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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CHRISTOPHER DAWEL GOMEZ,
Plaintiff,
v.
JOSE DE LA TORRE,
Defendant.
Case No.: 23-cv-2026-WQH-DDL
REPORT AND
RECOMMENDATION FOR
ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANT DE LA TORRE’S
MOTION TO DISMISS
Before the Court is Defendant Jose De La Torre’s Motion to Dismiss
(“Motion”). Dkt. No. 88. This Report and Recommendation is submitted to United
States District Judge William Hayes pursuant to 28 U.S.C. § 636(b) and Civil Local
Rule 72.1. 	For the reasons stated below, the undersigned RECOMMENDS the
Motion be GRANTED IN PART AND DENIED IN PART.
I.
INTRODUCTION
Plaintiff Christopher Gomez alleges that two San Diego Sheriff’s Office
deputies, 	Defendants 	Emilio 	Gonzalez 	and 	Jose 	De 	La 	Torre, 	violated 	his
constitutional rights by using excessive force during his booking at the San Diego
Central 	Jail. 	Dkt. 	No. 	49 	– 	First 	Amended 	Complaint 	(“FAC”), 	¶¶ 	17-20.
Defendants Gonzalez and the County of San Diego have answered Plaintiff’s
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Amended Complaint, but De La Torre moves to dismiss, arguing that (1) Gomez
did not exhaust his administrative remedies prior to bringing suit; (2) Gomez’s
federal claims are barred under Heck v. Humphrey, 512 U.S. 477 (1994); and
(3) Gomez’s state law claims must be dismissed because he failed to allege
compliance with the California Government Tort Claims Act.
The Court previously addressed and rejected identical arguments on the
issues 	of 	exhaustion 	of 	administrative 	remedies 	and 	the 	Heck 	doctrine 	in
recommending denial of a functionally identical motion to dismiss brought by
Gonzalez, and De La Torre’s arguments in the instant motion fail for the same
reasons. 	However, De La Torre is correct that Gomez fails to allege compliance
with the Government Claims Act, which compels dismissal of his state law claims.
II.
BACKGROUND
A. 	Procedural History
On November 1, 2023, Plaintiff (proceeding 	pro 	se) filed a civil rights
complaint pursuant to 42 U.S.C. § 1983 against Gonzalez and the “San Diego
Central Jail.” See Dkt. No. 1. Plaintiff alleged that Gonzalez engaged in “excessive
force [and] cruel and unusual punishment” during Plaintiff’s arrest and processing
on April 23, 2023, and that the “San Diego Central Jail” failed to protect him from
cruel and unusual punishment. 	On November 14, 2023, after conducting the
screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), the Court dismissed
San Diego Central Jail, finding it was not subject to suit under § 1983. Dkt. No. 3
at 5. 	However, the Court found Plaintiff’s allegations against Gonzalez were
sufficient to meet the “low threshold” for proceeding. 	Id. at 7.
On April 26, 2024, Gonzalez moved to dismiss the Complaint, arguing that
Plaintiff failed to exhaust his administrative remedies, the Heck doctrine bars his
claims, and he failed to allege sufficient facts to state an excessive force theory of
liability under § 1983. Dkt. No. 11. Plaintiff opposed the motion. Dkt. No. 21. On
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November 6, 2024, the Court issued a Report and Recommendation (“R&R”)
recommending denial of the motion to dismiss. 	Specifically, the R&R concluded
that (1) the issue of whether Plaintiff exhausted his administrative remedies could
not be decided on a motion to dismiss, (2) whether the Heck doctrine bars Plaintiff’s
§ 1983 claims could not be resolved on the current record, and (3) Plaintiff’s
Complaint stated a claim for the use of excessive force. Dkt. No. 25. Thereafter,
District Judge Hayes adopted the R&R in full and denied the motion to dismiss.
Dkt. No. 30.
