Case 3:17-cv-01205-BTM-AGS Document 46 Filed 02/13/19 PageID.525 Page 1 of 2 1 2 3 4 5 6 7 SIEGMUND F. FUCHS Trial Attorney, Torts Branch D.C. Bar No. 986828 U.S. Department of Justice Ben Franklin Station P.O. Box 7146 Washington, D.C. 20044-7146 Telephone: (202) 616-4322 Facsimile: (202) 616-4314 Email: siegmund.f.fuchs@usdoj.gov Attorney for the Federal Defendants UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Case No.: 17cv1205-BTM-AGS ELIZABETH JIMINEZ, individually, and as successor in interest of FERNANDO GEOVANNI LLANEZ, deceased; FERNANDO LLANEZ, individually, and as successor in interest of FERNANDO GEOVANNI LLANEZ, deceased Plaintiffs, NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ THIRD AMENDED COMPLAINT CTRM: 15B JUDGE: Hon. Barry Ted Moskowitz vs. THE UNITED STATES OF AMERICA; CHULA VISTA POLICE DEPARTMENT, a public entity; CITY OF CHULA VISTA, a public entity; RONALDO RICARDO GONZALEZ, an individual; MARCUS OSORIO, an individual; CHRIS BARONI, an individual; ANGELA SANCHEZ, an individual; MICHAEL BURBANK, an individual; JEREMY DORN, an individual; ANTHONY CASTELLANOS, an individual; MARK MEREDITH, an individual; and DOES 1-100, inclusive, [PER CHAMBERS, NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT] Defendants. 28 1 The United States of America’s Notice of Motion and Motion to Dismiss TAC - 17cv1205-BTM-AGS Case 3:17-cv-01205-BTM-AGS Document 46 Filed 02/13/19 PageID.526 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 5, 2019, at 11:00 a.m. or as soon thereafter as this matter can be heard in Courtroom 15B of the United States District Court located at 333 West Broadway, San Diego, California, Defendant THE UNITED STATES OF AMERICA moves to dismiss this action on the following ground: (1) This Court lacks subject matter jurisdiction over Counts Three, Four, and Five because Plaintiffs filed suit prior to exhausting their administrative remedies. (2) This Court should dismiss Counts Three, Four, and Five because the underlying use of force was reasonable under state law. (3) This Court should dismiss Counts Four and Five as duplicative of Counts Three. 11 This Motion is based upon this Notice of Motion, the Memorandum of Points and 12 Authorities, the Declaration of German Burgoin (Exhibit 1), and a state criminal complaint 13 (Exhibit 2), all filed concurrently herewith, all pleadings and filings in this action, and upon 14 such other matters presented to the Court. 15 DATED: February 13, 2019 Respectfully submitted, JOSEPH H. HUNT Assistant Attorney General, Civil Division 16 17 ROBERT S. BREWER, JR. United States Attorney Southern District of California 18 19 C. SALVATORE D’ALESSIO, JR. Acting Director Torts Branch, Civil Division 20 21 RICHARD MONTAGUE Senior Trial Counsel Torts Branch, Civil Division 22 23 s/ Siegmund F. Fuchs SIEGMUND F. FUCHS Trial Attorney Torts Branch, Civil Division 24 25 26 Attorneys for the Federal Defendants 27 28 2 The United States of America’s Notice of Motion and Motion to Dismiss TAC - 17cv1205-BTM-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.527 Page 1 of 26 1 2 3 4 5 6 7 SIEGMUND F. FUCHS Trial Attorney, Torts Branch D.C. Bar No. 986828 U.S. Department of Justice Ben Franklin Station P.O. Box 7146 Washington, D.C. 20044-7146 Telephone: (202) 616-4322 Facsimile: (202) 616-4314 Email: siegmund.f.fuchs@usdoj.gov Attorney for the Federal Defendants UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELIZABETH JIMINEZ, individually, and as successor in interest of FERNANDO GEOVANNI LLANEZ, deceased; FERNANDO LLANEZ, individually, and as successor in interest of FERNANDO GEOVANNI LLANEZ, deceased Plaintiffs, vs. THE UNITED STATES OF AMERICA; CHULA VISTA POLICE DEPARTMENT, a public entity; CITY OF CHULA VISTA, a public entity; RONALDO RICARDO GONZALEZ, an individual; MARCUS OSORIO, an individual; CHRIS BARONI, an individual; ANGELA SANCHEZ, an individual; MICHAEL BURBANK, an individual; JEREMY DORN, an individual; ANTHONY CASTELLANOS, an individual; MARK MEREDITH, an individual; and DOES 1-100, inclusive, Defendants. Case No.: 17cv1205-BTM-AGS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE UNITED STATES OF AMERICA’S MOTION TO DISMISS PLAINTIFFS’ THIRD AMENDED COMPLAINT CTRM: 15B JUDGE: Hon. Barry Ted Moskowitz [PER CHAMBERS, NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT] Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.528 Page 2 of 26 1 Table of Contents 2 3 Table of Authorities ................................................................................................. iii 4 INTRODUCTION .....................................................................................................1 5 I. FACTUAL BACKGROUND..............................................................................2 6 II. STANDARD OF REVIEW .................................................................................6 7 III. LEGAL ANALYSIS ...........................................................................................7 8 9 A. THIS COURT LACKS SUBJECT MATTER JURISDICTION OVER COUNTS THREE, FOUR, AND FIVE BECAUSE PLAINTIFFS FILED 10 SUIT PRIOR TO EXHAUSTING THEIR ADMINISTRATIVE 11 REMEDIES. .....................................................................................................7 12 B. THIS COURT SHOULD DISMISS COUNTS THREE, FOUR, AND 13 FIVE BECAUSE THE UNDERLYING USE OF FORCE WAS 14 REASONABLE UNDER STATE LAW. ........................................................8 15 C. THIS COURT SHOULD DISMISS COUNTS FOUR AND FIVE AS 16 DUPLICATIVE OF COUNT THREE. ..........................................................16 17 IV. CONCLUSION..................................................................................................17 18 19 20 21 22 23 24 25 26 27 28 ii The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTM-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.529 Page 3 of 26 Table of Authorities 1 2 3 Cases 4 Arteaga-Ruiz v. United States, 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 705 F. App’x 597 (9th Cir. 2017)................................................................... 13, 14 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................6, 7 Aviana v. United States, 681 F.3d 1127 (9th Cir. 2012) .................................................................................9 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................................................7 Berkovitz v. United States, 486 U.S. 531 (1988) ..............................................................................................14 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) ................................................................................................2 Brown v. Baldwin, 2013 Cal. App. Unpub. LEXIS 5958 (4th Dist. Aug. 22, 2013) ...........................12 Chandler v. State Farm Mut. Auto Ins. Co., 598 F.3d 1115 (9th Cir. 2010) .................................................................................6 Condit v. Dunne, 317 F. Supp. 2d 344 (S.D.N.Y. 2004) .....................................................................6 Corrales v. Impastato, 650 F. App’x 540 (9th Cir.), cert. denied, 137 S. Ct. 571 (2016) .........................11 Cuc Dang v. Sutter’s Place, Inc., No. 10-2181, 2010 U.S. Dist. LEXIS 124875 (N.D. Cal. Nov. 24, 2010) ...........16 Delta Sav. Bank v. United States, 265 F.3d 1017 (9th Cir. 2001) ...............................................................................13 28 iii The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTM-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.530 Page 4 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Donaldson v. United States, No. 15-908, 2018 U.S. Dist. LEXIS 31849 (S.D. Cal. Feb. 26, 2018) .................13 Dupris v. McDonald, 554 F. App’x 570 (9th Cir. 2014)..........................................................................14 Edson v. City of Anaheim, 63 Cal. App. 4th 1269 (4th Dist. 1998) ............................................................ 9, 10 FDIC v. Meyer, 510 U.S. 471 (1994) ......................................................................................... 9, 13 Felder v. United States, 543 F.2d 657 (9th Cir. 1976) .................................................................................17 Frigard v. United States, 862 F.2d 201 (9th Cir. 1988) .................................................................................14 Golden v. West Corp., No. 11-0182, 2012 U.S. Dist. LEXIS 15262 (E.D. Wash. Feb. 8, 2012) .............17 Gonzalez v. Cal., No. A142229, 2016 Cal. App. Unpub. LEXIS 8758 (1st Dist. Nov. 15, 2016) ...16 Gonzalez v. United States, 814 F.3d 1022 (9th Cir. 2016) ...............................................................................14 Graham-Sult v. Clainos, 756 F.3d 724 (9th Cir. 2014) ...................................................................................6 Green v. Hall, 8 F.3d 695 (9th Cir. 1993) ...................................................................................2, 3 Green v. United States, 630 F.3d 1245 (9th Cir. 2011) ...............................................................................14 Hands on Video Relay Servs. v. Am. Sign Language Servs. Corp., No. 09-996, 2009 U.S. Dist. LEXIS 124899 (E.D. Cal. Aug. 12, 2009) ..............16 27 28 iv The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTM-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.531 Page 5 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Hayes v. Cty. of San Diego, 57 Cal. 4th 622 (Cal. 2013) ...................................................................................15 Hernandez v. City of Pomona, 46 Cal. 4th 501 (Cal. 2009) .............................................................................. 