HomeMy WebLinkAbout20140425_Def-Motion-Dismiss_Holland-RoeCase t
:14-cv-01520-RGK-MRW Document 13 Filed 04/25/14 Page 1 of 9 Page ID #:49
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David M. Cumberland SBN 93719
Joshua M. George, SBfV 244565
ADAMSKI MOROSKI MADDEN CUMBERLAND & GREEN LLP
Mailing Adclress: Post Office Box 3835
San Luis Obispo, CA 93403-3835
Physical Address: 6633 Bay Laurel Place
Avila Beach, CA 93424
Telephone: (805 543-0990
Facsimile: (8051543-0980
Attorneys for Defendants, CITY OF SAN LUIS OBISPO
and COUNTY OF SAN LUIS OBISPO
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
JANE ROE and KIP HOLLAND,
Plaintiffs,
VS.
COUNTYOF s N LUIS OBI§PO,
CORY PIERCE; and DOES 1 through
50, inclusive,
Defendants.
Case No.2:14-cv-01520.RGK-MRWx
DEFENDANTS CITY OF SAN
LUIS OBISPO AND COUNTY OF
SAN LUIS OBISPO'S NOTICE OF
MOTION AND MOTION TO
DISMISS PURSUANT TO F.R.C.P,
12(b)6MEMORANDUM OF
POINT AND AUTHORITIES IN
SUPPORT THEREOF
Date: June 2, 2014
Time: 9:00 a.m.
Location: Courtroom 850
Los An eles-Roybal
255 Easq Temple Street
Los Angeles,A
Judge: Hon. R. Gary Klausner
Maggistrate Judge: Hon. Michael R.
Wilner
TO PLAINTIFFS, ALL PARTIES AND THEIR ATTORNEYS OF
PLEASE TAKE NOTICE that on June 2, 2014, at 9:00 a.m., or as soon
thereafter as the matter may be heard, in Courtroom 850 of the above -entitled court
located at 255 East Temple Street, Los Angeles, California, defendants, City of
San Luis Obispo and County of San Luis Obispo, do and will move this court to
DEFENDANTS CITY OF SAN LUIS OBISPO AND COUNTY OF SAN LUIS OBISPO's
NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(b)(6)
Case
'14-cv-01520-RGK-MRW Document 13 Filed 04/25/14 Page 2 of 9 Page ID #:50
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dismiss portions of plaintiffs' complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure.
This motion seeks to dismiss the following causes of action alleged in
plaintiffs' complaint for damages:
1. Plaintiffs' Third Cause of Action for Violation of Civil Rights, Moiteb
Claim, 42 U.S.C. §§ 1983, 1988;
2. Plaintiffs' Fourth Cause of Action for Extortion as against the City of
San Luis Obispo; and
3. Plaintiffs' Fifth Cause of Action for Negligence as against the City of
San Luis Obispo.
This motion will be made pursuant to Federal Rules of Civil Procedure
§ 12(b)(6) and is based on this notice, the accompanying memorandum of points
and authorities attached hereto, the papers, files and documents filed with the
court, and upon such further oral and/or documentary evidence and argument as
may be properly presented to the court at the time of the hearing of this matter.
This motion is made following the conference of counsel pursuant to Local Rule
7-3 which took place at an early mediation on February 10, 2014, and in a follow-
up telephone conference on April 24, 2014.
Dated: April 25, 2014 ADAMSKI MOROSKI MADDEN
CUMBERLAND & GREEN LLP
/s/ David M. Cumberland
MEMORANDUM OF POINTS AND AUTHORITIES
I
INTRODUCTION
This case arises out of plaintiffs' allegations with regard to inappropriate
actions taken by a former employee of the City of San Luis Obispo Police
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DEFENDANTS CITY OF SAN LUIS OBISPO AND COUNTY OF SAN LUIS OBISPO'S
NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO F.R.C.P. I2(b)(6)
Case
:14-cv-01520-RGKWRW Document 13 Filed 04/25/14 Page 3 of 9 Page ID #:51
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Department, Cory Pierce, which, if true, were far beyond the scope and course of
Mr. Pierce's employment. This motion will address plaintiffs' failure to state a
claim against the City of San Luis Obispo and County of San Luis Obispo with
regard to plaintiffs' Monell claim and plaintiffs' state law claims.
