” NuCal Foods, Inc. v. Quality Egg LLC, 887 F. Supp. 2d 977, 984 (E.D. Cal. 2012) 11 (string citation and quotations omitted). The Court will take judicial notice of the existence of 12 Johnson’s Trombetta Motion and the trial court’s verbal order on the Trombetta Motion, and the 13 arguments, analysis, and legal rulings made in those documents. The Court does not take judicial 14 notice of any factual allegations contained in either document. Neither the District Attorney’s 15 opposition nor the July 21, 2017 order are relevant to the Court’s analysis, so the Court does not 16 take judicial notice of those documents. 17 II. Factual Allegations 18 While returning from a market on the night of October 27, 2014, two brothers, Alvaro and 19 Bicente Castro, accosted Johnson with a knife and attempted to rob him. FAC ¶¶ 25-27. In 20 response, Johnson brandished a firearm that he “always carried with him” and fired two warning 21 shots into the sidewalk. Id. ¶¶ 27-29. However, they continued to threaten him, so he shot one in 22 the leg and the other in the hip. Id. ¶ 29. Johnson then returned to his apartment. Id. ¶ 30. The 23 San Jose Police arrived at the scene within minutes and the Castros were taken to the hospital. Id. 24 ¶ 31. There, Defendant Hall interviewed Bicente Castro, recorded the audio of the interview, and 25 took hand-written notes. Id. ¶¶ 32-33. Afterwards, Hall uploaded the audio to her work computer 26 terminal and to DCS, the SJPD data management system. Id. ¶ 33. She received an email 27 confirming the upload to DCS. Id. Relying on her notes, she drafted an interview summary and 1 included the summary in the incident report. Id. ¶ 34. She then destroyed the notes. Id. The 2 audio recording of the interview was subsequently deleted from her recording device, her work 3 computer terminal, and the DCS system. Id. ¶¶ 36-38. The recording was never provided to 4 Johnson’s criminal defense attorney and Johnson did not learn of its existence until his criminal 5 trial. Id. ¶¶ 39-40. Bicente was intoxicated at the time of his interview with a blood alcohol level 6 of twice the legal driving limit. Id. ¶ 35. Bicente told Hall that he had trouble remembering the 7 events leading up to the shooting, and he could not account for multiple hours of time. Id. 8 Defendant Monzon interviewed Alvaro Castro, recorded the audio of the interview, and 9 hand wrote notes during the interview. Id. ¶¶ 41-42. Monzon, like Hall, used his notes to draft a 10 summary of the interview, which he placed in the incident report, and he uploaded the audio 11 recording to his work computer terminal and DCS. Id. ¶¶ 42-43. Monzon destroyed his 12 handwritten notes, and the audio recording was subsequently deleted from his recording device, 13 his work computer terminal, and DCS. Id. ¶¶ 43, 50-52. Johnson never received a copy of the 14 recording and did not learn of its existence until his trial. Id. ¶¶ 53-54. Alvaro was intoxicated at 15 the time of his interview and was suffering from alcohol poisoning while at the hospital. Id. ¶ 49. 16 Alvaro told Monzon that he had trouble remembering the events before the shooting. Id. ¶ 48. At 17 the hospital, Alvaro told medical staff that he and Bicente were victims of a drive-by shooting and 18 the staff relayed his statements to Monzon. Id. ¶¶ 44-46. Monzon’s report included neither 19 Alvaro’s statements about the drive-by shooting nor Alvaro’s level of intoxication. Id. ¶¶ 47, 49. 20 Monzon also interviewed the manager of a market near location of the shooting. Id. ¶ 57. 21 The manager showed Monzon video camera footage of Alvaro forcing his way behind the counter 22 about 15 minutes before the shooting and of Johnson making a purchase there earlier in the day. 23 Id. ¶ 58. Monzon preserved the footage of Johnson making a purchase, but not the footage of 24 Alvaro. Id. ¶ 59. Defendant Tessler separately interviewed a clerk who works at the market. Id. ¶ 25 71. The clerk told Tessler that the Castro brothers had caused a disturbance in the store shortly 26 before the shooting, arguing with other customers and accusing the clerk of calling the police. Id. 27 ¶¶ 71-72. The clerk said that Alvaro tried to force his way behind the county of the store. Id. ¶ 1 73. The clerk also told Tessler that he believed the Castros were looking for trouble, so he locked 2 the front door and closed the market after they left. Id. ¶ 74. 