Monique Hernandez et al v. City of Beaumont et al

Filing 50

ORDER GRANTING IN PART DEFENDANTS CITY OF BEAUMONT, CORPORAL FRANCISCO VELASQUEZ, JR. AND CHIEF FRANK COE'S MOTION TO DISMISS PORTIONS OF PLAINTIFFS' SECOND AMENDED COMPLAINT [DKT. NO 42] by Judge Dean D. Pregerson: The Court GRANTS the Motion in part and DENIES the Motion in part. Plaintiffs may amend their complaint to address the deficiencies identified in this Order. Any such amended complaint must be filed on or before March 7, 2014. (bp)

1
2

O

3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14

MONIQUE HERNANDEZ, JOSEPH
HERNANDEZ, OLIVIA HERNANDEZ,
GABRIELLE HERNANDEZ, JOANNA
HERNANDEZ, ALEXIS HERNANDEZ,
JOSEPH HERNANDEZ JR. AND
O.G., a minor by and through
her Guardian ad Litem OLIVIA
HERNANDEZ,

15
Plaintiffs,
16
v.
17
18
19
20

CITY OF BEAUMONT, OFFICER
ENOCH CLARK, CORPORAL
FRANCISCO VELASQUEZ, JR.,
CHIEF FRANK COE,
Defendants.
___________________________

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. EDCV 13-00967 DDP (DTBx)
ORDER GRANTING IN PART DEFENDANTS
CITY OF BEAUMONT, CORPORAL
FRANCISCO VELASQUEZ, JR., AND
CHIEF FRANK COE’S MOTION TO
DISMISS PORTIONS OF PLAINTIFFS’
SECOND AMENDED COMPLAINT
(DKT. NO. 42)

21
22

Presently before the Court is Defendants’ Motion to Dismiss

23

Portions of Plaintiffs’ Second Amended Complaint. For the reasons

24

stated in this order, the Motion is GRANTED IN PART.

25

I. Background

26

Plaintiff Monique Hernandez (“Monique”) brings this action,

27

along with many of her family members, against Defendants City of

28

Beaumont (“City”), Officer Enoch Clark (“Clark”), Corporal

1

Francisco Velasquez Jr. (“Velasquez”), Chief Frank Coe (“Coe”), and

2

Does 1-10 (collectively “Defendants”), alleging various rights

3

violations while Monique was detained by Clark and Velasquez.

4

Plaintiffs Joseph Hernandez Sr. (Monique’s father, “Joseph Sr.”),

5

Olivia Hernandez (Monique’s mother, “Olivia”), Gabrielle Hernandez

6

(Monique’s sister, “Gabrielle”), Joanna Hernandez (Monique’s

7

sister, “Joanna”), Alexis Hernandez (Monique’s sister, “Alexis”),

8

and Joseph Hernandez Jr. (Monique’s brother, “Joseph Jr.”)

9

(collectively “Family Plaintiffs”) witnessed the acts that are the

10

subject of this complaint and assert their own causes of actions

11

stemming from the incident. O.G. (Monique’s minor daughter) is also

12

a plaintiff in this action.

13

On February 21, 2012, Clark and Velasquez, Beaumont Police

14

Department (“BPD”) officers, detained Monique. (Second Amended

15

Complaint (“SAC”) ¶ 21.) Clark conducted multiple field sobriety

16

tests and attempted several times to conduct a breathalyzer test on

17

Monique. (Id. ¶¶ 23-24.) Plaintiffs allege that Monique cooperated

18

with Clark throughout these tests. (Id.) Clark then began to arrest

19

Monique by handcuffing her left hand and holding her right hand

20

behind her back while standing behind her and shoving her against

21

the hood of his police car. (Id. ¶ 25.) Clark gave multiple

22

commands to Monique to “stop resisting,” to which Monique allegedly

23

replied “I’m not resisting.” (Id. ¶ 27.) Plaintiffs allege that at

24

no time did Monique physically resist Clark’s efforts to handcuff

25

her or attempt to flee. (Id. ¶¶ 26, 28.)

