Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CLEO BARRY, Case No.: 25-CV-2465 TWR (MMP)

12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING DEFENDANTS’ MOTION TO DISMISS THE SECOND 14 CITY OF SAN DIEGO, et al., AMENDED COMPLAINT 15 Defendants. (ECF No. 17) 16 17 Presently before the Court is Defendants Nicolas Medina and the City of San 18 Diego’s Motion to Dismiss Plaintiff Cleo Barry’s Second Amended Complaint (“Mot.,” 19 ECF No. 17), as well as Plaintiff’s Response in Opposition to (“Opp’n,” ECF No. 19), and 20 Defendants’ Reply in Support of (“Reply,” ECF No. 20) the Motion. The Court heard oral 21 arguments on July 2, 2026. Having carefully considered Plaintiff’s Second Amended 22 Complaint (“SAC,” ECF No. 16.), the Parties’ arguments, and the relevant law, the Court 23 GRANTS IN PART and DENIES IN PART the Motion (ECF No. 17). 24 BACKGROUND 25 I. The Parties 26 Plaintiff Cleo Barry is a competent adult and a resident of San Diego. (SAC ¶ 1.) 27 Defendant City of San Diego (the “City”) is a California municipal public entity, which 28 manages and operates the San Diego Police Department (“SDPD”) and its officers. (Id. 1 ¶ 2.) Defendants Nicolas Medina (“Officer Medina”) and SDPD Officer 2 are individuals 2 who were employed as an SDPD law enforcement officers at the time of the alleged 3 violations. (Id. ¶ 3.) DOE Defendants 1–20 are individuals employed as law enforcement 4 officers by the City and/or the SDPD at the time of the alleged violations. (Id. ¶ 4.) 5 II. Factual Background1 6 On or around August 14, 2024, Officer Medina issued Plaintiff a citation for 7 unlawfully residing in a homeless encampment in the City. (SAC ¶ 10.) The next day, 8 Officer Medina and SDPD Officer 2 approached Plaintiff while he was “peacefully 9 situated” with his friend Mary Stephens on the 1400 block of B Street near San Diego City 10 College. (Id. ¶ 11.) Officer Medina began putting on disposable gloves. (Id. ¶ 12.) When 11 Plaintiff asked why he was putting them on, Officer Medina responded, “Oh, you know 12 why I’m putting my gloves on.” (Id.) Plaintiff remarked, “So you’re going to fuck me up 13 again?,” referring to his prior encounter with Officer Medina approximately one year 14 earlier, when Officer Medina violently attacked Plaintiff during an arrest for suspected 15 unlawful camping and broke Plaintiff’s shoulder. (Id. ¶ 13.) 16 Plaintiff was visibly anxious. (Id. ¶ 15.) Mary Stephens urged Plaintiff to calm 17 down while Plaintiff repeatedly stated that Officer Medina was harassing him. (Id.) 18 Officer Medina heard Plaintiff and sarcastically remarked, “You can’t park here, sir.” (Id. 19 ¶ 16.) Plaintiff stood up and began dismantling his tent, stating, “You’re not touching my 20 shit.” (Id. ¶ 17.) Plaintiff then stepped toward Officer Medina with his arms at his sides 21 and stated, “I’ll knock your ass out.” (Id. ¶ 18.) 22 In response, Officer Medina pushed Plaintiff to the ground, and told Plaintiff, 23 “You’re not going to approach . . . . You’re not going to threaten me.” (Id. ¶ 19.) Plaintiff 24 shouted insults at Officer Medina and began to collect his belongings and placed them into 25 26 1 For purposes of Defendants’ Motion, the facts alleged in the First Amended Complaint are 27 accepted as true. See Vasquez v. Los Angeles Cnty., 487 F.3d 1246, 1249 (9th Cir. 2007). Moreover, the Court does not consider Defendant’s factual allegations in the context of a 12(b)(6) motion. See Lee v. 28 1 his backpack. (Id. ¶ 20.) SDPD Officer 2 then walked over Plaintiff’s tent, crushing the 2 items inside. (Id. ¶ 21.) Plaintiff backed away and tripped, causing him to fall onto his 3 back. (Id. ¶ 22.) SDPD Officer 2 moved to arrest Plaintiff, ordering him to put his hands 4 behind his back. (Id. ¶ 23.) 5 Still on the ground, Plaintiff flailed his arms but did not strike SDPD 6 Officer 2. (Id.) Officer Medina grabbed Plaintiff’s arms to restrain him while Plaintiff 7 continued to flail and repeatedly stated that he had “done nothing wrong.” (Id. ¶ 24.) 