Plaintiff filed his FAC on June 6, 2025. Dkt. No. 49. The FAC asserts claims
against Gonzalez, De La Torre, the County of San Diego and the San Diego
County Sheriff’s Department as follows:
Cause of Action 	Defendants
First Cause of Action
“Violation of Civil Rights Causing
Injury”
Gonzalez, De La Torre, and “County
of San Diego dba San Diego County
Sheriff’s Department”
Second Cause of Action
“Failure 	to 	Supervise 	Causing
Constitutional Violation”
County of San Diego and San Diego
County Sheriff’s Department
Third Cause of Action
“Violation 	of 	[§ 	1983] 	For
Custom and Practice (Monell)”
County of San Diego and San Diego
County Sheriff’s Department
Fourth Cause of Action
Negligence
Gonzalez, 	De La Torre, 	County 	of
San Diego, and San Diego County
Sheriff’s Department
Fifth Cause of Action
Battery
Gonzalez and De La Torre
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B. 	Factual Allegations
Plaintiff alleges he was “involved in a car collision” on April 18, 2023. 	FAC
¶ 17. He was “taken into custody by San Diego Police officers and transported to
San Diego County Jail.” 	Id., ¶ 18. 	At the San Diego Central Jail, Gonzalez and
De La Torre “use[d] force that rendered Plaintiff unconscious and to suffer physical,
mental and emotional injuries.” 	Id., ¶ 19. 	Specifically, Plaintiff alleges that
Gonzalez and De La Torre (1) grabbed his finger in a painful manner, (2) berated
and taunted him, (3) punched him in the face, (4) threw him to the ground,
(5) placed their body weight on his back and tied his legs down while applying a
choke hold, and (6) placed a “spit sock” over his head. 	Id., ¶ 20.
III.
LEGAL STANDARDS
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
“tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th
Cir. 2001).1 To survive a motion to dismiss, a complaint must plead “enough facts
to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007); Fed. R. Civ. P. 12(b)(6). 	The court must “accept all
allegations of material fact in the complaint as true and construe them in the light
most favorable to the non-moving party,” Cedars-Sinai Med. Ctr. v. Nat’l League
of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007), but need not “accept as
true allegations that are merely conclusory, unwarranted deductions of fact, or
unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F. 3d 1049, 1055 (9th
Cir. 2008). 	“[F]or 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
1 Unless otherwise noted, all internal quotations marks, ellipses, brackets,
citations, footnotes and parallel reporter citations are omitted.
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F.3d 962, 969 (9th Cir. 2009).
IV.
DISCUSSION
A. 	Consideration of Matters Outside the Complaint
De La Torre submits documents outside of the pleadings with his motion.
“Generally, district courts may not consider material outside the pleadings when
assessing the sufficiency of a complaint[.]” 	Khoja v. Orexigen Therapeutics, Inc.,
899 F.3d 988, 998 (9th Cir. 2018). 	“A court may take judicial notice of matters of
public record without converting a motion to dismiss into a motion for summary
judgment . . . [b]ut a court cannot take judicial notice of disputed facts contained in
such public records.” 	Id. at 999.
De La Torre requests the Court take judicial notice of a document titled
“Notice of Returned Claim,” issued by the Office of County Counsel Claims and
Investigation Division to Plaintiff on January 2, 2024; three records from The
People of the State of California v. Christopher Gomez, San Diego Superior Court
case number CD298705; and portions of Plaintiff’s deposition transcript in this
matter. Dkt. Nos. 88-3, 88-4, 88-5, 88-6 and 88-7. Plaintiff’s opposition does not
address the request for judicial notice.
Pursuant to Federal Rule of Evidence 201, the Court may take judicial notice
of facts “generally known within [its] territorial jurisdiction” or that “can be accurately
and readily determined from sources whose accuracy cannot reasonably be
questioned.” 	Fed. R. Evid. 201(b)(1) and (2). 	The Court may take judicial notice
of “court filings and other matters of public record.” 	Reyn's Pasta Bella, LLC v.
Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir.2006).
The Court takes judicial notice of the Notice of Returned Claim form as a
public record that is “not subject to reasonable dispute.” 	Reid v. City of Oakland,
No. 25-CV-00383-JST, 2025 WL 2172721, at *3 (N.D. Cal. July 31, 2025) (taking
judicial notice of claim form). See Est. of Upton v. Cnty. of Riverside, No. EDCV
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23-2655 JGB (SHKX), 2024 WL 4403899, at *2 (C.D. Cal. Aug. 26, 2024) (taking
judicial notice of “Notice of Returned Claim” form).
