Susan Dominguez v. County of Los Angeles

Filing 28

ORDER GRANTING DEFENDANTS LOS ANGELES COUNTY SHERIFF'S DEPARTMENT AND DEPUTY JEREMY LICONA'S MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6) ORDER by Judge George H. Wu. IT IS HEREBY ORDERED that the Court GRANTS defendants LOS ANGELES COUNTY SHERIFF'S DEPARTMENT and JEREMY LICONA's Motion to Dismiss Plaintiff's Second Amended Complaint, alleging claims for 42 U.S.C. § 1983 and Negligence against County Defendants, in its entirety without leave to amend, and dismisses the case against the County Defendants with prejudice. The remaining two causes of action for Battery and Construction Eviction against defendant DANIEL YBARRA are remanded back to state court. IT IS SO ORDERED. Case remanded to Superior Court of California Los Angeles County, Case number BC677571. Case Terminated. Made JS-6 (lom)

JS-6
REMAND

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

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15 SUSAN DOMINGUEZ,
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v.

Plaintiff,

LOS ANGELES COUNTY
18 CALIFORNIA SHERIFF
DEPARTMENT; JIM MCDONNELL
19 in his official capacity as head of the
Sheriff Department; LOS ANGELES
20 COUNTY SHERIFF DEPUTY HANK
ORTEGA in his official capacity; LOS
21 ANGELES COUNTY SHERIFF
DEPUTY CURTIS A JENSON in his
22 official capacity; LOS ANGELES
COUNTY SHERIFF DEPUTY
23 LINCONA also known by I.D. No
60666 in his official capacity; LOS
24 ANGELES COUNTY COUNCIL;
MARK C. WICKHAM in his official
25 capacity as head of Los Angeles County
Counsels offices; DANIEL YBARRA
26 as an individual Defendant; and DOES
1-30, Inclusive,
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Defendants.
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CASE NO. CV 18-371-GW(AGRx)
[Assigned to Hon. George H. Wu,
Courtroom “9D”]
ORDER GRANTING
DEFENDANTS LOS ANGELES
COUNTY SHERIFF’S
DEPARTMENT AND DEPUTY
JEREMY LICONA’S MOTION TO
DISMISS PURSUANT TO
FEDERAL RULE OF CIVIL
PROCEDURE 12(B)(6)
Date: May 3, 2018
Time: 8:30 a.m.
Crtrm.: “9D”

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1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN:
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On May 3, 2018 at 8:30 a.m. in Courtroom “9D” of the above-entitled court,

3 this

Court

heard

defendants

LOS

ANGELES

COUNTY

SHERIFF’S

4 DEPARTMENT and DEPUTY JEREMY LICONA’s (collectively “County
5 Defendants”) Motion to Dismiss Plaintiff’s Second Amended Complaint, alleging
6 claims for 42 U.S.C. § 1983 and Negligence against County Defendants, pursuant to
7 Federal Rule of Civil Procedure, Rule 12(b)(6). All appearances are noted on the
8 record.
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After full consideration of the points and authorities submitted by the parties,

10 and oral arguments of counsel, the Court adopted the attached tentative ruling and
11 granted the County Defendants’ Motion without leave to amend, and remanded the
12 remaining two causes of action for Battery and Construction Eviction against
13 defendant DANIEL YBARRA back to state court.
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THEREFORE, IT IS HEREBY ORDERED that the Court GRANTS

16 defendants LOS ANGELES COUNTY SHERIFF’S DEPARTMENT and JEREMY
17 LICONA’s Motion to Dismiss Plaintiff’s Second Amended Complaint, alleging
18 claims for 42 U.S.C. § 1983 and Negligence against County Defendants, in its
19 entirety without leave to amend, and dismisses the case against the County
20 Defendants with prejudice. The remaining two causes of action for Battery and
21 Construction Eviction against defendant DANIEL YBARRA are remanded back to
22 state court.
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IT IS SO ORDERED.

