Opinion
2:21-cv-02182-JAM-JDP
06-21-2022
DALTON EDWARD DYER, Plaintiff, v. CITY OF AUBURN, et. al, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND DENYING DEFENDANTS' MOTION TO STRIKE
JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE.
This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for May 3, 2022.
This action arises from an October 12, 2018, incident in which Dalton Edward Dyer (“Plaintiff”) alleges City of Auburn Police Officers Joshua Eagan (“Eagan”) and Matthew Nichols (“Nichols”) wrongfully detained, searched, beat, tased, and arrested him. See First Am. Compl. (“FAC”), ECF No. 9. That day, Plaintiff was riding in the passenger seat of a friend's vehicle when Officer Eagan arrested the friend on a suspected DUI. Id. ¶ 13. After Eagan placed the friend in his patrol vehicle, Plaintiff asked for permission to speak to his friend, which Eagan granted. Id. ¶¶ 14-15. Plaintiff approached the back of the vehicle and began talking to his friend. Id. ¶ 15. At that point, Officer Nichols arrived on the scene. Id. ¶ 16. Nichols approached Plaintiff from behind, pushed him up against the patrol car, and starting rifling through his pockets. Id. Nichols then pinned Plaintiff's hands behind his back as Eagan repeatedly punched him in the face. Id. ¶ 17. Plaintiff cried out various times: “I'm not doing nothing!” Id. ¶¶ 18-19. The two officers then grabbed him by his arms and swung him around. Id. ¶ 19. Eagan deployed his taser twice, hitting both Plaintiff and Nichols and causing both to collapse to the ground. Id. ¶ 20. Thereafter Plaintiff was arrested. Id. ¶ 21.
In the months following his arrest, Plaintiff alleges unidentified officers followed him, stationed cars outside of his home, and threatened him on the internet. Id. ¶ 28. Plaintiff was charged with a misdemeanor count for willful resistance, delay, and obstruction of Officers Nichols and Eagan. Id. ¶ 24. That misdemeanor will be dismissed contingent upon Plaintiff obeying all laws through February 10, 2022. Id. ¶ 25.
Plaintiff notes in opposition that the charges were in fact dismissed. Opp'n at 4.
This lawsuit followed. See Compl., ECF No. 1. In the operative complaint, Plaintiff asserts seventeen federal and state law claims against the City of Auburn, John Ruffcorn, Joshua Eagan, and Matthew Nichols (“Defendants”). See generally FAC. Before the Court is Defendants' motion to dismiss and to strike. See Mot., ECF No. 11-1. Plaintiff filed an opposition. See Opp'n, ECF No. 16. Defendants replied. See Reply, ECF No. 17. For the reasons set forth below, the Court grants in part and denies in part Defendants' motion to dismiss and denies Defendants' motion to strike.
II. OPINION
A. Motion to Strike
A Rule 12(f) motion asks the Court to strike portions of a complaint that are “redundant, immaterial, impertinent or scandalous.” Fed.R.Civ.P. 12(f). However, “[m]otions to strike are disfavored and infrequently granted.” Neveu v. City of Fresno, 392 F.Supp.2d 1159, 1170 (E.D. Cal. 2005). It must be “clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.” Id. Moreover, “courts often require a showing of prejudice by the moving party.” Wynes v. Kaiser Permanente Hosp., No. 2:10-cv-00702-MCE-GGH, 2011 WL 1302916, at *12 (E.D. Cal. Mar. 31, 2011).
Here, Defendants move to strike paragraphs 8, 9, and 28 of the operative complaint. Mot. at 14-15. According to Defendants, paragraph 8 concerns “an unrelated lawsuit”; paragraph 9 concerns “an unrelated alleged 2017 incident involving Defendant Nichols while employed with a different agency”; and paragraph 28 alleges “in the months that followed [Plaintiff's arrest]” he was “harassed by the police.” Id. at 14. Defendants contend these paragraphs should be stricken as impertinent because they do not bear sufficient connection to the events here. Id. at 15.
Plaintiff counters that all the information in these paragraphs is relevant. Opp'n at 13-15. Specifically, as to paragraph 9, the allegations that Officer Nichols previously shot multiple suspects, shot a police dog, and then tried to cover up this misconduct are relevant to the negligent hiring claim. Id. at 13-14. Additionally, Plaintiff argues these same facts are relevant to “his inclination to use excessive force and to lie, making paragraph 9 relevant to: Counts I, IV, V, VI, VII, VIII, IX, XI XII, and XIV.” Id. at 14.
