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					 1   Case 3:11-cv-02241-BEN-NLS Document 1 Filed 09/27/11 Page 1 of 18

 2   ALEXIS GALINDO (State Bar No. 136643)
     CURD GALINDO & SMITH LLP
 3
     301 East Ocean Blvd., Suite 1700
 4   Long Beach, CA 90802-4828
     Telephone: (562) 624-1177
 5   Facsimile: (562) 624-1178
 6   Attorneys for Plaintiffs, KEVIN LE & VIVIAN LE
 7
     WYNN LAW GROUP
 8   Richard Wynn SBN 200752
     301 East Ocean Boulevard, Suite 1700
     Long Beach, CA 90802
 9   Telephone: (562) 590-3700
     Facsimile: (562) 590-3077
10
     Attorneys for Plaintiff AMY THU BICH LE, Successor in Interest and Individually
11

12

13                              UNITED STATES DISTRICT COURT

14                             SOUTHERN DISTRICT OF CALIFORNIA

15
     VAN DINH LE deceased, THROUGH          )
16   HIS SUCCESSOR IN INTEREST,             )   Case No.: '11CV2241 BEN NLS
     AMY THU BICH LE; and AMY THU           )
17   BICH LE, Individually, KEVIN LE,       )
                                            )
18   VIVIAN LE                              )   COMPLAINT FOR DAMAGES,
                                            )   DECLARATORY, AND INJUNCTIVE
19               Plaintiffs,                )   RELIEF, AND DEMAND FOR JURY
     vs.                                    )   TRIAL
20                                          )
     CITY OF ESCONDIDO, a public            )
21   entity, CITY OF ESCONDIDO              )
                                            )
22   POLICE CHIEF JIM MAHER in his          )
     individual and official capacities,    )
23   POLICE OFFICER MATTHEW                 )
     NELSON, Individually, and DOES 1       )
24   through 10, Jointly and Severally,     )
                                            )
25               Defendants.                )
                                            )
26                                          )
                                            )
27                                          )
                                            )
28                                          )

     COMPLAINT AND JURY DEMAND                                                         1
 1

 2          Plaintiffs, by and through their attorneys, CURD, GALINDO & SMITH LLP and
 3
     WYNN LAW GROUP for their Complaint against Defendants, state as follows:
 4
                 JURISDICTION AND INTRADISTRICT ASSIGNMENT TO SAN DIEGO
 5
            1.      This is a civil rights wrongful death/survival action arising from Defendants’
 6
     wrongful shooting, use of excessive force and negligence, resulting in the death of VAN
 7

 8   DINH LE, Deceased, on March 3, 2011, in the City of ESCONDIDO, SAN DIEGO County,

 9   California. This action is brought pursuant to 42 USC §§ 1983 and 1988, and the Fourth
10   and Fourteenth Amendments to the United States Constitution, as well as the laws and
11
     Constitution of the State of California. Jurisdiction is founded upon 28 USC §§ 1331 and
12
     1343(a)(3) and (4), and the aforementioned statutory and constitutional provisions.
13
     Plaintiffs further invoke the supplemental jurisdiction of this Court pursuant to 28 USC
14

15   §1367 to hear and decide claims arising under state law. The amount in controversy

16   herein, excluding interest and costs, exceeds the minimum jurisdictional limit of this Court.

17                                PARTIES AND PROCEDURE
18          2.      Plaintiff AMY THU BICH LE brings these claims individually and as wife and
19
     Successor in Interest for her husband, VAN DINH LE, Deceased. AMY THU BICH LE is a
20
     resident of California and is entitled to bring these claims individually pursuant to California
21
     Code of Civil Procedure §§ 377.30 et seq., 377.60, and federal civil rights law.
22

23          3.      Plaintiffs, KEVIN LE and VIVIAN LE are the adult children of VAN DINH LE,

24   deceased.

25          4.      Plaintiffs herein bring these claims pursuant to California Code of Civil
26
     Procedure sections 377.20 et seq. and 377.60 et seq. which provide for survival and
27
     wrongful death actions. These claims are also brought individually and on behalf of VAN
28

     COMPLAINT AND JURY DEMAND                                                                       2
 1   DINH LE, Deceased, on the basis of the 42 USC §§ 1983 and 1988, the United States

 2   Constitution, and federal and state civil rights law.
 3
            5.      Defendant CITY OF ESCONDIDO is a public entity established by the laws
 4
     and Constitution of the State of California, and owns, operates, manages, directs, and
 5
     controls the ESCONDIDO Police Department (“EPD”) which employs other defendants in
 6
     this action.
 7

 8          6.      Defendant Police Officer MATTHEW NELSON (“Matthew”) at all material

 9   times was employed as a law enforcement officer by Defendant City of ESCONDIDO, and
10   was acting within the course and scope of that employment. Defendant Matthew is being
11
     sued in his individual capacity.
12
            7.      Defendants Police Officers DOE 1 through 10 at all material times was
13
     employed as a law enforcement officer by Defendant City of ESCONDIDO, and was acting
14

15   within the course and scope of that employment. Defendant DOE 1 is being sued in his

16   individual capacity.

17          8.      Defendant Chief of Police JIM MAHER (“MAHER”) at all material times was
18   employed as Chief of Police by Defendant City of ESCONDIDO, and was acting within the
19
     course and scope of that employment. As Chief of Police, Defendant MAHER was a
20
     policy-making official for the City of ESCONDIDO with the power to make official and final
21
     policy for the ESCONDIDO Police Department. Defendant MAHER is being sued in his
22

23   individual and official capacities.

24          9.      Plaintiffs are informed and believe and thereon allege that each of the

25   Defendants sued herein was negligently, wrongfully, and otherwise responsible in some
26
     manner for the events and happenings as hereinafter described, and proximately caused
27
     injuries and damages to Plaintiffs. Further, one or more DOE defendants was at all
28

     COMPLAINT AND JURY DEMAND                                                                3
 1   material times responsible for the hiring, training, supervision, and discipline of other

 2   defendants, including Doe Defendants.
 3
            10.      Plaintiffs are informed and believe, and thereon allege, that each of the
 4
     Defendants was at all material times an agent, servant, employee, partner, joint venturer,
 5
     co-conspirator, and/or alter ego of the remaining Defendants, and in doing the things
 6
     herein alleged, was acting within the course and scope of that relationship. Plaintiffs are
 7

 8   further informed and believe, and thereon allege, that each of the Defendants herein gave

 9   consent, aid, and assistance to each of the remaining Defendants, and ratified and/or
10   authorized the acts or omissions of each Defendant as alleged herein, except as may be
11
     hereinafter otherwise specifically alleged. At all material times, each Defendant was jointly
12
     engaged in tortious activity, resulting in the deprivation of Plaintiffs’ constitutional rights
13
     and other harm.
14

15          11.      The acts and omissions of all Doe Defendants as set forth herein were at all

16   material times pursuant to the actual customs, policies, practices and procedures of the

17   ESCONDIDO Police Department.
18          12.      At all material times, each Defendant acted under color of the laws, statutes,
19
     ordinances, and regulations of the State of California.
20
            13.      Each Plaintiff herein timely and properly filed tort claims pursuant to Cal.
21
     Gov. Code § 910 et seq., and this action is timely filed within all applicable statutes of
22

23   limitation.

24          14.      This complaint may be pled in the alternative pursuant to FRCivP 8(e)(2).

25                                     GENERAL ALLEGATIONS
26          15.      Plaintiffs reallege each and every paragraph in this complaint as if fully set
27
     forth herein.
28

     COMPLAINT AND JURY DEMAND                                                                         4
 1         16.      This Complaint concerns an extremely tragic incident that began in the early

 2   morning in the City of ESCONDIDO around the residence at 2549 Hamlin Ct., Escondido,
 3
     CA. VAN DINH LE, who suffered from MENTAL ILLNESS, was at home and experiencing
 4
     the early stages of a mental breakdown. At this time, VAN DINH LE (“Le”) was a disabled
 5
     individual in need of medical care and assistance. Concerned for his safety, AMY LE tried
 6
     to call 911 but could not get through she then alerted neighbors who did call 911 and
 7

 8   requested an ambulance to take LE to the hospital. LE barricaded himself in a bathroom

 9   in his home.
10         17.      Defendant Officers Matthew and DOE 1 though 10 arrived at LE’s residence
11
     before an ambulance arrived. At the time, LE obviously was an emotionally disturbed
12
     and/or medically disabled person, requiring medical care and special police procedures
13
     and tactics. Plaintiff AMY LE attempted to inform the Defendant Officers that she was LE’s
14

15   wife, and was trying to get LE transported to the hospital. Defendant Officers Matthew and

16   DOES 1 through 10 made no attempt to communicate with Plaintiff AMY LE and

17   responded only by ordering her to “get away.” Acting as a team, Defendant Officers
18   Matthew and DOES 1 through 10 then ran upstairs to the bathroom and approached LE
19
     who had locked himself in the bathroom, with defendant DOES 1 through 10 approaching
20
     the bathroom door and Defendant Matthew standing near the door. At the time, LE was in
21
     the bathroom, Defendant DOES 1 through 10 pushed the bathroom door open and
22

23   startled LE who had a pair of kitchen scissors in his hand.

24         18.      Once the bathroom door was opened, Defendant Matthew shot his gun killing

25   LE without provocation or just cause. At this time, and without provocation or just cause,
26
     Defendants DOES 1 through 10 and Matthew used excessive and unreasonable force
27
     against LE by shooting him, killing him. This tragic and senseless killing took place before
28

     COMPLAINT AND JURY DEMAND                                                                 5
 1   the sensory perception of LE’s wife, Plaintiff AMY LE. At the time he was killed, VAN

 2   DINH LE was a disabled, mentally, emotionally disturbed man in need of medical care. He
 3
     had committed no crime.
 4
            19.    Defendant Matthew failed to give any warning to LE, before using deadly
 5
     force, even though a warning would have been feasible and proper.
 6
            20.    At the time that Defendant Matthew fired the fatal gunshot at LE, LE did not
 7

 8   pose a significant and immediate threat of death or serious physical injury to Defendants or

 9   to anyone else.
10          21.    At all material times, VAN DINH LE, behaved lawfully and peacefully. The
11
     use of deadly force, including the gunshot described herein, was not justified or lawful
12
     under the circumstances.
13
            22.    Alternatively, or concurrently, Defendants DOES 1 through 10 and Matthew’s
14

15   own excessive and unreasonable actions created a risk of harm to VAN DINH LE, created

16   the situation in which Defendants DOES 1 through 10 and Matthew decided to use deadly

17   force, and caused an escalation of events leading to the shooting death of VAN DINH LE.
18          23.    Defendants DOES 1 through 10 and Matthew’ conduct herein, including but
19
     not limited to their decision(s) to stop and seize LE, the manner in which they conducted
20
     that stop and seizure, their failure to communicate with Plaintiff AMY LE or other witnesses
21
     present at the location, their use of deadly force, and their other conduct, was contrary to
22

23   generally accepted reasonable police procedures and tactics, and caused the wrongful

24   death of VAN DINH LE.

25          24.    At all material times, and alternatively, the actions and omissions of each
26
     defendant were intentional, wanton and/or willful, conscience shocking, reckless,
27

28

     COMPLAINT AND JURY DEMAND                                                                   6
 1   malicious, deliberately indifferent to Plaintiffs’ rights, done with actual malice, grossly

 2   negligent, negligent, and objectively unreasonable.
 3
            25.    As a direct and proximate result of each Defendant’s acts and/or omissions
 4
     as set forth above, Plaintiffs sustained the following injuries and damages, past and future,
 5
     among others:
 6
                   a.     Wrongful death of VAN DINH LE;
 7

 8                 b.     Hospital and medical expenses;

 9                 c.     Property damage as a result of the gun shot to Plaintiffs’ single family
                          residence;
10

11                 d.     Coroner’s fees, funeral and burial expenses;

12                 e.     Loss of familial relationships, including loss of love, companionship,
                          comfort, affection, consortium, society, services, solace, and moral
13                        support;
14                 f.     Loss of economic support;
15
                   g.     Violation of constitutional rights;
16
                   h.     All damages and penalties recoverable under 42 USC §§ 1983 and
17                        1988, and as otherwise allowed under California and United States
                          statutes, codes, and common law;
18
19                 i.     VAN DINH LE’s loss of life, pursuant to federal civil rights law;

20                 j.     VAN DINH LE’s conscious pain and suffering, pursuant to federal civil
                          rights law;
21

22

23

24

25

26

27

28

     COMPLAINT AND JURY DEMAND                                                                     7
 1
                                   COUNT ONE
 2                              -- 42 USC §1983 --
      ALL PLAINTIFFS AGAINST DEFENDANTS DOES 1 THROUGH 10, MATTHEW AND
 3                                  DOES 1-10
 4
            26.    Plaintiffs reallege each and every paragraph in this complaint as if fully set
 5
     forth here.
 6
            27.    By the actions and omissions described above, Defendants DOES 1
 7
     THROUGH 10, MATTHEW, and DOES 1-10 violated 42 USC §1983, depriving Plaintiffs of
 8

 9   the following clearly-established and well-settled constitutional rights protected by the

10   Fourth and Fourteenth Amendments to U.S. Constitution:
11                 a. The right to be free from unreasonable searches and seizures as secured
12                    by the Fourth and Fourteenth Amendments;

13                 b. The right to be free from excessive and unreasonable force in the course
                      of arrest or detention as secured by the Fourth and Fourteenth
14                    Amendments;
15                 c. The right to be free from the use of unlawful deadly force as secured by
16                    the Fourth and Fourteenth Amendments;

17                 d. The right to be free of unlawful, reckless, deliberately indifferent, and
                      conscience shocking deadly force as secured by the Fourteenth
18                    Amendment;
19                 e. The right to be free from wrongful government interference with familial
20                    relationships, and Plaintiffs’ right to companionship, society and support
                      of each other, as secured by the First, Fourth and Fourteenth
21                    Amendments, and California Code of Civil Procedure §§ 377.20 et seq.
                      and 377.60 et seq.;
22

23          28.    Defendants subjected Plaintiffs to their wrongful conduct, depriving Plaintiffs
24
     of rights described herein, knowingly, maliciously, and with conscious and reckless
25
     disregard for whether the rights and safety of Plaintiffs (individually and on behalf of VAN
26
     DINH LE,) and others would be violated by their acts and/or omissions.
27

28

     COMPLAINT AND JURY DEMAND                                                                      8
 1          29.    As a direct and proximate result of Defendants' acts and/or omissions as set

 2   forth above, Plaintiffs sustained injuries and damages as set forth at paragraph 25, above.
 3
            30.    The conduct of Defendants Matthew and DOES 1 through 10 entitles
 4
     Plaintiffs to punitive damages and penalties allowable under 42 USC §1983 and Cal. Code
 5
     of Civil Procedure § 377.20 et seq.
 6
            31.    Plaintiffs are also entitled to reasonable costs and attorney fees under 42
 7

 8   USC §1988 and applicable California codes and laws.

 9                                  COUNT TWO
                                 - 42 USC §1983 –
10   ALL PLAINTIFFS AGAINST DEFENDANTS CITY OF ESCONDIDO, CHIEF OF POLICE
                            JIM MAHER, AND DOES 1-10
11
            32.    Plaintiffs reallege each and every paragraph in this complaint as if fully set
12
     forth here.
13

14          33.    The unconstitutional actions and/or omissions of Defendants MATTHEW and

15   DOES 1 through 10, as well as other officers employed by or acting on behalf of Defendant

16   City of ESCONDIDO, on information and belief, were pursuant to the following customs,
17
     policies, practices, and/or procedures of the EPD, stated in the alternative, which were
18
     directed, encouraged, allowed, and/or ratified by policy making officers for City of
19
     ESCONDIDO and the EPD:
20
                   a.     To use or tolerate the use of excessive and/or unjustified force;
21

22                 b.     To use or tolerate the use of unlawful deadly force;

23                 c.     To fail to use appropriate and generally accepted law enforcement
                          procedures in handling emotionally disturbed and/or medically
24                        disabled persons;
25
                   d.     To fail to use appropriate and generally accepted law enforcement
26                        procedures in handling disabled persons;

27                 e.     To fail to use appropriate and generally accepted law enforcement
                          procedures in handling persons experiencing medical emergencies;
28

     COMPLAINT AND JURY DEMAND                                                                      9
 1

 2                 f.     To cover-up violations of constitutional rights by any or all of the
                          following:
 3

 4                        i.   by failing to properly investigate and/or evaluate complaints or
                               incidents of excessive and unreasonable force, unlawful seizures,
 5                             and/or handling of emotionally disturbed persons;
 6                        ii. by ignoring and/or failing to properly and adequately investigate
                              and discipline unconstitutional or unlawful police activity; and
 7

 8                        iii. by allowing, tolerating, and/or encouraging police officers to: fail to
                               file complete and accurate police reports; file false police reports;
 9                             make false statements; intimidate, bias and/or “coach” witnesses
                               to give false information and/or to attempt to bolster officers’
10                             stories; and/or obstruct or interfere with investigations of
11                             unconstitutional or unlawful police conduct, by withholding and/or
                               concealing material information;
12
                   g.     To allow, tolerate, and/or encourage a “code of silence” among law
13                        enforcement officers and police department personnel, whereby an
                          officer or member of the department does not provide adverse
14                        information against a fellow officer or member of the department; and,
15
                   h.     To use or tolerate inadequate, deficient, and improper procedures for
16                        handling, investigating, and reviewing complaints of officer misconduct
                          made under California Government Code § 910 et seq.
17
            34.    Defendants City of ESCONDIDO, Chief MAHER, and Does 1-10 failed to
18
     properly hire, train, instruct, monitor, supervise, evaluate, investigate, and discipline
19

20   Defendants DOES 1 through 10, Matthew and DOE Defendants, and other EPD

21   personnel, with deliberate indifference to Plaintiffs’ constitutional rights, which were
22   thereby violated as described above.
23
            35.    The unconstitutional actions and/or omissions of Defendants DOES 1-10,
24
     and other EPD personnel, as described above, were approved, tolerated and/or ratified by
25
     policy-making officers for the EPD. Plaintiffs are informed and believe, and thereupon
26

27   allege, the details of this incident have been revealed to the authorized policy makers

28   within City of ESCONDIDO and the EPD, and that such policy makers have direct

     COMPLAINT AND JURY DEMAND                                                                    10
 1   knowledge of the fact that the VAN DINH LE shooting was not justified, but rather

 2   represented an unconstitutional display of unreasonable, excessive and deadly force.
 3
     Notwithstanding this knowledge, the authorized policy makers within City of ESCONDIDO
 4
     and the EPD have approved of Defendants DOES 1 through 10 and Matthew’s shooting of
 5
     VAN DINH LE, and have made a deliberate choice to endorse Defendants DOES 1
 6
     through 10 and Matthew’s shooting of VAN DINH LE and the basis for that shooting. By
 7

 8   so doing, the authorized policy makers within City of ESCONDIDO and the EPD have

 9   shown affirmative agreement with the individual defendant officers’ actions, and have
10   ratified the unconstitutional acts of the individual defendant officers.
11
            36.    The aforementioned customs, policies, practices, and procedures, the
12
     failures to properly and adequately hire, train, instruct, monitor, supervise, evaluate,
13
     investigate, and discipline, as well as the unconstitutional orders, approvals, ratification
14

15   and toleration of wrongful conduct of Defendants City of ESCONDIDO, Chief MAHER, and

16   Does 1-10, were a moving force and/or a proximate cause of the deprivations of Plaintiffs’

17   clearly-established and well-settled constitutional rights in violation of 42 USC §1983, as
18   more fully set forth in Paragraph 27, above.
19
            37.    Defendants subjected Plaintiffs to their wrongful conduct, depriving Plaintiffs
20
     of rights described herein, knowingly, maliciously, and with conscious and reckless
21
     disregard for whether the rights and safety of Plaintiffs and others would be violated by
22

23   their acts and/or omissions.

24          38.    As a direct and proximate result of the unconstitutional actions, omissions,

25   customs, policies, practices and procedures of Defendants City of ESCONDIDO, Chief
26
     MAHER, and Does 1-10 as described above, Plaintiffs sustained serious and permanent
27
     injuries and are entitled to damages, penalties, costs and attorney fees as set forth in
28

     COMPLAINT AND JURY DEMAND                                                                      11
 1   paragraphs 25, 30 and 31, above, and punitive damages against Defendants DOES 1

 2   through 10, Matthew, and MAHER in their individual capacities.
 3
                                        COUNT THREE
 4                            -- VIOLATION OF CIVIL CODE §52.1 --
                          ALL PLAINTIFFS AGAINST ALL DEFENDANTS
 5
            39.    Plaintiffs reallege each and every paragraph in this complaint as if fully set
 6
     forth here.
 7
            40.    By their acts, omissions, customs, and policies, each Defendant acting in
 8

 9   concert/conspiracy, as described above, violated Plaintiffs’ rights under California Civil

10   Code §52.1, and the following clearly-established rights under the United States
11   Constitution and the California Constitution:
12
                          a. The right to be free from unreasonable searches and seizures as
13                           secured by the Fourth and Fourteenth Amendments;

14                        b. The right to be free from excessive and unreasonable force in the
                             course of arrest or detention as secured by the Fourth and
15                           Fourteenth Amendments;
16
                          c. The right to be free from the unreasonable use of deadly force as
17                           secured by the Fourth and Fourteenth Amendments;

18                        d. The right to be free of unlawful, reckless, deliberately indifferent,
                             and conscience shocking deadly force as secured by the
19                           Fourteenth Amendment;
20
                          e. The right to be free from wrongful government interference with
21                           familial relationships, and Plaintiffs’ right to companionship and
                             society with each other, as secured by the First, Fourth and
22                           Fourteenth Amendments;
23
                          f. The right to enjoy and defend life and liberty, acquire, possess and
24                           protect property, and pursue and obtain safety, happiness and
                             privacy, as secured by the California Constitution, Article 1,
25                           Section 1;

26                        g. The right to life, liberty and property and not to be deprived of
                             those without due process of law as secured by the California
27
                             Constitution, Article 1, Section 7;
28

     COMPLAINT AND JURY DEMAND                                                                    12
 1                        h. The right to be free from unlawful and unreasonable seizure of
                             one’s person, including the right to be free from unreasonable or
 2                           excessive deadly force, as secured by the California Constitution,
                             Article 1, Section 13;
 3

 4                        i.   The right to protection from bodily restraint, harm, or personal
                               insult, as secured by Cal. Civil Code § 43.
 5

 6           41.   As a direct and proximate result of Defendants' violation of California Civil
 7   Code §52.1 and of Plaintiffs’ rights under the United States and California Constitutions,
 8
     Plaintiffs sustained injuries and damages, and against each and every Defendant are
 9
     entitled to relief as set forth above at ¶¶ 25, 30 and 31, and punitive damages against
10
     Defendants DOES 1 through 10, Matthew, and Chief MAHER in their individual capacities,
11

12   including all damages allowed by California Civil Code §§ 52, 52.1, and California law, not

13   limited to costs, attorneys fees, and civil penalties.

14                                       COUNT FOUR
                             -- NEGLIGENCE; PERSONAL INJURIES --
15                         ALL PLAINTIFFS AGAINST ALL DEFENDANTS
16
             42.   Plaintiffs reallege each and every paragraph in this complaint as if fully set
17
     forth here.
18
             43.   At all times, each Defendant owed Plaintiffs the duty to act with due care in
19
     the execution and enforcement of any right, law, or legal obligation.
20

21           44.   At all times, each Defendant owed Plaintiffs the duty to act with reasonable

22   care.
23           45.   These general duties of reasonable care and due care owed to Plaintiffs by
24
     all Defendants include but are not limited to the following specific obligations:
25
                   a.     to refrain from using excessive and/or unreasonable force against
26                        VAN DINH LE;
27                 b.     to refrain from unreasonably creating the situation where force,
28                        including but not limited to deadly force, is used;

     COMPLAINT AND JURY DEMAND                                                                     13
 1
                   c.     to refrain from abusing their authority granted them by law;
 2
                   d.     to refrain from violating Plaintiffs’ rights guaranteed by the United
 3
                          States and California Constitutions, as set forth above, and as
 4                        otherwise protected by law.

 5          46.    Additionally, these general duties of reasonable care and due care owed to
 6   Plaintiffs by Defendants City of ESCONDIDO, Chief MAHER, and Does 1-10, include but
 7
     are not limited to the following specific obligations:
 8
                   a.     to properly and adequately hire, investigate, train, supervise, monitor,
 9                        evaluate, and discipline their employees, agents, and/or law
                          enforcement officers to ensure that those employees/agents/officers
10                        act at all times in the public interest and in conformance with the law;
11
                   b.     to make, enforce, and at all times act in conformance with policies and
12                        customs that are lawful and protective of individual rights, including
                          Plaintiffs’.
13
                   c.     to refrain from making, enforcing, and/or tolerating the wrongful
14                        policies and customs set forth at paragraph 33, above.
15
            47.    Defendants, through their acts and omissions, breached each and every one
16
     of the aforementioned duties owed to Plaintiffs.
17
            48.    As a direct and proximate result of Defendants' negligence, Plaintiffs
18
19   sustained injuries and damages, and against each and every Defendant are entitled to

20   relief as set forth above at ¶¶ 25, 30 and 31, and punitive damages against Defendants

21   DOES 1 through 10, Matthew and Chief MAHER in their individual capacities.
22
                                         COUNT FIVE
23                                -- ASSAULT AND BATTERY --
                           ALL PLAINTIFFS AGAINST ALL DEFENDANTS
24
            49.    Plaintiffs reallege each and every paragraph in this complaint as if fully set
25
     forth here.
26
            50.    The actions and omissions of Defendants DOES 1 through 10, Matthew, and
27

28   City of ESCONDIDO as set forth above constitute assault and battery.

     COMPLAINT AND JURY DEMAND                                                                    14
 1          51.    As a direct and proximate result of Defendants' assault and battery of VAN

 2   DINH LE, Plaintiffs sustained injuries and damages, and are entitled to relief as set forth
 3
     above at ¶¶ 25, 30, and 31, and punitive damages against all Defendants in their individual
 4
     capacities.
 5
                                          COUNT SIX
 6                      -- VIOLATION OF CALIFORNIA CIVIL CODE §51.7 --
                           ALL PLAINTIFFS AGAINST ALL DEFENDANTS
 7
            52.    Plaintiffs reallege each and every paragraph in this complaint as if fully set
 8

 9   forth here.

10          53.    By their acts, omissions, customs, and policies, Defendants DOES 1 through

11   10, Matthew, and City of ESCONDIDO, acting in concert/conspiracy, as described above,
12
     violated Plaintiffs’ rights secured by California Civil Code §51.7 to be free from any
13
     violence, or intimidation by threat of violence, committed against VAN DINH LE, because
14
     of his disability, psychiatric condition, and/or language.
15
            54.    As a direct and proximate result of Defendants' violation of California Civil
16

17   Code §51.7, Plaintiffs sustained injuries and damages, and are entitled to relief as set forth

18   above at ¶¶ 25, 30 and 31, and all damages allowed by California Civil Code §§52, 51.7,
19   and California law, not limited to attorney fees, costs, treble damages, and civil penalties.
20

21
            WHEREFORE, Plaintiffs respectfully request the following relief against each and
22
     every Defendant herein, jointly and severally:
23

24                 a.     compensatory and exemplary damages in an amount according to
                          proof and which is fair, just and reasonable;
25
                   b.     punitive damages under 42 USC §1983 and California law in an
26                        amount according to proof and which is fair, just, and reasonable;
27                 c.     all other damages, penalties, costs, interest, and attorney fees as
28                        allowed by 42 USC §§ 1983 and 1988, Cal. Code of Civ. Proc. §§

     COMPLAINT AND JURY DEMAND                                                                     15
 1                      377.20 et seq., 377.60 et seq., 1021.5, Cal. Civil Code §§ 52 et seq.,
                        52.1, and as otherwise may be allowed by California and/or federal
 2                      law;
 3
                 d.     Injunctive relief, including but not limited to the following:
 4
                        i.       an order prohibiting Defendants and their police
 5                               officers from unlawfully interfering with the rights of
                                 Plaintiffs and others to be free from unreasonable
 6                               searches and seizures and excessive and
                                 unreasonable force;
 7

 8                      ii.      an order requiring Defendants to institute and
                                 enforce appropriate and lawful policies and
 9                               procedures for stopping and detaining individuals,
                                 particularly persons with disabilities, persons
10                               experiencing a medical emergency, and emotionally
11                               disturbed persons;

12                      iii.     an order prohibiting Defendants and their police
                                 officers from engaging in the “code of silence” as
13                               may be supported by the evidence in this case;
14                      iv.      an order requiring Defendants to train all EPD law
15                               enforcement officers concerning generally accepted
                                 and proper tactics and procedures for the use of
16                               deadly force and this Court’s orders concerning the
                                 issues raised in injunctive relief requests i-iii, above;
17
                        v.       an order requiring Defendants to train all EPD
18                               Officers concerning generally accepted and proper
19                               tactics and procedures for handling emotionally
                                 disturbed persons and this Court’s orders
20                               concerning the issues raised in injunctive relief
                                 requests i-iii, above;
21
                        vi.      an order requiring Defendants to train all EPD
22
                                 Officers concerning generally accepted and proper
23                               tactics and procedures for handling disabled
                                 persons and this Court’s orders concerning the
24                               issues raised in injunctive relief requests i-iii, above;

25                      vii.     an order requiring Defendants to train all EPD
                                 Officers concerning generally accepted and proper
26
                                 tactics and procedures for handling persons
27                               experiencing a medical emergency and this Court’s
                                 orders concerning the issues raised in injunctive
28                               relief requests i-iii, above;

     COMPLAINT AND JURY DEMAND                                                               16
 1
                 e.     such other and further relief as this Court may deem appropriate.
 2

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     DATED: August ___, 2011                    CURD, GALINDO & SMITH, LLP
 4

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 6                                          /s/_______________________
                                            ALEXIS GALINDO
 7                                          Attorneys for Plaintiffs
                                            KEVIN LE and VIVIAN LE
 8

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     DATED: August ___, 2011              WYNN LAW GROUP
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12                                          /s/_______________________
                                            RICHARD WYNN
13                                          Attorneys for Plaintiff AMY THU BICH LE

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     COMPLAINT AND JURY DEMAND                                                              17
 1                                       JURY DEMAND

 2         Plaintiffs hereby request a trial by jury.
 3

 4   DATED: August ___, 2011                        CURD, GALINDO & SMITH, LLP

 5

 6                                              /s/_______________________
                                                ALEXIS GALINDO
 7
                                                Attorneys for Plaintiffs
 8                                              KEVIN LE and VIVIAN LE

 9
     DATED: August ___, 2011                       WYNN LAW GROUP
10

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12                                              /s/_______________________
                                                RICHARD WYNN
13                                              Attorneys for Plaintiff AMY THU BICH LE
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     COMPLAINT AND JURY DEMAND                                                            18

				
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