Cook v. City of Fremont
| Decision Date | 28 October 2020 |
| Docket Number | Case No. 20-cv-02704-JCS |
| Parties | TREVOR COOK, Plaintiff, v. CITY OF FREMONT, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
Plaintiff Trevor Cook, pro se, brought this action against Defendants the City of Fremont, Fremont Police Officer E. Tang, and Fremont Police Officer K. Romley (collectively, "Defendants"), as well as ten Fremont police officers identified only as Does 1-10 (the "Doe Defendants"). Cook asserts claims based on a warrantless seizure of Cook and a warrantless search of Cook's home. Defendants move to dismiss most of Cook's claims. The Court finds that this motion is appropriate for decision without oral argument. Accordingly the hearing scheduled for November 6, 2020 at 9:30 a.m. is vacated. However, there is a case management conference scheduled for that date. The case management conference is moved to a different time of day: November 6, 2020 at 2:00 p.m. For the reasons discussed below, Defendants' motion is GRANTED. If Cook wishes to file an amended complaint, he may do so no later than December 6, 2020.1
Because a plaintiff's factual allegations are generally taken as true in deciding a motion to dismiss under Rule 12(b)(6), this order summarizes Cook's allegations as if true. Nothing in this order should be construed as resolving any issues of fact that might be disputed at a later stage of the case.
On April 19, 2018, Cook was watching television with his wife in the garage of their home in Fremont, California. Compl. (dkt. 1) ¶ 13. His teenage son was also inside the home. Id. at 18. While Cook and his wife were watching television, a couple whom Cook did not initially recognize walked past the home and called out Cook's name. Id. ¶ 14. Cook realized that one of the individuals was a childhood acquaintance named "Mike." Id. Cook briefly spoke with Mike before returning to watch television with his wife. Id. ¶ 14-15. Shortly after, several police officers approached his driveway with police dogs and guns pointed at both Cook and his wife. Id. at 16. One officer ordered Cook to walk to the end of the driveway. Id. When Cook asked "what was going on," one or more officers responded that they would shoot Cook and his wife if he did not comply. Id.
The officers, with guns still trained on Cook and his wife, then walked up the driveway towards the garage. Id. ¶ 17. Cook held up his hands and walked towards the officers "with the hope that he could prevent them from getting near his wife in the garage and his teenage son who was inside the home." Id. ¶ 19. Cook made no threatening gestures and kept his hands raised. Id. Defendant Tang then "grabbed Cook's arm, did a leg sweep, and slammed him to the ground, causing Cook's knees, shoulder, and face to hit the ground with great force." Id. Tang handcuffed Cook behind his back while Cook was on the ground. Id. Cook's wife then began filming the interaction. Id. ¶ 20.
Tang lifted Cook to his feet and walked Cook away from his wife's camera towards the street where multiple police vehicles were parked. Id. ¶ 21. Cook's wife attempted to follow Tang and Cook to continue filming when another officer ordered her to return to the garage. Id. Cook's wife complied. Id. While Cook was handcuffed behind his back, Tang began to beatCook. Id. ¶ 22. Tang "pounded on Cook's body with open palms all over his body, including striking Cook directly in his testicles." Id. Tang then placed Cook in the back seat of a police vehicle for "almost two hours." Id. ¶ 23.
Tang and Romley explained to Cook's wife that they were searching for Mike, who had stolen a car. Id. ¶ 26. Tang explained that they did not believe that Mike was violent, but that "he liked to steal things." Id. ¶ 26. Tang told Cook's wife that they were considering whether or not to arrest Cook. Id. ¶ 27.
The Doe Defendants then searched Cook's back yard and home without a warrant and without consent. Id. ¶ 28. Tang and Romley did not intervene or attempt to intervene in the search. Id. ¶ 29. Tang then transported Cook to the Fremont Police Station where he was detained for an additional two hours. Id. ¶ 30.
For the duration of Cook's interactions with Tang, Romley and the Doe Defendants "were close by, armed, and providing back up." Id. ¶ 24. One or more of the Doe Defendants also had their weapons drawn and pointed at Cook's wife. Id. Cook contends that Tang, Romley, and the Doe Defendants were "integral participants in the unlawful search" and the excessive use of force. Id. ¶¶ 25, 29. He further contends that they did not intervene or attempt to intervene in the search or the excessive use of force. Id. ¶¶ 25, 29.