As to paragraphs 8 and 28, Plaintiff contends these are relevant to his intentional infliction of emotional distress (“IIED”) claim. Id. Paragraph 8 references a news article entitled Auburn Police Officer Allegedly Threatens Advocate of Dalton Dyer, Jr. on Administrative Leave, which describes how Eagan followed a supporter of Plaintiff home and displayed a “white power hand signal.” FAC ¶ 8. Paragraph 28 provides: “In the months that followed [Dyer's] arrest, he was harassed by the police. They would station police cars outside of his home and would tail him when he would drive. An unknown officer even tagged him in a Facebook post on the Placer County Sheriffs Association page in a thinly veiled threat.” Id. ¶ 28.
Plaintiff contends these paragraphs provide evidence of Defendants' extreme and outrageous behavior, an element of an IIED claim. Opp'n at 14. Further, Plaintiff argues the “white power hand signal” allegation is relevant to Eagan's “motive to not intervene to stop Nichols' unlawful detention and search, but instead to join in by escalating to violence (Counts I, II, VI, VII, XIII).” Id. at 15.
Defendants' response to these arguments was in the portion of their reply brief that went over the Court's page limit for reply memoranda. See Order re Filing Requirements at 1, ECF No. 3-2; see also Reply at 9-10. Thus, the Court did not consider Defendants' response. Id. Accordingly, Defendants fail to show that paragraphs 8, 9, and 28 “could have no possible bearing” on the case. See Neveu, 392 F.Supp.2d at 1170. Nor have they shown prejudice resulting from inclusion of these paragraphs. See Wynes, 2011 WL 1302916, at *12.
Defendants' motion to strike is denied.
B. Motion to Dismiss
1. Legal Standard
“To survive a motion to dismiss [under 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). While “detailed factual allegations” are unnecessary, the complaint must allege more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. In considering a motion to dismiss, the court generally accepts as true the allegations in the complaint and construes the pleading in the light most favorable to the plaintiff. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
2. Analysis: Federal Claims
a. First Claim
Defendants argue the first Section 1983 claim for unreasonable detention, search, and arrest should be dismissed as against Eagan for insufficient facts. Mot. at 3.
“A person ‘subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (emphasis added). The plaintiff must set forth specific facts as to each individual defendant's causal role in the constitutional deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (“Sweeping conclusory allegations will not suffice.”).
Plaintiff insists the following allegations are sufficient to show Eagan participated in Nichol's unlawful detention, search, and arrest of Plaintiff: while Nichols forcibly pinned Plaintiff's hands behind his back, Eagan punched Plaintiff in the face. Opp'n at 2 (citing to FAC ¶ 17). Eagan “kept swinging,” and both officers tried to slam Plaintiff down, after which Eagan tased Plaintiff. FAC ¶¶ 18-21. Contrary to Defendants' insistence otherwise, see Reply at 1-2, these allegations, which the Court must take as true, are sufficient to allege Eagan's participation in Nichols' “affirmative acts.” Johnson, 588 F.2d at 743. Thus, Defendants' argument for dismissal of the first claim as to Eagan fails.
Defendants add that any portion of the first claim for which Plaintiff attempts to proceed on a malicious prosecution theory should be dismissed as redundant to the ninth claim for malicious prosecution. Mot. at 4. However, Plaintiff clarifies in opposition that he is not proceeding on a malicious prosecution theory for this claim. Opp'n at 2. Accordingly, the Court grants Defendants' request to dismiss with prejudice any portion of the first claim grounded in a malicious prosecution theory. Reply at 2.
b. Third Claim
Defendants seek dismissal of the third Section 1983 claim for a substantive due process violation. Mot. at 4. They argue the officers' actions here fall squarely within the Fourth Amendment, rendering the Fourteenth Amendment substantive due process claim redundant. Id. (citing to Graham v. Connor, 490 U.S. 386, 395 (1989) and Albright v. Oliver, 510 U.S. 266, 273 (1994)).
