Morales v. City and County of San Francisco

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 STEVE MORALES, et al., Case No. 21-cv-03957-EMC 8 Plaintiffs, ORDER GRANTING DEFENDANT’S 9 v. MOTION TO DISMISS THIRD AMENDED COMPLAINT 10 CITY AND COUNTY OF SAN FRANCISCO, et al., Docket No. 53 — 11 — Defendants. — 12 — — 13 — 14 I. INTRODUCTION 15 In this case, Plaintiffs Steve Morales and a minor through their guardian Wendy Chau, 16 filed suit against the City and County of San Francisco (“CCSF”), two law enforcement officers 17 Russell Fong and Ryan Lau, Justice Operating Company, LLC (the “Hilton Hotel”), and Does 1– 18 50 (law enforcement officers and those responsible for their training, supervision and/or conduct). 19 Plaintiffs allege that his Fourth Amendment rights were violated when law enforcement officers 20 unlawfully detained him and used excessive force. Against the officers, Plaintiffs allege unlawful 21 detention and excessive force under 42 U.S.C. Section 1983 . Against the officers and CCSF, 22 Plaintiffs allege state claims of assault, battery, negligence, false imprisonment/illegal detention, 23 and negligent infliction of emotional distress. For the reasons set forth below, the Court 24 GRANTS CCSF’s motion to dismiss Morales’s Third Amended Complaint (“TAC”) with 25 prejudice. 26 /// 27 /// 1 II. FACTUAL & PROCEDURAL BACKGROUND 2 A. Procedural Background 3 On May 25, 2021, Plaintiffs filed an initial complaint, which was subsequently amended 4 solely to correct Hilton Hotel’s name and to include a photo. See Docket No. 1; Docket No. 14. 5 On October 7, 2021, this Court dismissed the First Amended Complaint (“FAC”) for failure to 6 state a claim. See Docket No. 24 (“Minute Order 1”) at 1. 7 Thereafter, in the Second Amended Complaint (“SAC”), Plaintiffs had alleged that the 8 police officers lied in claiming that the Hilton Hotel had called to report a domestic dispute and 9 possible child custody issue and told the police that Morales was not allowed to take the child he 10 was carrying. Docket No. 29 (SAC) at 5. Plaintiffs had further detailed in their brief that the 11 hotel’s manager aided the alleged false imprisonment by whispering in the officers’ ears and 12 egging the false imprisonment. Docket No. 44 (SAC Opp’n) at 5. Plaintiffs alleged that the 13 officers fabricated such claims because the dispatch records did not reflect such a call. SAC at 5. 14 At the same time, Plaintiffs also alleged that the Hilton Hotel made false reports to the police. See — 15 — id. at 10 . 16 On January 20, 2022, the Court granted CSSF’s and Hilton Hotel’s motions to dismiss 17 Plaintiffs’ SAC, finding that (1) the accusation against Hilton Hotel was difficult to reconcile with 18 the allegations against CCSF (they were inconsistent with each other), and (2) the alleged force – 19 the grab and twist of the arm and a chest bump – was insufficient without any allegations of 20 injury, pain or description that it was violent or aggressive. See Docket No. 49 (“Minute Order 21 2”) (citing Berry v. City & Cty. of San Francisco, No. 17- CV-00056-EDL, 2017 WL 10487546 , 22 at *6 (N.D. Cal. Dec. 29, 2017) (“Minimal injury does not defeat a claim of excessive force by 23 itself, but the degree of injury can be indicative of the amount of force that was applied, which is 24 one factor in the reasonableness determination.”)). 25 B. Factual Background 26 In the TAC, Plaintiffs remove the Hilton Hotel as a defendant and name the two officers of 27 the San Francisco Police Department – Russel Fond and Ryan Lau. See generally Docket No. 52 1 Automated Dispatch records. Id. 2 Plaintiffs make the following allegations in the TAC: 3 On May 28, 2020, Morales visited his fiancée (Wendy Chau), their infant, and Ms. Chau’s 4 sister at the Hilton Hotel. TAC at 4. At the hotel, Morales asked a security guard for directions to 5 the elevator. Id. The security guard questioned Morales about being a registered guest, and he 6 explained he was not a registered guest but visiting a registered guest. Id. He then met the 7 registered hotel guest, Ms. Chau’s sister, and went up the elevator and to the hotel room. Id. 8 After visiting, Morales left the hotel to go to his car and wait for his fiancée and her sister. 