Rosenbaum v. City of San Jose

Decision Date23 December 2021
Docket Number20-CV-04777-LHK
CourtU.S. District Court — Northern District of California
PartiesZACHARY ROSENBAUM, Plaintiff, v. CITY OF SAN JOSE, et al., Defendants.

ZACHARY ROSENBAUM, Plaintiff,
v.

CITY OF SAN JOSE, et al., Defendants.

No. 20-CV-04777-LHK

United States District Court, N.D. California, San Jose Division

December 23, 2021


ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S THIRD AMENDED COMPLAINT RE: DKT. NO. 44

LUCY H. KOH UNITED STATES CIRCUIT JUDGE [*]

Plaintiff Zachary Rosenbaum (“Plaintiff”) sues the City of San Jose (“the City”), Officer Ryan Ferguson, Sergeant Hatzenbuhler, Sergeant Gutierrez, Officer Dunn, Officer Anderson, Officer Tapia, Officer Vallejo, Officer Ochoa, and individuals whose identities are unknown to Plaintiffs (collectively, “Defendants”) for (1) violations of the Fourth Amendment under 42 U.S.C. § 1983; (2) battery; (3) violation of the Bane Act; and (4) negligence. Before the Court is Defendants' motion to dismiss Plaintiff's Third Amended Complaint. ECF No. 44. Having considered the parties' submissions, the relevant law, and the record in this case, the Court GRANTS IN PART AND DENIES IN PART Defendants' motion to dismiss.

1

I.BACKGROUND

A. Incorporation by Reference

Before the Court describes the facts of this case, the Court must address Defendants' argument that the police report is incorporated by reference into Plaintiff's Third Amended Complaint (“TAC”).

Although Plaintiff does not identify the police report in Plaintiff's TAC, Plaintiff selectively quotes from the police report (“Police Report”) to describe his fiancée's allegations to the police. ECF No. 40 ¶ 16 (“TAC”). Defendants argue that because Plaintiff selectively quotes from the police report, the entirety of the police report must be incorporated by reference. ECF No. 44 at 3 n.1

“Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 (9th Cir.1989) (citing Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir.1984)). “There are, however, . . . exceptions to the requirement that consideration of extrinsic evidence converts a 12(b)(6) motion to a summary judgment motion.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001). “If the documents are not physically attached to the complaint, they may be considered if the documents authenticity . . . is not ‘contested and the plaintiff's complaint necessarily relies' on them.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001) (quoting Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir.1998)).

Here, the Police Report forms the basis for Plaintiff's claims. In the Court's order granting the motion to dismiss the Second Amended Complaint, the Court instructed Plaintiff to allege facts including “the severity of the crime at issue, ” which is an element of Plaintiff's claims. ECF No. 39 at 8. Plaintiff's Third Amended Complaint selectively quotes the Police Report in order to describe the severity of the crime at issue. TAC ¶ 16. Under the Ninth Circuit's case law, that is sufficient to incorporate the Police Report, which is attached to Defendants' motion to dismiss, by reference.

The Court therefore recites the facts of the case as pleaded in the Plaintiff's TAC, but with

2

added details from the Police Report regarding the incident.

B. Alleged Use of Force Against Plaintiff

According to the Third Amended Complaint (“TAC”), on the evening of September 10, 2019, Plaintiff was asleep inside an upstairs bedroom at the home he shared with his fiancée. ECF No. 44 ¶ 15 (“TAC”). Plaintiff alleges that earlier that day he and his fiancée had engaged in a “verbal and physical altercation.” TAC ¶ 16. The TAC states: “Unbeknownst to Plaintiff, his fiancée had called the police and reported that Plaintiff had ‘scratch[ed] her, pull[ed] her hair and us[ed] body force to hold [her] down while licking her face.'” (alterations in original)). Id. ¶ 16.

The TAC strategically crops the quotation from the Police Report. In fact, the Police Report states: “The suspect assaulted his girlfriend/fiance [sic]/cohabitant strangling her, scratching her, pulling her hair and using body force to hold the victim down while licking her face.” ECF No. 44-1 at 1 (“Police Report”). Thus, the TAC strategically omits the allegation that Plaintiff strangled his fiancée.

The Police Report, which is incorporated by reference in the TAC, adds additional details. The home belonged to Plaintiff's fiancée, and Plaintiff had recently moved in. Police Report at 2. After Plaintiff's fiancée managed to escape, she contacted the police and told the police she was in pain. Id. at 1. Police confirmed that Plaintiff's fiancée had visible marks from the assault. Id. Plaintiff's fiancée also expressed fear because Plaintiff had been violent in the past. Id. at 2-3. In the past Plaintiff's fiancée had obtained a restraining order against Plaintiff. Id. at 6.