9, 16 Herrington v. Cty. of Sonoma, 12 F.3d 901 (9th Cir. 1993) .....................................................................................8 In re Air Crash Disaster near Cerritos, 982 F.2d 1271 (9th Cir. 1992) ...............................................................................17 In re Carrier IQ, Inc., Consumer Privacy Litig., 78 F. Supp. 3d 1051 (N.D. Cal. 2015) ....................................................................5 In re NVIDIA Corp. Sec. Litig., 768 F.3d 1046 (9th Cir. 2014) .................................................................................5 Johnson v. United States, 704 F.2d 1431 (9th Cir. 1983) .................................................................................7 Liebsack v. United States, 540 F. App’x. 640 (9th Cir. 2013).........................................................................17 Loos v. Immersion Corp., 762 F.3d 880 (9th Cir. 2014) ...................................................................................5 Love v. United States, 60 F.3d 642 (9th Cir. 1995) ...................................................................................13 Martinez v. Cty. of Los Angeles, 47 Cal.App.4th 334 (2d Dist. 1996) ............................................................... 10, 12 Mazzetti v. Bellino, 57 F. Supp. 3d 1262 (E.D. Cal. 2014) .....................................................................6 McNeil v. United States, 508 U.S. 106 (1993) ............................................................................................1, 7 27 28 v The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTM-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.532 Page 6 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Mitchell v. City of Mobile, No. 15-0360, 2017 U.S. Dist. LEXIS 67321 (S.D. Ala. May 3, 2017) ................12 Ortiz v. U.S. Border Patrol, 39 F. Supp. 2d 1321 (D.N.M. 1999) .......................................................................9 Patty v. United States, No. 13-3173, 2015 U.S. Dist. LEXIS 54871 (S.D. Tex. Apr. 27, 2015) ..............14 Perez v. City of Fremont, No. A140271, 2015 Cal. App. Unpub. LEXIS 1431 (1st Dist. Feb. 26, 2015) ....16 Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741 (9th Cir. 2006) .................................................................................15 Richards v. United States, 369 U.S. 1 (1962) ....................................................................................... 9, 12, 16 Sabow v. United States, 93 F.3d 1445 (9th Cir. 1996) .................................................................................14 Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004) .................................................................................6 Sanders v. Brown, 504 F.3d 903 (9th Cir. 2007) ...................................................................................6 Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) .................................................................................11 Soliz v. Haley, No. 09-1555, 2010 U.S. Dist. LEXIS 43187 (D. Ariz. April 2, 2010) .................16 Sparrow v. USPS, 825 F. Supp. 252 (E.D. Cal. 1993) ..........................................................................7 Suter v. United States, 441 F.3d 306 (4th Cir. 2006) .................................................................................14 27 28 vi The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTM-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.533 Page 7 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Unger v. McCloskey, No. B219789, 2010 Cal. App. Unpub. LEXIS 5945 (2d Dist. July 28, 2010) .......9 United States v. Cuddy, 147 F.3d 1111 (9th Cir. 1998) .................................................................................8 United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016) ...............................................................................15 United States v. Orleans, 425 U.S. 807 (1976) ................................................................................................7 United States v. Thrasher, 483 F.3d 977 (9th Cir. 2007) ...................................................................................8 United States v. Varig Airlines, 467 U.S. 797 (1984) ................................................................................................7 Vacek v. USPS, 447 F.3d 1248 (9th Cir. 2006) .................................................................................7 Valadez-Lopez v. Chertoff, 656 F.3d 851 (9th Cir. 2011) ...............................................................................1, 7 Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004) ...................................................................................6 Woods v. United States, No. 07-593, 2007 U.S. Dist. LEXIS 80931 (D.N.J. Oct. 31, 20007)....................14 Wynn v. San Diego Cty., No. 12-3070, 2015 U.S. Dist. LEXIS 14033 (S.D. Cal. Feb. 5, 2015) ...................9 23 24 Statutes 25 28 U.S.C. § 1346(b) ...................................................................................................1 26 28 U.S.C. § 1346(b)(1)...............................................................................................8 27 28 U.S.C. § 2674 ............................................................................................. 8, 9, 17 28 vii The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTM-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.534 Page 8 of 26 1 28 U.S.C. § 2679(d)(1)...............................................................................................2 2 28 U.S.C. § 2680(a) .................................................................................................13 3 42 U.S.C. § 1983 ........................................................................................................2 4 Cal. Pen. Code § 196................................................................................................10 5 Cal. Pen. Code § 835a ................................................................................................9 6 Federal Employees Liability Reform and Tort Compensation Act of 1988 §§ 5, 6, 7 Pub. L. No. 100-694, 102 Stat. 4563 (1988) ...........................................................2 8 9 10 Rules Federal Rules of Civil Procedure 12(b)(1) ............................................................2, 6 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 viii The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTM-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.535 Page 9 of 26 INTRODUCTION 1 2 On December 13, 2018, this Court held that it lacked subject matter jurisdiction over 3 all claims alleged against the United States under the Federal Tort Claims Act (FTCA), 28 4 U.S.C. § 1346(b) and §§ 2671-2680, because Plaintiffs filed suit before exhausting their 5 administrative remedies. (ECF 40, 41). The Court’s order was clear: should Plaintiffs 6 choose to pursue FTCA claims against the United States they are required “to file a new 7 action which will be consolidated with this case.” (ECF 40, at 2). Plaintiffs had previously 8 filed a new action back on June 13, 2018, which was consolidated with this case. See Jiminez 9 v. United States, No. 18-1269 (S.D. Cal.). On January 30, 2019, however, Plaintiffs 10 inexplicably amended the complaint in this case to include the three previously dismissed 11 FTCA claims. Plaintiffs are barred from doing so under this Court’s order, as well as 12 Supreme Court and Ninth Circuit precedent. See McNeil v. United States, 508 U.S. 106 13 (1993); Valadez-Lopez v. Chertoff, 656 F.3d 851, 855 (9th Cir. 2011). 14 Even if the FTCA claims could be properly raised through amendment in this action, 15 this Court should dismiss them for the same reason explained in the previous motion to 16 dismiss filed by the United States (ECF 29), namely that the shooting of Fernando Geovanni 17 Llanez by Special Agent Ronaldo Gonzalez during an undercover sting operation was 18 reasonable under the facts Plaintiffs allege. Indeed, there is no dispute that during the 19 undercover sting operation Llanez’s associates were attempting to purchase 2,000 pounds 20 of marijuana and Llanez was hired to transport the drug-laden van. Plaintiffs also don’t 21 dispute that at the time of the shooting, Llanez brandished a weapon (a Taser) and 22 aggressively began running at SA Gonzalez. According to the complaint, SA Gonzalez 23 stated several times that he thought Llanez had shot him with the Taser just prior to the 24 shooting. 25 Based on these facts, the third amended complaint raises the following claims: (1) 26 Fourth and Fourteenth Amendment excessive force claims against Ronaldo Gonzalez, 27 Jeremy Dorn, Marcus Osorio, Chris Baroni, Angela Sanchez, Michael Burbank, Anthony 28 1 The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTS-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.536 Page 10 of 26 1 Castellanos, and Mark Meredith under 42 U.S.C. § 1983 (Count One); (2) a Fourth 2 Amendment excessive force claim against Ronaldo Gonzalez, Jeremy Dorn, Marcus 3 Osorio, Chris Baroni, Angela Sanchez, Michael Burbank, and Anthony Castellanos under 4 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 5 (1971) (Count Two); (3) an assault and battery claim against Ronaldo Gonzalez, and a 6 negligence claim against all individual defendants (Count Three); and (4) wrongful 7 death/survival tort claims for battery and negligence against the United States under the 8 FTCA (Counts Four and Five). On this same date, the United States filed a notice to 9 substitute itself for the defendants on Count Three pursuant to the Federal Employees 10 Liability Reform and Tort Compensation Act of 1988 §§ 5, 6, Pub. L. No. 100-694, 102 11 Stat. 4563 (1988) (codified in relevant part at 28 U.S.C. § 2679) (the “Westfall Act”) (ECF 12 45). The effect of that substitution is that Count Three is dismissed against the individual 13 defendants and is now an FTCA claim against the United States. See 28 U.S.C. § 2679(d)(1); 14 Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993) (substitution of the United States leaves the 15 plaintiff with a single avenue of recovery under the FTCA). Through the instant motion, the 16 United States moves to dismiss Counts Three, Four, and Five on the following grounds, and 17 pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6): 18 19 (1) This Court lacks subject matter jurisdiction over Counts Three, Four, and Five because Plaintiffs filed suit prior to exhausting their administrative remedies. 