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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

JESSE BLUNT and DANIELLE

DARDEN,

NO. 2:04-cv-1743-MCE-DAD

Plaintiffs,

v. MEMORANDUM AND ORDER

COUNTY OF SACRAMENTO; CITY OF

ELK GROVE; ELK GROVE POLICE

DEPARTMENT; SERGEANT M. BOYES;

DEPUTY M. ROGERS; DEPUTY P.

McCLUNG; DEPUTY K. BUNN; and

DOES 1 through 100 inclusive,

Defendants.

----oo0oo----

Through the present action, Plaintiffs Jesse Blunt and

Danielle Darden seek damages from Defendants as a result of the

circumstances surrounding their arrest and subsequent detainment

by law enforcement personnel on February 9, 2002. Plaintiffs

assert claims under 42 U.S.C. § 1983 on theories of excessive

force and false arrest, and further allege a conspiracy claim

under 42 U.S.C. § 1985. Plaintiffs further assert various state

law claims, including violation of the Unruh Civil Rights Act

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According to Plaintiffs’ Amended Complaint, both Sergeant 1

Boyes and the other individually named Defendants, Deputies

Michael Rogers, Kelly Bunn and Paul McClung, are appointed and

act as officers for both the City of Elk Grove Police Department

and the County of Sacramento Sheriff’s Department. (Pls.’ Am.

Compl., ¶¶ 18, 19, 51). This is because the Sacramento County

Sheriff’s Department is under contract to provide law enforcement

services to the City of Elk Grove. (Rogers Dep., 21:17-21). 

Consequently both the City of Elk Grove, the City of Elk Grove

Police Department, and the County of Sacramento have also been

named as Defendants.

2

(Cal. Civil Code § 52.1), assault and battery, false

imprisonment, malicious prosecution, intentional infliction of

emotional distress and negligence. Defendants now collectively

move for summary judgment, or in the alternative summary

adjudication, on grounds that Plaintiff’s Complaint is barred by

applicable statutes of limitation and/or by governmental

immunities to which Defendants are entitled. While Defendants’

Motion for Summary Judgment is denied, as set forth below summary

adjudication will be granted as to certain claims.

BACKGROUND

This case arises from a noise complaint lodged with the Elk

Grove Police Department on February 9, 2002. According to the

reporting party, a black male in his 20's had “been pumping his

music” from a “little black Honda” for the past hour. The caller

specifically identified the location of the parked car at 8765

Crucero Drive, a residential area in Elk Grove. (See Pls.’

Undisputed Fact (“UF”) Nos. 4-7). Defendant Michelle Boyes, a

sergeant with the Elk Grove Police Department, ultimately 1

responded to the complaint after a radio transmission was

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dispatched to her patrol vehicle. While this much is

uncontroverted, the parties disagree on virtually everything that

transpired after Sergeant Boyes arrived in the neighborhood.

According to Sergeant Boyes, she immediately heard a loud

stereo with “a lot of bass” as she approached Crucero Drive, and

thereafter noticed what she perceived (at a distance of some

fifty feet) to be a black male reaching into a white truck,

presumably to turn off the music. (See Pls.’ UF No. 24). She

proceeded to exit the vehicle and to approach the black male,

Plaintiff Jesse Blunt, despite the fact that the complaint

described a “little Black Honda” rather than a white truck.

Further, Mr. Blunt’s truck was parked in front of the residence

he shared with his fiancee, Plaintiff Danielle Darden, at 8769

Crucero Drive, not the 8765 Crucero address identified in the

noise complaint.

Plaintiff Blunt, for his part, denies that he ever had the

radio on and states that he was simply in the process of putting

water in his truck’s radiator when Sergeant Boyes arrived. 

(Blunt Decl., ¶ 8). Sergeant Boyes claims that although Blunt

willingly provided his first name when asked to identify himself,

he resisted when asked to also provide his last name and

identification and became increasingly agitated, particularly

when he observed Boyes running a records check. (Boyes Dep.

160:6-12; 151:10-21). This caused Sergeant Boyes to make a radio

dispatch to the effect that she was dealing with an uncooperative

individual. 

///

///

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4

That dispatch, in turn, caused other officers to arrive at the

scene as back-up, including Deputies Rogers, Bunn and McClurg,

all of whom, as stated above, are individually named as

Defendants herein along with Sergeant Boyes.

Plaintiff Blunt, on the other hand, claims that he was

cooperative with Sergeant Boyes and did not become alarmed until

after Deputy Rogers arrived. At that point, Blunt alleges that

Boyes pushed his nose with her finger, stating that he was only

willing to cooperate once another man had arrived. (Blunt Decl.,

¶ 13). According to Blunt, this caused him to step back, to

inform Boyes that her badge did not allow her to touch him in

that fashion, and to tell Deputy Rogers that he consequently did

not want to continue talking to Boyes. (Id. at ¶ 14). That 

announcement prompted Sergeant Boyes to direct that Deputy Rogers

detain Blunt in a patrol vehicle. Blunt alleges that Rogers

then, without provocation, lunged at him with great force in

“football tackle” fashion. While Blunt sidestepped that maneuver

and claims he fell to the ground as a “surrender”, he states that

the responding officers, which by this time included all four

individually named Defendants, proceeded to strike, hit and choke

him until he lost consciousness. Id. at ¶¶ 16-17. Blunt denies

that he ever struck any officer (Blunt Dep., 70:4-5), and a

neighbor who witnessed at least part of the incident, Gloria

Bell, never observed Blunt either hit law enforcement personnel

or provide any resistance to the deputies. (Pls.’ UF 69, 70).

Defendants’ version of events is drastically different. As

stated above, Sergeant Boyes claims that Blunt became agitated

almost immediately, especially when she began a records check. 

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Despite the February weather, she claims that Blunt was not

wearing a shirt and began sweating profusely. She claims he

would not stay put during her questioning and began to walk

towards his truck and the garage, where she observed tools that

she believed could be used as weapons. All of this engendered a

concern on Boyes’ part that Blunt might be a “wanted person,

perhaps even a wanted felon.” (Boyes Dep., 160:6-16). She

denies sticking her finger in Blunt’s face, and claims that when

she decided that the circumstances warranted his detention in her

patrol car, Blunt jerked away and backed up as she and Deputy

Rogers tried to lead him to the vehicle. According to Boyes,

Blunt then hit Deputy Rogers on the right side of the face and

began “boxing and dancing like basically Muhammad Ali.” (Id. at

257:16-17). Deputy Rogers confirmed this development, even to

the extent of using the Ali/Cassius Clay analogy and describing

Blunt as “bouncing back and forth” with “both fists up” and

wanting to “fight”. (Rogers Dep., 188:23-189:11).

The wide discrepancy between the competing version of events

offered by the parties continues unabated in Defendants’ version

of the resistance offered by Plaintiff Blunt. The officers claim

that they had to physically take Blunt down, using body weight

and control holds, as Blunt continued to kick and thrash about. 

Deputy Bunn states that he had to use his collapsible baton, or

asp, to hit Blunt in the ribs so that his arms could be extended

and handcuffed. (See Defendants’ Proposed UF Nos. 57, 58).

Defendants also contend that because Plaintiff Darden would

neither stay away from the ongoing altercation or obey directives

that she refrain from any intervention, they had to physically

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restrain Ms. Darden and place her in handcuffs. Darden, on the

other hand, denies that any officer ever told her to step back

from the incident (Darden Dep., 49:5-7), and claims that she was

thrown to the ground and then pushed against the door of Sergeant

Boyes’ patrol car by Deputy Bunn. (See Darden Decl., ¶¶ 13-15).

Darden further claims that after she and Blunt were placed in the

patrol car, she saw officers standing about and laughing. Id. at

¶ 19.

Jesse Blunt was subsequently charged, by Misdemeanor

Complaint filed in state court on February 15, 2002, with

resisting and obstructing a peace officer in violation of

California Penal Code § 148(a)(1), and with battery on a police

officer in violation Penal Code §§ 242 and 243(b). Danielle

Darden was charged with resisting and obstructing the officers

pursuant to the same complaint. The charges against both

Plaintiffs were dismissed by the Sacramento County District

Attorney’s Office on March 10, 2004.

On August 7, 2002, while the criminal charges were still

pending, Plaintiffs filed tort claims with both the County of

Sacramento and the City of Elk Grove. The County of Sacramento

served a rejection as to the claims against it on August 26,

2002. Elk Grove denied Plaintiff Darden’s claim on October 9,

2002. Blunt’s claim was rejected two days later, on October 11,

2002.

On February 25, 2003, Plaintiffs filed a lawsuit in state

court against the County of Sacramento alleging assault and

battery, only. 

///

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7

The City of Elk Grove was not a named defendant in that action,

which was voluntarily dismissed by Plaintiffs on September 23,

2004. The present lawsuit was commenced the following day.

 

STANDARD

The Federal Rules of Civil Procedure provide for

summary judgment when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c). One of the

principal purposes of Rule 56 is to dispose of factually

unsupported claims or defenses. Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986).

