COMPLAINT FOR DAMAGES - The Mercury News...COMPLAINT FOR DAMAGES through 31 of this Complaint with...

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-0- COMPLAINT FOR DAMAGES

Dale K. Galipo, Esq. (Bar No. 144074) LAW OFFICES OF DALE K. GALIPO [email protected] 21800 Burbank Boulevard, Suite 310 Woodland Hills, California 91367 Telephone: (818) 347-3333 Facsimile: (818) 347-4118 Jaime A. Leanos, Esq. (Bar No. 159471) MORALES & LEANOS [email protected] 75 E. Santa Clara St., Suite 250 San Jose, CA 95113 Telephone: (408) 294-6800 Facsimile: (408) 294-7102

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CHANDRA JACQUEZ, individually and as successor-in-interest to Richard Jacquez, deceased, Plaintiff, vs. CITY OF SAN JOSE and DOES 1-10, inclusive, Defendants.

Case No. 5:16-CV-5343 COMPLAINT FOR DAMAGES

1. Fourth Amendment—Detention and Arrest (42 U.S.C. § 1983)

2. Fourth Amendment—Excessive Force (42 U.S.C. § 1983)

3. Fourth Amendment—Denial of Medical Care (42 U.S.C. § 1983)

4. Substantive Due Process (42 U.S.C. § 1983)

5. Municipal Liability—Ratification (42 U.S.C. § 1983)

6. Municipal Liability—Inadequate Training (42 U.S.C. § 1983)

7. Municipal Liability— Unconstitutional Custom, Practice, or Policy (42 U.S.C. § 1983)

8. False Arrest/False Imprisonment 9. Battery (Wrongful Death) 10. Negligence (Wrongful Death) 11. Violation of Cal. Civil Code § 52.1

DEMAND FOR JURY TRIAL

Case 5:16-cv-05343-HRL Document 1 Filed 09/19/16 of 21

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COMPLAINT FOR DAMAGES

COMES NOW, Plaintiff Chandra Jacquez, individually and as a successor-in-

interest to Richard Jacquez, deceased, for her Complaint against Defendants City of

San Jose and Does 1-10, inclusive, and alleges as follows:

JURISDICTION AND VENUE

1. This Court has original jurisdiction pursuant to 28 U.S.C. §§ 1331

and 1343(a)(3)-(4) because Plaintiff asserts claims arising under the laws of the

United States including 42 U.S.C. § 1983 and the Fourth and Fourteenth

Amendments of the United States Constitution. This Court has supplemental

jurisdiction over Plaintiff’s claims arising under state law pursuant to 28 U.S.C. §

1367(a), because those claims are so related to the federal claims that they form part

of the same case or controversy under Article III of the United States Constitution.

2. Venue is proper in this Court under 28 U.S.C. § 1391(b) because

Defendants reside in this district and all incidents, events, and occurrences giving

rise to this action occurred in this district.

INTRODUCTION

3. This civil rights and state tort action seeks compensatory and punitive

damages from Defendants for violating various rights under the United States

Constitution and state law in connection with the fatal officer-involved shooting of

Plaintiff’s father, Richard Jacquez (“DECEDENT”), on August 17, 2015.

PARTIES

4. At all relevant times, Decedent Richard Jacquez was an individual

residing in the City of San Jose, California.

5. Plaintiff CHANDRA JACQUEZ (“JACQUEZ”) is an individual residing

in the City of San Jose, California and is the biological daughter of DECEDENT.

JACQUEZ sues both in her individual capacity as the daughter of DECEDENT and

in a representative capacity as a successor-in-interest to DECEDENT pursuant to


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California Code of Civil Procedure § 377.60. JACQUEZ seeks both survival and

wrongful death damages under federal and state law.

6. At all relevant times, Defendant CITY OF SAN JOSE (“CITY”) is and

was a municipal corporation existing under the laws of the State of California. CITY

is a chartered subdivision of the State of California with the capacity to be sued.

CITY is responsible for the actions, omissions, policies, procedures, practices, and

customs of its various agents and agencies, including the San Jose Police

Department (“SJPD”) and its agents and employees. At all relevant times,

Defendant CITY was responsible for assuring that the actions, omissions, policies,

procedures, practices, and customs of the SJPD and its employees and agents

complied with the laws of the United States and of the State of California. At all

relevant times, CITY was the employer of Defendants DOES 1-10.

7. Defendants DOES 1-5 (“DOE OFFICERS”) are police officers for the

SJPD. DOE OFFICERS were acting under color of law within the course and scope

of their duties as officers for the SJPD at all relevant times. Also at all relevant

times, DOE OFFICERS were acting with the complete authority and ratification of

their principal, Defendant CITY.

