FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS (ECF Nos. 17, 22) OBJECTIONS DUE WITHIN FOURTEEN DAYS

STANLEY A. BOONE, Magistrate Judge.

I.

PROCEDURAL HISTORY

Plaintiffs filed this action on December 4, 2013, against Defendants City of Visalia, Visalia Police Department, Colleen Mestas and Doe defendants alleging violations of the Fourth and Fourteenth Amendments, and state law claims. (ECF No. 1.) On December 20, 2013, Defendant Visalia Police Department was dismissed from this action based upon the stipulation of the parties. (ECF No. 14.) On February 4, 2014, Defendants filed a motion to dismiss. (ECF No. 17.) Plaintiffs filed an opposition on February 19, 2014. (ECF No. 22.) Defendants filed a reply on February 26, 2014. (ECF No. 25.)

The Court heard oral arguments on March 5, 2014. (ECF No. 27.) Counsel Charles Phillip Charlton appeared for the minors and Jessie French appeared telephonically for Plaintiffs, and Leonard Herr and Ron Statler appeared telephonically for the Defendants. Id. During the hearing, the parties were allowed to provide supplemental briefing by March 12, 2014 on whether Plaintiffs were able to bring a claim deprivation of family relations under article I section 7 of the California Constitution. On March 12, 2014, Defendants filed supplemental briefing.1 Plaintiffs did not file a supplemental briefing.

Having considered the moving, opposition and reply papers, the declarations and exhibits attached thereto, arguments presented at the March 5, 2014 hearing, as well as the Court's file, the Court issues the following finding and recommendation.

II.

COMPLAINT ALLEGATIONS

On or about October 26, 2012, Edward Maduena was driving a vehicle and Rueben Molina, Nicholas Chavez, Robert Ruiz, and an identified female were passengers. (Compl. ¶ 19, ECF No. 1.) Three Visalia Police Department Officers, who are part of the gang unit, observed the vehicle containing the five "Latino-looking" individuals and began following them. (Id. at ¶ 20.) Mr. Maduena stopped his vehicle at a stop sign, and according to the officers, he crossed the limit line and failed to come to a complete stop. As Mr. Maduena proceeded through the intersection, one of the officers activated his vehicle's flashing lights in order to initiate a traffic stop. (Id. at ¶ 21.)

Mr. Maduena did not pull over and a police chase ensued. As Mr. Maduena was attempting to exit Highway 99 onto Avenue 304, he lost control of his vehicle and the vehicle overturned, coming to rest on the roof in a dirt lot. (Id. at ¶ 22.) Several police vehicles were following Mr. Maduena and followed the vehicle into the lot, stopping so their headlights shined on the vehicle, illuminating it and the lot. (Id. at ¶ 23.) As the occupants of the vehicle tried to exit, officers repeatedly shot Mr. Maduena, Mr. Molina, and Mr. Chavez. Mr. Maduena and Mr. Molina were killed; and Mr. Chavez was severely injured. (Id. at ¶ 25.)

Plaintiffs allege that Defendant Mestas was the Chief of Police and failed to properly train the officers in pursuing, stopping, apprehending individuals and how to deal with multiple passengers involved in a police chase. (Id. at ¶¶ 27, 28.) Plaintiffs bring this action alleging excessive force in violation of the Fourth Amendment, violation of substantive due process, municipal and supervisorial liability under 42 U.S.C. § 1983, and state law claims of wrongful death, deprivation of familial relationship, negligence, negligent training and retention, and assault and battery.

III.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on the grounds that a complaint "fail[s] to state a claim upon which relief can be granted." A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require `detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In assessing the sufficiency of a complaint, all well-pleaded factual allegations must be accepted as true. Iqbal, 556 U.S. at 678-79. However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678.

IV.

DISCUSSION

Defendants bring this motion to dismiss Plaintiffs' first and third through seventh causes of action pursuant to Federal Rules of Civil Procedure 12(b)(6).

A. Defendant Mestas

Defendants initially move to dismiss any claims against Defendant Mestas in her individual capacity arguing that there are no allegations in the complaint of any act or failure to act by Defendant Mestas. (P. & A. in Support of Mot. to Dismiss 2,2 ECF No. 17-1.) Defendants contend that Plaintiffs' opposition does not oppose the motion to dismiss claims against Defendant Mestas in her individual capacity. (City's Reply to Pls.' Opp. 2, ECF No. 25.) Other than stating that the claim is brought against Defendant Mestas in her individual and official capacities and that she failed to train the officers, Plaintiffs do not address Defendants argument that the individual capacity claims fail to state a claim. (Pls.' Opp. to Defs.' Mot. to Dismiss 5-6, 7-10, ECF No. 22.)