Rule 56 also allows a court to grant summary adjudication on

part of a claim or defense. See Fed. R. Civ. P. 56(a) (“A party

seeking to recover upon a claim ... may ... move ... for a

summary judgment in the party’s favor upon all or any part

thereof.”); see also Allstate Ins. Co. v. Madan, 889 F. Supp.

374, 378-79 (C.D. Cal. 1995); France Stone Co., Inc. v. Charter

Township of Monroe, 790 F. Supp. 707, 710 (E.D. Mich. 1992).

The standard that applies to a motion for summary

adjudication is the same as that which applies to a motion for

summary judgment. See Fed. R. Civ. P. 56(a), 56(c); Mora v.

ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998).

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8

Under summary judgment practice, the moving party

always bears the initial responsibility of informing

the district court of the basis for its motion, and

identifying those portions of ‘the pleadings,

depositions, answers to interrogatories, and admissions

on file together with the affidavits, if any,’ which it

believes demonstrate the absence of a genuine issue of

material fact.

Celotex Corp. v. Catrett, 477 U.S. at 323(quoting Rule 56(c)).

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist. 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

585-87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S.

253, 288-89 (1968).

In attempting to establish the existence of this factual

dispute, the opposing party must tender evidence of specific

facts in the form of affidavits, and/or admissible discovery

material, in support of its contention that the dispute exists. 

Fed. R. Civ. P. 56(e). The opposing party must demonstrate that

the fact in contention is material, i.e., a fact that might

affect the outcome of the suit under the governing law, and that

the dispute is genuine, i.e., the evidence is such that a

reasonable jury could return a verdict for the nonmoving party. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52

(1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper

Workers, 971 F.2d 347, 355 (9th Cir. 1987). 

///

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///

///

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Stated another way, “before the evidence is left to the jury,

there is a preliminary question for the judge, not whether there

is literally no evidence, but whether there is any upon which a

jury could properly proceed to find a verdict for the party

producing it, upon whom the onus of proof is imposed.” Anderson,

477 U.S. at 251 (quoting Improvement Co. v. Munson, 14 Wall. 442,

448, 20 L.Ed. 867 (1872)). As the Supreme Court explained,

“[w]hen the moving party has carried its burden under Rule 56(c),

its opponent must do more that simply show that there is some

metaphysical doubt as to the material facts .... Where the record

taken as a whole could not lead a rational trier of fact to find

for the nonmoving party, there is no ‘genuine issue for trial.’” 

Matsushita, 475 U.S. at 586-87.

In resolving a summary judgment motion, the evidence of the

opposing party is to be believed, and all reasonable inferences

that may be drawn from the facts placed before the court must be

drawn in favor of the opposing party. Anderson, 477 U.S. at 255. 

Nevertheless, inferences are not drawn out of the air, and it is

the opposing party’s obligation to produce a factual predicate

from which the inference may be drawn. Richards v. Nielsen

Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985),

aff’d, 810 F.2d 898 (9th Cir. 1987).

///

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10

ANALYSIS

A. Claim Presentation Issues

Defendants argue that Plaintiffs’ claims, in their entirety,

are time barred. First, they allege that Plaintiffs failed to

file their federal causes of action premised on 42 U.S.C. § 1983

within the applicable two-year statute of limitations. Secondly,

with respect to Plaintiffs’ remaining state law claims,

Defendants allege that the instant lawsuit, filed on August 24,

2004, was filed more than six months after Plaintiffs’ tort

claims were rejected by the County of Sacramento and the City of

Elk Grove. Finally, in a related matter also pertaining to the

presentation requirements applicable to Plaintiffs’ tort claims,

Defendants claim that the tort claims were largely insufficient

in the first place, because they failed to discuss all the legal

theories ultimately asserted by Plaintiffs in this Complaint, and

because the involvement of the specific officers ultimately sued

was not enumerated with enough specificity. Each of those

arguments will be addressed in turn.

1. Timeliness of § 1983 Claims. The parties agree that the

applicable statute of limitations for Plaintiffs’ § 1983 claims

is two years. In Wilson v. Garcia, 471 U.S. 261, 279-280 (1985),

the Supreme Court held that because § 1983 actions are best

characterized as actions for injuries to personal rights, the

state statute of limitations applicable to personal injury

actions should apply. 

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See also McDougal v. County of Imperial, 942 F.2d 668, 671-72

(9th Cir. 1991). In California, that limitations period is

currently two years as set forth in California Code of Civil

Procedure § 335.1. Defendants contend that Plaintiffs’ § 1983

claims are time barred because the present action was not filed

until August 24, 2004, more than two years after the underlying

incident of February 9, 2002.

Significantly, however, both the length of the § 1983

limitations period, as well as any related question of whether

that period is subject to tolling, is determined by reference to

state law. Wilson, 471 U.S. at 268-69, see also Trimble v. City

of Santa Rosa, 49 F.3d 583 (9th Cir. 1995). Consequently, if

California law provides that the two year period for filing suit

in this case is tolled, that assessment bears on the timeliness

of Plaintiff’s § 1983 claims. California Government Code § 945.3

specifies that if an individual is charged with a criminal

offense, any potential claim that individual has against law

enforcement personnel relating to that offense is tolled during

the time the criminal charges remain pending. The statute states

in pertinent part as follows: 

“No person charged by indictment, information, complaint, or

other accusatory pleading charging a criminal offense may

bring a civil action for money or damages against a peace

officer or the public entity employing a peace officer based

upon conduct of the peace officer relating to the offense

for which the accused is charged, including an act or

omission in investigating or reporting the offense or

arresting or detaining the accused, while the charges

against the accused are pending before a justice, municipal,

or superior court.

Any applicable statute of limitations for filing and

prosecuting these actions shall be tolled during the period

that the charges are pending before a justice, municipal, or

superior court.

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...

Nothing in this section shall prohibit the filing of a claim

with the board of a public entity, and this section shall

not extend the time within which a claim is required to be

presented pursuant to Section 911.2.”

(emphasis added).

Based on this express statutory language, the period of time

during which criminal charges were pending against Plaintiffs

(February 15, 2002 through March 10, 2004) is excluded from the

two year period for a timely claim premised on § 1983. Since the

present action was commenced less than seven months after the

criminal charges against Plaintiffs were dismissed, and since

only some nine days of the limitations period had transpired

before those charges were instituted, after the tolled period is

excluded Plaintiffs’ § 1983 claims were filed well within the

requisite two year period.

This interpretation has been adopted by the Ninth Circuit. 

In Harding v. Galceran, 889 F.2d 906 (9th Cir. 1989), the

plaintiff was acquitted of criminal misdemeanor charges just over

two years after those charges had been filed. The plaintiff then

proceeded to sue the law enforcement personnel involved, and the

district court entered summary judgment in favor of the deputies. 

On appeal, the Ninth Circuit rejected the district court’s

reasoning that § 945.3 was inapplicable to § 1983 claims because 

the California statute arguably prohibited bringing a federal

lawsuit and hence ran afoul of the Supremacy Clause (Art. VI, cl.

2) of the United States Constitution. 

///

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The Harding court explained that even though § 945.3 cannot

prohibit a potential plaintiff from bringing a § 1983 claim under

the Supremacy Clause, that does not mean that the tolling period

of the statute does not apply. The court found “no inconsistency

between the purposes of section 945.3's tolling provision and the

policies behind section 1983. Id. at 909. To the contrary, as

Harding noted, “since federal law requires this court to apply

state tolling rules, application of section 945.3's tolling

provision ensures consistent adjudication in state and federal

courts.” Id. 

In attempting to avoid the constraints of § 945.3 on the

running of the statute of limitations in this case, Defendants

cite to a California decision, Damjanovic v. Ambrose, 3 Cal. App.

4th 503 (1992). That case contains language suggesting that once

an action has been filed, the rationale of the tolling provisions

of § 945.3 is no longer applicable. Defendants contend that

because Plaintiffs went ahead and filed a state court action

against Sacramento County on February 25, 2003, while the

criminal charges against them in fact remained pending,

Damjanovic constitutes authority for the proposition that no

tolling provisions whatsoever should apply.

The defense reliance on Damjanovic is misplaced. First, 

the case is factually distinguishable. Damajanovic involved a

criminally charged litigant who filed suit against the involved

law enforcement personnel while the criminal charges against him

remained pending. 

///

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When defendant moved to dismiss the civil action against him on

grounds that no service of summons had been effectuated within

the required three year period, plaintiff argued that the time

for accomplishing such service should be tolled under § 945.3. 

The court rejected that argument since plaintiff had already

chosen to file the lawsuit, and once he did so, tolling

provisions were unavailable to skirt the requirements attendant

to that lawsuit.

Here, on the other hand, Plaintiffs are not attempting to

both file a premature lawsuit and simultaneously use the same

statute prohibiting such a filing during the pendency of criminal

proceedings (§ 945.3) in order to excuse their mishandling of the

lawsuit. Instead, Plaintiffs herein unquestionably filed the

instant action after the charges against them were dismissed. 