8. Defendants DOES 6-8 are supervisory officers for the SJPD who were

acting under color of law within the course and scope of their duties as officers for

the SJPD. DOES 6-8 were acting with the complete authority and ratification their

principal, Defendant CITY.

9. Defendants DOES 9-10 are managerial, supervisorial, and policymaking

employees of the SJPD, who were acting under color of law within the course and

scope of their duties as managerial, supervisorial, and policymaking employees for

the SJPD. DOES 9-10 were acting with the complete authority and ratification of

their principal, Defendant CITY.

10. On information and belief, DOES 1-10 were residents of the City of San

Jose.


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11. In doing the acts and failing and omitting to act as hereinafter described,

Defendants DOE OFFICERS were acting on the implied and actual permission and

consent of Defendants SJPD and DOES 6-10.

12. In doing the acts and failing and omitting to act as hereinafter described,

Defendants DOES 1-10 were acting on the implied and actual permission and

consent of the CITY.

13. The true names and capacities, whether individual, corporate, association

or otherwise of Defendants DOES 1-10, inclusive, are unknown to Plaintiff, who

otherwise sues these Defendants by such fictitious names. Plaintiff may seek leave

to amend this complaint to show the true names and capacity of these Defendants

when they have been ascertained and new information comes to light. Each of the

fictitiously-named Defendants is responsible in some manner for the conduct or

liabilities alleged herein.

14. At all times mentioned herein, each and every defendant was the agent of

each and every other defendant and had the legal duty to oversee and supervise the

hiring, conduct, and employment of each and every defendant.

15. All of the acts complained of herein by Plaintiff against Defendants were

done and performed by said Defendants by and through their authorized agents,

servants, and/or employees, all of whom at all relevant times herein were acting

within the course, purpose, and scope of said agency, service, and/or employment

capacity. Moreover, Defendants and their agents ratified all of the acts complained

of herein.

16. DOES 1-10 are sued in their individual capacity.

FACTS COMMON TO ALL CLAIMS FOR RELIEF

17. Plaintiff JACQUEZ repeats and re-alleges each and every allegation in

paragraphs 1 through 16 of this Complaint with the same force and effect as if fully

set forth herein.


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18. On August 17, 2015 at approximately 7:00 p.m., on or near Kirkhaven

Court in the City of San Jose, DOE OFFICERS initiated a traffic stop on

DECEDENT, Richard Jacquez. DECEDENT fled his vehicle on foot, and DOE

OFFICERS pursued him. As DECEDENT was running away, DOE OFFICERS,

under color of law and in the course and scope of their duties, shot DECEDENT

multiple times in the back, thereby using excessive force against him and eventually

killing him. The officer-involved shooting occurred on or near Kirkhaven Court at

Stoneyhaven Way.

19. At all relevant times, DECEDENT was unarmed and did not pose an

immediate threat of death or serious bodily injury to himself or to anyone else,

including DOE OFFICERS.

20. Upon information and belief, after being shot, DECEDENT was

immobile and in obvious and critical need of emergency medical care and treatment.

Defendants did not timely summon medical care or permit medical personnel to treat

DECEDENT. The delay of medical care to DECEDENT caused DECEDENT

extreme physical and emotional pain and suffering, and was a contributing cause of

DECEDENT’s serious injuries.

21. Plaintiff JACQUEZ was dependent on DECEDENT, to some extent, for

the necessities of life.

22. Plaintiff JACQUEZ is DECEDENT’s successor-in-interest as defined in

Section 377.11 of the California Code of Civil Procedure and succeeds to

DECEDENT’s interest in this action as the natural daughter of DECEDENT.

23. Plaintiff incurred funeral and burial expenses as a result of Defendants’

misconduct.

24. On February 12, 2016, Plaintiff filed a claim for damages with the City of

San Jose.

25. On March 21, 2016, the City of San Jose rejected this claim.

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FIRST CLAIM FOR RELIEF

Fourth Amendment—Detention and Arrest (42 U.S.C. § 1983)

(Against DOE OFFICERS)

26. Plaintiff repeats and re-alleges each and every allegation in paragraphs 1

through 25 of this Complaint with the same force and effect as if fully set forth

herein.

27. DOE OFFICERS detained DECEDENT without reasonable suspicion

and arrested him without probable cause.

28. When DOE OFFICERS shot DECEDENT and placed him in handcuffs,

they violated DECEDENT’s right to be secure in his person against unreasonable

searches and seizures as guaranteed to DECEDENT under the Fourth Amendment

to the United States Constitution and applied to state actors by the Fourteenth

Amendment.

