Christopher Dawel Gomez v. Jose De La Torre - Excessive Force Claim Partially Survives Motion Dismissal

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Jan. 29, 2026 Get Citation Alerts Download PDF Add Note

Christopher Dawel Gomez v. Jose De La Torre

District Court, S.D. California

• Citations: None known
• Docket Number: 3:23-cv-02026

• Precedential Status: Unknown Status

• Opinion

• Authorities (22)

• Cited By (0)

• Summaries (0)

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Trial Court Document

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 CHRISTOPHER DAWEL GOMEZ, Case No.: 23-cv-2026-WQH-DDL

12 Plaintiff, REPORT AND
13 v. RECOMMENDATION FOR
ORDER GRANTING IN PART
14 AND DENYING IN PART
15 JOSE DE LA TORRE, DEFENDANT DE LA TORRE’S
Defendant. MOTION TO DISMISS
16

17 Before the Court is Defendant Jose De La Torre’s Motion to Dismiss
18 (“Motion”). Dkt. No. 88. This Report and Recommendation is submitted to United
19 States District Judge William Hayes pursuant to 28 U.S.C. § 636 (b) and Civil Local
20 Rule 72.1. For the reasons stated below, the undersigned RECOMMENDS the
21 Motion be GRANTED IN PART AND DENIED IN PART.
22 I.
23 INTRODUCTION
24 Plaintiff Christopher Gomez alleges that two San Diego Sheriff’s Office
25 deputies, Defendants Emilio Gonzalez and Jose De La Torre, violated his
26 constitutional rights by using excessive force during his booking at the San Diego
27 Central Jail. Dkt. No. 49 – First Amended Complaint (“FAC”), ¶¶ 17-20.
28 Defendants Gonzalez and the County of San Diego have answered Plaintiff’s
1 Amended Complaint, but De La Torre moves to dismiss, arguing that (1) Gomez
2 did not exhaust his administrative remedies prior to bringing suit; (2) Gomez’s
3 federal claims are barred under Heck v. Humphrey, 512 U.S. 477 (1994); and
4 (3) Gomez’s state law claims must be dismissed because he failed to allege
5 compliance with the California Government Tort Claims Act.
6 The Court previously addressed and rejected identical arguments on the
7 issues of exhaustion of administrative remedies and the Heck doctrine in
8 recommending denial of a functionally identical motion to dismiss brought by
9 Gonzalez, and De La Torre’s arguments in the instant motion fail for the same
10 reasons. However, De La Torre is correct that Gomez fails to allege compliance
11 with the Government Claims Act, which compels dismissal of his state law claims.
12 II.
13 BACKGROUND
14 A. Procedural History
15 On November 1, 2023, Plaintiff (proceeding pro se) filed a civil rights
16 complaint pursuant to 42 U.S.C. § 1983 against Gonzalez and the “San Diego
17 Central Jail.” See Dkt. No. 1. Plaintiff alleged that Gonzalez engaged in “excessive
18 force [and] cruel and unusual punishment” during Plaintiff’s arrest and processing
19 on April 23, 2023, and that the “San Diego Central Jail” failed to protect him from
20 cruel and unusual punishment. On November 14, 2023, after conducting the
21 screening required by 28 U.S.C. §§ 1915 (e)(2) and 1915A(b), the Court dismissed
22 San Diego Central Jail, finding it was not subject to suit under § 1983. Dkt. No. 3
23 at 5. However, the Court found Plaintiff’s allegations against Gonzalez were
24 sufficient to meet the “low threshold” for proceeding. Id. at 7.
25 On April 26, 2024, Gonzalez moved to dismiss the Complaint, arguing that
26 Plaintiff failed to exhaust his administrative remedies, the Heck doctrine bars his
27 claims, and he failed to allege sufficient facts to state an excessive force theory of
28 liability under § 1983. Dkt. No. 11. Plaintiff opposed the motion. Dkt. No. 21. On
1 November 6, 2024, the Court issued a Report and Recommendation (“R&R”)
2 recommending denial of the motion to dismiss. Specifically, the R&R concluded
3 that (1) the issue of whether Plaintiff exhausted his administrative remedies could
4 not be decided on a motion to dismiss, (2) whether the Heck doctrine bars Plaintiff’s
5 § 1983 claims could not be resolved on the current record, and (3) Plaintiff’s
6 Complaint stated a claim for the use of excessive force. Dkt. No. 25. Thereafter,
7 District Judge Hayes adopted the R&R in full and denied the motion to dismiss.
8 Dkt. No. 30.
9 Plaintiff filed his FAC on June 6, 2025. Dkt. No. 49. The FAC asserts claims
10 against Gonzalez, De La Torre, the County of San Diego and the San Diego
11 County Sheriff’s Department as follows:
12 Cause of Action Defendants
13 First Cause of Action Gonzalez, De La Torre, and “County
14 “Violation of Civil Rights Causing of San Diego dba San Diego County
15 Injury” Sheriff’s Department”
16 Second Cause of Action County of San Diego and San Diego
17 “Failure to Supervise Causing County Sheriff’s Department
18 Constitutional Violation”
19 Third Cause of Action County of San Diego and San Diego
20 “Violation of [§ 1983] For County Sheriff’s Department
21 Custom and Practice (Monell)”
22 Fourth Cause of Action Gonzalez, De La Torre, County of
23 Negligence San Diego, and San Diego County
24 Sheriff’s Department
25 Fifth Cause of Action Gonzalez and De La Torre
26 Battery
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1 B. Factual Allegations
