TRAUTFIRM Cer Ane un 10 u = 2 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 ERIC V. TRAUT Bar # 146644 eric@trautfirm com ‘CONNOR J. TRAUT Bar # 333296 connor@trautfirm com TRAUT FIRM GRIFFIN TOWERS, SUITE 700 5 HUTTON CENTRE DRIVE SANTA ANA, CALIFORNIA 92707 (714) 838-7000 FAX (714) 957-5759 REPRESENTING PLAINTIFFS SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, MAX CHANCE III, an individual Plaintiffs, vs. COUNTY OF ORANGE, a public entity, ORANGE COUNTY SHERIFF'S DEPARTMENT, a public agency MICHAEL THALKEN, an individual, and DOES | through 50, inclusive, Defendants. Case No. COMPLAINT FOR DAMAGES 1. Negligence 2. Assault / Battery 3. Violation of Civil Rights (California Civil Code Section 52.1) 4. Intentional Infliction of Emotional Distress THE PARTIES 1. Plaintiff, Max Chance III (hereinafter Max III), is, and at all relevant times was, a resident of the City of San Juan Capistrano, County of Orange, in the State of California, Max IIL, born on March 3, 2003, was 16 years old at the time of the subject incident. COMPLAINTTRAUTFIRM Cer aneun 10 u a. 13 14 15 16 7 18 19 20 2 ee 23 24 25 26 27 28 2. Defendant, County of Orange (hereinafter COUNTY), and DOES 1 through 25, is, and at all times mentioned herein was, a public entity duly organized and existing under and by virtue of the laws of the State of California, 3. Defendant, Orange County Sheriff's Department (hereinafter OCSD), and DOES 1 through 25, is and at all times mentioned herein was, a public agency organized and existing under and by virtue of the laws of the State of California. OCSD is an agency govemed by the COUNTY. 4, Defendant, Michael Thalken (hereinafter DEPUTY THALKEN), and DOES 26 through 50, is, and at all relevant times was, a resident of the County of Orange, in the State of California. Deputy Thalken is, and at all relevant times was, employed as a deputy sheriff by ocsp. 5. Plaintiff is unaware of the true identity, nature, and capacity, of each of the defendants designated herein as DOE. Plaintiff is informed and believes, and thereon alleges, that each of the defendants designated herein as DOES in some manner responsible for the damages and injuries as are alleged in this complaint. Upon learning the true identity, nature, and capacity of the DOE defendants, plaintiff will amend this complaint to allege their true names and capacities. 6. Plaintiff is informed and believes, and thereon alleges, that at all material times herein alleged that the Defendants, and each of them, were the agents, servants, and employees of the other Defendants, and each of them, and was acting within the course and scope of this agency and employment, as ratified and approved as acts of its agent. Plaintiff is informed and believes, and thereon alleges, that each of the Defendants was the successor in interest to each of the remaining Defendants, and on that basis is liable for any act, omission, or other conduct of the Defendants alleged in this Complaint. I, FACTUAL BACKGROUND 7. Atthe time of the incident, Max III was a 16-year-old high school student. He lived in San Juan Capistrano with his parents and two siblings. He was a good student, well-liked 2 ‘COMPLAINTTRAUTFIRM Scwrxaaueun WW B 14 15 16 7 18 19 20 21 2 23 24 25 26 27 28 by many, and had never been in trouble with the law. His father, Max Chanee, Jr. (hereinafter ‘Max Jr.), was a respected Sergeant for the Orange County Sheriff's Department for 30 years from 1981 through 2011. 8. On October 12, 2019, at approximately 8:30 p.m., Max II] was enjoying himself at a public skate park in San Clemente which he had visited numerous times during the prior five years. He arrived at 8:00 p.m. with a friend, Lorenzo Ortiz. A band was playing at the park for about 20 minutes when off-duty Deputy Thalken walked from an adjacent little league baseball field apparently angered by the music. His plan was apparently to force the band to stop playing. Max III was on the opposite side of the skate park when he noticed Deputy Thalken walking toward the band and yelling. Deputy Thalken appeared angry and possibly intoxicated. He was wearing civilian clothing, including a light jacket. He did not identify himself as an officer as he approached or confronted the band and other teens at the skate park. 9. Witness Cole Gragg mimicked the drunk-like walk of Deputy Thalken as the Deputy yelled, “Where's the tough guy.” As Deputy Thalken confronted Cole, Max II] told Cole to back up. Video footage reveals the moments