Lewis et al v. San Diego, County of et al, No. 3:2013cv02818 - Document 28 (S.D. Cal. 2015)
Court Description: ORDER granting 24 Motion to Dismiss for Failure to State a Claim with Leave to Amend. If Plaintiffs intend to file an amended complaint, they must do so by February 13, 2015. Signed by Judge M. James Lorenz on 2/5/2015. (sjt)
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Lewis et al v. San Diego, County of et al Doc. 28 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 ) Case No. 13-cv-2818-L (JMA) ) ) ORDER GRANTING MOTION TO ) DISMISS WITHOUT PREJUDICE ) [No. 24] ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Defendants. ) Plaintiffs’ First Amended Complaint (‘FAC”) alleges federal claims under 42 U.S.C. § ) MICHAEL LEWIS, LAUREN TAYLOR, 12 and minors C.L. and B.L., by and through their Guardian ad Litem, 13 Plaintiffs, 14 v. 15 COUNTY OF SAN DIEGO; CITY OF 16 CORONADO; CORONADO POLICE OFFICER PATRICK O’MALLEY; 17 CORONADO POLICE OFFICE ROBERT CLINE; COUNTY AGENT 18 IAN BAXTER; COUNTY AGENT N. QUINTEROS; COUNTY AGENT 19 SUPERVISOR BENITA JEMISON; COUNTY AGENT ABIGAIL JOSEPH; 20 COUNTY AGENT SUPERVISOR ANTONIA TORRES; COUNTY AGENT 21 BROOKE GUILD; COUNTY AGENT SUPERVISOR ALFREDO GUARDADO; 22 and DOES 1 through 50, 23 24 25 1983 and state law claims against Defendants. The City of Coronado and Coronado Police 26 Officers Patrick O’Malley (“O’Malley”) and Robert Cline (“Cline”) now move to dismiss the 27 claims under Federal Rule of Civil Procedure 12(b)(6). The motion has been fully briefed and is 28 13cv2818 Dockets.Justia.com 1 decided on the papers submitted. 2 I. BACKGROUND 3 Plaintiffs, Michael Lewis (“Lewis”) and Lauren Taylor (“Taylor”) are parents of two 4 children, B.L. and C.L. (FAC ¶ 2.) On August 5, 2011, City of Coronado police officers received 5 an anonymous “tip” that the family was running an illegal daycare and smoking marijuana 6 around children. (Id. ¶ 5.) That day, officers, whose identity is unknown, went to the Lewis 7 family home, while Taylor and the children were absent, but Lewis allowed them enter and to 8 take photographs. (Id. ¶ 6.) Although the officers did not discover a “daycare facility,” they did 9 find marijuana. (Id. ¶¶ 6, 7.) Lewis presented the officers with his medical marijuana 10 recommendation showing that he legally used marijuana to treat migraines upon the advice of 11 his physician. (Id. ¶ 7.) The officers left and wrote a report indicating the marijuana was the only 12 purported “hazard” in the residence. (Id.) 13 Three days later, on August 8, 2011, County Agents Ian Baxter (“Baxter”) and N. 14 Quinteros (“Quinteros”), working for the County of San Diego Health & Human Services 15 Agency, arrived at the Lewis family home. (FAC ¶¶ 8, 9.) They were accompanied by Coronado 16 Police Officers O’Malley and Cline who, upon searching the home and examining the children, 17 found the home to be neat and clean, and the children to be in good health and appropriately 18 dressed. (Id.) Baxter and Quinteros allegedly consulted with their County supervisors and with 19 the City Police Officers, O’Malley and Cline. (FAC ¶ 11) Baxter and Quinteros then allegedly 20 reached some form of consensus with the police officers, O’Malley and Cline, and took C.L. and 21 B.L. from their home. (Id. ¶ 11.) Additionally, Plaintiffs contend that O’Malley and Cline 22 provided armed support and were “integral participants” in the removal and detention of the 23 children. (Id. ¶ 11.) Plaintiffs further allege that the County Agents and the City police officers 24 removed C.L. and B.L. without a warrant based on allegations of “general neglect.” (Id. ¶ 13.) 25 According to Plaintiffs, the only allegations against Lewis and Taylor were that Lewis legally 26 used marijuana and police found marijuana in the home. (Id. ¶ 12.) Specifically, Plaintiffs assert 27 there was no reasonable evidence to suggest that either child was in immediate danger of 28 suffering severe bodily injury or death at the hands of their parents, which would have been 13cv2818 2 1 necessary to obtain a protective custody warrant. (Id.) 2 Following the removal of the children, Baxter and Quinteros took the children to the 3 Polinsky Center – an emergency shelter for allegedly abused and neglected children in San 4 Diego County. (Id. ¶ 13.) The same day the children were removed from their home, the 5 Polinksy Center confirmed the children were developmentally on target and there were no signs 6 of physical, emotional or other abuse. (Id. ¶ 15.) Despite evidence submitted by the parents, 7 again on the same day, showing a clean kitchen, a lockbox for medication and a padlock where 8 the marijuana was grown, Baxter and Quinteros continued to detain the children. (Id. ¶¶ 16, 17.) 