26

Monique’s family members Joseph Sr., Olivia, Gabrielle,

27

Joanna, Alexis, and Joseph Jr. were nearby when these actions

28

occurred and voiced their concerns about Clark’s “heavy-handed
2

1

tactics,” but they allege that they fully cooperated with commands

2

to stay back. (Id. ¶ 30.) They allegedly became upset when Clark

3

shoved Monique onto the hood of the car and pleaded with Clark and

4

Velasquez to stop roughing her up, asked Velasquez to “help her,”

5

and yelled out “we are going to file a complaint.” (Id. ¶ 31.)

6

After Monique was handcuffed, Plaintiffs allege that Clark

7

shot his JPX pepper spray gun at Monique’s eye from less than ten

8

inches away. (Id. ¶ 32.) Plaintiffs allege that there was no

9

legitimate justification for the discharge of pepper spray, as

10

Monique was handcuffed and under complete control at the time and

11

her family members were calm. (Id. ¶¶ 32-33.)

12

Plaintiffs allege that Monique’s family members became

13

“extremely anxious, distraught, and terrified when they heard a

14

loud ‘pop,’ saw a ‘red flash’ and simultaneously heard Monique cry

15

out in pain and saw blood running down her face.” (Id. ¶ 33.) After

16

witnessing the shooting, the family expressed grave concern about

17

Monique’s well-being and tried to aid her, but were prevented from

18

doing so by Velasquez. (Id. ¶ 34.) Plaintiffs allege that Velasquez

19

“pulled out his baton at Monique’s family members in an

20

intimidating manner and in an attempt to silence their protests.”

21

(Id.)

22

Plaintiffs allege that Clark and Velasquez then placed Monique

23

in the back seat of a patrol car in handcuffs, despite the “obvious

24

and serious nature of her injury.” (Id. ¶ 38.) Monique’s “distress

25

was readily apparent”: she was bleeding from the nose and mouth,

26

moaning in pain, her eyes were swelling shut, and she was having

27

difficulty breathing. (Id.) She was left in the patrol car for

28

approximately ten minutes or longer unattended. (Id. ¶ 39.) Clark
3

1

and Velasquez allegedly failed to attempt to decontaminate

2

Monique’s eyes. (Id. ¶ 40.) Further, Velasquez allegedly refused to

3

allow Monique’s family members to aid her. (Id. ¶ 41.) Clark and

4

Velasquez allegedly told Monique’s family members that she was okay

5

and that she was being taken to jail. (Id. ¶ 42.) In fact, she was

6

taken to the hospital. (Id.) Plaintiffs allege that Clark and

7

Velasquez subsequently lied about the incident “in a desperate

8

attempt to cover up their misconduct.” (Id. ¶ 43.)

9

Monique’s injuries from the pepper spray gun were severe. (Id.

10

¶ 37.) The shot split her right eye in half and severely damaged

11

the optic nerve in her left eye, leaving her with no light

12

perception in either eye and a terrible prognosis, even after

13

surgery. (Id.) Monique also sustained a traumatic brain injury.

14

(Id.) Monique had previously been employed full-time but now can no

15

longer work and requires full-time care and ongoing medical and

16

psychological treatment. (Id. ¶ 44.)

17

Plaintiffs allege that a reasonably trained officer would know

18

that firing a JPX gun at a distance of less than five feet away,

19

especially at the eyes, will cause serious injury. (Id. ¶ 35.)

20

Plaintiffs further allege that Clark’s training on the JPX was

21

inadequate, consisting only of a one-time classroom presentation

22

followed by a written test, without any hands-on training

23

component. (Id. ¶ 36.) Plaintiffs further allege that Clark’s

24

written test responses indicated that he did not know that the JPX

25

cannot be deployed at the subject’s head area, evidencing the need

26

for further training. (Id.)

