Opinion
Case No. 21-cv-03957-EMC
2022-05-20
Steve MORALES, et al., Plaintiffs, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.
Patrick Matthew Buelna, Adante Pointer, Ty Clarke, Pointer & Buelna, LLP, Oakland, CA, for Plaintiffs. Edmund T. Wang, San Francisco City Attorney's Office, San Francisco, CA, for Defendant City and County of San Francisco.
Patrick Matthew Buelna, Adante Pointer, Ty Clarke, Pointer & Buelna, LLP, Oakland, CA, for Plaintiffs.
Edmund T. Wang, San Francisco City Attorney's Office, San Francisco, CA, for Defendant City and County of San Francisco.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS THIRD AMENDED COMPLAINT
Docket No. 53
EDWARD M. CHEN, United States District Judge
I. INTRODUCTION
In this case, Plaintiffs Steve Morales and a minor through their guardian Wendy Chau, filed suit against the City and County of San Francisco ("CCSF"), two law enforcement officers Russell Fong and Ryan Lau, Justice Operating Company, LLC (the "Hilton Hotel"), and Does 1–50 (law enforcement officers and those responsible for their training, supervision and/or conduct). Plaintiffs allege that his Fourth Amendment rights were violated when law enforcement officers unlawfully detained him and used excessive force. Against the officers, Plaintiffs allege unlawful detention and excessive force under 42 U.S.C. Section 1983. Against the officers and CCSF, Plaintiffs allege state claims of assault, battery, negligence, false imprisonment/illegal detention, and negligent infliction of emotional distress. For the reasons set forth below, the Court GRANTS CCSF's motion to dismiss Morales's Third Amended Complaint ("TAC") with prejudice.
II. FACTUAL & PROCEDURAL BACKGROUND
A. Procedural Background
On May 25, 2021, Plaintiffs filed an initial complaint, which was subsequently amended solely to correct Hilton Hotel's name and to include a photo. See Docket No. 1; Docket No. 14. On October 7, 2021, this Court dismissed the First Amended Complaint ("FAC") for failure to state a claim. See Docket No. 24 ("Minute Order 1") at 1.
Thereafter, in the Second Amended Complaint ("SAC"), Plaintiffs had alleged that the police officers lied in claiming that the Hilton Hotel had called to report a domestic dispute and possible child custody issue and told the police that Morales was not allowed to take the child he was carrying. Docket No. 29 (SAC) at 5. Plaintiffs had further detailed in their brief that the hotel's manager aided the alleged false imprisonment by whispering in the officers’ ears and egging the false imprisonment. Docket No. 44 (SAC Opp'n) at 5. Plaintiffs alleged that the officers fabricated such claims because the dispatch records did not reflect such a call. SAC at 5. At the same time, Plaintiffs also alleged that the Hilton Hotel made false reports to the police. See id. at 10.
On January 20, 2022, the Court granted CSSF's and Hilton Hotel's motions to dismiss Plaintiffs’ SAC, finding that (1) the accusation against Hilton Hotel was difficult to reconcile with the allegations against CCSF (they were inconsistent with each other), and (2) the alleged force – the grab and twist of the arm and a chest bump – was insufficient without any allegations of injury, pain or description that it was violent or aggressive. See Docket No. 49 ("Minute Order 2") (citing Berry v. City & Cty. of San Francisco , No. 17-CV-00056-EDL, 2017 WL 10487546, at *6 (N.D. Cal. Dec. 29, 2017) ("Minimal injury does not defeat a claim of excessive force by itself, but the degree of injury can be indicative of the amount of force that was applied, which is one factor in the reasonableness determination.")).
B. Factual Background
In the TAC, Plaintiffs remove the Hilton Hotel as a defendant and name the two officers of the San Francisco Police Department – Russel Fond and Ryan Lau. See generally Docket No. 52 (TAC). The TAC deletes the hotel's involvement and does not discuss the lack of Computer Automated Dispatch records. Id.
Plaintiffs make the following allegations in the TAC:
On May 28, 2020, Morales visited his fiancée (Wendy Chau), their infant, and Ms. Chau's sister at the Hilton Hotel. TAC at 4. At the hotel, Morales asked a security guard for directions to the elevator. Id. The security guard questioned Morales about being a registered guest, and he explained he was not a registered guest but visiting a registered guest. Id. He then met the registered hotel guest, Ms. Chau's sister, and went up the elevator and to the hotel room. Id.
