SUSAN ILLSTON, District Judge.
Plaintiffs Jacob Sternberg and Alan Bishoff bring this action under 42 U.S.C. § 1983 and various state laws against the Town of Danville, the County of Contra Costa, and four police officers. The Town of Danville and the County of Contra Costa now move to dismiss the first amended complaint for failure to state a claim. The motion is scheduled for a hearing on December 18, 2015. Pursuant to Local Rule 7-1(b), the Court determines this motion is appropriate for resolution without oral argument and
It is alleged that on April 17, 2014, plaintiffs Jacob Benjamin Sternberg and Alan Mark Bishoff drove to a Trader Joe's grocery store in Danville, CA. First Amended Compl. ("FAC"), Dkt. No. 35, ¶ 13. Once in the store parking lot, plaintiffs proceeded to the "dumpster corral which, while enclosed with metal doors, was not locked." Id. Plaintiffs removed discarded food items from the dumpster, placed the items in their car, and drove away. Id. Plaintiffs were later pulled over by defendant police officers Jeff Kellogg and Andrew Burns who claimed plaintiffs were "going a little fast," although plaintiffs allege they were not speeding. Id.
During the stop, the officers noticed the food in the back seat of the car, and asked plaintiffs what it was. Id. Plaintiffs responded that it was food. Id. When asked where they obtained the food, plaintiffs refused to provide any further detail and stated that "they were law abiding citizens, and were looking forward to continuing on their way." Id. The officers then asked plaintiffs whether they had any illegal drugs or weapons in the car, to which they responded they did not. Id.
A few moments later defendant officer Rossberg arrived on the scene
Plaintiffs were then moved to the back of a police car, with their hands handcuffed behind their backs. Id. Sternberg complained that his handcuffs were causing him pain, and asked if he could be handcuffed with his hands in front of him. Id. This request was refused. Id. After a "substantial period of time," an employee of Trader Joe's arrived at the scene. Id. The employee examined the food that plaintiffs had taken and confirmed that it was discarded food held in an unsecured dumpster. Id. The employee stated that the store did not desire for plaintiffs to be prosecuted. Id.
Plaintiffs were later asked by one of the defendant officers if they wished to be informed of their rights. Id. Plaintiffs responded that they would like to be so informed, and invoked their right to speak with an attorney as soon as that right was communicated to them. Id. After remaining in the backseat of the police car for several hours, plaintiffs were told that they were being arrested and charged with burglary, conspiracy, receiving stolen property, and possession of a controlled substance. Id. Plaintiffs were booked, and transported to Contra Costa County Jail in Richmond, CA, where they remained for five days. Id. No criminal charges were ever filed. Plaintiffs also never received a speeding ticket. Id.
Plaintiffs allege that defendants Kellogg, Burns, Rossberg, and Jimenez were employed by the Town of Danville ("Danville") and/or the County of Contra Costa (the "County"), and/or were independent contractors of Danville. Id. ¶¶ 8, 16. Pursuant to a contract subject to California Government Code §§ 55631-55634 and California Government Code § 6500 et seq., the County provides Danville with law enforcement personnel, and Danville reimburses the County for the costs. Id. ¶ 6; Dkt. No. 35, Ex. A at 23.
On April 27, 2015, plaintiffs filed a complaint alleging civil rights violations against Danville and several individuals as defendants. Dkt. No. 1. After learning of the contract between Danville and the County, plaintiffs filed a motion to amend the complaint to add the County as a defendant. Dkt. No. 23. Danville filed a motion for judgment on the pleadings. Dkt. No. 24. The Court granted the motion to amend the complaint and denied the motion for judgment on the pleadings. Dkt. No. 34.
On September 9, 2015, plaintiffs filed the FAC alleging eleven causes of action: (1) 42 U.S.C. § 1983 against individual defendants; (2) 42 U.S.C. § 1983 (Monell liability); (3) 42 U.S.C. § 1983 (unlawful customs, policies, habits, or procedures); (4) California Civil Code § 52.1(b); (5) false arrest; (6) false imprisonment; (7) intentional infliction of emotional distress; (8) negligence; (9) 42 U.S.C. § 1983 (negligent selection, training, retention, supervision, investigation, and discipline); (10) conspiracy; and (11) injunctive relief and declaratory relief. Dkt. No. 35. Plaintiffs named as defendants Danville, the County, Kellogg, Burns, Rossberg, Jimenez, and several Doe defendants.