2 Plaintiff alleges he was “involved in a car collision” on April 18, 2023. FAC
3 ¶ 17. He was “taken into custody by San Diego Police officers and transported to
4 San Diego County Jail.” Id., ¶ 18. At the San Diego Central Jail, Gonzalez and
5 De La Torre “use[d] force that rendered Plaintiff unconscious and to suffer physical,
6 mental and emotional injuries.” Id., ¶ 19. Specifically, Plaintiff alleges that
7 Gonzalez and De La Torre (1) grabbed his finger in a painful manner, (2) berated
8 and taunted him, (3) punched him in the face, (4) threw him to the ground,
9 (5) placed their body weight on his back and tied his legs down while applying a
10 choke hold, and (6) placed a “spit sock” over his head. Id., ¶ 20.
11 III.
12 LEGAL STANDARDS
13 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
14 “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th
15 Cir. 2001).1 To survive a motion to dismiss, a complaint must plead “enough facts
16 to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
17 550 U.S. 544, 570 (2007); Fed. R. Civ. P. 12(b)(6). The court must “accept all
18 allegations of material fact in the complaint as true and construe them in the light
19 most favorable to the non-moving party,” Cedars-Sinai Med. Ctr. v. Nat’l League
20 of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007), but need not “accept as
21 true allegations that are merely conclusory, unwarranted deductions of fact, or
22 unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F. 3d 1049, 1055 (9th
23 Cir. 2008). “[F]or a complaint to survive a motion to dismiss, the non-conclusory
24 factual content, and reasonable inferences from that content, must be plausibly
25 suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572
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1 Unless otherwise noted, all internal quotations marks, ellipses, brackets,
28 1 F.3d 962, 969 (9th Cir. 2009).
2 IV.
3 DISCUSSION
4 A. Consideration of Matters Outside the Complaint
5 De La Torre submits documents outside of the pleadings with his motion.
6 “Generally, district courts may not consider material outside the pleadings when
7 assessing the sufficiency of a complaint[.]” Khoja v. Orexigen Therapeutics, Inc.,
8 899 F.3d 988, 998 (9th Cir. 2018). “A court may take judicial notice of matters of
9 public record without converting a motion to dismiss into a motion for summary
10 judgment . . . [b]ut a court cannot take judicial notice of disputed facts contained in
11 such public records.” Id. at 999.
12 De La Torre requests the Court take judicial notice of a document titled
13 “Notice of Returned Claim,” issued by the Office of County Counsel Claims and
14 Investigation Division to Plaintiff on January 2, 2024; three records from The
15 People of the State of California v. Christopher Gomez, San Diego Superior Court
16 case number CD298705; and portions of Plaintiff’s deposition transcript in this
17 matter. Dkt. Nos. 88-3, 88-4, 88-5, 88-6 and 88-7. Plaintiff’s opposition does not
18 address the request for judicial notice.
19 Pursuant to Federal Rule of Evidence 201, the Court may take judicial notice
20 of facts “generally known within [its] territorial jurisdiction” or that “can be accurately
21 and readily determined from sources whose accuracy cannot reasonably be
22 questioned.” Fed. R. Evid. 201(b)(1) and (2). The Court may take judicial notice
23 of “court filings and other matters of public record.” Reyn's Pasta Bella, LLC v.
24 Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir.2006).
25 The Court takes judicial notice of the Notice of Returned Claim form as a
26 public record that is “not subject to reasonable dispute.” Reid v. City of Oakland,
27 No. 25-CV-00383-JST, 2025 WL 2172721, at *3 (N.D. Cal. July 31, 2025) (taking
28 judicial notice of claim form). See Est. of Upton v. Cnty. of Riverside, No. EDCV
1 23-2655 JGB (SHKX), 2024 WL 4403899, at *2 (C.D. Cal. Aug. 26, 2024) (taking
2 judicial notice of “Notice of Returned Claim” form).
3 The Court also takes judicial notice of the records from Plaintiff’s Superior
4 Court criminal case. See Gonzales v. City of Los Angeles, No.
5 220CV03519JGBMAA, 2021 WL 4442409, at *3 (C.D. Cal. Mar. 10, 2021), report
6 and recommendation adopted, No. 220CV03519JGBMAA, 2021 WL 4434341 7 (C.D. Cal. May 27, 2021) (taking judicial notice of court document as “a public
8 record that is not subject to reasonable dispute,” and collecting cases). These
9 documents are relevant to the Court’s disposition of De La Torre’s argument that
10 the Heck doctrine bars Plaintiff’s claims. For these reasons, the Court takes
11 judicial notice of the charges brought against Plaintiff, his subsequent guilty plea
12 to two of those counts, and his resulting sentence and incarceration, as reflected
13 in the Superior Court documents.
14 The Court declines to take judicial notice of Plaintiff’s deposition transcript.
15 “Courts in this circuit have denied requests for judicial notice of deposition
16 transcripts pursuant to Federal Rule of Evidence 201(b)(2).” Hinrichsen v. Bank
17 of Am., N.A., No. 17CV219-DMS(RBB), 2018 WL 11649570, at *3 (S.D. Cal. June
