Victoria v. City of San Diego

• Decision Date: 05 September 2018
• Docket Number: Case No.: 17-cv-1837-AJB-NLS
• Citation: 326 F.Supp.3d 1003
• Court: U.S. District Court — Southern District of California
• Parties: Arvaunti VICTORIA, Plaintiff, v. CITY OF SAN DIEGO, David Dunhoff, individually and in his official capacity, et al., Defendants.

326 F.Supp.3d 1003

Arvaunti VICTORIA, Plaintiff,

v.CITY OF SAN DIEGO, David Dunhoff, individually and in his official capacity, et al., Defendants.

Case No.: 17-cv-1837-AJB-NLS

United States District Court, S.D. California.

Signed September 5, 2018

William E. Weiss, Law Offices of William E. Weiss, San Francisco, CA, for Plaintiff.

Pamela Chalk, Office of the City Attorney, San Diego, CA, for Defendants.

ORDER:

(1) GRANTING CITY DEFENDANTS' MOTION TO DISMISS;

(2) GRANTING IN PART AND DENYING IN PART OFFICER DEFENDANTS' MOTION TO DISMISS; AND

(3) GRANTING PLAINTIFF LEAVE TO AMEND

(Doc. Nos. 23, 24)

The issue before the Court is whether Plaintiff Arvaunti Victoria ("Victoria") has adequately alleged that his traffic stop conducted by San Diego Police Officers was unwarranted and unreasonable. Victoria claims that he was pulled over under the guise of "loud pipes" when in actuality he alleges that he was stopped under a formal policy of the San Diego Police Department ("SDPD") to harass and arrest anyone perceived to be a member of a motorcycle gang. (See generally Doc. No. 17.) In response, the City of San Diego and Shelley Zimmerman (collectively referred to as "City Defendants") and Defendants David Dunhoff, Sergeant J. Johnson, Timothy Coyle, Justin Montoya, Adam George, and David Wolff (collectively referred to as "Officer Defendants") filed two separate motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. Nos. 23, 24.) Victoria opposes both of the motions. (Doc. Nos. 27, 28.) On May 18, 2018, the Court held oral argument on both motions and then took the matters under submission. (Doc. No. 43.) As will be explained in greater detail below, the Court GRANTS City Defendants' motion to dismiss, GRANTS IN PART AND DENIES IN PART Officer Defendants' motion to dismiss, and GRANTS Victoria leave to amend.

I. BACKGROUND

The following allegations are taken from Victoria's second amended complaint ("SAC") and are construed as true for the limited purpose of resolving this motion. See Brown v. Elec. Arts, Inc. , 724 F.3d 1235, 1247 (9th Cir. 2013).

Victoria claims that SDPD proceeds under a policy to pursue any kind of action, legal or illegal, to suppress motorcycle clubs in San Diego, assuming that all motorcycle clubs are criminal gangs. (Doc. No. 17 ¶ 12.) During the time frame in which Victoria was purportedly illegally arrested, the SDPD was investigating the assault of a marine some distance from the Off Base Bar located at 9522 Miramar Road, San Diego. (Id. ¶ 17.) The police did not have a description of the suspects, but according to the police report, the marine had been told to leave the bar by unknown members of a motorcycle gang. (Id. )

On September 9, 2016, Victoria arrived on a motorcycle to the Off Base Bar. (Id. ¶ 18.) That particular night was "motorcycle night" where the bar encouraged motorcycle riders and motorcycle clubs to show up. (Id . ) When Victoria parked, the officers observing the bar, saw him take a vest with the emblem of the motorcycle club named the "Chosen Few" out of his saddle bags, put it on, and then enter the bar. (Id . ) Subsequently, Victoria left the bar, placed the vest back into his saddlebags, and drove away. (Id . )

Victoria was then stopped in the vicinity of Miramar and Kearney Mesa Roads. (Id. ¶ 16.) The officers initially told Victoria that he was stopped for loud motorcycle pipes. (Id. ¶ 19.) After he was stopped, the officers also stated that they had stopped him because his motorcycle did not have a license plate. (Id . ) Victoria argues that both of these reasons were concocted as the officers did not have a decibel meter or any type of device to measure the sound of his motorcycle exhaust pipes. (Id . ) Moreover, Victoria presented to the officers the appropriate DMV paperwork indicating that the motorcycle had just recently been purchased and the license plates were arriving soon. (Id. ¶¶ 16, 19.)