After visiting, Morales left the hotel to go to his car and wait for his fiancée and her sister. TAC at 5. He had no further interactions with hotel staff. Id. As Morales stepped out of the hotel onto the city sidewalk with his infant in his arms and proceeded to walk to his car with a friend, two law enforcement officers, Fong and Lau, came from behind him. Id. An officer jerked one of his arms behind his back, nearly causing him to lose hold of his infant child, and challenged Morales to fight him. Id. Unable to see who the officers were, Morales was concerned that he was being mugged, and he pulled away for his and his child's safety. Id. The officers then grabbed and twisted Morales’ arm while he held his baby in the other and told him he was being detained. Id. They then detained him across the street from the Hilton Hotel, and Morales permitted the officers to twist one of his arms while he held his baby in the other. Id.
When Morales asked the officers why he was being detained, Fong and Lau lied by saying that he was seen having an argument with his wife and that a hotel employee told Fong and Lau that Morales was not allowed to take the baby. Id. According to Morales, neither officer had any reliable information or evidence (including any information provided by Hilton employees) and invented the allegation that Morales did not have the right to take his daughter without any reasonable basis. Id. at 7. He alleges that neither officer prepared reports that indicated they were investigating a child custody issue or kidnapping. Id. at 5–6. Neither officer had any written documents to justify or document their seizure and force. Id. at 6. Instead, the complaint implies the officers stopped him solely because he and the child appeared to be of different races.
The officers then insisted that Morales prove his relationship with his daughter, and Morales instructed his friend to call his fiancée, the mother of his child. Id. Lau and Morales argued about whether the officers had instructed Morales to call his fiancée in the first place. Id. Lau then challenged Morales to hit him, then challenged Morales to fight him by bumping Morales with his chest and aggressively saying, "Come on." Id. Lau also aggressively got in Morales’ face while he held his child in his arms. Id.
At this point, Fong interceded to calm down Lau. Id. However, the officers continued to refuse to believe that Morales, an African-American man, was the father of his baby, who appeared Asian-American. The officers continued to act aggressively toward Morales and refused to believe him before finally permitting him and his family to leave.
In sum, the only difference between the SAC and TAC seems to be the removal of Hilton Hotel as a defendant and discussions of dispatch records, the naming of the two officers, and adding that the officers "aggressively" said, "Come on."
III. LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A complaint that fails to meet this standard may be dismissed pursuant to Rule 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss after the Supreme Court's decisions in Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) and Bell Atlantic Corporation v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a plaintiff's "factual allegations [in the complaint] ‘must ... suggest that the claim has at least a plausible chance of success.’ " Levitt v. Yelp! Inc. , 765 F.3d 1123, 1135 (9th Cir. 2014). The court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marine Ins. Co. , 519 F.3d 1025, 1031 (9th Cir. 2008). But "allegations in a complaint ... may not simply recite the elements of a cause of action [and] must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Levitt, 765 F.3d at 1135 (quoting Eclectic Props. E., LLC v. Marcus & Millichap Co. , 751 F.3d 990, 996 (9th Cir. 2014) ). "A claim has facial plausibility when the Plaintiff pleads factual content that allows the court to draw the reasonable inference that the Defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).
IV. DISCUSSION
A. Reasonable Suspicion
"[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow , 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570, (2000) (citing Terry v. Ohio , 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ); see also United States v. Bontemps , 977 F.3d 909, 913 (9th Cir. 2020). "[T]he Supreme Court has said repeatedly that they must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing." United States v. Brown , 996 F.3d 998, 1006 (9th Cir. 2021) (quoting United States v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) ) (internal quotation marks omitted).
Previously, Plaintiffs had argued that the officers fabricated that the Hilton Hotel had called to report a domestic dispute and possible child custody issue because the dispatch records did not reflect such a call. SAC at 5. At the same time, Plaintiffs had argued that the Hilton Hotel was involved with Morales’ detention. Id.
A police report would provide officers with reasonable suspicion that would justify an investigatory stop. See United States v. Edwards , 761 F.3d 977, 984 (9th Cir. 2014). Kidnapping, child abduction, and deprivation of custody of a child are crimes that can be committed even by a parent. Cal. Penal Code §§ 207, 278, 278.5.
