1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 MATTHEW BURGESS Case No.: 21-cv-616-MMA (MSB) 11

12 Plaintiff,

ORDER: (1) GRANTING IN PART

13 v. AND DENYING IN PART

DEFENDANTS’ MOTION TO

14 COUNTY OF SAN DIEGO, et al., DISMISS, AND (2) GRANTING IN

PART AND DENYING IN PART

15 Defendants. DEFENDANTS’ MOTION TO

STRIKE

16 [Doc. No. 14] 17 18 19 Plaintiff Matthew Burgess (“Plaintiff”) brings this civil rights action pursuant to 42 20 U.S.C. § 1983 against Defendants City of San Diego (the “City”), Officer Jeremy Huff 21 (“Huff”), and unidentified Does (collectively, “Defendants”). Defendants move to 22 dismiss Plaintiff’s fourth, fifth, and sixth cause of action pursuant to Federal Rule of Civil 23 Procedure 12(b)(6) and move to strike several allegations in the Second Amended 24 Complaint (“SAC”) pursuant to Federal Rule of Civil Procedure 12(f). See Doc. No. 14 25 at 1. Plaintiff filed an opposition to Defendants’ motion, to which Defendants replied. 26 See Doc. Nos. 17, 18. The Court found the matter suitable for determination on the 27 papers and without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and 28 Civil Local Rule 7.1.d.1. See Doc. No. 16. For following reasons, the Court GRANTS 1 IN PART and DENIES IN PART Defendants’ motion to dismiss and GRANTS IN 2 PART and DENIES IN PART Defendants’ motion to strike. 3 I. BACKGROUND1 4 Plaintiff’s action arises from a demonstration protesting policy brutality. SAC ¶ 2. 5 The demonstration occurred on May 31, 2020 in downtown San Diego. Id. ¶ 1. Plaintiff 6 alleges that, at the protest, “Plaintiff stood peacefully, chanted, and made video 7 recordings on his telephone.” Id. ¶ 3. When Plaintiff saw “an officer try to hit a 8 peacefully protesting woman with a baton,” Plaintiff told the officer, “Don’t push her.” 9 Id. ¶ 4. “At that point, Officer [Huff] jabbed [Plaintiff] in the stomach with the baton, 10 leaving bruising and causing pain.” Id. 11 Later that day, Plaintiff saw Doe officers “begin shooting kinetic impact projectiles 12 at other peaceful protesters.” Id. ¶ 5. Plaintiff yelled at the officers to stop, “while 13 continuing to record video on his cellular phone.” Id. The Doe officers “then 14 purposefully aimed at him and shot him twice in the legs.” Id. When Plaintiff “turned 15 around to try and flee in order to protect himself,” the Doe officers “shot him in the back, 16 causing him to bleed through his shirt.” Id. Later, Plaintiff was “sprayed with pepper 17 spray or another irritant by [Doe] officer(s),” which caused Plaintiff “significant 18 discomfort and pain.” Id. ¶ 6. 19 Based on these allegations, Plaintiff brings seven causes of action: (1) violation of 20 42 U.S.C. § 1983 against Huff and Does 1–12; (2) violation of 42 U.S.C. § 1983 against 21 the City and Supervisory Doe Defendants 13–25; (3) battery against Huff, the City, and 22 Does 1–12; (4) intentional infliction of emotional distress against all Defendants; 23 (5) violation of the Ralph Act, Civil Code § 51.7, against all Defendants; (6) violation of 24 the Bane Civil Right Act, Civil Code § 52.1, against all Defendants; and (7) negligence 25

