Motley, et al v. Smith, et al., No. 1:2015cv00905 - Document 72 (E.D. Cal. 2016)
Court Description: ORDER Granting in Part and Denying in Part Defendants' 65 Motion to Dismiss, signed by District Judge Dale A. Drozd on 11/28/2016. (Gaumnitz, R)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAMELA MOTLEY; et. al., 12 Plaintiffs, 13 14 15 v. JOSEPH SMITH; et. al., Defendants. No. 1:15-cv-00905 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS (Doc. No. 65) 16 17 By order filed June 20, 2016, the court dismissed plaintiffs’ first amended complaint 18 (“FAC”), and granted leave to amend with respect to several, but not all, dismissed claims. (Doc. 19 No. 57.) On July 6, 2016, plaintiffs filed their second amended complaint (“SAC”). (Doc. No. 20 61.) On August 17, 2016, defendant moved to dismiss plaintiffs’ SAC. (Doc. No. 65.) Therein, 21 defendants contend plaintiffs’ SAC fails to rectify the deficiencies noted by the court in 22 dismissing portions of the FAC and that dismissal with prejudice is now warranted. On 23 September 20, 2016, plaintiffs filed their opposition to the motion and on September 29, 2016, 24 defendants filed a reply. (Doc. Nos. 67, 68.) A hearing on the motion was held on October 6, 25 2016. Attorney Anthony M. Sain appeared on behalf of the defendants. Attorneys Kevin G. 26 Little and Robert G. Fuentes appeared on behalf of the plaintiffs. Having considered the parties’ 27 briefs and oral arguments and for the reasons set forth, the court will grant in part and deny in part 28 defendants’ motion to dismiss. 1 1 2 BACKGROUND A. Factual Background 3 As noted above, Pamela Motley and Cindy Raygoza1 (collectively, “plaintiffs”) filed their 4 SAC on July 7, 2016. (Doc. No. 61.) The SAC largely repeats the allegations plaintiffs levied in 5 their FAC against the Fresno Police Department (“FPD”), a number of its individual officers2 6 (“officer defendants”), and the City of Fresno (“Fresno”) (collectively, “defendants”). Rather 7 than repeat the detailed facts alleged, as set forth in the court’s previous order, see (Doc. No. 57 at 8 2–5), the court offers the following summary. 9 Pamela Motely and Cindy Raygoza are both victims of domestic violence. Between early 10 March and mid-April 2014, Pamela Motley was stalked and harassed—and on at least one 11 occasion assaulted—by her estranged husband, Paul Motley. Pamela Motley sought a restraining 12 order against Paul and called the FPD on multiple occasions to complain of Paul’s threatening 13 behavior. According to plaintiffs, when various officer defendants responded to these calls, they 14 were often rude and insensitive. The officers also failed to provide Pamela Motley with 15 information regarding domestic violence and citizen’s arrest rights as required by California 16 Penal Code §§ 679.05 and 836(b). Lastly, despite his alleged violations of the restraining order, 17 the FPD and the officer defendants did not seek out and arrest Paul. On April 12, 2014, Paul shot 18 Pamela Motley in the face, rendering her blind in one eye and quadriplegic. 19 In February 2014, Cindy Raygoza was beaten by Michael Reams, a man she was dating. 20 Officer Engum responded to the incident after Cindy Raygoza called 9-1-1. According to 21 plaintiffs’ allegations, Officer Engum proceeded to berate Cindy Raygoza for her choice in men; 22 he also failed to provide her with the requisite information mandated by California Penal Code §§ 23 24 25 26 27 28 1 Plaintiff Cindy Raygoza—who is deceased—pursues this action by and through the legal representative and administrator of her estate. In addition, as the court noted in its previous order, Cindy Raygoza’s adult children are pursuing their own claims for deprivation of rights to familial association under 42 U.S.C. § 1983 and wrongful death under California Code of Civil Procedure § 377.60 et seq. (Doc. No. 57 at 1–2.) 2 The officer defendants include Joseph Smith, Brian Little, Derrick Johnson, Michael Couto, Bernard Finley, Byron Urton, Ryan Engum and various unknown Fresno police officers. 2 1 679.05 and 836(b). Plaintiffs allege Officer Engum’s words re-victimized Cindy Raygoza and 2 caused her to become weary of seeking help from the FPD in the future. Plaintiffs also allege the 3 FPD failed to pursue and arrest Reams for the February 2014 incident. Reams returned to Cindy 4 Raygoza’s apartment on July 14, 2014 and stabbed her to death. 