immediately after when Max III begins backing up and raises his skateboard to defend against a potential assault from the man he had no idea ‘was a law enforcement officer. Max III did not threaten or attempt to assault Deputy Thalken at any time. This is also confirmed by the video footage. Max III later learned that Deputy Thalken had already demanded that the band stop playing claiming it was too loud at the little league field. Deputy Thalken first attempted to grab Max III’s wrist. He did not identify himself as law enforcement. Deputy Thalken then said, “get on your knees o I will shoot you in the fucking face.” He still did not identify himself as law enforcement as he brandished and pointed his handgun at Max III’s face. Max III got down to his knees and complied, while others pleaded with Deputy Thalken to stop what he was doing. 10. Max II was in fear of losing his life. At that point, Deputy Thalken finally identified himself as law enforcement. Several observers of the assault, including Koa McClung and Patrick O*Conner, shot cell phone video which was later reviewed by responding officers and shown by the press on various news stations. This shocking scene, that was watched by 3. ‘COMPLAINTTRAUTFIRM Secwmrxaauneon iW 12 13 4 15 16 7 18 19 20 a 2 2B 24 25 26 27 28 thousands of viewers, was undeniably frightening and inexcusable behavior by a member of law enforcement. 11, Deputy Thalken then said, “you are coming with me to the parking lot.” He put the gun back in his jacket pocket and argued with others who had witnessed the assault as he was heading to the parking lot. Witness, Scott McClung, who was already in the parking lot, told Deputy Thalken that he was out of line. Mr. McClung had served as a reserve officer in the past and instantly recognized Deputy Thalken had violated some of the most basic law enforcement standards of conduct. When other deputies arrived on scene, Deputy Thalken offered a version of events vastly different from the video depictions and statements of multiple witnesses. He reported that the kids were the aggressors and that Max III had swung his skateboard at him. Of course, both claims were false and refuted by video evidence. 12, Max Jr., a retired OCSD deputy, ironically worked with Deputy Thalken over 10 years earlier when Thalken was a rookie working in the jail. Max Jr. called OCSD when he heard that his son was involved in an incident still unfolding. He was immediately put through to Deputy Thalken who admittedly had no idea Max III was his son. He also stated that, “the kids ‘were douche bags with mob mentality.” He also said, “some kid came up aggressively behind me, and your kid went at me with a skateboard. They were all crowding around me. I had to pull my gun, Your kid seems decent. Everything is okay now. I will write an info report because 1 had to pull my gun.” As this conversation was taking place, the responding officers were ‘watching the video clips and hearing the truthful account from eyewitnesses and Max III. 13, Responding Deputy McCormick told Max III at the scene that he did nothing wrong and that Deputy Thalken was “out of line.” He made the same statement to Max Jr. in a phone call later that same evening. 14, The conduct of Deputy Thalken was captured from several cell phone cameras of nearby visitors to the skate park. The footage depicting the excessive and egregious conduct of Deputy Thalken was immediately picked up by several news organizations and was a featured story in print media, social media, and on television news. The accounts of the incident were also commented upon by countless people, most notably, some with law enforcement backgrounds. 4 ‘COMPLAINTTRAUTFIRM Sow vr aH een itt 1B 14 15 16 7 18 19 20 21 2 23 24 2s 26 27 28 Just one example came from retired Deputy Sheriff Michael Scalise, who posted the Orange County Register story on his Facebook page with the following comment, “That certainly looks a lot like investigator Mike Thalken. Not shocked by his behavior at all. Funny thing is that OSCD ‘would just cover this up since he is a golden boy. Problem is that some of the witnesses have ties to the department and there is much more video that doesn’t look good for said gun pointer.” 15, Asa result of this terrifying evening, Max III suffered severe mental anguish, ‘emotional distress, depression, worry, fear and anxiety, tearfulness and anger due to the improper and reckless acts of Deputy Thalken, the COUNTY, OCSD and its deputies. 16. Plaintiff has complied with the provisions of the California Tort Claims Act by timely presenting a claim for money damages with the COUNTY. A formal demand was presented to the COUNTY on March 17, 2020, but no offer was made in response. The only response was that the demand was excessive. FIRST CAUSE OF ACTIO! (Negligence) PLAINTIFF MAX CHANCE III FOR A FIRST CAUSE OF AGAINST DEFENDANTS COUNTY OF ORANGE, ORANGE COUNTY SHERIFF'S DEPARTMENT, MICHAEL THALKEN, AND DOES | THROUGH 50, INCLUSIVE, FOR NEGLIGENCE, ALLEGE: 17, Plaintiff Max III refers to each and every one of the above paragraphs and incorporates those paragraphs as though set forth in full in this cause of action. 18. Max II alleges based on information and belief that Deputy Thalken did negligently — without due care, cause, justification, or provocation ~ cause harm to Max III, in which Deputy Thalken’s negligence was a substantial factor in causing harm to Max III. 19, The harm caused to, and suffered by, Max III occurred as a result of the absence of due care for the safety of others and constituted an unreasonable, unwarranted, and excessive use of force and manifested an unreasonable risk of injuries, both physical and emotional, to Max III. “5 ‘COMPLAINT,TRAUTFIRM ee Ge 8 10 u 12 3 4 15 16 17 18 19 20 a 2 23 24 25 26 27 28 20. Deputy Thalken caused harm to Max Chance III and such harm was proximately caused by Deputy Thalken’s violation of the public agency OCSD’s and public agency COUNTY’s standards of conduct in that Deputy Thalken did not conduct himself ethically and violated the public trust by his conduct. In violation of the policies, procedures, and regulations of these public agencies, these violations include, but are not limited to: violated standards of conduct, exhibited conduct unbecoming a deputy, no lawful reason to detain and seize, improper off duty conduct and arrest, and improper use of force. Such violations further breach duties owed to the public, including that of due care owed to Max III. 21. Deputy Thalken violated standards of conduct because Deputy Thalken did not interact with the public, including Max III, ina civil and professional manner that would foster public trust and cooperation. Deputy Thalken did not treat the individuals involved in this incident, including Max III, with courtesy, respect, and dignity. Deputy Thalken employed an officious and overbearing attitude in the manner in which he approached the teens involved in this incident, including Max III. Deputy Thalken used profane language when confronting the teens and detaining Max III, and did not identify himself as an officer prior to confronting, using force, and pointing his firearm at Max III. 22. Deputy Thalken exhibited conduct unbecoming a deputy because he violated the public trust by casting doubt on his integrity, moral judgment, character, and impaired the efficient and effective operation of agencies OCSD and COUNTY. Deputy Thalken displayed poor judgment when he confronted the teens, including Max III, for the perceived issue of the music being too loud, despite the fact the band had obtained a use permit. Deputy Thalken exhibited further poor judgment when he used force by grabbing Max III’s arm, and the use of force by the pointing of a loaded firearm was excessive, improper, and unlawful 23. Deputy Thalken had no lawful reason to detain and seize Max III. Deputy Thalken grasped Max III by his left arm and subsequently seized him by the pointing of his loaded firearm and detention of Max III 24. Deputy Thalken exhibited conduct in breach of proper off duty conduct and arrests. A law enforcement officer should not undertake an investigation or law enforcement 6 ‘COMPLAINTTRAUTFIRM Sc we wvrauneon ul 12 13 14 15 16 7 18 19 20 21 2 B 24 25 26 27 28 action when off duty unless there is an exigency to the situation, such as the need to prevent a serious crime or apprehend a suspect of a serious crime. In this incident, there was no exigency. Deputy Thalken perceived that the teens, including Max IIT, were playing music too loud and were verbally offensive. 25. Ifa deputy does take action when in plain clothes and especially off duty, the deputy shall clearly identify his office by showing his credentials, and explain the reason for the law enforcement action to the individual he encountered as soon as feasible. In this instance, Deputy Thalken pulled his firearm before identifying his office and failed to provide a reasonable explanation for his actions. 