3 Tessler also interviewed the property manager of Johnson’s building. Id. ¶ 66. The 4 property manager provided Tessler with a thumb drive containing data from the key fob Johnson 5 used to enter the building. Id. Neither the thumb drive nor the raw data were provided to 6 Johnson; instead Johnson received a document of his entrances and exits. Id. ¶ 67. He later 7 learned that Tessler had created the document, and Johnson alleges that City Defendants and 8 unknown Doe Defendants altered the data represented in the document. Id. ¶¶ 67-68. Johnson did 9 not learn of the existence of the raw data until property manager testified at trial. Id. ¶ 68. 10 On November 12, 2014, Johnson was booked into the county jail on two counts of 11 attempted premeditated murder and on one count of misdemeanor possession of cocaine. Id. ¶ 87. 12 He would not be released until February 7, 2018, following his acquittal on the attempted murder 13 charges. Id. ¶ 252. Johnson chose not to post bail so that he could afford to retain private counsel. 14 Id. ¶ 188. Johnson alleges that he was subject to abuse and other inhumane treatment while 15 detained. See id. ¶¶ 87-185. He alleges that he was denied psychiatric prescription medication for 16 multiple weeks on at least two occasions. Id. ¶¶ 89-92, 111-12. He alleges that he was confined 17 to solitary confinement for his first 16 months of detention (id. ¶ 91, 103), however, he also 18 alleges that in March 2015, four months after his detention began, he had a cellmate (id. ¶¶ 127, 19 137). 20 In March 2015, Defendants Reeves, Ruban, and Dominguez abused Johnson following a 21 disturbance caused by Defendant Lubrin. Id. ¶¶ 127-49. The disturbance led to unrest in the jail 22 population and then a four-day lockdown, when inmates in the unit were not allowed to leave their 23 cells. Id. ¶ 127. When the lockdown ended, about a quarter of the housing unit including 24 Johnson, were permitted out of their cells, which led to a verbal altercation between Johnson and 25 Reeves. Id. ¶¶ 130-34. Reeves, Ruban, and Dominguez then entered Johnson’s cell where they 26 handcuffed Johnson and began kicking and punching him. Id. ¶¶ 136-38. At one point, 27 Dominguez restrained Johnson, while Ruban ground his crotch against Johnson’s buttocks. Id. ¶ 1 140. The three deputies then brought Johnson to an interview room where they continued to beat 2 him, slamming him against the wall, punching him, and stomping on his feet. Id. ¶¶ 143-46. 3 About a year after the beating, Johnson told Internal Affairs investigators about the beating, and he 4 was told that Reeves, Ruban, and Dominguez would be kept away from him. Id. ¶¶ 158-61. 5 However, he was forced to interact with them on multiple occasions after that. Id. ¶¶ 162-67. 6 At Johnson’s preliminary hearing on March 4, 2016, the trial court found that the evidence 7 was insufficient to sustain the attempted murder charges and reduced the charges to assault with a 8 deadly weapon with great bodily injury. Id. ¶¶ 193-95. The District Attorney’s office appealed, 9 the Court of Appeal issued an Alternative Writ of Mandate, and the trial court reinstated the 10 attempted homicide charge. Id. ¶¶ 199-203. 11 After jury selection, Johnson filed a Trombetta Motion based on the lost audio recordings. 12 Klimczak Ex. A. Johnson sought dismissal of the charges, or alternatively for an instruction to the 13 jury to draw any inferences regarding the lost evidence in Johnson’s favor and for Johnson be 14 allowed to cross-examine SJPD witnesses as to how the investigation was handled. Id. at 3. The 15 trial judge declined to dismiss the charges stating, “what I do not hear is evidence of bad faith, that 16 some officer – based on his or her knowledge of the case – subverted evidence, destroyed 17 evidence of these things. . . . So for that reason, I do not believe that dismissal is appropriate.” 