29. The conduct of DOE OFFICERS was willful, wanton, malicious, and

done with reckless disregard for the rights and safety of DECEDENT and therefore

warrants the imposition of exemplary and punitive damages as to DOE OFFICERS.

30. As a result of their misconduct, Defendants DOE OFFICERS are liable

for DECEDENT’s injuries, either because they were integral participants in the

wrongful detention and arrest, or because they failed to intervene to prevent these

violations.

31. Plaintiff JACQUEZ brings this claim as a successor-in-interest to

DECEDENT, and seeks both survival and wrongful death damages for the violation

of DECEDENT’s rights. Plaintiff also seeks attorney’s fees and funeral and burial

expenses.

SECOND CLAIM FOR RELIEF

Fourth Amendment —Excessive Force (42 U.S.C. § 1983)

(Against DOE OFFICERS)



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herein.

33. Defendants DOE OFFICERS used excessive force against DECEDENT

when they shot him. Defendants DOE OFFICERS’ unjustified shooting deprived

DECEDENT of his right to be secure in his person against unreasonable searches

and seizures as guaranteed to DECEDENT under the Fourth Amendment to the

United States Constitution and applied to state actors by the Fourteenth Amendment.

34. As a result of the foregoing, DECEDENT suffered great physical pain

and emotional distress up to the time of his death, loss of enjoyment of life, loss of

life, and loss of earning capacity.


done with reckless disregard for the rights and safety of DECEDENT, and therefore

warrants the imposition of exemplary and punitive damages as to Defendants DOE

OFFICERS.

36. The shooting was excessive and unreasonable, especially because

DECEDENT posed no immediate threat of death or serious bodily injury at the time

of the incident. Further, Defendants DOE OFFICERS’ use of deadly force violated

their training and standard police officer training.

37. Plaintiff brings this claim as a successor-in-interest to the DECEDENT,

and seeks both survival and wrongful death damages for the violation of

DECEDENT’s rights. Plaintiff also seeks attorney’s fees.

THIRD CLAIM FOR RELIEF

Fourth Amendment —Denial of Medical Care (42 U.S.C. § 1983)

(Against Defendants DOE OFFICERS)



herein.

39. The denial of medical care by Defendants DOE OFFICERS deprived


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DECEDENT of his right to be secure in his person against unreasonable searches

and seizures as guaranteed to DECEDENT under the Fourth Amendment to the

United States Constitution and applied to state actors by the Fourteenth Amendment.

40. As a result of the foregoing, DECEDENT suffered great physical pain

and emotional distress up to the time of his death, loss of enjoyment of life, loss of

life, and loss of earning capacity.

41. Defendants DOE OFFICERS knew that failure to provide timely medical

treatment to DECEDENT could result in further significant injury or the

unnecessary and wanton infliction of pain, but disregarded that serious medical

need, causing DECEDENT great bodily harm and death.


done with reckless disregard for the rights and safety of DECEDENT and therefore

warrants the imposition of exemplary and punitive damages as to Defendants DOE

OFFICERS.




violations.

44. Plaintiff brings this claim as a successor-in-interest to the DECEDENT,

and seeks both survival and wrongful death damages for the violation of

DECEDENT’s rights. Plaintiff also seeks attorney’s fees.

FOURTH CLAIM FOR RELIEF

Substantive Due Process (42 U.S.C. § 1983)

(Against Defendants DOE OFFICERS)



herein.

46. Plaintiff JACQUEZ had a cognizable interest under the Due Process


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Clause of the Fourteenth Amendment of the United States Constitution to be free

from state actions that deprive him of life, liberty, or property in such a manner as to

shock the conscience, including but not limited to unwarranted state interference in

Plaintiff’s familial relationship with her father, DECEDENT.

47. DECEDENT had had a cognizable interest under the Due Process Clause

of the Fourteenth Amendment of the United States Constitution to be free from state

actions that deprive him of life, liberty, or property in such a manner as to shock the

conscience.

48. The aforementioned actions of DOE OFFICERS, along with other

undiscovered conduct, shock the conscience, in that they acted with deliberate

indifference to the constitutional rights of DECEDENT and Plaintiff, and with

purpose to harm unrelated to any legitimate law enforcement objective.

49. As a direct and proximate result of these actions, DECEDENT

experienced pain and suffering and eventually died. DOE OFFICERS thus violated

the substantive due process rights of Plaintiff to be free from unwarranted

interference with her familial relationship with DECEDENT.

50. As a direct and proximate cause of the acts of DOE OFFICERS, Plaintiff

suffered emotional distress, mental anguish, and pain. Plaintiff has also been

deprived of the life-long love, companionship, comfort, support, society, care, and

sustenance of DECEDENT, and will continue to be so deprived for the remainder of

her natural life.


done with reckless disregard for the rights and safety of DECEDENT and Plaintiff

and therefore warrants the imposition of exemplary and punitive damages as to

Defendants DOE OFFICERS.

52. Plaintiff brings this claim individually and as a successor-in-interest to

DECEDENT, and seeks both survival and wrongful death damages. Plaintiff also

seeks attorney’s fees.


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FIFTH CLAIM FOR RELIEF

Municipal Liability – Ratification (42 U.S.C. § 1983)

(Against Defendants CITY and DOES 6-10)

53. Plaintiff repeats and re-alleges each and every allegation in paragraphs

1 through 52 of this Complaint with the same force and effect as if fully set forth

herein.

54. Defendants DOE OFFICERS acted under color of law;

55. The acts of Defendants DOE OFFICERS deprived DECEDENT and

Plaintiff of their particular rights under the United States Constitution.

56. Upon information and belief, a final policymaker, acting under color of

law, who had final policymaking authority concerning the acts of Defendants DOE

OFFICERS, ratified Defendants DOE OFFICERS’ acts and the bases for them.

Upon information and belief, the final policymaker knew of and specifically

approved of Defendants DOE OFFICERS’ acts.

57. Upon information and belief, a final policymaker has determined (or will

determine) that the acts of Defendants DOE OFFICERS were “within policy.”

58. By reason of the aforementioned acts and omissions, Plaintiff has

suffered loss of the love, companionship, affection, comfort, care, society, training,

guidance, and past and future support of DECEDENT. The aforementioned acts and

omissions also caused DECEDENT’s pain and suffering, loss of enjoyment of life,

and death.

59. Accordingly, Defendants CITY and DOES 6-10 each are liable to

Plaintiff for compensatory damages under 42 U.S.C. § 1983.

60. Plaintiff brings this claim as a successor-in-interest to DECEDENT, and

seeks both survival and wrongful death damages under this claim. Plaintiff also

seeks attorney’s fees under this claim.

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SIXTH CLAIM FOR RELIEF

Municipal Liability – Failure to Train (42 U.S.C. § 1983)




herein.

62. Defendants DOE OFFICERS acted under color of law.

63. The acts of Defendants DOE OFFICERS deprived DECEDENT and

Plaintiff of their particular rights under the United States Constitution.

64. The training policies of Defendant CITY were not adequate to train its

officers to handle the usual and recurring situations with which they must deal.

65. Defendant CITY was deliberately indifferent to the obvious

consequences of its failure to train its officers adequately.

66. The failure of Defendant CITY to provide adequate training caused the

deprivation of Plaintiff’s rights by Defendants DOE OFFICERS; that is,

Defendants’ failure to train is so closely related to the deprivation of the Plaintiff’s

rights as to be the moving force that caused the ultimate injury.

67. On information and belief, CITY failed to train DOE OFFICERS

properly and adequately.

68. By reason of the aforementioned acts and omissions, Plaintiff JACQUEZ

has suffered loss of the love, companionship, affection, comfort, care, society,

training, guidance, and past and future support of DECEDENT. The aforementioned

acts and omissions also caused DECEDENT’s pain and suffering, loss of enjoyment

of life, and death.




seeks both survival and wrongful death damages under this claim. Plaintiff also


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seeks attorney’s fees under this claim.

SEVENTH CLAIM FOR RELIEF

Municipal Liability – Unconstitutional Custom or Policy (42 U.S.C. § 1983)




herein.

72. Defendants DOE OFFICERS acted under color of law.

73. Defendants DOE OFFICERS acted pursuant to an expressly adopted

official policy or a longstanding practice or custom of the Defendant CITY.

74. On information and belief, Defendants DOE OFFICERS were not

disciplined, reprimanded, retrained, suspended, or otherwise penalized in connection

with DECEDENT’s death.

75. Defendants CITY and DOES 6-10, together with other CITY

policymakers and supervisors, maintained, inter alia, the following unconstitutional

customs, practices, and policies:

(a) Using excessive force, including excessive deadly force;

(b) Providing inadequate training regarding the use of deadly force;

Employing and retaining as police officers individuals such as Defendants DOE

OFFICERS, whom Defendant CITY at all times material herein knew or reasonably

should have known had dangerous propensities for abusing their authority and for

using excessive force;

(d) Inadequately supervising, training, controlling, assigning, and

disciplining CITY officers, and other personnel, including Defendants DOE

OFFICERS, whom Defendant CITY knew or in the exercise of reasonable care

should have known had the aforementioned propensities and character traits;

(e) Maintaining grossly inadequate procedures for reporting,

supervising, investigating, reviewing, disciplining and controlling misconduct by


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CITY officers, Defendants DOE OFFICERS;

(f) Failing to adequately discipline CITY police officers, including

Defendants DOE OFFICERS, for the above-referenced categories of misconduct,

including “slaps on the wrist,” discipline that is so slight as to be out of proportion

to the magnitude of the misconduct, and other inadequate discipline that is

tantamount to encouraging misconduct;

(g) Encouraging, accommodating, or facilitating a “blue code of

silence,” “blue shield,” “blue wall,” “blue curtain,” “blue veil,” or simply “code of

silence,” pursuant to which police officers do not report other officers’ errors,

misconduct, or crimes. Pursuant to this code of silence, if questioned about an

incident of misconduct involving another officer, while following the code, the

officer being questioned will claim ignorance of the other officers’ wrongdoing.

(h) Maintaining a policy of inaction and an attitude of indifference

towards soaring numbers of police SHOOTINGS and beatings, including by failing

to discipline, retrain, investigate, terminate, and recommend officers for criminal

prosecution who participate in SHOOTINGS and beatings of unarmed people.

76. By reason of the aforementioned acts and omissions, Plaintiff has

suffered loss of the love, companionship, affection, comfort, care, society, training,

guidance, and past and future support of DECEDENT. The aforementioned acts and

omissions also caused DECEDENT’s pain and suffering, loss of enjoyment of life,

and death.

77. Defendants CITY and DOES 6-10, together with various other officials,

whether named or unnamed, had either actual or constructive knowledge of the

deficient policies, practices and customs alleged in the paragraphs above. Despite

having knowledge as stated above, these defendants condoned, tolerated and

through actions and inactions thereby ratified such policies. Said defendants also

acted with deliberate indifference to the foreseeable effects and consequences of

these policies with respect to the constitutional rights of DECEDENT, Plaintiff, and


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other individuals similarly situated.

78. By perpetrating, sanctioning, tolerating and ratifying the outrageous

conduct and other wrongful acts, DOES 6-10 acted with intentional, reckless, and

callous disregard for the life of DECEDENT and for DECEDENT’s and Plaintiff’s

constitutional rights. Furthermore, the policies, practices, and customs implemented,

maintained, and still tolerated by Defendants CITY and DOES 6-10 were

affirmatively linked to and were a significantly influential force behind the injuries

of DECEDENT and Plaintiff.



80. Plaintiff brings this claim individually and as a successor-in-interest to

DECEDENT, and seeks both survival and wrongful death damages under this claim.

Plaintiff also seeks attorneys’ fees under this claim.

EIGHTH CLAIM FOR RELIEF

False Arrest/False Imprisonment

(Against Defendants CITY and DOE OFFICERS)



herein.

82. Defendants DOE OFFICERS, while working as officers for the SJPD

and acting within the course and scope of their duties, intentionally deprived

DECEDENT of his freedom of movement by use of force, threats of force, menace,

fraud, deceit, and unreasonable duress. DOE OFFICERS detained DECEDENT

without reasonable suspicion and arrested him without probable cause.

83. DECEDENT did not knowingly or voluntarily consent.

84. Defendants DOE OFFICERS detained DECEDENT for an appreciable

amount of time.

85. The conduct of DOE OFFICERS was a substantial factor in causing the


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harm to DECEDENT.

86. Defendant CITY is vicariously liable for the wrongful acts of

Defendants DOE OFFICERS pursuant to section 815.2(a) of the California

Government Code, which provides that a public entity is liable for the injuries

caused by its employees within the scope of the employment if the employee’s act

would subject him or her to liability.

87. The conduct of DOE OFFICERS was malicious, wanton, oppressive,

and accomplished with a conscious disregard for the rights of DECEDENT, entitling

Plaintiff to an award of exemplary and punitive damages.




violations.

NINTH CLAIM FOR RELIEF

Battery

(Wrongful Death)

(Against Defendants CITY and DOE OFFICERS)



herein.

90. DOE OFFICERS, while working as officers for the SJPD, and acting

within the course and scope of their duties, intentionally shot DECEDENT multiple

times, including in the back, and used unreasonable and excessive force against him.

As a result of the actions of DOE OFFICERS, DECEDENT suffered severe pain

and suffering and ultimately died from his injuries. DOE OFFICERS had no legal

justification for using force against DECEDENT, and their use of force while

carrying out their duties as police officers was an unreasonable and unprivileged use

of force.


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91. As a direct and proximate result of the conduct of DOE OFFICERS as

alleged above, DECEDENT sustained injuries and died from his injuries and also

lost his earning capacity. As a direct and proximate result of the conduct of DOE

OFFICERS as alleged above, DECEDENT suffered survival damages pursuant to

Code of Civil Procedure Section 377.34.

