Monique Hernandez et al v. City of Beaumont et al, No. 5:2013cv00967 - Document 34 (C.D. Cal. 2013)
Court Description: ORDER GRANTING IN PART DEFENDANTS MOTIONS TO DISMISS AND/OR STRIKE PORTIONS OF PLAINTIFFS FIRST AMENDED COMPLAINT 20 . Plaintiffs may amend their complaint as stated in this order. Any such amended complaint must be filed on or before Friday, January 3, 2014 by Judge Dean D. Pregerson . (lc). Modified on 12/17/2013 (lc).
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Monique Hernandez et al v. City of Beaumont et al Doc. 34 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 MONIQUE HERNANDEZ, JOSEPH HERNANDEZ, OLIVIA HERNANDEZ, GABRIELLE HERNANDEZ, JOANNA HERNANDEZ, ALEXIS HERNANDEZ, JOSEPH HERNANDEZ JR. AND O.G., a minor by and through her Guardian ad Litem OLIVIA HERNANDEZ, 15 Plaintiffs, 16 v. 17 18 19 20 CITY OF BEAUMONT, OFFICER ENOCH CLARK, CORPORAL FRANCISCO VELASQUEZ, JR., CHIEF FRANK COE, Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 13-00967 DDP (DTBx) ORDER GRANTING IN PART DEFENDANTS’ MOTIONS TO DISMISS AND/OR STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT (DKT. NO. 19, 20, 21) 21 22 Presently before the Court are Defendants’ Motions to Dismiss 23 and/or Strike Portions of Plaintiffs’ First Amended Complaint. For 24 the reasons stated in this order, the Motions are GRANTED IN PART. 25 I. Background 26 Plaintiff Monique Hernandez (“Monique”) brings this action, 27 along with many of her family members, against Defendants City of 28 Beaumont (“City”), Officer Enoch Clark (“Clark”), Corporal Dockets.Justia.com 1 Francisco Velasquez Jr. (“Velasquez”), Chief Frank Coe (“Coe”), and 2 Does 1-10 (collectively “Defendants”), alleging various rights 3 violations while Monique was detained by Clark and Velasquez. 4 Plaintiffs Joseph Hernandez Sr. (Monique’s father, “Joseph Sr.”), 5 Olivia Hernandez (Monique’s mother, “Olivia”), Gabrielle Hernandez 6 (Monique’s sister, “Gabrielle”), Joanna Hernandez (Monique’s 7 sister, “Joanna”), Alexis Hernandez (Monique’s sister, “Alexis”), 8 and Joseph Hernandez Jr. (Monique’s brother, “Joseph Jr.”) 9 witnessed the acts that are the subject of this complaint and 10 assert their own causes of actions stemming from the incident. O.G. 11 (Monique’s minor daughter) is also a plaintiff in this action. 12 On February 21, 2012, Clark, a police officer with the City, 13 detained Monique. (Complaint ¶ 21.) Clark conducted multiple field 14 sobriety tests and attempted several times to conduct a 15 breathalyzer test on Monique. (Id. ¶¶ 23-24.) Plaintiffs allege 16 that Monique cooperated with Clark throughout these tests. (Id.) 17 Clark then began to arrest Monique by handcuffing her left hand and 18 holding her right hand behind her back while standing behind her 19 and shoving her against the hood of his police car. (Id. ¶ 25.) 20 Plaintiffs allege that at no time did Monique physically resist Clark’s 21 efforts to handcuff her or attempt to flee. (Id. ¶¶ 26-28.) Monique’s 22 family members Joseph Sr., Olivia, Gabrielle, Joanna, Alexis, and Joseph 23 Jr. were nearby when these actions occurred and voiced their concerns 24 about Clark’s “heavy-handed tactics,” but they allege that they fully 25 cooperated with commands to stay back. (Id. ¶ 30.) 26 After Monique was handcuffed, Plaintiffs allege that Clark shot his 27 JPX pepper spray gun at Monique’s eye from less than ten inches away. 28 (Id. ¶ 31.) Plaintiffs allege that there was no legitimate justification 2 1 for the discharge of pepper spray, as Monique was handcuffed and under 2 complete control at the time and her family members were calm. (Id. ¶¶ 3 31-32.) Plaintiffs allege that a reasonably trained officer would know 4 that firing a JPX gun at a distance of less than five feet away, 5 especially at the eyes, will cause serious injury. (Id. ¶ 33.) 6 Plaintiffs allege that Clark and Velasquez then placed Monique in 7 the back seat of a patrol car in handcuffs. (Id. ¶ 35.) She was left 8 there for an unspecified period of time unattended, despite allegedly 9 being in obvious distress, bleeding, and complaining of breathing 10 difficulties. (Id.) Velasquez refused to allow Monique’s family members 11 to aid her. (Id. ¶ 36.) Clark and Velasquez allegedly told Monique’s 12 family members that she was okay and that she was being taken to jail. 13 (Id.) In fact, she was taken to the hospital. (Id.) 14 Monique’s injuries from the pepper spray gun were severe. (Id. ¶ 15 34.) The shot split her right eye in half and severely damaged the optic 16 nerve in her left eye, leaving her with no light perception in either eye 17 and a terrible prognosis, even after surgery. (Id.) Monique had 18 previously been employed full-time but now can no longer work and 19 requires full-time care and ongoing medical and psychological treatment. 