8 Plaintiff then rose to his knees and SDPD Officer 2 placed his hands on Plaintiff’s back 9 while Officer Medina grabbed the back of Plaintiff’s neck area and forced him down again. 10 (Id. ¶ 25.) Plaintiff fell onto his back and Officer Medina placed his hand on Plaintiff’s 11 neck, applying pressure while ordering Plaintiff to “face the ground.” (Id. ¶ 25.) 12 Plaintiff verbally protested but did not strike either officer. (Id. ¶ 26.) Officer 13 Medina then punched Plaintiff three times in the face with a closed fist. (Id. ¶ 27.) Plaintiff 14 began bleeding and raised his hands. (Id. ¶ 28.) Again, Officer Medina punched Plaintiff 15 three times with a closed fist. (Id.) Officer Medina and SDPD Officer 2 then placed 16 Plaintiff in handcuffs. (Id. ¶ 29.) Plaintiff screamed in pain and stated, “You hit me in my 17 face,” to which Office Medina responded, “I told you . . . don’t threaten me.” (Id. ¶ 30.) 18 “Plaintiff suffered severe physical pain, severe emotional distress and bodily injuries 19 – including, but not limited to, a broken nose, a fractured/dislocated right shoulder, and 20 significant bruising, abrasions, and scratches to his upper back, knees, and face.” (Id. ¶ 32.) 21 “During his emergency room visit following the incident, Plaintiff’s injuries were 22 confirmed to be consistent with blunt force trauma.” (Id.) No criminal charges were filed 23 against Plaintiff following the incident and “[t]he only citation issued was for the prior 24 day’s supposed unlawful homeless encampment.” (Id. ¶ 33.) 25 III. Procedural Background 26 Plaintiff’s First Amended Complaint alleged following causes of action: 27 (1) Excessive Force – Fourth Amendment (42 U.S.C. § 1983), against Officer Medina and 28 Does 1–20; (2) Failure to Intervene (42 U.S.C. § 1983), against Does 1–20; (3) Conspiracy 1 to Violate Civil Rights (42 U.S.C. § 1983), against Officer Medina and Does 1–20; 2 (4) Battery (Cal. Gov. Code § 820), against Officer Medina, the City, and Does 1–20; 3 (5) Violation of the Tom Bane Civil Rights Act (“Bane Act,” Cal. Civ. Code § 52.1), 4 against Officer Medina, the City, and Does 1–20; and (6) Negligence (Cal. Gov. Code 5 § 820), against Officer Medina, the City, and Does 1–20. (See generally ECF No. 4 6 (“FAC”).) On December 19, 2026, Defendants moved to dismiss Plaintiff’s First Amended 7 Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) as to Plaintiff’s first, 8 second, third, and sixth causes of action. (ECF No. 8.) The Court granted the motion in 9 part, dismissing the first and sixth causes of action as they pertained to Does 1–20. (ECF 10 No. 15 (the “Prior Order”) at 11.) 11 On April 14, 2026, Plaintiff’s filed the operative Second Amended Complaint 12 alleging the following causes of action: (1) Excessive Force – Fourth Amendment (42 13 U.S.C. § 1983), against Officer Medina; (2) Retaliation – First Amendment (42 U.S.C. 14 § 1983), against Officer Medina; (3) Battery (Cal. Gov. Code § 820), against Officer 15 Medina and the City; (4) Violation of the Bane Act (Cal. Civ. Code § 52.1), against Officer 16 Medina and the City; and (5) Negligence (Cal. Gov. Code § 820), against Officer Medina, 17 the City, and Does 1–20. (See generally id.) On April 28, 2026, Officer Medina and the 18 City filed the instant Motion pursuant to Rule 12(b)(6) seeking to dismiss Plaintiff’s 19 second, third, fourth, and fifth causes of action. (See Mot.; see also ECF No. 17-1 20 (“Mem.”)) 21 LEGAL STANDARD 22 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 23 state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” 24 Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro 25 v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). “A district court’s dismissal for failure to 26 state a claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a ‘lack of 27 a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 28 / / / 1 theory.’” Id. at 1242 (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 2 Cir. 1988)). 