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25 DATED: May 16, 2018
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GEORGE H. WU, U.S. District Judge
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Susan Dominguez v. LA Cty. Sheriff’s Dept., et al.; Case No. 2:18-cv-371-GW-(AGRx)
Tentative Ruling on Motion to Dismiss

I. Background
Plaintiff Susan Dominguez brings this action against Defendants: 1) Los Angeles County
Sherriff’s Department (“LACSD”), 2) Jeremy Licona, a LACSD Deputy Sherriff, and 3) Daniel
Ybarra.1 See generally Second Amended Complaint (“SAC”), Docket No. 20. Plaintiff raises
four causes of action: 1) a due process violation pursuant to 42 U.S.C. § 1983, 2) negligence,
3) battery, and 4) constructive eviction. See id. The Court previously dismissed Plaintiff’s First
Amended Complaint upon Defendants’ motion.

See generally Civil Minutes (“Dismissal

Order”), Docket No. 19. 2
Plaintiff pleads the following relevant facts:
Plaintiff resided at a property owned by Ybarra with whom she also “maintained a
relationship in cohabitation.” SAC ¶ 11. In or about November 2016, Plaintiff’s relationship
with Ybarra began deteriorating. Id. ¶ 12. Ybarra took action to make Plaintiff uncomfortable,
including removing locks, playing loud music, and turning off the water. Id. On or about
December 31, 2016, Ybarra physically assaulted Plaintiff, causing her physical injury. Id. ¶ 13.
Plaintiff followed Ybarra outside the residence after this assault and “a man whom Plaintiff did
not know handed Plaintiff eviction papers.” Id. LACSD Deputy Sheriffs, including Licona, then
came to the residence. Id. ¶ 14. Licona had been to the residence on at least three prior
occasions in 2016, but none of those visits involved allegations of physical violence or abuse.
Id. ¶ 24. On the last of these visits, Licona asked Plaintiff why she didn’t leave and stated that
he “can’t be coming out here.” Id.
Upon arriving at the residence on December 31, 2016, the LACSD Deputy Sheriffs
placed Ybarra in the back of a police vehicle and Plaintiff was told that Ybarra would be
arrested. Id. ¶ 25. Ybarra was not arrested, however. Id. Plaintiff was offered medical care but
refused and left the residence. Id. Plaintiff returned the following day to discover that the locks

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

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In so doing the Court dismissed defendants Jim McDonnell, the Los Angeles County Sherriff; Hank Ortega, a
LACSD Deputy Sherriff; Curtis Jensen, a LACSD Deputy Sherriff; the Los Angeles Office of the County Counsel;
and Mary Wickham, the Los Angeles County Counsel (wrongfully sued as Mark Wickham).

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had been changed. Id. ¶ 16. Plaintiff contacted the LACSD and was told that it would take no
action because Ybarra was not home. Id. On or about January 2, 2017, Plaintiff returned to the
residence and Ybarra threatened her with a metal pipe. Id. ¶ 17. LACSD Deputy Sheriffs,
including Licona, arrived shortly thereafter and ordered Plaintiff to leave and stay away from the
residence or she would be arrested. Id. ¶ 18. Plaintiff told the LACSD Deputy Sheriffs that she
was injured due to a work-related injury and needed to retrieve medications from the residence.
Id. ¶ 19. She was given five minutes to do so but, when she entered the residence escorted by
one of the officers, she was unable to find the medications because all of her belongings had
been “packed into plastic bags.” Id. Plaintiff was unaware that her belongings had been packed
into plastic bags until she entered the residence. Id. Plaintiff complained that she would need
more time to retrieve her medications but the LACSD Deputy Sheriffs yelled at her and ordered
her to leave. Id. At that point Licona handed Plaintiff an Emergency Protective Order (“EPO”).
Id. ¶ 20. Plaintiff asked Licona why she was being ordered to leave if no eviction order had been
issued and Licona responded by instructing Plaintiff that she would be arrested if she did not
leave. Id. The EPO was premised on Ybarra’s allegation that “Plaintiff was associated with or
had ties with the motorcycle gang known as the ‘Mongols’ and that [Ybarra] feared for his life”
as a result. Id. ¶ 21. Plaintiff denies that she “threatened Ybarra with the Mongols.” Id. ¶ 22.
Plaintiff and Ybarra both “knew people who were affiliated with that group” and Ybarra rode his
motorcycle with at least one person affiliated with the Mongols. Id.
At some time after January 2, 2017, Plaintiff arranged with Ybarra for her to retrieve her
belongings. Id. ¶ 23. When she arrived to do so, Ybarra refused to allow the movers Plaintiff
hired to enter the property. Id. Licona again came to the property but “did not do anything to
permit the movers to move Plaintiff’s belongings.” Id. Plaintiff contacted a LACSD Watch
Commander and Licona then intervened and spoke with Ybarra. Id. Ybarra moved Plaintiff’s
belongings to the street and from there the movers loaded her belongings onto a truck. Id.
LACSD and Licona move to dismiss the SAC. See generally Motion to Dismiss SAC
(“Motion”), Docket No. 21. On April 19, 2018, Plaintiff filed her opposition to the Motion, a
week after it was due. See generally Opposition to Motion (“Opp’n”), Docket No. 24; see also
C.D. Cal. Local Rule 7-9 (requiring a written opposition be filed “not later than twenty-one days
before the date designated for the hearing of the motion”). The Court may treat Plaintiff’s failure
to timely file as consent to the granting of the Motion. See C.D. Cal. Local Rule 7-12. The

