Susan Dominguez v. County of Los Angeles

Filing 19

MINUTES OF DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT 8 ; PLAINTIFF'S MOTION FOR REMAND TO STATE COURT 11 Hearing held before Judge George H. Wu. The Tentative circulated and attached hereto, is adopted as the Court's Final Ruling. Plaintiff's Motion to Remand is denied; Defendants' Motion to Dismiss is granted with leave to amend. Plaintiff will have until March 22, 2018 to file a Second Amended Complaint. The scheduling conference set for March 8, 2018, is continued to April 5, 2018 at 8:30 a.m. Court Reporter: Katie Thibodeaux. (mrgo)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 18-371-GW(AGRx)

Title

Susan Dominguez v. County of Los Angeles

Present: The Honorable

Date

March 1, 2018

GEORGE H. WU, UNITED STATES DISTRICT JUDGE

Javier Gonzalez

Katie Thibodeaux

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Cuan-Chen K. Liao

Ashley S. Feder
Devin Weisberg

PROCEEDINGS:

DEFENDANTS’ MOTION TO DISMISS PLAINTIFF'S FIRST
AMENDED COMPLAINT [8];
PLAINTIFF’S MOTION FOR REMAND TO STATE COURT [11]

Court hears oral argument. The Tentative circulated and attached hereto, is adopted as the Court’s Final
Ruling. Plaintiff’s Motion to Remand is denied; Defendants’ Motion to Dismiss is granted with leave to
amend. Plaintiff will have until March 22, 2018 to file a Second Amended Complaint.
The scheduling conference set for March 8, 2018, is continued to April 5, 2018 at 8:30 a.m.

:
Initials of Preparer
CV-90 (06/04)

CIVIL MINUTES - GENERAL

05

JG
Page 1 of 1

Susan Dominguez v. LA Cty. Sheriff’s Dept., et al.; Case No. 2:18-cv-371-GW-(AGRx)
Tentative Rulings on: (1) County Defendants’ Motion to Dismiss and (2) Plaintiff’s Motion to
Remand

I. Background
Plaintiff Susan Dominguez brings this action against Defendants: 1) Los Angeles County
Sheriff’s Department (“LASD”); 2) Jim McDonnell, the Los Angeles County Sheriff; 3) Hank
Ortega, an LASD Deputy Sheriff; 4) Curtis Jensen, an LASD Deputy Sheriff; 5) Jeremy Licona,
an LASD Deputy Sheriff; 6) the Los Angeles Office of the County Counsel (“OCC”); 7) Mary
Wickham,1 the Los Angeles County Counsel; and 8) Daniel Ybarra.2

See generally First

Amended Complaint (“FAC”), Docket No. 1 at 12-26 of 66. Plaintiff brings five causes of
action: 1) negligent hiring, training, supervision, retention, and entrustment against LASD,
McDonnell, Ortega, and Jensen; 2) “violation of right to due process of law” against LASD,
McDonnell, Ortega, Licona, and Jensen; 3) “failure to intervene to prevent civil rights
violations” against LASD, McDonnell, Ortega, Jenson, OCC, and Wickham; 4) “conspiracy to
violate Plaintiff’s right to due process” against Ybarra and Licona; and 5) battery against Ybarra.
See generally id.
Plaintiff pleads the following relevant facts:
For two years, Plaintiff had rented a room from Ybarra, with whom she also “maintained
a relationship in cohabitation.” Id. ¶ 17. On or about January 1, 2017, Plaintiff was physically
assaulted by Ybarra, causing her physical injury. Id. ¶ 18. After the assault, Ybarra left the
residence and shortly thereafter “a man whom Plaintiff did not know handed Plaintiff eviction
papers.” Id. LASD Deputy Sheriffs, including Licona, then came to the residence. Id. ¶ 19.
Licona had been to the residence on at least three prior occasions because “Ybarra had been
intoxicated and belligerent.” Id. ¶ 27. On the last of these visits, Licona told Plaintiff that he
did not want to come to the residence again and that Plaintiff should leave. Id.
At or near the time the Deputy Sheriffs arrived on January 1, 2017, Ybarra returned to the
residence. Id. ¶ 19. Ybarra was placed in the back of a police vehicle and Plaintiff was told that
he would be arrested. Id. ¶ 20. Plaintiff was offered medical care but refused and left the
residence. Id. Plaintiff returned the following day to discover that the locks had been changed.