3 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 4 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 5 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial 6 plausibility when the plaintiff pleads factual content that allows the court to draw the 7 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing 8 Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to 9 infer more than the mere possibility of misconduct, the complaint has alleged—but it has 10 not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (second alteration in 11 original) (quoting Fed. R. Civ. P. 8(a)(2)). 12 If the court dismisses a complaint for failure to state a claim under Rule 12(b)(6), 13 the “court should grant leave to amend even if no request to amend the pleading was made, 14 unless it determines that the pleading could not possibly be cured by the allegation of other 15 facts.” Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (quoting Doe v. United States, 58 16 F.3d 494, 497 (9th Cir. 1995)). 17 DISCUSSION 18 I. Second Cause of Action: First Amendment Retaliation (42 U.S.C. § 1983) 19 To state a claim for First Amendment retaliation, a plaintiff must allege 20 (1) he engaged in a constitutionally protected activity, (2) he was subjected to an adverse 21 action by the defendant that would chill a person of ordinary firmness from continuing to 22 engage in the activity, and (3) there was a substantial causal relationship between the 23 protected activity and the adverse action. Ballentine v. Tucker 28 F.4th 54, 58 (9th Cir. 24 2022). 25 As a threshold matter, Defendants argue Plaintiff’s second cause of action against 26 Officer Medina should be dismissed because Plaintiff fails to allege the absence of probable 27 cause for his arrest. (Mem. at 4.) But because Plaintiff specifically pleads a retaliatory 28 force claim—as opposed to a retaliatory arrest claim—he does not have to allege that 1 Officer Medina had no probable cause for arresting him. (See SAC ¶ 47.) Plaintiff pleads 2 that he made a statement, Officer Medina took adverse action (i.e., used excessive force) 3 against him in response to that statement, and Plaintiff’s statement was a substantial factor 4 in Officer Medina’s decision to use such force against Plaintiff, thereby facially satisfying 5 all the requisite elements of a retaliatory force claim. (Id. ¶¶ 44–52.) 6 Officer Medina also argues, however, that Plaintiff’s statement to him—“I’ll knock 7 your ass out”—constitutes a true threat that is not protected under the First Amendment. 8 (Mem. at 5); see also Thunder Studios, Inc. v. Kazal, 13 F.4th 736, 746 (9th Cir. 2021). 9 True threats are statements made where the speaker means to communicate a serious 10 expression of intent to commit an act of unlawful violence to a particular individual, even 11 if the speaker does not intend to carry out the threat. Virginia v. Black, 528 U.S. 343, 359 12 (2003). In civil cases, the Ninth Circuit applies an objective test to determine “whether a 13 reasonable person would foresee that the statement would be interpreted by those to whom 14 the maker communicates the statement as a serious expression of intent to harm or assault.” 15 Thunder Studios, 13 F.4th at 746 (internal quotations and citations omitted); see Roy v. 16 United States, 416 F.2d 874, 878 (9th Cir. 1969). The Ninth Circuit also considers the 17 factual context, including surrounding events and reaction of the listeners, in determining 18 whether speech is a true threat. See Thunder Studios, 13 F.4th at 746 (citations omitted). 19 “Even a statement that appears to threaten violence may not be a true threat if the context 20 indicates that it only expressed political opposition or was emotionally charged rhetoric.” 21 Id. (collecting cases). 22 Plaintiff alleges that, after being approached and confronted by Officer Medina and 23 SDPD Officer 2 for unlawfully having a tent and personal belongings on or adjacent to the 24 sidewalk, Plaintiff took several steps towards Officer Medina and stated, “I will knock your 25 ass out.” (See SAC ¶ 18.) However, Plaintiff alleges he then engaged in constitutionally 26 protected speech when he “verbally complained that Officer Medina was targeting and 27 harassing him” and when he “continued to protest Officer Medina’s conduct and stated that 28 he had ‘done nothing wrong.’” (Id. ¶¶ 45–46.) Plaintiff also alleges that the “temporal 1 proximity between Plaintiff’s protected speech and Officer Medina’s use of force, together 2 with Officer Medina’s statements – including, ‘I told you . . . don’t you threaten me,’ . . . 3 demonstrate a causal connection between Plaintiff’s speech and the adverse action taken 4 against him.” (Id. ¶ 50.) 5 Taking Plaintiff’s allegations in the Second Amended Complaint as true, and 6 drawing all reasonable inferences in Plaintiff’s favor, the Court cannot conclude that 7 Plaintiff’s statements were a “serious expression of an intent to commit an action of 8 unlawful violence” against Officer Medina. See Boquist v. Courtney, 32 F.4th 764, 782 9 (9th Cir. 2022) (quoting Virginia v. Black, 538 U.S. 343, 359 (2003)). Because the Court 10 cannot conclude that Plaintiff “can prove no set of facts to support” his claims, Plaintiff’s 11 First Amendment retaliation claim survives a motion to dismiss. See id. (quoting Adams 12 v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004)). The Court thus DENIES IN PART the 13 Motion as to Plaintiff’s second cause of action. 14 II. Third Cause of Action: Battery (Cal. Gov. Code § 820) 15 To state a claim for a battery under California law, a plaintiff must allege that (1) the 16 defendant touched the plaintiff with the intent to harm or offend them, (2) the plaintiff did 17 not consent to the touching, and (3) the plaintiff was harmed or offended by the defendant’s 18 conduct. Judicial Council of California Civil Jury Instructions (“CACI”) No. 1300; see 19 also Brown v. Ransweiler 171 Cal. App. 4th 516, 526–27 (2009). Because a law 20 enforcement officer “may use reasonable force to make an arrest, prevent escape[,] or 21 overcome resistance, and need not desist in the face of resistance,” see Munoz v. City of 22 Union City, 120 Cal. App. 4th 1077, 1102, as modified on denial of reh’g (Aug. 17, 2004) 23 (quoting Cal. Pen Code § 835a(b)), disapproved of on other grounds by Hayes v. Cnty. of 24 San Diego, 57 Cal. 4th 622 (2013), to prevail on a claim of battery against a law 25 enforcement officer, a plaintiff must also plead that the officer used unreasonable force. 26 CACI No. 1305A; see also Edson v. City of Anaheim, 63 Cal. App. 4th 1269, 1275 (1998). 27 / / / 28 / / / 1 A. Officer Medina 2 Defendants argue that Plaintiff’s battery claim against Officer Medina should be 3 dismissed because Plaintiff failed to plead that Officer Medina used unreasonable force. 4 (Mem. at 5–6.) In response, Plaintiff argues the Court should deny Defendants’ Motion 5 pursuant to Rule 12(g)(2), (Opp’n at 6–7), or, alternatively, because the Second Amended 6 Complaint sufficiently pleads that Officer Medina used unreasonable force. (Id. at 7.) 7 Regarding Plaintiff’s first argument, Rule 12(g)(2) states that, “[e]xcept as provided 8 in Rule 12(h)(2) or (3), a party that makes a motion under Rule 12 must not make another 9 motion under Rule 12 raising a defense or objection that was available to the party but 10 omitted from its earlier motion.” Rule 12(h)(2) allows a party to argue failure to state a 11 claim upon which relief can be granted in any pleading allowed or ordered under 7(a), by 12 a motion under Rule 12(c), or at trial. Notably, Rule 12(h)(2) does not include an exception 13 for subsequent motions to dismiss. 