Le Quyen Vu Ngo et al v. City of Santa Ana et al

Filing 27

MINUTES (IN CHAMBERS): ORDER by Judge David O. Carter: granting 16 Motion to Dismiss Case. Plaintiffs must file a Third Amended Complaint, if at all, on or before March 3, 2014. (twdb)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Date: February 20, 2014

Case No. SACV 13-1660-DOC (RNBx)

Title: LE QUYEN VU NGO, ET AL. V. CITY OF SANTA ANA, ET AL.

PRESENT: THE HONORABLE DAVID O. CARTER, JUDGE
Julie Barrera
Courtroom Clerk

Not Present
Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF:

ATTORNEYS PRESENT FOR DEFENDANT:

None Present

None Present

PROCEEDINGS (IN CHAMBERS): ORDER GRANTING
DEFENDANTS’ MOTION TO
DISMISS
Before the Court is City of Santa Ana, Mayor Miguel Pulido, Chief Carlos Rojas,
and Officer Oliver Grant’s (“Defendants”) Motion to Dismiss the fifth claim in the
Second Amended Complaint of Le Quyen Vu Ngo and her minor children (“Plaintiffs”).
(Dkt. 16). The Court finds this matter appropriate for decision without oral argument.
Fed. R. Civ. P. 78; L.R. 7-15. Having considered the moving papers and supporting
documents, the Court GRANTS Defendants’ Motion to Dismiss.
I. BACKGROUND
Plaintiffs allege the following facts:
On or about January 11, 2013, Binh Van Nguyen (“Decedent”), husband and
father to Plaintiffs, was sleeping in his parked vehicle at the 200 block of Maxine Street
in Santa Ana, California. SAC ¶¶ 19-20 (Dkt. 13). Officer Grant (“Grant”), with an
unknown number of other officers, approached the vehicle and woke Decedent. SAC ¶¶
19-20. The officers did not have a warrant or probable cause to seize Decedent. SAC ¶
25. Although Decedent was not armed and dangerous, Grant and the other officers shot
and killed Decedent. SAC ¶ 22.
On or about January 14, 2013, Defendants held a town hall meeting to discuss the
shooting incident. SAC ¶ 71. At the meeting, two of the defendants, Carlos Rojas

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 13-1660-DOC (RNBx)

Date: February 20, 2014
Page 2

(“Chief Rojas”), the Chief of Police for Santa Ana Police Department, and Miguel A.
Pulido (“Mayor Pulido”), Mayor of Santa Ana, refused to reveal information from an
ongoing investigation of the incident. SAC ¶ 71. Defendants acted with fraud when they
made intentional misrepresentation and concealed information from Plaintiff. SAC ¶ 37.
Based on this conduct, Plaintiffs bring nine causes of action. SAC ¶¶ 19-122.
Plaintiffs’ fifth claim is for Conspiracy to Deprive Decedent of his Civil Rights pursuant
to 42 U.S.C. §§ 1985-86 against all the defendants. SAC ¶¶ 72-90. This is the only
claim brought against Mayor Pulido. See SAC. Defendants move to dismiss only this
cause of action. See Mot. at 1.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed
when a plaintiff’s allegations fail to set forth a set of facts which, if true, would entitle the
complainant to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009) (holding that a claim must be facially plausible in order
to survive a motion to dismiss). The pleadings must raise the right to relief beyond the
speculative level; a plaintiff must provide “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S.
at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). On a motion to dismiss, this
court accepts as true a plaintiff’s well-pled factual allegations and construes all factual
inferences in the light most favorable to the plaintiff. Manzarek v. St. Paul Fire &
Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The court is not required to accept
as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.
In evaluating a Rule 12(b)(6) motion, review is ordinarily limited to the contents
of the complaint and material properly submitted with the complaint. Clegg v. Cult
Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994); Hal Roach Studios, Inc. v. Richard
Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Under the incorporation
by reference doctrine, the court may also consider documents “whose contents are
alleged in a complaint and whose authenticity no party questions, but which are not
physically attached to the pleading.” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.
1994), overruled on other grounds by 307 F.3d 1119, 1121 (9th Cir. 2002).
III.