They are not attempting to selectively use the provisions of §

945.3 in a competing fashion so as to serve their own purposes.

In addition, nothing in Damjanovic, which involved

inconsistent positions taken within the same lawsuit, lends

itself to a conclusion that the Plaintiffs’ filing of a state

lawsuit not including § 1983 claims can be used to somehow

prohibit Plaintiffs from later filing their federal claims. 

Plaintiffs’ filing, and subsequent dismissal, of a state lawsuit

alleging only state claims for assault and battery simply has no

bearing on their ability to assert federal statutory claims

sounding under § 1983. Plaintiffs’ § 1983 claims are

consequently not time barred, and Defendants’ request for summary

adjudication in that regard is denied.

///

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The state claims sought to be dismissed on this basis do 2

not include the assault and battery claims asserted against the

County of Sacramento in the Fifth Cause of Action, or Plaintiffs’

allegation that Defendants violated the Unruh Civil Rights Act,

California Civil Code § 52.1 (in the Sixth Cause of Action).

15

2. Timeliness of State Tort Claims. In addition to arguing

that Plaintiffs’ § 1983 claims are barred by the applicable

statute of limitations, Defendants also contend that the

remaining state claims are untimely as well. According to the

defense, both Plaintiffs filed tort claims with the County of

Sacramento and with the City of Elk Grove that were denied in

writing on August 26, 2002 (County) and on October 9 and 11, 2002

(City). Defendants cite to California Government Code § 945.6,

which provides that adequate written notice by a public entity of

a claim’s rejection triggers a six month period for timely filing

a lawsuit on the rejected claim. Because the present action was

not filed until August 24, 2004, almost two years after service

of their rejections, Defendants argue that the state claims now

asserted by Plaintiffs are time barred. 

2

While Defendants assert that Plaintiffs’ state court filing,

and the pendency of that lawsuit between February 2003 and

September of 2004 should not operate to equitably toll the time

period for asserting Plaintiffs’ state claims, it is not

necessary to consider the effect, if any, of the state action in

concluding that the state claims asserted in the present lawsuit

are indeed timely. Nor is it necessary to determine whether the

City of Elk Grove’s rejection letters strictly complied with the

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Plaintiffs alternatively assert that because the City of 3

Elk Grove did not mail the rejection letters to the proper

address, the six-month period should be extended to two years

under Government Code § 945.6(a)(2).

16

notice requirements of California Government Code § 913, because 3

the Court concludes that Plaintiffs’ claims were filed within the

requisite six month period after subtracting the time criminal

charges were pending against them under § 945.3.

As already discussed, § 945.3 tolls the time within which an

individual may assert claims against law enforcement personnel

until criminal charges against the individual no longer remain

pending. Because the statute specifically does not extend the

time for filing an initial claim with a public entity pursuant to

California Government Code § 911.2, Plaintiffs herein had to file 

their tort claims with the County of Sacramento and the City of

Elk Grove within six months following the February 9, 2002

incident, which they did. Although the language of § 945.3

specifically exempts the time for presenting a tort claim from

its purview, there is nothing in the statute that suggests it is

not applicable to the six month limitation period under § 945.6

for bringing a lawsuit once the public entity claim is rejected. 

Indeed, § 945.6 states unequivocally that “any applicable statute

of limitations for filing and prosecuting... actions shall be

tolled during the period that [criminal] charges are pending...”

(emphasis added). The limitation periods contained within §

945.6 are unquestionably treated as statutes of limitation. 

Moore v. Twomey, 120 Cal. App. 4th 910, 913-14 (2004).

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Consequently the time during which criminal charges were pending

against Plaintiffs must be excluded in determining the requisite

six month period for filing suit.

Because both rejections occurred while the criminal

proceedings against Plaintiffs remained active, the statute of

limitations did not begin to run until March 10, 2004, after

which time Plaintiffs had six months to file suit on their state

law claims. The fact that Plaintiffs filed suit on August 24,

2004, less than six months later, means that their state law

claims are timely. Defendants are accordingly not entitled to

summary adjudication as to this issue.

3. Sufficiency of State Tort Claims. Defendants argue that

Plaintiffs are precluded from asserting any claim by way of the

present action that is not specifically reflected in the

underlying tort claims. According to Defendants, because the

claims filed with the County of Sacramento and the City of Elk

Grove refers only to an assault and battery, Plaintiffs cannot

plead the additional causes of action reflected in their Amended

Complaint, which include claims for false imprisonment, malicious

prosecution, intentional infliction of emotional distress,

negligence, and violation of the Unruh Civil Rights Act. 