The remaining allegations are from the TAC. The police came to Plaintiff's home and spoke with Plaintiff's fiancée, who was outside the home. TAC ¶ 17. Plaintiff states that he awoke to the “sound of San Jose police officers inside his home calling his name.” Id. ¶ 18. According to Plaintiff, he did not know that the police were in his home to investigate his fiancée's reports of domestic violence. Id. Plaintiff “walked to the top of the stairs and saw multiple police officers (Defendants) shining their lights at Plaintiff's face and pointing their handguns at Plaintiff.” Id. ¶ 19.

3

The Court refers to Sergeants Hatzenbuhler and Gutierrez and Officers Anderson, Tapia, Vallejo, and Ochoa collectively as the “Bystander Officers.” Plaintiff alleges that, though he stood at the top of the stairs with “his hands up in the air where Defendants could see them, ” id. ¶ 19, the Bystander Officers “trained their firearms on Plaintiff and took defensive positions on the ground floor of the apartment, ” id. ¶ 22. Plaintiff also alleges that Sergeant Gutierrez “was the on-scene supervisor in charge of the seizure” and that Sergeant Hatzenbuhler “commanded several of the officers to take positions inside the [Plaintiffs] house.” Id.

Plaintiff “asked the Defendants in a polite and respectful manner why they were inside his home and what they wanted with him.” Id. ¶ 19. Defendants allegedly informed Plaintiff that he was under arrest, ” but they did not tell Plaintiff why he was being arrested. Id. “Instead, Defendants issued commands for . . . Plaintiff to come down the stairs.” Id.

Plaintiff allegedly “repeatedly asked the Defendants what he was being arrested for and what [the Defendants] wanted with him.” Id. ¶ 20. All the while, Plaintiffs hands were “visibly raised.” Id. ¶ 20, 21. Defendants “repeatedly refused to tell Plaintiff the reason for his purported arrest and commanded the Plaintiff to come down the stairs.” Id. ¶ 20. According to Plaintiff, “at least one officer” repeatedly told Plaintiff that if he did not come down the stairs and obey the officers' commands, “a police K-9 would be deployed.” Id. Plaintiff repeatedly refused to come down the stairs. See Id. ¶ 21 (“Plaintiff continued asking why Defendants were inside his home . . .while he stood on the second-floor landing.”)

Plaintiff allegedly continued “to keep his hands visibly raised” and “continued asking why Defendants were inside his home and what they wanted with him.” Id. ¶ 21. According to Plaintiff, he “did not threaten any of the officers either verbally or physically at any point” while Plaintiff was interacting with the officers. Id. Plaintiff also alleges that he was unarmed and that “there were no reports by anyone to the contrary.” Id.

Allegedly “[l]osing patience with the Plaintiffs questions, ” Officer Dunn “deployed a police K-9 to attack the Plaintiff.” Id. ¶ 24. The police dog was deployed “even though Plaintiff

4

had his hands visibly raised in the air and was not threatening any of the officers.” Id. Plaintiff also alleges that the Bystander Officers “continued pointing their weapons at Plaintiff” when the police dog was deployed. Id. The Bystander Officers were allegedly “integral participants in the use of force” in part because they continued to point their weapons at Plaintiff when the police dog was deployed, and in part because they took no actions “to prevent, or otherwise intervene[], in the use of force against Plaintiff” despite being “aware that [Officer Dunn]” was threatening to deploy the police dog. Id. Plaintiff believes that after the police dog was deployed to bite Plaintiff, “and while Plaintiff was laying on his stomach in full surrender with his hands stretched out, ” Defendants surrounded him on all sides, trained their firearms on Plaintiff, and allowed the police dog “to continue biting the [Plaintiff] for over 20 seconds, before being pulled away.” Id. ¶ 27.

Additionally, “[w]ithin a second of the K-9 being deployed, [Officer Ferguson] shot the Plaintiff with a less-lethal shotgun bean-bag projectile weapon, striking the Plaintiff in the stomach.”

C. Procedural History

On July 16, 2020, Plaintiff filed the instant case. ECF No. 1. On September 25, 2020, Defendants filed a motion to dismiss Plaintiff's complaint. ECF No. 18. On October 11, 2020, Plaintiff filed an Amended Complaint in lieu of opposing Defendants' motion to dismiss. ECF No. 21. On October 23, 2020, the Court denied Defendants' motion to dismiss as moot. ECF No. 25.

On October 16, 2020, Plaintiff filed a Corrected First Amended Complaint. ECF No. 22. On October 21, 2020, the parties stipulated to permit Plaintiff to file a Second Amended Complaint. ECF No. 23. On October 23, 2020, the Court granted the parties' stipulation. ECF No. 24.

On October 24, 2020, Plaintiff filed the Second Amended Complaint. ECF No. 26. On November 13, 2020, Defendants filed a motion to dismiss the Second Amended Complaint. ECF No. 30. The Court granted that motion with leave to...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT