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)

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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

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