20 (Id. ¶ 38.) 21 Plaintiffs allege twelve causes of action arising out of this 22 incident: (1) excessive force under 42 U.S.C. § 1983; (2) unreasonable 23 search and seizure - false arrest under 42 U.S.C. § 1983; (3) failure to 24 summon immediate medical care; (4) interference with familial 25 relationship under 42 U.S.C. § 1983; (5) municipal and supervisory 26 liability under 42 U.S.C. § 1983; (6) assault and battery; (7) 27 negligence; (8) violation of Bane Act; (9) intentional infliction of 28 emotional distress; (10) negligent training and supervision; (11) false 3 1 arrest/false imprisonment; and (12) negligence - bystander. Defendants 2 have moved to dismiss portions of Plaintiffs’ complaint and to strike 3 Plaintiffs’ requests for punitive damages as to some causes of action. 4 (Docket Nos. 19, 20, 21.) 5 II. Legal Standard 6 A complaint will survive a motion to dismiss when it contains 7 “sufficient factual matter, accepted as true, to state a claim to 8 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 9 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 10 570 (2007)). When considering a Rule 12(b)(6) motion, a court must 11 “accept as true all allegations of material fact and must construe 12 those facts in the light most favorable to the plaintiff.” Resnick 13 v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Although a complaint 14 need not include “detailed factual allegations,” it must offer 15 “more than an unadorned, the-defendant-unlawfully-harmed-me 16 accusation.” Iqbal, 556 U.S. at 678. Conclusory allegations or 17 allegations that are no more than a statement of a legal conclusion 18 “are not entitled to the assumption of truth.” Id. at 679. In other 19 words, a pleading that merely offers “labels and conclusions,” a 20 “formulaic recitation of the elements,” or “naked assertions” will 21 not be sufficient to state a claim upon which relief can be 22 granted. Id. at 678 (citations and internal quotation marks 23 omitted). 24 “When there are well-pleaded factual allegations, a court should 25 assume their veracity and then determine whether they plausibly 26 give rise to an entitlement of relief.” Id. at 679. Plaintiffs must 27 allege “plausible grounds to infer” that their claims rise “above 28 the speculative level.” Twombly, 550 U.S. at 555. “Determining 4 1 whether a complaint states a plausible claim for relief” is a 2 “context-specific task that requires the reviewing court to draw on 3 its judicial experience and common sense.” Iqbal, 556 U.S. at 679. 4 III. Discussion 5 Defendants seek dismissal only as to some causes of action and as 6 to some Defendants. Therefore, the First, Sixth, and Ninth Causes of 7 Action, which are not challenged by any Defendant, remain operative as 8 filed. 9 A. Second Cause of Action: False Arrest 10 The second cause of action, for false arrest, is asserted by 11 Monique against Defendants Clark and Velasquez. (Complaint p. 10.) The 12 sufficiency of the pleadings is challenged only as to Velasquez. 13 Velasquez argues that Plaintiffs’ allegations fail to plead that he 14 was sufficiently involved in the alleged acts to be liable for them. In 15 order to state a claim for unreasonable seizure against an officer who 16 did not himself effect the seizure, a plaintiff must allege the officer’s 17 “fundamental involvement in the conduct that allegedly caused the 18 violation.” Blankenhorn v. City of Orange, 485 F.3d 463, 481 fn.12 (9th 19 Cir. 2007). 20 violative acts, but “integral participation does not require that each 21 officer’s actions themselves rise to the level of a constitutional 22 violation.” Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004). 23 Plaintiffs allege that “Clark and Velasquez caused Monique to be The officer must be an “integral participant” in the alleged 24 detained and arrested in violation of her right to be secure in her 25 person against unreasonable searches and seizures.” FAC ¶ 47. Plaintiffs 26 also allege that “Clark and Velasquez failed to obtain immediate medical 27 care for Monique” and that instead she “was placed in the back seat of a 28 patrol car in handcuffs.” Id. ¶ 35. Plaintiffs also allege that Velasquez 5 1 refused to allow family members to aid or comfort Monique after she had 2 been pepper sprayed. Id. ¶ 36. 