9 Further, Baxter and Quinteros’ supervisors, Jemison and Guardado, maintained their decision to 10 continue the detention of the children following a detailed review of the matter. (Id. ¶ 17.) 11 Baxter filed a petition with the juvenile court in the County of San Diego, on behalf of 12 himself and the County, asserting one count against Lewis and Taylor. (Id. ¶ 18.) Plaintiffs 13 allege that Baxter misled the court by making false statements. (Id. ¶20.) At some point, County 14 Agent Joseph, and his supervisor Agent Torres, replaced Baxter’s role as lead agent on the case. 15 (Id. ¶ 24.) On February 6, 2012, the court, based on the allegedly false information provided by 16 the County Agents, declared C.L and B.L. dependants of the juvenile court. (Id. ¶ 24.) Lewis 17 appealed, and on August 2, 2012, the Court of Appeal reversed the juvenile court’s order. (Id. ¶ 18 33.) The children remained out of their home for approximately 364 days, until the family was 19 reunited on August 7, 2012. (Id. ¶ 34.) 20 On July 31, 2013, Plaintiffs commenced an action in the Superior Court of the State of 21 California, San Diego, against Defendants County of San Diego, City of Coronado, O’Malley, 22 Cline, Baxter, Quinteros, and various county employees. On November 27, 2013, Defendants 23 removed the action to federal court. Defendants City of Coronado, O’Malley, and Cline then 24 moved to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). On July 15, 25 2014, this Court granted the motion with leave to amend. (ECF No. 12.) 26 On August 25, 2014, Plaintiffs filed their FAC, asserting seven causes of action: (1) 27 deprivation of the 14th Amendment right to familial relations under 42 U.S.C. § 1983; (2) 28 unconstitutional official policy, practice, or custom under 42 U.S.C. § 1983; (3) battery; (4) false 13cv2818 3 1 imprisonment; (5) negligence; (6) intentional infliction of emotional distress; and (7) violation of 2 the Bane Act, CAL. CIV. CODE § 52.1. On October 6, 2014, Defendants City of Coronado, 3 O’Malley, and Cline filed the present motion to dismiss the FAC, arguing the allegations fail to 4 state a claim under Federal Rule of Civil Procedure 12(b)(6). 5 II. LEGAL STANDARD 6 The court must dismiss a cause of action for failure to state a claim upon which relief can 7 be granted. FED. R. CIV. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal 8 sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court 9 must accept all allegations of material fact as true and construe them in light most favorable to 10 the nonmoving party. Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 11 972, 975 (9th Cir. 2007). Material allegations, even if doubtful in fact, are assumed to be true. 12 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the court need not “necessarily 13 assume the truth of legal conclusions merely because they are cast in the form of factual 14 allegations.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) 15 (internal quotation marks omitted). In fact, the court does not need to accept any legal 16 conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 17 “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed 18 factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ 19 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause 20 of action will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). Instead, the 21 allegations in the complaint “must be enough to raise a right to relief above the speculative 22 level.” Id. Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual 23 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. 24 at 678 (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff 25 pleads factual content that allows the court to draw the reasonable inference that the defendant is 26 liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability 27 requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” 28 Id. A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory 13cv2818 4 1 or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 2 F.2d 530, 534 (9th Cir. 1984). 