26 27 1 Because this matter is before the Court on a motion to dismiss, the Court must accept as true the allegations set forth in the Complaint. See Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740 28 1 against all Defendants. SAC ¶ 7–66. 2 II. MOTION TO STRIKE 3 A. Legal Standard 4 A Rule 12(f) motion to strike allows a court to “strike from a pleading an 5 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” 6 Fed. R. Civ. P. 12(f). For the purposes of this rule, “‘[i]mmaterial’ matter is that which 7 has no essential or important relationship to the claim for relief or the defenses being 8 pleaded.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (quoting 5 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382, at 706–07 10 (1990)), rev’d on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994); see 11 also Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010). 12 “‘Impertinent’ matter consists of statements that do not pertain, and are not necessary, to 13 the issues in question.” Fantasy, Inc., 984 F.2d at 1527 (quoting 5 Charles A. Wright & 14 Arthur R. Miller, at 711); see also Whittlestone, Inc., 618 F.3d at 974. 15 The purpose of a Rule 12(f) motion is “to avoid the expenditure of time and money 16 that must arise from litigating spurious issues by dispensing with those issues prior to 17 trial.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). “Motions 18 to strike are generally disfavored, unless ‘it is clear that the matter to be stricken could 19 have no possible bearing on the subject matter of the litigation.’” Haghayeghi v. Guess?, 20 Inc., No. 14-cv-00020 JAH-NLS, 2015 WL 1345302, at *5 (S.D. Cal. Mar. 24, 2015) 21 (quoting LeDuc v. Kentucky Cent. Life Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992)); 22 see also Cairns v. Franklin Mint Co., 24 F. Supp. 2d 1013, 1037 (C.D. Cal. 1998)). In 23 ruling on a motion to strike, the court may only consider the face of the pleading or 24 matters subject to judicial notice. See Fantasy, Inc., 984 F.2d at 1528. “With a motion to 25 strike, just as with a motion to dismiss, the court should view the pleading in the light 26 most favorable to the nonmoving party.” Snap! Mobile, Inc. v. Croghan, No. 18-cv- 27 04686-LHK, 2019 WL 884177, at *3 (N.D. Cal. Feb. 22, 2019) (quoting Platte Anchor 28 Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004)). Ultimately, the 1 decision about whether to strike allegations is a matter within the district court’s 2 discretion. California Dep’t of Toxic Substances Control v. Alco Pac., Inc., 217 F. Supp. 3 2d 1028, 1033 (C.D. Cal. 2002) (citing Fantasy, Inc., 984 F.2d at 1528); see also 4 Whittlestone, Inc., 618 F.3d at 974 (quoting Nurse v. United States, 226 F.3d 996, 1000 5 (9th Cir. 2000)). 6 B. Discussion 7 Defendants seek to strike the following five allegations in the SAC: 8 9 • Allegation 1: 16. Defendants the CITY OF SAN DIEGO Supervisory DOE Defendants 13-25 were aware of the widespread problems with the use of 10 excessive force within SDPD. Despite this knowledge, Defendants took no 11 action to supervise or discipline officers, or to provide better training as to proper use of force. 12 13 • Allegation 2: 17. Defendants the CITY OF SAN DIEGO and Supervisory DOE Defendants 13-25 have a lengthy history of ratifying deputy 14 misconduct by failing to conduct appropriate investigations. They have 15 refused to investigate misconduct and/or taken no remedial steps or actions against officers. 16

17 • Allegation 3: 18. There has been an official policy of acquiescence in the 18 wrongful conduct. Defendants failed to promulgate corrective policies and regulations in the face of repeated Constitutional violations. Defendants 19 condoned and acquiesced in the abusive behavior of their subordinates by 20 refusing to retrain them, discipline them, or correct their abusive behavior. 21 • Allegation 4: 19. Defendant CITY OF SAN DIEGO and Supervisory DOE 22 Defendants 13-25, as a matter of custom, practice, or policy, failed to 23 institute, require, and enforce proper and adequate training and supervision for the use of kinetic impact projectiles by its employees, when the need 24 for such training and supervision was obvious. Defendants' failure to 25 properly train and supervise its employees resulted in a violation of Plaintiff’s Fourth Amendment rights. 26