3 While Plaintiffs could have pled their false arrest claim more 4 clearly against Velasquez by alleging his involvement in the earlier 5 stages of the incident, the Court finds that the pleadings are sufficient 6 as written. It is reasonable to infer from the FAC that Velasquez was 7 involved in the decision to place Monique in the back of the patrol car 8 or at a minimum did not object to Clark’s decision to do so, an act which 9 Plaintiffs allege violated Monique’s right to be free from unreasonable 10 seizure. Further, he provided support to Clark by keeping Monique’s 11 family away from her, facilitating her continued detention. See, e.g., 12 Monteilh v. Cnty. of L.A., 820 F.Supp.2d 1081, 1089 (C.D. Cal. 2011) 13 (holding that officers are fundamentally involved when they “provide some 14 affirmative physical support at the scene of the alleged violation and 15 when they are aware of the plan to commit the alleged violation or have 16 reason to know of such a plan, but do not object”); Aguilar v. City of 17 South Gate, 2013 WL 4046047 (C.D. Cal. 2013). Velasquez’s involvement in 18 Monique’s detention therefore rises to the level of “fundamental 19 involvement” necessary to state a claim against him for false arrest. As 20 a result, the Court DENIES Defendants’ motion to dismiss this claim 21 against Velasquez.1 22 // 23 // 24 1 25 26 27 28 The Court notes that the pleadings likely do not indicate that Velasquez had the requisite involvement in the alleged acts to survive a 12(b)(6) motion on Plaintiffs’ excessive force claim, as Plaintiffs do not allege any sort of involvement or knowledge on the part of Velasquez regarding the discharge of the pepper spray at close range into Monique’s eyes. Such a claim is distinct from Plaintiffs’ claim for false arrest. Plaintiffs do not attempt to bring such a claim against Velasquez. 6 1 B. Third Cause of Action: Failure to Summon Immediate Medical Care 2 The third cause of action, for failure to summon immediate medical 3 care in violation of the Fourth Amendment, is asserted by Monique against 4 Clark and Velasquez. The sufficiency of the pleadings is challenged only 5 as to Velasquez. 6 The Ninth Circuit treats “the failure to provide adequate medical 7 care during and immediately following an arrest as a claim properly 8 brought under the Fourth Amendment and subject to the Fourth Amendment’s 9 objective reasonableness standard.” Von Haar v. City of Mountain View, 10 2011 WL 782242, at *3 (N.D. Cal. 2011) (citing Tatum v. City and County 11 of San Francisco, 441 F.3d 1090(9th Cir. 2006)). In this context, “a 12 police officer who promptly summons the necessary medical assistance has 13 acted reasonably for purposes of the Fourth Amendment.” Tatum, 441 F.3d 14 at 1099; see also Maddox v. City of Los Angeles, 792 F.2d 1408, 1415 (9th 15 Cir. 1986) (holding, in the context of prison detention, that officers 16 act reasonably when they “seek the necessary medical attention for a 17 detainee when he or she has been injured while being apprehended by 18 either promptly summoning the necessary medical help or by taking the 19 injured detainee to a hospital”). 20 Plaintiffs allege here that “Clark and Velasquez failed to obtain 21 immediate medical care for Monique despite the obvious and serious nature 22 of the injury to her eye. Instead of obtaining immediate medical aid or 23 assistance for Monique, she was placed in the back seat of a patrol car 24 in handcuffs. Monique was left in the patrol car unattended while she was 25 bleeding and in obvious distress, and despite her complaints of 26 difficulty with breathing.” FAC ¶ 35. Subsequently, Monique was taken to 27 the hospital. Id. ¶ 36. 