HomeMy WebLinkAbout20140519_DefReply_Holland-RoeCase
.14-cv-01520-RGK-MRW Document 18 Filed 05/19/14 Page 1 of 6 Page ID #:74
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David M. Cumberland SBN 93719
Joshua M. George, SBN 244565
ADAMSKI MOROSKI MADDEN C[]MBERLAND & GREEN LLP
Mailing Address: Post Office Box 3835
San Luis Obispo, CA 93403-3835
Physical Address: 6633 Bay Laurel Place
Avila Beach, CA 93424
Telephone: 8.05) 543-0990
Facsimile: (805) 543-0980
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,
lk?M
CITY OF SAN LUIS OBISPO
COUNTY OF SAN LUIS OBI�PO,
CORY PIERCE; and DOES 1 through
50, inclusive,
Defendants.
Case No.2:14-cv-01520 RGK-MRWx
REPLY BRIEF IN SUPPORT OF
DEFENDANTS CITY OF SAN
LUIS OBISPO AND COUNTY OF
SAN LUIS OBISPO'S MOTION TO
DISMISS PURSUANT TO F.R.C.P.
12(b)(6)
Date: June 2, 2014
Time: 9:00 a.m.
Location: Courtroom 850
Los An eles-Roybal
255 Eas Tem le Street
Los Angeles, A
Judge: Hon. R. Gaff,Klausner
Magistrate Judge: n. Michael R.
Wilgner
Defendants, City of San Luis Obispo and County of San Luis Obispo, herein
submit their reply brief in support of their Motion to Dismiss Pursuant to F.R.C.P.
12(b)(6).
I
INTRODUCTION
In short, plaintiffs' opposition to the subject motion to dismiss does not
REPLY BRIEF IN SUPPORT OF DEFENDANTS CITY OF SAN LUIS OBISPO AND
COUNTY OF SAN LUIS OBISPO'S MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(b)(6)
Case
14-cv-01520-RGK-MRW Document 18 Filed 05/19/14 Page 2 of 6 Page ID #:75
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provide any legal basis for the court to deny the motion. Their failure to directly
and specifically address the grounds raised in the motion to dismiss makes it
appear that plaintiffs intend to simply try to amend the complaint. However,
although they ask for leave to amend, plaintiffs do not give the court any
description of how they would amend to correct the deficiencies in the complaint.
Because the complaint is deficient and because plaintiffs cannot amend it to corre
the deficiencies, moving defendants respectfully request that the court grant their
12(b)(6) motion without leave to amend.
II
MONELL CLAIMS ARE DEFICIENT
With regard to the Monell claim, defendants' motion to dismiss carefully
went through the elements of each potential path to liability against the moving
defendants. In so doing, the motion demonstrated the lack of specific facts pled by
the plaintiffs that would give rise to liability under Monell and its progeny,
including an unconstitutional custom, policy or practice, a failure to train or
supervise, or ratification. Plaintiffs make no specific response to any of these
arguments raised in the motion.
Instead, plaintiffs lump together general law with regard to Monell liability
followed by reference to legally conclusory allegations in the complaint. As
detailed in the motion, this does not demonstrate that plaintiffs have met the
pleading standard under Iqbal. Consideration of the allegations plaintiffs refer to
confirms the deficiency in the complaint and demonstrates that the actual specific
facts alleged in the complaint contradict these legal generalities.
For example, the first allegation that plaintiffs refer to is paragraph 43 of the
complaint which states "Defendants implicitly or explicitly adopted and
implemented careless and reckless policies, customs, or practices, and failed to
provide sufficient training for Pierce." (Opposition 4:26-5:1) This is not an
allegation of a fact, but is essentially a list of what it can, at best, be characterized
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REPLY BRIEF IN SUPPORT OF DEFENDANTS CITY OF SAN LUIS OBISPO AND
COUNTY OF SAN LUIS OBISPO'S MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(b)(6)
Case
14-cv-01520-RGK-MRW Document 18 Filed 05/19/14 Page 3 of 6 Page ID #:76
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as legal conclusions and, at worst, are simply general statements that do not in and
of themselves create liability. The next paragraph referred to by plaintiffs is even
worse in that it states that the defendants "knowingly maintain and permit official
sub-rosa policies or customs of permitting the occurrence of the kinds of wrongs
set forth herein, by deliberate indifference to police abuse, failing and refusing to
fairly and impartially investigate, discipline or prosecute peace officers who
commit acts of felonious dishonest and crimes, each ratified and approved by
defendants." (Opposition 5:2-7) Not only does this "allegation" again consist of a
series of legal conclusions, but it is actually contradicted by the allegations in the
complaint that defendant Pierce was arrested and prosecuted as a result of his
actions. In fact, there are no facts alleged that demonstrate that Pierce's actions
were ratified or approved of, as there could not be since this did not occur. The
other reference to allegations is similarly deficient. The allegations in paragraph
45 of the complaint refer to defendants "condoning and having a deliberate
indifference" towards violation of constitutional rights. However, there are no
actual facts alleged showing what the defendants have actually done to condone or
have a deliberate indifference. The allegations in the other paragraphs mentioned
by plaintiffs, 46, 47 and 49, are similarly deficient.
Plaintiffs conclude their opposition with regard to the Monell allegations
with the statement that "taken as a whole, these allegations are sufficient for
establishing liability under Monell." (Opposition 5:25-26) In fact, the allegations
listed by plaintiffs taken as a whole are not even sufficient to list the elements for
Monell liability, let alone actual facts as required by the Iqbal pleading standards
that would give rise to liability of the moving defendants. Therefore, moving
defendants respectfully request that the motion be granted as to the Third Cause of
Action.