27
28

The Court previously granted in part Defendants’ motion to
dismiss Plaintiffs’ First Amended Complaint with leave to amend.
4

1

(Docket No. 34.) Plaintiffs allege twelve causes of action arising

2

out of this incident in their Second Amended Complaint: (1)

3

excessive force under 42 U.S.C. § 1983; (2) unreasonable search and

4

seizure - false arrest under 42 U.S.C. § 1983; (3) failure to

5

summon immediate medical care; (4) interference with familial

6

relationship under 42 U.S.C. § 1983; (5) municipal and supervisory

7

liability under 42 U.S.C. § 1983; (6) assault and battery; (7)

8

negligence; (8) violation of Bane Act; (9) intentional infliction

9

of emotional distress; (10) negligent training and supervision;

10

(11) false arrest/false imprisonment; and (12) negligence -

11

bystander. Defendants City, Coe, and Velasquez have filed this

12

Motion to dismiss some of Plaintiffs’ causes of action. (Docket No.

13

42.) Defendant Clark has answered the Second Amended Complaint and

14

does not join in the Motion. (Docket No. 43.)

15

II. Legal Standard

16

A complaint will survive a motion to dismiss when it contains

17

“sufficient factual matter, accepted as true, to state a claim to

18

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

19

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

20

570 (2007)). When considering a Rule 12(b)(6) motion, a court must

21

“accept as true all allegations of material fact and must construe

22

those facts in the light most favorable to the plaintiff.” Resnick

23

v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Although a complaint

24

need not include “detailed factual allegations,” it must offer

25

“more than an unadorned, the-defendant-unlawfully-harmed-me

26

accusation.” Iqbal, 556 U.S. at 678. Conclusory allegations or

27

allegations that are no more than a statement of a legal conclusion

28

“are not entitled to the assumption of truth.” Id. at 679. In other
5

1

words, a pleading that merely offers “labels and conclusions,” a

2

“formulaic recitation of the elements,” or “naked assertions” will

3

not be sufficient to state a claim upon which relief can be

4

granted. Id. at 678 (citations and internal quotation marks

5

omitted).

6

“When there are well-pleaded factual allegations, a court should

7

assume their veracity and then determine whether they plausibly

8

give rise to an entitlement of relief.” Id. at 679. Plaintiffs must

9

allege “plausible grounds to infer” that their claims rise “above

10

the speculative level.” Twombly, 550 U.S. at 555. “Determining

11

whether a complaint states a plausible claim for relief” is a

12

“context-specific task that requires the reviewing court to draw on

13

its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

14

III. Discussion

15

Defendants seek dismissal only as to some causes of action and

16

as to some Defendants. Therefore, the First, Second, Fourth, Sixth,

17

Ninth, Eleventh, and Twelfth Causes of Action, which are not

18

challenged by any Defendant, remain operative as filed.

19

A. Third Cause of Action: Failure to Summon Immediate Medical

20

Care

21

The third cause of action, for failure to summon prompt

22

medical care in violation of the Fourth Amendment, is asserted by

23

Monique against Clark and Velasquez. The sufficiency of the

24

pleadings is challenged only as to Velasquez.

25

The Ninth Circuit treats “the failure to provide adequate

26

medical care during and immediately following an arrest as a claim

27

properly brought under the Fourth Amendment and subject to the

28

Fourth Amendment’s objective reasonableness standard.” Von Haar v.
6

1

City of Mountain View, 2011 WL 782242, at *3 (N.D. Cal. 2011)

2

(citing Tatum v. City and County of San Francisco, 441 F.3d

3

1090(9th Cir. 2006)). In this context, “a police officer who

4

promptly summons the necessary medical assistance has acted

5

reasonably for purposes of the Fourth Amendment.” Tatum, 441 F.3d

6

at 1099; see also Maddox v. City of Los Angeles, 792 F.2d 1408,

7

1415 (9th Cir. 1986) (holding, in the context of prison detention,

8

that officers act reasonably when they “seek the necessary medical

9

attention for a detainee when he or she has been injured while

10

being apprehended by either promptly summoning the necessary

11

medical help or by taking the injured detainee to a hospital”).

12

Plaintiffs’ Second Amended Complaint has cured the

13

deficiencies that the Court identified in their First Amended

14

Complaint regarding the length of the delay in obtaining medical

15

care for Monique and the observable severity of her injuries.

