1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FELIX GUTIERREZ PEREZ, Case No.: 3:22-cv-0712-BEN-AGS

12 Plaintiff,

ORDER DENYING DEFENDANT

13 v. CITY OF SAN DIEGO’S MOTION

TO DISMISS

14 CITY OF SAN DIEGO, DOES 1-100,

15 Defendants. [ECF No. 8-1] 16 17 I. Introduction 18 Plaintiff Felix Gutierrez Perez (“Plaintiff”) brings his First Amended Complaint 19 (“FAC”) against Defendant City of San Diego (“Defendant”) and Defendants San Diego 20 Police Officers Does 1-100 (“Doe Defendants”). Plaintiff alleges two claims for relief 21 stemming from a law enforcement interaction which resulted in a police dog biting and 22 injuring Plaintiff. The first claim for relief alleges excessive force based on 42 U.S.C. § 23 1983 against Doe Defendants. The second claim for relief alleges negligence under 24 California Government Code § 815.2(a) against all Defendants. Defendant now moves 25 for dismissal of the FAC on various grounds. In the alternative, Defendant moves for a 26 more definite statement under Federal Rule of Civil Procedure 12(e). The Defendant’s 27 motion to dismiss was fully briefed. See ECF Nos. 14, 16. 28 For reasons set forth herein, the motion to dismiss is DENIED. 1 II. Background 2 Factual Allegations1 3 The Plaintiff’s claims arise from an incident which occurred on November 19, 4 2020.2 FAC ¶ 8. At that time, Plaintiff was 63 years old and living in a shed behind a 5 house located at 3046 K Street in San Diego. FAC ¶¶ 9, 19. Plaintiff alleges the shed is 6 a separate residence and has a separate entrance, however the two structures are on the 7 same plot of land. FAC ¶ 10. On the evening of November 19, 2020, Plaintiff was 8 laying on a recliner watching television inside the shed. FAC ¶ 13. At that time, San 9 Diego Police officers were executing a warrant at the house at 3046 K Street, looking for 10 a male resident who lived at that address. FAC ¶ 14. During their search, the officers 11 approached and surrounded the shed. FAC ¶ 16. The officers “discuss[ed] how they 12 would break through the front door.” Id. 13 Plaintiff alleges Defendant Doe Officer # 1 stated, “anyone in the shed, San Diego 14 Police Department.” FAC ¶ 17. This was stated in English at a “normal” volume. Id. 15 Without further warning, Doe Officer # 1 opened the plywood front door of the shed and 16 ordered a K-9 dog, “Atos,” into the shed. FAC ¶ 20. Atos entered the shed and 17 immediately bit Plaintiff on his left forearm. FAC ¶ 21. The bite lasted seventeen (17) to 18 twenty (20) seconds and broke through skin, muscle, soft tissue, and ligaments. FAC ¶ 19 22. At least five other Doe Defendants stood and watched as Atos clenched down on 20 Plaintiff’s forearm. FAC ¶ 23. Plaintiff alleges Doe Officer # 1 never verbally ordered 21 22 23 24 1 For the purposes of Defendant City of San Diego’s Motion to Dismiss, the Court 25 assumes facts pled in the First Amended Complaint are true. Mazarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The Court is not making factual 26 findings. 27 2 In its motion, Defendant notes a date discrepancy in Plaintiff’s FAC. For the purpose of 28 1 Atos to release Plaintiff. FAC ¶ 24. Plaintiff incurred medical expenses and missed 2 work due to his injuries. FAC ¶ 25. 3 Legal Standard 4 Rule 12(b)(6) permits dismissal for “failure to state a claim upon which relief can 5 be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal under Rule 12(b)(6) is warranted where 6 the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable 7 plausible claim. See Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 8 1990). A complaint may survive a motion to dismiss if, taking all well pled factual 9 allegations as true, it contains enough facts to “state a claim to relief that is plausible on 10 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although detailed factual 11 allegations are unnecessary, the complaint must be supported by more than “[t]hreadbare 12 recitals of the elements of a cause of action” or “mere conclusory statements.” Id. For the 13 purposes of a motion to dismiss, the Court assumes the facts pled in the complaint are 14 true, construes the pleading in the light most favorable to the party opposing the motion, 15 and resolves doubts in the pleader’s favor. Lazy Y Ranch LTD. v. Behrens, 546 F.3d 580, 16 588 (9th Cir. 2008). However, the Court need not accept as true allegations that 17 contradict facts that may be judicially noticed. Schwarz v. U.S., 234 F.3d 435 (9th Cir. 18 2000). 19 Additionally, a party may request a more definite statement under Federal Rule 20 Civil Procedure 12(e). A more definite statement may be requested when a complaint “is 21 so vague or ambiguous that the party cannot reasonably prepare a response.” F. R. Civ. 22 P. 12(e). 