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "facial plausibility" standard requires the plaintiff to allege facts that add up to "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts do not require "heightened fact pleading of specifics," a plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 570.
In deciding whether a plaintiff has stated a claim upon which relief can be granted, the court must assume that the plaintiff's allegations are true and must draw all reasonable inferences in the plaintiff's favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to "accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). The court, for example, need not accept as true "allegations that contradict matters properly subject to judicial notice or by exhibit." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
As a general rule, the court may not consider materials beyond the pleadings when ruling on a Rule 12(b)(6) motion. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). However, pursuant to Federal Rule of Evidence 201, the court may take judicial notice of "matters of public record," such as prior court proceedings. Id. at 688-89. The court may also consider "documents attached to the complaint [and] documents incorporated by reference in the complaint . . . without converting the motion to dismiss into a motion for summary judgment." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
If the court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has "repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted).
Danville and the County (hereafter "defendants") move to dismiss plaintiffs' three claims under 42 U.S.C. § 1983. Dkt. 37 at 4-10.
"Plaintiffs who seek to impose liability on local governments under § 1983 must prove that `action pursuant to official municipal policy' caused their injury." Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)). "Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law." Id. To state a Monell claim, a plaintiff must establish: (1) that the plaintiff possessed a constitutional right of which he was deprived; (2) that the municipality had a policy, custom, or practice; (3) that the policy, custom, or practice amounted to deliberate indifference to the plaintiff's constitutional rights; and (4) that the policy, custom, or practice was the moving force behind the constitutional violation. See Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011); AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012). Defendants argue that, for all three Monell claims, plaintiffs have failed to allege sufficient factual allegations demonstrating elements two, three, and four. Dkt. No. 37 at 5.
The Ninth Circuit has applied a two-part rule for determining whether factual allegations are properly pled for a Monell claim, stating:
AE, 666 F.3d at 637 (quoting Starr v. Baca, 652 F.3d 1203, 1216 (9th Cir. 2011)).
Plaintiffs allege three Monell claims against Danville and the County for violations of the First, Fourth, and Fifth Amendments. However, the theories of liability upon which the claims are based are somewhat unclear and overlapping. The Court attempts to summarize the claims, as follows:
Claim Three, titled "Unlawful Customs, Policies, Habits, or Procedures," alleges that: (1) Danville and the County directed, encouraged, allowed, or ratified by policymakers customs, policies, practices, or procedures of (a) failing to supervise or discipline officers for conduct causing civil rights violations, and/or (b) failing to institute, maintain, or effectively administer appropriate (re)training on free speech rights, unlawful seizures, and/or the use of force (FAC ¶ 25); (2) alternatively, Danville and the County failed to properly oversee, enforce, and properly carry out policies and training on free speech rights, unlawful seizures, and/or the use of force (FAC ¶ 26); (3) these customs, policies, practices, and/or procedures caused the deprivations of plaintiffs' constitutional rights (FAC ¶ 27); and (4) plaintiffs' harm was a proximate result of the customs, policies, practices, and/or procedures (FAC ¶ 28).
Claim Nine, titled "Negligent Selection, Training, Retention, Supervision, Investigation, and Discipline," alleges that: (1) Danville and the County have a duty of care to properly select, train, retain, supervise, investigate, and discipline the individual defendants (FAC ¶ 52); (2) Danville and the County, through their supervisory officials, received notice on several occasions of a pattern and practice of unconstitutional acts by the individual defendants and other law enforcement personnel (FAC ¶ 53); (3) Danville and the County were deliberately indifferent to this pattern and practice by failing to take necessary measures, such as providing adequate training on the use of force, to stop the conduct (FAC ¶¶ 54-55); (4) the lack of adequate supervision demonstrates an informal custom or policy tolerating and promoting excessive use of force (FAC ¶ 55); and (5) plaintiffs were harmed by the wrongful conduct of the individual defendants (FAC ¶ 56).