16

Plaintiffs have added allegations that more clearly detail the

17

obvious severity of Monique’s injuries, including allegations that

18

there was “blood running down her face,” that she was “bleeding

19

from the nose and mouth,” “moaning in pain,” “her eyes were

20

swelling shut,” and “she was having difficulty breathing.” (SAC ¶¶

21

33, 38.) Further, Plaintiffs allege that Velasquez was “within

22

close proximity to Monique” and could therefore see her injuries

23

and hear her moans and complaints. (Id. ¶ 41.)

24

Plaintiffs allege that, after sustaining these injuries,

25

Monique sat in the patrol car unattended for at least ten minutes

26

before the officers drove her to the hospital. (Id. ¶ 40.) While

27

she waited, Plaintiffs allege that Clark and Velasquez “were

28

concocting a story to cover up their wrongdoing as they waited for
7

1

a Sergeant to arrive to the scene,” indicating that the officers

2

were not attempting to summon aid or conferring with regard to the

3

proper emergency treatment for Monique during that time. (Id. ¶

4

60.) These facts, coupled with the officers’ knowledge that Monique

5

had been shot at close range with a JPX pepper spray gun, are

6

sufficient to establish a plausible claim that it was clear to the

7

officers that Monique needed emergency medical attention as soon as

8

possible and that the officers failed to provide or obtain medical

9

care as promptly as was necessary under the circumstances.

10

Defendants argue that the SAC alleges only that the officers

11

did not “provide” or “obtain” medical care, but that the SAC is

12

deficient because it fails to allege that the officers also did not

13

promptly “request” medical care. However, given that Clark and

14

Velasquez ended up taking Monique to the hospital themselves after

15

at least ten minutes of delay, it is reasonable to infer that the

16

officers did not “summon” or “request” medical care promptly. If

17

medical care had been summoned, it is reasonable to assume that the

18

officers would have waited for medical care to arrive rather than

19

taking Monique to the hospital themselves. Plaintiffs have pled a

20

plausible claim for failure to summon prompt medical care.

21

Therefore, the Motion is DENIED as to the third cause of action.

22

B. Fifth Cause of Action: Municipal and Supervisory Liability

23

The fifth cause of action, for municipal and supervisory

24

liability, is asserted by Monique and O.G. against City, Coe, and

25

Does 1-10.

26
27
28

1. Municipal Liability
To state a claim for municipal liability against an entity
defendant, a plaintiff must allege that the entity itself caused
8

1

the violation through a constitutionally deficient policy, practice

2

or custom. Monell v. Dep’t of Social Services, 436 U.S. 658 (1978).

3

In light of Iqbal, bare allegations are no longer sufficient

4

to state a claim for municipal liability. Instead, a plaintiff must

5

identify the training or hiring practices and policies that she

6

alleges are deficient, explain how such policy or practice was

7

deficient, and explain how such a deficiency caused harm to the

8

plaintiff. Young v. City of Visalia, 687 F.Supp.2d 1141, 1149-50

9

(E.D. Cal. 2009). In other words, a plaintiff must allege “specific

10

facts giving rise to a plausible Monell claim” instead of

11

“formulaic recitations of the existence of unlawful policies,

12

customs, or habits.” Warner v. County of San Diego, 2011 WL 662993

13

(S.D. Cal. 2011).

14

Plaintiffs’ claims for municipal liability include: “(a) a

15

custom, policy, and practice of deploying pepper spray on compliant

16

subjects, and/or subjects who were passively noncompliant in

17

contravention of the Fourth Amendment and established law

18

prohibiting the use of pepper spray on this category of subjects;

19

(b) inadequate training to prohibit the deployment of a JPX gun on

20

a compliant subject ...; (c) failing to provide hands-on training

21

to BPD officers, including Clark, in the use of a JPX gun to ensure

22

proficiency in its use prior to allowing BPD officers to use it in

23

the field; (d) failing to prohibit deployment of a JPX gun on a

24

subject’s face and head area; (e) failing to prohibit the

25

deployment of a JPX gun at a distance of less than five feet; (f)

26

inadequate training regarding the injuries inflicted by a JPX gun

27

...; (g) inadequate training as to the decontamination process

28

after pepper spray is deployed on a subject; (h) failing to
9

1

institute appropriate policies, regarding constitutional procedures

2

and practices for the purchase, assignment, and use of JPX pepper

3

spray guns.” (SAC ¶ 76.)