II
FACTS
Plaintiffs' complaint alleges numerous bad actions allegedly taken by
`defendant Cory Pierce. What the complaint does not allege, nor are the moving
defendants aware of any facts that would support same, are any actions taken by
the County of San Luis Obispo or City of San Luis Obispo that could give rise to
any liability on behalf of those entities. In fact, the public entity defendants acted
swiftly upon learning the allegations related to Pierce. Furthermore, the alle uitioii
in the complaint demonstrate that Mr. Pierce went far beyond the scope of any
employment in this case.
III
LEGAL STANDARD FOR FAILURE TO STATE CLAIM
A motion to dismiss is to test the sufficiency of a complaint by raising
questions of law so as to eliminate causes of action that are not viable or extract a
party from a costly and arduous litigation process when a plaintiff has no potential
for recovery against that defendant based upon the causes of action set forth in the
complaint and upon matters or documents which can be judicially noticed under
Federal Rules of Civil Procedure 12(b)(6). A complaint may be dismissed for its
failure to state a claim upon which relief may be granted. Dismissal must be based
on either "the lack of a cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory." Balistreri v. Pacifica Police Department
(9t" Cir. 1990) 901 F.2d 696, 699.
To survive a motion to dismiss, a complaint must plead sufficient factual
matters, if accepted as true, to state a claim for relief on its face. See Ashcroft v.
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DEFENDANTS CITY OF SAN LUIS OBISPO AND COUNTY OF SAN LUIS OBISPO's
NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(b)(6)
Case �
J:14-cv-01520-RGK-MRW Document 13 Filed 04/25/14 Page 4 of 9 Page ID #:52
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Iqbal (2009) 556 U.S. 662. As such, a formal recitation of the elements of the
cause of action will not suffice. Id. at 679. Nor will "labels and conclusions." Id.
Although the court must accept all well -pled factual allegations as true, it is not
bound to accept as true legal conclusions masquerading as factual allegations.
Papasan v. Allain (1986) 478 U.S. 265, 286; Kendall v. Visa USA, Inc. (9"' Cir.
2008) 518 F.3d 1042, 1048. Further, the court is not required to accept
"unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden
State Warriors (9t' Cir. 2001) 266 F.3d 979, 988. Instead, the court will examine
whether conclusory allegations flow from the description of the facts alleged by
the plaintiff. Holden v. Hagopian (9t" Cir. 1992) 978 F.2d 1115, 1121.
If a complaint fails on a motion to dismiss, it should be dismissed with
prejudice if amendment would be futile. See Reddy v. Lipton Industries, Inc. (9tn
Cir. 1990) 912 F.2d 291, 296. In the present case, all plaintiffs' claims against the
City and County of San Luis Obispo fail due to being merely legal conclusions
unsupported by fact and, with regard to state law claims, due to being non -
cognizable claims against the City of San Luis Obispo.
IV
PLAINTIFFS' THIRD CAUSE OF ACTION PURSUANT TO MONELL
FAILS BECAUSE IT CONSISTS ENTIRELY OF LEGAL CONCLUSIONS
First and foremost, the third cause of action must be dismissed because it
consists precisely of the type of legal conclusions that the Supreme Court rejected
in Iqbal. There are no specific facts alleged that would create liability of the City
or County. Instead, the third cause of action is basically a recitation of legal
elements for the various basis of public entity liability under Monell. Second, the
third cause of action should be dismissed because consideration of the specific
individual paths to Monell liability demonstrates that the complaint is legally
insufficient.
Plaintiffs' Monell claims against the City and County can only be based on
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DEFENDANTS CITY OF SAN LUIS OBISPO AND COUNTY OF SAN LUIS OBISPO'S
NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(b)(6)
Case �
:14-cv-01520-RGK-MRW Document 13 Filed 04/25/14 Page 5 of 9 Page ID #:53
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one of three possibilities: 1) that the subject defendant had a custom, policy or
practice of violating constitutional rights or that was the moving force behind
violating rights; 2) that the subject defendant failed to train its employees to do
something, and that failure amounted to deliberate indifference to constitute
violation; or 3) that the subject defendant ratified the actions that allegedly viol
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The first option is the original Monell type claim. In Monell, the
policy/practice at issue compelled pregnant employees to take unpaid leaves of
absence. Monell v. Department of Social Services of City of New York, 436 U.S.
