Cruz et al v. City of San Diego et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ELIZABETH CRUZ and HILARINO
APARICIO,
Plaintiffs,
v.
CITY OF SAN DIEGO, CALIFORNIA, a
Municipal Corporation; et al.,
Defendants.
Case No.: 24-cv-00287-AJB-MSB
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTIONS TO DISMISS AND TO
STRIKE
(Doc. No. 36)
Presently before the Court is Defendants City of San Diego (the “City”), Chief David
Nisleit, Sergeant Matthew Ruggiero, Officer Jeremy Avalos, and Officer Jonah Tafoya’s
(collectively, “Defendants”) motion to dismiss Plaintiffs Elizabeth Cruz and Hilarino
Aparicio’s (collectively, “Plaintiffs”) Second Amended Complaint (“SAC”), pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure.1 (Doc. No. 36.) Defendants also
seek to strike portions of Plaintiffs’ SAC which they allege are impertinent, immaterial,
and scandalous under Rule 12(f). (Id.) For the reasons stated herein, the Court GRANTS
in part and DENIES in part Defendants’ motions to dismiss and to strike.
1 	All future references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless
otherwise stated.
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I. 	BACKGROUND
This action arises out of the death of Imanol Aparicio (“Decedent”) who was shot
by on-duty police officers on or about November 13, 2023. (SAC, Doc. No. 35, ¶¶ 3, 12.)
Plaintiffs allege that when police officers encountered Decedent, he ran from the police to
evade arrest. (Id. ¶ 33.) In response, Police Officers fired numerous gunshots at Decedent.
(Id. ¶ 13.) After Decedent was shot with the first bullet, he was incapacitated. (Id. ¶ 30.)
Even after the officers saw that Defendant was laying prone and incapacitated, they
continued to fire shots into his body. (Id. ¶¶ 13, 16.)
Plaintiffs further allege that Decedent suffered a serious head injury several years
prior, which may have caused brain damage. (Id. ¶ 33.) At the time of the incident,
Defendants were aware of Decedent’s identity and special needs. (Id.) Plaintiffs allege the
officers did not announce themselves as police prior to the fatal shooting, and did not give
an adequate verbal warning that deadly force would be used. (Id. ¶ 29.) Plaintiffs further
allege that no gun was pointed at police. (Id. ¶ 33.)
Finally, Plaintiffs allege that Defendants City of San Diego, Police Chief David
Nesleit, and Does 1–3 trained police for “combat shooting,” wherein police are trained to
“empty” their gun instead of first employing non-lethal methods. (Id. ¶ 18.) This policy
requires officers to continue shooting a suspect, even after the suspect is incapacitated. (Id.)
Defendants City of San Diego, Police Chief David Nesleit, and Does 1–3 were aware that
California congressional hearings found such a policy and practice to result in excessive
force and death and that, as a result of such findings, California amended state laws to
direct use of non-lethal force as a preference to lethal force. (Id. ¶¶ 48, 59.) Despite being
aware of these findings and directives, Defendants continued to implement and train
officers to implement the policy preferring lethal force, including the policy of emptying
firearms into incapacitated suspects. (Id.)
Plaintiffs now bring this 42 U.S.C. § 1983 case, along with state law claims. Plaintiff
Elizabeth Cruz, the mother of Decedent, sues individually and in her representative
capacity on behalf of Decedent. (Id. ¶ 4) Additionally, Plaintiff Hilarino Aparicio,
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Decedent’s father, sues individually and in his representative capacity. (Id. ¶ 5.) Based on
the allegations, Plaintiffs bring the same eight causes of action against Defendants as raised
in the First Amended Complaint. (See generally id.)
Defendants move to dismiss all of Plaintiffs’ claims pursuant to Rule 12(b)(6) and
to strike certain allegations pursuant to Rule 12(f). (See generally Doc. No. 36.)
II. 	REQUEST FOR JUDICIAL NOTICE
Defendants request the Court take judicial notice of specific allegations within
Plaintiffs’ 	initial 	complaint 	and 	First 	Amended 	Complaint 	(“FAC”), 	recasting 	the
allegations as “admissions” by Plaintiffs. (Doc. Nos. 36-2 at 1-2 (request for judicial
notice); 36-2 at 3–24 (Initial Complaint); 36-2 at 34–54 (First Amended Complaint).)
A court may take judicial notice of court filings. Reyn’s Pasta Bella, LLC v. Visa
USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). “However, while the authenticity and
existence of a particular order, motion, pleading or judicial proceeding, which is a matter
of public record, is judicially noticeable, veracity and validity of its contents are not.”
Esparza v. Kohl’s, Inc., 723 F. Supp. 3d 934, 940 (S.D. Cal. 2024) (internal punctuation
and citation omitted).
The Court does not consider allegations in previous complaints, which have been
amended, as admissions of facts. See Ramirez v. Cnty. Of San Bernardino, 806 F.3d 1002,
1008 (9th Cir. 2015) (“It is well-established in our circuit that an amended complaint
supersedes the original, the latter being treated thereafter as non-existent.”) (quotations
omitted). Accordingly, with the limitation above in mind, the Court GRANTS Defendants’
request (Doc. No. 36-2.) pursuant to Rule 201(c)(2) of the Federal Rules of Evidence and
takes judicial notice of Plaintiffs’ initial Complaint (36-2 at 3-24.) and First Amended
Complaint (Doc. Nos. 36–2 at 34–54.) for the limited purpose of identifying that these
filings and the allegations therein exist.
III. 	MOTION TO DISMISS PURSUANT TO RULE 12(b)(6)
Defendants seek to dismiss Plaintiffs’ SAC against all Defendants pursuant to Rule
12(b)(6) for numerous alleged deficiencies.
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A. 	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., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). To
defeat a motion to dismiss, a complaint must contain “enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550 U.S. at 570. However, “some threshold of
plausibility must be crossed at the outset” before a case can move forward. Id. at 588
(internal quotations and alterations omitted).
Notwithstanding 	this 	deference, 	the 	reviewing 	court 	need 	not 	accept 	legal
conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, “[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. The court only reviews the contents of the second amended 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). “In sum, for a complaint to
survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences
from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.”
Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations and citation
omitted).
B. 	Analysis
The Court will address each of Defendants’ arguments for dismissal in turn.
1. 	Defendants’ Reliance on Plaintiffs’ FAC
As an initial matter, Defendants rely heavily on allegations found within Plaintiffs’
FAC which are not present in the SAC. (See generally Doc. No. 36-1.) This is improper.
See Ramirez, 806 F.3d at 1008 (“It is well-established in our circuit that an amended
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complaint supersedes the original, the latter being treated thereafter as non-existent.”).
Defendants argue that “[a] prior pleading is admissible against the pleader as an
admission” and thus the Court should consider allegations in Plaintiffs’ FAC that do not
exist in Plaintiffs’ SAC. (Doc. Nos. 36-1 at 11; 36-2 at 2 (citing on Andrews v. Metro N.