With the Hilton Hotel now out of the picture in the TAC, Plaintiffs argue that Defendants lacked any reasonable suspicion because the officers had no information suggesting that Morales had committed any crime. Docket No. 57 (Opp'n) at 7. According to Plaintiffs, any claims of a report from the hotel were fabricated. Instead, the officers deduced their suspicion solely from the racial difference between Morales, an African-American man, and his daughter, an Asian-American infant. Id. at 6–7. Plaintiffs then cite cases that hold that racial profiles or the avoidance of the police, by itself, is insufficient to constitute the basis of reasonable suspicion. Id. (citing Lopez v. City of Glendora , 811 Fed. Appx. 1016, 1018 (9th Cir. 2020) ; Liberal v. Estrada , 632 F.3d 1064, 1078 (9th Cir. 2011) ).
The TAC is difficult to reconcile with the previous complaints. Plaintiffs are not necessarily prohibited from making inconsistent allegations. See Sayeed v. Cheatham Farms Master Homeowners’ Ass'n , No. CV 18-2073 PA, 2018 WL 8053811, at *4 C.D. Cal. Oct. 29, 2018 (citing Airs Aromatics , 744 F.3d at 600 (finding that inconsistent allegations are not a basis for striking a pleading unless there is a showing of bad faith)). However, "[t]he Court does not ignore the prior allegations in determining the plausibility of the current pleadings" and is "not required to accept as true [contradictory] allegations in an amended complaint" without more facts. See Stanislaus Food Prod. Co. v. USS-POSCO Indus. , 782 F. Supp. 2d 1059, 1076 (E.D. Cal. 2011) (citing Ellingson v. Burlington Northern, Inc. , 653 F.2d 1327, 1329 (9th Cir. 1981), superseded by rule on other grounds as stated in PAE Gov't Servs., Inc. v. MPRI, Inc. , 514 F.3d 856, 859 n. 3 (9th Cir. 2007) (finding that while "the plaintiff permissibly may alter the challenged conduct in an amended complaint[,]" it "must allege more factual support" when the plaintiff altered the relevant agreement at issue); see also J. Edwards Jewelry Distrib., LLC. v. Wells Fargo & Co. , No. 18-CV-03886-YGR, 2019 WL 2329248, at *4 (N.D. Cal. May 31, 2019) ("The fact that plaintiff has now eliminated these allegations and this exhibit from its SAC does not impact the Court's [prior] analysis.... [The plaintiff] cannot avoid application of the statute of limitations by simply deleting from its amended complaint allegations evidencing its discovery[.]"). Therefore, the Court need not disregard the fact that an inconsistent allegation was previously made. Furthermore, "[a] party cannot amend pleadings to ‘directly contradict[t] an earlier assertion made in the same proceeding[ ]’ "; yet this is exactly what Plaintiffs have done by simply deleting the allegations against the hotel and stating that the hotel had no further involvement. Airs Aromatics, LLC v. Victoria's Secret Stores Brand Mgmt., Inc. , 744 F.3d 595, 600 (9th Cir. 2014) (denying leave to amend for futility because "[a] party cannot amend pleadings to ‘directly contradict[t] an earlier assertion made in the same proceeding") (citation omitted)); TAC at 5. Plaintiffs’ current attempt to erase the hotel's involvement entirely in the TAC is unconvincing, considering that their past brief argued that: "[o]bjective video evidence show[ed] that [the hotel's] employee actively assisted the police officers in their false imprisonment of Mr. Morales that was based on the hotel manager's fabricated allegations against Plaintiff." SAC Opp'n at 1. The officers informed Morales that there had been reports of his argument with his wife and that the hotel employee had told the officers that he did not have permission to take his child from the hotel. Id. at 2-3. Immediately after, the hotel manager approached the officers and whispered into one of their ears. Id. at 3. The brief further detailed that:
[The hotel manager] followed Mr. Morales and the police officers across the street and significant distance from the hotel premises. He verbally and physically intervened in keeping Mr. Morales’ friend from filming the encounter. He helped surround and intimi[d]ate Mr. Morales—a noncommunicative act—to make Mr. Morales feel that he was not free to leave and secure the false imprisonment. The hotel manager whispered in the officer's ears, egging the false imprisonment and to show Mr. Morales that he and the officers were working together.