ANALYSIS

Plaintiffs allege Defendants conspired to deprive Decedent and Plaintiffs of their
civil rights in violation of 42 U.S.C. §§ 1985-86. SAC ¶74-75. Defendants move to
dismiss the conspiracy claim on several grounds. See Mot at 4-6. First, Defendants

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 13-1660-DOC (RNBx)

Date: February 20, 2014
Page 3

argue that Plaintiffs fail to allege facts to support the existence of a conspiracy. Mot. at 4.
Second, Defendants argue that Plaintiffs fail to allege any discriminatory animus
necessary for a § 1985 conspiracy claim. Mot. at 5. Lastly, Defendants argue that there
is no viable § 1986 claim because Plaintiffs failed to establish a § 1985 claim, a predicate
to the § 1986 claim. The Court finds Defendants’ second argument persuasive.
A. Conspiracy Claim under 42 U.S.C. § 1985
To plead a claim for conspiracy under § 1985, the complaint must allege that
defendants (1) conspired (2) to deprive any person or class of persons of the equal
protection of the laws, and that (3) at least one of the conspirators did any act in
furtherance of the conspiracy (4a) causing injury to his person or property or (4b)
depriving the person of any right or privilege of an American citizen. 42 U.S.C. § 1985;
Griffen v. Breckenridge, 403 U.S. 88, 102-103 (1971).
1. Animus Towards Suspects is not Invidiously Discriminatory Under §
1985
Defendants argue that Plaintiffs fail to allege the requisite discriminatory animus
for a valid § 1985 claim. Mot. at 5-6. The Court agrees. The Supreme Court interprets
the intent to deprive a person of equal protection of the laws as requiring “some racial, or
perhaps otherwise class-based, invidiously discriminatory animus behind the
conspirators’ action.” Griffen, 403 U.S. at 102. Although the contours of class-based
discriminatory animus outside of race are not clearly defined, the Supreme Court has
been reluctant to allow other classifications. See Bray v. Alexandria Women’s Health
Clinic, 506 U.S. 263, 269 (1993) (not finding gender based animus from opposition to
abortion); United Bhd. of Carpenters & Joiners of Am. v. Scott, 463 U.S. 825, 838 (1983)
(rejecting economic or commercial animus).
For § 1985 purposes, the Supreme Court stated that the term “class”
“unquestionably connotes something more than a group of individuals who share a desire
to engage in conduct that § 1985(3) defendant disfavors.” Butler, 281 F.3d 1014, 1028
(9th Cir. 2002) (quoting Bray, 506 U.S. at 269). Because of this concern, Ҥ 1985(3)
should ‘not be extended to every class which the artful pleader can contrive.’” Id. (citing
McLellan v. Miss. Power & Light Co., 545 F.2d 919, 928-29 (5th Cir. 1977)).
The SAC fails to allege discriminatory animus required to maintain a § 1985 cause
of action. Plaintiffs allege that Defendants acted “by reason of animus against possible
suspects.” SAC ¶ 74. “Possible suspects” is not a racial group, nor any other protected
classification. At best, “possible suspects” is a group of individuals possibly engaged in

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 13-1660-DOC (RNBx)