Government officials may not be held liable for the actions of their subordinates under a theory of respondeat superior. Iqbal, 550 U.S. at 677. However, "[a] defendant may be held liable as a supervisor under § 1983 `if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.'" Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). The law clearly allows an action where the plaintiff shows that the supervisor breached a duty to the plaintiff which was the proximate cause of the injury. Starr, 652 F.3d at 1207. This causal connection can be established by the supervisor's culpable action or inaction in the training, supervision, or control of his subordinates. Dubner v. City and County of San Francisco, 266 F.3d 959, 968 (9th Cir. 2001).

In this instance, Plaintiffs' complaint only sets forth "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," that do not suffice to state a claim against Defendant Mestas in her individual or official capacity. Iqbal, 556 U.S. at 678. The Court recommends that Defendants' motion to dismiss the individual and official capacity claims against Defendant Mestas be granted.

B. City of Visalia

Defendants move to dismiss the first cause of action against Defendant City of Visalia for excessive force in violation of the Fourth Amendment and due process arguing it is based upon respondeat superior liability.3 (ECF No. 71-1 at 2-3.) Defendants also seek to dismiss the City of Visalia from the third cause of action alleging Monell liability. (Id. at 4-5.) Plaintiffs contend that the complaint properly pleads a custom and policy claim against the City of Visalia for the failure to properly train the officers on the use of deadly force against civilians. (ECF No. 22 at 8-11.)

"A municipality's failure to train an employee who has caused a constitutional violation can be the basis for § 1983 liability where the failure to train amounts to deliberate indifference to the rights of persons with whom the employee comes into contact." Long v. County of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006); see City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). A municipality may be held liable by showing 1) a practice or custom which constitutes a standard operating procedure of the entity; 2) "by showing that the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision," or 3) "by showing that an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate." Ulrich v. City and County of San Francisco, 308 F.3d 968, 984-85 (9th Cir. 2002) (internal punctuation and citations omitted).

"For purposes of liability under Monell, a `policy' is `a deliberate choice to follow a course of action ... made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.' Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008) (quoting Fairley v. Luman, 281 F.3d 913, 918 (9th Cir.2002)). To hold the municipality liable, the failure to train must be the moving force behind the constitutional violation. Canton, 489 U.S. at 391.

"Allegations of Monell liability will be sufficient for purposes of Rule 12(b)(6) where they: (1) identify the challenged policy/custom; (2) explain how the policy/custom is deficient; (3) explain how the policy/custom caused the plaintiff harm; and (4) reflect how the policy/custom amounted to deliberate indifference, i.e. show how the deficiency involved was obvious and the constitutional injury was likely to occur." Young v. City of Visalia, 687 F.Supp.2d 1155, 1163 (E.D. Cal. 2010).

Plaintiffs' complaint alleges that the Chief of Police failed to properly train and supervise officers on the proper procedure for arrest and detention during a police chase and the use of force. (ECF No. 1 at ¶¶ 9, 10, 17, 28, 29, 30.) This failure to train is claimed to be the cause of the officers' escalating the situation which directly led to the use of deadly force in this instance. (Id. at 36.) Plaintiffs argue that proper training would have allowed the officers to effectuate the detention of the individuals without the use of deadly force. (Id. at ¶ 30.)

Plaintiffs' pleading tracks the elements of a failure to train claim, however, Plaintiffs only state conclusory allegations regarding any failure to train, and do not identify any specific training that was deficient, or how the policy amounted to deliberate indifference. A single incident without more is insufficient to show that there was a policy or custom of failure to train. City of Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985).

Plaintiffs state that the pleadings in this action are similar to those in Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) which were found to state a Monell claim. However, Lee was decided prior to Iqbal and the pleading standard is now higher. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, a plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are `merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. Plaintiffs have failed to state a cognizable claim for municipal liability based on the failure to train. The Court recommends that Defendants' motion to dismiss Defendant City of Visalia be granted.