18 5, 2018) (collecting cases). De La Torre provides no contrary authority that would
19 support taking judicial notice of Plaintiff’s deposition testimony.
20 B. De La Torre’s Arguments
21 As noted above, De La Torre’s arguments that Plaintiff failed to exhaust his
22 administrative remedies and that the Heck doctrine bars Plaintiff’s federal claims
23 are identical to the arguments previously raised by Gonzalez in a prior motion to
24 dismiss. Accordingly, the analysis of those arguments below mirrors the prior
25 R&R’s discussion of Gonzalez’s motion, and the Court recommends denial of De
26 La Torre’s motion on these grounds for the same reasons set forth in the R&R.
27 / / /
28 / / /
1 1. Exhaustion of administrative remedies
2 In his original Complaint, Plaintiff responded “No” to the question whether he
3 had “previously sought and exhausted all forms of available relief from the proper
4 administrative officials” regarding the acts alleged in the Complaint. Dkt. No. 1 at
5 6. As best the Court can tell, the FAC does not address exhaustion of
6 administrative remedies.
7 De La Torre asserts the FAC is subject to dismissal because Plaintiff “admits
8 in his pleadings that he failed to exhaust all forms of available administrative relief.”
9 Dkt. No. 88-1 at 6. Plaintiff responds that the Court already addressed this issue
10 in denying Gonzalez’s motion. He further contends “the FAC adds allegations
11 explaining Plaintiff’s incarceration status, limited access, and reasonable belief
12 that grievance procedures were unavailable or ineffective,” although he fails to cite
13 the relevant FAC paragraphs that he contends contain this information. Dkt. No.
14 92 at 4.
15 a Legal standards
16 An inmate bringing a § 1983 action must exhaust “such administrative
17 remedies as are available” before filing suit in federal court. 42 U.S.C. §1997e(a).
18 This requirement “give[s] an agency the opportunity to correct its own mistakes
19 before being dragged into federal court” and “promote[s] greater efficiency and
20 economy in resolving claims.” McBride v. Lopez, 807 F.3d 982, 987 (9th Cir.
21 2015). Exhaustion of available remedies “is mandatory,” but a prisoner’s “failure
22 to exhaust a remedy that is effectively unavailable does not bar a claim from being
23 heard in federal court.” Soto v. Sweetman, 882 F.3d 865, 869-70 (9th Cir. 2018).
24 Failure to exhaust is an affirmative defense for which the defendant bears
25 the burden of proof. Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc).
26 To prevail, the defendant must show “there was an available administrative remedy
27 [the plaintiff] did not exhaust.” Eaton v. Blewett, 50 F.4th 1240, 1246 (9th Cir.
28 2022). In “rare cases,” a prisoner’s failure to exhaust may be “clear from the face
1 of the complaint,” and the defendant may “successfully move under Rule 12(b)(6)
2 for failure to state a claim.” Albino, 747 F.3d at 1169. To grant a motion to dismiss
3 on the basis of a prisoner’s failure to exhaust, the district court must “be able to
4 conclude from the face of the complaint that a prisoner has not exhausted his
5 administrative remedies and that he is without valid excuse.” Id. (quoting Aquilar-
6 Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007)).
7 b. Application
8 That Plaintiff did not pursue an administrative grievance is undisputed: he
9 indicated on his form Complaint he had not “sought and exhausted all forms of
10 available relief from the proper administrative officials regarding” the allegations in
11 his complaint. Dkt. No. 1 at 6. Bearing in mind that “Rule 8 does not require
12 plaintiffs to plead around affirmative defenses,” see U.S. Commodity Futures
13 Trading Comm’n v. Monex Credit Co., 931 F.3d 966, 972 (9th Cir. 2019), the Court
14 does not find Plaintiff’s check-the-box response is a sufficient basis upon which to
15 find conclusively that Plaintiff failed to exhaust his available administrative
16 remedies “without valid excuse.” Albino, 747 F.3d at 1169.
17 The record is devoid of any information regarding the administrative
18 remedies available to Plaintiff, the grievance procedures by which Plaintiff could or
19 should have pursued those remedies, or whether any failure to follow the
20 applicable procedures should be excused, either because of a sincerely held and
21 objectively reasonable fear of retaliation or another reason. Because there is a
22 “need for further factual development” on the issue of exhaustion, dismissal is
23 inappropriate. See McBride, 807 F.3d at 985.
24 Accordingly, the undersigned RECOMMENDS De La Torre’s Motion for
25 dismissal on this basis be DENIED without prejudice to raising the issue in a
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1 subsequent summary judgment motion, on a more developed record.
2 2. The Heck Doctrine
3 De La Torre argues that since Plaintiff pled guilty to “resisting arrest through
4 force or violence” in violation of California Penal Code § 69, he is “now barred from
5 bringing § 1983 claims for malicious prosecution, false arrest and excessive use