27 • Allegation 5: 20. Multiple peaceful protesters were harmed by kinetic 28 impact projectiles and similar “less lethal” weapons fired by SDPD 1 officers, which suggests that this was not merely an accident or a bad act by one officer, but rather a widespread deficiency in the policies, practices, 2 and customs of SDPD. 3 4 Doc. No. 14-1 at 13. Plaintiff does not oppose Defendants’ motion as to Allegations 2 5 and 3 (paragraphs 17 and 18). Doc. No. 17 at 6 fn.1. Accordingly, the Court GRANTS 6 Defendants’ motion to strike Allegations 2 and 3. 7 Defendants argue Allegations 1 and 4 should be stricken because they are 8 “conclusory” and “immaterial.” Doc. No. 14-1 at 13–15. The Court agrees that 9 Allegations 1 and 4 are arguably conclusory; however, this is outweighed by the 10 materiality of the allegations to Plaintiff’s Monell claim. The allegations relate to 11 whether there was “a longstanding practice or custom which constitutes the standard 12 operating procedure of the local government entity[,]” which is one element of a Monell 13 claim. See Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) (citing Ulrich v. City & 14 County of San Francisco, 308 F.3d 968, 984–85 (9th Cir. 2002). Accordingly, the Court 15 finds that Defendants have not met their burden to strike these allegations. The Court 16 therefore DENIES the motion to strike Allegations 1 and 4. 17 Defendants also argue Allegation 5 should be stricken because it is “immaterial 18 and impertinent.” Doc. No. 14-1 at 15. Defendants posit that “multiple injuries 19 involving multiple people during a single incident does not equate to a longstanding 20 policy, custom or practice sufficient to assert a Monell claim.” Id. However, a Rule 12(f) 21 motion arguing the immateriality and impertinence of an allegation is not the appropriate 22 vehicle to attack the overall sufficiency of the pleading. Instead, “‘[i]mmaterial’ matter is 23 that which has no essential or important relationship to the claim for relief or the defenses 24 being pleaded.” Fantasy, 984 F.2d at 1527. “‘Impertinent’ matter consists of statements 25 that do not pertain, and are not necessary, to the issues in question.” Fantasy, Inc., 984 26 F.2d at 1527 (quoting 5 Charles A. Wright & Arthur R. Miller, at 711); see also 27 Whittlestone, Inc., 618 F.3d at 974. Here, Allegation 5 is material to Plaintiff’s Monell 28 claim. Plaintiff cannot plead a “longstanding custom or policy” without reference to 1 other activities attributable to Defendants. Moreover, Defendants fail to explain how the 2 contents of Allegation 5 are impertinent. “It is not enough that the matter offends the 3 sensibilities of the objecting party if the challenged allegations describe acts or events 4 that are relevant to the action.” See 5 Charles A. Wright & Arthur R. Miller, Federal 5 Practice and Procedure § 1382 (3d ed.). Accordingly, the Court finds that Defendants 6 have not met their burden to strike this allegation. The Court therefore DENIES the 7 motion to strike Allegation 5. 8 III. MOTION TO DISMISS 9 A. Legal Standard 10 A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro 11 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and plain 12 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 13 8(a)(2). However, plaintiffs must also plead “enough facts to state a claim to relief that is 14 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also 15 Fed. R. Civ. P. 12(b)(6). The plausibility standard demands more than a “formulaic 16 recitation of the elements of a cause of action,” or “‘naked assertions’ devoid of ‘further 17 factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 18 550 U.S. at 555, 557). Instead, the complaint “must contain sufficient allegations of 19 underlying facts to give fair notice and to enable the opposing party to defend itself 20 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 21 In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth 22 of all factual allegations and must construe them in the light most favorable to the 23 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996) 24 (citing Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 1340 (9th Cir. 1995)). The court need 25 not take legal conclusions as true merely because they are cast in the form of factual 26 allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (quoting W. Min. 27 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Similarly, “conclusory allegations 28 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” 1 Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). In determining the propriety of a 2 Rule 12(b)(6) dismissal, courts generally may not look beyond the complaint for 3 additional facts. See United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003). 4 Where dismissal is appropriate, a court should grant leave to amend unless the 5 plaintiff could not possibly cure the defects in the pleading. Knappenberger v. City of 6 Phoenix, 566 F.3d 936, 942 (9th Cir. 2009) (quoting Lopez v. Smith, 203 F.3d 1122, 1127 7 (9th Cir. 2000)). 8 B. Discussion 9 As an initial matter, the Court notes that Plaintiff will have the opportunity through 10 discovery to identify the Doe Defendants. Crowley v. Bannister, 734 F.3d 967, 978 (9th 11 Cir. 2013) (quoting Gillespie v. Civiletti, 629 E.2d 637, 642 (9th Cir. 1980)). Once the 12 identity of a Doe Defendant is ascertained, Plaintiff must seek leave to amend to name 13 the identified Doe Defendant. However, Plaintiff is advised that if he fails to identify the 14 Doe Defendants during discovery and file an amended complaint, the Doe Defendants 15 will be dismissed from this action. 16 Turning to the present motion to dismiss, Defendants challenge the plausibility of 17 Plaintiff’s fourth, fifth, and sixth causes of action. See Doc. No. 14 at 8–12. The Court 18 assesses each claim in turn. 19 1. Claim 4: Intentional Infliction of Emotional Distress 20 In his fourth cause of action, Plaintiff alleges intentional infliction of emotional 21 distress (“IIED”) against all Defendants. SAC ¶¶ 37–43. Under California law, 22