658, 660-661 (1978). In that case, the Supreme Court held that, while a
government entity may not be sued under Section 1983 for an injury inflicted
solely by its agents, it could be sued when the entity had a policy or custom that
inflicts the constitutional violation. Id. at 694-695. The court reached this result
because under Section 1983, governmental entities could be sued for constitutional
violations "visited pursuant to" a governmental policy or custom. Id. at 690.
Courts have found liability under this Monell theory in situations where the
policy was to violate constitutional rights, or was the "moving force" behind the
violation. In Monell, the policy was to force pregnant employees to take unpaid
leave, which the district found was a violation of their constitutional rights. Id. at
658. In another case, a Monell claim existed where the policy at issue was killing
fleeing felons rather than let them escape. Garner- v. Memphis Police Department,
8 F.3d 358 (6" Cir. 1993). In Chew v Gates, 27 F. 3d 1432 (91h Cir. 1994), the
policy was using police dogs to seize fleeing or hiding suspects.
In these cases, the injury is not a problem that arose while following a
policy, but rather a direct result of the actions the l2olicy required. In other words,
the policy itself is the proximate cause of the injury.
This case simply does not present a constitutional violation "visited pursuant
f to" a City policy. There is no factual allegation of a practice or policy at issue that
5
DEFENDANTS CITY OF SAN LUIS OBISPO AND COUNTY OF SAN LUIS OBISP❑'s
NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT To F.R.C.P. 12(b)(6)
Case #
t 14-cv-01520-RGK-MRW Document 13 Filed 04/25/14 Page 6 of 9 Page ID #:54
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was the moving force behind the alleged violations. Unlike the policies at issue in
Garner and Chew, there is no City policy that directly deprives anyone's rights,
nor do plaintiffs even allege such a policy. This is not up to the pleading standard
required by Iqbal. Thus, as a matter of law, plaintiffs have not offered allegations
sufficient to find a traditional Monell violation.
The second path to Monell liability is based upon a failure to train city
officers, which requires a showing that the failure to train is deliberately indi ft e
to likely constitutional violations. In cases where the policy itself is not
unconstitutional, as in this case, a public entity may still be liable based upon a
failure to train. City of Canton, Ohio v. Harrisi, 489 U.S. 378, 386 (1989). This
form of liability, however, is only available in limited circumstances. In order for
an entity to be liable for a failure to train, plaintiffs must show that the failure to
train shows a deliberate indifference to constitutional rights. Id. at 389.
Further, the alleged failure must reflect a deliberate or conscious choice by a
municipality in order to make the municipality liable. Id.
Courts generally have found such liability only where the municipality is on
notice of the problem or took a deliberate action that caused a deprivation of i-iglits.
For example, in Board of County Commissioners of Bryan County, Oklahoma v.
Brown, 520 U.S. 397 (1997), the Supreme Court found that a single incident was
not sufficient to demonstrate deliberate indifference to constitutional rights. Id. at
1415. Simply put, a municipality cannot be indifferent to the violation of rights if it
has no reason to believe rights are likely to be violated.
In the present case, there are no general, let alone specific, allegations
showing that this is anything but a single incident case. In short, there is nothing
show a deliberate indifference that could give rise to liability for a failure to train.
Therefore, the allegations are not sufficient to create liability of this type either.
Moving defendants also assert that plaintiffs have failed to offer allegations
of ratification of the actions that plaintiffs allege violated their rights. Ninth Circuit
0
DEFENDANTS CITY OF SAN LUIS OBISPO AND COUNTY OF SAN LUIS OBISPO's
NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(b)(6)
Case fl:14-cv-01520-RGK-MRW Document 13 Filed 04/25/14 Page 7 of 9 Page ID #:55
1 Model Jury Instruction 9.6 lists the elements for liability of a municipality under
2 section 1983 based on ratification. They include that "[Name of final policymaker]
3 ratified [name of defendant's employee]'s act and the basis for it, that is, [name of
4 alleged final policymaker] knew of and specifically approved of the employee's
5 act[s]." There are no specific allegations that the Chief of Police or Sheriff knew
6 of and approved of the actions of Pierce. In fact, the allegations in the complaint
7 indicate that Pierce was arrested shortly after his actions were discovered. As a
8 result, neither the City nor County can be liable based on ratification as a matter of
9 law.