20 (2) This Court should dismiss Counts Three, Four, and Five because the underlying use of force was reasonable under state law. 21 (3) This Court should dismiss Counts Four and Five as duplicative of Count Three. 22 23 I. FACTUAL BACKGROUND 24 Plaintiffs are Fernando and Elizabeth Jiminez, both individually and as the surviving 25 parents of the decedent, Fernando Geovanni Llanez. See Third Am. Compl. ¶¶ 3-4. 26 Defendants are the United States of America, the City of Chula Vista, and eight federal 27 officers alleged to have participated in an undercover sting operation: Acting Group 28 2 The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTS-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.537 Page 11 of 26 1 Supervisor Jeremy Dorn, Technical Enforcement Officer Michael Burbank, Special Agents 2 (SAs) Ronaldo Gonzalez, Marcus Osorio, Chris Baroni, Angela Sanchez, and Anthony 3 Castellanos, and Federal Task Force Officer (TFO) Mark Meredith. Id. ¶¶ 5-12. At the time 4 of the shooting, seven of the eight individual defendants were employed by the Department 5 of Homeland Security. Id. Although TFO Meredith was employed by the City of Chula 6 Vista, he was deputized as a U.S. Customs officer for purposes of the undercover sting 7 operation. See Certification of Scope of Employment (ECF 44). 8 Plaintiffs allege that on June 2, 2016, SA Gonzalez and others transported 2,000 9 pounds of marijuana from Mexico to the United States for the purpose of selling it to a 10 known drug trafficking organization. Third Am. Compl. ¶ 22. On June 6, 2016, a tactical 11 plan was developed to negotiate the sale of the marijuana. Id. ¶ 23. An undercover 12 informant, known as Miguel, informed SA Gonzalez that he knew a broker, named Sergio, 13 who had a potential buyer. Id. ¶ 24-25. That potential buyer was Damien Martinez. Id. ¶ 31. 14 To complete the drug transaction, Martinez hired the decedent, Llanez, to drop off a van, 15 leave the car keys under the seat while it was loaded with marijuana, and then pick the drug- 16 laden van up. Id. ¶ 32-33. Plaintiffs allege that Llanez had no idea he was participating in a 17 drug transaction worth hundreds of thousands of dollars. Id. ¶¶ 31, 43. According to 18 Plaintiffs, Llanez was paid $500 and armed with a Taser simply to move a van. Id. ¶ 42. 19 Llanez dropped off the van and left the keys under the seat as instructed. Id. ¶ 33. 20 SAs Gonzalez, Castellanos, and Osorio and TFO Meredith picked up the van, loaded it with 21 the marijuana, and dropped it back off at a shopping center in Chula Vista, California. Id. 22 ¶¶ 34-35. SA Gonzalez, Sergio, and two additional males associated with Martinez 23 negotiated over the price of the marijuana. Id. ¶¶ 39-41. As instructed, Llanez returned to 24 pick up the drug-laden van. Id. ¶ 44. According to Plaintiffs, SA Gonzalez can be heard on 25 26 27 28 3 The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTS-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.538 Page 12 of 26 1 his body wire recording inserting a key into the driver’s side door of the van and then 2 immediately withdrawing the key and running. Id. ¶ 45.1 3 Llanez drew his Taser and began pursuing SA Gonzalez. Id. ¶ 46. Ten seconds later, 4 SA Gonzalez turned and shot Llanez four times. Id. ¶ 47. Anti-Felon Identification confetti, 5 which deploys when a Taser is fired, was located on the scene. Id. ¶ 57. According to the 6 third amended complaint, SA Gonzalez is recorded on his body wire as stating that he in 7 fact believed he had been shot by Llanez. Id. ¶¶ 12j., 51. Just after the shooting, SA Baroni 8 and Officer Burbank picked up SA Gonzalez and drove him to the hospital. Id. ¶¶ 50, 56. The excerpted body wire recording also confirms the following facts: 9 10 • 0:45 SA Gonzalez inserts the key into the van. 11 • 0:47 SA Gonzalez starts running. 12 • 0:50 SA Gonzalez screams as if in pain and yells “help.” 13 • 0:53 SA Gonzalez fires his first shot. 14 • 0:55 SA Gonzalez fires his last shot. 15 • 1:03 SA Gonzalez yells “help” two more times. 16 • 1:09 SA Baroni and Officer Burbank’s arrive in their vehicle. 17 • 1:33 SA Gonzalez says “I think he hurt me. I think he shot me with something . . . a Taser.” • 2:48 SA Gonzalez says “he fucking shot me with something dude.” • 3:04 SA Gonzalez says “check my back dude, you see anything.” 18 19 20 21 See Excerpted Body Wire Recording, Exhibit 1 to the Declaration of German Burgoin 22 (attached hereto as Exhibit 1).2 23 24 25 26 27 28 1 Plaintiffs offer no explanation as to why SA Gonzalez suddenly took flight. In fact, Llanez and his associates planned to jump SA Gonzalez and Sergio. They surrounded both men and were assaulting Sergio when SA Gonzalez started to run. 2 That all four shots occurred in a matter of two seconds belies the suggestion that there was a pause and time for deliberation to assess whether Llanez continued to pose a threat before SA Gonzalez fired the fourth and fatal shot. See Third Am. Compl. ¶ 49. 4 The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTS-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.539 Page 13 of 26 1 2 It is clear that Plaintiffs had access to the body wire recording as the third amended complaint directly quotes from it and includes specific time periods down to the second: 3 • The shooting occurred 33 seconds after SA Gonzalez encountered Llanez (¶ 20); 4 • Llanez approached the van and met SA Gonzalez at approximately 1:56 p.m. (¶ 44); • Approximately 23 seconds later, SA Gonzalez can be heard, on his undercover recording, inserting a key into the driver’s side door and immediately withdrawing the key and running (¶ 45); • Approximately 10 seconds after withdrawing the key and running, SA Gonzalez can be heard on his undercover recording shooting Llanez (¶ 47); • Approximately 35 seconds after the last shot was fired, SA Gonzalez was picked up in a truck driven by SA Barone and Officer Burbank (¶ 50); • Upon entering the vehicle, and within 45 seconds of firing his last shot, SA Gonzalez stated to SA Baroni and Officer Burbank he believed he had been tasered (¶ 51); • Two minutes and ten seconds after firing his last shot at Llanez, SA Gonzalez asked Officer Burbank to check his back for any injuries (¶ 52); • Two minutes and nineteen seconds after firing his last shot at Llanez, SA Gonzalez stated: “I think I killed that guy” to which SA Baroni responded, “Don’t worry about it . . . You’re good man . . . Don’t worry about it . . . Remember, uh, no fuckin’, no statements, none of that shit. Actually, you know what, we’ll just probably ya, you want to take him to the hospital. You want to go to the hospital dude? . . . Fuck dude, everybody’s fuckin’ safe, fuck those guys.” (¶ 53); and • Officer Burbank stated: “everything we say right now is being recorded” on SA Gonzalez’ recorder. Seventeen seconds later the recorder was turned off. (¶ 54). 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Based on these specific references and direct quotes, this Court is free to consider the 23 body wire recording itself. Indeed, it is well established that when considering a motion to 24 dismiss for failure to state a claim, courts may consider all “materials incorporated into the 25 complaint by reference.” See Loos v. Immersion Corp., 762 F.3d 880, 886 (9th Cir. 2014), 26 as amended (Sept. 11, 2014) (citation omitted); In re NVIDIA Corp. Sec. Litig., 768 F.3d 27 1046, 1058 n.10 (9th Cir. 2014). That includes recordings. See, e.g., In re Carrier IQ, Inc., 28 5 The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTS-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.540 Page 14 of 26 1 Consumer Privacy Litig., 78 F. Supp. 3d 1051, 1078 n.6 (N.D. Cal. 2015); Mazzetti v. 2 Bellino, 57 F. Supp. 3d 1262, 1269 n.2 (E.D. Cal. 2014); see also Condit v. Dunne, 317 F. 3 Supp. 2d 344, 357 (S.D.N.Y. 2004) (considering audio recording attached to motion to 4 dismiss because it was directly quoted in the complaint). An excerpted copy of the body 5 wire recording has been submitted to chambers. II. 6 STANDARD OF REVIEW 7 Rule 12(b)(1) of the Federal Rules of Civil Procedure provides that a party may move 8 to dismiss a complaint that “lack[s] . . . subject-matter jurisdiction.” A Rule 12(b)(1) attack 9 on subject matter jurisdiction “may be facial or factual.” Safe Air for Everyone v. Meyer, 10 373 F.3d 1035, 1039 (9th Cir. 2004) (citation omitted). In a facial challenge, the movant 11 argues that the allegations asserted in the complaint are “insufficient on their face to invoke 12 federal jurisdiction.” Id. The court accepts the allegations as true and draws all reasonable 13 inferences in the plaintiff’s favor. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). 14 “The party asserting federal subject matter jurisdiction bears the burden of proving its 15 existence.” Chandler v. State Farm Mut. Auto Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010) 16 (citation omitted). 17 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 18 accepted as true, to state a claim to relief that is plausible on its face.” Graham-Sult v. 19 Clainos, 756 F.3d 724, 748 (9th Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 20 (2009)). For the limited purpose of ruling on a motion to dismiss for failure to state a claim, 21 courts are to “take all of the factual allegations in the complaint as true, [they] are not bound 22 to accept as true a legal conclusion couched as a factual allegation.” Id. (quoting Iqbal, 556 23 U.S. at 678). “Conclusory allegations and unreasonable inferences . . . are insufficient to 24 defeat a motion to dismiss.” Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). Finally, 25 “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements 26 of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked 27 28 6 The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTS-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.541 Page 15 of 26 1 assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (citing Bell 2 Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). III. 3 4 A. LEGAL ANALYSIS 5 THIS COURT LACKS SUBJECT MATTER JURISDICTION OVER COUNTS THREE, FOUR, AND FIVE BECAUSE PLAINTIFFS FILED SUIT PRIOR TO EXHAUSTING THEIR ADMINISTRATIVE REMEDIES. 6 The FTCA is a limited waiver of sovereign immunity, providing a remedy against 7 the United States for the torts of its officers and employees while acting within the scope of 8 their employment. United States v. Orleans, 425 U.S. 807, 813 (1976). Although the United 9 States has waived its sovereign immunity through the FTCA, it can only be sued in 10 accordance with the terms of that limited waiver. Id. at 814; United States v. Varig Airlines, 11 467 U.S. 797, 808 (1984). The FTCA provides that an “‘action shall not be instituted upon 12 a claim against the United States for money damages’ unless the claimant has first exhausted 13 administrative remedies.” Vacek v. USPS, 447 F.3d 1248, 1250 (9th Cir. 2006) (quoting 28 14 U.S.C. § 2675(a)). Thus, “[e]xhaustion of the claims procedures established under the Act 15 is a prerequisite to district court jurisdiction.” Johnson v. United States, 704 F.2d 1431, 16 1442 (9th Cir. 1983). 17 This Court has already held that it lacks subject matter jurisdiction over the FTCA 18 claims (Counts Three, Four, and Five) because Plaintiffs filed suit before exhausting their 19 administrative remedies. (ECF 40, at 2, 9). The Court ordered that should Plaintiffs choose 20 to pursue FTCA claims against the United States, they must file a separate FTCA action to 21 be consolidated with this case. Id.; see also Sparrow v. USPS, 825 F. Supp. 252, 255 (E.D. 22 Cal. 1993) (“Because § 2675(a) of the FTCA requires that an administrative claim be 23 finalized at the time the complaint is filed, plaintiff’s complaint cannot be cured through 24 amendment, but instead, plaintiff must file a new suit.”). This reasoning accords with 25 Supreme Court and Ninth Circuit precedent. See McNeil v. United States, 508 U.S. 106, 26 112-13 (1993) (requiring dismissal of FTCA claim filed prematurely before exhaustion of 27 administrative remedies); Valadez-Lopez v. Chertoff, 656 F.3d 851, 855-58 (9th Cir. 2011) 28 7 The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTS-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.542 Page 16 of 26 1 (allowing amendment to add FTCA claims only because (unlike here) the “original 2 complaint neither named the United States as a defendant nor stated a claim under the Act”). 3 In short, filing a third amended complaint to resurrect previously dismissed FTCA claims 4 is improper. Because the original complaint in this action included FTCA claims against the 5 United States prior to administratively exhausting them, this Court lacked subject matter 6 jurisdiction over them before, and it continues to lack subject matter jurisdiction over them 7 now. Plaintiffs acknowledge as much by having already filed a separate FTCA action that 8 has been consolidated with this case. See Jiminez, No. 18-1269. For these reasons, this Court 9 should dismiss Counts Three, Four, and Five for lack of subject matter jurisdiction.3 11 THIS COURT SHOULD DISMISS COUNTS THREE, FOUR, AND FIVE BECAUSE THE UNDERLYING USE OF FORCE WAS REASONABLE UNDER STATE LAW. 12 Even if Plaintiffs could bring FTCA claims in this action, Counts Three, Four, and 13 Five are subject to dismissal because the underlying use of force was reasonable under state 14 law. Under the FTCA, “[t]he United States shall be liable . . . in the same manner and to the 15 same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. Further, 16 “the district courts . . . shall have exclusive jurisdiction of civil actions on claims against 17 the United States, for money damages, . . . for injury or loss of property, or personal injury 18 or death caused by the negligent or wrongful act or omission, . . . if a private person [ ] 19 would be liable to the claimant in accordance with the law of the place.” 28 U.S.C. § 20 1346(b)(1). The Supreme Court has “consistently held that § 1346(b)’s reference to the ‘law 21 of the place’ means law of the State – the source of substantive liability under the FTCA.” 22 3 10 23 24 25 26 27 28 B. The Court’s prior holding that it lacks subject matter jurisdiction over the FTCA claims in this action is also the law of the case. “Under the doctrine, a court is generally precluded from reconsidering an issue previously decided by the same court, or a higher court in the identical case.” United States v. Thrasher, 483 F.3d 977, 981 (9th Cir. 2007) (quoting Herrington v. Cty. of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993)). Although courts retain jurisdiction to revisit prior decisions, a party must still demonstrate some kind of clear error, intervening change in law, changed circumstances or evidence, or manifest injustice. United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998). Plaintiffs have not identified any such circumstances here to justify revisiting this Court’s previous order. 8 The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTS-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.543 Page 17 of 26 1 FDIC v. Meyer, 510 U.S. 471, 478 (1994) (citations omitted). Here, because the events 2 occurred in California, California law applies. See Aviana v. United States, 681 F.3d 1127, 3 1130 (9th Cir. 2012) (citing Richards v. United States, 369 U.S. 1, 7 (1962)). 4 There is no doubt that the predicate for all three state torts claims is SA Gonzalez’s 5 use of force against Llanez. See Third Am. Compl. ¶¶ 93, 98, 104, 110-11. However, 6 because the FTCA waives the sovereign immunity of the United States “in the same manner 7 and to the same extent as a private individual under like circumstances,” 28 U.S.C. § 2674 8 (emphasis added), there is some confusion as to what standard to apply when the alleged 9 tortfeasor is a law enforcement officer. See Ortiz v. U.S. Border Patrol, 39 F. Supp. 2d 1321, 10 1324 n.2 (D.N.M. 1999) (noting that “courts have understandably struggled to reach 11 logically consistent results”). In the context of FTCA claims alleging excessive force, the 12 Ninth Circuit has specifically used California’s test for reasonableness as it applies to peace 13 officers. See Aviana, 681 F.3d at 1131. That same test thus governs the analysis here. 14 “In California, ‘[c]laims that police officers used excessive force in the course of an 15 arrest, investigatory stop or other seizure of a free citizen are analyzed under the 16 reasonableness standard of the Fourth Amendment to the United States Constitution.’” Id. 17 (citation omitted); see also Wynn v. San Diego Cty., No. 12-3070, 2015 U.S. Dist. LEXIS 18 14033, *25, 28 (S.D. Cal. Feb. 5, 2015) (stating that in California the Fourth Amendment’s 19 reasonableness standard applies to analyzing assault, battery, and negligence claims related 20 to an officer’s use of force) (Moskowitz, C.J.). In short, where a use of force is reasonable 21 under the Fourth Amendment, that same use of force is reasonable as a matter of California 22 tort law. See Hernandez v. City of Pomona, 46 Cal. 4th 501, 518-21 (Cal. 2009); Unger v. 23 McCloskey, No. B219789, 2010 Cal. App. Unpub. LEXIS 5945, *17-20 (2d Dist. July 28, 24 2010); Edson v. City of Anaheim, 63 Cal. App. 4th 1269, 1272-73 (4th Dist. 1998). 25 In fact, California has codified a rule that a law enforcement officer is entitled to a 26 broader right to self-defense against a resisting suspect. See Cal. Pen. Code § 835a (“Any 27 peace officer who has reasonable cause to believe that the person to be arrested has 28 9 The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTS-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.544 Page 18 of 26 1 committed a public offense may use reasonable force to effect the arrest, to prevent escape 2 or to overcome resistance. A peace officer . . . need not retreat or desist from his efforts by 3 reason of the resistance or threatened resistance of the person being arrested.”). As one state 4 appellate court explained: 11 This rule takes into account the special situation of the police defendant. Unlike private citizens, police officers act under color of law to protect the public interest. They are charged with acting affirmatively and using force as part of their duties, because the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. They are, in short, not similarly situated to the ordinary battery defendant and need not be treated the same. In these cases, then, . . . the defendant police officer is in the exercise of the privilege of protecting the public peace and order [and] he is entitled to the even greater use of force than might be in the same circumstances required for self-defense. 