26. Although law enforcement officers do have protection for off duty performance of their duties, that protection does not extend to those actions that a police deputy knows, or reasonably should know, violate the law or established policies of his agency. In this incident, Deputy Thalken exhibited conduct unbecoming a deputy, and excessive use of force, in violation of the law and/or established policies of his agencies, OCSD and COUNTY. 27. OCSD policy 300.3.2 states that voluntary compliance and de-escalation techniques are the preferred means of achieving resolution to potential use of force encounters. When practicable, members should ask for and allow reasonable time for compliance. 28. —_Inthis incident, Deputy Thalken quickly escalated the situation by confronting the teens, including Max III, with an overbearing demeanor, and using force when he grabbed Max. IIT by the arm, As Max III retreated, he raised his skateboard and took a defensive posture as he ‘was fearful of Deputy Thalken, who had not identified his office. Deputy Thalken then produced a loaded handgun from his right jacket pocket, pointing it at Max III. Deputy Thalken never attempted verbal persuasion to de-escalate the encounter or provide a warning that he would use force. Even after Max III clearly submitted and dropped his skateboard, Deputy Thalken continued to point his firearm at Max Ill. Deputy Thalken detained Max III, and placed him on his knees, and then in a prone position on the ground. There were no other persons posing an apparent threat to Deputy Thalken. If trained properly, Deputy Thalken’s actions would have been contrary to any proper law enforcement training, 7 ‘COMPLAINTTRAUTFIRM Sowmrxaaneon if 13 4 15 16 7 18 19 20 a 2 2B 4 28 26 27 28 29. Deputy Thalken breached proper use of force. Use of force must be reasonable and take into account the gravity of the crime, the level of threat to the deputy, the potential for escape, and any danger to others. Factors used to evaluate whether or not to apply any level of force, as set out in OCSD policy 303, include: Individuals conduct; Subject factors age, size strength, number of subjects; Mental capacity, drugs, alcohol; Proximity to weapons; Seriousness of suspected offense or reason for contact with individual; Training, experience of member; Potential for injuries to citizens, members, suspects; Risk of escape; Exigent circumstances. The determination that the necessity for using force and the level of force used is based upon the deputy's evaluation of the situation, using those factors, in light of the totality of the circumstances known to the deputy at the time the force is used, and upon what a reasonably prudent deputy would use under the same or similar situations. 30. Inthis incident, there was no crime which was committed at the time Deputy Thalken confronted the teens, including Max III. Deputy Thalken’s size, actions, and demeanor created a situation where Max III predictably felt threatened. When Deputy Thalken walked toward Max and grasped his arm, Max III retreated and raised his skateboard in a defensive manner, as confirmed by statements of witnesses and video footage. Deputy Thalken could have stopped his advance on Max III, but instead Deputy Thalken drew and pointed his firearm, advanced toward Max III, and pointed his firearm at the face of Max III. This use of force was unreasonable and excessive. 31. Deputy Thalken did not identify his office until after he pointed his firearm at Max III. Deputy Thalken’s actions were neither reasonable, nor prudent. When Deputy Thalken displayed his handgun in such an unreasonable manner and without identifying his office, Deputy Thalken created a danger to others, including Max III. A properly trained and supervised law enforcement deputy would not have acted in in such an unreasonable manner. 32. Max III was free from any negligence in the events leading up to, and including, the harm. 33. The present action is brought pursuant to section 820 and 815.2 of the Government Code. Pursuant to section 820 of the California Government Code, as a public = ‘COMPLAINTTRAUTFIRM Sema auneun iM 12 13 4 15 16 7 18 19 20 a 2 2B 24 25 26 27 28 employee, Deputy Thalken is liable for injuries caused by his acts or omissions to the same ‘extent as a private person. At all times mentioned herein, Deputy Thalken was acting within the course and scope of his employment and/or agency with defendants OCSD, COUNTY, and DOES | through 50, inclusive. At all relevant times subject of