14 Plaintiff’s First Amended Complaint alleged a battery claim against Officer Medina, 15 (see FAC ¶ 51), and Defendants failed to challenge Plaintiff’s battery claim in their first 16 motion to dismiss, (see generally ECF No. 8). The Court therefore could deny in part 17 Defendant’s Motion for violating Rule 12(g)(2); however, it is this Court’s preference to 18 decide issues on the merits when possible. Accordingly, the Court considers Defendants’ 19 arguments regarding the sufficiency of Plaintiff’s battery claim against Officer Medina.2 20 For a battery claim against a law enforcement officer, California applies an objective 21 test to determine whether the officer’s use of force was unreasonable under the totality of 22 the circumstances. See Brown, 171 Cal. App. 4th at 527–28. Similarly, a Fourth 23 Amendment excessive force claim under 42 U.S.C. § 1983 “is cognizable where [law 24 enforcement] officers employed an objectively unreasonable amount of force under the 25 26 2 Indeed, Plaintiff challenged Defendants’ Motion under Rule 12(g)(2) as to his third cause of action 27 (battery), fourth cause of action (Bane Act), and fifth cause of action (negligence), all against both Officer Medina and the City. For the same reason, the Court acknowledges Plaintiff’s objection but nevertheless 28 1 totality of the circumstances.” Hills v. City of Chula Vista, No. 23-CV-1067-DMS-DDL, 2 2024 WL 4896588, at *5 (S.D. Cal. Nov. 26, 2024) (internal quotations omitted) (quoting 3 Graham v. Connor¸ 490 U.S. 386, 396 (1989)). With respect to Defendants’ prior motion 4 to dismiss, the Court found Plaintiff’s allegations that Officer Medina’s use of a closed fist 5 to strike Plaintiff in the head several times sufficiently stated a claim of excessive force in 6 violation of 42 U.S.C. § 1983. (ECF No. 15 at 5–6.) Plaintiff’s Second Amended 7 Complaint repeats those allegations regarding Plaintiff’s first cause of action, (see SAC 8 ¶¶ 34–43), which Defendants do not argue should be dismissed for failure to state a claim, 9 (see generally Mem.; Reply). 10 Considering the Second Amended Complaint again alleges that Officer Medina 11 placed his hand on Plaintiff’s neck and punched him several times in the face with a closed 12 fist while he laid on the ground, (see SAC ¶¶ 25–28), and the Court’s previous holding that 13 this use of force, as pleaded, is objectively unreasonable under the totality of the 14 circumstances, the Court finds Plaintiff’s allegations sufficient to state a battery claim 15 against Officer Medina. Accordingly, the Court DENIES IN PART the Motion as to 16 Plaintiff’s third cause of action against Officer Medina. 17 B. City 18 Under California law, a public entity is liable for injury proximately caused by an 19 act or omission of an employee of the public entity within the scope of his employment if 20 the act or omission would have given rise to a cause of action against that employee. Cal. 21 Gov. Code § 815.2(a). 22 Defendants argue that Plaintiff cannot allege vicarious liability against the City 23 vicarious liability is limited to cases involving gross negligence or bad faith. (Mem. at 7 24 (citing Eastburn v. Regional Fire Protection Authority, 31 Cal. 4th 1175, 1180 (2003)).) 25 But the case on which Defendants rely, Eastburn, is inapposite to the facts of this case. In 26 Eastburn, the Supreme Court of California specifically addressed whether public entities 27 employing emergency dispatch services are subject to vicarious liability for injury 28 attributable to a dispatcher’s tortious conduct, finding that vicarious liability under Section 1 815.2(b) attached only in cases involving gross negligence or bad faith. See 31 Cal. 4th 2 1178 (citing Health & Saf. Code § 1799.107). Because Defendants cite no applicable 3 authority for the proposition that the City cannot be liable for Officer Medina’s tortious 4 conduct, (see generally Mem.; Reply), the Court finds Plaintiff sufficiently pleads a battery 5 claim against the City. Thus, the Court DENIES IN PART the Motion as to Plaintiff’s 6 third cause of action against the City. 7 III. Fourth Cause of Action: Violation of the Bane Act (Cal. Civ. Code § 52.1) 8 To state a claim under the Bane Act, a plaintiff must allege that (1) the defendant 9 intentionally interfered or attempted to interfere with the plaintiff’s federal, constitutional, 10 or legal right; and (2) the defendant’s interference or attempted interference was by threats, 11 intimidation, or coercion. Wiley v. Kern High Sch. Dist., 107 Cal. App. 5th 765, 774 12 (2024). 