SAN DIEGO (LN) — U.S. District Judge Marilyn L. Huff allowed Jorge Gomez-Ortiz to pursue claims for retaliation and fabrication of evidence against SDPD Sgt. Jason Gonzalez, as well as a vicarious negligence claim against the City of San Diego, denying motions to dismiss filed by both defendants.
The court’s May 12 order permits Gomez-Ortiz to proceed on allegations that Gonzalez punched him and threw him to the ground after hearing him say “Fuck the Cops” during a verbal dispute outside a bar.
The complaint alleges Gonzalez grabbed Gomez-Ortiz’s shirt collar, punched him, and sat on top of him for multiple minutes, causing disorientation, facial injuries, and the loss of two teeth.
Gonzalez’s motion to dismiss sought to throw out the retaliation and fabrication of evidence claims, arguing the complaint failed to allege retaliatory animus or a causal connection between the fabricated report and the charges.
Huff rejected those arguments, writing that the complaint’s allegations are sufficient to survive a motion to dismiss and that Gonzalez’s counterarguments are “better suited for a motion for summary judgment when the record is more fully developed.”
The court held that Gomez-Ortiz adequately pleaded that his protected speech triggered Gonzalez’s retaliation, noting the complaint alleges the sergeant punched him “as hard as he could in the mouth” immediately after hearing the comment.
Regarding the fabrication claim, the court held that Gomez-Ortiz adequately alleged that Gonzalez fabricated evidence of threatening violence to support inflated criminal charges and a felony arrest.
The complaint alleges officers jailed Gomez-Ortiz overnight and filed charges that were later dismissed.
Huff also partially granted the city’s motion to strike, removing prayers for exemplary and treble damages against the municipality but allowing the plaintiff’s prayer for civil penalties to stand.
The court denied the city’s motion to strike the prayer for punitive damages as moot, noting the complaint explicitly states Gomez-Ortiz makes no claim for punitive damages against the city.
The city’s motion to dismiss the negligence claim was denied because Gomez-Ortiz properly pleaded vicarious liability under California Government Code Section 815.2 rather than direct liability.
Gomez-Ortiz seeks compensatory damages, punitive damages, exemplary damages, civil penalties, attorneys fees and costs.
The court ordered the defendants to file their answers within 30 days of the order.