28 7 1 Plaintiffs’ allegations are insufficient to establish that 2 Velasquez acted unreasonably in obtaining medical care for Monique. While 3 the FAC repeatedly alleges that Clark and Velasquez did not obtain 4 “immediate” medical care, “immediate” care is not the standard; “prompt” 5 care is the standard. Plaintiffs allege that Monique was left 6 “unattended” in the patrol car, but there is no indication of how long 7 she was left there or what the officers were doing while she was left 8 there. Further, it is unclear from the pleadings how severely Monique 9 appeared to be injured. Plaintiffs allege that she was “bleeding” and “in 10 obvious distress,” but “bleeding” does not always require medical care 11 and is not life-threatening unless it is severe. While Monique’s injuries 12 were ultimately determined to be severe, causing blindness, it is not 13 clear based on the pleaded facts that it would have been obvious to the 14 officers that she needed to be taken to the hospital more quickly than 15 she was. See Holcomb v. Ramar, 2013 WL 5947621, at *4 (E.D. Cal. 2013) 16 (dismissing a claim for failure to summon medical care when the pleadings 17 did not specify or allow the court to infer “the length of the delay or 18 the seriousness of the need for medical attention”). Under the 19 circumstances, it may very well have been reasonable for the officers to 20 leave Monique “unattended” while the two officers briefly discussed, out 21 of earshot of Plaintiffs, whether is was necessary to seek medical care 22 before deciding to take Monique to the hospital. 23 Therefore, the Court GRANTS the motion to dismiss as to this cause 24 of action against Velasquez, with leave to amend to allege specific facts 25 demonstrating the length of the delay in taking Monique to the hospital, 26 the observable medical symptoms Monique exhibited and their severity, and 27 the actions of the officers during the delay. 28 // 8 1 C. Fourth Cause of Action: Interference with Familial Relationship 2 The fourth cause of action, for interference with familial 3 relationship, is asserted by O.G., Monique’s minor daughter, against 4 Clark. Clark originally challenged the sufficiency of this cause of 5 action, but has indicated in his Reply brief that he withdraws the 6 portion of his motion challenging this cause of action. (Reply Brief, 7 Docket No. 26, p. 1.) Therefore, this cause of action remains operative 8 as filed. 9 10 11 D. Fifth Cause of Action: Municipal and Supervisory Liability The fifth cause of action, for municipal and supervisory liability, is asserted by Monique and O.G. against City, Coe, and Does 1-10. 12 1. Municipal Liability 13 To state a claim for municipal liability against an entity 14 defendant, a plaintiff must allege that the entity itself caused the 15 violation through a constitutionally deficient policy, practice or 16 custom. Monell v. Dep’t of Social Services, 436 U.S. 658 (1978). In 17 light of Iqbal, bare allegations are no longer sufficient to state a 18 claim for municipal liability. Instead, a plaintiff must identify the 19 training or hiring practices and policies that she alleges are deficient, 20 explain how such policy or practice was deficient, and explain how such a 21 deficiency caused harm to the plaintiff. Young v. City of Visalia, 687 22 F.Supp.2d 1141, 1149-50 (E.D. Cal. 2009). In other words, a plaintiff 23 must allege “specific facts giving rise to a plausible Monell claim” 24 instead of “formulaic recitations of the existence of unlawful policies, 25 customs, or habits.” Warner v. County of San Diego, 2011 WL 662993 (S.D. 26 Cal. 2011). 27 28 Plaintiffs’ complaint does not meet the heightened pleading standards for municipal liability after Iqbal. Nowhere does Plaintiffs’ 9 1 complaint contain specific allegations regarding the customs, policies, 2 and practices that they allege are insufficient. Instead, Plaintiffs 3 plead simply that City, Coe, and Does 1-10 “act[ed] with gross negligence 4 and with reckless and deliberate indifference” in (1) employing and 5 retaining Clark and Velasquez, who they knew or should have known had 6 dangerous propensities; (2) inadequately training, supervising, and 7 disciplining Clark and Velasquez; (3) maintaining inadequate procedures 8 for reporting misconduct; (4) failing to adequately train officers in 9 their use of the JPX pepper spray gun; and (5) maintaining an 10 unconstitutional policy or practice of arresting and detaining 11 individuals without probable cause and through use of excessive force. 