3 III. DISCUSSION 4 A. 1. 5 6 Plaintiffs’ Federal Claims under 42 U.S.C. § 1983 Coronado Police Officers O’Malley and Cline The federal claims against O’Malley and Cline arise under 42 U.S.C. § 1983. Plaintiffs 7 assert that the County Agents wilfully removed the Lewis children from their home without any 8 legal basis and the children were detained due to the continued communication of false 9 information to the court. Further, Plaintiffs contend the police officers’ liability arises from their 10 “integral participation” in the seizure of the children and/or their failure to intercede to prevent a 11 constitutional violation. (FAC ¶ 11.) Both theories of liability require, among other elements, 12 that the officers’ knew that the County Agents’ actions were unlawful or unconstitutional. As 13 discussed below, Plaintiffs fail to allege that Officers O’Malley and Cline were aware that the 14 removal of the children took place without a warrant or in the absence of exigent circumstances.1 15 The Supreme Court has long recognized that parents hold a liberty interest in familial 16 relations under both the Fourth and Fourteenth Amendment, which includes the right to live 17 together without government interference. Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Troxel 18 v. Granville, 530 U.S. 57, 65 (2000). Without prior judicial authorization, a child may be 19 removed from the custody of its parent “only if the information they possess at the time of the 20 seizure is such as provides reasonable cause to believe that the child is in imminent danger of 21 serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that 22 specific injury.” Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000). “Officials, including 23 social workers, who remove a child from its home without a warrant must have reasonable cause 24 to believe that the child is likely to experience serious bodily harm in the time that would be 25 1 Plaintiffs argue that O’Malley and Cline necessarily “‘knew’ and were ‘aware’ of the 26 plan to seize the children[]” based upon the fact that the County Agents sought the officers’ advice and consent. (Pls’ Opp’n 7.) Further, they contended the officers acted with the County 27 Agents when they “seized C.L. and B.L. without a warrant...” (FAC ¶ 11). These statements however, fail to allege plausible facts that O’Malley and Cline knew or were aware of the 28 absence of a warrant or exigent circumstances. 13cv2818 5 1 required to obtain a warrant.” Rogers v. Cnty. of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2 2007)(citing Mabe v. San Bernadino County, 237 F.3d 1101, 1108 (9th Cir. 2001). 3 4 a. Integral Participant Plaintiffs allege that City Defendants, O’Malley and Cline, are liable for the County 5 Agents’ seizure of the children, C.L. and B.L. (FAC ¶ 53.) Police officers who are not 6 themselves explicitly taking part in an unconstitutional act may still be liable under § 1983 if 7 found to be “integral participants” in the alleged constitutional violation perpetrated by other 8 officers. Boyd v. Benton County, 374 F.3d 773, 781 (9th Cir. 2004). Integral participation in an 9 illegal seizure requires “knowledge or a reason to know that no warrant exists in addition to 10 some affirmative participation in the search or seizure.” Monteilh v. County of Los Angeles, 820 11 F. Supp.2d 1081, 1092 (C.D. Cal. 2011)(emphasis in original) (citing Melear v. Spears, 862 F.2d 12 1177, 1181 (5th Cir. 1989); Creamer v. Porter, 754 F.2d 1311, 1316-17 (5th Cir. 1985)). 13 As a preliminary matter, the cases cited by Plaintiff that ascribe liability for “integral 14 participation” have done so solely when a police officer participated in the unlawful actions of 15 another officer, not a County agent or other official. See Boyd v. Benton Cnty., 374 F.3d 773 (9th 16 Cir. 2004). Plaintiff has failed to cite, and the Court has failed to locate, any cases which 17 supports holding O’Malley and Cline liable for the County Agents’ taking of the children. 18 Plaintiffs also allege that “any reasonable police officer, including Defendants O’Malley 19 and Cline, would have known that it was unlawful to seize and detain a child from the custody 20 and care of its parent absent a warrant or exigent circumstances.” (Emphasis added) (FAC ¶ 9.) 