5 B. Procedural Background On June 20, 2016, the court dismissed portions of plaintiffs’ FAC with leave to amend.3 6 7 (Doc. No. 57.) First, the court dismissed plaintiffs’ § 1983 claim to the extent it was based on 8 allegations that defendants violated plaintiffs’ Fourteenth Amendment substantive due process 9 rights, noting “a State’s failure to protect an individual against private violence simply does not 10 constitute a violation of the Due Process clause.” (Id. at 7) (quoting DeShaney v. Winnebago Cty. 11 Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989)). Second, the court dismissed Pamela Motley’s 12 claim that defendants violated her equal protection rights, characterizing the claim as one alleging 13 gender-based discrimination and then noting Pamela Motley had failed to plead any facts 14 supporting a reasonable inference of gender animus on the part of the defendants. (Id. at 12–14.) 15 Third, the court dismissed plaintiffs’ various state law claims. The court dismissed plaintiffs’ 16 negligence claims stemming from the defendants’ alleged failure to arrest Paul Motley and 17 Michael Reams, noting the plaintiffs’ had failed to adequately plead that the officer defendants’ 18 owed them a duty to perform such an action. (Id. at 18–19.) The court found the same was true 19 with respect to plaintiffs’ state law claims based on the officer defendants’ alleged failure to 20 protect them. (Id. at 20–23.) Finally, the court dismissed plaintiffs’ state law negligence claims 21 regarding the officer defendants’ failure to provide plaintiffs with domestic violence information 22 as mandated by California Penal Code § 836(b). (Id. at 23.) 23 24 25 26 27 28 3 In that order, the court also dismissed two of plaintiffs’ claims with prejudice. (Doc. No. 57 at 27.) Specifically, the court dismissed with prejudice Cindy Raygoza’s claim for injunctive relief and any negligence claim brought by plaintiffs predicated on a violation of the Violence Against Women Act. (Id.) However, the court also denied defendants’ earlier motion to dismiss in part, concluding that Cindy Raygoza had adequately pled an equal protection claim based on allegations that defendant Engum made misogynistic comments to her. (Id. at 14–15.) The court also concluded that Cindy Raygoza could pursue a Monell claim against defendant City of Fresno based on the alleged custom or practice on its part of discriminating against female victims of domestic violence. (Id. at 15–16.) 3 1 As mentioned above, plaintiffs filed their SAC on July 6, 2016. (Doc. No. 61.) In it, 2 plaintiffs clarify they are pursuing equal protection claims for both gender-based discrimination 3 as well as discrimination based on their status as victims of domestic violence. (Id. at ¶ 74.) In 4 the SAC, plaintiffs also re-allege their negligence claims as well as Cindy Raygoza’s wrongful 5 death claim. (Id. at ¶¶ 81–90.) 6 7 DEFENDANT’S MOTION TO DISMISS A. Legal Standard for Motion to Dismiss 8 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 9 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 10 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 11 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 12 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to 13 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 14 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 15 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 16 Iqbal, 556 U.S. 662, 678 (2009). 17 In determining whether a complaint states a claim on which relief may be granted, the 18 court accepts as true the allegations in the complaint and construes the allegations in the light 19 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 20 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). It is inappropriate to assume that the plaintiff 21 “can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways 22 that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of 23 Carpenters, 459 U.S. 519, 526 (1983). 24 In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court is permitted 25 to consider material which is properly submitted as part of the complaint, documents that are not 26 physically attached to the complaint if their authenticity is not contested and the plaintiff’s 27 complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 28 250 F.3d 668, 688–89 (9th Cir. 2001). 4 1 B. Pamela Motley’s Gender-Based Equal Protection & Monell Claims In their motion to dismiss, defendants challenge only Pamela Motley’s gender-based equal 2 3 protection claim. (See Doc. No. 65 at 2.) As the court noted in its previous order: “The Equal Protection Clause of the Fourteenth Amendment commands that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). In order to state a claim under § 1983 for “a violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (citing Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). “Intentional discrimination means that a defendant acted at least in part because of a plaintiff’s protected status.” Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994). 4 5 6 7 8 9 10 11 12 The denial of police protection to disfavored persons stemming from discriminatory intent or motive violates the Equal Protection Clause. Estate of Macias v. Ihde, 219 F.3d 1018, 1028 (9th Cir. 2000). However, “in police failure-to-serve cases, the courts consistently have required more evidence of discriminatory intent than a simple failure of diligence, perception, or persistence in a single case involving [members of a protected class].” Moua v. City of Chico, 324 F. Supp. 2d 1132, 1140 (E.D. Cal. 2004). 13 14 15 16 17 (Doc. No. 57 at 12.) 18 Defendants argue that in their SAC plaintiffs have failed to plead any specific facts 19 indicating Pamela Motley was denied police protection based on her gender.4 The court 20 disagrees. Plaintiffs’ supplementation of their original allegations in their SAC consists of 21 allegations that various defendant officers behaved in a rude, aggressive, insensitive, or 22 disinterested manner when responding to Pamela Motley’s complaints about Paul. (Doc. No. 61 23 at ¶¶ 32, 33, 37, 38.) These allegations—consisting largely of subjective interpretations of 24 nonverbal behavior—contain no indication of any gender animus. Cf. Balistreri v. Pacifica 25 Police Dept., 901 F.2d 696, 701–02 (9th Cir. 1990) (holding a cognizable gender discrimination 26 4 27 28 In their reply brief, defendants also challenge plaintiffs’ allegations they were discriminated against because of their status as victims of domestic violence. (Doc. No. 68 at 8–9.) However, a “district court need not consider arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). The court will not do so here. 5 1 claim could be brought by female domestic violence victim where the victim alleged police 2 denied protection and made misogynistic comments). However, plaintiffs also now allege in their 3 SAC that on at least one occasion an officer defendant—Officer Urton—provided Pamela Motley 4 with “‘fatherly advice’ that if Pamela were his daughter he would suggest that she just leave town 5 if she were worried.” (Doc. No. 61 at ¶ 38.) While perhaps not as potent as the language 6 discussed by the court in Balistreri, Officer Urton’s alleged statement is still derogatory and 7 demeaning and hints at “an animus against abused women.” Balistreri, 901 F.2d at 701. 8 Furthermore, because the court must construe the allegations of the SAC in the light most 9 favorable to plaintiffs, this language is sufficient to give rise to an equal protection claim by 10 plaintiff Pamela Motley based on gender discrimination. See Lee, 250 F.3d at 679. Finally, defendants contend that “because [plaintiff Pamela Motley] has failed to allege a 11 12 cognizable equal protection claim, she cannot maintain a cognizable Monell claim against the 13 City of Fresno.” (Doc. No. 65 at 22.) However, for the same reasons set forth in the previous 14 order pertaining to plaintiff Cindy Raygoza’s Monell claim, the court concludes that plaintiff 15 Pamela Motley, having now alleged a cognizable equal protection claim, has also adequately 16 alleged a Monell claim against defendant City of Fresno. (See Doc. No. 57 at 15–16.) 17 C. Deprivation of Familial Association Claim The right to familial association—which covers both a parent’s relationship with his or her 18 19 child as well as a child’s relationship with his or her parents—is a fundamental liberty interest 20 protected under the substantive due process clause of the Fourteenth Amendment.5 Rosenbaum v. 21 Washoe County, 663 F.3d 1071, 1079 (9th Cir. 2012); Lee, 250 F.3d at 685; Smith v. City of 22 Fontana, 818 F.2d 1411, 1418 (9th Cir. 1987) overruled on other grounds by Hodgers-Durgin v. 23 de la Vina, 199 F.3d 1037 (9th Cir. 1999)). “The concept of ‘substantive due process,’ . . . 24 forbids the government from depriving a person of life, liberty, or property in such a way that 25 ‘shocks the conscience’ or ‘interferes with rights implicit in the concept of ordered liberty.’” 26 27 28 5 Familial association is also protected by the First Amendment. Lee, 250 F.3d at 685. However, here, plaintiffs’ base their claim solely on defendants’ alleged violation of the Fourteenth Amendment. (Doc. No. 61 at ¶ 79.) 6 1 Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998) (quoting United States v. 2 Salerno, 481 U.S. 739, 746 (1987)); see also Rosenbaum, 663 F.3d at 1079 (“To amount to a 3 violation of substantive due process, however, the harmful conduct must ‘shock [ ] the 4 conscience’ or ‘offend the community’s sense of fair play and decency.’”) (quoting Rochin v. 5 California, 342 U.S. 165, 172–73 (1952). “[C]onduct intended to injure in some way unjustifiable 6 by any governmental interest is the sort of official action most likely to rise to conscience- 7 shocking level.” County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). 