1

Plaintiff wrongly sues “Mark Wickham.”

2

Plaintiff also sues a number of Doe Defendants, which the Court ignores for purposes of its analysis here.

1

Id. ¶ 21. Plaintiff contacted the LASD and was told that it would take no action because Ybarra
was not home. Id. Instead, Plaintiff was instructed to return the following day. Id. Plaintiff
returned the following day and Ybarra, now present at the residence, threatened her with a metal
pipe. Id. ¶ 22. LASD Deputy Sheriffs, including Licona, came to the residence and ordered
Plaintiff to leave and stay away or she would be arrested. Id. ¶ 23. Plaintiff told the LASD
Deputy Sheriffs that she needed to retrieve medications from the residence. Id. ¶ 24. She was
given five minutes to do so but when she entered the residence she was unable to find the
medications because all of her belongings had been “packed into plastic bags.” Id. At that point
Licona issued an emergency protective order to Plaintiff. Id. ¶ 25. “Plaintiff did not see any
signature of a judicial officer on the Protective Order.” Id. Plaintiff “pointed this out” and asked
Licona “why she was being prevented from entering her residence when there was no eviction
order.” Id. Licona instructed Plaintiff to leave or he would arrest her. Id.
The following day Plaintiff complained to an unnamed LASD Watch Commander.
Id. ¶ 26. In response, Licona told Plaintiff “I am sorry about this but at the end of the day I need
to put food on my table.” Id. Plaintiff complained about Licona again to Jensen and Ortega on
January 8, 2017. Id. ¶ 31. Plaintiff was informed that “her action was found to be justified” and
that LASD Deputy Sheriffs would be disciplined. Id. Plaintiff was later informed, however, that
the LASD Deputy Sheriffs would not be disciplined because they had done nothing wrong. Id.
¶ 32.
LASD, Licona, and Wickham were served with this lawsuit on December 14, 2017. See
Notice of Removal, Docket No. 1, ¶¶ 2-4. On January 16, 2017,3 those three defendants, joined
by all other defendants, removed to this Court, invoking its federal question jurisdiction. See
generally id. After removal, LASD, McDonnell, Ortega, Jensen, Licona, OCC, and Wickham
(collectively, “County Defendants”) moved to dismiss the first four causes of action, arguing that
Plaintiff’s FAC fails to state claims upon which relief may be granted. See generally Motion to
Dismiss (“MTD”), Docket No. 8. Plaintiff moved to remand the matter back to state court,
arguing that the FAC fails to raise a substantial federal question. See Motion to Remand
(“MTR”), Docket No. 11. Because the Court would only consider the merits of the MTD if it
has jurisdiction over the case, the Court will first consider Plaintiff’s MTR.

3

30 days from the date of service was Saturday, January 13, 2018. The following Monday, January 15, 2018 was a
legal holiday. Accordingly, Defendants’ removal on January 16, 2018 ˗ 33 calendar days after service ˗ was timely
made. See Fed. R. Civ. P. 6(a)(1)(C).

2

II. Legal Standards
A. Motion to Remand
“Federal courts are courts of limited jurisdiction,” and have subject matter jurisdiction
only to the extent “authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994) (citing Willy v. Coastal Corp., 503 U.S. 131, 136-137 (1992);
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). “It is to be presumed that a
cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon
the party asserting jurisdiction.” Id. (citing Turner v. Bank of N. Am., 4 U.S. (4 Dall.) 8, 11
(1799); McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936)).
28 U.S.C. § 1441 permits defendants to remove certain civil actions brought in a state
court to federal district courts.