23 III. Request for Judicial Notice – Body Worn Camera Footage 24 Prior to the instant motion, the Defendant provided Body Worn Camera (“BWC”) 25 footage to aid Plaintiff in drafting the FAC. Id. The Defendant requests the Court take 26 judicial notice of the BWC footage. Id. Judicial notice permits a court to consider an 27 adjudicative fact if it is “not subject to reasonable dispute.” Fed. R. Evid. 201(b). 28 Functioning similar to judicial notice, incorporation-by-reference is a judicially created 1 doctrine that treats certain documents as though they are part of the complaint itself. 2 Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018) (citation 3 omitted). Courts are permitted to consider documents not otherwise attached to the 4 complaint if the authenticity of the document is not contested, and the plaintiff’s 5 complaint necessarily relies on them. Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 6 2013). 7 Here, Plaintiff does not challenge the authenticity of the BWC footage or object to 8 Defendant’s request for judicial notice. ECF No. 14. Plaintiff further does not deny that 9 he used the BWC footage for the purpose of drafting his FAC. Id. Accordingly, the 10 Court GRANTS Defendant’s request for judicial notice of the BWC footage and the 11 transcript thereof. 12 IV. Arguments 13 A. Factual Sufficiency of Plaintiff’s Negligence Claim3 14 To state a claim for negligence, a plaintiff must show that the defendant had a duty 15 to use due care, that defendant breached that duty, and that the breach was the proximate 16 or legal cause of the resulting injury. Hayes v. County of San Diego, 57 Cal.4th 622, 629 17 (2013) (citation omitted). Here, Defendant argues that Plaintiff failed to plead a duty 18 beyond stating a mere conclusory allegation. Plaintiff responds that the pleading notice 19 standard does not require him to “apply facts to law, [or] fully outline in his initial 20 pleadings how Plaintiff intends to argue his case.” 21 The California Supreme Court has long recognized that officers have a duty to act 22 reasonably when using deadly force. Hayes, 57 Cal.4th at 629 (collecting cases). Police 23 officers further have a duty to use reasonable force when effectuating detentions and 24 25 26 3 Defendant’s motion to dismiss addresses the negligence claim against the City of San 27 Diego but makes no challenge to Plaintiff’s first claim based on 42 U.S.C. § 1983. Accordingly, the Plaintiff’s first claim for relief remains undisturbed. 28 1 arrests, i.e.- not excessive force. Cf. Knapps v. City of Oakland, 647 F. Supp. 1129, 1164 2 (2009) (citing Munoz v. City of Union City, 120 Cal.App.4th 1077, 1101 (2004)). 3 California law holds police officers liable to arrestees for using unreasonable force. 4 Scruggs v. Haynes, 252 Cal.App.2d 256 (1967). 5 The facts alleged in Plaintiff’s complaint are sufficient to plead a duty of care 6 exists. Plaintiff has plausibly alleged negligence by alleging Doe Defendants anticipated 7 the possibility of a human being inside the shed and that those officers owed such person 8 a duty of reasonable care when they deployed the police dog. To determine whether an 9 officer breached the duty of care, courts often turn to the reasonableness standard used in 10 analyzing excessive force claims. 11 1. Doe Officer # 1 12 The Court finds Plaintiff has sufficiently pled a negligence claim against Doe 13 Officer # 1. A police officer who fails to act reasonably is in essence to act without due 14 care and vice versa. Cf. McKay v. City of Hayward, 949 F.Supp.2d 971, 987-88 (2013) 15 and Rosenbaum v. City of San Jose, No.20-cv-04777-LHK, 2021 WL 6092205 at *22-24 16 (N.D. Cal. 2021). Moreover, the Ninth Circuit has found that excessive duration of a 17 police dog-bite can support a claim of excessive force. Watkins v. City of Oakland, 145 18 F.3d 1087, 1090 (1998). 19 The Court finds that Plaintiff has stated a plausible breach of duty to use 20 reasonable care against Doe Officer # 1. Plaintiff has alleged that during the seventeen to 21 twenty second bite that Plaintiff endured, Doe Officer # 1 did not command Atos to 22 release the Plaintiff. As a plausible claim against Doe Officer # 1 exists, so does a 23 plausible claim against the Defendant. The issue of immunities is discussed below. 