23 [a] cause of action for intentional infliction of emotional distress exists when there is (1) extreme and outrageous conduct by the defendant with the 24 intention of causing, or reckless disregard of the probability of causing, 25 emotional distress; (2) the plaintiff[s] suffer[ed] severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by 26 the defendant’s outrageous conduct. 27 28 1 Evans v. City of San Diego, 913 F. Supp. 2d 986, 1000 (S.D. Cal. 2012) (quoting Hughes 2 v. Pair, 209 P.3d 963, 976 (Cal. 2009)); see also Christensen v. Superior Court, 820 P.2d 3 181, 202 (Cal. 1991). “A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to 4 exceed all bounds of that usually tolerated in a civilized community.’” Hughes, 209 P.3d 5 at 976 (quoting Potter v. Firestone Tire & Rubber Co., P.2d 795, 819 (Cal. 1993)). 6 “Severe emotional distress means ‘emotional distress of such substantial quality or 7 enduring quality that no reasonable [person] in civilized society should be expected to 8 endure it.’” Id. (quoting Potter, 863 P.2d at 821). 9 Defendants argue that Plaintiff fails to allege causation—the third IIED element. 10 See Doc. No. 14-1 at 9. Plaintiff responds that Rule 12(b)(6) is satisfied by his allegation 11 that “Defendants’ conduct was a substantial factor in causing Plaintiff’s severe emotional 12 distress.” SAC ¶ 41. 13 a. Officer Huff 14 Plaintiff alleges that Officer Huff “jabbed him in the stomach with [a] baton” when 15 Plaintiff “saw an officer try to hit a peacefully protesting woman with [the] baton” and 16 Plaintiff “calmly said, ‘Don’t push her.’” Id. ¶ 4. Further, Plaintiff pleads that he 17 “suffered severe emotional distress, including symptoms of PTSD and anxiety” that led 18 to “the need to take a leave of absence from work . . .” Id. ¶¶ 40, 41. 19 As to the third element, Defendants argue that “there is no description of any 20 highly unpleasant mental reaction after he was allegedly jabbed with the baton but before 21 he ‘later saw DOE officers begin shooting kinetic impact projectiles’ and before he was 22 allegedly shot.” Doc. No. 14-1 at 9 (citing SAC ¶¶ 4–5). However, Defendants do not 23 cite, and the Court is unaware of, any case law that requires a plaintiff—at the motion to 24 dismiss stage—to allege precisely when the purported emotional distress began in order 25 to plausibly state an IIED claim. Instead, the issue of the onset of Plaintiff’s alleged 26 emotional distress, and thus, causation as to Officer Huff, is better suited for summary 27 judgment or trial. Accordingly, the Court is satisfied that Plaintiff sufficiently pleads the 28 1 third element. The Court therefore DENIES Defendants’ motion with respect to 2 Plaintiff’s IIED claim against Defendant Huff. 3 b. The City 4 As an initial matter, the Court addresses whether Plaintiff alleges a basis for 5 holding the City vicariously liable for the actions of Officer Huff or Does. Plaintiff 6 alleges that Defendant City “is liable in respondeat superior for the conduct of individual 7 defendant officers [Huff] and [Does 1–25], inclusive, in the course and scope of their 8 employment[.] SAC ¶ 42. Plaintiff further alleges that Officer Huff was acting “in his 9 capacity as a police officer employed by the San Diego Police Department (“SDPD”)[,]” 10 that SDPD is a department of the City of San Diego, and that Does 1–25 “were officers 11 and/or employees for the San Diego Police Department, acting in their official capacity 12 and under color of law.” Id. ¶¶ 2–5. This is sufficient to plausibly plead respondeat 13 superior liability at the motion to dismiss stage. See Mary M. v. City of Los Angeles, 54 14 Cal. 3d 202, 209 (1991) (“For the doctrine of respondeat superior to apply, the plaintiff 15 must prove that the employee’s tortious conduct was committed within the scope of 16 employment.”) 17 Turning to the IIED claim, Plaintiff pleads that, in addition to the above allegations 18 regarding Officer Huff, the Doe officers “sprayed him with pepper spray”, SAC ¶ 40, and 19 “shot him in the back” when he tried to “flee in order to protect himself[,]” id. ¶ 5. 20 Plaintiff also pleads that he “suffered severe emotional distress, including symptoms of 21 PTSD and anxiety[.]” Id. ¶ 40. 22 The Court concludes that Plaintiff sufficiently pleads the third element by alleging 23 that “Defendants’ conduct was a substantial factor in causing Plaintiff’s severe emotional 24 distress.” Id. ¶ 41. Accordingly, the Court DENIES Defendants’ motion to dismiss 25 Plaintiff’s IIED claim to the extent is brought against the City. 26 2. Claim 5: Violation of the Ralph Act (Cal. Civil Code § 51.7) 27 In his fifth cause of action, Plaintiff alleges violation of the Ralph Act, Cal. Civil 28 Code § 51.7, against all Defendants. Id. ¶¶ 44–50. Section 51.7 of the California Civil 1 Code (“Ralph Act”) provides that “[a]ll persons . . . have the right to be free from any 2 violence, or intimidation by threat of violence committed against their persons or 3 property” on the basis of a variety of protected characteristics, including race, gender, 4 religion, and political affiliation. Cal. Civ. Code §§ 51.7, 51(b). To state a claim under 5 the Ralph Act, a plaintiff must establish the following: 6