9 TAC at 5. He had no further interactions with hotel staff. Id. As Morales stepped out of the hotel 10 onto the city sidewalk with his infant in his arms and proceeded to walk to his car with a friend, 11 two law enforcement officers, Fong and Lau, came from behind him. Id. An officer jerked one of 12 his arms behind his back, nearly causing him to lose hold of his infant child, and challenged 13 Morales to fight him. Id. Unable to see who the officers were, Morales was concerned that he 14 was being mugged, and he pulled away for his and his child’s safety. Id. The officers then 15 grabbed and twisted Morales’ arm while he held his baby in the other and told him he was being 16 detained. Id. They then detained him across the street from the Hilton Hotel, and Morales 17 permitted the officers to twist one of his arms while he held his baby in the other. Id. 18 When Morales asked the officers why he was being detained, Fong and Lau lied by saying 19 that he was seen having an argument with his wife and that a hotel employee told Fong and Lau 20 that Morales was not allowed to take the baby. Id. According to Morales, neither officer had any 21 reliable information or evidence (including any information provided by Hilton employees) and 22 invented the allegation that Morales did not have the right to take his daughter without any 23 reasonable basis. Id. at 7 . He alleges that neither officer prepared reports that indicated they were 24 investigating a child custody issue or kidnapping. Id. at 5–6. Neither officer had any written 25 documents to justify or document their seizure and force. Id. at 6 . Instead, the complaint implies 26 the officers stopped him solely because he and the child appeared to be of different races. 27 The officers then insisted that Morales prove his relationship with his daughter, and 1 argued about whether the officers had instructed Morales to call his fiancée in the first place. Id. 2 Lau then challenged Morales to hit him, then challenged Morales to fight him by bumping 3 Morales with his chest and aggressively saying, “Come on.” Id. Lau also aggressively got in 4 Morales’ face while he held his child in his arms. Id. 5 At this point, Fong interceded to calm down Lau. Id. However, the officers continued to 6 refuse to believe that Morales, an African-American man, was the father of his baby, who 7 appeared Asian-American. The officers continued to act aggressively toward Morales and refused 8 to believe him before finally permitting him and his family to leave. 9 In sum, the only difference between the SAC and TAC seems to be the removal of Hilton 10 Hotel as a defendant and discussions of dispatch records, the naming of the two officers, and 11 adding that the officers “aggressively” said, “Come on.” 12 III. LEGAL STANDARD 13 Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain 14 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 15 complaint that fails to meet this standard may be dismissed pursuant to Rule 12(b)(6). See Fed. R. 16 Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss after the Supreme Court’s 17 decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corporation v. Twombly, 550 18 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must . . . suggest that the 19 claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th 20 Cir. 2014). The court “accept[s] factual allegations in the complaint as true and construe[s] the 21 pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & 22 Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a complaint . . . may not 23 simply recite the elements of a cause of action [and] must contain sufficient allegations of 24 underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” 25 Levitt, 765 F.3d at 1135 (quoting Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 26 990, 996 (9th Cir. 2014)). “A claim has facial plausibility when the Plaintiff pleads factual 27 content that allows the court to draw the reasonable inference that the Defendant is liable for the 1 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 2 unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). 