6 of force” under Heck. Dkt. No. 88-1 at 8. Plaintiff responds the Court “fully
7 considered and rejected” this argument in denying Gonzalez’s motion to dismiss.
8 Dkt. No. 92 at 4. Plaintiff is correct.
9 a. Legal standards
10 In Heck, the Supreme Court held:
11
[W]hen a state prisoner seeks damages in a § 1983 suit, the district
12 court must consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if it would,
13
the complaint must be dismissed unless the plaintiff can demonstrate
14 that the conviction or sentence has already been invalidated. But if the
district court determines that the plaintiff’s action, even if successful,
15
will not demonstrate the invalidity of any outstanding criminal judgment
16 against the plaintiff, the action should be allowed to proceed, in the
absence of some other bar to the suit.
17
18 512 U.S. at 487 (emphasis in original). Heck’s prohibition applies to convictions
19
resulting from a guilty plea. See Martell v. Cole, 115 F. 4th 1233, 1236 (9th Cir.
20
2024).
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2 The Court is aware of the Ninth Circuit’s directive that “exhaustion should be
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decided, if feasible, before reaching the merits of a prisoner’s claim.” Albino, 747
25 F.3d at 1170. If the District Court accepts this Report and Recommendation and
the case proceeds, the undersigned will consider any reasonable proposal to
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bifurcate discovery or otherwise expedite resolution of the issue of exhaustion.
27 See id. (“If discovery is appropriate, the district court may in its discretion limit
discovery to evidence concerning exhaustion, leaving until later . . . discovery
28
1 The Heck court’s holding flows from the principle that a prisoner’s challenge
2 to the fact or duration of their confinement is at “the core of habeas corpus,” which
3 provides the “exclusive remedy” for unconstitutional imprisonment. Preiser v.
4 Rodriguez, 411 U.S. 475, 487-89 (further noting the appellant’s counsel “conceded
5 . . . a state prisoner challenging his underlying conviction and sentence on federal
6 constitutional grounds in a federal court is limited to habeas corpus”); accord
7 McDonough v. Smith, 588 U.S. 109, 118 n.6 (2019) (noting “Congress has
8 determined that a petition for writ of habeas corpus, not a § 1983 action, is the
9 appropriate remedy for state prisoners attacking the . . . fact or length of their
10 confinement”).
11 b. Application
12 De La Torre is correct that Plaintiff pled guilty to violating Penal Code § 69,
13 resisting an executive officer. A necessary element of that offense is that the
14 officer was performing “duty imposed . . . by law,” which necessarily means the
15 officer was using lawful force. See Cal. Penal Code § 69 (West 2016); see also
16 Winder v. McMahon, 345 F. Supp. 3d 1197, 1201 (C.D. Cal. 2018) (noting “an
17 element of a charge for resisting arrest (under either Penal Code § 148 or
18 § 69) is that the officer defendants acted properly, without the use of excessive
19 force”); Sanders v. City of Pittsburg, 14 F.4th 968, 971 (9th Cir. 2021) (finding
20 under similar statute “[t]he use of excessive force by an officer is not within the
21 performance of the officer’s duty”).
22 However, the Ninth Circuit holds that “[e]xcessive force used after an arrest
23 is made does not destroy the lawfulness of the arrest.” Sanford v. Motts, 258 F.3d
24 1117, 1120 (9th Cir. 2001). “Hence, if [De La Torre] used excessive force
25 subsequent to the time [Plaintiff] interfered with his duty, success in [Plaintiff’s]
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1 section 1983 claim will not invalidate [his] conviction[, and] Heck is no bar.” Id. 2 As one court explained, “a plaintiff alleging excessive force does not collaterally
3 attack his conviction or deny that he resisted[, but] [r]ather . . . claims that he
4 suffered unnecessary injuries because the response to his resistance was not
5 objectively reasonable.” Hooper, 629 F.3d at 1133 (quoting VanGilder v. Baker,
6 435 F.3d 689, 692 (7th Cir. 2006)).
7 Therefore, to determine whether Heck bars Plaintiff’s excessive force claim,
8 the Court must look to the factual basis for Plaintiff’s guilty plea. See Martell, 115
9 F.4th at 1236 (“When the conviction is based on a guilty plea, we look at the record
10 to see which acts formed the basis for the plea.”). Neither the charging documents
11 nor the record of Plaintiff’s plea provide enough information for the Court to answer
12 the “question [of] whether the specific act for which the plaintiff was convicted was
13 resistance to the particular use of force the plaintiff alleges was unlawful.” Id. at
14 1238. The charging document merely recites the elements of the charge. Dkt. No.
15 88-4 at 3. Plaintiff’s guilty plea recites as follows: “I admit that on the dates
16 charged, I . . . unlawfully by means of threats and violence, attempted to deter an
17 executive officer from performing a duty imposed by law in the performance of his
18 duties in viol[ation] [of] P[enal] C[ode] [§] 69.” Dkt. No. 88-5 at 5. This factual basis
19