4

Plaintiffs’ municipal liability claim can best be understood

5

as an inadequate training claim. In order to state a claim for

6

failure to train, a plaintiff must show: (1) a violation of a

7

constitutional right; (2) a training policy that “amounts to

8

deliberate indifference to the constitutional rights of the persons

9

with whom its police officers are likely to come into contact;” and

10

(3) the constitutional injury would have been avoided with proper

11

training. Young v. City of Visalia, 687 F. Supp. 2d 1141, 1148

12

(E.D. Cal. 2009) (citing Blankenhorn v. City of Orange, 485 F.3d

13

463, 484 (9th Cir. 2007)).

14

In order to show deliberate indifference in the failure to

15

train context, a “pattern of injuries” is “ordinarily necessary to

16

establish municipal culpability and causation.” Board of County

17

Com’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 409 (1997).

18

Municipal liability normally does not attach to a single incident.

19

“[A]dequately trained officers occasionally make mistakes; the

20

facts that they do so says little about the training program or the

21

legal basis for holding the city liable.” City of Canton, Ohio v.

22

Harris, 489 U.S. 378, 391 (1989). However, the Supreme Court has

23

left open the possibility that under limited circumstances, “in

24

light of the duties assigned to specific officers or employees the

25

need for more or different training is so obvious, and the

26

inadequacy so likely to result in the violation of constitutional

27

rights, that the policymakers of the city can reasonably be said to

28

have been deliberately indifferent to the need.” Id. at 390.
10

1
2

//
Plaintiffs clearly plead a violation of Monique’s Fourth

3

Amendment rights, satisfying the first requirement for their

4

failure to train claim. With regard to the deliberate indifference

5

requirement, Plaintiffs have cited no prior instances of

6

constitutional violations by BPD officers resulting from the use of

7

the JPX gun or similar devices, such as other pepper spray guns,

8

that would have put the City on notice that hands-on training in

9

the use of the JPX was necessary to avoid future constitutional

10

violations. As a result, Plaintiffs must premise their claim on the

11

narrow exception allowing a failure to train claim to proceed where

12

the need for additional training is “so obvious” that the failure

13

to provide that training amounts to deliberate indifference to the

14

rights of those that are likely to come into contact with the City

15

police.

16

The Court finds that the facts pled do not plausibly establish

17

that the need for additional training was “so obvious” that the

18

failure to provide it amounts to deliberate indifference by the

19

City. Training in the proper use of the JPX device was provided in

20

the form of a “one-time classroom presentation and a written test

21

following the presentation.” (SAC ¶ 79.) Though the City clearly

22

had “notice of the gravity of the injuries that can result from

23

improper use of the JPX” (id.), the City’s training program was not

24

obviously deficient for failing to provide hands-on training on the

25

JPX. It is not obvious that police officers would have to have

26

hands-on experience firing a JPX in order to know how to properly

27

use the device. Therefore, to the extent that Plaintiffs’ failure

28
11

1

to train claim rests on the failure to provide hands-on training,

2

the SAC fails to state a claim for municipal liability.

3

Plaintiffs also appear to claim that there were deficiencies

4

in the content of the training program, though they appear to

5

direct such allegations at Defendant Coe rather than the City.

6

Plaintiffs allege that “Defendants Coe and Does 1 to 4 implemented

7

a deficient training policy on the JPX by not ensuring that BPD

8

police officers, including Clark, were adequately trained on the

9

following: (1) the circumstances when a JPX gun can be deployed

10

without violating constitutional rights; (2) the resultant injuries

11

to a subject when a JPX gun is deployed at a distance of less than

12

five feet; (3) prohibition against deployment to head and face

13

area; and (4) the decontamination process after deployment of the

14

JPX.” (SAC ¶ 78.)