12 Edson, 63 Cal. App. 4th at 1273 (internal quotations and citation omitted). To hold 13 otherwise, the court explained, “would invite a flood of litigation.” Id. at 1275. “If the law 14 required police to defend the reasonableness of their conduct any time a plaintiff made a 15 prima facie case by showing an offensive touching, the already heavy burdens law 16 enforcement bears for us would become cetaceous. And we would all suffer.” Id. 5 6 7 8 9 10 17 California has also codified a rule that a use of deadly force “is justifiable when 18 committed by public officers . . . [w]hen necessarily committed in overcoming actual 19 resistance to the execution of some legal process, or in the discharge of any other legal 20 duty.” Cal. Pen. Code § 196. “The test for determining whether a homicide was justifiable 21 under Penal Code section 196 is whether the circumstances reasonably create[d] a fear of 22 death or serious bodily harm to the officer or to another.” Martinez v. Cty. of Los Angeles, 23 47 Cal.App.4th 334, 349 (2d Dist. 1996) (internal quotations and citation omitted). 24 Thus, for the same reasons why SA Gonzalez’s use of force did not violate the Fourth 25 Amendment, it also did not constitute a state tort under California law. See Memorandum 26 of Points and Authorities in Support of the Individual-Capacity Defendants’ Motion to 27 Dismiss Plaintiffs’ Third Amended Complaint, at 11-12 (filed this same date). Namely, at 28 10 The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTS-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.545 Page 19 of 26 1 the time of the shooting, a reasonable officer could have believed that Llanez was 2 participating in a major drug transaction and had just committed an assault (or at least 3 attempted an assault) by brandishing a weapon and running at SA Gonzalez. Based on this 4 same conduct, SA Gonzalez had probable cause to believe that Llanez posed an immediate 5 and serious threat to his safety. And it is well settled that an officer’s use of deadly force is 6 reasonable where he had probable cause to believe that the suspect posed an immediate and 7 serious threat to his safety or the safety of others. See Smith v. City of Hemet, 394 F.3d 689, 8 704 (9th Cir. 2005) (en banc) (collecting cases); see also Corrales v. Impastato, 650 F. 9 App’x 540, 541-42 (9th Cir.) (“Faced with a tense and rapidly evolving situation, [the 10 officer] had probable cause to believe that [the suspect] posed a significant threat of death 11 or serious physical injury to himself or others, and was therefore justified in firing at [the 12 suspect] to end the perceived threat.”), cert. denied, 137 S. Ct. 571 (2016). 13 The body wire recording, though not necessary to resolve this motion, further 14 supports this conclusion. Indeed, on the recording, SA Gonzalez can be heard screaming in 15 pain and yelling “help.” He then immediately discharged his weapon in a matter of two 16 seconds, yelled “help” two more times, and repeatedly stated that he thought Llanez had 17 shot him. The entire incident, from when SA Gonzalez first started running to when he fired 18 his last shot, lasted a total of nine seconds. In sum, regardless of whether this Court 19 considers the body wire recording, the conclusion is the same: SA Gonzalez’s use of force 20 was reasonable as a matter of state tort law. 21 22 23 24 25 26 27 This conclusion aligns with California’s long-standing reluctance to second-guess an officer’s decision to use deadly force during tense and rapidly evolving circumstances: The law has never been applied to suggest that there is only one reasonable action that an officer may take under a given set of circumstances. There will virtually always be a range of conduct that is reasonable. As long as an officer’s conduct falls within the range of conduct that is reasonable under the circumstances, there is no requirement that he or she choose the most reasonable action or the conduct that is the least likely to cause harm and at the same time the most likely to result in the successful apprehension of a 28 11 The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTS-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.546 Page 20 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 violent suspect, in order to avoid liability for negligence. It would be unreasonable to require police officers in the field to engage in the sort of complex calculus that would be necessary to determine the best or most effective and least dangerous method of handling an immediate and dangerous situation, particularly when officers are forced to make split-second decisions under tense and often perilous conditions. Brown v. Baldwin, No. D059750, 2013 Cal. App. Unpub. LEXIS 5958, *35 (4th Dist. Aug. 22, 2013) (internal quotations and citation omitted). Here, SA Gonzalez had to make a splitsecond decision during a tense and rapidly evolving situation on whether to use deadly force against an advancing suspect armed with a Taser. In the only case located by the United States where a violently resisting suspect used a Taser on an officer and continued to advance toward him, the court held that “[a] reasonable officer would have feared having his or her handgun stripped away while under the Taser’s affect a second time,” especially given that “[a] suspect stripping an officer’s handgun away from his or her possession is a grave danger.” Mitchell v. City of Mobile, No. 15-0360, 2017 U.S. Dist. LEXIS 67321, *4244 (S.D. Ala. May 3, 2017) (citation omitted). The court went on to hold that the officers “were not required to wait until [the suspect] was within arms’ length, using the Taser – or a commandeered handgun – against one of them before they could act.” Id. at 43 (citation omitted). The court found “no authority for [the] proposition that the officers should have retreated or simply tried to avoid [the suspect’s] advances,” and concluded that the use of deadly force was not unreasonable and “did not amount to a constitutional violation.” Id. at 43, 50. California law compels the same conclusion as a matter of state tort law. See Martinez, 47 Cal.App.4th at 345 (“[A]n officer may reasonably use deadly force when he or she confronts an armed suspect in close proximity whose actions indicate an intent to attack.”). This Court should accordingly dismiss all three state tort claims (Counts Three, Four, and Five), with prejudice. There are two additional points to be made with respect to the two negligence claims. First, as part of their negligence claims, Plaintiffs allege that the individual defendants violated various duties arising from the Fourth and Fourteenth Amendments as well as 28 12 The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTS-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.547 Page 21 of 26 1 unspecified “policies and procedures.” Third Am. Compl. ¶ 109. However, as stated 2 previously, the Supreme Court has “consistently held that § 1346(b)’s reference to the ‘law 3 of the place’ means law of the State – the source of substantive liability under the FTCA.” 4 Meyer, 510 U.S. at 478 (citations omitted); see also Delta Sav. Bank v. United States, 265 5 F.3d 1017, 1025 (9th Cir. 2001) (“The ‘law of the place’ in § 1346(b) has been construed 6 to refer to the law of the state where the act or omission occurred.”). Thus, for purposes of 7 identifying the duty, federal constitutional law and internal policies and procedures are 8 irrelevant; “any duty that the United States owed to plaintiffs must be found in California 9 state tort law.” Delta Sav. Bank, 265 F.3d at 1025; see also Love v. United States, 60 F.3d 10 642, 644 (9th Cir. 1995) (“The breach of a duty created by federal law is not, by itself, 11 actionable under the FTCA.”). The third amended complaint’s attempt to impose liability 12 under the FTCA by reference to the Fourth and Fourteenth Amendments and unspecified 13 “policies and procedures” is simply improper as a matter of law. 14 Second, Plaintiffs allege, in conclusory fashion, that the individual defendants 15 “negligently or otherwise wrongfully breached their duty of care when they placed 16 themselves in a position such as to discharge a firearm at decedent, resulting in Decedent’s 17 death.” Third Am. Compl. ¶ 110. To the extent Plaintiffs are attempting to challenge the 18 tactical conduct leading up to the shooting, they run afoul of the FTCA’s discretionary 19 function exception. See Donaldson v. United States, No. 15-908, 2018 U.S. Dist. LEXIS 20 31849, *44 (S.D. Cal. Feb. 26, 2018) (“While California law allows consideration of an 21 officer’s pre-shooting conduct, the discretionary function exception to the FTCA limits this 22 Court’s jurisdiction to consider any discretionary pre-shooting conduct.”). Indeed, although 23 the FTCA waives the sovereign immunity of the United States for certain damages actions 24 based on the negligence and other wrongful acts or omissions of federal employees, it is 25 limited by a number of exceptions, including the discretionary function exception. See 26 Arteaga-Ruiz v. United States, 705 F. App’x 597, 598 (9th Cir. 2017) (citations omitted); 27 see also 28 U.S.C. § 2680(a). Under that exception, the United States retains its sovereign 28 13 The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTS-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.548 Page 22 of 26 1 immunity for acts that were (1) discretionary; and (2) based on considerations of public 2 policy. Berkovitz v. United States, 486 U.S. 531, 536-37 (1988). An act is “discretionary” 3 if it retains an element of judgment or choice. See Green v. United States, 630 F.3d 1245, 4 1249 (9th Cir. 2011). 