Id. at 5. These specific and detailed allegations regarding the hotel's actions are inconsistent with the current allegation that Morales did not have any further interaction with the hotel staff upon leaving the hotel and that the police officer's conduct was completely initiated on their own. See id. ; TAC at 5. Previously, the Court had allowed leave to amend his SAC upon Plaintiffs’ representation that it was not inconsistent to have first been targeted by the Hilton Hotel, and then be targeted by the officers without any reasonable suspicion:
Plaintiff alleges that the police claimed that the Hilton Hotel had called to report a domestic dispute and possible child custody issue, and that the Hilton Hotel told them Plaintiff was not allowed to take the child Plaintiff was carrying. Plaintiff argues that the officers fabricated such claims because the dispatch records do not reflect such a call. However, Plaintiff also accuses Hilton Hotel of making false police reports, making his allegations against CCSF and the Hilton Hotel difficult to reconcile. Plaintiff purports that the two claims can be separated as two incidents such that the claims are not inconsistent. At the hearing Plaintiff contended that Hilton staff profiled and targeted him but did not accuse him of child abduction; picking up on his being targeted, the police officers then detained Plaintiff and accused him of child abduction without any basis. However, these allegations are not contained in the complaint. Therefore, Plaintiff's SAC fails to "give fair notice and ... enable the opposing party to defend itself effectively."
Minute Order 2 (citations omitted). The TAC entirely omits rather than clarifies the role of Hilton employees, and asserts an entirely different scenario – that the officers acted alone without any influence by Hilton employees.
"[G]iven more likely explanations [that the stop was stemmed from the hotel's report (as alleged in the original complaint)], [the TAC allegations] do not plausibly establish [racial profiling]." Iqbal , 556 U.S. at 681, 129 S.Ct. 1937. Taking into account Plaintiffs’ past pleadings and briefs, the TAC fails to plausibly allege that the officers lacked reasonable suspicion to detain Morales.
Defendants submit an exhibit of the 911 call from the hotel. The call states that: "a guy come in very hot, agitated, not a guest, was with a female, demanding to go up to the room and get his kid. She looked like she was afraid of him. We couldn't stop him." See Docket No. 55. According to Defendants, the Court should consider this exhibit because the call is integral to Morales’ claim. See Docket No. 53 at 11 (citing Parrino v. FHP, Inc. , 146 F.3d 699, 706 (9th Cir. 1998) (holding "that a district court ruling on a motion to dismiss may consider a document the authenticity of which is not contested, and upon which the plaintiff's complaint necessarily relies")). Morales does not dispute the authenticity of the dispatch call. However, considering that Morales’ TAC does not rely on the dispatch call, and his previous complaints also did not rely on it as he argued that no such call was made, this exhibit cannot be incorporated by reference or judicially noticed.
B. Excessive Force
When evaluating a claim of excessive force, a court must ask "whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them" based on the totality of the circumstances. Graham v. Connor, 490 U.S. 386, 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). This is judged from the perspective of an officer on the scene rather than with the benefit of 20/20 hindsight. Id. at 396, 109 S.Ct. 1865. This gives allowances for the split-second judgments officers are required to make in "tense, uncertain, and rapidly-evolving" situations. Id. at 396–97, 109 S.Ct. 1865. The right to employ "some degree of physical coercion or threat thereof" accompanies the right to make the arrest or investigatory stop. Id. at 396, 109 S.Ct. 1865. In determining whether an arrest or investigatory stop is properly carried out, courts must balance the nature and quality of the officer's intrusion on Fourth Amendment rights against competing government interests that justify the intrusion. Cty. of Los Angeles, Calif. v. Mendez , 581 U.S. 420, 137 S. Ct. 1539, 1546, 198 L.Ed.2d 52 (2017) ; Graham , 109 S. Ct. at 1871. "When the governmental interests at stake are substantial, a greater intrusion upon the Fourth Amendment rights of the person may be justified. Conversely, when the governmental interest is insubstantial, the application of even minimal force may be unreasonable." Nelson v. City of Davis , 685 F.3d 867, at 878 (9th Cir. 2012). Therefore, this requires an inquiry into the "(1) severity of the crime; (2) whether the suspect posed an immediate threat to the officers’ or public's safety; and (3) whether the suspect was resisting arrest or attempting to escape." Graham , 109 S. Ct. at 1871. Further, while excessive force cannot be found only on the basis of unlawful detention, the Ninth Circuit considers "facts that gave rise to an unlawful detention or arrest" when evaluating whether the force used to make the arrest was excessive. Velazquez v. City of Long Beach 793 F.3d 1010, 1024, fn. 13 (9th Cir. 2015).