Date: February 20, 2014
Page 4

conduct that Defendants disfavor, a classification that the Supreme Court rejected. See
Bray, 506 U.S. at 269. The SAC fails to allege racial animus, or animus against any other
proposed protected class. Accordingly, the Plaintiffs’ § 1985 claim is DISMISSED
WITHOUT PREJUDICE.
2. Conspiracy Based on Policies and Practice Must Specify Which
Policies Violate Plaintiff’s Civil Rights
Additionally, the Complaint must allege “an agreement or ‘meeting of the minds’
to violate” Plaintiffs’ constitutional rights to establish a conspiracy to survive a motion to
dismiss. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 929 (9th Cir. 2004); Garbar v.
Mohammadi, No. CV 10-7144-DDP (RNBx), 2013 WL 4012633, at *16 (C.D. Cal. Aug.
6, 2013). “A mere allegation of conspiracy without factual specificity is insufficient.”
Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988) (citing Jaco v.
Bloechle, 739 F.2d 239, 245 (6th Cir. 1984); Burnett v. Short, 441 F.2d 405, 406 (5th Cir.
1971)). However, “conspiracy may be inferred from conduct and need not be proved” by
an express agreement. Ward v. EEOC, 719 F.2d 311, 314 (9th Cir. 1983).
Plaintiffs argue that the SAC sufficiently pleads the existence of a conspiracy.
Opp’n at 4-5. Plaintiffs allege that Officer Grant and other officers shot and killed
Decedent even though he was unarmed and posed no threat to the officers. SAC ¶ 22.
These facts raise the inference that there was a concerted effort with no apparent
justification among the officers, potentially, but there is no reference to any other
defendant. These facts therefore do not support a conspiracy including any other
defendants.
In addition, Plaintiffs argue that the city was a party to the conspiracy because of
its policies and practices, but the allegations do not specify which policies violate
Plaintiffs’ civil rights. SAC ¶ 83. Allegations based on policies and practices must refer
to specific actions, practices or policies to support a claim under § 1985. See Ivey v. Bd.
of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (upholding dismissal of
§ 1985(3) claims for failure to allege specific practices or policies to support the claim).
Plaintiffs then make a circular argument that the conspiracy itself became an informal
policy. SAC ¶ 84. Plaintiffs’ allegation that the conspiracy is an informal practice or
policy is merely a conclusion with no factual support. Accordingly, Plaintiffs fail to
allege a conspiracy against the City of Santa, the mayor, and the police chief.
3. Allegations of Conspiracy to Deprive Civil Rights by Withholding
Information

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 13-1660-DOC (RNBx)

Date: February 20, 2014
Page 5

The final basis Plaintiffs assert to support the conspiracy claim is that Defendants
conspired to cover up the shooting incident. SAC ¶¶ 28, 74, 75, 79, 83, 84. Plaintiffs
allege that Mayor Pulido and Chief Rojas refused to disclose information from a pending
investigation while at a town hall meeting. SAC ¶ 84. Defendants argue that
withholding information of a pending investigation can never amount to a civil rights
violation. Reply at 2. The Court is not convinced that this is categorically true. See
Karim-Panahi, 839 F.2d at 625 (finding a cognizable claim for a civil rights violation
based on covering up police officers’ Fourth Amendment violations).
Regardless, the Court is not convinced that Plaintiffs sufficiently alleged a single
conspiracy between all Defendants. Although the fact that Mayor Pulido and Chief Rojas
refused to reveal information at a town hall meeting they attended together may raise an
inference of an agreement between the two defendants, it fails to include the officers in
any such cover up. As there are no factual allegations to link the conduct of the officers
to the allegations of a cover-up, the Court is uncertain whether Plaintiffs are alleging two
separate conspiracies or failing to allege a single conspiracy.
B. Without a Viable § 1985 Claim, There is No Violation of § 1986
Section 1986 states that “[e]very person who, having knowledge that any of the
wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be
committed, and having power to prevent or aid in preventing the commission of the same,
. . . shall be liable to the party injured . . .” 42 U.S.C. § 1986. A claim under § 1986
requires a viable § 1985 claim. See Dooley v. Reiss, 736 F.2d 1392, 1396 (9th Cir. 1984);
Karim-Panahi, 839 F.2d at 626 (citing Trerice v. Pedersen, 769 F.2d 1398, 1403 (9th Cir.
1985)). Because Plaintiffs’ § 1985 claim fails, Plaintiffs have no viable § 1986 claim.
Thus, Plaintiffs’ § 1986 cause of action is DISMISSED WITHOUT PREJUDICE.
IV.DISPOSITION
For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss.
Plaintiffs’ claims for violations of 42 U.S.C. §§ 1985-86 are DISMISSED
WITHOUT PREJUDICE.
Plaintiffs must file a Third Amended Complaint, if at all, on or before March 3,
2014.
MINUTES FORM 11
CIVIL-GEN

Initials of Deputy Clerk: jcb