the complaint, Deputy Thalken was the agent of OCSD, COUNTY, and DOES 1 through 50, inclusive, all of whom are therefore responsible for Deputy Thalken’s conduct. Such authority exists as a result of, including but not limited to, Deputy Thalken’s conduct having shown his badge and identified himself as an officer at the time subject of this complaint. As such, OCSD, COUNTY, and DOES 1 through 50, inclusive, are liable in respondeat superior for the injuries caused by the acts and omissions of Deputy Thalken, including but not limited to pursuance to section 815.2 of the California Government Code. 34, The harm to Max III was a result of the negligence and failure of the defendants OCSD, COUNTY, and DOES | through 50, inclusive, to adequately and sufficiently train its officers, including defendant Deputy Thalken, as to the conduct violations detailed in the complaint. 35. Defendants OCSD, COUNTY, and DOES | through 50, inclusive, are directly liable and responsible for the acts of defendant Deputy Thalken because defendants OCSD, COUNTY, and DOES I through 50, inclusive, failed to adequately supervise, discipline, or in any other way control defendants Deputy Thalken’s exercise of his unlawful use of excessive force and/or additional unlaw acts and conduct violations detailed in the complaint. 36. By reason of the foregoing, Defendants, and each of them, are liable for, and Max IIs entitled to recover, his general, special, and compensatory damages, including, but not limited to, his necessary counseling and related expenses, as well as past, present, and future mental and emotional pain, in an amount presently unknown but exceeding the minimum jurisdictional limit of this Court and as proven at time of trial. 37. Deputy Thalken’s negligent conduct was a substantial factor is causing Max II to suffer serious emotional distress, whereas Max III actually suffered serious emotional distress. By reason of the foregoing, Defendants, and each of them, are liable for, and Max II is entitled 9. ‘COMPLAINTTRAUTFIRM Secwmrxaauneun nN 12 13 14 15 16 7 18 19 20 21 2 2B 24 25 26 27 28 to recover damages for emotional distress, in an amount presently unknown but exceeding the ‘minimum jurisdictional limit of this Court and as proven at time of trial. 38. All of the above acts and omissions of defendant Deputy Thalken were done in conscious disregard for the safety of Max III, a minor at the time subject of this complaint, by acts that were willful, wanton, malicious, and oppressive, thereby justifying the awarding of exemplary and punitive damages as to said defendant, which may further be recovered for the sake of example and by way of punishing the defendant. SECOND CAUSE OF ACTION (Assault / Battery) PLAINTIFF MAX CHANCE III FOR A SECOND CAUSE OF AGAINST DEFENDANTS COUNTY OF ORANGE, ORANGE COUNTY SHERIFF'S DEPARTMENT, MICHAEL THALKEN, AND DOES | THROUGH 50, INCLUSIVE, FOR ASSAULT / BATTERY, ALLEGE: 39. Plaintiff Max III refers to each and every one of the above paragraphs and incorporates those paragraphs as though set forth in full in this cause of action. 40. The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant's conduct; and (4) a reasonable person in plaintiff's position would have been offended by the touching. (So v. Shin). 41. Here: (1) Deputy Thalken touched Max III with the intent to harm or offend Max III by having, including but not limited to, pointed his handgun at Max III's face and violently grabbing his arm while forcing him to the ground, in which such acts -10- ‘COMPLAINT.TRAUTFIRM Cera neon 10 u 12 13 14 15 16 7 18 19 20 21 2 23 24 25 26 27 28 42. intended to harm or offend Max III into submission with fear and excessive and unreasonable force; (2) Max II] did not consent to that touching; (3) Max III was harmed or offended by Deputy Thalken, including but not limited to physical pain on his arm and other places on his body, and suffering severe ‘mental anguish, emotional distress, depression, worry, fear and anxiety, tearfulness, and anger; and (4) Reasonable persons in Max III’s position would have been offended by the touching and force used by Deputy Thalken. Therefore, Max III is informed and believes, and thereon alleges, that Deputy Thalken committed battery against Max III. 43. Alternatively and/or additionally, the essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant's conduct was a substantial factor in causing plaintiff's harm. (So v. Shin). 