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21 3 See also Sanders, 14 F.4th at 971 (finding Heck would not bar claim for
excessive force “if the alleged excessive force occurred before or after the acts
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that form the basis of the [conviction], even if part of one continuous transaction”)
23 (emphasis in original); Beets v. County of Los Angeles, 669 F.3d 1038, 1042 (9th
Cir. 2012) (“[A]n allegation of excessive force by a police officer would not be
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barred by Heck if it were distinct temporally or spatially from the factual basis for
25 the person's conviction.”); Winder, 345 F. Supp. 3d at 1202 (finding a conviction
under Penal Code § 69 “can be valid even if, during a single continuous chain of
26
events, some of the officer’s conduct was unlawful, because the conviction itself
27 requires only that some lawful police conduct was resisted, delayed, or obstructed
during that continuous chain of events”) (citing Hooper v. Cnty. of San Diego, 629
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1 does not identify the act upon which his conviction for violating Penal Code § 69
2 rests.
3 In sum, it is not clear from this record which act or acts of resistance form
4 the basis of Plaintiff’s guilty plea, where those acts fall in the timeline of events on
5 April 18, 2023, and – importantly – whether those acts can be divided temporally
6 or otherwise from Defendant’s alleged use of excessive force (which itself appears
7 to consist of two distinct and possibly divisible acts).4 Because “the record is silent
8 about which one (or more) of [Plaintiff’s] resisting or obstructing acts was (or were)
9 the factual predicate of his guilty plea,” the Court cannot conclude that Defendant
10 used excessive force “would necessarily imply the invalidity of [Plaintiff’s]
11 conviction.” See Martell, 115 F.4th at 1239; see also Winder, 345 F.Supp.3d at
12 1204-05 (contrasting Heck analysis at summary judgment where the record
13 included the “factual basis” for the plaintiff’s no contest plea with a motion to
14 dismiss, where all allegations must be taken as true, and it was “possible to
15 construe [Plaintiff’s] plea as consistent with the facts alleged in his complaint”).
16 The Court finds the current record is insufficient to support a finding that Heck bars
17 Plaintiff’s excessive force claim.
18 Accordingly, the undersigned RECOMMENDS Defendant’s motion for
19 dismissal on this basis be DENIED without prejudice to raising the issue at
20 summary judgment, on a more developed record.
21 3. Government Claims Act
22 De La Torre asserts Plaintiff’s negligence and battery claims must be
23 dismissed because Plaintiff failed to comply with the Government Claims Act,
24 which sets forth predicate requirements for bringing state-law claims against a
25