The removal statute is strictly construed against removal

jurisdiction, however, and “[f]ederal jurisdiction must be rejected if there is any doubt as to the
right of removal in the first instance.” See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)
(citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988); Takeda v. Northwestern Nat’l Life Ins.
Co., 765 F.2d 815, 818 (9th Cir. 1985); Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064
(9th Cir. 1979)). “Generally, [a] defendant has the right to invoke federal removal jurisdiction if
the case could have been filed originally in federal court (i.e. on diversity or federal question
grounds).” O’Connell & Stevenson, Federal Civil Procedure Before Trial (“Federal Practice
Guide”) § 2:2192 (Rutter Grp. 2016) (emphasis in original); see also Snow v. Ford Motor Co.,
561 F.2d 787, 789 (9th Cir. 1977). Federal district courts have original jurisdiction in actions
“arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
Whether or not an action arises under the Constitution, laws, or treaties of the United States
“must be determined from what necessarily appears in the plaintiff’s statement of his own
claim.” Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830 (2002); see
also, Taylor v. Anderson, 234 U.S. 74, 75 (1914).
B. Motion to Dismiss
Under Federal Rule of Civil Procedure (“Rule”) 12(b)(6), a defendant may move to
dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A
complaint may be dismissed for failure to state a claim for one of two reasons: (1) lack of a
cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007); see also Mendiondo v. Centinela Hosp. Med. Ctr., 521

3

F.3d 1097, 1104 (9th Cir. 2008) (“Dismissal under Rule 12(b)(6) is appropriate only where the
complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal
theory.”).
In deciding a Rule 12(b)(6) motion, a court “may generally consider only allegations
contained in the pleadings, exhibits attached to the complaint, and matters properly subject to
judicial notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). The court must
construe the complaint in the light most favorable to the plaintiff, accept all allegations of
material fact as true, and draw all reasonable inferences from well-pleaded factual allegations.
Gompper v. VISX, Inc., 298 F.3d 893, 896 (9th Cir. 2002); Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001), amended on denial of reh’g, 275 F.3d 1187 (9th Cir. 2001);
Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court is not required
to accept as true legal conclusions couched as factual allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Where a plaintiff facing a Rule 12(b)(6) motion has pleaded “factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged,” the motion should be denied. Id.; see also Sylvia Landfield Trust v. City of
Los Angeles, 729 F.3d 1189, 1191 (9th Cir. 2013). But if “the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it
has not show[n] . . . the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (citations omitted).
III. Discussion
A. Motion to Remand
Plaintiff argues that the County Defendants are of “the mistaken belief that Plaintiff’s
allegations of violation of her Fourteenth Amendment rights as alleged in Plaintiff’s FAC create
substantial federal issues arising under federal law.” MTR at 3. Plaintiff’s second cause of
action, alleging a violation of her right to due process, “is brought pursuant to the Fourteenth
Amendment of the U.S. Constitution, Article I, Section 7 of the California Constitution, and the
laws of the State of California.” FAC ¶ 43. Plaintiff’s third cause of action, alleging a failure to
intervene to prevent a civil rights violation, “is brought pursuant to the Fourteenth Amendment
of the U.S. Constitution, Article I, Section 7 of the California Constitution, and the laws of the
State of California.” Id. ¶ 53.

Plaintiff’s fourth cause of action alleges a conspiracy “for the

purpose of depriving Plaintiff of due process of law guaranteed by the Constitution of the United
States of America, Article I, Section 7 of the California Constitution, and the laws of the State of

4

California.” Id. ¶ 64.
The Court would reject Plaintiff’s argument that the FAC does not raise a substantial
federal question as it explicitly alleges three causes of action for violations of her right to due
process guaranteed by the United States Constitution. “Generally, [a] defendant has the right to
invoke federal removal jurisdiction if the case could have been filed originally in federal court
(i.e. on diversity or federal question grounds).” Federal Practice Guide § 2:2192. The FAC,
alleging causes of action arising under the Constitution of the United States obviously brings to
mind 42 U.S.C. § 1983 and as such could have been brought in federal court.4 Plaintiff’s
argument that the FAC additionally alleges causes of action relating to violations of the
California Constitution and unspecified “laws of the State of California” is of no consequence
here to the Court’s determination of its federal question jurisdiction as those causes of action all
arise from the same common nucleus of operative facts. See Reply in Supp. of MTR, Docket
No. 17, at 2 (“That the Fourteenth Amendment to the U.S. Constitution provides Plaintiff with an
additional pillar on which to build her case against the Defendants, does not transform her case
into a federal one.”). To the extent that Plaintiff suggests that she need not have invoked federal
law and could have relied exclusively on state law causes of action, the Court will note only that
if true she failed to do so and squandered the opportunity to avoid federal jurisdiction. See
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (“plaintiff [is] the master of the claim; he
or she may avoid federal jurisdiction by exclusive reliance on state law.”).
Based on the foregoing, the Court would deny Plaintiff’s Motion to Remand.5
B. Motion to Dismiss
1. Negligent Hiring, Training, Supervision, Retention, and Entrustment