Plaintiff does not respond to Defendants' legal argument that the Fourth Amendment controls here. See Opp'n at 2-3. Instead, he stands on his Fourteenth Amendment claim, insisting his allegations state a substantive due process claim. Id. But that misses the point. Defendants assert that Plaintiff may not bring such a claim in the first instance because the Fourth Amendment governs. Because Plaintiff did not address this legal argument, the third claim is dismissed. See Resnick v. Hyundai Motor America, Inc., Case No. CV 16-00593-BRO (PJWx), 2017 WL 1531192, at *22, (C.D. Cal. Apr. 13, 2017) (“Failure to oppose an argument raised in a motion to dismiss constitutes waiver of that argument.”). The Court further finds amendment would be futile and dismissal with prejudice is appropriate. See Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (“Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment.”).
c. Fourth Claim
Defendants contend the fourth Section 1983 claim for fabrication of evidence should be dismissed for lack of factual support. Mot. at 4-5. To state a fabrication of evidence claim, the plaintiff must plausibly allege that: “(1) the defendant official deliberately fabricated evidence, and (2) the deliberate fabrication caused the plaintiff's deprivation of liberty.” Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017). Here, Plaintiff asserts Officers Eagan and Nichols falsely claimed that Plaintiff punched Nichols in order to fabricate probable cause to search, detain, and arrest him. Opp'n at 3 (citing to FAC ¶¶ 47 50). That fabrication, Plaintiff insists, caused his deprivation of liberty. Id. However, the Court agrees with Defendants that these conclusory allegations do not plausibly state a fabrication of evidence claim. Reply at 3. In particular, Plaintiff has not clearly set forth facts supporting a causal connection between the fabricated evidence and the deprivation of liberty. See generally FAC. The fourth claim is therefore dismissed without prejudice. See Eminence Cap., LLC, 316 F.3d at 1052.
d. Ninth Claim
Defendants argue the ninth Section 1983 claim for malicious prosecution should be dismissed for failure to allege favorable termination of the misdemeanor charge. Mot. at 5-6. An element of a malicious prosecution claim is “the prior proceeding . . . was pursued to legal termination favorable to the plaintiff.” McCubbrey v. Veninga, 39 F.3d 1054, 1055 (9th Cir. 1994) (internal citations omitted). Here, Plaintiff has not alleged favorable termination, as the operative complaint states the misdemeanor against him is still ongoing. FAC ¶ 25. Plaintiff concedes as much in opposition and requests leave to amend “to clarify the dismissal has now occurred.” Opp'n at 4. Plaintiff's ninth claim is therefore dismissed without prejudice. See Eminence Cap., LLC, 316 F.3d at 1052.
The Court briefly acknowledges the parties' dispute about whether the Supreme Court's recent decision in Thompson v. Clark, 142 S.Ct. 1332 (2022) renders amendment of this claim futile. Opp'n at 4; Reply at 4. But because the parties “have not done this issue justice by making what is effectively a passing reference to it in their briefs . . . the Court declines to take it up in that underdeveloped form.” Shen v. Albany Unified Sch. Dist., 3:17-cv-02478-JD, 2018 WL 4053482, at *4 (N.D. Cal. Aug. 24, 2018).
e. Eleventh Claim
Defendants contend the eleventh claim for conspiracy pursuant to Sections 1983 and Section 1985 should be dismissed. Mot. at 6-7. As an initial matter, Plaintiff notes he is withdrawing the Section 1985 portion of this claim. Opp'n at 5. The Section 1985 claim is therefore dismissed with prejudice.
Turning to the Section 1983 claim, “the plaintiff must state specific facts to support the existence of the claimed conspiracy.” Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1991) (emphasis added). The parties dispute whether Plaintiff did so here. Mot. at 6; Opp'n at 5. After careful review of the operative complaint, the Court agrees with Defendants that “Plaintiff essentially labeled everything that occurred to him as a conspiracy,” and in doing so, does not clearly set forth specific facts to support the existence of a conspiracy. Reply at 5. Accordingly, the Section 1983 portion of the eleventh claim is dismissed without prejudice. See Eminence Cap., LLC, 316 F.3d at 1052.
f. Thirteenth Claim
Defendants seek dismissal of the thirteenth claim for failure to intervene pursuant to Sections 1983 and 1986. Mot. at 7-8. As an initial matter, Plaintiff notes he is withdrawing the Section 1986 portion of this claim. Opp'n at 7. The Section 1986 claim is therefore dismissed with prejudice.