Commuter R. Co., 882 F.2d 705 (2d Cir. 1989)).) Defendants’ sole basis for this proposition
is a lone Second Circuit case. The Court agrees with Plaintiffs that Defendants’ reliance is
misplaced. (See Doc. No. 38 at 5.) In addition to being non-binding on this Court, Andrews
is unpersuasive in the motion to dismiss context as it addresses the propriety of a district
court’s refusal to permit jurors to (1) be informed that the original complaint was amended
and (2) examine the original complaint so that they could contrast it with the amended
complaint. See Andrews, 882 F.2d at 707.
Regardless of Andrews, the Ninth Circuit has also held that “a statement in a
complaint may serve as a judicial admission” at later stages of litigation. See Sicor Ltd. v.
Cetus Corp., 51 F.3d 848, 859 (9th Cir. 1995) (considering an appeal of summary
judgment). Defendants point to no authority, however, that extends this proposition so far
afield as to undermine the standard for adjudicating Rule 12(b)(6) motions. In fact, “there
is nothing in the Federal Rules of Civil Procedure to prevent a party from filing successive
pleadings that make inconsistent or even contradictory allegations.” PAE Gov’t Servs., Inc.
v. MPRI, Inc., 514 F.3d 856, 860 (9th Cir. 2007); see also Shirley v. Univ. of Idaho, Coll.
of L., 800 F.3d 1193, 1194 (9th Cir. 2015) (Kozinski, J., concurring) (“Inconsistency—
even direct contradiction—between a current complaint and an earlier one is not a basis for
dismissal. 	The 	fact 	that 	the 	earlier 	complaint 	is 	inconsistent 	may 	have 	collateral
consequences in the litigation, including possible sanctions under Rule 11 or undermining
the plaintiff’s credibility, but it does not render the current complaint legally insufficient
under Rule 12(b).”) (citations omitted).
Although the Court has taken judicial notice of the existence of Plaintiffs’ prior
complaints, the factual allegations therein will not be considered in adjudicating the instant
motion. See Salvato v. Ocwen Loan Servicing, LLC, No. 12-CV-0088 JLS POR, 2012 WL
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3018051, at *4 (S.D. Cal. July 24, 2012) (“By striking or discounting the factual allegations
contained in a pleading because they contradict an earlier version, courts would be
improperly adjudicating a claim on the merits.”).2
2. 	Claims Against Officer Defendants
Once again, Defendants seek wholesale dismissal of all claims against Sergeant
Ruggiero and Officers Avalos and Tafoya (collectively, “Officer Defendants”) on the basis
that Plaintiffs fail to allege any actions taken by Officer Defendants. (Doc. No. 36-1 at 9–
10, 14–15.) Plaintiffs bring the excessive force, denial of due process, two wrongful death
claims, and violation of the Bane Act. (Id. at 9–10.)
Plaintiffs respond that “[t]his argument was previously rejected by the Court” so
“Defendant is precluded from rearguing the issue.” (Doc. No. 38 5–6.) However, “[t]he
law of the case doctrine does not apply here.” Askins v. U.S. Dep’t of Homeland Sec., 899
F.3d 1035, 1043 (9th Cir. 2018). “[I]nvoking the law of the case doctrine [on a motion to
dismiss would] . . . h[o]ld plaintiffs to a higher standard than if they had pleaded their
amended complaint originally.” Id. Rather, the Court must “simply . . . consider[] the
amended complaint on its merits.”3 Id.
Considering the substance of Defendants’ argument, Plaintiffs’ SAC states “the
decedent was shot by on-duty Police Officer Defendants above named,” “above named
Police Defendants fired numerous gunshots at Decedent IMANOL APARICIO, including
two shots after he was already down on the ground,” “above named Police Defendants
should have employed non-lethal methods first,” Decedent “posed no immediate threat of
death or serious injury to Defendant Police Officers above named,” “[a]bove named
Defendant Police did not show a reverence for human life, or the constitution or individual
2 	Plaintiffs provide an explanation for the omitted allegations (Doc. No. 38 at 4–5), which
Defendants vehemently oppose (Doc. No. 39 at 2). As Defendants provide no sound legal basis for the
Court to consider allegations outside the SAC on a motion to dismiss, the Court need not wade into the
dispute further at this stage of litigation and on the motion currently before it.
3 	In 	addition 	to 	being 	legally 	unsound, 	Plaintiffs’ 	law-of-the-case 	argument 	is 	logically
irreconcilable with their stance that an amended pleading supersedes the original.
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rights of Decedent to life and liberty,” “above-named police officers were acting on the
supposed and actual permission and consent of Defendant City of San Diego,” and “[t]he
conduct of all named police Defendants and DOES 1–10 was willful, wanton, malicious,
and done with reckless disregard.” (SAC ¶¶ 7, 12–15, 31, 42.)
While still not a model of clarity, Defendants and the Court may infer as to who
Plaintiffs refer. Additionally, the wholesale dismissal of all claims against Sergeant
Ruggiero and Officers Avalos and Tafoya is premature at this stage. Accordingly,
Defendants’ motion to dismiss is DENIED to the extent it seeks wholesale dismissal of all
claims against Officer Defendants.
3. 	Excessive Force Claim
Plaintiffs’ first cause of action is an excessive force claim brought on behalf of
Decedent, as successors in interest to Decedent’s estate, against all Defendants. (SAC
¶¶ 23–36.) Defendants raise several bases as to why the Court should dismiss Plaintiffs’
excessive force claim. Specifically, Defendants assert Plaintiffs fail to plead sufficient facts
to state a claim because Plaintiffs make no allegations of conduct by Defendant Officers,
Plaintiffs rely on conclusory statements only, and Plaintiffs’ claim against Chief Nisleit
and the City are duplicative of their Monell4 claims.5 (Doc. No. 36-1 at 9–13.)
i. 	Failure to State a Claim Against Defendant Officers
“Allegations of excessive force during an investigatory stop or arrest of a free citizen
are examined under the Fourth Amendment’s prohibition against unreasonable seizures.”
Villanueva v. California, 986 F.3d 1158, 1169 (9th Cir. 2021). “At th[e motion to dismiss]
stage, our question is whether the officers employed an ‘objectively unreasonable’ amount
4 	Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1987).
5 	The Court disagrees with Defendants’ characterization that Plaintiffs are pleading a Monell claim
against Chief Nisleit with their first cause of action. Monell claims against municipalities and claims for
supervisory liability against individuals, though similar, are distinct. However, because Plaintiffs allege
the same basis for supervisory liability against Chief Nisleit in their first and third causes of action, namely
his involvement in the “combat shooting” policy, the Court will address the parties’ arguments regarding
the excessive force claim with the subsequent constitutionally violative policy claim. See infra § III.B.5.1.
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of force under the ‘totality of the circumstances.’” Est. of Strickland v. Nevada Cnty., 69
F.4th 614, 619 (9th Cir. 2023) (quoting Brooks v. Clark Cnty., 828 F.3d 910, 920, 922 (9th
Cir. 2016)).