44, Here: (1) Deputy Thalken acted with intent to cause harmful or offensive contact to Max III, and/or threatened to touch Max II] in a harmful or offensive manner, by having, including but not limited to, pointed his handgun at Max III’s face and violently grabbing his arm while forcing him to the ground, in which such acts -l- ‘COMPLAINTTRAUTFIRM 45. intended to harm or offend Max Ill into submission with fear and excessive and unreasonable force; (2) Max III reasonably believed he was about to be touched in a harmful or offensive manner and/or it reasonably appeared to Max III that Deputy Thalken was about to carry out the threat; (3) Max III did not consent to Deputy Thalken’s conduct; (4) Max III was harmed; and (5) Deputy Thalken’s conduct was a substantial factor in causing Max III's harm. Therefore, Max III is informed and believes, and thereon alleges, that Deputy Thalken committed assault against Max Il. 46. Alternatively and/or additionally, the essential elements of a cause of action for battery by peace officer are: (1) defendant touched plaintiff, or caused plaintiff to be touched; (2) defendant used unreasonable force against plaintiff; (3) plaintiff did not consent to that use of force; (4) plaintiff was harmed; and (5) defendant's use of unreasonable force was a substantial factor in causing plaintiff's harm. (Edson v. City of Anaheim). 47. Here: (1) Deputy Thalken touched Max II, and/or caused Max III to be touched, by having, including but not limited to, pointed his handgun at Max III’s face and violently grabbing his arm while forcing him to the ground; (2) Deputy Thalken used unreasonable force against Max III by, including but not limited to, facts stated in the complaint. (3) Max III did not consent to that use of force; (4) Max III was harmed by Deputy Thalken, including but not limited to physical pain on his arm and other places on his body, and suffering severe mental -12- COMPLAINT.TRAUTFIRM Secwraueun u aed B 4 15 16 7 18 19 20 21 2 23 24 25 26 af 28 anguish, emotional distress, depression, worry, fear and anxiety, tearfulness, and anger; and (5) Deputy Thalken’s use of unreasonable force was a substantial factor in causing Max III's harm, 48, Therefore, Max III is informed and believes, and thereon alleges, that Deputy Thalken committed battery as a peace office against Max III 49. The present actions are brought pursuant to section 820 and 815.2 of the Government Code. Pursuant to section 820 of the California Government Code, as a public employee, Deputy Thalken is liable for injuries caused by his acts or omissions to the same extent as a private person. At all times mentioned herein, Deputy Thalken was acting within the course and scope of his employment and/or agency with defendants OCSD, COUNTY, and DOES | through 50, inclusive. At all relevant times subject of the complaint, Deputy Thalken ‘was the agent of OCSD, COUNTY, and DOES 1 through 50, inclusive, all of whom are therefore responsible for Deputy Thalken’s conduct. Such authority exists as a result of, including but not limited to, Deputy Thalken’s conduct having shown his badge and identified himself as an officer at the time subject of this complaint. As such, OCSD, COUNTY, and DOES | through 50, inclusive, are liable in respondeat superior for the injuries caused by the acts and omissions of Deputy Thalken, including but not limited to pursuance to section 815.2 of the California Government Code. 50. By reason of the foregoing, Defendants, and each of them, are liable for, and Max IIs entitled to recover, his general, special, and compensatory damages, including, but not limited to, his necessary counseling and related expenses, as well as past, present, and future ‘mental and emotional pain, in an amount presently unknown but exceeding the minimum jurisdictional limit of this Court and as proven at time of trial. 51. All of the above acts and omissions of defendant Deputy Thalken were done in conscious disregard for the safety of Max III, a minor at the time subject of this complaint, by acts that were willful, wanton, malicious, and oppressive, thereby justifying the awarding of -13- ‘COMPLAINTTRAU TFIRM wauneun ~ & 10 uN 12 13 4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exemplary and punitive damages as to said defendant, which may further be recovered for the sake of example and by way of punishing the defendant. THIRD CAUSE OF ACTION [Violation of Civil Rights (California Civil Code Section 52.1)] PLAINTIFF MAX CHANCE III FOR A THIRD CAUSE OF AGAINST DEFENDANTS COUNTY OF ORANGE, ORANGE COUNTY SHERIFF'S DEPARTMENT, MICHAEL THALKEN, AND DOES I THROUGH 50, INCLUSIVE, FOR VIOLATION OF CIVIL RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 52.1, ALLEGE: 52. Plaintiff Max III refers to each and every one of the above paragraphs and incorporates those paragraphs as though set forth in full in this cause of action. 