4

County Defendants treat Plaintiff’s Fourteenth Amendment claims as brought pursuant to 42 U.S.C. § 1983. See
MTD at 4 (“Plaintiff brings a 42 U.S.C. § 1983 claim for violation of her due process right under the Fourteenth
Amendment, and a parallel due process claim under Article I, Section 7 of the California Constitution.”); see also
Opp’n to MTR at 5. The FAC never specifically mentions 42 U.S.C. § 1983, however. The Court is aware of one
district court that remanded a case in which a Plaintiff bypassed 42 U.S.C. § 1983 to allege violations of the United
States and California Constitutions using California’s Bane Act, Cal. Civ. Code § 52.1. See Rodriguez v. City of
Fresno, Case No. 1:16-cv-268-LJO-SAB, 2016 WL 1138188, at *3 (E.D. Cal. Mar. 23, 2016). The FAC also never
specifically mentions the Bane Act, however, so in that regard Rodriguez is distinguishable. Furthermore, Plaintiff
does not reject County Defendants’ characterization of her claims as brought pursuant to 42 U.S.C. § 1983 in either
her MTR or Opp’n to MTD, leading the Court to conclude that for the purposes of the MTR, the Court should treat
Plaintiff’s FAC as an attempt to allege causes of action under 42 U.S.C. § 1983, notwithstanding Plaintiff’s failure
to invoke the statute directly by name.
5

Because the Court denies Plaintiff’s MTR, the Court will not consider her request for attorney’s fees and costs.
See MTR at 5.

5

On information and belief, Plaintiff alleges that LASD, McDonnell, Ortega, and Jensen:
were negligent in the hiring, retention, supervision, and training of
its employees including defendant Licona, in that Defendants
LASD, McDonnell, Ortega, [and] Jensen . . . failed to provide
adequate training to their employees, including defendant Lincona,
and knew or should have known that their employees, including
defendant Lincona, was not fit for the specific tasks to be
performed during the course of his employment, namely the
careful, reasonable, prudent, safe, and lawful manner in which to
discharge his duties. This included the proper investigation of
claims of physical abuse, and the lawful means to evict a tenant
from a property.
FAC ¶ 39. County Defendants describe Plaintiff’s allegation as “a formulaic recitation of the
elements of a negligent hiring, training, supervision, and retention claim.” MTD at 3. Plaintiff
responds that the cause of action is not merely a recitation of conclusory allegations because
Plaintiff incorporated the facts described in the FAC into the first cause of action.

See

Opposition to MTD (“Opp’n to MTD”), Docket No. 15, at 3. Plaintiff directs the Court to
paragraphs 17-32 of the FAC, but none of those paragraphs make any mention whatsoever of
Licona’s hiring, training, supervision, or retention. Rather, to the extent that LASD, McDonnell,
Ortega, and Jensen are implicated at all, Plaintiff asserts that they did not adequately respond to
her complaints about Licona after he allegedly evicted her in violation of law. See also id. at 4
(“after Plaintiff notified the Sheriff’s Norwalk station and complained to Licona’s superiors of
Licona’s actions, the Los Angeles Sheriff’s Department did not restore Plaintiff to her home. No
one from the Sheriff’s Department called Plaintiff to let her know that she could go back to her
home, or that she would not be arrested if she did, or otherwise attempt to rectify the wrong
perpetrated by Licona.”). To state a cause of action for negligent hiring, supervision, retention,
or entrustment, a plaintiff must allege facts to show that defendants were on notice that the
employee was likely to cause harm before the harm occurs. See Phillips v. TLC Plumbing, Inc.
172 Cal. App. 4th 1133, 1139-40 (2009). As such, Plaintiff’s causes of action cannot be
supported by information brought to the County Defendants’ attention by Plaintiff after Licona
allegedly harmed her. Plaintiff has thus failed to plead sufficient facts to support the first cause
of action in as much as it alleges negligent hiring, supervision, retention, or entrustment.
With regard to Plaintiff’s claim for negligent training, Plaintiff argues that “Licona
should have been trained on the proper discharge of his functions, including when and how to
enforce unlawful detainer orders. That Licona performed an eviction without following the
6