92. CITY is vicariously liable for the wrongful acts of Defendant DOES 1-

10 pursuant to section 815.2(a) of the California Government Code, which provides

that a public entity is liable for the injuries caused by its employees within the scope

of the employment if the employee’s act would subject him or her to liability.

93. The conduct of DOE OFFICERS was malicious, wanton, oppressive,

and accomplished with a conscious disregard for the rights of Plaintiff and

DECEDENT, entitling Plaintiff, individually and as successor-in-interest to

DECEDENT, to an award of exemplary and punitive damages as to Defendants

DOE OFFICERS.


seeks both survival and wrongful death damages under this claim.

TENTH CLAIM FOR RELIEF

Negligence

(Wrongful Death)

(Against all Defendants)



herein.

96. Police officers, including Defendants, have a duty to use reasonable care

to prevent harm or injury to others. This duty includes using appropriate tactics,

giving appropriate commands, giving warnings, and not using any force unless

necessary, using less than lethal options, and only using deadly force as a last resort.

97. Defendants DOES 1-10 breached this duty of care. Upon information


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and belief, the actions and inactions of Defendants DOES 1-10 were negligent and

reckless, including but not limited to:

(a) the failure to properly and adequately assess the need to detain,

arrest, and use of force or deadly force against DECEDENT;

(b) the negligent tactics and handling of the situation with

DECEDENT, including pre-shooting negligence;

(c) the negligent detention, arrest, and use of force, including deadly

force, against DECEDENT;

(d) the failure to provide prompt medical care to DECEDENT;

(e) the failure to properly train and supervise employees, both

professional and non-professional, including DOE OFFICERS;

(f) the failure to ensure that adequate numbers of employees with

appropriate education and training were available to meet the needs of and protect

the rights of DECEDENT;

(g) the negligent handling of evidence and witnesses; and

(h) the negligent communication of information during the incident.

98. As a direct and proximate result of Defendants’ conduct as alleged

above, and other undiscovered negligent conduct, DECEDENT was caused to suffer

severe pain and suffering and ultimately died. Also as a direct and proximate result

of Defendants’ conduct as alleged above, Plaintiff suffered emotional distress and

mental anguish. Plaintiff also has been deprived of the life-long love,

companionship, comfort, support, society, care and sustenance of DECEDENT, and

will continue to be so deprived for the remainder of her natural life.

99. CITY is vicariously liable for the wrongful acts of Defendants DOES 2-

10 pursuant to section 815.2(a) of the California Government Code, which provides

that a public entity is liable for the injuries caused by its employees within the scope

of the employment if the employee’s act would subject him or her to liability.

100. Plaintiff brings this claim as a successor-in-interest to DECEDENT,


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and seeks wrongful death damages under this claim.

ELEVENTH CLAIM FOR RELIEF

(Violation of Cal. Civil Code § 52.1)

(Against all Defendants)



herein.

102. California Civil Code, Section 52.1 (the Bane Act), prohibits any

person from using violent acts or threatening to commit violent acts in retaliation

against another person for exercising that person’s constitutional rights.

103. On information and belief, Defendants DOE OFFICERS, while

working for the CITY and acting within the course and scope of their duties,

intentionally committed and attempted to commit acts of violence against

DECEDENT, including shooting him without justification or excuse, by integrally

participating and failing to intervene in the above violence, and by denying him

necessary medical care.

104. When Defendants shot DECEDENT, they interfered with his civil

rights to be free from unreasonable searches and seizures, to due process, to equal

protection of the laws, to medical care, to be free from state actions that shock the

conscience, and to life, liberty, and property.

105. On information and belief, Defendants intentionally and spitefully

committed the above acts to discourage DECEDENT from exercising his civil

rights, to retaliate against him for invoking such rights, or to prevent him from

exercising such rights, which she was fully entitled to enjoy.

106. On information and belief, DECEDENT reasonably believed and

understood that the violent acts committed by Defendants DOE OFFICERS were

intended to discourage him from exercising the above civil rights, to retaliate against

him for invoking such rights, or to prevent him from exercising such rights.


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107. As such, Defendants successfully interfered with the above civil rights

of DECEDENT and Plaintiff.

108. The conduct of Defendants was a substantial factor in causing

Plaintiff’s harms, losses, injuries, and damages.

109. CITY is vicariously liable for the wrongful acts of Defendants DOE

OFFICERS, inclusive pursuant to section 815.2(a) of the California Government

Code, which provides that a public entity is liable for the injuries caused by its

employees within the scope of the employment if the employee’s act would subject

him or her to liability.