“Determining whether a particular use of force was reasonable ‘requires a careful
balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment
interests against the countervailing governmental interests at stake.’” Villanueva, 986 F.3d
at 1169 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). “To assess the government
interests, we evaluate a range of factors that include (1) the severity of the crime at issue,
(2) whether the suspect posed an immediate threat to the safety of the officers or others
(3) whether he was actively resisting arrest or attempting to evade arrest by flight, and any
other exigent circumstances that existed at the time of the arrest.” Id. (citation and internal
quotation marks omitted); see also Est. of Strickland, 69 F.4th at 619 (“[T]his list isn’t
exhaustive; we may also consider other relevant factors, such as the availability of less
intrusive alternatives to the force employed, whether proper warnings were given, and
whether it should have been apparent to officers that the person they used force against was
emotionally disturbed.”). “In cases involving use of deadly force against a fleeing suspect,
‘the Supreme Court has crafted a more definitive rule,’ allowing an officer to use deadly
force ‘only if the officer has probable cause to believe that the suspect poses a threat of
serious physical harm, either to the officer or to others.’” Villanueva, 986 F.3d at 1169
(quoting Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020)).
Here, Plaintiffs allege that “[w]hen police officers named above encountered
Decedent IMANOL APARICIO[,] he ran from the police to evade arrest.” (SAC ¶ 33.)
“The involved police officers did not announce themselves as police prior to the fatal
shooting.” 	(Id. 	¶ 	29.) 	“After 	Decedent 	was 	shot 	with 	the 	first 	bullet, 	he 	was
incapacitated[;]” however “Defendant police officers continued to fire shots into the
incapacitated body of Decedent[.]” (Id. ¶ 30.) There are no allegations that Decedent had a
weapon of any kind, acted aggressively toward Defendant Officers, or had committed a
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threatening or dangerous crime.6 (See generally SAC.)
Considering the Graham factors, the lethal force used is compared against no
allegations of a crime—let alone a severe crime—and no allegations demonstrating
Decedent posed a threat to the safety of Defendant Officers or others. Decedent was
attempting to evade arrest. However, “the Constitution does not tolerate the use of lethal
force to ‘seize an unarmed, nondangerous suspect by shooting him dead’ in the absence of
probable cause of a threat of serious physical harm.” Est. of Strickland, 69 F.4th at 621
(quoting Torres v. City of Madera, 648 F.3d 1119, 1128 (9th Cir. 2011)). Based on the
totality of the circumstances as set forth in the SAC, Plaintiffs state a claim for excessive
force against Defendant Officers.7 Defendants’ motion to dismiss with regard to the
excessive force claim against Defendant Officers is DENIED.
ii. 	Failure to State a Claim Against the City
Next, Defendants argue Plaintiffs’ excessive force claim as pleaded against the City
is duplicative of their third and fifth Monell claims. (Doc. No. 36-1 at 13.) Plaintiffs fail to
respond to this argument. (See generally Doc. No. 38; see also Doc. No. 39 at 3 (“Plaintiffs
do not address why the excessive force claim is brought against the City of San Diego. The
Court is authorized to find that Plaintiff’s [sic] failure to respond to Defendants’ arguments
means Plaintiffs concedes [sic] the issue.”).)
Under Monell, a municipality such as the City is not liable under § 1983 unless
“official municipal policy of some nature caused a constitutional tort.” 436 U.S. at 691.
More specifically, “it is when execution of a government’s policy or custom, whether made
6 	The crux of Defendants’ argument is based improperly on allegations not within the SAC (see
Doc. No. 36-1 at 10–12), which the Court will not consider, see supra § III.B.1.
7 	Defendants challenge as “conclusory statements” Plaintiffs’ allegations that Decedent posed no
immediate threat of death or serious injury to Defendant Officers, other non-lethal options were available
and would have been sufficient to disable Decedent, and Defendants were aware of Decedent’s special
needs but failed to accommodate those special needs. (Doc. No. 36-1 at 10–12 (citing SAC ¶¶ 15, 32, 33).)
The Court need not resolve the parties’ dispute regarding those allegations as the others not in dispute are
sufficient to state a claim.
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by its lawmakers or by those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id.
at 694.
Considering Plaintiffs’ theory of the City’s liability regarding excessive force is the
policy of “combat shooting,” it is a Monell claim duplicative of the third and fifth causes
of action. As such, the Court GRANTS Defendants’ motion to dismiss the first cause of
action as to the City. See Segura v. City of La Mesa, 647 F. Supp. 3d 926, 940 (S.D. Cal.
2022) (“Courts may dismiss claims that essentially repeat another claim in the same
complaint.”).
4. 	Denial of Due Process Claim
Plaintiffs’ second cause of action asserts violation of Fourteenth Amendment due
process rights to familial association against all Defendants. (SAC ¶¶ 37–42.) Defendants
challenge the clarity of this cause of action pursuant to Rule 8 along with its sufficiency
pursuant to Rule 12(b)(6).
i. 	Clarity
Defendants premise their first attacks on the basis that the claim is being brought on
behalf of Decedent and a single Plaintiff. (Doc. No. 36-1 at 14.) To the extent the claim is
brought on behalf of Decedent, Defendants assert it is duplicative of the excessive force
claim, as the Court previously ruled. (Id.) To the extent it is brought on behalf of a single
Plaintiff, Defendants assert the claim violates Rule 8 because it is unclear which of the two
named Plaintiffs is asserting this claim. (Id.)
Plaintiffs assert that they have amended the second cause of action to clarify that it
is brought by Plaintiffs in their individual capacity and not brought on behalf of the
decedent.” (Doc. No. 38 at 10–11.) “The claim is for a depr[i]vation of familial
companionship without due process of law,” which “is distinct from a claim arising under
the Fourth Amendment.” (Id.)
Despite their assertion to the contrary, Plaintiffs did not in fact amend the complaint
to remove Decedent’s name. As noted by Defendants, the second cause of action is now
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“brought by Plaintiffs Imanol Aparicio,” who is the decedent, “and Plaintiff for a violation
of their right to due process of law before removing familial rights.” (SAC ¶ 38.)
Considering Plaintiffs expressly disavow bringing this cause of action on behalf of
Decedent and the Court’s prior order finding such a claim brought on behalf of Decedent
to be duplicative of the Fourth Amendment claim, the Court GRANTS Defendants’ motion
to dismiss and DISMISSES with prejudice the second cause of action to the extent it is
pleaded on behalf of Decedent. The Court disagrees with Defendants that Plaintiffs’ use of
the singular rather than plural in one paragraph makes the cause of action unintelligible
such that it violates Rule 8. However, the Court GRANTS Plaintiffs leave to amend ¶ 38
of the SAC to clarify which specific Plaintiff, or both, bring the second cause of action and
to remove mention of Decedent.
ii. 	Failure to State a Claim Against Defendant Officers
In turning to the substance of Plaintiffs’ second cause of action, the Court will
consider whether the factual allegations state a Fourteenth Amendment claim for either
Plaintiff.