proper procedure as prescribed by California law would support a reasonable inference that he
was not properly trained. In turn, this supports the reasonable inference that Licona’s superiors
may have been negligent in adequately training and/or supervising Licona.” Opp’n to MTD at 34. At best, Plaintiff’s allegations would permit the Court to infer no more than the mere
possibility of misconduct. Accordingly, the FAC “has alleged – but it has not show[n] . . . the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679. On that basis the Court would dismiss the
first cause of action for negligent training. Because the Court would dismiss the first cause of
action based on Plaintiff’s failure to allege sufficient facts, the Court would permit leave to
amend. See Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so
requires.”).
2. Violation of Plaintiff’s Right to Due Process
As a threshold matter, Plaintiff alleges in this cause of action that LASD, McDonnell,
Ortega, and Jensen “are vicariously liable for the act of defendant Licona committed during the
course and scope of his employment.”

FAC ¶ 46.

With regard to Plaintiff’s Fourteen

Amendment allegations, supervisors may not be held vicariously liable for constitutional
violations committed by subordinates. See Monell v. Dept. of Soc. Servs., 436 U.S. 658, 691
(1978).

To the extent that Plaintiff’s Fourteen Amendment allegations against County

Defendants are premised on such a theory, Plaintiff’s claim is dismissed without leave to amend
as it fails as a matter of law.6
Additionally, the Court notes that Plaintiff seeks only money damages in this suit. See
FAC, Docket No. 1 at 25-26 of 66. The California Supreme Court has found that Article I,
Section 7 of the California Constitution does not provide an action for damages. See Katzberg v.
Regents of University of California, 29 Cal. 4th 300, 317 (2002); see also Roy v. Cty. of Los
Angeles, 114 F. Supp. 3d 1030, 1041 (C.D. Cal. 2015) (relying on Katzberg to dismiss plaintiffs’
Article I, Section 7 claim for damages for alleged violations of due process rights). Katzberg is
controlling and dispositive of Plaintiff’s claims to the extent Plaintiff seeks damages for
violations of her due process rights under the California Constitution.7 As such, those claims are

6
Plaintiff additionally alleges that “Licona . . . as [a] supervisor[] and employer[] of defendant Licona [is]
vicariously liable for the acts of defendant Licona.” FAC ¶ 46. Obviously, Licona may not be held vicariously
liable for his own acts. As such, that claim is similarly dismissed without leave to amend.
7

Plaintiff argues in conclusory fashion in the context of the Motion to Remand that Katzberg does not foreclose all
actions for damages under the California Constitution. See Reply in Supp. of MTR, Docket No. 17, at 2 (“Because

7

dismissed without leave to amend as Plaintiff has failed to state a cognizable legal theory for
damages.8 See Twombly, 550 U.S. at 555.
Having dispatched with Plaintiff’s claims for vicarious liability and money damages
pursuant to Article I, Section 7 of the California Constitution, the Court would turn to Plaintiff’s
claim that Licona violated her Fourteenth Amendment right to due process. With regard to this
claim, County Defendants contend that it fails as a matter of law because the Supreme Court has
found that the Fourteenth Amendment is not offended by an alleged deprivation of property
where the state has provided a meaningful postdeprivation remedy. See MTD at 4 (citing
Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“an unauthorized intentional deprivation of
property by a state employee does not constitute a violation of the procedural requirements of the
Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for
the loss is available.”)). In further support of this argument, County Defendants direct the Court
to Barnett v. Centoni, where the Ninth Circuit found that Cal. Gov’t Code §§ 810-95 provides an
adequate postdeprivation remedy and thus a prisoner could not state a claim for deprivation of
property without due process. 31 F.3d 813, 816-17 (9th Cir. 1994). Plaintiff responds that those
cases are inapplicable because the thrust of her claim is that Licona acted in such a way as to
prevent her from exercising her predeprivation rights under California’s unlawful detainer
statutes. See Opp’n to MTD at 5 (“Landlords wanting to evict tenants have to adhere strictly to
the statutes that provide for notice, etc. Licona had to let the process run its course before he
forcefully removed Plaintiff from her home.”). While very unartfully stated, Plaintiff’s second
cause of action alleges that Licona abused his position as a Los Angeles County Deputy Sheriff
to effectuate an extrajudicial eviction of Plaintiff from her home because of animus towards her
stemming from the fact that he repeatedly was called to the home to respond to allegations of
domestic violence. For the reasons set forth below, the Court would find that the facts pleaded