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Court would grant the Motion on that basis alone but will nonetheless consider the merits of the
Motion, and the arguments Plaintiff advances in her late-filed opposition.
II. Legal Standards
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 may 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
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.; 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. First Cause of Action: 42 U.S.C. § 1983
In her first cause of action, Plaintiff alleges that Licona violated her constitutional right to
due process by denying her “free access to her home and free access and use of her personal
belongings without unjustified interference.” SAC ¶ 29. The claim is predicated on Licona’s

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“issuance” of the EPO, which Plaintiff describes as a “de facto eviction.” Id. ¶ 30.

Plaintiff

cites the California Domestic Violence Prevention Act (“DVPA”), Cal. Family Code §§ 6200, et
seq., and states that Licona did not have reasonable grounds pursuant to the statute to seek an
EPO because Ybarra’s allegation that Plaintiff was associated with or had ties to the Mongols
which caused Ybarra to report that he feared for his life

did not provide justification.3 See id.

¶¶ 33-34.
Plaintiff’s allegations (in regards to Ybarra’s report being inadequate for Licona to seek
an EPO) are insufficient. Cal. Family Code § 6220 states “The 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.”).

Here, Plaintiff’s SAC operates under the

misapprehension that a policeman (such as Licona) issues the EPO (see e.g. SAC at ¶¶ 32-33)
when, in fact and as a matter of law, EPO’s are issued by a judge after a presentation by a law
enforcement officer. See footnote 3, supra. Also, while Plaintiff contends that Licona did not
have reasonable grounds to believe that Ybarra was in any immediate and present danger of
abuse, Plaintiff in the SAC concedes that: (1) Ybarra did make certain statements to Licona
regarding his fear for his own safety, and (2) Licona took those statements on the face value. Id.
¶¶ 34-35.