3 IV. DISCUSSION 4 A. Reasonable Suspicion 5 “[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory 6 stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” 7 Illinois v. Wardlow, 528 U.S. 119, 123 , (2000) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)); see 8 also United States v. Bontemps, 977 F.3d 909, 913 (9th Cir, 2020). “[T]he Supreme Court has 9 said repeatedly that they must look at the ‘totality of the circumstances’ of each case to see 10 whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal 11 wrongdoing.” United States v. Brown, 996 F.3d 998, 1006 (9th Cir. 2021) (quoting United States 12 v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks omitted). 13 Previously, Plaintiffs had argued that the officers fabricated that the Hilton Hotel had 14 called to report a domestic dispute and possible child custody issue because the dispatch records 15 did not reflect such a call.1 SAC at 5. At the same time, Plaintiffs had argued that the Hilton 16 Hotel was involved with Morales’ detention. Id. 17 With the Hilton Hotel now out of the picture in the TAC, Plaintiffs argue that Defendants 18 lacked any reasonable suspicion because the officers had no information suggesting that Morales 19 had committed any crime. Docket No. 57 (Opp’n) at 7. According to Plaintiffs, any claims of a 20 report from the hotel were fabricated. Instead, the officers deduced their suspicion solely from the 21 racial difference between Morales, an African-American man, and his daughter, an Asian22 American infant. Id. at 6–7. Plaintiffs then cite cases that hold that racial profiles or the 23 avoidance of the police, by itself, is insufficient to constitute the basis of reasonable suspicion. Id. 24 (citing Lopez v. City of Glendora, 811 Fed. Appx. 1016 , 1018 (9th Cir. 2020); Liberal v. Estrada, — 25 — 632 F.3d 1064, 1078 (9th Cir. 2011)). — 26 — 1 A police report would provide officers with reasonable suspicion that would justify an — 27 — investigatory stop. See United States v. Edwards, 761 F.3d 977, 984 (9th Cir. 2014). Kidnapping, 1 The TAC is difficult to reconcile with the previous complaints. Plaintiffs are not 2 necessarily prohibited from making inconsistent allegations. See Sayeed v. Cheatham Farms 3 Master Homeowners' Ass'n, No. CV 18-2073 PA (SKX), 2018 WL 8053811 , at *4 (C.D. Cal. Oct. 4 29, 2018) (citing Airs Aromatics, 744 F.3d at 600 (finding that inconsistent allegations are not a 5 basis for striking a pleading unless there is a showing of bad faith)). However, “[t]he Court does 6 not ignore the prior allegations in determining the plausibility of the current pleadings” and is “not 7 required to accept as true [contradictory] allegations in an amended complaint” without more 8 facts. See Stanislaus Food Prod. Co. v. USS-POSCO Indus., 782 F. Supp. 2d 1059, 1076 (E.D. 9 Cal. 2011 ) (citing Ellingson v. Burlington Northern, Inc., 653 F.2d 1327, 1329 (9th Cir.1981), 10 superseded by rule on other grounds as stated in PAE Gov't Servs., Inc. v. MPRI, Inc., 514 F.3d 11 856, 859 n. 3 (9th Cir.2007) (finding that while “the plaintiff permissibly may alter the challenged 12 conduct in an amended complaint[,]” it “must allege more factual support” when the plaintiff 13 altered the relevant agreement at issue); see also J. Edwards Jewelry Distrib., LLC. v. Wells Fargo 14 & Co., No. 18-CV-03886-YGR, 2019 WL 2329248 , at *4 (N.D. Cal. May 31, 2019) (“The fact 15 that plaintiff has now eliminated these allegations and this exhibit from its SAC does not impact 16 the Court’s [prior] analysis. . . . [The plaintiff] cannot avoid application of the statute of 17 limitations by simply deleting from its amended complaint allegations evidencing its 18 discovery[.]”). Therefore, the Court need not disregard the fact that an inconsistent allegation was 19 previously made. Furthermore, “[a] party cannot amend pleadings to ‘directly contradict[t] an 20 earlier assertion made in the same proceeding[]’”; yet