this is a motion to remand, engaging in the Katzberg analysis in this matter is unnecessary. Plaintiff, however, is not
foreclosed from making a claim for damages under the California Constitution. The strengths or weaknesses of
Plaintiff’s claims are not the subject of this motion and thus, are not discussed here.”). The Court would disagree
that Katzberg does not foreclose money damages in this case and Plaintiff’s failure to adequately argue certainly
does not sway the Court otherwise.
8
County Defendants argue in the alternative that Cal. Gov’t Code §§ 815.2(b), 820.8, and 821.6, provide immunity
for Plaintiff’s California Constitution claims. See MTD at 6-7. Because the Court would dismiss without leave to
amend, the Court need not address this alternative argument in any detail but will note that immunity under those
provisions of the California Government Code would likely require the resolution of some factual matters and thus
would not be appropriate at this stage of the proceedings. See, e.g., Cal. Gov’t Code § 821.6 (providing immunity
only for acts done within the scope of employment).

8

by Plaintiff are inadequate to support this legal theory. But the Court would not find that it fails
as a matter of law such that Plaintiff could not plead a 42 U.S.C. § 1983 cause of action based on
the misconduct she alleges was committed by Licona. See, e.g., Benigni v. City of Hemet, 879
F.2d 473, 478 (9th Cir. 1988) (evidence that officers’ excessive and unreasonable conduct
intentionally directed toward plaintiff to force his business to close was adequate to establish due
process claim).
Turning now to the FAC’s factual allegations, the Court would find inadequate facts to
support Plaintiff’s cause of action. Plaintiff argues that Licona deprived her of her property
interest in her home by “hijack[ing] the unlawful detainer process by evicting Plaintiff without a
court order.” Opp’n to MTD at 5. That is, Plaintiff alleges that by serving Plaintiff with an
emergency protective order and ordering her to stay away from the residence or face arrest,
Licona “evicted” Plaintiff. Under California’s Domestic Violence Prevention Act (“DVPA”),9 a
judicial officer may issue an ex parte emergency protective order “where a law enforcement
officer asserts reasonable grounds to believe that a person is in immediate and present danger of
domestic violence, based on the person’s allegation of a recent incident of abuse or threat of
abuse by the person against whom the order is sought.” Cal. Fam. Code § 6250(a). Consistent
with the exigencies with which these orders are sought and obtained, the DVPA mandates that
“[t]he presiding judge of the superior court in each county shall designate at least one judge,
commissioner, or referee to be reasonably available to issue orally, by telephone or otherwise,
emergency protective orders at all times whether or not the court is in session.” Cal. Fam. Code
§ 6241. These orders are not permanent and in no case may last for more than one week. See
Cal. Fam. Code § 6256. The DVPA provides specific civil immunity to officers that enforce an
emergency protective order ˗ “a law enforcement officer who acts in good faith to enforce an
emergency protective order is not civilly or criminally liable.” Cal. Fam. Code § 6272(a)
(emphasis added).
Plaintiff alleges that Licona violated her due process rights by providing her an
emergency protective order that was “invalid as a matter of law” because it was unsigned. See
Opp’n to MTD at 7; see also FAC ¶ 25 (“Plaintiff did not see any signature of a judicial officer
on the Protective Order.”). Given that the DVPA specifically permits the issuance of an oral

9

The stated purpose of the DVPA is “to prevent acts of domestic violence, abuse, and sexual abuse and to provide
for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to
seek a resolution of the causes of the violence.” See Cal. Fam. Code § 6220. 