Defendants go on to assert that because the relevant tort claims

fail to specifically identify the officers ultimately sued,

claims against those officers also cannot be asserted.

The Defendants’ arguments are misplaced. 

///

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A complaint may present a much fuller exposition of the facts

than the underlying tort claim, so long as the complaint is not

based on an “entirely different set of facts.” See Stevenson v.

San Francisco Housing Authority, 24 Cal. App. 4th 269, 278

(1994). Assertions set forth in a complaint are barred only when

they reflect a “complete shift in allegations” from the initial

tort claim. Blair v. Superior Court, 218 Cal. App. 3d 221, 226

(1990). Where the complaint merely elaborates or adds further

detail to a claim, but is predicated on the same fundamental

actions or omissions, courts have generally found the underlying

claim to be sufficient. White v. Superior Court, 225 Cal. App.

3d 1505, 1510-11 (1990).

In White, the tort claim at issue alleged that the plaintiff

was beaten and falsely arrested by a police officer. Following

rejection of that claim, the plaintiff filed a complaint that

included additional causes of action alleging, among other

things, negligent hiring, training and retention and intentional

failure to train, supervise, and discipline by the City of San

Francisco. The White court rejected plaintiff’s claim that these

new causes of action were not fairly reflected in the claim filed

with the City, reasoning that both the claim and complaint were

premised on the same alleged mistreatment:

“Both Plaintiff’s complaint and her claim were predicated on

the same fundamental facts – Officer Sanford’s alleged

mistreatment of Plaintiff. The causes of action for

negligent hiring, training, and retention and for failure to

train, supervise and discipline merely sought to show the

direct responsibility of San Francisco for Officer Sanford’s

conduct. Plaintiff did not shift the fundamental facts

about her injury.”

Id. at 1511. 

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Defendants have requested the Court to take judicial notice 4

of both the misdemeanor complaint, related documents filed in

conjunction with that complaint, and Plaintiff’s complaint filed

in state court on or about February 25, 2003. Those requests are

unopposed and are granted.

19

This reasoning is equally applicable here. Plaintiffs have

not changed the fundamental facts upon which their claims are

based. Like the Complaint, the tort claims filed with the County

of Sacramento refer to Plaintiffs being “struck, beaten and

brutalized by Elk Grove Police.” (See Exs. 1 and 2 to the Decl.

of John C. Joiner). The claims lodged with the City of Elk Grove

similarly describe Plaintiffs as being “assaulted” and “beat up

and battered” by the police. (Exs. 1 and 2 to the Decl. Of Terry

Fitwater). The essential gravamen of both the tort claims and

the ensuing Complaint is unchanged.

The defense’s assertion that the individual officers have

not been adequately identified is also untenable. The Sacramento

County claim refers to the misdemeanor complaint by case number

as detailing the names of the implicated officers. Examination

of that complaint shows that Sergeant Boyes, Deputy Rogers and 4

Deputy Bunn are all identified therein by rank and badge number. 

Moreover, the arrest report also contained within the court file

identifies Deputy McClurg and describes his involvement. In

addition, the City of Elk Grove tort claims also make specific

numeric reference to the same arrest report which delineates all 

participants to the February 9, 2002 incident. Under these

circumstances Defendants herein cannot feign either ignorance or

lack of notice as to their claimed roles in this matter. 

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The purpose of the California Tort Claim Act is to give a

governmental entity notice sufficient for it to investigate and

evaluate potential claims, not to eliminate meritorious actions. 

Blair v. Superior Court, 218 Cal. App. 3d at 225. The notice

received by Defendants herein was sufficient to satisfy that

purpose.

Summary adjudication as to the sufficiency of the underlying

tort claims is denied. 

B. Qualified Immunity Defense

In addition to arguing that Plaintiffs’ claims are time

barred, Defendants also claim that their actions are insulated in

any event from prosecution under various immunity doctrines. 

Turning first to Plaintiff’s claims under § 1983, the defense of

qualified immunity shields an officer from trial when the officer

"reasonably mis-apprehends the law governing the circumstances

she confronted," even if the officer’s conduct was

constitutionally deficient. Brosseau v. Haugen, 543 U.S. 194,

125 S. Ct. 596, 599, 160 L. Ed. 2d 583 (2004)(per curiam). 

Where, as here, some or all of the defendants seek qualified

immunity, a ruling on that issue should be made early in the

proceedings so that the costs and expenses of trial are avoided

where the defense is dispositive. Saucier v. Katz, 533 U.S. 194,

121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). In Saucier, the

Supreme Court laid out the framework for determining an officer’s

entitlement to qualified immunity. 