The Court also takes judicial notice of the records from Plaintiff’s Superior
Court 	criminal 	case. 	See 	Gonzales 	v. 	City 	of 	Los 	Angeles, 	No.
220CV03519JGBMAA, 2021 WL 4442409, at *3 (C.D. Cal. Mar. 10, 2021), report
and recommendation adopted, No. 220CV03519JGBMAA, 2021 WL 4434341
(C.D. Cal. May 27, 2021) (taking judicial notice of court document as “a public
record that is not subject to reasonable dispute,” and collecting cases). 	These
documents are relevant to the Court’s disposition of De La Torre’s argument that
the Heck doctrine bars Plaintiff’s claims. 	For these reasons, the Court takes
judicial notice of the charges brought against Plaintiff, his subsequent guilty plea
to two of those counts, and his resulting sentence and incarceration, as reflected
in the Superior Court documents.
The Court declines to take judicial notice of Plaintiff’s deposition transcript.
“Courts in this circuit have denied requests for judicial notice of deposition
transcripts pursuant to Federal Rule of Evidence 201(b)(2).” 	Hinrichsen v. Bank
of Am., N.A., No. 17CV219-DMS(RBB), 2018 WL 11649570, at *3 (S.D. Cal. June
5, 2018) (collecting cases). De La Torre provides no contrary authority that would
support taking judicial notice of Plaintiff’s deposition testimony.
B. 	De La Torre’s Arguments
As noted above, De La Torre’s arguments that Plaintiff failed to exhaust his
administrative remedies and that the Heck doctrine bars Plaintiff’s federal claims
are identical to the arguments previously raised by Gonzalez in a prior motion to
dismiss. 	Accordingly, the analysis of those arguments below mirrors the prior
R&R’s discussion of Gonzalez’s motion, and the Court recommends denial of De
La Torre’s motion on these grounds for the same reasons set forth in the R&R.
/ / /
/ / /
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1. 	Exhaustion of administrative remedies
In his original Complaint, Plaintiff responded “No” to the question whether he
had “previously sought and exhausted all forms of available relief from the proper
administrative officials” regarding the acts alleged in the Complaint. Dkt. No. 1 at
6. 	As 	best 	the 	Court 	can 	tell, 	the 	FAC 	does 	not 	address 	exhaustion 	of
administrative remedies.
De La Torre asserts the FAC is subject to dismissal because Plaintiff “admits
in his pleadings that he failed to exhaust all forms of available administrative relief.”
Dkt. No. 88-1 at 6. 	Plaintiff responds that the Court already addressed this issue
in denying Gonzalez’s motion. 	He further contends “the FAC adds allegations
explaining Plaintiff’s incarceration status, limited access, and reasonable belief
that grievance procedures were unavailable or ineffective,” although he fails to cite
the relevant FAC paragraphs that he contends contain this information. 	Dkt. No.
92 at 4.
a 	Legal standards
An inmate bringing a § 1983 action must exhaust “such administrative
remedies as are available” before filing suit in federal court. 42 U.S.C. §1997e(a).
This requirement “give[s] an agency the opportunity to correct its own mistakes
before being dragged into federal court” and “promote[s] greater efficiency and
economy in resolving claims.” 	McBride v. Lopez, 807 F.3d 982, 987 (9th Cir.
2015). 	Exhaustion of available remedies “is mandatory,” but a prisoner’s “failure
to exhaust a remedy that is effectively unavailable does not bar a claim from being
heard in federal court.” 	Soto v. Sweetman, 882 F.3d 865, 869-70 (9th Cir. 2018).
Failure to exhaust is an affirmative defense for which the defendant bears
the burden of proof. Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc).
To prevail, the defendant must show “there was an available administrative remedy
[the plaintiff] did not exhaust.” 	Eaton v. Blewett, 50 F.4th 1240, 1246 (9th Cir.