21 It is not enough to contend that police officers know or should know the law. Plaintiffs must 22 allege facts that the officers knew or had reason to know the removal was unlawful. See 23 Monteilh, 820 F. Supp.2d at 1092. However, the FAC provides no facts supporting the allegation 24 that the officers had reason to know the County Agents had not obtained a warrant or court 25 order. Even if they were aware of the absence of a warrant, Plaintiff must also establish “some 26 affirmative participation” in the seizure, which they have failed to do. Monteilh v. County of Los 27 Angeles, 820 F. Supp.2d 1081. Therefore, Plaintiffs fail to state a plausible claim against 28 O’Malley and Cline for their “integral participation” in the violation of the Fourteenth 13cv2818 6 1 Amendment right to familial relations. 2 3 b. Duty to Intervene Additionally, Plaintiffs contend that Police Officers O’Malley and Cline held an 4 obligation to intercede and stop the removal of the children when the County Agents consulted 5 with them. This court previously rejected this argument as lacking foundation in the law, and 6 does so again here. (ELECTRONIC CASE FILING ADMINISTRATIVE POLICIES AND 7 PROCEDURES M No. 12.) Nevertheless, Plaintiffs cite to Caylor v. City of Seattle as holding 8 that an officer who fails to intervene to prevent a constitutional violation “is just as liable as the 9 government agent who commits the violation.” 2013 WL 1855739 (W.D. Wash. Apr. 30, 2013) 10 (Pls’ Opp’n, 9.) However, Plaintiff again misstates the rule. “Police officers have a duty to 11 intercede when their fellow officers violate the constitutional rights of a suspect or other citizen.” 12 United States v. Koon, 34 F.3d 1416, 1447 n. 25 (9th Cir. 1994) (emphasis added). Plaintiffs 13 have failed to point to any authority requiring police officers to intervene in the actions of a non14 officer government agent. Baxter and Quinteros, the agents who physically removed the 15 children, are not “fellow officers” but agents working for the County of San Diego Health & 16 Human Services Agency. (FAC ¶ 8.) 17 18 2. City of Coronado Municipality Theory (Monell Claim) Plaintiffs allege that the City of Coronado bears liability under § 1983 for enforcing 19 unlawful policies, including but not limited to, removing children from their family without 20 exigent circumstances or court orders, reporting the presence of marijuana in a family home to 21 Child Protective Services regardless of the legality of the use/possession of the drug, and acting 22 with deliberate indifference in implementing a policy of inadequate training of the police 23 officers. (FAC ¶ 55.) Under Monell v. Department of Social Services, a municipal government 24 entity may be liable under § 1983 only when the violation of a plaintiff’s federally protected 25 right can be attributable to the enforcement of a municipal policy, practice, or decision of a final 26 municipal policy maker. 436 U.S. 658, 694 (1978). Defendants attack the FAC for failing “to 27 allege or identify any City policy or custom, which led to the damages.” (MTD, Ps & As 12.) 28 To impose municipal liability on the City of Coronado, Plaintiffs must show that the City 13cv2818 7 1 had policies, customs, or practices that were “the ‘moving force’ behind the constitutional 2 violation [Plaintiffs] suffered.” Galen v. County of Los Angeles, 477 F.3d 652, 667 (9th Cir. 3 2007) (quoting Monell, 436 U.S. at 694–95). Prior to the Twombly/Iqbal clarification of the 4 federal pleading standard, a claim withstood a motion to dismiss with only “a bare allegation that 5 the individual officers’ conduct conformed to official policy, custom or practice.” Karim-Panahi 6 v. Los Angeles Police Department, 839 F.2d 621, 624 (9th Cir. 1988). But in A.E. ex rel. 7 Hernandez v. County of Tulare, the Ninth Circuit clarified the required factual allegations to 8 properly plead a Monell claim stating: 9 10 11 12 13 “[W]hatever the difference between [Swierkiewicz, Dura Pharmaceuticals, Twombly, Erickson, and Iqbal ], we can at least state the following two principles common to all of them. First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. Starr, 652 F.3d at 1216. This standard applies to Monell claims and should govern future pleadings in this case.” 14 15 AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012)(citing Starr v. Baca, 16 652 F.3d 1202, 1216 (9th Cir. 2011). 