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The threshold inquiry requires a court to ask, "taken in the

light most favorable to the party asserting the injury, do the

facts alleged show the officer’s conduct violated a

constitutional right?" Id. at 201. The inquiry ends at this

stage if no constitutional right is found to have been violated;

the plaintiff cannot prevail. Id. If, on the other hand, the

plaintiff’s allegations do make out a constitutional injury, then

the court must determine whether that constitutional right was

clearly established at the time of the violation. Id. If the

right was not clearly established, the qualified immunity

doctrine shields the officer from further litigation. Id. 

Finally, even if the violated right was clearly established, the

Saucier court recognized that it may be difficult for a police

officer fully to appreciate how the legal constraints apply to

the specific situation he or she faces. Under such a

circumstance, "if the officer’s mistake as to what the law

requires is reasonable, . . . the officer is entitled to the

immunity defense." Id. at 205.

Plaintiffs’ § 1983 claims herein are premised on theories of

excessive force, false arrest, and conspiracy under 42 U.S.C. §

1985 to fabricate false police reports and to levy malicious

charges against Plaintiffs. As is evident from the recitation of

events set forth above, virtually every factual aspect of this

case is in hot dispute. In the face of that dispute, Saucier

instructs that the facts must be taken in the light most

favorable to Plaintiffs in assessing the first prong of the

qualified immunity analysis. 

///

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If we give deference to the Plaintiffs’ version of events,

as we must, and accept as true Plaintiffs’ version of an

unprovoked, unwarranted and brutal assault by the officers in

question, there can be no doubt for purposes of the present

motion that Plaintiffs’ constitutional rights have been violated. 

It is equally beyond dispute that Plaintiffs’ right to be free of

excessive force and false arrest is clearly established under the

Constitution; indeed, Defendants make no credible argument to the

contrary. The real area of inquiry, then, in determining whether

qualified immunity should apply rests with whether the officers’

actions were “reasonable” given the circumstances under which

they found themselves confronted.

The utter disparity between what Plaintiffs claim occurred,

and the version of events offered by Defendants, prevents this

Court from making any qualified immunity determination by way of

summary judgment. Whether or not a reasonable officer would have

believed his actions were reasonable is a determination of law

that can be made upon summary judgment only if the material facts

are undisputed. LaLonde v. County of Riverside, 204 F.3d 947,

953 (9th Cir. 2000). Where, as here, the parties disagree on

what the plaintiffs or the officers actually did, the matter must

proceed to trial. Id. 

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C. Applicability of State Law Immunities

In arguing that Defendants are also immunized from liability

with respect to Plaintiffs’ state law claims, much of the

rationale for rejecting any federal qualified immunity defense

applies with equal force. Defendants first contend, for example,

that Plaintiffs cannot establish a violation of the Unruh Civil

Rights Act if the same conduct does not support a claim under 42

U.S.C. § 1983. The defense hence asks the Court to dispose of

the Unruh Act claim simply on grounds that no § 1983 claims can

be maintained, either on grounds that such claims are time-barred

or are subject to qualified immunity. The Court’s rejection of

both those arguments, and its conclusion that § 1983 claims can

be maintained at this time, obviously removes Defendants’

proffered rationale for dismissing the Unruh Act claim.

With respect to Plaintiffs’ state claims for assault and

battery, false imprisonment, and intentional infliction of

emotional distress, Defendants pose arguments similar to those

also posed in advocating qualified immunity. They argue that the

force they used to detain Plaintiffs was reasonable, whereas

Plaintiffs must show that unreasonable force was used, and that

the officers acted unreasonably, in order to make a prima facie

case of assault and battery against a police officer. Defendants

further contend that no claim for false imprisonment can lie

because Blunt’s own actions caused the arrest. 

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Finally, in asking the Court to find no “outrageous” conduct

lending itself to intentional infliction of emotional distress,

Defendants also, in essence, ask the Court to subscribe to their

version of events.

All this focuses on the version of events offered by the

defense and ignores the fact that Plaintiffs offer a starkly

different scenario of what occurred on February 9, 2002. If

Plaintiffs are believed, this Court cannot say as a matter of law

that they will be unable to establish claims not only for assault

and battery, but for false imprisonment and intentional

infliction of emotional distress as well. Defendants are no more

entitled to state immunity as to those claims than they are

entitled to qualified immunity on the § 1983 causes of action.