2022). In “rare cases,” a prisoner’s failure to exhaust may be “clear from the face
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of the complaint,” and the defendant may “successfully move under Rule 12(b)(6)
for failure to state a claim.” Albino, 747 F.3d at 1169. To grant a motion to dismiss
on the basis of a prisoner’s failure to exhaust, the district court must “be able to
conclude from the face of the complaint that a prisoner has not exhausted his
administrative remedies and that he is without valid excuse.” Id. (quoting Aquilar-
Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007)).
b. 	Application
That Plaintiff did not pursue an administrative grievance is undisputed: he
indicated on his form Complaint he had not “sought and exhausted all forms of
available relief from the proper administrative officials regarding” the allegations in
his complaint. 	Dkt. No. 1 at 6. 	Bearing in mind that “Rule 8 does not require
plaintiffs to plead around affirmative defenses,” see U.S. Commodity Futures
Trading Comm’n v. Monex Credit Co., 931 F.3d 966, 972 (9th Cir. 2019), the Court
does not find Plaintiff’s check-the-box response is a sufficient basis upon which to
find 	conclusively 	that 	Plaintiff 	failed 	to 	exhaust 	his 	available 	administrative
remedies “without valid excuse.” 	Albino, 747 F.3d at 1169.
The 	record 	is 	devoid 	of 	any 	information 	regarding 	the 	administrative
remedies available to Plaintiff, the grievance procedures by which Plaintiff could or
should 	have 	pursued 	those 	remedies, 	or 	whether 	any 	failure 	to 	follow 	the
applicable procedures should be excused, either because of a sincerely held and
objectively reasonable fear of retaliation or another reason. Because there is a
“need for further factual development” on the issue of exhaustion, dismissal is
inappropriate. 	See McBride, 807 F.3d at 985.
Accordingly, the undersigned RECOMMENDS De La Torre’s Motion for
dismissal on this basis be DENIED without prejudice to raising the issue in a
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subsequent summary judgment motion, on a more developed record.2
2. 	The Heck Doctrine
De La Torre argues that since Plaintiff pled guilty to “resisting arrest through
force or violence” in violation of California Penal Code § 69, he is “now barred from
bringing § 1983 claims for malicious prosecution, false arrest and excessive use
of force” under Heck. 	Dkt. No. 88-1 at 8. 	Plaintiff responds the Court “fully
considered and rejected” this argument in denying Gonzalez’s motion to dismiss.
Dkt. No. 92 at 4. Plaintiff is correct.
a. 	Legal standards
In Heck, the Supreme Court held:
[W]hen a state prisoner seeks damages in a § 1983 suit, the district
court must consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if it would,
the complaint must be dismissed unless the plaintiff can demonstrate
that the conviction or sentence has already been invalidated. But if the
district court determines that the plaintiff’s action, even if successful,
will not demonstrate the invalidity of any outstanding criminal judgment
against the plaintiff, the action should be allowed to proceed, in the
absence of some other bar to the suit.
512 U.S. at 487 (emphasis in original). 	Heck’s prohibition applies to convictions
resulting from a guilty plea. 	See Martell v. Cole, 115 F. 4th 1233, 1236 (9th Cir.
2024).
2 The Court is aware of the Ninth Circuit’s directive that “exhaustion should be
decided, if feasible, before reaching the merits of a prisoner’s claim.” 	Albino, 747
F.3d at 1170. 	If the District Court accepts this Report and Recommendation and
the case proceeds, the undersigned will consider any reasonable proposal to
bifurcate discovery or otherwise expedite resolution of the issue of exhaustion.
See id. (“If discovery is appropriate, the district court may in its discretion limit
discovery to evidence concerning exhaustion, leaving until later . . . discovery
directed to the merits of the suit.”).
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The Heck court’s holding flows from the principle that a prisoner’s challenge
to the fact or duration of their confinement is at “the core of habeas corpus,” which
provides the “exclusive remedy” for unconstitutional imprisonment. 	Preiser v.
Rodriguez, 411 U.S. 475, 487-89 (further noting the appellant’s counsel “conceded
. . . a state prisoner challenging his underlying conviction and sentence on federal
constitutional grounds in a federal court is limited to habeas corpus”); accord
McDonough v. Smith, 	588 U.S. 109, 118 n.6 (2019) (noting “Congress has
determined that a petition for writ of habeas corpus, not a § 1983 action, is the
appropriate remedy for state prisoners attacking the 	. . . fact or length of their
confinement”).
b. 	Application
De La Torre is correct that Plaintiff pled guilty to violating Penal Code § 69,
resisting an executive officer. 	A necessary element of that offense is that the
officer was performing “duty imposed . . . by law,” which necessarily means the
officer was using lawful force. 	See Cal. Penal Code § 69 (West 2016); see also
Winder v. McMahon, 345 F. Supp. 3d 1197, 1201 (C.D. Cal. 2018) (noting “an
element of a charge for resisting arrest (under either Penal Code § 148 or
§ 69) is that the officer defendants acted properly, without the use of excessive
force”); Sanders v. City of Pittsburg, 14 F.4th 968, 971 (9th Cir. 2021) (finding
under similar statute “[t]he use of excessive force by an officer is not within the
performance of the officer’s duty”).