8 9 Defendants argue that a familial association claim must be predicated on a substantive due process violation and, because they have not alleged such a violation, plaintiffs’ familial 10 association claim fails. (Doc. No. 65 at 23–25.) The court agrees in part. First, the court notes 11 the Ninth Circuit has recognized that the parent-child relationship is protected by both the First 12 and Fourteenth Amendment. Lee, 250 F.3d at 685; see also Schwartz v. Lassen Cty. ex rel. 13 Lassen Cty. Jail, No. 2:10-cv-03048-MCE-CMK, 2013 5375588, at *10 (E.D. Cal. Sept. 14, 14 2013). Therefore, a claimant is not forbidden from pursuing a familial association claim merely 15 because he or she has not established a substantive due process violation. An alternative basis for 16 such a claim—the First Amendment—is available. C.f. Reyes ex rel. Reyes v. City of Fresno, No. 17 CV F 13-0418 LJO SKO, 2013 WL 2147023, at *10 (E.D. Cal. May 15, 2013) (noting that, “[t]he 18 weight of authorities indicates that the Fourteenth Amendment is the more precise source for 19 familial association rather than the First Amendment.”). Nonetheless, in this instance, plaintiffs 20 have limited themselves in their SAC to the Fourteenth Amendment as the basis for their cause of 21 action, alleging that their familial association claim stems from defendants’ violation of the equal 22 protection clause. Moreover, in their opposition to the pending motion, plaintiffs have failed to 23 cite any authority for the proposition that an equal protection violation under the Fourteenth 24 Amendment may serve as the basis of a familial association claim and instead merely arguing 25 they should be permitted to pursue their familial association claim only because defendants have 26 failed to show that it is “disallowed.” (Doc. No. 67 at 8) (citing Slusher v. City of Napa, No: C 27 15-2394 SBA, 2015 WL 8527411, at *7 (E.D. Cal. Dec. 11, 2015)). 28 ///// 7 1 In their SAC plaintiffs have failed to plead facts, which if proven to be true, would 2 establish defendants caused their deprivation of familial association. Whether a familial 3 association claim is brought pursuant to the First or the Fourteenth Amendment, one constant is 4 always present: the underlying cause of the deprivation is state action. See Wilkinson v. Torres, 5 610 F.3d 546, 554 (9th Cir. 2010) (addressing a familial association claim—ultimately 6 dismissed—based on a police shooting); Lee, 250 F.3d at 685–86 (addressing a familial 7 association claim based on a police department’s extradition of a mother’s mentally handicapped 8 son). The district court’s decision in Slusher is instructive in this regard. In that case, the 9 plaintiffs—the father and grandparents of a toddler murdered by her mother and her mother’s 10 boyfriend—alleged that the Napa Police Department violated their rights to family association 11 when the police failed to remove the toddler from an unsafe environment despite obvious signs of 12 abuse. Slusher, 2015 WL 8527411, at *1–2. The court rejected plaintiffs’ family association 13 brought pursuant to the Fourteenth Amendment because the plaintiffs did not plead a state created 14 danger and, thus, failed to establish a substantive due process violation. Id. at *7 n.6. Here, as in 15 Slusher, plaintiffs have not alleged that the state affirmatively interfered with Cindy Raygoza’s 16 relationship with her children; instead, the relationship was cut short by Michael Shean’s acts.6 17 Accordingly, defendants’ motion to dismiss will be granted with respect to the denial of 18 familial association claim brought by plaintiffs Yvette Caldera, Valeria Caldera, and Danny Rice. 19 D. State Law Claims 20 1. Failure to Arrest Paul Motley 21 In their SAC plaintiffs allege defendants were negligent per se for failing to arrest Paul 22 Motley. Defendants seek to dismiss this claim, arguing they did not owe plaintiffs a duty of care. 23 In California, the violation of a statute or ordinance can create a presumption of 24 negligence. Salinero v. Pon, 124 Cal. App. 3d 120, 134 (1981). A plaintiff must allege and 25 ultimately establish “four ‘basic facts’ . . . for this presumption to apply.” Id. These include: (1) 26 27 28 6 Allowing plaintiffs to pursue a familial association claim based on defendants’ alleged equal protection violation would essentially provide plaintiffs with a backdoor to pursue their earlier dismissed substantive due process claim. (See Doc. No. at 7–13.) 