“Officers can be held liable for failing to intercede in situations where excessive force is claimed to be employed by other officers only if ‘they had an opportunity to intercede.'” Hughes v. Rodriguez, 31 F.4th 1211, 1223 (9th Cir. 2022). The Ninth Circuit has instructed the officer must have had a “realistic opportunity” to intercede. Cunningham v. Gates, 229 F.3d 1271, 1290 (9th Cir. 2000).
Here, Defendants contend Plaintiff did not allege sufficient facts to state a failure to intervene claim against either Eagan or Nichols. Mot. at 7. Plaintiff, however, points to the following allegations: he had been “respectful and cooperative,” he “had not broken any laws,” and Eagan had intended to allow Dyer to walk home before Nichols arrived. Opp'n at 7 (citing to FAC ¶¶ 15-17, 104). Instead, Eagan joined in Nichol's search and detention by punching Dyer in the face and continuously throwing punches. Id. (citing to FAC ¶¶ 17, 104, 107). He also deployed his taser. Id. (citing to FAC ¶¶ 18-20, 104-105). For his part, Nichols could have stopped Eagan from continuing to throw punches but did not. Id. (citing to FAC ¶¶ 18-19, 104-105, 107). These allegations are sufficient to show each of the officers had a realistic opportunity to intervene. Cunningham, 229 F.3d at 1290.
The Court did not consider Defendants' response, which was in the portion of their reply brief that went over the Court's page limit for reply memoranda. Order re Filing Requirements at 1; see also Reply at 6. Thus, their motion is denied as to the Section 1983 portion of the thirteenth claim.
g. Sixteenth Claim
Defendants move to dismiss Plaintiff's sixteenth Monell cause of action for lack of factual support. Mot. at 8-9.
Municipalities may be held liable under Section 1983 for constitutional injuries inflicted through a municipal policy or custom. Monell v. Dep't of Social Servs., 436 U.S. 658, 694 (1978). To properly state a Monell claim, allegations in a complaint “may not simply recite the elements . . . but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) .
The parties vigorously dispute whether Plaintiff's Monell custom and practice and his failure to train and supervise claims are factually supported. Mot. at 8; Opp'n at 7-8. The Court agrees with Defendants that Plaintiff's allegations are entirely conclusory and therefore insufficient. See FAC ¶¶ 132-134. Plaintiff asks the Court to infer from his experience alone the existence of a policy or custom. But that is insufficient to state a Monell claim. See e.g., Cain v. City of Sacramento, No. 2:17-cv-00848-JAM-DB, 2017 WL 4410116, at *3 (E.D. Cal. Oct. 3, 2017) (noting “[d]istrict courts have dismissed complaints where a plaintiff alleged a single incident of unconstitutional conduct as the basis for their Monell claim”).
So too with Plaintiff's failure to train, supervise, and discipline claims: the allegations are conclusory and thereby insufficient. See FAC ¶¶ 135-136. The sixteenth claim is thus dismissed without prejudice. See Eminence Cap., LLC, 316 F.3d at 1052.
3. Analysis: State Law Claims
a. Tenth Claim
Plaintiff states in his opposition brief that the tenth claim is withdrawn. Opp'n at 5. This claim is dismissed with prejudice.
b. Fifth, Sixth, Seventh, Twelfth, Fourteenth, and Fifteenth Claims Against the City
As to the City of Auburn, Defendants argue the fifth claim for false arrest, sixth claim for battery, seventh claim for excessive force, twelfth claim for conspiracy, fourteenth claim for IIED, and fifteenth claim for negligent hiring and supervision are barred by California Government Code Section 815. Mot. at 9.
That Section provides: “[e]xcept as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” Cal. Gov. Code § 815, subd. (a). This Section “abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution . . . [t]hus in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable.” Cochran v. Herzog Engraving Co., 155 Cal.App.3d 405, 409 (1984).
Section 815 bars the fifth, sixth, seventh, twelfth, fourteenth, and fifteenth claims directly against the City. Mot. at 9. However, Plaintiff clarifies he is bringing vicarious liability not direct liability claims against the City and that he is doing so pursuant to Section 815.2 not Section 815. Opp'n at 8-9. Further, Plaintiff brings forward ample authority supporting his position that a municipality can be held vicariously liable. Id. at 9. The Court did not consider Defendants' response, which was in the portion of their reply brief that went over the Court's page limit. Order re Filing Requirements at 1; see also Reply at 7.