In dismissing Plaintiffs’ SAC, this Court previously explained:
Since the prior dismissed complaint which alleged a grab of the arm and a chest bump, Plaintiff adds that the officers
"twisted his arm." However, Plaintiff fails to allege any injury or pain associated with the arm twist or describe any force as violent or aggressive. See Berry v. City & Cty. of San Francisco , No. 17-CV-00056-EDL, 2017 WL 10487546, at *6 (N.D. Cal. Dec. 29, 2017) ("Minimal injury does not defeat a claim of excessive force by itself, but the degree of injury can be indicative of the amount of force that was applied, which is one factor in the reasonableness determination."). Therefore, the allegations in the SAC are insufficient to state a claim of excessive force. In addition, Plaintiff concedes that the excessive force claim turns on the unlawful detention claim; it lies to the extent the policy had no basis to detain Plaintiff.
Minute Order 2 at 2.
Plaintiffs identify two uses of excessive force: that (1) Lau and Fong "aggressively grabb[ed] and yank[ed]" and twisted his arm while Morales held his child in his arms, and (2) Lau chest-bumped him while challenging him to fight. Opp'n at 8.
Although this is what Morales argues in his opposition, the TAC does not allege that it was the grabbing or yanking of Morales’ arms that was aggressive. The TAC states that the officers "aggressively" got in his face, acted aggressively, and aggressively said "Come on." TAC at 6.
The first factor, the seriousness of the suspected crime, favors Defendants. As discussed above, there was reasonable suspicion of child abduction, which is a severe crime.
The second factor slightly favors Plaintiffs. Plaintiffs argue that no force was needed because Morales was not displaying any threatening or potentially violent behavior. Opp'n at 9 (quoting Marella v. City of Bakersfield , No. 1:09-CV-00453, 2010 WL 3386465 at *9 (E.D. Cal. Aug. 26, 2010) ("[A] law enforcement officer may not use force on a compliant suspect already under the officer's control and not resisting detention or trying to flee"); Sants v. Seipert , No. 215-CV-00355-KJMCKD, 2021 WL 465292 at *4 (E.D. Cal. Feb. 9, 2021) (" ‘Reactive defensive movements’ such as pulling away from an officer's grasp does not indicate any danger posed to officers that would justify the use of force")). Indeed, Morales had not displayed any threatening or violent behavior towards the officers. However, the Court notes that the force used by Defendants were minor compared to the extreme cases cited by Plaintiffs. In Marella , the court held that an officer used excessive force by tasing an unresisting suspect with hands raised, and that an officer may not use force on a suspect who was already tased and unconscious. Marella , 2010 WL 3386465, at *6–7, *9. In Sants , the court found that spinning to face an officer while in his grasp and similar reactive defensive movements "do not alone demonstrate a danger to an arresting officer or anyone else" and did not justify repeated blows to the head that resulted in permanent disability. Sants , 2021 WL 465292, at *4. The use of force alleged by Morales is much weaker compared to these cases.
As discussed in the previous hearing, most cases that deal with a twist of the arm are handcuffing cases during arrests and involve complaints of pain and injury. The severity of the plaintiff's injury may be evidence of severity of the force used. Brown v. City of Oakland , No. C03-1141 TEH, 2006 WL 1760747, at *6 (N.D. Cal. June 27, 2006) (citing Arpin v. Santa Clara Valley Transp. Agency , 261 F.3d 912, 918 (9th Cir. 2001) ; Berry v. City & Cty. of San Francisco , No. 17-CV-00056-EDL, 2017 WL 10487546, at *6 (N.D. Cal. Dec. 29, 2017) ("Minimal injury does not defeat a claim of excessive force by itself, but the degree of injury can be indicative of the amount of force that was applied, which is one factor in the reasonableness determination.") (internal quotation marks and citations omitted)). Although there are many cases alleging excessive force for an arm twist causing injury, few cases deal with the single act of the twisting of the arm without injury or allegations of severity of the twisting. One district court has rejected the defendant officers’ de minimis argument where the plaintiff alleged "violent twisting of the arm" and "an aggressive[ ] chest bump." See Bradford v. Cty. of Oakland , No. 19-CV-10395, 2020 WL 5993217, at *6 (E.D. Mich. Oct. 9, 2020) ("[The plaintiff] describes [that the defendants] violently twist[ed] his arm and aggressively chest bump[ed] him ... [the plaintiff] had a clearly established right to be free from this unnecessary and violent force where he was not resisting and not posing a threat to the officers."). Therefore, the second factor favors Plaintiffs, but only slightly.