this is exactly what Plaintiffs have done by 21 simply deleting the allegations against the hotel and stating that the hotel had no further 22 involvement. Airs Aromatics, LLC v. Victoria's Secret Stores Brand Mgmt., Inc., 744 F.3d 595 , 23 600 (9th Cir. 2014) (denying leave to amend for futility because “[a] party cannot amend 24 pleadings to ‘directly contradict[t] an earlier assertion made in the same proceeding”) (citation 25 omitted)); TAC at 5. Plaintiffs’ current attempt to erase the hotel’s involvement entirely in the 26 TAC is unconvincing, considering that their past brief argued that: “[o]bjective video evidence 27 show[ed] that [the hotel’s] employee actively assisted the police officers in their false 1 Plaintiff.” SAC Opp’n at 1. The officers informed Morales that there had been reports of his 2 argument with his wife and that the hotel employee had told the officers that he did not have 3 permission to take his child from the hotel. Id. at 2-3. Immediately after, the hotel manager 4 approached the officers and whispered into one of their ears. Id. at 3. The brief further detailed 5 that: 6 [The hotel manager] followed Mr. Morales and the police officers across the street and significant distance from the hotel premises. 7 He verbally and physically intervened in keeping Mr. Morales’ friend from filming the encounter. He helped surround and 8 intimi[d]ate Mr. Morales—a noncommunicative act—to make Mr. Morales feel that he was not free to leave and secure the false 9 imprisonment. The hotel manager whispered in the officer’s ears, egging the false imprisonment and to show Mr. Morales that he and 10 the officers were working together. 11 Id. at 5. These specific and detailed allegations regarding the hotel’s actions are inconsistent with 12 the current allegation that Morales did not have any further interaction with the hotel staff upon 13 leaving the hotel and that the police officer’s conduct was completely initiated on their own. See 14 id.; TAC at 5. Previously, the Court had allowed leave to amend his SAC upon Plaintiffs’ 15 representation that it was not inconsistent to have first been targeted by the Hilton Hotel, and then 16 be targeted by the officers without any reasonable suspicion: 17 Plaintiff alleges that the police claimed that the Hilton Hotel had called to report a domestic dispute and possible child custody issue, 18 and that the Hilton Hotel told them Plaintiff was not allowed to take the child Plaintiff was carrying. Plaintiff argues that the officers 19 fabricated such claims because the dispatch records do not reflect such a call. However, Plaintiff also accuses Hilton Hotel of making 20 false police reports, making his allegations against CCSF and the Hilton Hotel difficult to reconcile. Plaintiff purports that the two 21 claims can be separated as two incidents such that the claims are not inconsistent. At the hearing Plaintiff contended that Hilton staff 22 profiled and targeted him but did not accuse him of child abduction; picking up on his being targeted, the police officers then detained 23 Plaintiff and accused him of child abduction without any basis. However, these allegations are not contained in the complaint. 24 Therefore, Plaintiff’s SAC fails to “give fair notice and . . . enable the opposing party to defend itself effectively.” — 25 — 26 Minute Order 2 (citations omitted). The TAC entirely omits rather than clarifies the role of Hilton 27 employees, and asserts an entirely different scenario – that the officers acted alone without any 1 “[G]iven more likely explanations [that the stop was stemmed from the hotel’s report (as 2 alleged in the original complaint)], [the TAC allegations] do not plausibly establish [racial 3 profiling].” Iqbal, 556 U.S. at 681 . Taking into account Plaintiffs’ past pleadings and briefs, the 4 TAC fails to plausibly allege that the officers lacked reasonable suspicion to detain Morales.2 5 B. Excessive Force 6 When evaluating a claim of excessive force, a court must ask “whether the officers' actions 7 are ‘objectively reasonable’ in light of the facts and circumstances