Accordingly, the fifth, sixth, seventh, twelfth, fourteenth, and fifteenth claims for direct liability against the City are dismissed with prejudice. However, Defendants' motion is denied as to those same claims against the City for vicarious liability.
c. Sixth and Seventh Claims
Defendants additionally argue the seventh claim for unreasonable force is redundant to the sixth claim for battery. Mot. at 9-10 (citing to Brown v. Ransweiler, 171 Cal.App.4th 516 (2009) and Munoz v. City of Union City, 120 Cal.App.4th 1077 (2004)). In opposition, Plaintiff did not address this argument. See Opp'n. Indeed, Plaintiff did not discuss Brown or Munoz whatsoever. Id. Plaintiff's seventh claim is thus dismissed with prejudice. See Resnick, 2017 WL 1531192, at *22; see also Eminence Cap., LLC, 316 F.3d at 1052.
Plaintiff requests leave to amend his sixth claim for battery to allege excessive force under the Fourth Amendment. Opp'n at 3. Because Defendants' response was in the portion of their reply brief that violated the Court's page limit, it was not considered. Order re Filing Requirements at 1; see also Reply at 7. Accordingly, Plaintiff's request is granted.
d. Eighth Claim
Defendants contend the eighth claim under the Bane Act is factually unsupported. Mot. at 10.
To state a Bane Act claim, plaintiffs must allege defendant had a specific intent to violate their rights. Reese v. Cty. of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018). Defendants emphasize Plaintiff does not allege facts indicating any specific intent to violate his rights; instead “he merely concludes that any detention, search or force used was done with ‘reckless disregard' for his rights.” Mot. at 10. In response, Plaintiff directs the Court to his allegation that Eagan and Nichols acted with a “reckless disregard” for his rights. Opp'n at 3-4. But Plaintiff fails to identify any facts supporting that conclusory allegation. Id. What Plaintiff directs the Court to -paragraphs 29, 70, and 74 - do not contain facts but rather legal conclusions. See FAC ¶¶ 29, 70, 74. For instance, Paragraph 29 states: “The conduct of Defendants OFC. EAGAN and OFC. NICHOLS was willful, wanton, malicious, and done with reckless disregard for the rights and safety of MR. DYER and caused MR. DYER to suffer physical and emotional injuries.” The Court need not “accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678. As such, the eighth claim is dismissed without prejudice. See Eminence Cap., LLC, 316 F.3d at 1052.
e. Twelfth Claim
Defendants likewise argue the twelfth claim for common law conspiracy is factually unsupported. Mot. at 10.
“The elements of an action for civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of the common design.” Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal.4th 503, 511 (1994). Here, the Court agrees with Defendants that no facts support the formation of an agreement to violate Plaintiff's rights. Mot. at 10. In opposition, Plaintiff cites to Baker v. State of California, No. CIV-S-05-0589GEBKJM, 2005 WL 1683671 (E.D. Cal. July 11, 2005). Opp'n at 5-6. But Baker does not save this claim because the issue here is lack of factual support. Id. Indeed, the very paragraphs Plaintiff quotes from and directs the Court to are conclusory and devoid of facts. See Opp'n at 6 (citing to FAC ¶¶ 100-102). In particular, there are no facts from which this Court can infer Eagan and Nichols formed an agreement. The twelfth claim is therefore dismissed without prejudice. See Eminence Cap., LLC, 316 F.3d at 1052.
f. Fourteenth and Fifteenth Claims
Defendants raise various arguments as to why the fourteenth claim for IIED and the fifteenth claim for negligent hiring and supervision should be dismissed. Mot. at 11-13. First, as to Police Chief Ruffcorn, Defendants contend these claims are barred by the two-year statute of limitations. Id. at 11-12 (citing to Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 806 (2005)).
Here, the alleged injury occurred on October 12, 2018. FAC ¶ 13.
But Plaintiff first asserted claims against Defendant Ruffcorn in the amended complaint filed on January 31, 2022, more than three years later. See FAC. Plaintiff does not dispute this in opposition. See Opp'n at 9-10. Rather, Plaintiff contends the statute of limitations tolled under California Government Code Section 945.3. Id.