9

protective order ˗ and moreover requires every superior court in the state to have a process in
place to issue such an oral order ˗ the fact that the order allegedly provided to Plaintiff did not
have a signature would not, in and of itself, make it invalid as a matter of law. See Cal. Fam.
Code § 6241. Furthermore by statute an emergency protective order cannot be permanent and in
no case may last for more than one week. See Cal. Fam. Code § 6256. Yet Plaintiff seems to
allege that the emergency protective order issued to her caused her to be permanently removed
from her home. If Plaintiff’s cause of action is as the Court infers, additional factual delineation
would be necessary in her pleading to state a cognizable claim. See Twombly, 550 U.S. at 555.
The Court would thus dismiss Plaintiff’s second cause of action in as much as it attempts to
allege a violation of the Fourteenth Amendment of the United States Constitution, but would
permit leave to amend.
3. Alleged Failure to Intervene
Plaintiff’s third cause of action alleges that McDonnell, Jensen, and Ortega failed to
“intervene and prevent” Licona’s violation of Plaintiff’s due process rights. FAC ¶ 55. As stated
above, Plaintiff has failed to adequately plead that Licona did, in fact, violate her due process
rights. As such, her allegation of a failure to intervene must necessarily fail as well. The Court
would thus dismiss the third cause of action with leave to amend.
The Court would additionally note that Plaintiff has alleged no facts to suggest that
McDonnell, Jensen, or Ortega was aware of the alleged unlawful eviction in advance or at the
time it occurred. To the extent that Plaintiff would allege that those defendants ought to have
prevented the eviction, Plaintiff’s FAC fails to plead adequate facts to support that theory.
Finally, Plaintiff contends that OCC and Wickham “failed to adequately conduct an investigation
of the egregious acts committed by the other defendants.” Id. ¶ 57. Yet Plaintiff has pleaded no
facts to suggest that either the OCC or Wickham were aware of alleged unlawful eviction or
otherwise had some duty to investigate.
4. Conspiracy to Violate Due Process Rights
In her fourth cause of action, Plaintiff alleges that Licona and Ybarra conspired to violate
her right to due process. As Plaintiff has failed to adequately plead a violation of her due process
rights, the Court would dismiss this cause action as well.

However, Plaintiff’s factual

allegations, or lackthereof, warrant brief discussion. Plaintiff alleges that Licona and Ybarra:
expressly and impliedly agreed that they would unlawfully evict

10

Plaintiff from her residence, fabricate the reasons for the
emergency protective order, and Licona, using his title as deputy
sheriff would enforce the bogus unsigned emergency protective
order to prevent Plaintiff from re-entering her residence and arrest
Plaintiff as she tried to enter. All of this was done for the
malicious and unlawful purpose of violating Plaintiff’s civil rights
and of unlawfully inflicting punishment on Plaintiff. Furthermore,
said defendants expressly and impliedly agreed that they would
offer false accounts of the incident, knowing that disclosing the
actual reasons for Plaintiff’s unlawful removal of her residence
would have resulted in the disciplining of defendant Licona.
FAC ¶ 63. Plaintiff pleads one fact that she contends supports the existence of this conspiracy ˗
“Ybarra informed Plaintiff that defendant Licona knew his son.” Id. ¶ 28. From that, Plaintiff
concludes “defendant Licona knew defendant Ybarra’s son so they had an existing relationship
outside the facts described herein. In other words, defendant Licona was an interested party
because of his prior existing relationship with defendant Ybarra’s family.” Id. ¶ 64.
The Court’s most generous reading of the facts alleged in the FAC would suggest
nothing more than “the mere possibility of misconduct” and as such Plaintiff has not shown she
is entitled to relief. See Iqbal, 556 U.S. at 679. Plaintiff argues that the claim should not be
dismissed because defendants Licona and Ybarra “are in better position to disclose the facts
regarding the actual planning and mechanics of the conspiracy.” Opp’n to MTD at 8. Plaintiff
suggests that the Court should permit the matter to proceed as “[d]iscovery will provide the
evidence, or lack thereof, to support this claim.” Id. To ignore Plaintiff’s utter failure to plead
facts to support the existence of a conspiracy and instead permit the matter to proceed on a
fishing expedition in search of facts to support the cause of action would fly in the face of Rule
12(b)(6) and the Supreme Court’s holdings in Iqbal and Twombly. The Court would dismiss
with leave to amend, but will caution Plaintiff that it will expect factual support greater than
“Licona knew defendant Ybarra’s son” before it would find the conspiracy claim to be wellpleaded.
IV. Conclusion
Based on the foregoing discussion, the Court would deny the Motion to Remand. The
Court would grant the Motion to Dismiss and permit Plaintiff leave to amend consistent with the
Court’s analysis herein.

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