5 Here, the Ninth Circuit is replete with cases holding that how federal officers conduct 6 their investigations, including how they design undercover operations, is both discretionary 7 and based on considerations of public policy; and thus, such conduct cannot form the basis 8 for FTCA liability. See, e.g., Arteaga-Ruiz, 705 F. App’x at 598 (“[A] federal investigation 9 ‘clearly require[s] investigative officers to consider relevant political and social 10 circumstances in making decisions about the [investigation’s] nature and scope.”) (quoting 11 Sabow v. United States, 93 F.3d 1445, 1453 (9th Cir. 1996), as amended (Sept. 26, 1996)); 12 Gonzalez v. United States, 814 F.3d 1022, 1032 (9th Cir. 2016) (“The investigation of crime 13 involves policy judgments at the core of the executive branch.”); Dupris v. McDonald, 554 14 F. App’x 570, 573 (9th Cir. 2014) (“We have further noted that investigations by federal 15 officers include the type of policy judgments protected by the discretionary function test.”); 16 see also Suter v. United States, 441 F.3d 306, 312 (4th Cir. 2006) (“We agree with the core 17 principle articulated by the Eighth and Ninth Circuits – that discretionary, policy-based 18 decisions concerning undercover operations are protected from civil liability by the 19 discretionary function exception, even when those decisions result in harm to innocent third 20 parties.”) (citing Frigard v. United States, 862 F.2d 201, 203 (9th Cir. 1988) (per curiam)); 21 Patty v. United States, No. 13-3173, 2015 U.S. Dist. LEXIS 54871, *28 (S.D. Tex. Apr. 27, 22 2015) (“Courts have consistently held that covert law-enforcement operations . . . are 23 susceptible to policy analysis and covered by the discretionary function exception.”); Woods 24 v. United States, No. 07-593, 2007 U.S. Dist. LEXIS 80931, *12 (D.N.J. Oct. 31, 20007) 25 (“The conduct involved in an undercover investigation involves the kind of policy-based 26 considerations that are central to the discretionary function exception.”). In sum, even 27 though California might consider pre-shooting tactical conduct as a matter of state law under 28 14 The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTS-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.549 Page 23 of 26 1 certain circumstances, the FTCA’s discretionary function exception bars this Court from 2 considering that discretionary conduct here. Thus, no matter how much Plaintiffs want to 3 criticize the undercover sting operation itself, this Court cannot consider those arguments 4 in determining whether SA Gonzalez’s use of force amounted to negligence.4 5 Finally, even if some pre-shooting conduct is relevant and Plaintiffs could overcome 6 the discretionary function exception, California courts have held that “[t]he reasonableness 7 of the [officer’s] preshooting conduct should not be considered in isolation, however; rather, 8 it should be considered as part of the totality of circumstances surrounding the fatal shooting 9 of [the decedent].” Hayes v. Cty. of San Diego, 57 Cal. 4th 622, 637 (Cal. 2013). In that 10 regard, California courts have generally refused to second-guess an officer’s pre-shooting 11 conduct where the facts alleged show that at the time of the shooting, the officer had 12 probable cause to make an arrest and was confronted with a suspect who was either fleeing 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Plaintiffs previously criticized the undercover operation because federal officers allegedly failed to investigate whether Llanez and his associates were purchasing 2,000 pounds of marijuana from a van in a parking lot for $150,000 for medical reasons in strict compliance with California law. According to Plaintiffs, United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016), requires such an investigation because Section 542 of the 2015 Appropriations Bill prohibits the Department of Justice from using appropriated funds to prosecute individuals who engage in conduct in full compliance with state medical marijuana laws. Id. at 1177. But McIntosh only held that a criminal defendant is entitled to an evidentiary hearing to determine if his conduct was completely authorized by state law, and if so, left it to the district courts to fashion an appropriate remedy against prosecution. Id. at 1179. It did not hold that Section 542 prohibited the Department of Justice – or any other federal agency – from investigating potential violations of marijuana laws. But even if McIntosh was somehow relevant, Plaintiffs would be hard pressed to argue that Llanez and his associates were in strict compliance with California law when they tried to purchase 2,000 pounds of marijuana from a van in a parking lot for $150,000 given that California charged Llanez’s associates for doing so. See Sec. Am. Compl. Felony, People of Cal. v. Ibarra Arias, et al., No. CD287220 (Cal. Sup. Ct., Cnty. of San Diego, Sept. 28, 2016) (attached hereto as Exhibit 2). It is well settled that Rule 201 of the Federal Rules of Civil Procedure permits a court to take judicial notice of state court filings. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (citation omitted). Notably, California not only charged Llanez’s associates with conspiracy to violate its own state marijuana laws, but also with conspiracy to commit a robbery and assault with a deadly weapon (the Taser). 15 The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTS-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.550 Page 24 of 26 1 or actively resisting. See, e.g., Hernandez, 46 Cal. 4th at 518-21 (refusing to second-guess 2 officer’s pre-shooting conduct where officer otherwise had probable cause to arrest and 3 pursue suspect); Gonzales v. Cal., No. A142229, 2016 Cal. App. Unpub. LEXIS 8758, *21- 4 23 (1st Dist. Nov. 15, 2016) (same); Perez v. City of Fremont, No. A140271, 2015 Cal. 5 App. Unpub. LEXIS 1431, *24-25 (1st Dist. Feb. 26, 2015) (refusing to second-guess 6 officer’s pre-shooting conduct where at the time of the shooting the suspect brandished and 7 displayed a willingness to use his weapon). That is precisely the situation SA Gonzalez 8 faced here: he had probable cause to believe that Llanez was participating in a major drug 9 transaction and was attempting an assault, and at the time of the shooting Llanez brandished 10 his weapon and started running at SA Gonzalez. Based on those allegations, SA Gonzalez’s 11 use of deadly force was reasonable as a matter of state law. 12 C. 13 THIS COURT SHOULD DISMISS COUNTS FOUR AND FIVE AS DUPLICATIVE OF COUNT THREE. 14 Count Three alleges two state tort claims for battery and negligence against the 15 individual defendants arising out of the shooting of Llanez. See Third Am Compl., at 29- 16 32. Counts Four and Five allege the same state tort claims against the United States arising 17 out of the same conduct. Id. at 32-35. Now that the United States has substituted itself for 18 the individual defendants on Count Three and is the sole defendant on that count, Counts 19 Four and Five are wholly duplicative of Count Three, seeking the same relief against the 20 same defendant for the same conduct. This Court should accordingly dismiss Counts Four 21 and Five as duplicative of Count Three. See, e.g., Cuc Dang v. Sutter’s Place, Inc., No. 10- 22 2181, 2010 U.S. Dist. LEXIS 124875, *16-17 (N.D. Cal. Nov. 24, 2010) (dismissing tort 23 claims as duplicative where claim is “wholly predicated on the conduct forming the basis 24 of plaintiff’s other tort claims”); Hands on Video Relay Servs. v. Am. Sign Language Servs. 25 Corp., No. 09-996, 2009 U.S. Dist. LEXIS 124899, *22 (E.D. Cal. Aug. 12, 2009) 26 (dismissing counterclaim as duplicative where both claims alleged same breach of same 27 duty); Soliz v. Haley, No. 09-1555, 2010 U.S. Dist. LEXIS 43187, *5 (D. Ariz. April 2, 28 16 The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTS-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.551 Page 25 of 26 1 2010) (dismissing constitutional tort claim as duplicative where it relies on the same 2 underlying theory of liability and same facts); see also Golden v. West Corp., No. 11-0182, 3 2012 U.S. Dist. LEXIS 15262, *9 (E.D. Wash. Feb. 8, 2012) (“Since double recovery is not 4 permissible for claims arising out of the same facts, duplicative claims must be dismissed,” 5 unless Plaintiff alleges separate injuries.). 6 Plaintiffs previously argued that while all three counts involve the same claims and 7 elements, they must continue to assert all three counts because the damages available under 8 the California Wrongful Death Statute differ from the damages available under the FTCA. 9 That is incorrect. “[T]he measure of damages under the [FTCA] is based on state law.” 10 Felder v. United States, 543 F.2d 657, 663 (9th Cir. 1976); see also Liebsack v. United 11 States, 540 F. App’x. 640, 642 (9th Cir. 2013) (“The components and measure of damages 12 in FTCA claims are taken from the state where the tort occurred.”) (citation omitted). Here, 13 because all three counts arise out of events that occurred in California, the measure of 14 damages on all three counts is based on the California Wrongful Death Statute, with the 15 caveat that under no circumstances shall the United States be liable for interest prior to 16 judgment or for punitive damages. See 28 U.S.C. § 2674; see also In re Air Crash Disaster 17 near Cerritos, 982 F.2d 1271, 1275-76 (9th Cir. 1992) (applying California law to calculate 18 damages on FTCA wrongful death claim). In short, the claims, elements, and measure of 19 damages on all three counts are the same, rendering Counts Four and Five duplicative. IV. 20 21 CONCLUSION Based on the foregoing, this Court should grant the motion to dismiss Counts Three, 22 Four, and Five against the United States, with prejudice. 