During Victoria's stop, a total of five officers appeared. (Id. ¶ 20.) After one or more officers confirmed that Victoria had no citations, one of the officers informed Victoria that they needed to search his saddlebags. (Id . ) Victoria objected to the search, but after "stern" comments from an officer stating that they could do this "the easy way or the hard way," putting Victoria in fear of his life, Victoria raised his hands slowly and told the officers that the key to the saddlebags was in his pocket. (Id . ) During the search of the saddlebags, Victoria's "Chosen Few" vest was found. (Id. ¶ 21.)

Subsequently, Victoria was arrested and charged with having illegal metal knuckles due to the rings he was wearing along with a gang enhancement. (Id . ) Victoria's cell phone was then taken and officers demanded that Victoria provide a password for the phone or they would tow his motorcycle. (Id. ¶ 22.) Plaintiff provided the password for the phone, but the pattern did not work thus Plaintiff's motorcycle was towed. (Id . ) After Victoria was arrested and booked, the officer who transported Victoria to jail let Victoria unlock the phone. (Id . ) Victoria's phone was then seized. (Id . )

Thereafter, a search warrant for Victoria's cell phone was procured. (Id. ¶¶ 25, 26.) Victoria asserts that this warrant is extremely broad. (Id. ¶ 26.) For instance, the warrant sought all financial information, all social media applications, identification and settings, data, address, book/contacts, social network posts/updates/tags, stored passwords, photographs, and Wi-Fi network tables. (Id. ¶ 28.) In sum, Victoria argues that the warrant is invalid as it did not contain a statement of probable cause and the affidavit would not have been able to establish probable cause as Victoria was stopped on a mechanical violation and had no criminal record. (Id. ¶¶ 30–32.)

After Victoria's arrest, he was not charged, but he paid $8,000.00 for bail as a result of the incident. (Id. ¶ 35.) Further, Victoria claims that due to the initial stop and the allegations surrounding his arrest, he has been suffering from mental and emotional distress. (Id . ) Thus, Victoria alleges violations of (1) his Fourth Amendment rights against all individual Defendants— 42 U.S.C. § 1983 ; (2) false arrest against all individual Defendants— 42 U.S.C. § 1983 ; (3) illegal search against all individual Defendants— 42 U.S.C. § 1983 ; (4) deliberate indifference against all Defendants— 42 U.S.C. § 1983 ; (5) deliberate indifference in regards to the purported custom and policies of the SDPD— 42 U.S.C. § 1983 ; (6) violation of the California Constitution Article I § 13 against Defendants Coyle, Dunhoff, Johnson, and George; (7) violation of California Civil Code § 52.1 against all Defendants; (8) injunctive relief pursuant to the Bane Act against all Defendants; and (9) intentional infliction of emotional distress ("IIED") against all individual police officer Defendants. (See generally Doc. No. 17.)

II. LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state a claim upon which relief may be granted. Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001). The court may dismiss a complaint as a matter of law for: "(1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable legal claim."

SmileCare Dental Grp. v. Delta Dental Plan of Cal., Inc. , 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). However, a complaint survives a motion to dismiss if it contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

Notwithstanding this deference, the reviewing court need not accept legal conclusions as true. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). It is also improper for the court to assume "the [plaintiff] can prove facts that [he or she] has not alleged...." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters , 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). On the other hand, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. The court only reviews the contents of the complaint, accepting all factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. Thompson v. Davis , 295 F.3d 890, 895 (9th Cir. 2002).

III. DISCUSSION

A. Defendants' Request for Judicial Notice

Federal Rule of Evidence 201 states that a "court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b).

Both motions to dismiss request judicial notice of the same six exhibits: (1) People of the State of California v. Chosen Few, M.C., et al. ("Chosen Few Case"); (2) "Judgment After Default Against 9 Defendants" filed in the Chosen Few Case; (3) the declaration of Jenal filed in the Chosen Few Case; (4) the Warrant and affidavit in support of Victoria/Plaintiff; (5) the police report at issue in this matter; and (6) a document titled "Motorcycle Clubs Identified by NCIS Marine Corps West Field Office As Criminal Organizations or Clubs Advocating the Participation in Criminal Activities As of 01APR16." (See generally Doc. Nos. 23-2; 24-2.)

Victoria filed two separate objections to the requests on January 19 and 29, 2018.¹ (Doc. Nos. 26, 32.) As the objections mimic each other, the Court will refer to ECF document number 26 for purposes of this Order. Victoria's objections to each exhibit are as follows.

1) Exhibit 1 – Victoria argues that the Chosen Few case cannot be incorporated by

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