15

As currently pled, with regard to their municipal liability

16

claim, these allegations are insufficient. Plaintiffs merely assert

17

that the training program did not adequately “ensure” that Clark

18

and other officers had proper training in these respects. The Court

19

interprets this allegation to mean that the training program

20

contained at least some reference to basic information about using

21

the JPX properly, even if that information was not, in retrospect,

22

sufficiently retained by the officers. If such information was

23

communicated during the classroom training in a reasonably

24

understandable form, then Plaintiffs cannot show that the City was

25

“deliberately indifferent” to the need for more training, even if

26

the City did not ultimately “ensure” that Clark had retained the

27

necessary information. If, on the other hand, the training program

28

included essentially no instruction regarding the capabilities and
12

1

dangers of using the JPX device, or the constitutional implications

2

of such use, then Plaintiffs could potentially meet the obviousness

3

standard.1 However, as pled in the Second Amended Complaint,

4

Plaintiffs’ municipal liability claim for failure to train fails.

5

To the extent that Plaintiffs assert a municipal liability

6

claim based on a “custom, policy, or practice of deploying pepper

7

spray on compliant subjects,” “failing to prohibit deployment of a

8

JPX gun on a subject’s face and head area,” or “failing to prohibit

9

the deployment of a JPX gun at a distance of less than five feet,”

10

Plaintiffs provide no facts supporting these allegations. Without

11

any prior incidents to demonstrate a custom or practice of using

12

pepper spray improperly, Plaintiffs would have to rely on an actual

13

written policy. Plaintiffs cite to no such policy. As a result,

14

Plaintiffs’ allegations here are the kind of “threadbare” factual

15

pleadings that are insufficient to state a plausible claim.

16

Therefore, the Court GRANTS the Motion with respect to Plaintiffs’

17

municipal liability claim, with leave to amend to allege facts

18

regarding “obvious” deficiencies in the content of the classroom

19

training program.2

20

2. Supervisory Liability

21
22
1

23
24
25
26

Indeed, such a situation would be highly analogous to the
hypothetical presented in City of Canton, where the Supreme Court
explained that the narrow exception might apply where a police
department gave its officers guns to use when apprehending fleeing
felons, but failed to give the officers any instruction in the
constitutional limitations on the use of deadly force. 489 U.S. at
390 fn. 10.
2

27
28

Because the Court finds that Plaintiffs have pled
insufficient facts to state a claim for municipal liability,
neither Monique’s nor O.G.’s municipal liability claims survive at
this stage.
13

1

A supervisor may be individually liable if he is personally

2

involved in a constitutional injury or where there is a “sufficient

3

causal connection between the supervisor’s wrongful conduct and the

4

constitutional violation.”

5

(9th Cir. 2011) (quotation marks and citation omitted). A causal

6

connection exists if the supervisor “set in motion a series of acts

7

by others, or knowingly refused to terminate a series of acts by

8

others, which he knew or reasonably should have known, would cause

9

others to inflict the constitutional injury.” Larez v. City of Los

Starr v. Baca, 652 F.3d 1202, 1207-08

10

Angeles, 946 F.2d 630 (9th Cir. 1991). Liability is imposed for the

11

supervisor's “own culpable action or inaction in the training,

12

supervision, or control of his subordinates,” Clay v. Conlee, 815

13

F.2d 1164, 1170 (8th Cir. 1987), or for conduct that showed a

14

“reckless or callous indifference to the rights of others.”

15

Bordanaro v. McLeod, 871 F.2d 1151, 1163 (1st Cir. 1989). To impose

16

supervisory liability for failure to train, the supervisor must

17

have been “deliberately indifferent” to the need for “more or

18

different training.” Clement v. Gomez, 298 F.3d 898, 905 (9th Cir.

19

2002) (citing City of Canton, 489 U.S. at 389).