24 2. Doe Officers # 2-100 25 Unlike California code pleading, the Federal Rules of Civil Procedure neither 26 authorize nor prohibit the use of fictitious parties; however, Rule 10 does require a 27 plaintiff to include the names of all parties in his complaint. See Keavney v. City of San 28 Diego, No. 19-cv-01947-AJB-BGS, 2020 WL 4192286 at *4-5 (S.D. Cal. 2020). “A 1 plaintiff may refer to unknown defendants as Defendant John Doe 1, John Doe 2, John 2 Doe 3, and so on, but he must allege specific facts showing how each particular Doe 3 defendant violated his rights.” Keavney, at *4-5 (citation omitted). 4 Essentially, plaintiffs may proceed with fictious defendants in federal court, but 5 this does not lift the burden of pleading sufficient facts to support claims against them. In 6 the FAC, Plaintiff makes specific allegations only as to Doe Defendant # 1 (the officer 7 handling Atos). The only allegation Plaintiff makes as to the other Doe Defendants is “at 8 least five officers stood and watched.” FAC ¶ 23. This is an insufficient factual 9 allegation to plausibly allege a claim for relief against Doe Defendants 2-100. 10 Accordingly, the Court DISMISSES Doe Defendants 2-100 without prejudice. 11 The Plaintiff may seek leave of court to file an amended complaint to identify Doe 12 Defendant # 1 and amend his allegations to reinclude any Doe Defendants dismissed by 13 this order. 14 B. Immunities Defendant argues Doe Defendant #1 is entitled to two kinds of immunity under the 15 California Government Code which also attach to Defendant. See Cal. Gov’t Code § 16 821.6 (“prosecutorial immunity”) and Cal. Gov’t Code § 820.2 (“discretionary 17 immunity”). Plaintiff argues that discovery is required to determine whether either of 18 these immunities apply and argues his case falls into exceptions to these immunities. 19 Defendant is correct that “[u]nder California law, a municipality’s immunity depends on 20 whether the police officers are immune.” Robinson v. Solano County, 278 F.3d 1007, 21 1016 (2002). However, California “denies immunity to police officers who use excessive 22 force in arresting a suspect.” Robinson, at 1016. (collecting cases). 23 1. Prosecutorial Immunity under Cal. Gov’t Code § 821.6 24 Section 821.6 immunizes public employees from injuries caused by “instituting or 25 prosecuting any judicial or administrative proceeding within the scope of his 26 employment, even if he acts maliciously and without probable cause.” Cal. Gov. Code § 27 821.6. The California Supreme Court addressed § 821.6 in Sullivan v. City of Los 28 1 Angeles, where it ruled that prosecutorial immunity should not extend beyond malicious 2 prosecution claims. 12 Cal.3d 710, 721 (1974). However, since Sullivan was decided, 3 the California Courts of Appeals have judicially broadened the scope of this prosecutorial 4 immunity to include actions taken by police officers in the course of investigations. See 5 Gillian v. City of San Marino, 147 Cal.App.4th 1033, 1048 (2007), Jenkins v. County of 6 Orange, 212 Cal.App.3d 278, 282 (1989) and Silva v. Langford, 79 Cal.App.5th 710, 7 717-720 (2022) (collecting cases). 8 When interpreting state law, federal courts must apply the reasoning of the state’s 9 highest court. Hewitt v. Joyner, 940 F.2d 1565 (9th Cir. 1995). The Ninth Circuit 10 addressed the tension between the Sullivan decision and subsequent expansion by the 11 California courts of appeals in Sharp v. County of Orange. 871 F.3d 901, 920-21 (2017). 12 In Sharp, the Ninth Circuit reasoned that because Sullivan was a decision by the highest 13 state court, it was bound by Sullivan’s interpretation of prosecutorial immunity statute 14 and not the subsequent expansion by California state appellate courts. Id. Since Sharp 15 was decided, the precise question of whether prosecutorial immunity is limited only to 16 malicious prosecution claims has been submitted to the California Supreme Court and is 17 currently under review as of the date of this Order. See Leon v. County of Riverside, 493 18 P.3d 789 (Aug. 18, 2021). 19 Given the ruling in Sullivan and the Ninth Circuit’s interpretation thereof in Sharp, 20 this Court does not extend prosecutorial immunity under California Government Code § 21 821.6 to the officer’s actions in the instant case. 22 2. Discretionary Immunity under Cal. Gov’t Code 820.2 Next, Defendant argues Doe Defendant #1 is entitled to discretionary immunity. 23 Plaintiff argues that this immunity cannot be determined without discovery, and further 24 the instant case falls into an exception to this kind of immunity. 25 “As our Supreme Court explained…the court established a workable definition of 26 immune discretionary acts, which draws the line between planning and operational 27 functions of government. Immunity is reserved for those basic policy decisions [which have]…been [expressly] committed to coordinate branches of government, 28 1 and as to which judicial interference would thus be unseemly.”