The third factor favors Defendants. Morales does not seem to have been a "compliant suspect already under the officer's control and not resisting detention," as he admits that he pulled away when the officers first jerked his arm, thinking that he was being mugged. This resistance further distinguishes this case from Bradford and Marella , where the plaintiff was not resisting the officers at all. See Marella , 2010 WL 3386465, at *9 ; TAC at 5 ("Unable to see who the officers were, Morales was concerned that he was being mugged, and he pulled away for his and his child's safety.").
In sum, the Court concludes that the officers’ use of force was reasonable comparison to government interests. They suspected child abduction, which is a serious crime. Although Morales did not display any threatening or violent behavior, there was some resistance. The force used was minor and reasonably warranted considering the totality of the circumstances, and nowhere near the degree of forced used in the cases cited by Plaintiffs. This is bolstered by the fact that Plaintiffs were unable to add any meaningful facts to the TAC since the prior dismissal. Plaintiffs’ allegations are identical to the SAC except the word "aggressive" is used to describe the words "Come on" and Lau's behavior in the TAC, as well as the arm twist in the Opposition. See TAC at 6; Opp'n at 8. According to the TAC, the officers first "jerked one of his arms behind his back, nearly causing him to lose hold of his infant child and challenged to fight him." TAC at 5. Upon Morales pulling away, the officers "grabbed and twisted Morales’ arms." Id.
The initial jerk and grab of Morales’ arm can be justified to ensure that he did not leave with the child. The subsequent twist of the arm, even accepting Morales’ argument that it was "aggressive," is not excessive. As discussed in the previous hearing, Plaintiffs’ allegations of force are weaker than the force at issue in Bradford because Morales does not describe the degree of the force of the arm twist as "violent" or that the officers twisted the arm "behind his back." Like the SAC, no injury, pain, or the severity of the arm twist is alleged by Morales. The TAC does not allege that he voiced any pain or asked the officers to stop twisting his arm. In fact, he states that after the initial twist, he "then permitted the officer to twist one of his arms." TAC at 5. The allegation that Lau "got in his face" aggressively is also insufficient to constitute excessive force. These facts also come nowhere close to the repeated blows to the head and dealing with an unconscious person in Marella and Sants. Morales does not claim any physical injury.
Accordingly, there is no plausible allegation of excessive force.
C. State Law Claims
At the October 7, 2021 hearing, this Court established, and the parties continue to be in agreement, that: (1) CCSF can be vicariously liable if police officers unlawfully detained Morales and/or used excessive force against him under the California Government Code, and (2) the Fourth Amendment's reasonableness standard applies to the state law claims in police cases. See Minute Order at 1; Cal. Gov't Code § 815.2 ("A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative."); see Blankenhorn v. City of Orange , 485 F.3d 463, 487 (9th Cir. 2007) ; Edson v. City of Anaheim , 63 Cal. App. 4th 1269, 1274, 74 Cal.Rptr.2d 614 (1998) (noting that actions under § 1983 in police cases are the federal counterpart to state claims and that the reasonable force standard under federal law applies equally to state law); Johnson v. County of Los Angeles , 340 F.3d 787, 794 (9th Cir. 2003) ; see Susag v. City of Lake Forest , 94 Cal. App. 4th 1401, 1415, 115 Cal.Rptr.2d 269 (2002) (the plaintiff's failure to establish a "seizure" under the Fourth Amendment defeated his state law claims of battery, intentional infliction of emotional distress, and false imprisonment); Avina v. United States , 681 F.3d 1127, 1131 (9th Cir. 2012) ("In California, [state law] claims that police officers used excessive force in the course of an arrest, investigatory stop or other seizure of a free citizen are analyzed under the reasonableness standard of the Fourth Amendment to the United States Constitution.").
Plaintiffs concede that the assault, battery, and negligence claims are predicated on showing that Lau and Fong used unreasonable force. Opp'n at 9–10. Plaintiffs also concede that the negligent infliction of emotional distress claim is based on the negligence claim. Id. ; see also Potter v. Firestone Tire & Rubber Co. , 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795, 808 (1993). As such, without excessive force, all of the state claims fail.
V. CONCLUSION
For the foregoing reasons, the Court GRANTS CCSF's motion to dismiss for failure to state a claim with prejudice, as Plaintiffs fail to allege any additional meaningful fact in the TAC.
This order disposes of Docket No. 53.