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The DVPA provides for the issuance of EPOs on an emergency ex parte basis. See generally Cal. Fam. Code §
6250. Where domestic violence is suspected, an EPO may issue only at the request of a “law enforcement officer”
(as defined by Cal. Fam. Code § 6240(b)) who asserts “reasonable grounds” to believe a person is in “immediate and
present danger of domestic violence.” See Cal. Fam. Code § 6250(a). “Upon responding to a situation where there
may be grounds for an [EPO], the officer must inform the person for whom the order may be sought . . . that he or
she may ask the officer to request the [EPO].” Hogoboom & King, Cal. Prac. Guide: Family Law (The Rutter
Group 2017) § 5:261 at 5-138 (citing Cal. Fam. Code § 6275(a)). “An officer shall request an [EPO] if the officer
believes that the person requesting an [EPO] is in immediate and present danger.” Cal. Fam. Code § 6275(b)
(emphasis added). The officer requests an EPO from a judicial officer. See Cal. Fam. Code § 6250. An EPO will
only be issued if the judicial officer finds: 1) that reasonable grounds have been asserted to believe that an
immediate and present danger of domestic violence exists; and 2) that the EPO is necessary to prevent the
occurrence or reoccurrence of domestic violence. See Cal. Fam. Code § 6251. While an officer may apply for an
EPO orally, including over the telephone, a law enforcement officer who requests an EPO “shall reduce the order to
writing and sign it.” See Cal. Fam. Code § 6270. The written EPO must include a statement of the grounds asserted
for its issuance, the date and time it expires, the address of the superior court for the district or county in which the
endangered person resides, and specific statutory warnings to both the endangered person and the restrained person,
printed in both English and Spanish. See Cal. Fam. Code § 6253. Once reduced to writing, the officer must serve a
copy of the application and the EPO on the restrained person, give a copy of the EPO to the protected person, and
file a copy of the EPO with the issuing court. See Cal. Fam. Code § 6271. “A law enforcement officer shall use
every reasonable means to enforce an [EPO].” See Cal. Fam. Code § 6272(a). “A law enforcement officer who acts
in good faith to enforce an [EPO] is not civilly or criminally liable.” See Cal. Fam. Code § 6272(b).

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Additionally, even if the Court accepts that Licona lacked sufficient credible information
to initiate the EPO action, Plaintiff’s cause of action as alleged fails as a matter of law. Pursuant
to Cal. Family Code § 6250, “a judicial officer” may issue an EPO “where a law enforcement
officer asserts reasonable grounds” in accordance with the statute. In other words, the law
enforcement officer doesn’t himself issue the EPO but instead applies to a judicial officer who
independently evaluates the officer’s presentation and decides whether to issue the EPO. See id.
The Ninth Circuit has held that in Section 1983 cases “a judicial officer’s exercise of
independent judgment in the course of his official duties is a superseding cause that breaks the
chain of causation linking law enforcement personnel to the officer’s decision.” Galen v. Cty. of
Los Angeles, 477 F.3d 652, 663 (9th Cir. 2007). In that case, officers were held to be entitled to
summary judgment because the plaintiff could not show that the officers “deliberately or
recklessly misled” the judicial officer who set plaintiff’s one million dollars bail. Id. at 664.
Here, Plaintiff does not allege that Licona misled the judicial officer that issued the EPO.
To the contrary, Plaintiff argues that “Licona’s decision to inform the judicial officer that Ybarra
told him that plaintiff was associated with the Mongol motorcycle gang was not objectively
reasonable because there was no threat. Simply knowing a member or members of a group, e.g.
Mongols, cannot possibly be considered reasonable grounds to believe that there is immediate
and present danger of domestic violence.” Opp’n at 6 (emphasis in original). Put differently,
Plaintiff alleges that Licona should not have sought the EPO from a judicial officer. But the
Ninth Circuit is clear that even if so, the judicial officer’s independent judgment in that situation
absolves Licona of liability absent an allegation that Licona misled the judicial officer. See
Galen, 477 F.3d at 663. Plaintiff has made no such allegation (in fact, she has averred entirely
differently) and, as a result, her first cause of action fails.
B. Second Cause of Action: Negligence
In her second cause of action, Plaintiff alleges that Licona was negligent in seeking the
EPO. See SAC ¶¶ 41-46. Licona moves to dismiss, arguing that he is immune pursuant to Cal.
Government Code § 821.6 and, alternatively, Cal. Family Code § 6272. Cal. Government Code
§ 821.6 provides that “[a] public employee is not liable for injury caused by his instituting or
prosecuting any judicial or administrative proceeding within the scope of his employment, even
if he acts maliciously and without probable cause.” Plaintiff argues that “[t]he ‘prosecutorial’
immunity under Government Code § 821.6 does not apply because it is limited to malicious