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27 4 Indeed, although it appears undisputed based on Plaintiff’s allegations, it is
not even clear from the charging documents and guilty plea which officer’s lawful
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1 public entity or employee. See Cal. Gov. Code §§ 900 et seq. Plaintiff’s opposition
2 correctly notes that, as explained in the R&R, the Government Claims Act is
3 inapplicable to his federal claims under § 1983. See, e.g., Stone v. City and Cnty.
4 of San Francisco, 735 F. Supp. 340, 345 (N.D. Cal. 1990) (“a claimant need not
5 comply with California tort claim requirements prior to filing a section 1983 action”).
6 But Plaintiff fails to acknowledge that while his original Complaint alleged only
7 § 1983 claims, the FAC alleges state law claims for negligence and battery as to
8 which the California Government Claims Act applies.
9 “In order to bring suit for damages against a public entity, the California
10 Government Claims Act requires that a plaintiff give notice to the public entity with
11 written claims and that the public entity reject those claims.” Martinez v. Cnty. of
12 Riverside, No. EDCV222144JGBSHKX, 2023 WL 4680791, at *3 (C.D. Cal. June
13 8, 2023). Compliance with the statute is a “condition precedent” to the plaintiff’s
14 ability to maintain an action against a public or employee and thus is “an integral
15 part of [the] plaintiff’s cause of action.” Id. Because compliance is “an actual
16 element of the plaintiff's cause of action,” the plaintiff’s complaint “must allege facts
17 demonstrating or excusing compliance with the claim presentation requirement.”
18 McDaniel v. Diaz, No. 120CV00856NONESAB, 2020 WL 7425348, at *28 (E.D.
19 Cal. Dec. 18, 2020), amended, No. 120CV00856NONESAB, 2021 WL 39656 (E.D.
20 Cal. Jan. 5, 2021) (dismissing state law claims for failure to allege compliance with
21 Government Claims Act).
22 The County asserts that Plaintiff’s FAC fails to plead compliance with the
23 Government Claims Act, and the Court takes judicial notice of the Notice of
24 Returned Claim form. Plaintiff’s opposition does not respond to this argument, and
25 the FAC does not allege any facts demonstrating or excusing compliance with the
26 Act’s claim presentation requirement. The FAC’s failure to include such allegations
27 compels dismissal of Plaintiff’s negligence and battery claims. Martinez, 2023 WL
28 4680791, at *3. Because Plaintiff may be able to plead compliance with the Act,
1 || the Court recommends that dismissal be with leave to amend. /d.
2 Accordingly, the undersigned RECOMMENDS De La Torre’s motion to
3 ||dismiss Plaintiffs fourth cause of action (negligence) and fifth cause of action
4 || (battery) be GRANTED WITH LEAVE TO AMEND. 5 V.
6 CONCLUSION
7 For the reasons set forth above, the undersigned RECOMMENDS that the
8 || District Judge issue an Order:
9 1. Approving and adopting this Report and Recommendation in its entirety;
10 2. Denying De La Torre’s Motion to Dismiss Plaintiff's first cause of action;
11 3. Granting De La Torre’s Motion to Dismiss Plaintiff's fourth and fifth causes
12 of action with leave to amend; and
13 4. Directing Plaintiff to either file a Second Amended Complaint or elect to
14 stand on the First Amended Complaint.
15 IT IS HEREBY ORDERED that any objections to this Report and
16 || Recommendation must be filed by not later than February 5, 2026. Any response
17 ||to a party’s objections must be filed by not later than February 12, 2026. Failure
18 timely file objections may waive the right to raise those objections on appeal.
19 || See Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
20 || IT IS SO ORDERED.
21 || Dated: January 29, 2026 ait
22 Tb Lh,
23 ‘Hon. DavidD.LeshnerSCS™S
24 United States Magistrate Judge
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