110. Defendants DOES 6-10 are vicariously liable under California law and

the doctrine of respondeat superior.

111. The conduct of Defendants was malicious, wanton, oppressive, and

accomplished with a conscious disregard for DECEDENT’s and Plaintiff’s rights,

justifying an award of exemplary and punitive damages as to Defendants DOE

OFFICERS.

112. Plaintiff seeks attorney’s fees under this claim.


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PRAYER FOR RELIEF

WHEREFORE, Plaintiff Chandra Jacquez, individually and as a

successor-in-interest to Richard Jacquez, deceased, requests entry of judgment in her

favor and against Defendants City of San Jose and Does 1-10, inclusive, as follows:

A. For compensatory damages in whatever amount may be

proven at trial, including both survival damages and wrongful death damages under

federal and state law;

B. For funeral and burial expenses, and loss of financial

support;

C. For punitive damages against the individual defendants in

an amount to be proven at trial;

D. For statutory damages;

E. For interest;

F. For reasonable attorneys’ fees, including litigation

expenses;

G. For costs of suit; and

H. For such further other relief as the Court may deem just,

proper, and appropriate.

DATED: September 19, 2016 LAW OFFICES OF DALE K. GALIPO

By /s/ Dale K. Galipo

Dale K. Galipo Attorneys for Plaintiff


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DEMAND FOR JURY TRIAL

Plaintiff hereby demands a trial by jury.

DATED: September 19, 2016 LAW OFFICES OF DALE K. GALIPO

By /s/ Dale K. Galipo

Dale K. Galipo Attorneys for Plaintiff


JS-CAND 44 (Rev. 07/16) CIVIL COVER SHEETThe JS-CAND 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of Court to initiate the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OFTHE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)

1 U.S. Government 3 Federal Question PTF DEF PTF DEF Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4

of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5 Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6 6 Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC § 158 375 False Claims Act 120 Marine 310 Airplane 365 Personal Injury – of Property 21 USC § 881 423 Withdrawal 376 Qui Tam (31 USC 130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC § 157 § 3729(a)) 140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment 150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust Of Veteran’s Benefits Slander Personal Injury 820 Copyrights 430 Banks and Banking 151 Medicare Act 330 Federal Employers’ Product Liability 830 Patent 450 Commerce 152 Recovery of Defaulted Liability 368 Asbestos Personal 840 Trademark 460 Deportation Student Loans 340 Marine Injury Product 470 Racketeer Influenced and (Excludes Veterans) 345 Marine Product Liability LABOR SOCIAL SECURITY Corrupt Organizations 153 Recovery of Overpayment Liability PERSONAL PROPERTY 710 Fair Labor Standards 861 HIA (1395ff) 480 Consumer Credit of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud Act 862 Black Lung (923) 490 Cable/Sat TV 160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending 720 Labor/Management 863 DIWC/DIWW (405(g)) 850 Securities/Commodities/ 190 Other Contract Product Liability 380 Other Personal Relations 864 SSID Title XVI Exchange 195 Contract Product Liability 360 Other Personal Property Damage 740 Railway Labor Act 865 RSI (405(g)) 890 Other Statutory Actions 196 Franchise Injury 385 Property Damage 751 Family and Medical 891 Agricultural Acts

362 Personal Injury - Product Liability Leave Act 893 Environmental Matters Medical Malpractice 790 Other Labor Litigation 895 Freedom of Information

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 791 Employee Retirement FEDERAL TAX SUITS Act210 Land Condemnation 440 Other Civil Rights Habeas Corpus: Income Security Act 870 Taxes (U.S. Plaintiff 896 Arbitration

220 Foreclosure 441 Voting 463 Alien Detainee or Defendant) 899 Administrative Procedure 230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRS–Third Party Act/Review or Appeal of 240 Torts to Land 443 Housing/ Sentence 26 USC § 7609 Agency Decision 245 Tort Product Liability Accommodations 530 General 950 Constitutionality of 290 All Other Real Property 445 Amer. w/Disabilities– 535 Death Penalty IMMIGRATION State Statutes

Employment Other: 462 Naturalization Application 446 Amer. w/Disabilities– 540 Mandamus & Other 465 Other Immigration

Other 550 Civil Rights Actions 448 Education 555 Prison Condition

560 Civil Detainee– Conditions of Confinement

V. ORIGIN (Place an “X” in One Box Only)1 Original

Proceeding2 Removed from

State Court 3 Remanded from

Appellate Court 4 Reinstated or

Reopened 5 Transferred from

Another District (specify)

6 MultidistrictLitigation–Transfer

8 MultidistrictLitigation–Direct File

VI. CAUSE OF ACTIONCite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED IN COMPLAINT:

CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, Fed. R. Civ. P.