confronting them” based on the 8 totality of the circumstances. Graham v. Connor 490 U.S. 386, 386 (1989). This is judged from 9 the perspective of an officer on the scene rather than with the benefit of 20/20 hindsight. Id. at 10 396. This gives allowances for the split-second judgments officers are required to make in “tense, 11 uncertain, and rapidly-evolving” situations. Id. at 396–97. The right to employ “some degree of 12 physical coercion or threat thereof” accompanies the right to make the arrest or investigatory stop. — 13 — Id. at 396 . In determining whether an arrest or investigatory stop is properly carried out, courts 14 must balance the nature and quality of the officer's intrusion on Fourth Amendment rights against 15 competing government interests that justify the intrusion. Cty. of Los Angeles, Calif. v. Mendez, — 16 — 137 S. Ct. 1539, 1546 (2017); Graham, 109 S. Ct. at 1871 . “When the governmental interests at 17 stake are substantial, a greater intrusion upon the Fourth Amendment rights of the person may be 18 justified. Conversely, when the governmental interest is insubstantial, the application of even 19 minimal force may be unreasonable.” Nelson v. City of Davis, 685 F.3d 867, at 878 (9th Cir. 20 2012). Therefore, this requires an inquiry into the “(1) severity of the crime; (2) whether the 21 suspect posed an immediate threat to the officers' or public's safety; and (3) whether the suspect 22 was resisting arrest or attempting to escape.” Graham, 109 S. Ct. at 1871 . Further, while — 23 — 2 Defendants submit an exhibit of the 911 call from the hotel. The call states that: “a guy come in — 24 — 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 — 25 — 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 — 26 — “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 — 27 — does not dispute the authenticity of the dispatch call. However, considering that Morales’ TAC 1 excessive force cannot be found only on the basis of unlawful detention, the Ninth Circuit 2 considers “facts that gave rise to an unlawful detention or arrest” when evaluating whether the 3 force used to make the arrest was excessive. Velazquez v. City of Long Beach 793 F.3d 1010 , 4 1024, fn. 13 (9th Cir. 2015). 5 In dismissing Plaintiffs’ SAC, this Court previously explained: 6 Since the prior dismissed complaint which alleged a grab of the arm and a chest bump, Plaintiff adds that the officers “twisted his arm.” 7 However, Plaintiff fails to allege any injury or pain associated with the arm twist or describe any force as violent or aggressive. See 8 Berry v. City & Cty. of San Francisco, No. 17- CV-00056-EDL, 2017 WL 10487546 , at *6 (N.D. Cal. Dec. 29, 2017) (“Minimal 9 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 10 applied, which is one factor in the reasonableness determination.”). Therefore, the allegations in the SAC are insufficient to state a claim 11 of excessive force. In addition, Plaintiff concedes that the excessive force claim turns on the unlawful detention claim; it lies to the 12 extent the policy had no basis to detain Plaintiff. 13 Minute Order 2 at 2. 14 Plaintiffs identify two uses of excessive force: that (1) Lau and Fong “aggressively 15 grabb[ed] and yank[ed]” and twisted his arm3 while Morales held his child in his arms, and (2) 16 Lau chest-bumped him while challenging him to fight. Opp’n at 8. 17 The first factor, the seriousness of the suspected crime, favors Defendants. As discussed 18 above, there was reasonable suspicion of child abduction, which is a severe crime. 