13 A. Officer Medina 14 Defendants argue that, under the Bane Act, the alleged misconduct must involve 15 threats, intimidation, or coercion independent of any inherent in the underlying 16 constitutional violation. (Mem. at 8.) Defendants contend the Second Amended Complaint 17 fails to allege such misconduct, and thus Plaintiff’s claim against Officer Medina must be 18 dismissed. (Id.) In response, Plaintiff argues that Officer Medina’s use of excessive force 19 alone is sufficient to plead a claim under the Bane Act. (Opp’n at 8–9.) 20 Defendants cite Shoyoye v. County of Los Angeles, 203 Cal. App. 4th 947, 959 21 (2012), as authority for their argument that the threats, intimidation, or coercion must be 22 separate from any threats, intimidation, or coercion inherent in the constitutional violation. 23 (See Mem. at 8.) However, Shoyoye is limited to cases involving “mere negligence.” See 24 Reese v. Cnty. of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018) (citing Cornell v. City 25 & Cnty. of San Francisco, 17 Cal. App. 5th 766, 799–800 (2017)). Consequently, contrary 26 to Defendants’ assertions otherwise, to state a claim for violation of the Bane Act, the 27 defendant’s use of excessive force alone can be enough to satisfy the threats, intimidation, 28 or coercion element. Id. In other words, the Bane Act does not require the threats, 1 intimidation, or coercion to be “transactionally independent” from the alleged 2 constitutional violation in this case. Id. (citing Cornell, 17 Cal. App. 5th at 799–800). 3 Thus, Plaintiff’s claim that Officer Medina’s conduct constitutes a Fourth Amendment 4 excessive force violation under 42 U.S.C. § 1983, (see SAC ¶¶ 34–43)—which Defendants 5 do not contest, (see generally Mem.; Reply)—fulfills the threats, intimidation, or coercion 6 element of Plaintiff’s Bane Act claim. The Court therefore finds Plaintiff’s allegations 7 sufficient to state a claim for violation of the Bane Act against Officer Medina and 8 DENIES IN PART the Motion on this ground. 9 B. City 10 Defendants again argue that Plaintiff cannot allege vicarious liability for Officer 11 Medina’s Bane Act violation against the City because vicarious liability is limited to cases 12 involving gross negligence or bad faith. (Mem. at 8 (citing Eastburn, 31 Cal. 4th at 1180).) 13 As explained above, see supra Section II.B, Defendants are incorrect. The Court therefore 14 finds that Plaintiff alleges a claim for the City’s vicarious liability for Officer Medina’s 15 violation of the Bane Act. Accordingly, the Court DENIES IN PART the Motion as to 16 Plaintiff’s fourth cause of action against the City of San Diego. 17 IV. Fifth Cause of Action: Negligence (Cal. Gov. Code § 820) 18 To plead a common law negligence claim under California law, “a plaintiff must 19 show that [the] defendant had a duty to use due care, that he breached that duty, and that 20 the breach was the proximate or legal cause of the resulting injury.” Nally v. Grace Cmty. 21 Church, 47 Cal. 3d 278, 292 (1988). 22 A. Officer Medina 23 Defendants argue Plaintiff’s negligence claim against Officer Medina should be 24 dismissed because Plaintiff does not properly plead a statutory duty, which Defendants 25 contend is required for a negligence claim against a law enforcement officer. (Mem. at 26 8–9.) In response, Plaintiff argues that Defendants misstate the law regarding what is 27 required to plead a claim for negligence by a law enforcement officer. (Opp’n at 13–16.) 28 / / / 1 To begin, Defendants’ assertion that “[t]he basis for any negligence cause of action 2 against an SDPD officer must be a statutory duty of care that imposes an affirmative duty 3 on an officer and whose breach is the proximate cause of Plaintiff’s injury” is incorrect as 4 a matter of law. (See Mem. at 9.) As explained in the Court’s Prior Order, “[e]xcept as 5 otherwise provided by law, public employees in California are statutorily liable to the same 6 extent as private persons for injuries caused by their acts or omissions.” (Prior Order at 8 7 (citing Hayes, 57 Cal. 4th 628–29 (citing