23 DATED: February 13, 2019 Respectfully submitted, 24 JOSEPH H. HUNT Assistant Attorney General, Civil Division 25 26 ROBERT S. BREWER, JR. United States Attorney Southern District of California 27 28 17 The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTS-AGS Case 3:17-cv-01205-BTM-AGS Document 46-1 Filed 02/13/19 PageID.552 Page 26 of 26 1 C. SALVATORE D’ALESSIO, JR. Acting Director Torts Branch, Civil Division 2 3 RICHARD MONTAGUE Senior Trial Counsel Torts Branch, Civil Division 4 5 7 s/ Siegmund F. Fuchs SIEGMUND F. FUCHS Trial Attorney Torts Branch, Civil Division 8 Attorneys for the Federal Defendants 6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 The United States of America’s Mem. re: Motion to Dismiss TAC - 17cv1205-BTS-AGS Case 3:17-cv-01205-BTM-AGS Document 46-2 Filed 02/13/19 PageID.553 Page 1 of 5 1 2 3 4 5 6 7 SIEGMUND F. FUCHS Trial Attorney, Torts Branch D.C. Bar No. 986828 U.S. Department of Justice Ben Franklin Station P.O. Box 7146 Washington, D.C. 20044-7146 Telephone: (202) 616-4322 Facsimile: (202) 616-4314 Email: siegmund.f.fuchs@usdoj.gov Attorney for the Federal Defendants UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Case No.: 17cv1205-BTM-AGS ELIZABETH JIMINEZ, individually, and as successor in interest of FERNANDO GEOVANNI LLANEZ, deceased; FERNANDO LLANEZ, individually, and as successor in interest of FERNANDO GEOVANNI LLANEZ, deceased Plaintiffs, EXHIBIT 1 TO THE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE INDIVIDUAL DEFENDANTS AND THE UNITED STATES OF AMERICA’S MOTIONS TO DISMISS THE THIRD AMENDED COMPLAINT: DECLARATION OF GERMAN BURGOIN vs. THE UNITED STATES OF AMERICA; CHULA VISTA POLICE DEPARTMENT, a public entity; CITY OF CHULA VISTA, a public entity; RONALDO RICARDO GONZALEZ, an individual; MARCUS OSORIO, an individual; CHRIS BARONI, an individual; ANGELA SANCHEZ, an individual; MICHAEL BURBANK, an individual; JEREMY DORN, an individual; ANTHONY CASTELLANOS, an individual; MARK MEREDITH, an individual; and DOES 1-100, inclusive, CTRM: 15B JUDGE: Hon. Barry Ted Moskowitz Defendants. 28 1 Declaration of German Burgoin re: the Federal Defendants’ Motions to Dismiss TAC - 17cv1205-BTM-AGS \Dm?mm-?wm? ase Document 46-2 Filed 02/13/19 PageID.554 Page20f5 1, German Burgoin, declare under penalty of perjury as follows: 1. I am currently employed by US. Immigration and Customs Enforcement as a Special Agent, speci?cally assigned to the Special Agent in Charge, Of?ce of Homeland Security Investigations, located in San Diego, California. I have been employed with ICE since 2015. I was previously assigned to Contraband Smuggling Group 1. My duties included investigating criminal violations relating to the smuggling and transportation of controlled substances. I have participated in numerous investigations, many of which involved the arrest of persons for violations of the Controlled Substances Act. I am currently assigned to the Border Enforcement Security Taskforce Gangs and Weapons group. If called as a witness to testify, I could and would competently testify to the matters stated herein. 2. This declaration is in support of the Federal Defendants? Motions to Dismiss the Third Amended Complaint in the above-captioned case. 3. As a Special Agent, I have personal knowledge of the original audio recording from the body wire worn by Special Agent Ronaldo Gonzalez at the time of the shooting of Fernando Geovanni Llanez on June 14, 2016, in Chula Vista, California. The original or native ?le of the audio recording was stored with the Chula Vista Police Department. Homeland Security Investigations made a compact disc or evidence copy from the original audio stored on the body wire. From the evidence copy, Homeland Security Investigations made an additional copy and excerpted the ?rst 25 seconds and the last 4 minutes and 17 seconds, for a total of 4 minutes and 42 seconds, and then copied that 4:42 excerpt onto a compact disc. 4. Attached as Exhibit 1 is a true and accurate copy of the 4:42 excerpted audio recording referenced in Paragraph 3 of this declaration. I have reviewed the evidence copy made by Homeland Security Investigations and Exhibit 1. The recorded events contained in the 4:42 excerpted audio recording in Exhibit 1 were not altered from the evidence copy 2 Declaration of German Burgoin re: the Federal Del?endants' Motions to Dismiss TAC - Czse Document46?2 Filed 02/13/19 PagelD.555 Page30f5 of the original audio recording stored on the body wire worn by Special Agent Ronaldo Gonzalez on June 14, 2016. I declare, under the laws of the United States, that the foregoing is true and correct. Executed this i?day of February, 2019. German Burgoin, Wial Agent 3 Declaration ochrman Burgoin re: the Federal Dcl?cndants? Motions to Dismiss TAC - ITCVIZDS-BTM-AGS Case 3:17-cv-01205-BTM-AGS Document 46-2 Filed 02/13/19 PageID.556 Page 4 of 5 1 2 3 4 5 6 7 SIEGMUND F. FUCHS Trial Attorney, Torts Branch D.C. Bar No. 986828 U.S. Department of Justice Ben Franklin Station P.O. Box 7146 Washington, D.C. 20044-7146 Telephone: (202) 616-4322 Facsimile: (202) 616-4314 Email: siegmund.f.fuchs@usdoj.gov Attorney for the Federal Defendants UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Case No.: 17cv1205-BTM-AGS ELIZABETH JIMINEZ, individually, and as successor in interest of FERNANDO GEOVANNI LLANEZ, deceased; FERNANDO LLANEZ, individually, and as successor in interest of FERNANDO GEOVANNI LLANEZ, deceased Plaintiffs, EXHIBIT 1 TO THE DECLARATION OF GERMAN BURGOIN IN SUPPORT OF THE INDIVIDUAL DEFENDANTS AND THE UNITED STATES OF AMERICA’S MOTIONS TO DISMISS THE THIRD AMENDED COMPLAINT CTRM: 15B JUDGE: Hon. Barry Ted Moskowitz vs. THE UNITED STATES OF AMERICA; CHULA VISTA POLICE DEPARTMENT, a public entity; CITY OF CHULA VISTA, a public entity; RONALDO RICARDO GONZALEZ, an individual; MARCUS OSORIO, an individual; CHRIS BARONI, an individual; ANGELA SANCHEZ, an individual; MICHAEL BURBANK, an individual; JEREMY DORN, an individual; ANTHONY CASTELLANOS, an individual; MARK MEREDITH, an individual; and DOES 1-100, inclusive, Defendants. 28 1 Exhibit 1 to the Declaration of German Burgoin re: the Federal Defendants’ Motions to Dismiss TAC - 17cv1205-BTM-AGS Case 3:17-cv-01205-BTM-AGS Document 46-2 Filed 02/13/19 PageID.557 Page 5 of 5 1 Exhibit 1 to the Declaration of German Burgoin is an audio compact disc. This 2 document is just a placeholder. A copy of the audio compact disc has been submitted to 3 the Chambers of the Honorable Barry Ted Moskowitz on this same date. 4 5 DATED: February 13, 2019 Respectfully submitted, JOSEPH H. HUNT Assistant Attorney General, Civil Division 6 7 ROBERT S. BREWER, JR. United States Attorney Southern District of California 8 9 C. SALVATORE D’ALESSIO, JR. Acting Director Torts Branch, Civil Division 10 11 RICHARD MONTAGUE Senior Trial Counsel Torts Branch, Civil Division 12 13 15 s/ Siegmund F. Fuchs SIEGMUND F. FUCHS Trial Attorney Torts Branch, Civil Division 16 Attorneys for the Federal Defendants 14 17 18 19 20 21 22 23 24 25 26 27 28 2 Exhibit 1 to the Declaration of German Burgoin re: the Federal Defendants’ Motions to Dismiss TAC - 17cv1205-BTM-AGS Case 3:17-cv-01205-BTM-AGS Document 46-3 Filed 02/13/19 PageID.558 Page 1 of 2 1 2 3 4 5 6 7 SIEGMUND F. FUCHS Trial Attorney, Torts Branch D.C. Bar No. 986828 U.S. Department of Justice Ben Franklin Station P.O. Box 7146 Washington, D.C. 20044-7146 Telephone: (202) 616-4322 Facsimile: (202) 616-4314 Email: siegmund.f.fuchs@usdoj.gov Attorney for the Federal Defendants UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Case No.: 17cv1205-BTM-AGS ELIZABETH JIMINEZ, individually, and as successor in interest of FERNANDO GEOVANNI LLANEZ, deceased; FERNANDO LLANEZ, individually, and as successor in interest of FERNANDO GEOVANNI LLANEZ, deceased Plaintiffs, NOTICE OF LODGMENT OF EXHIBIT ONE TO THE DECLARATION OF GERMAN BURGOIN IN SUPPORT OF THE INDIVIDUAL DEFENDANTS AND THE UNITED STATES OF AMERICA’S MOTIONS TO DISMISS THE THIRD AMENDED COMPLAINT CTRM: 15B JUDGE: Hon. Barry Ted Moskowitz vs. THE UNITED STATES OF AMERICA; CHULA VISTA POLICE DEPARTMENT, a public entity; CITY OF CHULA VISTA, a public entity; RONALDO RICARDO GONZALEZ, an individual; MARCUS OSORIO, an individual; CHRIS BARONI, an individual; ANGELA SANCHEZ, an individual; MICHAEL BURBANK, an individual; JEREMY DORN, an individual; ANTHONY CASTELLANOS, an individual; MARK MEREDITH, an individual; and DOES 1-100, inclusive, Defendants. 28 1 Notice of Lodgment re: the Federal Defendants’ Motions to Dismiss TAC - 17cv1205-BTM-AGS Case 3:17-cv-01205-BTM-AGS Document 46-3 Filed 02/13/19 PageID.559 Page 2 of 2 1 The United States of America and Individual Defendants Ronaldo Gonzalez, Jeremy 2 Dorn, Marcus Osorio, Chris Baroni, Angela Sanchez, Michael Burbank, Anthony 3 Castellanos, and Meredith Marks hereby submit this Notice of Lodgment of Exhibit One 4 to the Declaration of German Burgoin in support of their Motions to Dismiss the Third 5 Amended Complaint (both filed concurrently herewith). 6 7 Exhibit Description 1 Compact Disc of Excerpted Body Wire Recording Page Numbers N/A 8 9 DATED: February 13, 2019 Respectfully submitted, 10 JOSEPH H. HUNT Assistant Attorney General, Civil Division 11 12 ROBERT S. BREWER, JR. United States Attorney Southern District of California 13 14 C. SALVATORE D’ALESSIO, JR. Acting Director Torts Branch, Civil Division 15 16 RICHARD MONTAGUE Senior Trial Counsel Torts Branch, Civil Division 17 18 s/ Siegmund F. Fuchs SIEGMUND F. FUCHS Trial Attorney Torts Branch, Civil Division 19 20 Attorneys for the Federal Defendants 21 22 23 24 25 26 27 28 2 Notice of Lodgment re: the Federal Defendants’ Motions to Dismiss TAC - 17cv1205-BTM-AGS Case 3:17-cv-01205-BTM-AGS Document 46-4 Filed 02/13/19 PageID.560 Page 1 of 5 1 2 3 4 5 6 7 SIEGMUND F. FUCHS Trial Attorney, Torts Branch D.C. Bar No. 986828 U.S. Department of Justice Ben Franklin Station P.O. Box 7146 Washington, D.C. 20044-7146 Telephone: (202) 616-4322 Facsimile: (202) 616-4314 Email: siegmund.f.fuchs@usdoj.gov Attorney for the Federal Defendants UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Case No.: 17cv1205-BTM-AGS ELIZABETH JIMINEZ, individually, and as successor in interest of FERNANDO GEOVANNI LLANEZ, deceased; FERNANDO LLANEZ, individually, and as successor in interest of FERNANDO GEOVANNI LLANEZ, deceased Plaintiffs, EXHIBIT 2 TO THE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE UNITED STATES OF AMERICA’S MOTION TO DISMISS THE AMENDED COMPLAINT: STATE CRIMINAL COMPLAINT CTRM: 15B JUDGE: Hon. Barry Ted Moskowitz vs. THE UNITED STATES OF AMERICA; CHULA VISTA POLICE DEPARTMENT, a public entity; CITY OF CHULA VISTA, a public entity RONALDO RICARDO GONZALEZ, an individual; MARCUS OSORIO, an individual; CHRIS BARONI, an individual; ANGELA SANCHEZ, an individual; MICHAEL BURBANK, an individual; JEREMY DORN, an individual; ANTHONY CASTELLANOS, an individual; MARK MEREDITH, an individual; and DOES 1-100, inclusive, Defendants. 