Suit against Yuba City police dismissed

A federal judge has tossed out a lawsuit filed by a Yuba City man who alleged he was roughed up by police in 2009.

US District Judge Morrison England on Friday ordered that the suit filed by Rosendo Gutierrez be dismissed because it was not filed in a timely manner.

Gutierrez filed the case in October in federal court in Sacramento. He sued the city and the police officers he said were involved in the incident.

"I think the court made a mistake, and we will be filing an appeal," Gutierrez's lawyer, Jesse Ortiz, said Tuesday.

Bruce Kilday, an attorney who represented the city, said the motion to dismiss "was pretty simple and straightforward. The judge granted it. The case should have been and was dismissed."

Officers were called to Gutierrez's home in December 2009 after a neighbor said there were gunshots and arguing.

When police arrived, Gutierrez told them he had been aruging with his wife about financial matters, but no shots were fired.

The police "insisted on checking the house for weapons despite (Gutierrez's) assurance that the home was safe," England wrote in his decision.

During the search, the suit alleged, the officers "became physical with Gutierrez by forcing him to the ground and physically restraining him" by digging their knees into his body and head.

Gutierrez was arrested and charged with misdemeanor resisting arrest. He went on trial in June 2010 and was acquitted, according to court papers.

Attorney Serena Sanders, who also represented the city, contended in court papers that the lawsuit should be dismissed because Gutierrez failed to file within the two-year statute of limitations.

Sanders said the lawsuit should have been filed by June 23, 2012, or two years after the June 23, 2010, acquittal.

Ortiz, in his court filing, said California has a three-year statute of limitations when a case involves a trespass, which the suit alleges the police officers committed by entering the house without Gutierrez's permission.

"It's one thing to have a novel theory," Kilday said. "It's another thing to have a novel theory that's contrary to a decade's worth of law. The law is pretty clear. This is a Fourth Amendment issue, and a Fourth Amendment issue is looked at a certain way by the courts."