Cal. Gov. Code § 820)).) Thus, to the extent 8 Plaintiff seeks to assert a common law negligence claim against Officer Medina in his 9 individual capacity, California Government Code § 820 permits him to do so. (Id. (citing 10 Hayes, 57 Cal. 4th at 629).) In other words, Plaintiff need not plead a “statutory basis” to 11 define the duty of care Officer Medina owed him when using force.3 12 In California, a law enforcement officer may only use reasonable force to arrest, 13 detain, prevent escape of, or overcome resistance by a person when the officer has 14 reasonable cause to believe that person has committed or is committing a crime. Cal. Gov. 15 Code § 835a(b). “The reasonableness of an officer’s conduct is determined in light of the 16 totality of circumstances.” Hayes, 57 Cal. 4th at 629 (collecting cases); see also Cal. Gov. 17 Code § 835a(a)(4) (“[T]he decision by a peace officer to use force shall be evaluated from 18 19 20 3 The Court notes that Plaintiff’s negligence allegations against Officer Medina have not materially 21 changed from the First Amended Complaint to the operative Second Amended Complaint. (Compare FAC ¶¶ 66–70, with SAC ¶¶ 69–72.) The Court further notes that, in their prior motion to dismiss, 22 Defendants argued that, absent a statutory basis, Plaintiff’s allegation of general negligence was “deficient as a matter of law.” (ECF No. 8 at 8.) The Court rejected this argument, explaining that California law 23 expressly permits a plaintiff to assert a common law negligence claim against a public employee— including a law enforcement officer—for injuries caused by his acts or omissions to the same extent as a 24 private person. (Prior Order at 8 (citing Hayes, 57 Cal. 4th at 628–29 (citing Cal. Gov. Code § 820)).) 25 Defendants did not file a motion for reconsideration. (See generally Docket.) Nonetheless, Defendants’Motion again argues, without any supporting authority, that “[t]he basis for any negligence 26 cause of action against an SDPD officer must be a statutory duty of care[.]” (Mem. at 11.) Not only do Defendants misstate California law, but they also ignore the fact that the Court already found in its Prior 27 Order that Plaintiff sufficiently pleaded a claim of general negligence against Officer Medina. (See Prior Order at 9.) The Court will not entertain any additional arguments from Defendants that Plaintiff must 28 1 the perspective of a reasonable officer in the same situation, based on the totality of the 2 circumstances known to or perceived by the officer at the time.”). Accordingly, law 3 enforcement officers in California have a duty to exercise reasonable care when using 4 force, and breach of that duty may give rise to negligence liability. See CACI No. 440 5 (“Negligent Use of Nondeadly Force by Law Enforcement Officer in Arrest or Other 6 Seizure”). 7 Plaintiff pleads that Officer Medina owed him a duty to exercise reasonable care, 8 including “using only such force as was reasonably necessary under the circumstances.” 9 (SAC ¶ 70.) Plaintiff further pleads “Officer Medina breached these duties by, among 10 other things, striking Plaintiff multiple times in the face with a closed fist under 11 circumstances where such force was not reasonably necessary” and, “[a]s a direct and 12 proximate result of Defendants’ conduct, Plaintiff suffered severe physical pain, severe 13 emotional distress[,] and bodily injuries – including, but not limited to, a broken nose[;] a 14 fractured/dislocated right shoulder[;] and significant bruising, abrasions, and scratches to 15 his upper back, knees, and face.” (Id. ¶¶ 72, 75.) Accordingly, the Court finds Plaintiff’s 16 allegations sufficient to plead a claim of negligence against Officer Medina under 17 California law and DENIES IN PART the Motion as to Plaintiff’s fifth cause of action 18 against Officer Medina. 