“This circuit has recognized that parents have a Fourteenth Amendment liberty
interest in the companionship and society of their children.” Wilkinson v. Torres, 610 F.3d
546, 554 (9th Cir. 2010) (citing Curnow ex rel. Curnow v. Ridgecrest Police, 952 F.2d 321,
325 (9th Cir. 1991)). “A claim asserting that police officers violated these Fourteenth
Amendment rights during a police shooting must show that the officers’ conduct ‘shocks
the conscience.’” Ochoa v. City of Mesa, 26 F.4th 1050, 1056 (9th Cir. 2022) (quoting
Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008)). To determine whether conduct
shocks the conscience, “the court must first ask ‘whether the circumstances are such that
actual deliberation by the officer is practical.’” Wilkinson, 610 F.3d at 554 (quoting Porter,
546 F.3d at 1137) (internal punctuation omitted).
“On one hand, the deliberate-indifference test applies if the situation at issue
‘evolved in a time frame that permits the officer to deliberate before acting.’” Ochoa, 26
F.4th at 1056 (quoting Porter, 546 F.3d at 1137). “On the other hand, where a law
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enforcement officer makes a snap judgment because of an escalating situation, his conduct
may only be found to shock the conscience if he acts with a purpose to harm unrelated to
legitimate 	law 	enforcement 	objectives.” 	Wilkinson, 	610 	F.3d 	at 	554. 	“Illegitimate
objectives include ‘when the officer had any ulterior motives for using force against the
suspect, such as to bully a suspect or get even, or when an officer uses force against a
clearly harmless or subdued suspect.’” Ochoa, 26 F.4th at 1056 (quoting Foster v. City of
Indio, 908 F.3d 1204, 1211 (9th Cir. 2018)).
Defendants argue that “Plaintiffs failed to plead any factual basis to support the
requisite intent,” which Defendants assert is the purpose-to-harm standard because the
officers were making snap judgments in an escalating situation. (Doc. No. 36-1 at 15.)
Defendants additionally argue that the alleged conduct “was clearly related to legitimate
law enforcement objectives[.]” (Id.)
In opposition, Plaintiffs argue that they have alleged sufficient facts to state a claim
under either the purpose-to-harm or deliberate-indifference standards because Defendants
fired the initial shot when no one’s safety was in danger and the subsequent shots were
fired after Decedent was incapacitated. (Doc. No. 38 at 11.) “Each shot left the officers
time to reflect and evidence both an intent to harm and indifference to the decedent’s life
and safety—thus to his parents right to companionship with their son.” (Id.) “The conduct
of the officers both shocks the conscience and demonstrate an indifference to the life and
safety of decedent.” (Id.)
Looking to the factual allegations of the SAC, Decedent was fleeing Defendant
Officers, unarmed and without any indications that he posed a threat deadly or otherwise.
Under such circumstances, the deliberate indifference standard applies. Defendant Officers
“use[d] force against a clearly harmless” and subsequently clearly “subdued suspect,” thus
they “act[ed] with a purpose to harm unrelated to legitimate law enforcement objectives.”
See Ochoa, 26 F.4th at 1056. Therefore, either Plaintiff has stated a Fourteenth Amendment
due process claim against Defendant Officers based on loss of familial association. The
Court DENIES Defendants’ motion to dismiss on this ground.
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iii. 	Failure to State a Claim Against Chief Nisleit and the City
Defendants seek to dismiss the second cause of action as to Chief Nisleit and the
City because there are no allegations against either found therein, so “[i]t is unknown under
what basis Plaintiffs purport to bring this claim[.]” (Doc. No. 36-1 at 15–16.) Plaintiffs fail
to address this argument with regard to this cause of action. (See generally Doc. No. 38;
see also Doc. No. 39 (“Plaintiffs do not address why the Fourteenth Amendment claim also
names Chief Nisleit and the City as Defendants.”).)
The Court GRANTS Defendants’ motion to dismiss this cause of action as to Chief
Nisleit and the City.
5. 	Custom, Policy, & Practice of Lethal Force
Plaintiffs’ third cause of action asserts Chief Nisleit and the City maintained a
custom, policy, and practice of using lethal force before non-lethal force in violation of
Decedent’s Fourth Amendment and Plaintiffs’ Fourteenth Amendment rights. (SAC ¶¶ 43–
56.)
i. 	Failure to State a Claim Against Chief Nisleit
Defendants assert that Plaintiffs fail to state a claim against Chief Nisleit in his
individual capacity because “they fail[] to allege sufficient facts.” (Doc. No. 36-1 at 18.)
Specifically, Defendants argue “Plaintiffs cite no cases of San Diego officers unnecessarily
using lethal force by ‘continuing to fire bullets into suspects after they are incapacitated.’”
(Id.)
“A supervisory official may be held liable under § 1983 only ‘if there exists either
(1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient
causal connection between the supervisor’s wrongful conduct and the constitutional
violation.’” Keates v. Koile, 883 F.3d 1228, 1242–43 (9th Cir. 2018) (quoting Starr v.
Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). “Under the latter theory, supervisory liability
exists even without overt personal participation in the offensive act if supervisory officials
implement a policy so deficient that the policy itself is a repudiation of constitutional
rights’ and is the moving force of a constitutional violation.” Crowley v. Bannister, 734
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F.3d 967, 977 (9th Cir. 2013) (cleaned up); see also Rodriguez v. Cnty. of L.A., 891 F.3d
776, 798 (9th Cir. 2018) (quoting Starr, 652 F.3d at 1207–08) (cleaned up) (“The requisite
causal connection can be established by setting in motion a series of acts by others or by
knowingly refusing to terminate a series of acts by others, which the supervisor knew or
reasonably should have known would cause others to inflict a constitutional injury.”).
In the third cause of action, Plaintiffs allege:
For some time prior to 11/13/2023, Defendants City of San Diego, Police
Chief David N[i]sleit, and Does 1-3 trained police for “combat shooting”–
empty the gun instead of non-lethal methods being employed as first option.
The policy expressly calls for continuing to fire bullets into suspects after they
are incapacitated. This practice and policy violates the Fourth, Fifth, and 14th
Amendments to the United States Constitution as well as California Penal
Code Section 835. This is the policy of the City of San Diego and San Diego
Police Department, which is advances and approved of by Police Chief David
N[i]sleit, and constitutes a reckless disregard for the constitutional rights of
suspects and their family.
Defendants City of San Diego, Police Chief David Nesleit, and Does 1-3 were
aware of the policy and State congressional hearings finding such policies and
practice resulted in excessive force and death and directed non-lethal method
be employed in preference to lethal force. In spite of the State legislative
findings and amendments to the law in the State of California, Defendants,
and each of them continued with the policy of lethal forces as a preference in
their training and policy, including emptying firearms into incapacitated
suspects who were in no position to pose a danger to law enforcement or the
public after being incapacitated.
By reason of the policies and practices of Defendants City of San Diego and
the 	Police 	Chief 	David 	Nesleit 	Imanol 	Aparicio, 	and 	DOES 	1-10,
DECEDENT was severely injured and subjected to pain and suffering and lost
his life.
(SAC ¶¶ 47–49.)