8 1 the violation; (2) the violation as a proximate cause of the injury; (3) an injury resulting from an 2 occurrence of the nature which the statute was designed to prevent; and (4) the injured party 3 being a member of the class of persons for whose protection the statute was adopted. Id. 4 In their SAC, plaintiffs allege that the officer defendants were mandated by California 5 Penal Code §§ 836(c)(1) and 13701(b) to arrest Paul Motley. California Penal Code § 836(c)(1) 6 states: 7 8 9 10 11 When a peace officer is responding to a call alleging a violation of a domestic violence protective order or restraining order . . . and the peace officer has probable cause to believe that the person against whom the order is issued has notice of the order and has committed an act in violation of the order, the officer shall, consistent with [California Penal Code § 13701(b)], make a lawful arrest of the person without a warrant and take that person into custody whether or not the violation occurred in the presence of the arresting officer. 12 Section 13701(b) repeats the mandate contained in § 836(c)(1) and also instructs officers to avoid 13 dual arrests and to use “reasonable efforts to identify the dominant aggressor in any incident.” 14 Cal. Penal Code § 13701(b). The cited statutes do appear to impose a mandatory duty to arrest in 15 certain situations. Nonetheless, plaintiffs’ claim as alleged in the SAC is defective because it fails 16 to plead the first “basic fact” of a negligence per se claim: a violation of the statute. Under § 17 836(c)(1), the mandatory duty to arrest is not triggered until after the violator has notice of the 18 domestic violence protective order or restraining order. According to the allegations of plaintiffs’ 19 SAC, the officer defendants did not encounter Paul Motley after he was notified of the restraining 20 order. (Doc. No. 61 at ¶¶ 33–39.) Thus, based on the factual allegations of the SAC, a statutory 21 violation never occurred. 22 Moreover, to the extent plaintiffs contend defendants should have dedicated more 23 resources to apprehending Paul, defendants are shielded from such a claim pursuant to California 24 Government Code § 845, which provides: “Neither a public entity nor a public employee is liable 25 for failure to . . . provide police protection service or, if police protection service is provided, for 26 failure to provide sufficient police protection service.” See also Peterson v. San Francisco Cmty. 27 Coll. Dist., 36 Cal. 3d 799, 814–15 (1984) (holding § 845 immunized the public entity from a 28 claim that it did not provide sufficient police patrols in parking lot). 9 1 2. Failure to Protect 2 Defendants also move to dismiss plaintiffs’ claim that defendants were negligent in failing 3 to protect Pamela Motley. The court previously dismissed this claim with leave to amend, noting 4 (1) that “police officers . . . generally may not be held liable in damages for failing to take 5 affirmative steps to come to the aid of, or prevent an injury to, another person,” and (2) that 6 plaintiffs had failed to plead facts establishing an exception to this general rule. (Doc. No. 57 at 7 20–23) (quoting Zelig v. Cty. of Los Angeles, 27 Cal. 4th 1112, 1128 (2002). 8 9 In the pending motion to dismiss, defendants argue plaintiffs have failed to allege any new or additional facts in their SAC with respect to this claim. Defendants’ argument appears to be 10 well-taken and plaintiffs do not dispute the assertion on which it is based. Accordingly, the court 11 will dismiss plaintiffs’ failure to protect claim. 12 3. Failure to Provide Information 13 In their SAC, plaintiffs allege that the officer defendants were negligent per se because 14 they failed to provide Pamela Motley and Cindy Raygoza with informational materials regarding 15 domestic violence or to inform them of their citizen’s arrest rights as mandated by California 16 Penal Code §§ 679.05 and 836(b). Plaintiffs allege the failure to comply with these statutes 17 “changed the risk of injury” to Pamela Motley and Cindy Raygoza because they were left 18 unaware of preventative measures they could have taken to mitigate the dangers they faced from 19 their abusers. (Doc. No. 61 at ¶¶ 40, 53.) Defendants argue plaintiffs’ allegations are too 20 speculative to establish causation, and thus fail under federal pleading standards. 