7 (1) that the defendant threatened or committed violent acts against the plaintiff or his or her property; (2) that a motivating reason for the defendant’s conduct 8 was his or her perception of [plaintiff’s protected characteristic]; (3) that the 9 plaintiff was harmed; and (4) that the defendant’s conduct was a substantial factor in causing the plaintiff harm. 10 11 12 Rodriguez v. County of Contra Costa, No. C 13-02516 SBA, 2013 U.S. Dist. LEXIS 13 158511, at *16–17 (N.D. Cal. Nov. 1, 2013) (citing Austin B. v. Escondido Union Sch. 14 Dist., 57 Cal. Rptr. 3d 454, 470 (2007)). 15 a. Officer Huff 16 Defendants argue that the “operative complaint is void of any description of how 17 Officer Huff was motivated by his perception of a protected characteristic.” Doc. No. 14- 18 1 at 10. The Court agrees that Plaintiff fails to sufficiently plead the second element. 19 Plaintiff alleges that:

20 A substantial motivating reason for Defendants’ conduct was Plaintiff’s 21 political affiliation and/or Defendant’s perception of Plaintiff’s political affiliation. Specifically, the substantial motivating reason for their conduct 22 was Plaintiff’s affiliation with the Black Lives Matter movement, which 23 constitutes a political affiliation under the Ralph Act. 24 25 SAC ¶ 46. Political affiliation is a protected characteristic under the Ralph Act. Cal. Civ. 26 Code § 51.7 (“All persons within the jurisdiction of this state have the right to be free 27 from . . . threat of violence . . . because of political affiliation . . . .”). However, as his 28 only support for this allegation, Plaintiff alleges that “[t]he SDPD’s hostile attitude 1 toward individuals affiliated with Black Lives Matters was not only demonstrated in their 2 actions towards the protestors that day, but also has been clear in other SDPD officer 3 actions.” SAC ¶ 46. Plaintiff provides two examples of other incidents to “demonstrate 4 that SDPD has had a culture of opposition to the Black Lives Matter movement.” Id. ¶ 5 47. But as both of Plaintiff’s examples appear to follow the incident alleged in this case 6 and are silent as to Officer Huff’s involvement, these allegations alone fail to provide 7 sufficient support for Plaintiff’s claim. See id. Moreover, Plaintiff’s allegation that the 8 SDPD, at large, has a culture of opposition to the Black Lives Matter movement also fails 9 to provide sufficient support for the claim that Officer Huff’s alleged actions were 10 motivated by Plaintiff’s political affiliation. See id. 11 Accordingly, the Court GRANTS Defendants’ motion and DISMISSES Plaintiff’s 12 Ralph Act claim to the extent it is brought