20

The Court finds that Plaintiffs have pled insufficient facts

21

to state a plausible claim for supervisory liability for the same

22

reasons explained above: Plaintiffs do not allege that the training

23

program did not include any information regarding the

24

constitutional implications of JPX use or the proper and improper

25

methods of deploying it. Therefore, Plaintiffs have not pled facts

26

demonstrating that Coe was “deliberately indifferent” to the need

27

for more training. Therefore, the Court GRANTS the Motion with

28

respect to Plaintiffs’ supervisory liability claim against Coe,
14

1

//

2

//

3

//

4

with leave to amend to allege facts regarding “obvious”

5

deficiencies in the content of the classroom training program.3

6

C. Seventh Cause of Action: Negligence

7

The seventh cause of action, for negligence, is asserted by

8

Monique, Joseph Sr., Olivia, Gabrielle, Joanna, Alexis, and Joseph

9

Jr. against City, Clark, Velasquez, and Does 1-10. Defendants argue

10

that this claim should be dismissed on behalf of the Family

11

Plaintiffs against Velasquez because Plaintiffs allege no facts

12

that indicate that Velasquez injured the Family Plaintiffs through

13

negligent acts or omissions. Further, Defendants argue that, to the

14

extent this claim is a claim for bystander negligence, it should be

15

stricken as redundant of the twelfth cause of action.

16

First, Plaintiff’s negligence claims are not merely redundant

17

of Plaintiffs’ bystander negligence claims, which the Court

18

construes as claims for negligent infliction of emotional distress.

19

Those claims are premised on physical injuries that were inflicted

20

on Monique and the emotional distress that resulted from the Family

21

Plaintiffs witnessing the infliction of those injuries. Plaintiffs’

22

negligence claim alleges that the officers were negligent in their

23

direct interactions with the Family Plaintiffs. Therefore, the

24
25
26
27
28

3

The Court does not reach Defendants’ arguments regarding
Coe’s qualified immunity defense because the Court dismisses the
claims against Coe. However, should Plaintiffs amend to state a
claim for municipal and supervisory liability, the Court will
address the qualified immunity defense based on the facts as pled
upon amendment. An analysis of whether Coe would be entitled to
qualified immunity for a claim not yet pled would be premature.
15

1

Court DENIES Defendants’ request to strike this cause of action as

2

redundant.

3

//

4
5

Plaintiffs must base their negligence claim, with regard to

6

acts or omissions that injured the Family Plaintiffs, on “negligent

7

tactics and handling of the incident,” “negligent handling of

8

evidence and witnesses,” and “negligent communication during the

9

incident,” as the other alleged negligent acts injured Monique

10

only. (SAC ¶ 90.) Plaintiffs allege sufficient facts regarding

11

Velasquez’s actions to support a plausible negligence claim by the

12

Family Plaintiffs against Velasquez, including allegations that he

13

“prevented” the family from aiding Monique after she was injured,

14

“pulled out his baton in an intimidating manner,” “falsely

15

represented to Monique’s family members that she was okay and was

16

being taken to jail,” and “lied about the incident.” (SAC ¶¶ 34,

17

42, 43.) These acts may plausibly have caused emotional harm to the

18

Family Plaintiffs. Therefore, the Court DENIES the Motion with

19

respect to this cause of action.

20

D. Eighth Cause of Action: Violation of Bane Act

21

The eighth cause of action, for violation of the Bane Act,

22

Cal. Civ. Code § 52.1, is asserted by Joseph Sr., Olivia,

23

Gabrielle, Joanna, Alexis, and Joseph Jr. against City, Clark, and

24

Velasquez. The sufficiency of the complaint is challenged only as

25

to City and Velasquez.

26

The Bane Act permits a claim against a defendant who

27

“interferes by threats, intimidation, or coercion, or attempts to

28

interfere by threats, intimidation, or coercion, with the exercise
16

1

or enjoyment by any individual or individuals of [legal] rights.”

2

Cal. Civ. Code § 52.1. In order to state a claim under the Bane

3

Act, where “the use of force was intrinsic to the alleged violation

4

itself, it [does] not also satisfy the additional ‘force’ or

5

‘coercion’ element of the statute.” Shoyoye v. County of Los

6

Angeles, 203 Cal. App. 4th 947, 960 (2012) (citing Gant v. County

7

of Los Angeles, 765 F.Supp.2d 1238, 1253 (C.D. Cal. 2011)).