21 22 23 24 25 26 California Penal Code § 836(b) states: Any time a peace officer is called out on a domestic violence call, it shall be mandatory that the officer make a good faith effort to inform the victim of his or her right to make a citizen’s arrest . . . . This information shall include advising the victim how to safely execute the arrest. Cal. Penal Code § 836(b). Under California Penal Code § 679.05(a), a domestic violence victim has “the right to 27 have a domestic violence advocate and a support person of the victim’s choosing present at any 28 interview by law enforcement authorities, prosecutors, or defense attorneys.” That statute also 10 1 2 3 4 5 6 provides: Prior to the commencement of the initial interview by law enforcement authorities or the prosecutor pertaining to any criminal action arising out of a domestic violence incident, a victim of domestic violence or abuse . . . shall be notified orally or in writing by the attending law enforcement authority or prosecutor that the victim has the right to have a domestic violence advocate and a support person of the victim’s choosing present at the interview or contact. 7 Id. at § 679.05(b)(1). Lastly, the statute states that “[a]n initial investigation by law enforcement 8 to determine whether a crime has been committed and the identity of the suspects shall not 9 constitute a law enforcement interview for the purposes of this section.” Id. at § 679.05(c). 10 The court notes that, given the allegations of the SAC, § 679.05 does not appear to apply 11 to either Pamela Motley or Cindy Raygoza. Neither ever attended an interview by law 12 enforcement authorities, prosecutors, or defense attorneys. Instead, their encounters with law 13 enforcement were limited to officers’ responses to their 9-1-1 calls. These responses are akin to 14 the “initial investigation[s]” specifically excluded under § 679.05(c) and, thus, that statute cannot 15 serve as the basis for a cognizable claim by plaintiffs here. 16 However, plaintiffs do appear to have stated a cognizable negligence per se claim with 17 respect to the defendant officers’ alleged failure to adhere to the requirements of California Penal 18 Code § 836(b). In this regard, plaintiffs allege in their SAC that the officer defendants failed to 19 provide them with the required information, the information would have negated the dangers they 20 faced, and the statute mandating the dispensation of this information was designed to protect a 21 class of which they were members; i.e., domestic violence victims. In moving to dismiss this 22 claim, defendants argue that these allegations are “speculative” and that “proof of causation 23 cannot be based on mere speculation, conjecture and inferences drawn from other inferences to 24 reach a conclusion unsupported by any real evidence . . . .” (Doc. No. 65 at 29) (quoting Dunbar- 25 Kari v. United States, No. CV-F-09-0389 LJO SMS, 2010 WL 4923556, at *3 (E.D. Cal. Nov. 26 29, 2010)). However, the case is now before the court on a motion to dismiss and proof is not yet 27 demanded. Rather, all that is required at this stage of the litigation are factual allegations 28 sufficient to support “a reasonable inference that the defendant is liable for the misconduct 11 1 alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Moreover, of course, in 2 considering a motion to dismiss, the court is obligated to treat factual allegations made by the 3 plaintiff as true. Hishon, 467 U.S. at 73. The SAC adequately alleges that Pamela Motley and 4 Cindy Raygoza would have been able to protect themselves if the officer defendants had adhered 5 to § 836(b). Such an allegation is sufficient to survive a motion to dismiss. See Slusher, 2015 6 WL 8527411 at *10–11 (denying a motion to dismiss a claim that police officers committed 7 negligence per se by failing to follow mandatory reporting statutes). 8 9 Defendants also argue that plaintiffs’ claim against the City of Fresno based upon the officers failure to provide the information required by § 836(b) must be dismissed because 10 “plaintiffs have failed to allege facts that would establish the alleged acts or omissions of any of 11 the defendant officers proximately resulted in their injuries.” (Doc. No. 65 at 30.) However, 12 because the officers’ alleged negligence occurred within the scope of their employment, plaintiffs 13 may pursue a claim for vicarious liability against Fresno. See Cal. Gov. Code § 815.2 (“A public 14 entity is liable for injury proximately caused by an act or omission of an employee of the public 15 entity within the scope of his employment if the act or omission would . . . have given rise to a 16 cause of action against that employee . . . .”). 17 Finally, defendants contend that they are immune from liability because California 18 Government Code §§ 821 and 845 exempts public employees for “failure to provide police 19 services.” (Doc. No. 65 at 30.) However, it appears that defendants are not entitled to immunity 20 with respect to this claim pursuant to those provisions because the duty to provide the required 21 information was mandatory rather than discretionary. See Roseville Cmty. Hosp. v. State of 22 California, 74 Cal. App. 3d 583, 587 (1977) (“The statutes declaring immunity for damages 23 caused by law enforcement failures encompass only discretionary law enforcement activity.”) 