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REPLY BRIEF IN SUPPORT OF DEFENDANTS CITY OF SAN LUIS OBISPO AND
COUNTY OF SAN LUIS OBISPO's MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(b)(6)
Case
RGK-MRW Document 18 Filed 05/19/14 Page 4 of 6 Page ID #:77
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III
STATE LAW CLAIMS ARE DEFICIENT
Like the attempt to plead the allegations in the complaint, there are
numerous deficiencies with plaintiffs' opposition to the motion to dismiss as to the
state law claims. Plaintiffs' opposition starts out by referring to Government Code
§ 815.2(a) with regard to liability for actions of public employees taken within the
scope and course of their employment and then inexplicably translates to a
discussion about whether Pierce was acting "under color of law." In fact, the only
real legal discussion by the plaintiffs with regard to this issue is a citation to a 1945
Supreme Court case, Screws v. United States (1945) 325 U.S. 91, which dealt with
criminal convictions of law enforcement officers for acting under color of law and
depriving constitutional or legal rights. Screws at 92-93. The Screws case has
nothing to do with whether plaintiffs have appropriately alleged potential liability
of the City of San Luis Obispo under state law.
Plaintiffs make a weak attempt to distinguish Van Ort v. Estate of Stanewich
(9" Cir. 1996) 92 F.3d 831 from the present case, but the plaintiffs do not cite any
law that would actually support plaintiffs' claims. As with the claims for Monell
liability, plaintiffs instead rely on general allegations in the complaint that Pierce
was acting in his official capacity when the alleged acts occurred. As discussed
above, this does not meet the Iqbal standard. Furthermore, the actual specific
factual allegations in the complaint, all of which relate to Pierce's activities,
demonstrate that he was not acting in the scope and course of his employment, but
was acting on his own for his own personal reasons over an extended period of
time for his own personal gain. As discussed in the Van Ort case, this cannot give
rise to liability of the City of San Luis Obispo. Therefore, the City respectfully
requests that the motion be granted as to the state law claims pled against the City
of San Luis Obispo.
MI
0
REPLY BRIEF IN SUPPORT OF DEFENDANTS CITY OF SAN LUIS OBISPO AND
COUNTY OF SAN LUIS OBISPO'S MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(b)(6)
Case
:14-cv-01520-RGK-MRW Document 18 Filed 05/19/14 Page 5 of 6 Page ID #:78
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IV
PLAINTIFFS SHOULD NOT BE GIVEN LEAVE TO AMEND
BECAUSE AMENDMENT WOULD BE FUTILE
Plaintiffs' opposition also requests leave to amend as if it must be granted %y
the court as a matter of course. That is not so in the present case.
F.R.C.P. Rule 15 only lists two situations in which a party may amend the
pleading as a matter of course. First, a pleading may be amended once as a matter
of course within 21 days after it is served. F.R.C.P. 15(a)(1)(A). Second, a
pleading may be amended as a matter of course if it is a pleading to which a
responsive pleading is required within 21 days after service of a responsive
pleading or a motion under Rule 12(b). F.R.C.P. 15(a)(1)(13). In the present case,
plaintiffs have not amended their complaint within either of these time frames.
Thus, the analysis shifts to F.R.C.P. 15(a)(2) which provides that a party
may only amend a pleading with an opposing party's written consent or the court's
leave. The rule also provides that the court should freely give leave when justice
so requires. F.R.C.P. 15(a)(2). In the present case, justice does not require leave
because amendment would be futile.
Leave to amend may be denied when such amendment would be futile.
Foman v. Davis (1962) 371 U.S. 178, 182. Furthermore, the grant or denial of an
opportunity to amend is within the discretion of the District Court. Id. In the
present case, plaintiffs have not even bothered to inform the court how they would
amend the complaint to deal with its deficiencies. Moving defendants contend that
this is because any such amendment would be futile in light of the lack of facts in
the present case that could give rise to liability and in light of the authority in the
Van Ort case. Given this, it would certainly not be an abuse of discretion for the
court to deny leave to amend in a situation where the plaintiffs do not even indi
what type of amendments they intend or are proposing to make. Therefore,
moving defendants respectfully request that the motion be granted without leave to
5
REPLY BRIEF IN SUPPORT OF DEFENDANTS CITY OF SAN LUIS OBISPO AND
COUNTY OF SAN LUIS OBISPO's MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(b)(6)
Case :14-cv-01520-RGK-MRW Document 18 Filed 05/19/14 Page 6 of 6 Page ID #:79
1 amend.
2 V
3 CONCLUSION
4 For all the reasons discussed above, as well as those discussed in the original
5 motion, moving defendants respectfully request that their motion be granted.
6 Dated: May 19, 2014 ADAMSKI MOROSKI MADDEN
CUMBERLAND & GREEN LLP
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Is/ David M. Cumberland
9 DAVID M.
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L:\DMC ACTIVE CLIENT CASES\Holland-Roe v, City SLO\Pleadings\US District Court\Drafts\Reply re Motion to Dismiss Pursuant to FRCP
28 12(b)(6).doc
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REPLY BRIEF IN SUPPORT OF DEFENDANTS CITY OF SAN LUIS OBISPO AND
COUNTY OF SAN LUIS OBISPO'S MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(b)(6)