Plaintiffs allege that Chief Nisleit trained officers on a “combat shooting” policy,
wherein police are trained to “empty” their gun instead of first employing non-lethal
methods and to continue shooting even after a suspect is incapacitated. (SAC ¶¶ 18, 47.)
Defendants argue that “emptying a firearm into a suspect is not necessarily unconstitutional
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but depends on the Graham factors.” (Doc. No. 39 at 4.) However, Plaintiffs do not allege
a policy that is metered by circumstances, but rather a policy where the response is
uniformly lethal. Such a policy, taken as true, would be so deficient as to be a repudiation
of the Constitution and the rights protected therein. See Crowley, 734 F.3d at 977. Finally,
Plaintiffs 	provide 	sufficient 	allegations 	that 	this 	“combat 	shooting” 	policy 	was
implemented by Defendant Officers who shot and killed Decedent by continuing to shoot
even after Decedent was incapacitated, making the policy the moving force behind the
constitutional violations.8 (See SAC ¶¶ 13, 16, 49.) See also Crowley, 734 F.3d at 977.
The Court DENIES Defendants’ motion to dismiss the third cause of action as to
Chief Nisleit. However, Plaintiffs’ first cause of action alleges the same theory of
supervisory 	liability 	against 	Chief 	Nisleit 	with 	regard 	only 	to 	Decedent’s 	Fourth
Amendment rights. (See SAC ¶ 30; see also Doc. Nos. 36-1 at 13 (Defendants arguing the
claims are duplicative); Doc. No. 38 (Plaintiffs failing to respond to this argument.)
Because such a claim is entirely subsumed in the third cause of action, the Court GRANTS
Defendants’ motion to dismiss the first cause of action as to Chief Nisleit. See Segura, 647
F. Supp. 3d at 940.
ii. 	Failure to State a Claim Against the City
Defendants assert that Plaintiffs fail to state a claim against the City because they do
“not establish a constitutional violation,” they do “not plead facts to establish the
persistency of this alleged policy,” and the claim “appears to be alleging a failure to
adequately train, which is redundant of Plaintiff’s [sic] next claim.” (Doc. No. 36-1 at 17.)
“The Supreme Court in Monell held that municipalities may only be held liable
under section 1983 for constitutional violations resulting from official county policy or
custom.” Benavidez v. Cnty. of S.D., 993 F.3d 1134, 1153 (9th Cir. 2021). “In order to
8 	Considering that the third cause of action is brought by Plaintiffs on behalf of Decedent and on
behalf of themselves (see SAC ¶ 47), the constitutional violations at issue are a violation of Decedent’s
Fourth Amendment right to be free from excessive force and a violation of Plaintiffs’ Fourteenth
Amendment due process right, both of which Plaintiffs have sufficiently pleaded, see supra § III.B.3–4.
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establish liability for governmental entities under Monell, a plaintiff must prove ‘(1) that
the plaintiff possessed a constitutional right of which she was deprived; (2) that the
municipality had a policy; (3) that this policy amounts to deliberate indifference to the
plaintiff’s constitutional right; and, (4) that the policy is the moving force behind the
constitutional violation.’” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011)
(quoting Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir.1997)).
“The Supreme Court has made clear that policies can include written policies, unwritten
customs and practices, failure to train municipal employees on avoiding certain obvious
constitutional violations, and, in rare instances, single constitutional violations are so
inconsistent with constitutional rights that even such a single instance indicates at least
deliberate indifference of the municipality.” Benavidez, 993 F.3d at 1153 (internal citations
omitted).
As the Court has found that Plaintiffs have sufficiently pleaded a Fourth Amendment
claim on behalf of Decedent and a Fourteenth Amendment claim on behalf of themselves,
the first element is met. With regard to the second element, Plaintiffs allege that the City
has a formal policy of “combat shooting,” wherein police are trained to “empty” their gun
instead of first employing non-lethal methods and to continue shooting even after a suspect
is incapacitated. (SAC ¶¶ 18, 47.) Considering the third element, such a policy—if taken
as true—would amount to deliberate indifference to both Decedent’s right to be free of
excessive force and Plaintiffs’ rights to due process, especially because Plaintiffs allege
that the City was aware of, but disregarded, California congressional findings and laws
disavowing such policies. (See id. ¶¶ 18, 48, 59.) Finally, under the circumstances alleged
in the operative complaint, this “combat shooting” policy was implemented by Defendant
Officers who shot and killed Decedent by continuing to shoot even after Decedent was
incapacitated.9 (See SAC ¶¶ 13, 16, 49.) Plaintiffs have pleaded sufficient facts in their
9 	The allegations that the City trained officers on this policy supports that the policy was the moving
force behind Decedent’s death; it does not make the claim duplicative of the fifth cause of action as
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third cause of action to allege a Monell claim against the City.
Though cloaked in the language of a motion to dismiss, the majority of Defendants’
argument challenges whether Plaintiffs have sufficiently demonstrated the actual existence
of the policy. (See Doc. No. 36-1 at 16–17 (relying on case law addressing such claims on
summary judgment).) Such an argument is improper on a motion to dismiss where factual
allegations are taken as true.
The Court DENIES Defendants’ motion to dismiss the third cause of action as to
the City.
6. 	Failure to Train
Plaintiffs’ fifth cause of action asserts Chief Nisleit and the City failed to properly
train police officers regarding use of deadly force. (SAC ¶¶ 57–66.)
“Failure to train may constitute a basis for Monell liability where the failure amounts
to deliberate indifference to the rights of those who deal with municipal employees.”
Benavidez v. Cnty. of S.D., 993 F.3d 1134, 1153 (9th Cir. 2021). “To allege a failure to
train, a plaintiff must include sufficient facts to support a reasonable inference (1) of a
constitutional violation; (2) of a municipal training policy that amounts to a deliberate
indifference to constitutional rights; and (3) that the constitutional injury would not have
resulted if the municipality properly trained their employees.” Id. at 1153–54. “To prevail
on a claim of supervisory liability for failure to train, the plaintiff must show that the
official was ‘deliberately indifferent to the need to train subordinates, and the lack of
training actually caused the constitutional harm or deprivation of rights.’” Hyde v. City of
Willcox, 23 F.4th 863, 874 (9th Cir. 2022) (quoting Flores v. Cnty. of L.A., 758 F.3d 1154,
1159 (9th Cir. 2014)). Although a “pattern of similar constitutional violations by untrained
employees is ordinarily necessary to demonstrate deliberate indifference for purposes of
failure to train[,]” Connick v. Thompson, 563 U.S. 51, 62 (2011), “the need to train officers
Defendants assert (see Doc. No. 36-1 at 17).
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in the constitutional limitations on the use of deadly force can be said to be ‘so obvious,’
that failure to do so could properly be characterized as ‘deliberate indifference’ to
constitutional rights[,]” City of Canton, Ohio v. Harris, 489 U.S. 378, 390 n.10 (1989)
(citing Tennessee v. Garner, 471 U.S. 1 (1985)).
Defendants assert a laundry list of alleged deficiencies with little to no explanation.