Both Claim Two and Claim Nine allege an informal policy of deliberate indifference based on Danville and the County's notice of a pattern or practice of constitutional violations by the individual defendants and other law enforcement personnel. See FAC ¶¶ 22, 53. However, plaintiffs have alleged facts relating only to their interaction with the individual defendants. They have not alleged any facts demonstrating a pattern or practice of constitutional violations, or how defendants received notice of such a pattern or practice. Compare Starr, 652 F.3d at 1216 (finding sufficient the plaintiff's allegations of specific and numerous other incidents involving conduct similar to that complained of by the plaintiff, provision of notice of all these incidents, and notice of systemic problems in the county jails through several reports); Mateos-Sandoval, 942 F. Supp. 2d at 895-97, 900 (finding sufficient the plaintiffs' allegations of the specific content of a policy, custom, or practice that led to similar constitutional violations in two separate incidents) with Lewis v. Cnty. of San Diego, No. 13-cv-2818, 2015 WL 474279, at *6 (S.D. Cal. Feb. 5, 2015) (rejecting plaintiffs' argument that "they are not required to plead evidence to demonstrate a pattern or practice by identifying other instances in which someone was similarly treated by defendants"). Instead, plaintiffs simply allege: (1) the existence of such a pattern or practice, (2) that defendants had notice, and (3) that defendants failed to adequately respond. This recites the elements of a Monell claim and is plainly insufficient. See AE, 666 F.3d at 637. The Court therefore finds that Claims Two and Nine are insufficiently pled.
Claim Three appears to assert a policy or custom of inadequate training and supervision. "[T]he inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388 (1989). In order for municipal liability to attach, the failure to train must reflect "a `deliberate' or `conscious' choice by a municipality." Id. at 389. Such deliberate indifference may be shown, for instance, where "in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need." Id. at 390. A "sufficiently inadequate" failure to supervise may also establish deliberate indifference. Dougherty, 654 F.3d at 900 (citing Davis v. City of Ellensburg, 869 F.2d 1230, 1235 (9th Cir. 1989)). "Mere negligence in training or supervision, however, does not give rise to a Monell claim." Id. Plaintiffs have not alleged facts showing an obvious need for more training and supervision reflecting deliberate indifference by the defendants. Thus, Claim Three is not adequately pled.
Accordingly, the Court GRANTS the motion to dismiss plaintiffs' Monell claims against Danville and the County, with leave to amend.
Plaintiffs allege six state law claims against defendants: (1) California Civil Code § 52.1(b); (2) false arrest; (3) false imprisonment; (4) intentional infliction of emotional distress ("IIED");
Defendants argue that Danville cannot be liable for the asserted state law claims because Danville is not the employer of the individual defendants under the contract, and is not liable for their acts as independent contractors. Dkt. No. 37 at 11. Plaintiffs argue that (1) the employment status of the individual defendants is not determinative of Danville's liability, (2) that there are facts indicating that the individual defendants are servants or employees of Danville, and (3) that it is premature to make a factual determination about the individual defendants' employment status at this stage of the litigation. Dkt. No. 44 at 7-10. The Court finds plaintiffs' second and third points persuasive.
The contract states that the provided law enforcement personnel are employees of the County. Dkt. No. 35, Ex. A at 26.
Whether Danville is an employer of any of the individual officers is currently a factual dispute ill-suited for resolution on a motion to dismiss. Accordingly, the Court DENIES the motion to dismiss the state law claims against Danville.
Defendants argue that the state law claims against the County fail because the plaintiffs did not comply with the California Government Claims Act (Cal. Gov't Code § 810 et seq.). Dkt. No. 37 at 12. Plaintiff argues that they have complied with the Act, and request leave to amend the complaint should the Court find noncompliance. Dkt. No. 44 at 15.
Before filing suit on tort claims against certain state actors, a plaintiff must file a government claim pursuant to the California Government Claims Act. Cal. Gov't Code § 810 et seq. A plaintiff is required to present "[a] claim . . . or an application to the public entity for leave to present a late claim" to the public entity by either "(1) [d]elivering it to the clerk, secretary or auditor thereof," or "(2) [m]ailing it to the clerk, secretary, auditor, or to the governing body at its principal office." Cal. Gov't Code § 915(a). A plaintiff must present this claim "not later than six months after the accrual of the cause of action." Cal. Gov. Code § 911.2.