C. State Law Claims

Defendants move to dismiss the state law claims alleged in claims four through seven arguing that they are a list of failures by the defendants without any facts that would lead to a plausible claim that any defendant either acted or failed to act. (ECF No. 71-1 at 5.)

The California Tort Claims Act provides that unless provided by statute, "[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." Cal. Gov. Code § 815(a). "All government tort liability must be based on statute." Young, 687 F.Supp.2d at 1164 (quoting Hoff v. Vacaville Unified Sch. Dist., 19 Cal.4th 925, 932 (1998)).

A government entity may be held 1) directly liable if a specific statute provides for liability or creates a duty of care apart from general tort principles; or 2) vicariously liable for the torts of its employees committed within the course and scope of their employment. De Villers v. County of San Diego, 156 Cal.App.4th 238, 251 (2007); Cal. Gov. Code § 815.2(a) ("A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative."). While Cal. Gov. Code § 820(a) provides that public employees are liable for their acts or omissions to the same extent of that of a private person, no similar provision makes public entities liable for their own negligent act or omission to the same extent as that of a private person or entity. Eastburn v. Regional Fire Protection Authority, 31 Cal.4th 1175, 1179-80 (2003).

1. Wrongful Death (Cal. Gov. Code §§ 815.2(a), 820(a); Cal. Civ. Code § 43)

Claim four alleges a wrongful death claim against all defendants. (ECF No. 1 at ¶¶ 61-67.) Defendants contend this claim is based upon the defendants' failure to use ordinary care in training and supervising employees without any facts from which one might infer such a failure. (ECF No. 71-1 at 6.) Plaintiffs argue that the complaint sets forth sufficient facts describing the incident and the use of deadly force to state a cognizable claim. (ECF No. 22 at 11.)

Under California law a surviving spouse, domestic partner, and children, or if there is no surviving issue the person who would be entitled to the property of the decedent by intestate succession, have standing to assert a wrongful death claim on behalf of the decedent. Cal. Code Civ. P. § 377.60(a). As relevant here, the elements for a wrongful death claim are 1) negligence; 2) a resulting death; 3) and damages, which are the pecuniary loss suffered by the heirs. Quirez v. Seventh Ave. Center, 140 Cal.App.4th 1256, 1263 (2006). The California Supreme Court has held that "an officer's lack of due care can give rise to negligence liability for the intentional shooting death of a suspect." Munoz v. Olin, 24 Cal.3d 629, 634 (1979) (citing Grudt v. City of Los Angeles, 2 Cal.3d 575 (1970)).

Defendants seek to dismiss this entire cause of action against all defendants based upon the failure to plead a claim for the failure to train and supervise employees. However, Plaintiffs have brought this claim against the fifteen unidentified officers who opened fire on the occupants of the vehicle. Plaintiffs contend that as a result of the negligent actions of the officers, Mr. Maduena and Mr. Molina were killed. Defendants' motion to dismiss the claims against Defendants City of Visalia and Mestas should be granted for the reasons discussed supra at IV.B. However, the allegations against the unidentified Doe defendants are sufficient to state a cognizable claim. Plaintiffs will need to file a motion to amend their complaint once they have ascertained the identities of the Doe defendants.

2. Deprivation of Familial Relationship (Cal. Const. Art. I § 7)

In the fifth claim, Plaintiffs seek damages for violation of article I section 7 of the California Constitution. Article I section 7 provides that "[a] person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws." In Katzberg v. Regents of University of California, 29 Cal.4th 300 (2002), the California Supreme Court considered the plaintiff's claim that he was entitled to seek damages under article I, section 7 for the violation of his due process liberty interest. 29 Cal.4th at 306. The Court set forth the framework to use in determining if damages could be sought for a violation of the California Constitution.

First, a court is to consider "whether there is evidence from which we may find or infer, within the constitutional provision at issue, an affirmative intent either to authorize or to withhold a damages action to remedy a violation." Id. at 317. Second, "if no affirmative intent either to authorize or to withhold a damages remedy is found," the court is to "undertake the `constitutional tort' analysis adopted by Bivens and its progeny." Id. The court explained that:

Id. Considering these factors, the California Supreme Court held that there is no right to seek damages for a violation of due process under article I section 7 of the California Constitution. Id. at 329.