against Officer Huff. 13 b. The City 14 Plaintiff does not allege any basis for holding the City either directly or vicariously 15 liable for a Ralph Act violation based upon the actions of Officer Huff or Does. 16 Accordingly, the Court DISMISSES Plaintiff’s Ralph Act claim against the City. See 17 Lopez v. County of Los Angeles, No. CV 15-01745 MMM (MANx), 2015 U.S. Dist. 18 LEXIS 82918, at *7 (C.D. Cal. June 25, 2015) (dismissing a claim against a public entity 19 where plaintiffs failed to allege a basis for direct or vicarious liability in their complaint). 20 3. Claim 6: Violation of the Bane Civil Rights Act (Cal. Civil Code § 52.1) 21 In his sixth cause of action, Plaintiff alleges a violation of the Bane Civil Rights 22 Act, Cal. Civil Code § 52.1 (the “Bane Act”), against all Defendants. SAC ¶¶ 51–61. 23 The Bane Act “prohibits interference or attempted interference with a person’s rights 24 under federal or California law by ‘threats, intimidation, or coercion.’” Wyrzykowski v. 25 County of Marin, No. 3:14-cv-03825-LB, 2015 U.S. Dist. LEXIS 74518, at *11 (N.D. 26 Cal. June 9, 2015) (quoting Cal. Civ. Code § 52.1(a)). 27 28 1 Under Section 52.1, ‘threat’ [ ] involves the intentional exertion of pressure to make another fearful or apprehensive of injury or harm[,] ‘[i]ntimidation’ 2 involves putting in fear for the purpose of compelling or deterring conduct[,] and ‘coercion’ is the application to another of such force, either physical or 3 moral, as to constrain him to do against his will something he would not 4 otherwise have done.

5 6 Bolbol v. Feld Entm’t, Inc., No. C 11-5539 PSG, 2013 U.S. Dist. LEXIS 9800, at *32 7 (N.D. Cal. Jan. 23, 2013) (internal quotation marks and citation omitted). 8 The Ninth Circuit has ruled that “[t]he Bane Act does not require the ‘threat, 9 intimidation or coercion’ element of the claim to be transactionally independent from the 10 constitutional violation alleged.” Id. (quoting Cornell v. City and Cnty. of San Francisco, 11 225 Cal. Rptr. 3d 356, 382–83 (Cal. Ct. App. 2017). Instead, the Bane Act requires a 12 specific intent to violate a plaintiff’s rights. See Reese v. City of Sacramento, 888 F.3d 13 1030, 1043 (9th Cir. 2018) (quoting Cornell, Cal. Rptr. 3d at 384). To demonstrate 14 specific intent, Plaintiff must establish that: (1) “the right at issue [is] clearly delineated 15 and plainly applicable under the circumstances of the case,” and (2) the defendant 16 “commit[ted] the act . . . with the particular purpose of depriving the citizen victim of his 17 enjoyment of the interests protected by that right.” Id. at 803. 18 Here, Plaintiff alleges that:

19 By threats, intimidation, and/or coercion, -- specifically by jabbing him with 20 a baton, shooting him with 12-gauge bean bag rounds, and spraying him with an irritant -- Defendants HUFF, the CITY, and DOES 1-25, inclusive, 21 intentionally interfered with or attempted to interfere with Plaintiff’s First 22 Amendment rights. These actions were taken in order to prevent Plaintiff from continuing to protest, make a videorecording of the protest, and speak out at 23 the protest[]. Thus, Defendant exerted excessive force against Plaintiff not 24 simply to interfere with his right to be free from excessive force, but against his separate, affirmative federal and state constitutional rights of free speech 25 and assembly. 26 27 SAC ¶ 53. Defendants argue that Plaintiff fails to allege any “threats, intimidation or 28 coercion” independent of the underlying constitutional violation. See Doc. No. 14-1 at 1 11. Defendants alternatively argue that Plaintiff fails to allege a specific intent to violate 2 his rights. Doc. No. 18 at 4. 3 a. Officer Huff 4 Plaintiff sufficiently pleads the first element of specific intent by alleging that 5 Defendant Huff “jabbed him in the stomach with [a] baton[,]” SAC ¶ 4, thus interfering 6 with his “rights of free speech and assembly under the U.S. and California 7 constitutions[,]” id. ¶ 52–53; see, e.g., Lucha Unida de Padres y Estudiantes v. Unknown 8 Green, 470 F. Supp. 3d 1021, 1038–39 (D. Ariz. July 1, 2020) (citing N.A.A.C.P. v. City 9 of Richmond, 743 F.2d 1346, 1355 (9th Cir. 1984) (“The First Amendment protects 10 demonstrations and protest marches in public spaces.”). Plaintiff also sufficiently pleads 11 the second element of specific intent by alleging that Defendant Huff’s actions were 12 “taken in order to prevent Plaintiff from continuing to protest” and that he “intentionally 13 interfered with or attempted to interfere with Plaintiff’s First Amendment rights.” SAC ¶ 14 53. Accordingly, the Court DENIES the motion to dismiss Plaintiff’s Bane Act claim 15 against Defendant Huff. 16 b. The City 17 It is unclear from the SAC whether Plaintiff seeks to hold the City directly liable 18 under the Bane Act. As part of his sixth cause of action, Plaintiff alleges that the City 19 “condoned, approved of, directed, and encouraged the use of excessive unlawful force at 20 the May 31, 2020 protest.” Id. ¶ 56. 21 Other district courts have held that a government entity cannot be directly liable 22 under the Bane Act. See Lopez, 2015 WL 3913263, at *9 (holding that public entities 23 cannot be held directly liable under the Bane Act because Cal. Gov’t Code § 815, the 24 Government Claims Act, does not permit a municipal defendant to be sued absent a 25 statute permitting the imposition of direct liability); see also Valdez v. City of San Jose, 26 2013 WL 6108052, at *14 (N.D. Cal. Nov. 18, 2013) (holding the same); Gonzalez v. 27 County of Los Angeles, 2008 WL 2951272, at *3 (C.D. Cal. July 28, 2008) (holding 28 similarly); cf. Reese, 888 F.3d at 1040–41 (“Claims under section 52.1 may be brought 1 against public officials who are alleged to interfere with protected rights . . . .”) (emphasis 2 added) (citing Venegas v. County of Los Angeles, 63 Cal. Rptr. 3d 741, 753 (Cal. Ct. App. 3 2007)). 4 That said, Plaintiff alleges vicarious liability: “Defendant [City] is liable in 5 respondeat superior for the conduct of individual defendant officers [Huff] and [Does 1– 6 25], inclusive, in the course and scope of their employment[.]” SAC ¶ 61. For the same 7 reasons described supra Part III.B.1.b regarding the City’s potential respondeat superior 8 liability with respect to the IIED claim, the Court concludes that Plaintiff plausibly pleads 9 respondeat superior liability at the motion to dismiss stage. 10 Turning to the elements of a Bane Act claim, Plaintiff sufficiently pleads the first 11 element of specific intent against the City. In addition to the above allegations regarding 12 Officer Huff, he alleges that Doe officers “sprayed him with pepper spray”, id. ¶ 40, and 13 “shot him in the back” when he tried to “flee in order to protect himself,” id. ¶ 5, thus 14 interfering with his “rights of free speech and assembly under the U.S. and California 15 constitutions[,]” id. ¶ 52–53. Plaintiff also sufficiently pleads the second element of 16 specific intent by alleging that the actions of Defendant Huff and Does were “taken in 17 order to prevent Plaintiff from continuing to protest” and that Defendants “intentionally 18 interfered with or attempted to interfere with Plaintiff’s First Amendment rights.” Id. ¶ 19 53. 20 Accordingly, the Court DENIES the motion to dismiss to the extent the claim is 21 brought against the City through the imposition of vicarious liability. 22 23 *** 24 25 26 27 28

IV. CONCLUSION

2 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART 3 || Defendants’ motion to dismiss and GRANTS IN PART and DENIES IN PART 4 || Defendants’ motion to strike. The Court STRIKES Allegations 2 and 3. The Court 5 || further DISMISSES Plaintiff's Ralph Act claim with leave to amend. If Plaintiff wishes 6 || to file a third amended complaint curing the deficiencies noted herein, he must do so on 7 || or before January 6, 2022. 8 IT IS SO ORDERED. 9 Dated: December 7, 2021 10 Mitek UU - dill 11 HON. MICHAEL M. ANELLO United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28