A plaintiff must present this claim "[e]ven if the public entity has actual knowledge of the facts that might support a claim." DiCampli-Mintz v. Cnty. of Santa Clara, 55 Cal.4th 983, 990 (Cal. 2012). A "failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity." State v. Superior Court (Bodde), 32 Cal.4th 1234, 1239 (Cal. 2004). In addition, the "failure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action." Id.
Alternatively, the claim presentation requirement can be satisfied even if it does not meet the requirements of California Government Code § 915(a) if, within the proper time period, a claim is "is actually received by the clerk, secretary, auditor or board of the local public entity." Cal. Gov't Code § 915(e).
Plaintiffs state that they were unaware that the individual defendants were deputies from the County assigned to Danville and, therefore, filed a claim with Danville. Dkt. No. 44 at 12. Plaintiffs also point to the contract between Danville and the County, which requires the County to indemnify Danville for any liability resulting from the conduct of the provided law enforcement personnel. Id.; see also Dkt. No. 35, Ex. A at 26. Plaintiffs argue that it can be inferred from the indemnification clause that the claim submitted to Danville was forwarded to the County. Dkt. No. 44 at 12. And attached to plaintiffs' counsel's declaration are exhibits showing that the claim submitted to Danville was forwarded to a board member of the County. Id. at 13; see also Dkt. No. 44, Decl. of Panos Lagos, Exs. C, D, and E. Thus, plaintiffs argue that they satisfied California Government Code § 915(e).
However, plaintiffs have not alleged these facts in their complaint, nor have they alleged facts to support relief from the filing requirement pursuant to Government Code § 946.6(c). Further, it is not clear whether the person who received the forwarded claim is a statutorily designated recipient under California Government Code § 915(e).
Thus, based on allegations in the complaint, plaintiffs have not demonstrated compliance with the California Government Claims Act.
Plaintiffs alternatively argue that defendants are equitably estopped from arguing plaintiffs' noncompliance. Dkt. No. 44 at 14. Under California law,
Castaneda v. Dep't of Corr. & Rehab., 212 Cal.App.4th 1051, 1064 (Cal. Ct. App. 2013), review denied (May 1, 2013) (citing Munoz v. State of California, supra, 33 Cal.App.4th 1767, 1785 (Cal. Ct. App. 1995)) (emphasis in original) (internal quotation marks and citation omitted). As plaintiffs note, the individual defendants represented themselves as Danville police officers by wearing Danville badges, insignia, and name tags. See Dkt. No. 44 at 14. However, as defendant correctly argues, plaintiffs have not alleged any affirmative acts by defendants that were intended for the plaintiffs to act upon. See Dkt. No. 47 at 11. Thus, equitable estoppel is not applicable here.
Accordingly, the Court GRANTS the motion to dismiss the state law claims against the County, with leave to amend the complaint asserting facts that plaintiffs complied with the California Government Claims Act.
Defendants argue the negligence claim fails for two reasons: (1) a claim for this type of negligence cannot be asserted against municipal entities, such as Danville and the County, and (2) plaintiffs failed to allege sufficient facts to state a plausible claim. Dkt. No. 37 at 11 n.11. Plaintiffs did not respond to this argument in their opposition brief. See Dkt. No. 44.
Defendants are correct that a direct liability negligence claim cannot be brought against a municipality. "California courts have repeatedly held that there is no statutory basis for direct claims against a public entity for negligent hiring and supervision practices." Shoval v. Sobzak, No. 09-cv-01348, 2009 WL 2780155, at *4 (S.D. Cal. Aug. 31, 2009) (collecting cases).
However under California law, a plaintiff may bring a derivative liability claim for negligence against a municipality. See AE, 666 F.3d at 638 ("California public entities, including local governments, are derivatively liable for the negligent acts or omissions of public employees within the scope of their employment." (citing Cal. Gov't Code § 815.2(a)). Plaintiffs appear to be asserting this derivative—not direct—liability negligence claim against Danville and the County. Plaintiffs allege that Danville and the County are liable under California Government Code § 815.2 for the negligence committed by the individual defendants in the scope of their employment with Danville and/or the County, and/or as independent contractors under California Government Code § 815.4. FAC ¶ 50.