19 The second factor slightly favors Plaintiffs. Plaintiffs argue that no force was needed 20 because Morales was not displaying any threatening or potentially violent behavior. Opp’n at 9 21 (quoting Marella v. City of Bakersfield, No. 1:09-CV-00453, 2010 WL 3386465 at *9 (E.D. Cal. 22 Aug. 26, 2010) (“[A] law enforcement officer may not use force on a compliant suspect already 23 under the officer’s control and not resisting detention or trying to flee”); Sants v. Seipert, No. 21524 CV-00355-KJMCKD, 2021 WL 465292 at *4 (E.D. Cal. Feb. 9, 2021) (“‘Reactive defensive 25 movements’ such as pulling away from an officer’s grasp does not indicate any danger posed to — 26 — — 27 — 3 Although this is what Morales argues in his opposition, the TAC does not allege that it was the 1 officers that would justify the use of force”)). Indeed, Morales had not displayed any threatening 2 or violent behavior towards the officers. However, the Court notes that the force used by 3 Defendants were minor compared to the extreme cases cited by Plaintiffs. In Marella, the court 4 held that an officer used excessive force by tasing an unresisting suspect with hands raised, and 5 that an officer may not use force on a suspect who was already tased and unconscious. Marella, — 6 — 2010 WL 3386465 , at *6–7, *9. In Sants, the court found that spinning to face an officer while in 7 his grasp and similar reactive defensive movements “do not alone demonstrate a danger to an 8 arresting officer or anyone else” and did not justify repeated blows to the head that resulted in 9 permanent disability. Sants, 2021 WL 465292 , at *4. The use of force alleged by Morales is 10 much weaker compared to these cases. 11 As discussed in the previous hearing, most cases that deal with a twist of the arm are 12 handcuffing cases during arrests and involve complaints of pain and injury. The severity of the 13 plaintiff's injury may be evidence of severity of the force used. Brown v. City of Oakland, No. 14 C03-1141 TEH, 2006 WL 1760747 , at *6 (N.D. Cal. June 27, 2006) (citing Arpin v. Santa Clara 15 Valley Transp. Agency, 261 F.3d 912 , 918 (9th Cir. 2001); Berry v. City & Cty. of San Francisco, 16 No. 17-CV-00056-EDL, 2017 WL 10487546 , at *6 (N.D. Cal. Dec. 29, 2017) (“Minimal injury 17 does not defeat a claim of excessive force by itself, but the degree of injury can be indicative of 18 the amount of force that was applied, which is one factor in the reasonableness determination.”) 19 (internal quotation marks and citations omitted)). Although there are many cases alleging 20 excessive force for an arm twist causing injury, few cases deal with the single act of the twisting 21 of the arm without injury or allegations of severity of the twisting. One district court has rejected 22 the defendant officers’ de minimis argument where the plaintiff alleged “violent twisting of the 23 arm” and “an aggressive[] chest bump.” See Bradford v. Cty. of Oakland, No. 19-CV-10395, — 24 — 2020 WL 5993217 , at *6 (E.D. Mich. Oct. 9, 2020) (“[The plaintiff] describes [that the 25 defendants] violently twist[ed] his arm and aggressively chest bump[ed] him . . . [the plaintiff] had 26 a clearly established right to be free from this unnecessary and violent force where he was not 27 resisting and not posing a threat to the officers.”). Therefore, the second factor favors Plaintiffs, 1 The third factor favors Defendants. Morales does not seem to have been a “compliant 2 suspect already under the officer’s control and not resisting detention,” as he admits that he pulled 3 away when the officers first jerked his arm, thinking that he was being mugged. This resistance 4 further distinguishes this case from Bradford and Marella, where the plaintiff was not resisting the 5 officers at all. See Marella, 2010 WL 3386465 , at *9; TAC at 5 (“Unable to see who the officers 6 were, Morales was concerned that he was being mugged, and he pulled away for his and his 7 child’s safety.”). 8 In sum, the Court concludes that the officers’ use of force was reasonable comparison to 9 government interests. They suspected child abduction, which is a serious crime. Although 10 Morales did not display any threatening or violent behavior, there was some resistance. The force 11 used was minor and reasonably warranted considering the totality of the circumstances, and 12 nowhere near the degree of forced used in the cases cited by Plaintiffs. This is bolstered by the 13 fact that Plaintiffs were unable to add any meaningful facts to the TAC since the prior dismissal. 