53. Cal. Civ. Code Section 52.1, the Tom Bane Civil Rights Act, provides that it is, unlawful to interfere with the exercise or enjoyment of any rights under the Constitution and laws of this State and the United States by use or attempted use of threats, intimidation, or coercion, $4, Cal. Civ. Code Sections 51.7 and 52.4 guarantee the rights to persons in California to be free from assault, battery, and/or violence or threats of violence. 55. By actions detailed above, Deputy Thalken interfered with Max III’s civil rights, by threats, intimidation, and/or coercion. 56. Such threats, intimidation, and/or coercion caused Max III to reasonably believe that if he exercised his rights ~ including but not limited to the right to persons in California to be free from assault, battery, and/or violence or threats of violence then Deputy Thalken would ‘commit violence against Max III and that Deputy Thalken had apparent ability to carry out the threats, including but not limited to Deputy Thalken having brandished and pointed his loaded handgun at Max III’s face. Or, alternatively, or additionally, Deputy Thalken acted violently against Max III to prevent him from exercising, or retaliating against for having exercised, such rights including but not limited to those described in the complaint. a4 ‘COMPLAINTTRAUTFIRM Scwmrxraueon uN aa 14 15 16 7 18 19 20 21 2 2B 24 25 26 27 28 57. Deputy Thalken intended to deprive Max II! of his enjoyment of the interests, protected by right, including but not limited to the right to persons in California to be free from assault, battery, and/or violence or threats of violence. 58. By such actions, Max III was harmed, including but not limited to suffering severe mental anguish, emotional distress, depression, worry, fear and anxiety, tearfulness, and anger. 59. Deputy Thalken’s conduct herein described was a substantial factor in causing Max III's harm. 60. The present action is brought pursuant to section 820 and 815.2 of the Government Code. Pursuant to section 820 of the California Government Code, as a public employee, Deputy Thalken is liable for injuries caused by his acts or omissions to the same extent as a private person. At all times mentioned herein, Deputy Thalken was acting within the course and scope of his employment and/or agency with defendants OCSD, COUNTY, and DOES 1 through 50, inclusive. At all relevant times subject of the complaint, Deputy Thalken was the agent of OCSD, COUNTY, and DOES | through 50, inclusive, all of whom are therefore responsible for Deputy Thalken’s conduct. Such authority exists as a result of, including but not limited to, Deputy Thalken’s conduct having shown his badge and identified himself as an officer at the time subject of this complaint. As such, OCSD, COUNTY, and DOES 1 through 50, inclusive, are liable in respondeat superior for the injuries caused by the acts and omissions of Deputy Thalken, including but not limited to pursuance to section 815.2 of the California Government Code. 61. By reason of the foregoing, Defendants, and each of them, are liable for, and Max U1 is entitled to recover, his general, special, and compensatory damages, including, but not limited to, his necessary counseling and related expenses, as well as past, present, and future ‘mental and emotional pain, in an amount presently unknown but exceeding the minimum jurisdictional limit of this Court and as proven at time of trial 62. All of the above acts and omissions of defendant Deputy Thalken were done in conscious disregard for the safety of Max III, a minor at the time subject of this complaint, by -15- ‘COMPLAINTTRAU TFIRM Cer awe wn 10 n 12 13 4 15 16 Hg 18 19 20 21 2 2B 24 ply 26 a7 28 acts that were willful, wanton, malicious, and oppressive, thereby justifying the awarding of ‘exemplary and punitive damages as to said defendant, which may further be recovered for the sake of example and by way of punishing the defendant. FOURTH CAUSE OF ACTION (Intentional Infliction of Emotional Distress) PLAINTIFF MAX CHANCE III FOR A FOURTH CAUSE OF AGAINST DEFENDANTS COUNTY OF ORANGE, ORANGE COUNTY SHERIFF'S DEPARTMENT, MICHAEL THALKEN, AND DOES 1 THROUGH 50, INCLUSIVE, FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, ALLEGE: 63. Plaintiff Max III refers to each and every one of the above paragraphs and incorporates those paragraphs as though set forth in full in this cause of action. 