However, the Ninth Circuit holds that “[e]xcessive force used after an arrest
is made does not destroy the lawfulness of the arrest.” Sanford v. Motts, 258 F.3d
1117, 1120 (9th Cir. 2001). 	“Hence, if [De La Torre] used excessive force
subsequent to the time [Plaintiff] interfered with his duty, success in [Plaintiff’s]
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section 1983 claim will not invalidate [his] conviction[, and] Heck is no bar.” 	Id.3
As one court explained, “a plaintiff alleging excessive force does not collaterally
attack his conviction or deny that he resisted[, but] [r]ather . . . claims that he
suffered unnecessary injuries because the response to his resistance was not
objectively reasonable.” 	Hooper, 629 F.3d at 1133 (quoting VanGilder v. Baker,
435 F.3d 689, 692 (7th Cir. 2006)).
Therefore, to determine whether Heck bars Plaintiff’s excessive force claim,
the Court must look to the factual basis for Plaintiff’s guilty plea. 	See Martell, 115
F.4th at 1236 (“When the conviction is based on a guilty plea, we look at the record
to see which acts formed the basis for the plea.”). Neither the charging documents
nor the record of Plaintiff’s plea provide enough information for the Court to answer
the “question [of] whether the specific act for which the plaintiff was convicted was
resistance to the particular use of force the plaintiff alleges was unlawful.” 	Id. at
1238. The charging document merely recites the elements of the charge. Dkt. No.
88-4 at 3. 	Plaintiff’s guilty plea recites as follows: “I admit that on the dates
charged, I . . . unlawfully by means of threats and violence, attempted to deter an
executive officer from performing a duty imposed by law in the performance of his
duties in viol[ation] [of] P[enal] C[ode] [§] 69.” Dkt. No. 88-5 at 5. This factual basis
3 See also Sanders, 14 F.4th at 971 (finding Heck would not bar claim for
excessive force “if the alleged excessive force occurred before or after the acts
that form the basis of the [conviction], even if part of one continuous transaction”)
(emphasis in original); Beets v. County of Los Angeles, 669 F.3d 1038, 1042 (9th
Cir. 2012) (“[A]n allegation of excessive force by a police officer would not be
barred by Heck if it were distinct temporally or spatially from the factual basis for
the person's conviction.”); Winder, 345 F. Supp. 3d at 1202 (finding a conviction
under Penal Code § 69 “can be valid even if, during a single continuous chain of
events, some of the officer’s conduct was unlawful, because the conviction itself
requires only that some lawful police conduct was resisted, delayed, or obstructed
during that continuous chain of events”) (citing Hooper v. Cnty. of San Diego, 629
F.3d 1127, 1131 (9th Cir. 2011)) (emphasis added).
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does not identify the act upon which his conviction for violating Penal Code § 69
rests.
In sum, it is not clear from this record which act or acts of resistance form
the basis of Plaintiff’s guilty plea, where those acts fall in the timeline of events on
April 18, 2023, and – importantly – whether those acts can be divided temporally
or otherwise from Defendant’s alleged use of excessive force (which itself appears
to consist of two distinct and possibly divisible acts).4 Because “the record is silent
about which one (or more) of [Plaintiff’s] resisting or obstructing acts was (or were)
the factual predicate of his guilty plea,” the Court cannot conclude that Defendant
used 	excessive 	force 	“would 	necessarily 	imply 	the 	invalidity 	of 	[Plaintiff’s]
conviction.” 	See Martell, 115 F.4th at 1239; see also Winder, 345 F.Supp.3d at
1204-05 (contrasting 	Heck 	analysis at summary judgment where the record
included the “factual basis” for the plaintiff’s no contest plea with a motion to
dismiss, where all allegations must be taken as true, and it was “possible to
construe [Plaintiff’s] plea as consistent with the facts alleged in his complaint”).