8

The Family Plaintiffs premise their Bane Act claim on

9

interference with their rights of “free speech, free expression,

10

free assembly, due process, and to be free from unreasonable search

11

and seizure.” (SAC ¶ 95.) Plaintiffs allege that the threat,

12

intimidation, or coercion was accomplished when Velasquez “took out

13

his baton to intimidate the family Plaintiffs in response to their

14

protests over the treatment and shooting of Monique by Clark.”

15

(Id.) Plaintiffs allege that the City is vicariously liable for the

16

wrongful acts of Clark and Velasquez. (Id. ¶ 99.)

17

The Court finds that Plaintiffs have pled sufficient facts to

18

maintain their cause of action for violation of the Bane Act.

19

Defendants essentially concede that Plaintiffs have sufficiently

20

alleged the coercion element of their Bane Act claim. (See Motion,

21

Docket No. 42-1, at 12.) However, Defendants argue that Plaintiffs

22

have not sufficiently alleged interference with their

23

constitutional rights.4

24
25
4

26
27
28

Defendants strain to analogize this case with Moss v. U.S.
Secret Service, 572 F.3d 962 (9th Cir. 2009), a viewpoint
discrimination case where the court determined that Plaintiffs had
not stated a claim for interference with their First Amendment
rights. The discriminatory intent at issue in that case is not at
issue here.
17

1

The Court finds that Plaintiffs have pled sufficient facts to

2

support a Bane Act claim premised on attempted interference with

3

First Amendment rights. The alleged facts indicate that the Family

4

Plaintiffs voiced concerns about the tactics used by Clark and

5

Velasquez and that, in response, Velasquez took out his baton in an

6

intimidating fashion. Defendants argue that it is more plausible

7

that Velasquez took out his baton in order to maintain control over

8

the situation, and therefore that Plaintiffs’ claim that this act

9

was intended to silence their protests should be disregarded as

10

implausible. However, Defendants are not free to add their own

11

facts in order to attempt to discredit Plaintiffs’ pleadings.

12

Plaintiffs have met their pleading burden, and therefore the Court

13

DENIES the Motion with respect to this cause of action.

14

E. Tenth Cause of Action: Negligent Training and Supervision

15

The tenth cause of action, for negligent training and

16

supervision, is asserted by Monique, Joseph Sr., Olivia, Gabrielle,

17

Joanna, Alexis, and Joseph Jr. against Coe and Does 1-10.5

18

Plaintiffs’ pleadings are insufficient for this cause of

19

action for the reasons discussed under Plaintiffs’ claim for

20

supervisory liability, as this claim is simply a particular form of

21

supervisory liability. In addition, to the extent that Plaintiffs

22

seek to base this claim on the fact that Clark was allowed to carry

23

a JPX gun despite “Clark’s failure to provide satisfactory

24

response(s) to the written test given by BPD on the use of the JPX

25

gun” (SAC ¶ 110), Plaintiffs do not indicate why or how Coe should

26
27
28

5

Plaintiffs’ pleadings appear to assert this cause of action
against the City as well, although they do not indicate as much in
their heading.
18

1

have known either that Clark had missed questions on the written

2

test or that, because he missed those questions, he was “unfit and

3

incompetent” to carry a JPX gun. Therefore, the Court GRANTS the

4

Motion with respect to this cause of action with leave to amend.

5
6
7

IV. Conclusion

8

For the foregoing reasons, the Court GRANTS the Motion in part

9

and DENIES the Motion in part. Plaintiffs may amend their complaint

10

to address the deficiencies identified in this Order. Any such

11

amended complaint must be filed on or before March 7, 2014.

12
13

IT IS SO ORDERED.

14
15
16

Dated:February 21, 2014
DEAN D. PREGERSON
United States District Judge

17
18
19
20
21
22
23
24
25
26
27
28
19