64. Attimes relevant to the subject of the complaint, Deputy Thalken’s conduct, as detailed in the complaint, caused Max III to suffer severe emotional distress. 65. Deputy Thalken’s conduct was outrageous. Such conduct — which included but is not limited to having pointed his loaded handgun at Max III’s face and violently grabbing his arm while forcing him to the ground — was so extreme that it went beyond all possible bounds of decency. A reasonable person would regard the conduct as intolerable in a civilized community, for reasons including, but not limited to, Deputy Thalken having abused his position of authority asa deputy sheriff where such actual and/or apparent power as a deputy sheriff was used to affect Max III’s actions, and/or Deputy Thalken knew that his conduct would likely result in harm due to mental distress. 66. Deputy Thalken intended to cause Max II] emotional distress, and/or Deputy ‘Thalken acted with reckless disregard of the probability that Max III would suffer emotional distress, knowing that Max III was present when the conduct detailed in the complaint occurred. 67. Max III actually suffered severe emotional distress, whereas Deputy Thalken’s conduct was a substantial factor in causing Max III's severe emotional distress. -16- ‘COMPLAINTTRAUTFIRM 10 ul 12 1B 4 15 16 17 18 19 20 21 23 24 25 26 27 28 68. The present action is brought pursuant to section 820 and 815.2 of the Government Code. Pursuant to section 820 of the California Government Code, as a public employee, Deputy Thalken is liable for injuries caused by his acts or omissions to the same ‘extent as a private person. At all times mentioned herein, Deputy Thalken was acting within the course and scope of his employment and/or agency with defendants OCSD, COUNTY, and DOES | through 50, inclusive. At all relevant times subject of the complaint, Deputy Thalken was the agent of OCSD, COUNTY, and DOES | through 50, inclusive, all of whom are therefore responsible for Deputy Thalken’s conduct. Such authority exists as a result of, including but not limited to, Deputy Thalken’s conduct having shown his badge and identified himself as an officer at the time subject of this complaint. As such, OCSD, COUNTY, and DOES | through 50, inclusive, are liable in respondeat superior for the injuries caused by the acts and omissions of Deputy Thalken, including but not limited to pursuance to section 815.2 of the California Government Code. 69. By reason of the foregoing, Defendants, and each of them, are liable for, and Max IIs entitled to recover, his general, special, and compensatory damages, including, but not limited to, his necessary medical and related expenses, as well as past, present, and future mental and emotional pain, in an amount presently unknown but exceeding the minimum jurisdictional limit of this Court and as proven at time of trial. 70. All of the above acts and omissions of defendant Deputy Thalken were done in conscious disregard for the safety of Max III, a minor at the time subject of this complaint, by acts that were willful, wanton, malicious, and oppressive, thereby justifying the awarding of exemplary and punitive damages as to said defendant, which may further be recovered for the sake of example and by way of punishing the defendant. PRAYER WHEREFORE, Plaintiff prays for judgment against Defendants as follows: 1. For general damages in an amount according to proof, within the jurisdictional limits of the Court; -17- ‘COMPLAINT.TRAUTFIRM Socwerxraueron MW 13 4 15 16 7 18 19 20 21 2 2B 4 25 26 27 28 Medical, counseling, and related expenses in such sums as shall be proven at trial; and For special damages in an amount according to proof, within the jurisdictional limits of the Court; Exemplary damages against defendant Deputy Thalken, as spelled out in each cause of action, in an amount sufficient to deter and to make an example of such defendant; For costs of suit incurred herein, and for attomney’s fees, as provided by statute; For all pre- and post-judgment interest as provided by law; and For such other and further damages as provided by law, or such relief as the Court may deem just and proper. DATED: March Y, 2021 TRA ICV. TRAUT, ESQ. CONNOR J. TRAUT, ESQ. Attorneys for Plaintiff -18- ‘COMPLAINT