That Section provides: “No person charged by indictment, information, complaint, or other accusatory pleading charging a criminal offense may bring a civil action for money or damages against a peace officer or the public entity employing a peace officer based upon conduct of the peace officer relating to the offense for which the accused is charged, including an act or omission in investigating or reporting the offense or arresting or detaining the accused, while the charges against the accused are pending before a superior court. Any applicable statute of limitations for filing and prosecuting these actions shall be tolled during the period that the charges are pending before a superior court.” Cal. Gov. Code § 945.3. Defendants argue tolling under this Section does not apply because Ruffcorn is not the peace officer alleged to have arrested Plaintiff, nor is his allegedly wrongful conduct - namely his hiring and supervision of Nichols - related to the criminal charges. Mot. at 12.
Plaintiff insists the opposite. Opp'n at 9-10 (citing to Guy v. Lorenzen, 547 F.Supp.3d 927, 950 (S.D. Cal. 2021)).
Defendants' response was in the portion of their reply brief that violated the Court's page limit and thus was not considered. Order re Filing Requirements at 1; see also Reply at 8-9. Plaintiff's legal arguments therefore went unaddressed, and Defendants do not show dismissal is warranted on these grounds.
Defendants next argue the fourteenth claim against Ruffcorn fails because Plaintiff cannot base an IIED claim on negligent hiring. Mot. at 12-13. “A cause of action for intentional infliction of emotional distress exists when there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” Hughes v. Pair, 46 Cal.4th 1035, 1050 (2009). Here, Defendants argue Ruffcorn's negligent hiring of Nichols is not intentional conduct, and therefore cannot form the basis of an IIED claim. Mot. at 13. Further, Defendants claim this is redundant to the fifteenth claim for negligent hiring. Id.
Plaintiff responds that his allegations show Ruffcorn acted with more than mere negligence but rather “reckless disregard” when he hired Nichols. Opp'n at 10-11. Specifically, Plaintiff insists “the FAC sufficiently alleges that Ruffcorn hired Nichols having reason to know facts that would have led a reasonable man to realize that the hire created an unreasonable risk of harm to others substantially greater than ordinary negligence.” Id. at 11. As such, his claim may proceed on this “reckless disregard” theory. Id. Lastly, as to Defendants' challenge that this claim is redundant, Plaintiff points out the elements of each claim are distinct and therefore this claim is not redundant. Id. Once again, Defendants' response to Plaintiff's arguments was in the portion of their reply brief which was not considered because it violated the Court's page limit. Order re Filing Requirements at 1; see also Reply at 9. In failing to address Plaintiff's arguments, Defendants do not establish dismissal of the fourteenth claim against Ruffcorn is warranted on these alternate grounds.
Turning to fifteenth claim for negligent hiring and supervision, Defendants again argues this claim fails as against the City because it is barred by California Government Code Section 815. Mot. at 13. However, as discussed above, Plaintiff is not proceeding under Section 815; that is, Plaintiff is not trying to hold the City directly liable. Opp'n at 11. Instead, he is proceeding on a vicarious liability theory. Id. As the Court concluded above: the fifteenth claim is dismissed as to any claim of direct liability against the City, but Defendants' motion is denied as to the vicarious liability portion of the fifteenth claim against the City.
Finally, as to the fifteenth claim against Ruffcorn, Defendants contend Plaintiff did not allege sufficient facts of a special relationship between Plaintiff and Ruffcorn. Mot. at 13 (citing to C.A. v. William S. Hart Union High School Dist., 53 Cal.4th 861 (2012)) . “Absent such a special relationship, there can be no individual liability to third parties for negligent hiring, retention or supervision of a fellow employee, and hence no vicarious liability under section 815.2.” William S. Hart, 53 Cal.4th at 877. Here, Defendants argue there are no facts supporting the existence of a special relationship between Plaintiff and Ruffcorn. Mot. at 13. The Court agrees. Accord Fuentes v. City of San Diego, No. 3:16-cv-02871-BEN-JMA, 2017 WL 2670976, at *3 (S.D. Cal. June 20, 2017) (“Plaintiffs generally allege that the City and/or SDPD have a duty to protect people from harm and exercise care in selection, retention, training, and supervision of their employees. However, these alleged duties do not resemble the enhanced duties imposed on school personnel that formed the basis for their special relationship with the minor plaintiff in William S. Hart.”).