17 This Court previously found that Plaintiffs’ claims against the City under § 1983 were 18 devoid of factual support and “contain[] mere conclusory statements and a simple formulaic 19 recitation of the elements of a cause of action. See Twombly, 550 U.S. at 555.” (ELECTRONIC 20 CASE FILING ADMINISTRATIVE POLICIES AND PROCEDURES M No. 12.) The 21 additional “facts” set forth in the FAC fail to “be enough to raise a right to relief above the 22 speculative level.” Twombly, 550 U.S. at 555 (internal citations omitted). Plaintiffs have failed to 23 plausibly allege any facts that show a “persistent and widespread” policy that the City has an 24 established practice of removing children from their homes without a warrant. See Monell, 436 25 U.S. at 691. Further, the FAC makes clear that the County Agents actually seized and removed 26 the children. (FAC ¶ 11.) As previously discussed in greater detail above, Plaintiffs have failed 27 to plead any factual content that would allow this Court to draw an inference that the City of 28 Coronado is liable for the actions of the County Agents. 13cv2818 8 1 The additional broad, vague allegations of unlawful policies set forth in the FAC fail to 2 satisfy the fair notice requirement necessary to give rise to municipality liability. AE v. County of 3 Tulare, 666 F.3d at 637. In the present case, as in Mateos-Sandoval v. County of Sonoma, 4 Plaintiffs assert that the city had deliberate customs, practices and habits that were the “moving 5 force behind the constitutional violations.” 942 F. Supp.2d 890, 899 (N.D. Cal. 2013) (citing 6 Galen v. County of Los Angeles, 477 F.3d 652, 667 (9th Cir. 2007)). Unlike the allegations set 7 forth in Mateos-Sandoval, Plaintiffs here have failed to specifically plead the contents of the 8 policies and customs which allegedly gave rise to Plaintiffs’ injuries. Further, Plaintiffs cites 9 Mateos-Sandoval for the proposition that they “are not required to plead evidence to demonstrate 10 a pattern or practice by identifying other instances in which someone was similarly treated by 11 defendants. (Pls’ Opp’n 12.) Plaintiff again misstate the rule. Mateos-Sandoval involves two 12 plaintiffs who, in separate and distinct incidents, experienced nearly identical alleged 13 unconstitutional violations of due process. 2013 WL 415600, at 1-3 (N.D. Cal. Jan. 31, 2013). 14 Finally, Plaintiffs’ allegations that the City has a policy or practice of making reports to 15 Child Protective Services where marijuana is present in the house similarly fails. The policy, 16 even if accurate, does not “plausibly suggest an entitlement to recovery.” (FAC ¶ 58); see Starr, 17 652 F.3d at 1216. 18 In light of the foregoing, Defendants’ motion on this basis is GRANTED WITH 19 LEAVE TO AMEND. 20 21 22 B. Plaintiffs’ State Law Causes of Action 1. California Government Claims Act Plaintiffs allege various state law claims against Officers O’Malley, Cline and the City of 23 Coronado. These claims are subject to the California Tort Claims Act (“CTCA”), which 24 provides that no suit for money or damages may be maintained against a public entity without 25 first properly presenting a written claim to the state Victim Compensation and Government 26 Claims Board within six months of accrual of the action. CAL. GOV’T CODE §§ 910, 911.2, 27 912.4, 912.6, 945.4; Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). 28 However, a plaintiff may apply for leave to file a late claim up to one year from the date the 13cv2818 9 1 cause of action accrues. Cal. Gov’t Code § 911.4. Further, the “failure to allege facts 2 demonstrating or excusing compliance with the claim presentation requirement subjects a claim 3 against a public entity” to dismissal for failure to state a claim. State v. Superior Court (Bodde), 4 32 Cal. 4th 1234, 1239 (2004). 5 Plaintiffs have alleged facts demonstrating their compliance with the CTCA. (FAC ¶ 49.) 