18 Klimczak Ex. E at 103:10-12, 20-21. The trial judge ruled that Johnson would be permitted to 19 cross-examine the complaining witnesses and SJPD witnesses. Id. at 104:8-11; FAC ¶ 211. 20 Finally, the trial judge took “under submission” Johnson’s request for jury instructions adverse to 21 the prosecution, stating that they would “keep that issue open for [Johnson]” and that they would 22 “allow you to argue [for an adverse jury instruction] after the evidence comes in if [Johnson] 23 believe[s] that it is still appropriate.” Id. at 104:15-26; FAC ¶ 211. Johnson does not allege that 24 the trial court issued an adverse jury instruction. 25 After three weeks of evidence, the jury acquitted Johnson. FAC ¶¶ 218-20. Following his 26 acquittal, Johnson was transported back to jail and returned to his cell. Id. ¶ 229. Despite not 27 being sick, he was told by unknown Doe Defendants that he might be quarantined in the jail for 1 five days. Id. ¶ 230. He was held for six hours before being released. Id. ¶ 231. Jail personnel 2 refused to return his clothes and shoes upon his release. Id. ¶ 235. 3 III. Legal Standard 4 Federal Rule of Civil Procedure 8 requires a complaint to include a “short and plain 5 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 6 motion brought under Rule 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. Block, 250 7 F.3d 729, 732 (9th Cir. 2001). The Court should accept as true all well-pleaded factual allegations 8 and construe them in the light most favorable to the plaintiff. Reese v. BP Exploration (Alaska) 9 Inc., 643 F.3d 681, 690 (9th Cir. 2011). But, the Court need not “accept as true allegations that 10 contradict matters properly subject to judicial notice” or “allegations that are merely conclusory, 11 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 12 F.3d 1049, 1055 (9th Cir. 2008). The Court may also disregard “legal conclusion couched as a 13 factual allegation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). Where a complaint fails to 14 state a cognizable claim or to allege facts sufficient to support a cognizable claim, it may be 15 dismissed by a Rule 12(b)(6) motion. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). 16 IV. City Defendants’ Motion to Dismiss 17 Johnson brings the following causes of action against the City Defendants: Deliberate 18 Fabrication of Evidence against Tessler, Monzon, and Hall (Fourth Cause of Action); Failure to 19 Disclose Exculpatory or Impeachment Evidence against Tessler, Monzon, and Hall (Fifth Cause of 20 Action); Conspiracy against Tessler, Monzon, and Hall (Sixth Cause of Action); Continued 21 Unlawful Detention and Malicious Prosecution under the Fourth and Fourteenth Amendments 22 though 42 U.S.C. § 1983 against Tessler, Monzon, Hall, and unknown Doe Defendants (Seventh 23 Cause of Action); and Unlawful Detention and Malicious Prosecution under the Fourth and 24 Fourteenth Amendments though Monell v. Department of Social Services, 436 U.S. 658 (1978), 25 against the City (Eighth Cause of Action). City Defendants argue that these causes of action are 26 predicated on the same factual allegations that supported the causes of action for malicious 27 prosecution, destruction/fabrication of evidence, and false imprisonment brought in the original 1 complaint. Accordingly, they contend that Johnson must still satisfy the lack-of-probable-cause 2 element for the original causes of action, which he cannot do because, under McCutchen v. City of 3 Montclair, 73 Cal. App. 4th 1138 (1999), the trial court’s reinstatement of the attempted homicide 4 charges establishes through collateral estoppel that City Defendants had sufficient probable cause 5 to arrest and hold him. Johnson counters that the causes of action in the FAC are different from 6 those in the original complaint, so collateral estoppel does not apply. 