12 (FAC ¶ 68.) Plaintiffs plead no facts regarding what policies and 13 practices City used in training, hiring, disciplining, and supervising 14 their officers in the use of the JPX pepper spray gun, let alone why 15 those policies and practices were deficient. Plaintiffs also fail to 16 plead any facts as to why Clark and Velasquez had “dangerous 17 propensities” or why Coe and City should have known about them. 18 Therefore, the Court GRANTS the motion to dismiss this cause of action 19 against City, with leave to amend should Plaintiffs be able to allege 20 specific facts giving rise to an inference of Monell liability. 21 22 2. Supervisory Liability A supervisor may be individually liable if he is personally 23 involved in a constitutional injury or where there is a “sufficient 24 causal connection between the supervisor’s wrongful conduct and the 25 constitutional violation.” 26 (9th Cir. 2011) (quotation marks and citation omitted). A causal 27 connection exists if the supervisor “set in motion a series of acts 28 by others, or knowingly refused to terminate a series of acts by others, Starr v. Baca, 652 F.3d 1202, 1207-08 10 1 which he knew or reasonably should have known, would cause others to 2 inflict the constitutional injury.” Larez v. City of Los Angeles, 946 3 F.2d 630 (9th Cir. 1991). Liability is imposed for the supervisor's “own 4 culpable action or inaction in the training, supervision, or control of 5 his subordinates,” Clay v. Conlee, 815 F.2d 1164, 1170 (8th Cir. 1987), 6 or for conduct that showed a “reckless or callous indifference to the 7 rights of others.” Bordanaro v. McLeod, 871 F.2d 1151, 1163 (1st Cir. 8 1989). 9 Plaintiffs’ supervisory liability claim is insufficient for the 10 same reasons that their Monell claim is insufficient. Plaintiffs plead no 11 facts as to what Coe did or failed to do that caused a constitutional 12 injury to Plaintiffs beyond the bare allegations set forth above or as to 13 why he knew or should have known that his acts or failure to act would 14 result in a constitutional violation. Therefore, the Court GRANTS the 15 motion to dismiss as to this cause of action, with leave to amend should 16 Plaintiffs be able to allege specific facts giving rise to an inference 17 of supervisory liability.2 18 E. Seventh Cause of Action: Negligence and Twelfth Cause of Action: 19 Negligence - Bystander 20 The seventh cause of action, for negligence, is asserted by 21 Monique, Joseph Sr., Olivia, Gabrielle, Joanna, Alexis, and Joseph Jr. 22 against City, Clark, Velasquez, and Does 1-10. The twelfth cause of 23 action, for negligence - bystander, is asserted by Joseph Sr., Olivia, 24 2 25 26 27 28 The Court does not decide at this time whether Coe is entitled to qualified immunity, as the pleadings are insufficient to determine which acts or failures to act give rise to Coe’s alleged liability. Without such clarity, the Court cannot determine whether Coe is entitled to qualified immunity as to those acts. The Court will entertain qualified immunity arguments on a future motion to dismiss, should Plaintiffs choose to amend their supervisory liability claim. 11 1 Gabrielle, Joanna, Alexis, and Joseph Jr. against City and Clark. The 2 sufficiency of the pleadings is challenged only as to City and Velasquez. 3 Plaintiffs clarify in their opposition that this cause of action as 4 alleged against City is premised on vicarious liability for the negligent 5 acts of City employees pursuant to Cal. Gov. Code § 815.2. Therefore, 6 Plaintiffs’ allegations which assert direct claims, such as “failure to 7 monitor and record use of force” and “negligent training in the use of 8 the JPX device” are better understood as supporting claims for Monell 9 liability rather than Plaintiffs’ vicarious claim for negligence. (FAC ¶ 10 80.) The Court therefore ignores these allegations for purposes of 11 assessing the sufficiency of the pleadings as to the negligence claim. 12 “Government Code section 815.2 . . . makes a public entity 13 vicariously liable for its employee’s negligent acts or omissions within 14 the scope of employment” unless the “employee . . . is immune from 15 liability for such injuries.” Eastburn v. Regional Fire Protection 16 Authority, 31 Cal. 4th 1175, 1180 (2003). Therefore, City is liable for 17 the negligent acts of Clark and Velasquez, and the claims against City 18 survive this motion to dismiss to the extent that claims against Clark 19 and Velasquez survive. 