10 In this case, not only have plaintiffs failed to allege the specific requirements
11 for each of these kinds of liability, but the allegations that do exist in the complaint
12 consist precisely of the types of conclusions of law that are impermissible in the
13 pleading stage. Although the complaint contains several pages of actual factual
14 allegations, it is bereft of any allegations with regard to any facts showing any
15 actions taken by the City or County of San Luis Obispo that could give rise to
16 liability. The entire Third Cause of Action consists of recitation of general legal
17 conclusions and is void of any specific facts that could support a claim against the
18 City. As a result, the court should dismiss plaintiffs' Third Cause of Action
19 pursuant to Federal Rules of Civil Procedure 12(b)(6).
20 V
21 PLAINTIFFS' STATE LAW CLAIMS AGAINST
22 THE CITY OF SAN LUIS OBISPO FAIL AS WELL
23 Plaintiffs asserted general state law claims against the City of San Luis
24 Obispo for "extortion" and "negligence" in the Fourth and Fifth Causes of Action.
25 However, because these general state torts are not claims statutorily authorized to
26 be maintained against a public entity like the City, the complaint fails because in
27 the absence of the specific statutory provision, the rule of thumb is governmental
28 immunity. Munoz v. City of Union City (2004) 120 Cal.App.4th 1077. There is no
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DEFENDANTS CITY OF SAN LUIS OBISPO AND COUNTY OF SAN LUIS OBISPO'S
NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(b)(6)
Case
'14-cv-01520-RGK-MRW Document 13 Filed 04/25/14 Page 8 of 9 Page ID #:56
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common law governmental tort liability in California and, except as otherwise
provided by statute, there is no liability on the part of the public entity for any act
or omission of itself, (or) a public entity. Cowing v. City of Torrance (1976) 60
Cal.App.3d 757, 761. This rule is codified in Government Code § 815 which
states in the pertinent part: "Except as otherwise provided by statute: (a) 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."
Commenting on § 815, the legislative committee stated in the pertinent part
that: "This section abolishes all common law or judicially declared forms of
liability for public entities ... in the absence of a constitutional requirement, public
entities may be held liable only if a statute ... is found declaring them to be liable."
The only statute that plaintiffs claim in their complaint that creates any
liability of the City of San Luis Obispo is Government Code § 815.2 which
plaintiffs claim makes the City vicariously liable for the actions of defendant
Pierce. Under California law, an employer will not be held vicariously liable for I
an employee's malicious or tortious conduct if the employee substantially deviates'
from the employment duties for personal purposes. Van Ort v. Estate of Stanewich
J (9t' Cir. 1996) 92 F.3d 831, 840, citing Farmers Insurance Group v. County of
I Santa Clara (1995) 11 Cal.41h 992. Thus, if an employee inflicts an injury or acts I
out of personal animus unconnected with employment, the employee is not acting
within the scope of employment. Id. Thus, the Ninth Circuit in Van Ort found that
the San Diego County Sheriff s Department could not be liable for the actions of a
Sheriff s Deputy who forcibly entered and robbed a home. Id.
The court must reach the same conclusion as Van Ort in the present case.
The complaint is replete with allegations as to the actions of defendant Pierce that
go far beyond the scope and course of his employment, including obtaining drugs
from the plaintiffs, using the plaintiffs to rob drug dealers, and allegedly sexually
assaulting one of the plaintiffs. Furthermore, these actions extend over a long
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DEFENDANTS CITY OF SAN LUIS OBISPO AND COUNTY OF SAN LUIS OBISPO'S
NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(b)(6)
I
Case :14-cv-01520-RGK-MRW Document 13 Filed 04/25/14 Page 9 of 9 Page ID #:57
1 period of time. In this case, it is clear on the face of the complaint that these
2 allegations are far beyond the scope and course of defendant Pierce's employment
3 and, as a result, there can be no liability of the City for the state law claims under
4 Government Code § 815.2.
5 VI
6 CONCLUSION
7 Based on all of the foregoing, moving defendants respectfully request that
8 the court grant their motion to dismiss.
9 Dated: April 25, 2014 ADAMSKI MOROSKI MADDEN
CUMBERLAND & GREEN LLP
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Isl David M. Cumberland
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DEFENDANTS CITY OF SAN LUIS OBISPO AND COUNTY OF SAN LUIS OBISPO's
NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(b)(6)