(See Doc. No. 36-1 at 18–19.) Specifically, Defendants argue (1) Plaintiffs’ allegations are
“conclusory,” “vague,” and “devoid of factual content to support this claim,” (2) “Plaintiffs
misapply federal Constitutional law and attempt to use a change in state law to support a
Constitutional 	claim,” 	(3) 	“Plaintiffs 	fail[] 	to 	allege 	a 	constitutional 	violation,”
(4) “Plaintiffs fail to allege any pattern of similar constitutional violations that would
support a finding of deliberate indifference,” and (5) “a list of officer-involved shootings
does not establish that these incidents were substantially similar to Decedent’s.” (Id.)
However, as discussed supra, the Court has found that Plaintiffs have sufficiently
alleged 	a 	Fourth 	Amendment 	violation 	on 	behalf 	of 	Decedent 	and 	a 	Fourteenth
Amendment violation on behalf of themselves. Contrary to Defendants’ assumptions
regarding the necessity of a pattern, Plaintiffs allege the City and Chief Nisleit trained
officers in a “combat shooting” policy—an action that, if taken as true, “could properly be
characterized as deliberate indifference” because the policy fails “to train officers in the
constitutional limitations on the use of deadly force” but rather requires the use of such
force. See Canton, 489 U.S. at 390 n.10.
As with the third cause of action which is based on the same facts, Plaintiffs have
pleaded sufficient facts in their fifth cause of action to allege both a Monell claim against
the City and a supervisory liability claim against Chief Nisleit for failure to train officers
with regard to the use of lethal force. Accordingly, the Court DENIES Defendants’ motion
as to the fifth cause of action.
7. 	Wrongful Death
Plaintiffs’ sixth and seventh causes of action allege wrongful death pursuant to
California common and statutory law. (See SAC ¶¶ 67–79.) As a threshold matter,
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Defendants assert that the two claims are duplicative of each other. (Doc. No. 36-1 at 20.)
Plaintiffs misapprehend Defendants’ stance by arguing the sixth cause of action is not
duplicative of the § 1983 claims that precede it. (Doc. No. 38 at 19–20.) Based on both the
allegations of the SAC and on Plaintiffs’ explanation thereof, the Court finds the sixth and
seventh causes of action are duplicative.
Turning to the substance of the wrongful death causes of action, Defendants assert
the claims fail as a matter of law because Defendant Officers’ use of force was reasonable
based on the totality of the circumstances. (See Doc. No. 36-1 at 20.) The crux of
Defendants’ argument, again, is based improperly on allegations not within the SAC (see
Doc. No. 36-1 at 10–12), which the Court will not consider, see supra § III.B.1.
“The elements of a wrongful death action are the underlying tort (in this case,
battery), a resulting death, and damages.” B.B. v. Cnty. of L.A., 10 Cal. 5th 1, 31 (2020)
(Liu, J., concurring). “The elements of civil battery are: (1) defendant intentionally
performed an act that resulted in a harmful or offensive contact with the plaintiff’s person;
(2) plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused
injury, damage, loss or harm to plaintiff.” A.B. v. Cnty. of S.D., 112 Cal. App. 5th 404, 416
(2025), as modified on denial of reh’g (July 18, 2025). Plaintiffs’ “common law battery
cause of action, like [their] section 1983 claim, requires proof that [Defendant Officers]
used unreasonable force.” See Yount v. City of Sacramento, 43 Cal. 4th 885, 902 (2008);
see also Hayes v. Cnty. of S.D., 57 Cal. 4th 622, 629 (2013) (“This court has long
recognized that peace officers have a duty to act reasonably when using deadly force.”).
As discussed supra § III.B.3, Plaintiffs’ allegations, accepted as true, are sufficient
to state a claim that Defendant Officers’ use of lethal force under the circumstances was
unreasonable. As such, Defendants’ motion to dismiss the seventh cause of action is
DENIED as to Defendant Officers.
The seventh cause of action is brought against Chief Nisleit and the City as being
“vicariously 	liable.” 	(SAC 	¶¶ 	73, 	78.) 	Plaintiffs’ 	allegations 	that 	Chief 	Nisleit 	is
“vicariously liable” due to his official capacity as Chief of Police are properly brought
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against the City pursuant to California Government Code § 815.2(a). (See Doc. No. 36-1
at 19–20 (“To the extent Plaintiffs bring these claims against Chief Nisleit in his official
capacity, they are duplicative of the claims against the City. No facts establish a special
relationship between Chief Nisleit and Plaintiffs or Decedent.”).) Accordingly, the Court
GRANTS Defendants’ motion to dismiss the seventh cause of action as to Chief Nisleit
only and DENIES the motion as to the City.
Considering that the sixth cause of action is duplicative of the seventh cause of action
and the Court has found the latter states a claim, the Court GRANTS Defendants’ motion
to dismiss the sixth cause of action in its entirety. See Segura, 647 F. Supp. 3d at 940.
8. 	Negligent Failure to Train
Plaintiffs’ eighth cause of action asserts that “all the Defendants were negligent” for
(a) failure to train employees concerning the use of force, (b) failure to assess the need to
detain, arrest, and use force, (c) in their tactics and handling of the situation with Decedent,
(d) the detention, arrest, and use of force against Decedent, (e) failure to give appropriate
verbal warnings prior to shooting, and (f) failure to properly train and supervise all
employees. (SAC ¶¶ 80–82.)
Defendants assert the claim must be dismissed as to Chief Nisleit and the City
because “Plaintiffs fail[] to plead any factual support for supervisory liability,” “facts to
establish a special relationship resulting in any duty,” or facts to establish “any relationship
between a failure to train and any resulting harm.” (Doc. No. 36-1 at 20–21.) Defendants
also argue that the claim must be dismissed against the City to the extent it is brought
directly as “[t]here is no statutory basis for direct liability against a public entity for
negligent hiring, training, or supervision.” (Id. at 21 (citing de Villers v. Cnty. of S.D., 156
Cal. App. 4th 238, 252 (2007)).) Finally, Defendants argue that the claim must be dismissed
to the extent Plaintiffs seek to bring it on behalf of themselves as it is a survivor claim. (Id.)
Plaintiffs opposition consists of quoting Hayes v. Cnty. of S.D., 57 Cal. 4th 622
(2013), for approximately two pages, followed by four lines of argument and five lines
quoting the cause of action:
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In 2020, AB 392 amended the standards of the duty of law enforcement in
using force. The City of San Diego and Sherriff’s Department ignored the
change in State policy and limits and continued their preference for lethal
violence. Decedent was totally disable, specifically including: Negligent
tactics and handling of the situation with DECEDENT, including pre-shooting
negligence; The negligent detention, arrest, and use of force, including deadly
force, against Decedent, Imanol Aparicio; The failure to give an appropriate
verbal warning prior to shooting; and the failure to properly train and
supervise all police employees.
(Doc. No. 38 at 23.)