As the California Supreme Court analyzed in Katzberg "there is no indication in the language of article I, section 7(a), nor any evidence in the history of that section, from which we may find, within that provision, an implied right to seek damages for a violation of the due process liberty interest." Katzberg, 29 Cal.4th at 324. However, the California Supreme Court found the provision does not foreclose the award of damages so under Katzberg, this Court must proceed to the second analysis: whether it would be appropriate to recognize a tort action for damages to remedy a constitutional violation. Id. at 325.

As discussed supra at IV.C.1., California law allows the family of the deceased the standing to bring suits for wrongful death and other torts. Chavez v. Carpenter, 91 Cal.App.4th 1433, 1439-40 (2001). An adequate remedy exists for Plaintiffs in this instance. Therefore, the first factor in this analysis weighs against finding a new constitutional tort.

It is well established that generally an individual only has standing to assert his own legal rights. California tort law does recognize a cause of action for infliction of emotional distress, but even this tort cause of action requires that the plaintiff have contemporary knowledge of the wrongful conduct. Dillon v. Legg, 68 Cal.2d 728, 741. Allowing a plaintiff to sue for an injury to a third party, of which he was unaware until after the fact, would significantly expand California tort law.

As the Katzberg court recognized, the liberty interest in article I, section 7 is both important and fundamental. Katzberg, 29 Cal.4th at 328. "But absent the applicability of the other relevant factors discussed here, the relative importance of the constitutional right is of little help in determining the availability of a damages remedy for a violation of that right." Id.

In the opposition filed February 22, 2014 and prior to the hearing, Plaintiffs relied on Porter v. Osborn, 546 F.3d 1131 (9th Cir. 2008) to argue that a substantive due process claim may be brought by the family of an individual who was shot and killed by a police officer. However, Porter addressed the due process right under the Fourteenth Amendment to familial association. Porter, 546 F.3d at 1136. Porter is inapplicable to the issue of whether Plaintiffs may seek damages under the California constitution. The Court finds that California would not recognize a constitutional tort to remedy the asserted violation of article I, section 7 in this instance.

The Court provided Plaintiffs with the opportunity to provide a basis for their state law cause of action for deprivation of family relations and they have failed to do so. Defendants' motion to dismiss the claim for deprivation of the familial relationship in violation of article I section 7 should be granted, without leave to amend.

3. Negligence

Under California law, the elements for a negligence cause of action are "1) a legal duty to use reasonable care, 2) breach of that duty, and 3) proximate or legal cause between the breach and 4) the plaintiff's injury." Phillips v. TLC Plumbing, Inc., 172 Cal.App.4th 1133, 1139 (2009) (internal punctuation and citations omitted). For the reasons discussed at IV.B, Plaintiffs' claims against Defendants City of Visalia and Mestas fail to state a cognizable claim. However, Plaintiffs' allegations that the officers were negligent in using deadly force when the decedents did not pose a reasonable threat of harm to any person is sufficient to state a claim against the unidentified officers who fired upon the decedents. The Court recommends that Defendants' motion to dismiss the negligence cause of action should be granted for Defendants City of Visalia and Mestas and denied for the fifteen unidentified defendants who fired upon the decedents and Plaintiff Chavez.

4. Negligent Training and Retention

Plaintiffs bring this cause of action for negligent training and retention against supervisory defendants and the City. California law recognizes the theory that an employer can be liable to a third party for the negligent hiring, training, or supervision of an employee. Phillips, 172 Cal.App.4th at 1139-40. "Liability for negligent supervision and/or retention of an employee is one of direct liability for negligence, not vicarious liability." Delfino v. Agilent Technologies, Inc., 145 Cal.App.4th 790, 815 (2006).

Under California law there is no direct entity liability for negligent training or retention and Plaintiffs may not bring a direct liability claim against the City of Visalia for negligent training or retention. De Villers, 156 Cal.App.4th at 253-56. Plaintiffs have failed to sufficiently allege any facts to state a cognizable claim for negligent training or retention. Accordingly, the Court recommends that Defendants' motion to dismiss the seventh cause of action for negligent training and retention be granted.

CONCLUSION AND RECOMMENDATION

Based on the foregoing, IT IS HEREBY RECOMMENDED that:

These findings and recommendations are submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within fourteen (14) days of service of this recommendation, any party may file written objections to these findings and recommendations with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the district judge's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.