6 Plaintiffs’ Notice of Tort Claims2 filed on February 7, 2013, stands in direct opposition to 7 Plaintiffs’ assertion that they “timely served their respective Notices of Tort Claims . . . as 8 required under California Government Code section 900, et. seq.” (FAC ¶ 49.) To meet the 9 timeliness requirement of the CTCA, a claim of damages against the City and its officers should 10 have been filed no later than February 8, 2012. This court need not accept as true “allegations 11 that contradict matters properly subject to judicial notice” or to material attached to or 12 incorporated by reference into the complaint.” Sprewell v. Golden State Warriors, 266 F.3d 979, 13 988–89 (9th Cir. 2001). Additionally, the FAC provides no facts that would excuse Plaintiffs 14 from timely compliance with the CTCA claim presentation requirement. 15 In light of the foregoing, Defendants’ motion on this basis is GRANTED WITH 16 LEAVE TO AMEND. 2. 17 18 Failure to Sufficiently Plead the State Law Claims The state law causes of action against the City and its officers would nevertheless be 19 dismissed because Plaintiffs fail to state a plausible claim upon which relief can be granted. FED. 20 R. CIV. P. 12(b)(6). Plaintiffs allege the following state law claims: (1) battery; (2) false 21 imprisonment; (3) negligence; (4) intentional infliction of emotional distress; and (5) violation of 22 the Bane Act, CAL. CIV. CODE § 52.1. Plaintiffs allegations with respect to these claims contain 23 mere conclusory statements and a simple formulaic recitation of the elements of the cause of 24 action. See Twombly, 550 U.S. at 555. 25 To properly plead the tort of battery the plaintiff must allege: (1) the defendant touched 26 2 The Court may take judicial notice of matters not reasonably in dispute and referred to in 27 the complaint. See Branch v. Tunnel, 14 F.3d 449, 454 (9th Cir. 1994). The Claim for Damages is a public record file with the City of Coronado, is referenced in the FAC and is not reasonably 28 in dispute given that both parties have asked for the Court to take notice. 13cv2818 10 1 plaintiff or caused him to be touched with the intent to harm or offend him; (2) that plaintiff did 2 not consent to the touching; and (3) that the plaintiff was harmed by the conduct. CACI 1300. 3 Additionally, a plaintiff bringing a cause of action against a police officer must also demonstrate 4 the officer’s use of unreasonable force as an element of the battery action. Edson v. City of 5 Anaheim 63 Cal. App.4th 1269, 1272 (1998). The FAC is devoid of any allegations that 6 O’Malley and Cline “touched [B.L. and C.L.] , or caused them to be touched.” Instead, Plaintiffs 7 argue that O’Malley and Cline’s “integral participation” in the County Agent’s touching of B.L. 8 and C.L. shifts liability onto the officers. (Pls.’ Opp’n 19.) However, Plaintiffs’ fail to provide 9 any legal authority supporting their assertions. 10 Moreover, Plaintiffs’ other state law causes of action fail to meet the Iqbal/Twombly 11 plausibility requirement. Plaintiffs assert that for the state law claims of false imprisonment and 12 negligence the “CITY and COUNTY are liable for all of the state law causes of action under 13 respondent superior for the actions of the COUNTY’s employee defendants. . . [.]” (FAC ¶¶ 71, 14 80.) However, the FAC and Plaintiffs’ Opposition, are void of any legal basis under which to 15 hold the City responsible for the County Agents’ acts. Further, Plaintiffs’ causes of action for 16 Bane Act violations and intentional infliction of emotional distress vaguely lump all defendants 17 together without providing any separate factual allegations of acts taken by O’Malley and Cline 18 that would subject them to liability. Thus, because the FAC does not state plausible state law 19 causes of action against the Coronado police officers, the City cannot be held vicariously liable. 20 In light of the foregoing, Defendants motion on this basis is GRANTED WITH LEAVE 21 TO AMEND. 22 IV. CONCLUSION & ORDER 23 In light of the foregoing, the Court GRANTS Defendant’s motion to dismiss with 24 LEAVE TO AMEND. If Plaintiffs intend to file an amended complaint, they must do so by 25 February 13, 2015. 26 IT IS SO ORDERED. 27 DATED: February 5, 2015 28 13cv2818 11 1 M. James Lorenz United States District Court Judge 2 /// 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13cv2818 12 1 COPY TO: 2 HON. JAN M. ADLER UNITED STATES MAGISTRATE JUDGE 3 4 ALL PARTIES/COUNSEL 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13cv2818 13
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