Plaintiffs have not established viable claims, however, for

negligence and for malicious prosecution in that they have

identified no authority which controverts the defense argument

that immunity applies to both those claims. With respect to the

Ninth Cause of Action, for negligent training, hiring, discipline

and retention against the public entity Defendants, only,

Defendants County of Sacramento and City of Elk Grove contend

that Plaintiffs have not identified any statute or enactment that

would suffice in imposing direct liability on them as opposed to

vicarious liability for the acts or omissions of their employees. 

California Government Code § 815.2 provides that a public entity

is itself immune from any direct liability resulting from the

conduct of its employees “except as otherwise provided by

statute”. 

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Plaintiffs have made no showing of any such statutory basis for

direct liability under California law as to the County of

Sacramento and the City of Elk Grove. At the very least, the

statute or enactment imposing such liability must be identified. 

Searcy v. Hemet Unified School District, 177 Cal. App. 3d 792,

802 (1986). Plaintiff’s failure to meet that burden mandates

that summary adjudication be granted as to the Ninth Cause of

Action.

Defendants have also established that any liability for

malicious prosecution is precluded by California Government Code

§ 821.6, which grants immunity to any public employee for “injury

caused by his instituting or prosecuting any judicial or

administrative proceeding within the scope of his employment,

even if he acts maliciously and without probable cause.” See

Asgari v. City of Los Angeles, 15 Cal. 4th 744, 756-57 (1997). 

Plaintiffs conceded that § 821.6 does bar their Seventh Cause of

Action, for malicious prosecution, and summary adjudication as to

that claim will consequently be entered in favor of Defendants.

D. Failure to State Viable Claim

Defendants make two arguments in the context of their

qualified immunity argument that more properly relate to

Plaintiffs’ failure to state a viable claim rather than to a per

se defense of qualified immunity. 

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First, Defendants point out that while Plaintiff’s Third Cause of

Action, for a § 1983 violation premised on excessive force, is

predicated according to the Amended Complaint on not only the

Fourth Amendment but also the First, Fifth, Eighth and Fourteenth

Amendments (See Am. Comp., ¶ 30), in fact the Supreme Court has

made it clear that the Fourth Amendment is the exclusive avenue

for relief in excessive force cases. Graham v. Connor, 490 U.S.

386, 396-97 (1989); see also Armendariz v. Penman, 75 F.3d 1311,

1326 (9th Cir. 1996). Plaintiffs concede that they are indeed

limited to the Fourth Amendment as to their excessive force claim

(See Opp., 25:20-24), and summary adjudication to that effect is

accordingly granted.

The second issue on which Defendants seek summary

adjudication is more problematic. In their Third Cause of

Action, Plaintiffs seek redress under 42 U.S.C. § 1985(3) for

Defendants’ alleged conspiracy in, among other things,

fabricating false police reports. Defendants contend that

Plaintiffs cannot pursue a viable conspiracy claim because, under

the so-called “intracorporate conspiracy doctrine”, conspiracies

in civil rights actions cannot lie where individual members of 

the same governmental entity allegedly conspire with each other

while acting in the course and scope of their employment. The

circuits are split over whether extension of the intracorporate

conspiracy doctrine to § 1985 is appropriate. 

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As discussed by the Central District in Hoefer v. Fluor Daniel,

Inc., 92 F. Supp. 2d 1055, 1057-58, while the Second, Fourth,

Sixth and Eighth Circuits have followed the Seventh Circuit’s

lead in so extending the doctrine (in Dombrowski v. Dowling, 459

F.2d 190, 196 (7th Cir. 1972), the Ninth Circuit has to date

expressly declined to decide the issue. See Portman v. County of

Santa Clara, 995 F.2d 898, 910 (9th Cir. 1995). The First and

Third Circuits, on the other hand, have refused to apply the

doctrine. Hoefer, 92 F. Supp. 2d at 1058, and cases cited

therein.

After examination of the cases, and given the fact that the

majority of circuit courts have held that the intracorporate

conspiracy doctrine should indeed apply to § 1985 actions, this

Court will apply the doctrine to the present case. Summary

adjudication as to the Third Cause of Action is therefore

granted.

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Because oral argument will not be of material assistance, 5

the Court orders this matter submitted on the briefs. E.D. Cal.

Local Rule 78-230(h).

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CONCLUSION

For the reasons set forth above, Defendants’ Motion for

Summary Judgment is DENIED. Summary adjudication is, however, 5

granted in favor of Defendants as to the Third, Seventh, and

Ninth Causes of Action. In addition, the application of

Plaintiffs’ First Cause of Action, for excessive force in

violation of 42 U.S.C. § 1983, will be limited to the Fourth

Amendment of the United States Constitution, only. 

IT IS SO ORDERED.

DATED: March 1, 2006

_____________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

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