The eighth cause of action entirely lacks factual allegations and relies exclusively
on conclusory statements.10 Accordingly, the Court GRANTS Defendants’ motion on this
ground and DISMISSES without prejudice Plaintiffs’ eighth cause of action as to all
Defendants.
9. 	Bane Act
Plaintiffs’ final cause of action alleges that “[a]ll [D]efendants” violated the Bane
Act when Defendant Officers used deadly force without proper warning, where Decedent
did not pose an threat to anyone, had not verbally threatened anyone, and after the initial
shots was disabled on the ground, which demonstrated a reckless disregard for Decedent’s
constitutional rights. (See SAC ¶¶ 83–89.)
The Bane Act “provides a cause of action for violations of a plaintiff’s state or
federal civil rights committed by ‘threats, intimidation, or coercion.’” Chaudhry v. City of
L.A., 751 F.3d 1096, 1105 (9th Cir. 2014) (quoting Cal. Civ. Code § 52.1). “The elements
of a Bane Act claim are essentially identical to the elements of a § 1983 claim, with the
added requirement that the government official had a ‘specific intent to violate’ a
constitutional right.” Hughes v. Rodriguez, 31 F.4th 1211, 1224 (9th Cir. 2022).
///
///
10 	The Court notes it also suffers from impermissible group pleading and an overall lack of clarity.
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“The specific intent inquiry for a Bane Act claim is focused on two questions: First,
‘[i]s the right at issue clearly delineated and plainly applicable under the circumstances of
the case,’ and second, ‘[d]id the defendant commit the act in question with the particular
purpose of depriving the citizen victim of his enjoyment of the interests protected by that
right?’” Sandoval v. Cnty. of Sonoma, 912 F.3d 509, 520 (9th Cir. 2018) (quoting Cornell
v. City & Cnty. of S.F., 17 Cal. App. 5th 766, 803 (2017)). However, “such intent can be
proven by evidence of recklessness.” S.R. Nehad v. Browder, 929 F.3d 1125, 1142 n.15
(9th Cir. 2019).
Defendants assert that “Plaintiffs’ allegations are conclusory” and that, “[b]ecause
Plaintiffs did not properly plead a violation of Decedent’s Constitutional rights, there is no
Bane Act violation.” (Doc. No. 36-1 at 21.) Defendants also argue that the claim should be
dismissed specifically as to Chief Nisleit as there are no allegations regarding him. (Id. at
19.)
Despite alleging this cause of action against “all defendants,” Plaintiffs fail to plead
any allegations regarding the actions, inactions, or basis of liability for the City or Chief
Nisleit. As such, Plaintiffs fail to state a Bane Act claim against either the City or Chief
Nisleit. However, contrary to Defendants’ wholesale dismissal, Plaintiffs have alleged a
violation of Decedent’s Fourth Amendment rights by Defendant Officers and pleaded
sufficient facts to support that Defendant Officers acted with reckless disregard. See, e.g.,
Bradley v. City of S.D., No. 3:24-CV-01216-CAB-JLB, 2025 WL 20437, at *4 (S.D. Cal.
Jan. 2, 2025) (“Taking these allegations as true and drawing all reasonable inferences in
Plaintiff’s favor, the Court cannot imagine that such conduct by Officer Doe could not
plausibly constitute an intentional, coercive act.”). Thus, Plaintiffs state a Bane Act claim
against Defendant Officers. Accordingly, the Court GRANTS Defendants’ motion to
dismiss the ninth cause of action as to the City and Chief Nisleit and DENIES the motion
on this ground with respect to Defendant Officers.
///
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10. 	Service
Finally, Defendants seek to dismiss all claims against Doe defendants pursuant to
Rule 4(m), asserting that the service of process has not yet been effectuated despite the
ninety-day deadline well elapsing. (Doc. No. 36-1 at 9.)
Having only cited Rules 12(b)(6) and 8 as the basis of their motion, Defendants fail
to provide the appropriate standard for such a request: Rule 12(b)(5). Regardless, pursuant
to Rule 4(m)—
If a defendant is not served within 90 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure,
the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). “[A]t minimum, ‘good cause’ means excusable neglect,” requiring
“(a) the party to be served received actual notice of the lawsuit; (b) the defendant would
suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were
dismissed.” In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001) (quoting Boudette v. Barnette,
923 F.2d 754, 756 (9th Cir. 1991)). However, even “if there is no good cause, the court has
the discretion to dismiss without prejudice or to extend the time period.” In re Sheehan,
253 F.3d at 512; see also Henderson v. United States, 517 U.S. 654, 658, 116 S. Ct. 1638,
1641, 134 L. Ed. 2d 880 (1996) (“Rule 4(m) . . . permits a district court to enlarge the time
for service even if there is no good cause shown.”). “In making extension decisions under
Rule 4(m) a district court may consider factors like a statute of limitations bar, prejudice
to the defendant, actual notice of a lawsuit, and eventual service.” Efaw v. Williams, 473
F.3d 1038, 1041 (9th Cir. 2007) (citation omitted).
Plaintiffs argue that good cause for an extension “exists where the Court[’]s docket
causes a delay in hearing on a motion to dismiss beyond the 90-day period” because “Rule
26(b)(1) stays any discovery until after the Rule 26 Conference.” (Doc. No. 38 at 3.)
Under the circumstances of the instant case, Plaintiffs’ argument is well taken.
Defendants ostensibly hold the information pertaining to the identity of any Doe defendants
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and Defendants are under no obligation to proffer such information at this stage. Thus, until
Plaintiffs’ complaint survives the motion to dismiss stage, Plaintiffs are constrained to a
holding pattern respecting the process of the courts while the time ticks past. Defendants
fail assert that an extension would prejudice them. Due to the multiple rounds of motions
to dismiss, the Court has concerns that dismissal of any Doe defendants at this time, even
without prejudice, would have implications for Plaintiffs due to the statute of limitations
on their claims. See Wheeler v. City of Santa Clara, 894 F.3d 1046, 1059 (9th Cir. 2018)
(applying California’s two-year statute of limitations to § 1983 survivor and wrongful
death claims).
Accordingly, the Court DENIES Defendants’ motion to dismiss the Doe defendants
for lack of service and GRANTS Plaintiffs’ request for an extension of time. Plaintiffs
must serve any Doe defendants within thirty days of a Scheduling Order being issued by
the Court.
IV. 	MOTION TO STRIKE PURSUANT TO RULE 12(f)
Defendants move to strike myriad aspects of the SAC as immaterial, impertinent, or
otherwise improper. (Doc. No. 36-1 22–24.)
Federal Rule of Civil Procedure 12(f) permits a court to strike from any pleading
“any redundant, immaterial, impertinent, or scandalous matter.” Fed R. Civ. P. 12(f).
“[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money
that must arise from litigating spurious issues by dispensing with those issues prior to
trial[.]” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). However,
“Rule 12(f) is neither an authorized nor a proper way to procure the dismissal of all or a
part of a complaint.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir.