Plaintiff's citations to cases involving the readily distinguishable contexts of school and jail do not save his claim from dismissal. Opp'n at 11-12 (citing to William S. Hart, 53 Cal.4th at 869 (school) and Giraldo v. Cal. Dep't of Corr., 168 Cal.App.4th 231, 250-51 (2008) (jail)) . At most, those cases support Plaintiff's contention that this claim does not fail as a matter of law. But they do not change the factual deficiencies. The fifteenth claim against Ruffcorn is thus dismissed without prejudice. See Eminence Cap., LLC, 316 F.3d at 1052. g. Seventeenth Claim Defendants argue the seventeenth claim for vicarious liability should be dismissed because it is a theory of liability, not an independent cause of action. Mot. at 14 (citing to Gottschalk v. City & Cty. of San Francisco, No. C-12-4531 EMC, 2013 WL 557010, at *8 (N.D. Cal. Feb. 12, 2013)).
Defendants' response was again in a part of their reply brief that violated the Court's page limit. Order re Filing Requirements at 1; see also Reply at 9. The Court did not consider it.
Plaintiff responds that vicarious liability, while a theory of liability, can also be pled as a separate count. Opp'n at 13 (citing to Goldsmith v. CVS Pharmacy, Inc., No. CV 20-00750-AB (JCx), 2020 WL 3966004, at *10 (C.D. Cal. May 5, 2020)).
However, Plaintiff does not explain how this is not redundant to the fifth, sixth, seventh, twelfth, fourteenth, and fifteenth claims, for which he expressly states he is seeking to hold the City liable under a vicarious liability theory. See Opp'n at 89, 11. Nor does he account for the statement in his own cited authority that: “vicarious liability is a theory of liability that must attach to an underlying claim.” Goldsmith, 2020 WL 3966004, at *9. The seventeenth claim is therefore dismissed with prejudice.
C. Sanctions
A violation of the Court's standing order requires the offending counsel, not the client, to pay $50.00 per page over the page limit to the Clerk of Court. Order re Filing Requirements at 1. Moreover, the Court did not consider arguments made past the page limit. Id. Here, Defendants' reply brief exceeded the Court's page limit by 5 pages. See Reply. Defendants' counsel must therefore send a check payable to the Clerk for the Eastern District of California for $250.00 no later than seven days from the date of this Order.
III. ORDER
For the reasons set forth above, the Court DENIES Defendants' motion to strike. Defendants' motion to dismiss is denied in part and granted in part as follows:
1. DENIED as to the first claim against Eagan;
2. GRANTED WITH PREJUDICE as to any portion of the first claim which proceeds on a malicious prosecution theory;
3. GRANTED WITH PREJUDICE as to the third claim;
4. GRANTED WITHOUT PREJUDICE as to the fourth claim;
5. GRANTED WITHOUT PREJUDICE as to the ninth claim;
6. GRANTED WITH PREJUDICE as to the Section 1985 portion of the eleventh claim;
7. GRANTED WITHOUT PREJUDICE as to the Section 1983 portion of the eleventh claim;
8. GRANTED WITH PREJUDICE as to the Section 1986 portion of the thirteenth claim;
9. DENIED as to the Section 1983 portion of the thirteenth claim;
10. GRANTED WITHOUT PREJUDICE as to the sixteenth claim;
11. GRANTED WITH PREJUDICE as to the tenth claim;
12. GRANTED WITH PREJUDICE as to the direct liability portions of the fifth, sixth, seventh, twelfth, fourteenth, and fifteenth claims against the City;
13. DENIED as to the vicarious liability portions of the fifth, sixth, twelfth, fourteenth, and fifteenth claims against the City;
14. GRANTED WITH PREJUDICE as to the seventh claim but Plaintiff is GRANTED leave to amend his sixth claim to allege excessive force under the Fourth Amendment;
15. GRANTED WITHOUT PREJUDICE as to the eighth claim;
16. GRANTED WITHOUT PREJUDICE as to the twelfth claim;
17. DENIED as to the fourteenth claim against Ruffcorn;
18. GRANTED WITHOUT PREJUDICE as to the fifteenth claim against Ruffcorn; and
19. GRANTED WITH PREUDICE as to the seventeenth claim.
If Plaintiff elects to amend his complaint, he shall file a second amended complaint within twenty days (20) of this order. Defendants' responsive pleadings are due twenty days (20) thereafter. The Court strongly recommends that Plaintiff consider consolidating and/or eliminating many of his seventeen claims for relief. A “kitchen sink” approach to pleading in federal court usually does not serve the Plaintiff well in the long run.
IT IS SO ORDERED.