7 The Court need not consider whether it should treat the causes of action in the FAC as the 8 same causes of action from the original complaint, because, assuming they are the same, City 9 Defendants’ argument based on McCutchen would fail. In McCutchen, the California Court of 10 Appeal held that where a trial court determines in a preliminary hearing that “there was sufficient 11 evidence to hold the plaintiff over for trial may, in some situations, preclude the plaintiff from 12 relitigating the issue of probable cause to arrest in a subsequent civil suit.” Id. at 1147. The Court 13 of Appeal recognized three exceptions: where new evidence is presented at the preliminary 14 hearing, when the investigating officers fabricated or suppressed evidence, or where the criminal 15 defendants chose for tactical reasons not to litigate probable cause. Id. at 1147. Here, Johnson 16 alleges that Defendants suppressed and fabricated evidence and hid their conduct from him until 17 trial. See, e.g., FAC ¶¶ 34-40, 43, 50-54, 66-68. 18 City Defendants argue that the trial judge’s ruling on Johnson’s Trombetta Motion 19 collaterally estops Johnson from claiming that they destroyed or suppressed evidence. Under 20 California law, collateral estoppel applies when five requirements are met “(1) the issue sought to 21 be relitigated must be identical to the issue decided in the earlier action; (2) the issue must have 22 been actually litigated and (3) necessarily decided in the earlier action; (4) the earlier decision 23 must be final and made on the merits; and (5) the party against whom issue preclusion is asserted 24 must have been a party to the earlier action or in privity with such a party.” Wige v. City of Los 25 Angeles, 713 F.3d 1183, 1185 (9th Cir. 2013). “Any issue necessarily decided in such litigation is 26 conclusively determined as to the parties or their privies if it is involved in a subsequent lawsuit on 27 a different cause of action.” Daar & Newman v. VRL Int’l, 28 Cal. Rptr. 3d 566, 571 (2005). “A 1 party who asserts claim or issue preclusion as a bar to further litigation bears the burden of 2 proving that the requirements of the doctrine are satisfied.” Hong Sang Mkt., Inc. v. Peng, 229 3 Cal. Rptr. 3d 99, 110 (Ct. App. 2018). 4 The trial court’s ruling on the Trombetta Motion does not meet the “final and on the 5 merits” requirement. First, the California Supreme Court has held that “a finding made in 6 connection with a cause of action should not have preclusive effect when the finding was adverse 7 to the party that prevailed on that cause of action, in part because the party could not appeal.” 8 Samara v. Matar, 419 P.3d 924, 931 (2018) (citing and describing Albertson v. Raboff, 295 P.2d 9 405 (1956)). Johnson did not have the opportunity to appeal the trial court’s decision not to 10 dismiss the charges based on the Trombetta Motion because he was acquitted. Second, while the 11 trial court found that Johnson had not shown bad faith by the officers such that dismissal was 12 warranted, it allowed Johnson to cross examine SJPD witnesses as to their credibility and did not 13 issue a decision on Johnson’s request for an adverse jury instruction. City Defendants argue that 14 this Court should interpret the fact that the trial court ultimately did not issue an adverse jury 15 instruction as a full denial of the Trombetta Motion, but that assumption would go too far given 16 the totality of the trial court’s order. Cf. Samara, 419 P.3d at 930. The trial court’s order on the 17 Trombetta Motion does not preclude Johnson from alleging City Defendants suppressed or 18 fabricated evidence. City Defendants’ argument that McCutchen bars Johnson from bringing 19 Causes of Action Four through Seven therefore fails. Likewise, City Defendants’ argument that 20 the City is not subject to Monnell liability because the underlying claims are barred also fails. 21 City Defendants’ motion is denied. 22 V. County Defendants’ Motion to Dismiss 23 Against County Defendants, Johnson brings section 1983 claims for Cruel and Unusual 24 Confinement under the Fourteenth Amendment against Reeves, Ruban, and Dominguez1 (Cause 25 of Action One), for Cruel and Unusual Confinement under the Fourteenth Amendment against the 26