19 B. City 20 Defendants again argue that the City cannot be vicariously liable for Officer 21 Medina’s acts because vicarious liability is limited to cases involving gross negligence or 22 bad faith. (Mem. at 12 (citing Eastburn, 31 Cal. 4th at 1180).) The Court again rejects this 23 argument, for the same reasons as explained above. See supra Sections II.B, III.B. 24 Accordingly, the Court finds Plaintiff sufficiently pleads a claim of negligence against the 25 / / / 26 / / / 27 / / / 28 / / / 1 City under California law and DENIES IN PART the Motion as to Plaintiff’s fifth cause 2 of action against the City.4 3 C. Does 1–20 4 Defendants argue that Plaintiff fails to allege facts to show each Doe defendant 5 personally violated his constitutional rights, (Mem. at 10 (citing Taylor v. List, 880 F.2d 6 1040, 1045 (9th Cir. 1989)), and that the Second Amended Complaint “does not contain 7 any discernible arguments that allege how the unknown Doe defendants violated his rights 8 or what these same Doe defendants did that caused Plaintiff’s constitutional injuries,” (id. 9 at 10–11 (citing SAC ¶ 4)). 10 As an initial matter, Plaintiff’s only claim against Does 1–20 is for negligence. (See 11 generally SAC.) Because Plaintiff need not plead a constitutional violation to allege a 12 viable claim for negligence under California law, the Court rejects Defendants’ arguments 13 to the extent they relate to Plaintiff’s constitutional rights. 14 Defendants also argue that “Plaintiff attempts to plead the existence of Doe 15 defendants, but does so insufficiently, other than the allegations related to Doe Defendant 16 2.” (Mem. at 10 (citing SAC ¶¶ 4, 21–23).) Here, Plaintiff alleges that Does 1–20 owed 17 him a duty to exercise reasonable care including, among other things, using only such force 18 as was reasonably necessary under the circumstances, and that they breached this duty by 19 “escalating the encounter, failing to de-escalate, and engaging in conduct that foreseeably 20 contributed to Plaintiff’s injuries, including approaching Plaintiff in an aggressive manner, 21 interfering with Plaintiff’s ability to safely gather his belongings, and initiating or 22 participating in the physical arrest to Plaintiff,” (id. ¶¶ 70, 73), thereby causing Plaintiff’s 23 24 25 4 The Court also notes Plaintiff’s negligence allegations against the City have not materially changed from the First Amended Complaint to the operative Second Amended Complaint. (Compare FAC ¶ 71, 26 with SAC ¶ 77.) Moreover, the Court already found in its Prior Order that Plaintiff sufficiently pleaded a claim of general negligence against the City. (See Prior Order at 10–11.) Accordingly, as with Plaintiff’s 27 claim for negligence against Officer Medina, see supra note 3, the Court will not entertain any additional arguments from Defendants that the City cannot be held vicariously liable for Officer Medina’s 28 1 ||severe physical pain, severe emotional distress, and bodily injuries. (See id. § 75.) The 2 facts Plaintiff pleads in support of these allegations, however, are specific to SDPD 3 Officer 2. (See id. {9 11, 21- 22, 25, 29.) Because Plaintiff does not plead any facts 4 || supporting his negligence allegations against anyone else except Officer Medina and SDPD 5 || Officer 2, the Court finds Plaintiff fails plausibly to allege a negligence claim against Does 6 1-20. Accordingly, the Court GRANTS IN PART the Motion and DISMISSES 7 || Plaintiff's sixth cause of action against Does 1-20. 8 CONCLUSION 9 In light of the foregoing, the Court GRANTS IN PART and DENIES IN PART 10 || Defendant’s Motion to Dismiss the Second Amended Complaint (ECF No. 17). In 11 particular, the Court DISMISSES WITHOUT PREJUDICE Plaintiff's sixth cause of 12 action as to Doe Defendants 1-20. Defendants’ Motion is otherwise DENIED. Plaintiff 13 || MAY FILE an amended complaint curing the above identified deficiencies within fourteen 14 days of the electronic docketing of this Order. Should Plaintiff fail timely to file an 15 || amended complaint, this action will proceed as to Plaintiff's surviving causes of action. 16 IT IS SO ORDERED. 17 || Dated: August 31, 2026 —— 18 [ ad) (2 % (re 19 Honorable Todd W. Robinson United States District Judge 20 21 22 23 24 25 26 27 28