DEMAND $ CHECK YES only if demanded in complaint: JURY DEMAND: Yes No

VIII. RELATED CASE(S), IF ANY (See instructions): JUDGE DOCKET NUMBER IX. DIVISIONAL ASSIGNMENT (Civil Local Rule 3-2)(Place an “X” in One Box Only) SAN FRANCISCO/OAKLAND SAN JOSE EUREKA-MCKINLEYVILLE

DATE: SIGNATURE OF ATTORNEY OF RECORD:

CHANDRA JACQUEZ, individually and assuccessor-in-interest to Richard Jacquez, deceased,

Santa Clara

LAW OFFICES OF DALE K. GALIPO21800 Burbank Blvd., Suite 310Woodland Hills, CA 91367Telephone: (818) 347-3333Facsimile: (818) 347-4118

CITY OF SAN JOSE; and DOES 1-10

Santa Clara

Office of the City Attorney200 East Santa Clara Street, 16th Floor TowerSan Jose, CA 95113Telephone: (408) 535-1900Facsimile: (408) 998-3131

U.S. Civil Statute: 42 U.S.C. § 1983

Civil rights and wrongful death action under the 4th Amendment and related state law claims

09/19/2016 /s/Dale K. Galipo

Case 5:16-cv-05343-HRL Document 1-1 Filed 09/19/16 Page 1 of 2

JS-CAND 44 (rev. 07/16)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS-CAND 44

Authority For Civil Cover Sheet. The JS-CAND 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of Court to initiate the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I. a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, useonly the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.

b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the “defendant” is the location of the tract of land involved.)

c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section “(see attachment).”

II. Jurisdiction. The basis of jurisdiction is set forth under Federal Rule of Civil Procedure 8(a), which requires that jurisdictions be shown in pleadings. Place an “X” in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

(1) United States plaintiff. Jurisdiction based on 28 USC §§ 1345 and 1348. Suits by agencies and officers of the United States are included here.

(2) United States defendant. When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.

(3) Federal question. This refers to suits under 28 USC § 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked.

(4) Diversity of citizenship. This refers to suits under 28 USC § 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS-CAND 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.

IV. Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.

V. Origin. Place an “X” in one of the six boxes.

(1) Original Proceedings. Cases originating in the United States district courts.

(2) Removed from State Court. Proceedings initiated in state courts may be removed to the district courts under Title 28 USC § 1441. When the petition for removal is granted, check this box.

(3) Remanded from Appellate Court. Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.

(4) Reinstated or Reopened. Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

(5) Transferred from Another District. For cases transferred under Title 28 USC § 1404(a). Do not use this for within district transfers or multidistrict litigation transfers.

(6) Multidistrict Litigation Transfer. Check this box when a multidistrict case is transferred into the district under authority of Title 28 USC § 1407. When this box is checked, do not check (5) above.

(8) Multidistrict Litigation Direct File. Check this box when a multidistrict litigation case is filed in the same district as the Master MDL docket.

Please note that there is no Origin Code 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statute.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC § 553. Brief Description: Unauthorized reception of cable service.

VII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Federal Rule of Civil Procedure 23.

Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.

Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS-CAND 44 is used to identify related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.

IX. Divisional Assignment. If the Nature of Suit is under Property Rights or Prisoner Petitions or the matter is a Securities Class Action, leave this section blank. For all other cases, identify the divisional venue according to Civil Local Rule 3-2: “the county in which a substantial part of the events or omissions which give rise to the claim occurred or in which a substantial part of the property that is the subject of the action is situated.”

Date and Attorney Signature. Date and sign the civil cover sheet.


AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURTfor the

__________ District of __________

))))))))))))

Plaintiff(s)

v. Civil Action No.

Defendant(s)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if youare the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

CLERK OF COURT

Date:Signature of Clerk or Deputy Clerk

Northern District of California

CHANDRA JACQUEZ, individually and assuccessor-in-interest to Richard Jacquez, deceased,

5:16-CV-5343

CITY OF SAN JOSE; and DOES 1-10, inclusive,

CITY OF SAN JOSEOffice of the City Clerk200 East Santa Clara StreetSan Jose, California 95113

LAW OFFICES OF DALE K. GALIPO21800 Burbank Boulevard, Suite 310Woodland Hills, California 91367Telephone: (818) 347-3333Facsimile: (818) 347-4118


AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date) .

I personally served the summons on the individual at (place)

on (date) ; or

I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individual’s last known address; or

I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)

on (date) ; or

I returned the summons unexecuted because ; or

Other (specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

5:16-CV-5343

0.00


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