20 As to Monique’s negligence claim against Velasquez, Plaintiffs 21 allege that his negligent acts were (1) negligent detention and arrest, 22 (2) the failure to timely summon medical care, and (3) the negligent 23 communication of information during the incident. (FAC ¶ 80.) As noted 24 above, Plaintiffs’ allegations were sufficient as to Velasquez’s 25 participation in the unreasonable seizure of Plaintiff. Therefore, a 26 negligence claim survives against Velasquez, at least to the extent that 27 it is based on the unreasonable seizure. Therefore, the Court DENIES the 28 motion to dismiss as to the negligence claim. However, should Plaintiffs 12 1 choose to amend their complaint, further clarification of exactly which 2 acts Plaintiffs allege were negligent would be useful. 3 The bystander plaintiffs also assert a cause of action for 4 negligence, or negligent infliction of emotional distress (“NIED”), based 5 on their witnessing Monique’s injury-producing event. An NIED claim 6 requires that the plaintiff (1) is closely related to the injury victim, 7 (2) is present at the scene of the event at the time it occurs and is 8 then aware that it is causing injury, and (3) suffers serious emotional 9 distress as a result. Thing v. La Chusa, 48 Cal. 3d 644, 667-68 (1989). 10 The Court finds that the NIED claim is insufficiently pled. The 11 bystander plaintiffs are all close family of Monique and “observed her 12 being injured” by the pepper spray gun, satisfying the first two 13 elements. (FAC ¶¶ 4-9, 32.) However, Plaintiffs allege that they suffered 14 “serious emotional distress” as a result of witnessing the incident, but 15 offer no facts demonstrating the distress they suffered. (Id. ¶ 115.) 16 Indeed, Plaintiffs allege that the bystander plaintiffs remained “calm” 17 during the encounter, including while Monique was being injured. (Id. ¶ 18 32.) Therefore, the Court GRANTS the motion to dismiss the NIED claim, 19 with leave to amend for Plaintiffs to assert more specific facts that 20 support their bare allegation that the bystanders suffered serious 21 emotional distress. 22 F. Eighth Cause of Action: Violation of Bane Act 23 The eighth cause of action, for violation of the Bane Act, Cal. 24 Civ. Code § 52.1, is asserted by Monique, Joseph Sr., Olivia, Gabrielle, 25 Joanna, Alexis, and Joseph Jr. against City, Clark, and Velasquez. 26 The Bane Act permits a claim against a defendant who “interferes by 27 threats, intimidation, or coercion, or attempts to interfere by threats, 28 intimidation, or coercion, with the exercise or enjoyment by any 13 1 individual or individuals of [legal] rights.” Cal. Civ. Code § 52.1. In 2 order to state a claim under the Bane Act, where “the use of force was 3 intrinsic to the alleged violation itself, it [does] not also satisfy the 4 additional ‘force’ or ‘coercion’ element of the statute.” Shoyoye v. 5 County of Los Angeles, 203 Cal. App. 4th 947, 960 (2012) (citing Gant v. 6 County of Los Angeles, 765 F.Supp.2d 1238, 1253 (C.D. Cal. 2011)). 7 Plaintiffs’s pleadings regarding the “threats, intimidation, or 8 coercion” used to violate their rights are insufficient. The pleadings 9 are conclusory, simply stating that “Clark and Velasquez attempted to 10 interfere with and interfered with the rights of [Plaintiffs] of free 11 speech, free expression, free assembly, due process, and to be free from 12 unreasonable search and seizure, by threatening and committing violent 13 acts.” (FAC ¶ 85.) As to Monique, Plaintiffs have not sufficiently pled 14 facts demonstrating force or coercion beyond that intrinsic in her 15 excessive force and unreasonable seizure claims themselves. As to the 16 other Plaintiffs’ claims, Plaintiffs have not sufficiently pled facts 17 demonstrating that they were subjected to any threats or intimidation 18 during the course of the encounter.3 While Plaintiffs allege that 19 “Velasquez refused to allow Monique’s family to aid or comfort her” and 20 that they were given “commands to stay back,” those allegations do not 21 give rise to an inference that the officers used force or intimidation to 22 interfere with Plaintiffs’ rights to free speech and free expression. 23 (Id. ¶¶ 30, 36.) 24 25 Plaintiffs indicate in their opposition to the motion to dismiss that they can allege further facts in support of this claim, such as 26 27 28 3 Plaintiffs essentially concede as much in their opposition brief by offering to provide additional facts in support of this claim. (Opp., Docket No. 23, p. 21.) 