27 1 This Cause of Action is also raised against Defendant Lubrin, but because he is not party to this Motion, the Court does not discuss him. 1 County (Cause of Action Two), and for Intentional Infliction of Emotional Distress against 2 unknown Doe Defendants employed by the County and the County (Cause of Action Nine). The 3 County argues that the First and Second Causes of Action are barred by the statute of limitations 4 and that the Ninth Cause of Action should be dismissed because the alleged conduct does not meet 5 the standards for extreme or outrageous conduct and because Johnson failed to comply with state 6 presentation requirements. 7 a. Causes of Action One and Two 8 The First and Second Causes of Action arise from Johnson’s alleged mistreatment in jail 9 and the alleged abuse by Reeves, Ruban, and Dominguez. In the Ninth Circuit, “[a] motion to 10 dismiss based on the running of the statute of limitations period may be granted only if the 11 assertions of the complaint, read with the required liberality, would not permit the plaintiff to 12 prove that the statute was tolled.” Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206-07 13 (9th Cir. 1995). A 12(b)(6) motion “must be denied if the factual and legal issues are not 14 sufficiently clear to permit a determination with certainty whether the action was timely.” Baros 15 v. Ramirez, 2019 WL 3849171, at *5 (C.D. Cal. June 5, 2019), report and recommendation 16 adopted, 2019 WL 3841797 (C.D. Cal. Aug. 12, 2019) (quoting Halbert v. Cty. of San Diego, 17 2009 WL 1024577, at *3 (S.D. Cal. Apr. 15, 2009) (citing Supermail, 68 F.3d at 1207)). 18 42 U.S.C. § 1983 does not contain a statute of limitations. Rather, the applicable 19 limitations period matches the limitations period for personal injury actions in the forum state. 20 Shaw v. Sacramento Cty. Sheriff's Dep’t, 343 F. Supp. 3d 919, 922 (E.D. Cal. 2018). In 21 California, that is two years. Cal. Code Civ. Proc. § 335.1. Federal law determines when a cause 22 of action accrues and, therefore, when the statute of limitations begins to run in a section 1983 23 action. Baros, 2019 WL 3849171, at *6 (C.D. Cal. June 5, 2019) (citing Azer v. Connell, 306 F.3d 24 930, 936 (9th Cir. 2002)). Section 352.1 of the California Code of Civil Procedure tolls the statute 25 of limitations for two years where the plaintiff is “imprisoned on a criminal charge, or in execution 26 under the sentence of a criminal court for a term less than for life.” Cal. Civ. Proc. Code § 27 1 352.1(a). 2 Some dispute among the authorities exists as to whether section 352.1 applies to pretrial 3 detainees in county jails. The Ninth Circuit considered the predecessor statute to section 352.1 in 4 Elliott v. City of Union City, 25 F.3d 800 (9th Cir. 1994). There, the plaintiff was arrested and 5 remained in continuous custody until he was convicted. Id. at 801. He brought a section 1983 6 claim against his arresting police officers for excessive force. Id. The Ninth Circuit reasoned “[a] 7 person held in police custody prior to arraignment is faced with the same limitations as someone 8 in custody after arraignment,” thus drawing a distinction between them would be “arbitrary.” Id. at 9 803. The Circuit Court held that “actual, uninterrupted incarceration is the touchstone for 10 assessing tolling” under the section 352.1’s predecessor statute and found that the statute of 11 limitations had been tolled for that plaintiff. Id. (quotation and citation omitted). More recently, 12 the Second Circuit of the California Court of Appeal found that section 352.1 does not apply to 13 individuals held in county jail prior to trial. Austin v. Medicis, 230 Cal. Rptr. 3d 528, 531 (Ct. 14 App. 2018), reh’g denied (Apr. 11, 2018), review denied (June 13, 2018). There, the plaintiff’s 15 cause of action accrued while he was in county jail, where he was held for about a year and a half. 16 Id. at 537. As a matter of first impression, the Court of Appeal analyzed the legislative history of 17 Section 352.1. Id. at 537-42. Based on that history, it held that “a would-be plaintiff is 18 ‘imprisoned on a criminal charge’ within the meaning of section 352.1 if he or she is serving a 19 term of imprisonment in the state prison,” and that the statute does not toll the statute of 20 limitations for “local inmates in pretrial custody.” Id. at 542. 