2 Conway v. County of Tuolumne, 231 Cal.App.4th 1005, 1014-15 (2014) (citations 3 removed, cleaned up). The Conway court reasoned that discretionary immunity has 4 “been found to apply to many areas of police work.” The court found police officers 5 were not immune “when their acts are ministerial or public policy dictates against 6 immunity.” Id. The distinction is important. “There is no immunity if the 7 injury…results, not from the employee’s exercise of discretion…to undertake the act, but 8 from his negligence in performing it after having made the discretionary decision to do 9 so…” Martinez v. City of Los Angeles, 141 F.3d 1373, 1379 (9th Cir. 1998) citing 10 McCorkle v. City of Los Angeles, 70 Cal.2d 252, 261 (1969). 11 Although the issue of immunity can be decided on a motion to dismiss, see Steinle 12 v. City & Cnty. Of San Francisco, 919 F.3d 1154, 1162 (9th Cir. 2019), the Court does 13 not find that Doe Defendant #1 is entitled to enjoy immunity at this stage. As noted 14 above, Section “820.2 does not shield liability from government employees who use 15 excessive force in carrying out their duties.” Rodriguez v. Cnty. of Los Angeles, 891 F.3d 16 776, 799 (9th Cir. 2018) (citation omitted). Discovery is required to analyze the 17 circumstances under which the officer made his decisions, and whether such decisions 18 should enjoy discretionary immunity. 19 Given the above, the Court DENIES City Defendant’s Motion to Dismiss the 20 negligence claim. 21 C. Motion for More Definite Statement Under F.R.C.P. 12(e) 22 Defendant requests a more definite statement under Federal Rule of Civil Procedure 23 12(e). Under Rule 12(e), a party may move for a more definite statement with respect to 24 a complaint that is “so vague or ambiguous that the party cannot reasonably prepare a 25 response.” F. R. C. P. 12(e). The Defendant cites McHenry v. Renee in support of its 26 request. 84 F.3d 1172 (1996). In McHenry, plaintiffs brought suit against multiple 27 defendants stemming from arrests and injunctions relating to plaintiff’s distribution of 28 | || free food in the city. McHenry, 84 F.3d at 1174. The district court in McHenry gave the 2 || plaintiffs two chances to amend their fifty-six-page complaint before ultimately 3 || dismissing the complaint. /d. at 1175. When plaintiffs appealed, the Ninth Circuit noted 4 || “Despite all the pages...one cannot determine from the complaint who is being sued, for 5 || what relief, and on what theory...” /d. at 1178. 6 That is not the case here. The Plaintiff has pled sufficient facts for Defendant to 7 || understand and prepare a response. Defendant’s own arguments distinguishing cases 8 ||regarding police officer immunity suggests it has sufficient understanding of the facts, 9 how the facts apply to Plaintiffs claims. Therefore, Defendant’s Request for More 10 || Definite Statement is DENIED. 11 Vv. Conclusion 12 For the foregoing reasons, the Court ORDERS as follows: 13 1. Defendant City of San Diego’s Request for Judicial Notice is GRANTED. 14 2. Defendants Does 2-100 are hereby DISMISSED. 15 3. Defendant City of San Diego’s Motion to Dismiss Plaintiff's Second Claim for 16 Relief for Negligence is DENIED. 17 4. Defendant City of San Diego’s Motion for More Definite Statement is 18 DENIED. 19 20 IT IS SO ORDERED. ° 21 Dated: December 8, 2022 0 N. ROGER T. BENIFEZ United States District Judge 23 24 25 26 27 28