14 1 “Velasquez’ use of his baton in an intimidating fashion intended to 2 interrupt their protests over the abuse levied against Monique.” (Opp., 3 Docket No. 23, p. 21.) This indicates that allowing Plaintiffs to amend 4 their complaint may cure the deficiencies that the Court has found in the 5 FAC. Therefore, the Court GRANTS the motion to dismiss this cause of 6 action as to all Plaintiffs against all Defendants, with leave to amend. 7 G. Tenth Cause of Action: Negligent Training and Supervision 8 The tenth cause of action, for negligent training and supervision, 9 10 is asserted by Monique, Joseph Sr., Olivia, Gabrielle, Joanna, Alexis, and Joseph Jr. against Coe and Does 1-10. 11 Plaintiffs’ pleadings are insufficient for this cause of action for 12 the reasons discussed under Plaintiffs’ claim for supervisory liability, 13 as this claim is simply a particular form of supervisory liability. 14 Plaintiffs’ allegations supporting this claim baldly state that “Clark 15 and Velasquez were unfit and incompetent to perform the work for which 16 they were hired” and that “Coe . . . knew or should have known” of their 17 incompetence. (FAC ¶¶ 99-100.) However, Plaintiff pleads no facts 18 regarding why Clark and Velasquez were unfit or incompetent, other than 19 the facts underlying the single incident at issue in this case, or why 20 Coe should have known that they were incompetent prior to the incident. 21 Therefore, the Court GRANTS the motion to dismiss, with leave to amend. 22 H. Eleventh Cause of Action: False Arrest/False Imprisonment 23 The eleventh cause of action, for false arrest/false imprisonment, 24 is asserted by Monique against City, Clark, and Velasquez. The 25 sufficiency of the pleadings is challenged only as to Velasquez. 26 27 For the same reasons that the second cause of action is sufficiently pled against Velasquez, this cause of action is sufficiently 28 15 1 pled. Therefore, the Court DENIES the motion to dismiss this cause of 2 action. 3 I. Motions to Strike 4 Federal Rule of Civil Procedure 12(f) provides that a court 5 “may order stricken from any pleading any insufficient defense or 6 any redundant, immaterial, impertinent, or scandalous matter.” Fed. 7 R. Civ. P. 12(f). The court may strike a prayer for punitive 8 damages if punitive damages are not recoverable as a matter of law. 9 See, e.g., Bureerong v. Uvawas, 922 F. Supp. 1450, 1479 n.34 (C.D. 10 Cal. 1996) (“[A] motion to strike may be used to strike any part of 11 the prayer for relief when the damages sought are not recoverable 12 as a matter of law.”). Ultimately, whether to grant a motion to 13 strike lies within the sound discretion of the district court. 14 Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1528 (9th Cir. 1993). 15 Defendants move to strike Plaintiffs’ request for punitive damages 16 as to their second, third, fifth, seventh, eighth, tenth, and twelfth 17 causes of action. Plaintiffs properly plead that the conduct at issue was 18 “willful, wanton, malicious, and done with reckless disregard” for 19 Plaintiffs’ rights. (FAC ¶ 49; see also ¶¶ 44, 57, 65, 78, 90, 97, 110.) 20 Further, Plaintiffs allege substantial underlying facts that make 21 plausible their allegation that the acts were committed willfully and 22 with malice. Therefore, the Court DENIES the motions to strike.4 23 24 25 26 27 28 4 The Court notes, with respect to Plaintiffs’ causes of action for negligence, that “mere negligence, even gross negligence, is not sufficient to justify an award of punitive damages.” Ebaugh v. Rabkin, 22 Cal. App. 3d 891, 894 (1972). In order to ultimately recover punitive damages, Plaintiffs will have to prove that Defendants acted with more than negligence, but instead acted willfully or recklessly. 16 1 Defendants also move to strike any request for punitive damages as 2 to Plaintiffs’ Monell claims, which are not available as a matter of law. 3 However, Plaintiffs do not actually seek punitive damages as to this 4 cause of action; therefore, the motion to strike Plaintiffs’ request for 5 punitive damages as to this cause of action is moot. 6 IV. Conclusion 7 For the reasons stated, the motions are GRANTED IN PART and DENIED 8 IN PART. Plaintiffs may amend their complaint as stated in this order. 9 Any such amended complaint must be filed on or before Friday, January 3, 10 2014. 11 12 IT IS SO ORDERED. 13 14 15 Dated: December 16, 2013 DEAN D. PREGERSON United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 17
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