21 Here, County Defendants argue that under Austin, the statute of limitations for Johnson’s 22 section 1983 claims was not tolled, so any alleged conduct that occurred more than two years 23 before he filed the complaint—i.e., any alleged conduct that occurred prior to October 12, 2016— 24 cannot support those causes of action claims. The Court disagrees. While the Austin Court found 25 that Elliot was “unpersuasive” (id. at 537 n.5), Elliot remains binding on this Court. The facts in 26 Elliot are not distinguishable from the facts here. Like the Elliot plaintiff, Johnson was arrested 27 and held in continuous confinement, and his causes of action accrued before his trial. Elliot, 25 1 F.3d at 801. While the Elliot decision turned on the predecessor statute to section 352.1, the only 2 difference between the two statutes is that that section 352.1 set a two-year maximum to the 3 tolling period; the revision did not change to whom the statute applies. See Baros, 2019 WL 4 3849171, at *6 (citing Bullette v. Cty. of Riverside, 2011 WL 4387762 (C.D. Cal. July 20, 2011)). 5 So, Elliot is on point, and “caselaw on point is the law.” Hart v. Massanari, 266 F.3d 1155, 1170 6 (9th Cir. 2001). “A district judge may not respectfully (or disrespectfully) disagree with his 7 learned colleagues on his own court of appeals who have ruled on a controlling legal issue.” Id. 8 “[U]nless and until [Elliot is] overruled by a body competent to do so,” this Court must follow its 9 holding that that the relevant inquiry is whether the plaintiff has been in continuous custody, not 10 whether the plaintiff’s detention is before or after their trial. Id; see also Miller v Najera, 2020 11 WL 731176, at *8 (E.D. Cal. Feb. 13, 2020) (“[W]hile the Austin decision applies to Plaintiff’s 12 state law claim, this Court must apply the principles of the Elliott decision to Plaintiff’s federal 13 claims unless and until the Ninth Circuit holds otherwise.”); Baros, 2019 WL 3849171, at *6. The 14 cases cited by County Defendants are distinguishable from Elliot on their facts. Garcia v. Corral, 15 2019 WL 931754, at *3 (N.D. Cal. Feb. 26, 2019) (finding that “[e]ven . . . Elliott is applicable, 16 the facts of this case are distinguishable” because the plaintiff was in and out of custody); Shaw, 17 343 F. Supp. 3d at 924 (E.D. Cal. 2018) (“Elliott is factually distinguishable from the instant case 18 because Plaintiff spent one night in county jail while the plaintiff in Elliott remained in 19 uninterrupted custody from the time of his arrest until he was convicted and sent to state prison.”). 20 Because Elliot controls, the court will apply the two-year tolling of section 352.1. Thus, 21 Johnson’s claims, which are all predicated on events that allegedly took place after he was booked 22 into jail on November 12, 2014, are timely. County Defendants’ motion to dismiss is denied as to 23 the First and Second Causes of Action. 24 b. Cause of Action Nine 25 The Ninth Cause of Action for intentional infliction of emotional distress seeks to hold the 26 County liable through respondeat superior for Doe Defendants’ alleged statement following his 27 acquittal that Johnson “might” be subject to a five-day quarantine in jail and their alleged refusal 1 to return his clothes when he was released. FAC ¶ 308. Before a plaintiff can seek money 2 damages from a government entity or its employees on a tort claim, California’s Government Tort 3 Claims Act requires the plaintiff to file an administrative claim form with the relevant government 4 entity no more than six months after the cause of action accrues. Cal. Govt. Code §§ 905, 911.2, 5 945.4, 950-950; Lipsey v. Davey, 2018 WL 6201947, at *2 (E.D. Cal. Nov. 28, 2018). “Timely 6 claim presentation is not merely a procedural requirement, but is a condition precedent to 7 plaintiff’s maintaining an action against defendant, and thus an element of the plaintiff’s cause of 8 action.” A.M. v. Ventura Unified Sch. Dist., 208 Cal. Rptr. 3d 234, 238 (Ct. App. 2016), as 9 modified (Oct. 19, 2016) (citations, quotations, and alterations omitted). The California Supreme 10 Court has held that “a plaintiff must allege facts demonstrating or excusing compliance with the 11 claim presentation requirement” or the complaint will have failed to state a claim. State of 12 California v. Superior Court, 32 Cal. 4th 1234, 1243 (2004). 