24 (citing Sullivan v. County of Los Angeles, 12 Cal. 3d 710 (1974)). 25 E. Leave to Amend 26 The court has carefully considered whether plaintiffs could further amend their complaint 27 to remedy the defects noted above. “Valid reasons for denying leave to amend include undue 28 delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan 12 1 Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Steckman v. Hart Brewing, Inc., 143 2 F.3d 1293, 1298 (9th Cir. 1998) (leave to amend not permitted when “amendment would be an 3 exercise in futility . . . .”). Plaintiffs have amended their complaint twice. Additionally, through 4 the court’s order granting in part and denying in part defendants’ previous motion to dismiss the 5 first amended complaint, plaintiffs have received guidance with respect to the deficiencies of that 6 complaint. (See Doc. No. 57.) Therefore, the court concludes that granting further leave to 7 amend with respect to the dismissed claims would be futile in this case. See Airs Aromatics, LLC 8 v. Opinion Victoria’s Secret Stores Brand Management, Inc., 744 F.3d 595, 600 (9th Cir. 2014); 9 Saul v. United States, 928 F. 2d 829, 843 (9th Cir. 1991); Rutman Wine Co. v. E. & J. Gallo 10 Winery, 829 F.2d 729, 738 (9th Cir. 1987). 11 CONCLUSION 12 For all of the reasons set forth above, defendants’ motion to dismiss (Doc. No. 65) is 13 granted in part and denied in part as follows: 1. Defendants’ motion to dismiss is granted with respect to the following claims which 14 15 are hereby dismissed with prejudice: a. Plaintiffs Yvette Caldera, Valerie Caldera, and Danny Rice’s Second Claim for 16 Relief – Deprivation of Rights to Familial Association/Relations; 17 b. Plaintiff Pamela Motley’s Third Claim for Relief – Negligence with respect to 18 the defendants’ failure to arrest Paul Motley; and 19 c. Plaintiffs Pamela Motley and Cindy Raygoza’s Third Claim for Relief – 20 Negligence with respect to the defendants’ failure to protect. 21 2. Defendants’ motion to dismiss is denied with respect to: 22 23 a. Plaintiff Pamela Motley’s First Claim for Relief – Equal Protection; 24 b. Plaintiff Pamela Motley’s First Claim for Relief – Municipal Liability;7 and 25 ///// 26 7 27 28 Defendants do not now challenge plaintiff Cindy Raygoza’s First Claim for Relief in the SAC alleging a denial of Equal Protection and Municipal Liability. The court previously denied defendants’ first motion to dismiss with respect to this claim as alleged in the FAC. (Doc. No. 57 at 15–16.) 13 c. Plaintiffs Pamela Motley and Cindy Raygoza’s Third Claim for Relief – 1 Negligence with respect to the defendants’ failure to provide information. 2 d. Plaintiff Cindy Raygoza’s Fourth Claim for Relief – Wrongful Death8 3 4 IT IS SO ORDERED. 5 Dated: November 28, 2016 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Although defendants moved to dismiss plaintiff Cindy Raygoza’s state law wrongful death claim, they did not address this claim separately or in any depth in their motion. (Doc. No. 65 at 2.) In their reply brief, defendants merely assert “[t]he fourth claim for relief for wrongful death brought by the heirs of Cindy Raygoza is similarly premised upon ‘negligent misconduct’ which [sic] allegedly caused her death by the hands of Mr. Reams.” Because the wrongful death claim is based on negligent misconduct, defendants argue that “exercise of their discretion in policing is absolutely immune from liability.” (Doc. No. 65 at 33.) “In a wrongful death action resulting from negligence, the complaint must contain allegations as to all the elements of actionable negligence. Negligence involves the violation of a legal duty imposed by a statute, contract or otherwise, by the defendant to the person injured, e.g., the deceased in a wrongful death action.” Van Horn v. Hornbeak, No. CV F08-1622 LJO DLB, 2009 WL 435104, at *9 (E.D. Cal. Feb. 19, 2009) (citing Jacoves v. United Merchandising Corp., 9 Cal. App. 4th 88, 105 (1992)). Here, the court has concluded that plaintiffs have alleged sufficient facts to maintain a claim against the defendants based upon their alleged failure to provide information and that the defendants are not immune because the duty to provide that information was mandatory rather than discretionary. Accordingly, plaintiff Cindy Raygoza’s wrongful death claim also survives defendants’ motion to dismiss. 14
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