14 Plaintiffs’ allegations are identical to the SAC except the word “aggressive” is used to describe the 15 words “Come on” and Lau’s behavior in the TAC, as well as the arm twist in the Opposition. See 16 TAC at 6; Opp’n at 8. According to the TAC, the officers first “jerked one of his arms behind his 17 back, nearly causing him to lose hold of his infant child and challenged to fight him.” TAC at 5. 18 Upon Morales pulling away, the officers “grabbed and twisted Morales’ arms.” Id. 19 The initial jerk and grab of Morales’ arm can be justified to ensure that he did not leave 20 with the child. The subsequent twist of the arm, even accepting Morales’ argument that it was 21 “aggressive,” is not excessive. As discussed in the previous hearing, Plaintiffs’ allegations of 22 force are weaker than the force at issue in Bradford because Morales does not describe the degree 23 of the force of the arm twist as “violent” or that the officers twisted the arm “behind his back.” 24 Like the SAC, no injury, pain, or the severity of the arm twist is alleged by Morales. The TAC 25 does not allege that he voiced any pain or asked the officers to stop twisting his arm. In fact, he 26 states that after the initial twist, he “then permitted the officer to twist one of his arms.” TAC at 5. 27 The allegation that Lau “got in his face” aggressively is also insufficient to constitute excessive 1 unconscious person in Marella and Sants. Morales does not claim any physical injury. 2 Accordingly, there is no plausible allegation of excessive force. 3 C. State Law Claims 4 At the October 7, 2021 hearing, this Court established, and the parties continue to be in 5 agreement, that: (1) CCSF can be vicariously liable if police officers unlawfully detained Morales 6 and/or used excessive force against him under the California Government Code, and (2) the Fourth 7 Amendment’s reasonableness standard applies to the state law claims in police cases. See Minute 8 Order at 1; Cal. Gov't Code § 815.2 (“A public entity is liable for injury proximately caused by an 9 act or omission of an employee of the public entity within the scope of his employment if the act 10 or omission would, apart from this section, have given rise to a cause of action against that 11 employee or his personal representative.”); see Blankenhorn v. City of Orange, 485 F.3d 463 , 487 12 (9th Cir. 2007); Edson v. City of Anaheim, 63 Cal. App. 4th 1269 , 1274 (1998) (noting that actions 13 under § 1983 in police cases are the federal counterpart to state claims and that the reasonable 14 force standard under federal law applies equally to state law); Johnson v. County of Los Angeles, — 15 — 340 F.3d 787, 794 (9th Cir. 2003); see Susag v. City of Lake Forest, 94 Cal. App. 4th 1401 , 1415 16 (2002) (the plaintiff’s failure to establish a “seizure” under the Fourth Amendment defeated his 17 state law claims of battery, intentional infliction of emotional distress, and false imprisonment); 18 Avina v. United States, 681 F.3d 1127, 1131 (9th Cir. 2012) (“In California, [state law] claims that 19 police officers used excessive force in the course of an arrest, investigatory stop or other seizure of 20 a free citizen are analyzed under the reasonableness standard of the Fourth Amendment to the 21 United States Constitution.”). 22 Plaintiffs concede that the assault, battery, and negligence claims are predicated on 23 showing that Lau and Fong used unreasonable force. Opp’n at 9–10. Plaintiffs also concede that 24 the negligent infliction of emotional distress claim is based on the negligence claim. Id.; see also 25 Potter v. Firestone Tire & Rubber Co., 863 P.2d 795, 808 (Cal. 1993). As such, without excessive 26 force, all of the state claims fail. 27 /// 1 V. CONCLUSION 2 For the foregoing reasons, the Court GRANTS CCSF’s motion to dismiss for failure to 3 state a claim with prejudice, as Plaintiffs fail to allege any additional meaningful fact in the TAC. 4 This order disposes of Docket No. 53. The Clerk shall enter judgment and close the case. — 5 — 6 IT IS SO ORDERED. — 7 — 8 Dated: May 20, 2022 — 9 — 10 ______________________________________ EDWARD M. CHEN 11 United States District Judge — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 —