13 The parties dispute whether Johnson complied with the statute’s presentation requirement. 14 The Act required Johnson to deliver or mail his claim to the clerk, secretary, auditor, or to the 15 governing body at its principal office. Cal. Gov’t Code § 915(a). Johnson, though, does not plead 16 any facts showing that he delivered the claim to the proper government entity. Rather the FAC 17 merely states: “JOHNSON has complied with all applicable requirements by submitting timely 18 Government Tort Claim Notices pursuant to G.C. 910, et seq., on July 20, 2018, which have been 19 rejected either in writing, or by operation of law, by the COUNTY and CITY.” FAC ¶ 313. That 20 Johnson “complied with all applicable requirements” is a legal conclusion, not a factual allegation. 21 See Iqbal, 129 S. Ct. at 1950; see also ECF No. 57 at 5. In his opposition, Johnson refers the court 22 to the earlier declaration his counsel filed in connection with his opposition to County Defendants’ 23 motion to dismiss the original complaint. See ECF No. 69 at 13-14 (citing ECF No. 49-1). But 24 none of the “summarized” “facts” listed in the opposition or counsel’s declaration are pled in the 25 FAC. “It is axiomatic that the complaint may not be amended by the briefs in opposition to a 26 motion to dismiss.” Diamond S.J. Enter., Inc. v. City of San Jose, 395 F. Supp. 3d 1202, 1231 27 (N.D. Cal. 2019) (quoting Merritt v. Metro. Life Ins. Co., 2010 WL 725073, at *1 (N.D. Cal. Mar. 1 1, 2010)). “[T]he Court does not consider what Plaintiff intended to allege, but rather, considers 2 || what is alleged.” Jd. This pleading failure is grounds to dismiss the Ninth Cause of Action. 3 The Court denies leave to amend for two reasons. First, in his original complaint, Johnson 4 || represented that he had complied with the statute with a paragraph that was nearly identical to the 5 paragraph quoted above. The only difference is that in the FAC Johnson added the date that he 6 || purportedly submitted the claim form. Compare ECF No. 1 §] 278 with FAC 4 313. In its order 7 dismissing the original complaint, the Court held, “This paragraph consists of legal conclusions 8 || unsupported by factual allegations. ... Johnson has therefore failed to adequately allege facts 9 || supporting his claim to have timely served his administrative claim against County Defendants.” 10 || ECF No. 57 at 5. Despite having the chance to amend, Johnson chose not to add any factual 11 allegations showing that he submitted the claim to the proper entity. Second, even if Johnson had 12 || pled the factual allegations of his counsel’s declaration into the FAC, those allegations would not 5 13 support his claim. Counsel represented that she timely submitted the claim to the County Counsel, 14 || not the Clerk for the County Board of Supervisors. ECF No. 49-1 97. The California Supreme 3 15 Court has held that a plaintiff may not “plac[e] a duty on a public employee who receives a 16 || misdirected claim to forward it to the proper agency.” DiCampli-Mintz v. Cty. of Santa Clara, 289 3 17 || P.3d 884, 892 (2012). By submitting the claim to the County Counsel, Johnson “improperly 18 shifted the responsibility for presenting a claim from” himself to the County Counsel. □□□ 19 || Therefore, any amendment that Johnson could make would be futile. Leave to amend is denied. 20 VI. Conclusion 21 For the reasons discussed above, the motion filed by City Defendants is denied. County 22 || Defendants’ motion is denied as to the First and Second Causes of Action and granted with 23 prejudice on the Ninth Cause of Action. 24 IT IS SO ORDERED. 25 Dated: February 21, 2020 26 eM.

EDWARD J. DAVILA

27 United States District Judge 28 || Case No.: 5:18-cv-06264-EJD

ORDER RE MOTIONS TO DISMISS