No motion to dismiss the negligence claim against the individual defendants has been submitted. Thus, the derivative liability negligence claim against Danville and the County must be allowed. See AE, 666 F.3d at 638 (reversing dismissal of derivative liability negligence claim because "[a]s long as [the plaintiff] is permitted to allege that County employees were negligent, he must also be permitted to allege that the County is derivatively liable pursuant to California Government Code § 815.2(a)"). Accordingly, the Court DENIES the motion to dismiss the negligence claim against Danville. But because the Court dismissed the state law claims against the County, supra, the negligence claim against the County must also be dismissed. If plaintiffs' amend their complaint to properly allege compliance with the California Government Claims Act, they may reassert this derivative liability negligence claim against the County.
Defendants argue that the claim for injunctive and declaratory relief fails because plaintiffs' Monell claims also fail. Dkt. No. 37 at 10. Plaintiffs contend that the claim for injunctive and declaratory relief is based on the alleged violation of California Civil Code § 52.1(b) and the Monell claims. Dkt. No. 44 at 6. Defendants respond that the FAC does not support a claim for prospective relief based on the state law claim and, even if it does, the state law claim also fails. Dkt. No. 47 at 5. Defendants did not move to dismiss this claim under Federal Rule of Civil Procedure 12(b)(1) for lack of standing, but "[f]ederal courts are required sua sponte to examine jurisdictional issues such as standing." Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011) (citing Bernhardt v. County of Los Angeles, 279 F.3d 862, 868 (9th Cir. 2002)).
To have standing for prospective relief, a plaintiff must allege a "real or immediate threat" exists that he will be wronged again. City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). The "threatened injury must be certainly impending to constitute injury in fact, and allegations of possible future injury are not sufficient." Clapper v. Amnesty Int'l USA, 133 S.Ct. 1138, 1147 (2013) (internal citations omitted). Rather than requiring literal certainty, the Supreme Court has sometimes framed the injury requirement as a "substantial risk" that the harm will occur. Munns v. Kerry, 782 F.3d 402, 409 (9th Cir. 2015) (citing Clapper v. Amnesty Int'l USA, 133 S. Ct. at 1150 n.5). The alleged threat cannot be "conjectural" or "hypothetical," Lyons, 461 U.S. at 101-02, but must be a "credible threat of future injury," The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 528-29 (9th Cir. 1989) (quotation marks and citations omitted). "[P]ast exposure to illegal conduct does not in itself show a present case or controversy . . . if unaccompanied by any continuing, present adverse effects." Cuviello v. City & Cnty. of San Francisco, 940 F.Supp.2d 1071, 1080 (N.D. Cal. 2013) (citing O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). A plaintiff "must demonstrate that [he is] realistically threatened by a repetition of the violation" at issue. Gest v. Bradbury, 443 F.3d 1177, 1181 (9th Cir. 2006) (quotation marks and citations omitted, emphasis in original).
FAC ¶ 66. This alleged threat is nothing more than "conjectural" or "hypothetical." See Lyons, 461 U.S. at 101-02. Plaintiffs have not alleged any facts demonstrating that they are "realistically threatened" with future Constitutional violations. See Gest, 443 F.3d at 1181. "Absent a sufficient likelihood that [they] will again be wronged in a similar way, [plaintiffs are] no more entitled to an injunction than any other citizen of [the County]; and a federal court may not entertain a claim by any or all citizens who no more than assert that certain practices of law enforcement officers are unconstitutional." See Lyons, 461 U.S. at 111. Thus, the Court GRANTS the motion to dismiss the claim for injunctive and declaratory relief, with leave to amend.
For the foregoing reasons, the Court GRANTS the motion to dismiss the Monell claims (Claims Two, Three, and Nine), GRANTS the motion to dismiss the state law claims against the County (Claims Four, Five, Six, Seven, Eight, and Ten), and GRANTS the motion to dismiss the claim for injunctive and declaratory relief (Claim Eleven). The Court DENIES the motion to dismiss the state law claims against Danville (Claims Four, Five, Six, Seven, Eight, and Ten). Plaintiffs are given leave to amend the complaint, to cure the outlined defects in their present complaint if they can.