The Court finds the current record is insufficient to support a finding that Heck bars
Plaintiff’s excessive force claim.
Accordingly, 	the 	undersigned 	RECOMMENDS 	Defendant’s 	motion 	for
dismissal on this basis be DENIED without prejudice to raising the issue at
summary judgment, on a more developed record.
3. 	Government Claims Act
De La Torre asserts Plaintiff’s negligence and battery claims must be
dismissed because Plaintiff failed to comply with the Government Claims Act,
which sets forth predicate requirements for bringing state-law claims against a
4 Indeed, although it appears undisputed based on Plaintiff’s allegations, it is
not even clear from the charging documents and guilty plea which officer’s lawful
duties Plaintiff obstructed.
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public entity or employee. See Cal. Gov. Code §§ 900 et seq. Plaintiff’s opposition
correctly notes that, as explained in the R&R, the Government Claims Act is
inapplicable to his federal claims under § 1983. See, e.g., Stone v. City and Cnty.
of San Francisco, 735 F. Supp. 340, 345 (N.D. Cal. 1990) (“a claimant need not
comply with California tort claim requirements prior to filing a section 1983 action”).
But Plaintiff fails to acknowledge that while his original Complaint alleged only
§ 1983 claims, the FAC alleges state law claims for negligence and battery as to
which the California Government Claims Act applies.
“In order to bring suit for damages against a public entity, the California
Government Claims Act requires that a plaintiff give notice to the public entity with
written claims and that the public entity reject those claims.” 	Martinez v. Cnty. of
Riverside, No. EDCV222144JGBSHKX, 2023 WL 4680791, at *3 (C.D. Cal. June
8, 2023). 	Compliance with the statute is a “condition precedent” to the plaintiff’s
ability to maintain an action against a public or employee and thus is “an integral
part of [the] plaintiff’s cause of action.” 	Id. Because compliance is “an actual
element of the plaintiff's cause of action,” the plaintiff’s complaint “must allege facts
demonstrating or excusing compliance with the claim presentation requirement.”
McDaniel v. Diaz, No. 120CV00856NONESAB, 2020 WL 7425348, at *28 (E.D.
Cal. Dec. 18, 2020), amended, No. 120CV00856NONESAB, 2021 WL 39656 (E.D.
Cal. Jan. 5, 2021) (dismissing state law claims for failure to allege compliance with
Government Claims Act).
The County asserts that Plaintiff’s FAC fails to plead compliance with the
Government Claims Act, and the Court takes judicial notice of the Notice of
Returned Claim form. Plaintiff’s opposition does not respond to this argument, and
the FAC does not allege any facts demonstrating or excusing compliance with the
Act’s claim presentation requirement. The FAC’s failure to include such allegations
compels dismissal of Plaintiff’s negligence and battery claims. Martinez, 2023 WL
4680791, at *3. 	Because Plaintiff may be able to plead compliance with the Act,
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the Court recommends that dismissal be with leave to amend. 	Id.
Accordingly, the undersigned 	RECOMMENDS 	De La Torre’s motion to
dismiss Plaintiff’s fourth cause of action (negligence) and fifth cause of action
(battery) be GRANTED WITH LEAVE TO AMEND.
V.
CONCLUSION
For the reasons set forth above, the undersigned RECOMMENDS that the
District Judge issue an Order:
1. Approving and adopting this Report and Recommendation in its entirety;
2. Denying De La Torre’s Motion to Dismiss Plaintiff’s first cause of action;
3. Granting De La Torre’s Motion to Dismiss Plaintiff’s fourth and fifth causes
of action with leave to amend; and
4. Directing Plaintiff to either file a Second Amended Complaint or elect to
stand on the First Amended Complaint.
IT 	IS 	HEREBY 	ORDERED 	that 	any 	objections 	to 	this 	Report 	and
Recommendation must be filed by not later than February 5, 2026. Any response
to a party’s objections must be filed by not later than February 12, 2026. Failure
to timely file objections may waive the right to raise those objections on appeal.
See Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
IT IS SO ORDERED.
Dated: January 29, 2026
Hon. David D. Leshner
United States Magistrate Judge
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