28 1 State Criminal Complaint re: the United States of America’s Motion to Dismiss FAC - 17cv1205-BTM-AGS Case Document 46-4 Filed 02/13/19 PageID.561 Page20f5 @0391? IN CUSTODY SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO SOUTH COUNTY DIVISION oiS CALIFORNIA, C'l? No. C8287220 Plaintiff DA No. ammo v. SECOND AMENDED COMPLAINT-FELONY SERGIO mmum ARMS, Booking No. 1613779504 a ?gm m1: Ibarm; INFORMATION BERNAI. MORENO, Booking No. I 6 73 7 780/! .- Date: RAFAEL AGUILAR MORTAYO, Booking No. aka: Mat! Marla-Jo Agm'br; MIGUEL ANTONIO PARRA. Booking No. 16137762/1; DANIEL RIZO. Booking No. 16 I 3768 7/1: DAMIAN CESAR MARTINEZ, IAIME DANIEL MARTINEZ. Defendants PC296 DNA TEST SUMMARY Defendant DINA Testing Requirements ARMS, SERGIO IBARRA DNA is presently REQUIRED MORENOJOVANI BERNAL DNA is presently REQUIRED MORTAYO, RAFAEL AGUILAR DNA sample required upon conviction RRA, MIGUEL ANTONIO DNA 15 presently REQUIRED RIZOJESUS DANIEL DNA is presently REQUIRED MARTINEZ, DAMIAN CESAR DNA sample required upon conviction Page I of 5, Court Case No. C8287220 Case Document 46- COUNT 1 - CONSPIRACY TO COMMIT A CRIME COUNT 2 - ASSAULT WITH DEADLY WEAPON COUNT 3 - CONSPIRACY TO COMMIT A CRIME CHARG On or aboutjune 14. 2016, JOVANI BERNAL MORENO, 4 Filed 02/13/19 PagelD.562 Page30f5 ES MIGUEL ANTONIO PARRA, DAMIAN CESAR MARTINEZ, andeIME DANIEL MARTINEZ did unlawfully conspire together and with another person and persons whose identity is unknown to commit the crime of SECTION 182(a)(1). Thereafter, in the County of San Diego, State of California, 1: the objects thereof: ACT On or aboutjune 14, DAMIAN CESAR JAIME DANIEL MAJ San Diego Corinty. enal Code section 2] l, in violation of PENAL CODE ursuant to the above consPiracy and in furtherance of BERNAL MORENO, MIGUEL ANTONIO PARRA, TINEZ met with other co-conspirators at a hotel in OVERT ACT On or aboutjune I4, 2016, BERNAL MORENO, MIGUEL ANTONIO PARRA, DAMIAN CESAR MARTINEZ, and DANIEL IVL RTINEZ transported taser to 2310 Proctor Valley Road, Chula Vista, with other co-conspirators. OVERT ACT On or aboutjune 14, I BERNAL MORENO, MIGUEL ANTONIO PARRA, DAMIAN CESAR MARTINEZ, and JAIME DANIEL IVL Vista, with other co-eonspirators. On or aboutju?c l4, ZOIGJOVANI BERNAL MORENO, MARTINEZ, and JAIME DANIEL MARTINEZ did unlaw weapon and instrument, in violation of PENAL CODE SEC On or about june 14, BERNAL MORENO, ANTONIO PARRAJESUS DANIEL RIZO, DAMIAN did unlawfully conspire together and with anorher person am crime of Health and Safety Code section 11359, in violation Thereafter, in the County of San Diego, State of California, the objects thereof: OVERT ACT On or aboutjune 14, 2016, SERGIC RAFAEL AGUILAR MORTAYO, MIGUEL ANTONIO I MARTINEZ, and DANIEL MARTINEZ met with prior to the incident. Page 3 of 5, Court Cris TINEZ arrived at 2310 Proctor Valley Road, Chula MIGUEL ANTONIO PARRA, DAMIAN CESAR fully commit an assault upon Another with a deadly TION RAFAEL AGUIIAR MIGUEL ESAR MARTINEZ, and JAIME DANIEL MARTINEZ I persons whose identity is unknown to commit the >f PENAL CODE SECTION 182(a)(1). ursuartr to the above conspiracy and in furtherance of IBARRA ARIASJOVANI BERNAL MORENO, DANIEL RIZO, DAMIAN CESAR other co-conspirators at a hotel in San Diego County a No. C5287220 Case Documentp46? CHARGES OVERT ACT On or about june 14, 2016, SERG It RAFAEL AGUILAR MORTAYO. MIGUEL ANTONIO I MARTINEZ, and JAIME DANIEL MARTINEZ arrived at co-conspirators. OVERT ACT On or aboutjune 14, 2016, RAFAEL AGUILAR MORTAYO, MIGUEL ANTONIO i MARTINEZ, and JAIME DANIEL MARTINEZ inspected Road, Chula Vista. 4 Filed 02/13/19 PagelD.563 Page4of5 cont'd) IBARRA ARIAS, BERNAL MORENO, DANIEL RIZO, DAMIAN CESAR 2310 Proctor Valley Road, Chula Vista, With other 3 IBARRA ARIAS, BERNAL MORENO, DANIEL RIZO, DAMIAN CESAR controlled substances for quality at 2310 Proctor Valley NOTICE: Any defendant named on this complaint who is on cr complaint, on notice that the evidence presented to the court at a dual purpose: the People are seeking a holding order on the ch simultaneously, the People are seeking a revocation of the defenr utilizing the same evidence. at the preliminary hearing. Defenses presented as appropriate at the preliminary hearing. Any defendant named on this complaint who is on receiving this complaint, on notice that the evidence presented t< presented for a dual purpose: the People are seeking a holding and simultaneously, the People are seeking a revocation of the dc Sections I and 1203.2, on any and all such grants, uu Defense to either or both procedures should be considered and lminal probation in San Diego County is, by receiving this he preliminary hearing on this complaint is presented for trges pursuant to Penal Code Section 872 and laut?s probation, on any and all such probation grants, to either or both procedures should be considered and [andatory Supervision in San Diego County is, by the court at the preliminary hearing on this complaint is rder on the charges pursuant to Penal Code Section 872 fendant?s Mandatory Supervision pursuant to Penal Code lizing the same evidence, at the preliminary hearing. >resented as appropriate at the preliminary hearing. Pursuant to PENAL CODE SECTION the People are hereby informally requesting that defendant's counsel provide discovery to the People as required by PENAL CODES Sheriff?s records indicate that as of the booking date one or more database. Pursuant to Penal Code Section 296(e), the court advised by the prosecuting attorney that a sample is required but Penal Code sections 296/ 296.1 if nor already required from a pa be required to provide a sample upon conviction of this felony MANDATORY STATE PRISON An ex MIGUEL ANTONIO PARRA in state prison pursuant to PEN. MANDATORY STATE PRISON INCARCERATION: An ex JOVANI BERNAL MORENO in state prison pursuant to PEN Page 4 of 5, Court Cas< ON 1054.3. defendants have not yet provided a DNA sample to the shall order collection of DNA from the defendant(s) if has not been provided by the defendant. Pursuant to st conviction, any defendants who have not done so will Efense. :cuted sentence for a felony shall be served by defendant AL CODE SECTIONS 1170(f) and :cuted sentence for a felony shall be served by defendant AL CODE SECTIONS 1170(f) and . No. CSZ87220 Case Document46?4 Filed 02/13/19 PageID.564 Page 5-of5 I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT AND THAT THIS COMPLAINT, CASE NUMBER C8287220, CONSISTS OF 3 COUNTS. Executed at City of Chula Vista. County of San Diego, State of California, on September 28, 2016. INFORMATION BONNIE M. DUMANIS District A (tom ey County of San Diego State of California by: Date Deputy District Attorney Page 5 of 5, Court Case No. C5287220 Case 3:17-cv-01205-BTM-AGS Document 46-5 Filed 02/13/19 PageID.565 Page 1 of 3 1 2 3 4 5 6 7 SIEGMUND F. FUCHS Trial Attorney, Torts Branch D.C. Bar No. 986828 U.S. Department of Justice Ben Franklin Station P.O. Box 7146 Washington, D.C. 20044-7146 Telephone: (202) 616-4322 Facsimile: (202) 616-4314 Email: siegmund.f.fuchs@usdoj.gov Attorney for the Federal Defendants 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 Case No.: 17cv1205-BTM-AGS ELIZABETH JIMINEZ, individually, and as successor in interest of FERNANDO GEOVANNI LLANEZ, deceased; FERNANDO LLANEZ, individually, and as successor in interest of FERNANDO GEOVANNI LLANEZ, deceased Plaintiffs, CERTIFICATE OF SERVICE vs. 17 18 19 20 21 22 23 24 25 26 27 28 THE UNITED STATES OF AMERICA; CHULA VISTA POLICE DEPARTMENT, a public entity; CITY OF CHULA VISTA, a public entity; RONALDO RICARDO GONZALEZ, an individual; MARCUS OSORIO, an individual; CHRIS BARONI, an individual; ANGELA SANCHEZ, an individual; MICHAEL BURBANK, an individual; JEREMY DORN, an individual; ANTHONY CASTELLANOS, an individual; MARK MEREDITH, an individual; and DOES 1-100, inclusive, Defendants. 1 Certificate of Service re: the United States of America’s Motion to Dismiss TAC - 17cv1205-BTM-AGS Case 3:17-cv-01205-BTM-AGS Document 46-5 Filed 02/13/19 PageID.566 Page 2 of 3 1 IT IS HEREBY CERTIFIED that: 2 I, SIEGMUND F. FUCHS, am a citizen of the United States and am at least eighteen 3 years of age. My business address is U.S. Department of Justice, Torts Branch, Benjamin 4 Franklin Station, Washington, D.C., 20044-7146. 5 6 7 8 9 10 11 12 I am not a party to the above-captioned case. I have caused service of the following documents: NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ THIRD AMENDED COMPLAINT MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DECLARATION OF GERMAN BURGOIN (EXHIBIT 1) NOTICE OF LODGMENT OF EXHIBIT STATE CRIMINAL COMPLAINT (EXHIBIT 2) 13 on the parties listed below by electronically filing the foregoing with the Clerk of the 14 District Court using its ECF System, which electronically notifies the following parties 15 and/or their counsel in this case: 16 17 18 19 20 Jorge I. Hernandez 823 Anchorage Place Chula Vista, CA 91914 Daniel Martin Smith 585 Third Avenue Chula Vista, CA 91914 21 22 23 Karen Lynn Rogan 276 Fourth Avenue Chula Vista, CA 91910 24 I have caused service of Exhibit 1 to the Declaration of German Burgoin by mailing, 25 via Federal Express, a copy of the compact disc to the above-referenced parties and/or their 26 counsel (Mr. Hernandez and Ms. Rogan) at the above-referenced mailing addresses. 27 28 2 Certificate of Service re: the United States of America’s Motion to Dismiss TAC - 17cv1205-BTM-AGS Case 3:17-cv-01205-BTM-AGS Document 46-5 Filed 02/13/19 PageID.567 Page 3 of 3 1 2 I declare under penalty of perjury that the foregoing is true and correct. Executed on February 13, 2019. s/ Siegmund F. Fuchs SIEGMUND F. FUCHS 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Certificate of Service re: the United States of America’s Motion to Dismiss TAC - 17cv1205-BTM-AGS