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prosecution claims.” Opp’n at 6. California courts have held precisely the opposite: “[S]ection
821.6 is not limited to only malicious prosecution actions.” Jenkins v. Cty. of Orange, 212 Cal.
App. 3d 278, 283 (1989); see also Martinez v. City of Los Angeles, 141 F.3d 1373, 1382 (9th Cir.
1998) (“The same immunity which protects the officers from malicious prosecution protects
them from liability for a negligent investigation which leads to an arrest.”). In Jenkins, the
plaintiff alleged that social workers had failed to use due care by not thoroughly investigating a
report of suspected child abuse, by failing and refusing to weigh and present all the evidence, and
by misrepresenting evidence to the juvenile court in a dependency proceeding. 212 Cal. App. 3d
at 282. Even though the social workers’ actions resulted in a young child’s removal from his
mother’s home, the court nonetheless found them absolutely immune pursuant to Cal.
Government Code § 821.6 because investigating child abuse was within the scope of their
employment. Id. at 284. The claims here are analogous to those presented in Jenkins

Plaintiff

alleges that Licona breached his duties to investigate the allegations made by [Ybarra], to only
seek an EPO upon reasonable grounds, and to enforce the EPO in good faith. See SAC ¶ 42.
But even if Licona did not exercise reasonable care in his investigation of Ybarra’s claims that
Plaintiff was gang-affiliated, Cal. Government Code § 821.6 provides Licona with immunity
from Plaintiff’s negligence cause of action. For that reason, Plaintiff’s second cause of action as
alleged fails and must be dismissed.
C. Liability of LASD
None of the SAC’s four causes of action are specifically alleged against the LACSD. In
her opposition to this Motion, however, Plaintiff asserts that LACSD is vicariously liable for
Licona’s negligence. See Opp’n at 7. Because the Court would dismiss the second cause of
action for negligence against Licona, the Court would find that Plaintiff also fails to state a claim
against LACSD.
D. Leave to Amend
As a general rule, leave to amend a dismissed complaint should be freely granted. See
Fed. R. Civ. P. 15(a). However, “[a] district court’s discretion to deny leave to amend is
‘particularly broad’ where the plaintiff has previously amended.” Salameh v. Tarsadia Hotel,
726 F.3d 1124, 1133 (9th Cir. 2013) (quoting Sisseton-Wahpeton Sioux Tribe v. United States,
90 F.3d 351, 355 (9th Cir. 1996)). The Court dismissed the FAC but permitted leave to amend
for Plaintiff to allege facts sufficient to show that Licona effectuated an extrajudicial eviction of

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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.” Dismissal
Order at 8. The Court concluded that if supported by factual allegations, that claim would not
fail as a matter of law. Id. at 9. In the SAC, Plaintiff states that “Licona merely took Ybarra’s
allegation at face value and issued the EPO because he did not want to keep coming back to the
Property.” SAC ¶ 35. Other than that, Plaintiff fails to make any allegation as to what may have
motivated Licona’s actions. The Court would thus find that Plaintiff has utterly failed to cure the
deficiencies it described in its previous Dismissal Order. As a result, the Court would find that
Plaintiff has squandered her opportunity to cure and thus would not permit another. The Court
would dismiss the first two causes of action without leave to amend.
E. Remaining Causes of Action Against Ybarra
Having dismissed the first two causes of action, the sole remaining causes of action are
for battery and constructive eviction against Ybarra.
predicated on the presentation of a Federal Question

The Court’s jurisdiction here was

Plaintiff’s Section 1983 claim

coupled

with exercise of supplemental jurisdiction over the additional causes of action. “When the
federal claim is dismissed early in the case, the federal court will be strongly inclined to dismiss
the state law claims without prejudice rather than retaining supplemental jurisdiction.”
O’Connell & Stevenson, Rutter Group Prac. Guide: Federal Civ. Proc. Before Trial § 2:921 at
2B-86 (2017). Given the fact that this litigation is in its infancy, the Court would find that no
compelling reason exists to continue to hear these state law claims between two California
citizens and thus would dismiss the remaining causes of action without prejudice.
IV. Conclusion
Based on the foregoing discussion, the Court would grant the Motion

dismissing the

first two causes of action without leave to amend. The Court would not exercise supplemental
over the remaining two causes of action and therefore dismisses them without prejudice, and
terminates this case.

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