After the incident, Cook filed a claim pursuant to California Government Code section 910. Id. ¶ 31. He "mailed his notice of claim to the City of Fremont on October 11, 2018, and the City mailed its rejection of the claim on October 18, 2018." Id.
Cook's complaint includes the following claims: (1) unreasonable seizure of Cook's person in violation of the Fourth Amendment and 42 U.S.C. § 1983, against only Tang, Romley, and the Doe Defendants, id. ¶¶ 33-34; (2) unreasonable search in violation of the Fourth Amendment and 42 U.S.C. § 1983, against only Tang, Romley, and the Doe Defendants, id. ¶¶ 35-37; (3) unreasonable search and seizure in violation of the Fourth Amendment and 42 U.S.C. § 1983, against only the City of Fremont, id. ¶¶ 38-39; (4) interference with Cook's civil rights by threats, intimidation, or coercion in violation of California Civil Code section 52.1, id. ¶¶ 40-45; (5) negligence, id. ¶¶ 46-48; and (6) intentional infliction of emotional distress, id.¶¶ 49-53.
Defendants contend that the excessive force claim should be dismissed as to Romley because Cook has not alleged sufficient facts showing that Romley personally participated in the alleged conduct. Mot. (dkt. 21) at 5-7. Alternatively, Defendants argue that Romley was not an "integral participant in Tang's alleged conduct" and did not have any opportunity to intervene in the conduct. Id. at 7. Defendants argue that the unreasonable search claim should be dismissed as to Tang and Romley because Cook has not alleged sufficient facts to show that Tang or Romley were ether "integral participants in the alleged unlawful search" or had an opportunity to intervene. Id. at 7. Defendants further argue that the unreasonable search and seizure claim against the City of Fremont should be dismissed for failure to meet the requirements of Monell v. Department of Social Services, 436 U.S. 658 (1978). Mot. at 7-13.
Defendants contend that all state law claims should be dismissed without leave to amend because the claims are "time-barred by the Government Claims Act six-month complaint filing deadline." Id. at 4-5. Relying on both Cook's allegations and a rejection letter that Defendants submit for judicial notice, Defendants assert that Cook mailed his notice of claim to the City of Fremont on October 11, 2018 and the City of Fremont mailed its rejection notice on October 18, 2018. Id. at 5. According to Defendants, Cook needed to file this action before April 18, 2019 but did not file his claim until April 17, 2020, "nearly one full year after the six-month filing deadline expired." Id.
In addition, Defendants argue that some of the state law claims should be dismissed for failure to allege sufficient facts to sustain the claims. Mot. at 13-16. Defendants argue that the claim for violation of California Civil Code section 52.1 should be dismissed as to Romley because Cook has not alleged sufficient facts showing any violence or threat of violence by Romley. Id. at 13-14. Defendants argue that Cook's common law tort claims should be dismissed as to Romley because Cook has not alleged sufficient facts showing a breach of duty or actual causation to support his negligence claim and has not alleged sufficient facts showingintentional or reckless conduct to support his claim for intentional infliction of emotional distress. Id. at 14-16. Defendants also contend that Cook has not identified a statutory basis for his common law tort claims against the City of Fremont as required by California Government Code section 815. Id.
Cook addresses parts of Defendants' motion and argues that his complaint states a claim for each count. See Opp'n (dkt. 27). For the excessive force claim, Cook argues that his factual allegations are sufficient to show that Romley was present during Tang's use of excessive force and "did nothing to intervene on [his] behalf." Id. at 3. For the unreasonable search claim, Cook argues that Romley actively participated in the search of Cook's home and that Tang "had multiple realistic opportunities to do his duty to intervene." Id. He further argues that Tang and Romley were aware that the home was searched without Cook's consent. Id. For the Monell claim, Cook argues that the City of Fremont should "bear liability for acts committed by its employees." Id. at 4.
Cook argues that his state law claims are not time-barred because he "could not file anything until [his] criminal case was completed." Id. at 3. Cook argues that his criminal attorney advised him on September 5, 2019 that no charges would be filed in his case and that he was "free to pursue this matter further." Id. For the California Civil Code section 52.1 claim, Cook argues that Romley's inaction constituted "disregard to the violence" committed by Tang. Id. at 4. For the negligence claim, Cook reiterates the allegations from his complaint and argues that Defendants "breached their duty of using ordinary care" and that the City of Fremont is responsible for "supervising their employees." Id. For the intentional infliction of emotional distress claim, Cook argues Romley's "intentional lack of duty to intercede . . . attributed to [his]...
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