2010) (quoting 	Yamamoto 	v. Omiya, 564 	F.2d 1319, 1327 	(9th 	Cir. 1977)). The
“‘immaterial’ [i]s that which has no essential or important relationship to the claim for
relief or the defenses being plead.” Petrie v. Elec. Game Card, Inc., 761 F.3d 959, 967 (9th
Cir. 2014) (citation and internal quotation marks omitted). “‘Impertinent’ matter consists
of statements that do not pertain, and are not necessary, to the issues in question.” Quintara
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Biosciences, Inc. v. Ruifeng Biztech, Inc., 149 F.4th 1081, 1089 (9th Cir. 2025) (citation
omitted). “Motions to strike are ‘generally disfavored because they are often used as
delaying tactics and because of the limited importance of pleadings in federal practice.’”
Corbett v. Pharmacare U.S., Inc., 544 F. Supp. 3d 996, 1004 (S.D. Cal. 2021) (quoting
Cortina v. Goya Foods, Inc., 94 F. Supp. 3d 1174, 1182 (S.D. Cal. 2015)).
First, Defendants move to strike references to the Fifth Amendment as “inapplicable
based on the facts alleged.” (Doc. No. 36-1 at 22–23.) In opposition, Plaintiffs assert that
“due process of law under the Fifth Amendment is the proper Standard for assessing the
Individual Plaintiff’s [sic] claims.” (Doc. No. 38 at 25.)
Because Plaintiffs allege violations of the Fifth Amendment throughout the SAC,
references to the Fifth Amendment are neither immaterial, see Petrie, 761 F.3d at 967, nor
impertinent, see Quintara Biosciences, 512 F.3d at 1174. To the extent Defendants assert
Plaintiffs’ Fifth Amendment allegations fail to state a claim or fail as a matter of law, a
Rule 12(b)(6) motion or Rule 56 motion would be the proper vehicle, not a motion to strike.
See Whittlestone, 618 F.3d at 974 (“Were we to read Rule 12(f) in a manner that allowed
litigants to use it as a means to dismiss some or all of a pleading (as [Defendants] would
have us do here), we would be creating redundancies within the Federal Rules of Civil
Procedure, because a Rule 12(b)(6) motion (or a motion for summary judgment at a later
stage in the proceedings) already serves such a purpose.”). Accordingly, Defendants’
motion to strike references to the Fifth Amendment is DENIED.
Similarly, Defendants seek to strike reference to California Penal Code § 83511 as
“immaterial and impertinent” because [t]he violation of a California law which creates
protections that go beyond that guaranteed by federal law cannot serve as a basis for a
§ 1983 claim.” (Doc. No. 36-1 at 22–23.) The SAC alleges that Defendants’ policy of
11 	“An arrest is made by an actual restraint of the person, or by submission to the custody of an
officer. The person arrested may be subjected to such restraint as is reasonable for his arrest and
detention.” Cal. Pen. Code § 835.
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“combat shooting” violates the U.S. Constitution and the California Penal Code, to which
Defendants 	recklessly 	disregarded. 	The 	reference 	relates 	to 	Plaintiffs’ 	claims 	that
Defendants acted with culpable intent. However, here again, the heart of Defendants’
argument appears to challenge the merits of Plaintiffs’ allegation, for which a motion to
strike is the improper vehicle. Defendants’ motion to strike reference to California Penal
Code § 835 is DENIED.
Defendants seek to strike the sole reference to 42 U.S.C. §§ 1985 and 1986 as
immaterial because Plaintiffs do not bring any claims under those statutes. (Doc. No. 36-1
at 22–23.) Plaintiffs fail to substantively address this argument. (See generally Doc. No.
38.) In contrast to Plaintiffs’ references to the Fifth Amendment, the SAC only references
42 U.S.C. §§ 1985 and 1986 once as a basis of jurisdiction despite not alleging any claims
pursuant to either statute. (See SAC ¶ 1.) The reference to 42 U.S.C. §§ 1985 and 1986 is
immaterial. The Court GRANTS Defendants’ motion to strike reference to 42 U.S.C.
§§ 1985 and 1986.
Next, Defendants seek to strike references to “all improperly pleaded damages,”
including the prayer for punitive damages sought against the City and Chief Nisleit acting
in his official capacity. (Doc. No. 36-1 at 22–24.) “Rule 12(f) does not authorize district
courts to strike claims for damages on the ground that such claims are precluded as a matter
of law.” Whittlestone, 618 F.3d at 974–75. Accordingly, the Court DENIES Defendants’
motion to strike Plaintiffs’ damages requests.
Finally, Defendants seek to strike certain allegations of negligence as “impertinent
and immaterial” that “are not actionable” and “confuse the claim” of negligent failure to
train. (Doc. No. 36-1 at 23–24.) The allegations relate to Plaintiffs’ alternative theory of
negligent failure to train. As such, they are not immaterial or impertinent. Whether that
theory is actionable is not the proper question for a motion to strike. Defendants’ motion
to strike Plaintiffs’ allegations of negligence is DENIED.
///
///
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V. 	CONCLUSION
Based on the foregoing reasons, Court GRANTS in part and DENIES in part
Defendants’ motions to dismiss and to strike. (Doc. No. 36.) The Court ORDERS as
follows:
1. 	The Court GRANTS Defendants’ request for judicial notice (Doc. No. 36-2)
2. 	Defendants’ motion to dismiss is GRANTED as to:
a. 	The first cause of action as to the City and Chief Nisleit;
b. 	The second 	cause of action to the extent that it 	is pleaded 	on
behalf of Decedent;
c. 	The second cause of action as to Chief Nisleit and the City;
d. 	The sixth cause of action in its entirety;
e. 	The seventh cause of action as to Chief Nisleit only;
f. 	The eighth cause of action as to all Defendants; and
g. 	The ninth cause of action as to the City and Chief Nisleit.
3. 	Defendants’ motion to dismiss is DENIED in all other respects.
4. 	Defendants’ motion to strike is GRANTED with regard to the reference to 42
U.S.C. §§ 1985 and 1986 (SAC ¶ 1) and DENIED with regard to all other requests.
5. 	Plaintiffs are GRANTED leave to amend for the limited purposes of:
a. 	Removing reference to 42 U.S.C. §§ 1985 and 1986 in ¶ 1 of the SAC.
b. 	Clarifying ¶ 38 of the SAC by (i) identifying which specific Plaintiff,
or both, bring the second cause of action and (ii) removing mention of Decedent;
c. 	Amending the eighth cause of action to state a claim and to conform
with Rule 8; and
d. 	Amending the ninth cause of action as to the City and Chief Nisleit;
6. 	Plaintiffs are GRANTED an extension of time to serve any Doe defendants
until thirty days of a Scheduling Order being issued by the Court.
7. 	If Plaintiffs choose to file an amended complaint, it must comply with the
limited leave granted herein and be filed no later than February 13, 2026. Plaintiffs must
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concurrently file a red-lined version of the amended complaint in compliance with Civil
Local Rule 15.1.c. If Defendants wish to respond to the amended complaint pursuant to
Rule 12, such a motion must be limited to the causes of action which Plaintiffs
substantively amended.
IT IS SO ORDERED.
Dated: January 30, 2026
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