Martinez v. City of Clovis, et al.

Filing 55

ORDER denying defendants' 50 Motion to Dismiss, signed by District Judge John A. Mendez on 8/8/16. These eight Defendants must file their Answers to the SAC within 20 days from the date of this order. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DESIREE MARTINEZ,

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1:15-cv-00683-JAM-MJS

Plaintiff,

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No.

v.
KYLE PENNINGTON; KIM
PENNINGTON; CONNIE
PENNINGTON; KRISTINA
HERSHBERGER; JESUS SANTILLAN;
CHANNON HIGH; THE CITY OF
CLOVIS; ANGELA YAMBUPAH;
RALPH SALAZAR; FRED SANDERS;
THE CITY OF SANGER; AND DOES
1 through 20,

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ORDER DENYING DEFENDANTS’, THE
CITY OF CLOVIS, THE CITY OF
SANGER, KRISTINA HERSHBERGER,
JESUS SANTILLAN, CHANNON HIGH,
ANGELA YAMBUPAH, RALPH SALAZAR,
AND FRED SANDERS, MOTION TO
DISMISS PLAINTIFF’S SECOND
AMENDED COMPLAINT

Defendants.

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Eight of the eleven Defendants in this case move to dismiss

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portions of Plaintiff Desiree Martinez’s (“Plaintiff”) Second

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Amended Complaint (“SAC”) (Doc. #50). 1

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motion (Doc. #52).

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///

Plaintiff opposes the

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for June 28, 2016.
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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

The Court takes the facts alleged by Plaintiff as true for

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purposes of this motion.

Plaintiff was in a relationship with

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Kyle Pennington (“KP”), an officer with the Clovis Police

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Department (“CPD”).

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KP physically and emotionally abused Plaintiff.

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May 2, 2013, Plaintiff called the police to report that KP had

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threatened to harm her.

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Hershberger (“Hershberger”) and Jesus Santillan (“Santillan”)

SAC ¶¶ 4, 16.

Throughout the relationship,

Id. ¶ 18(a).

Id. ¶ 16.

On

CPD officers Kristina

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responded to Plaintiff’s call.

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questions, but did not separate KP and Plaintiff during the

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questioning.

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Id.

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Hershberger and Santillan left.

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Id.

Id.

The officers asked Plaintiff

Hershberger and Santillan did not arrest KP.

KP physically and emotionally abused Plaintiff after
Id. ¶ 18(b).

About three weeks later, Plaintiff contacted the CPD to tell

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an officer that KP was abusing her.

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did not arrest KP or tell Plaintiff about her rights.

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days later, Plaintiff called the CPD anonymously.

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A few days after that, defendant Channon High (“High”) called and

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informed KP that Plaintiff had called the CPD to report abuse by

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KP.

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Plaintiff.

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Id. ¶ 18(g).

Id. ¶ 18(c).

The officer
Id.

Eight

Id. ¶ 18(f).

After High’s call to KP, KP severely abused

Id. ¶ 18(h).

At some point, Plaintiff and KP moved from Clovis to Sanger.

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Id.

On June 4, 2013, a neighbor called 911 to report that KP was

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abusing Plaintiff.

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(“Yambupah”) and Ralph Salazar (“Salazar”) and Sgt. Fred Sanders

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(“Sanders”) of the Sanger Police Department (“SPD”) responded to

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the 911 calls.

Id.

Id. ¶ 18(i).

Officers Angela Yambupah

Plaintiff had “many obvious injuries.”
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Id.

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The SPD officers did not separate Plaintiff from KP to question

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Plaintiff about the abuse.

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stated that she did not want to press charges.

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left without arresting KP.

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Plaintiff later that night.

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CPD and SPD.

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order were issued against KP on June 5, 2013.

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Id.

Plaintiff, feeling intimidated,

Id. ¶ 18(j).

Id.

Id.

The officers

KP beat and sexually assaulted

Id.

Plaintiff contacted both the

An arrest warrant and a restraining
Id. ¶ 18(j)-(m).

Though there was a restraining order requiring KP to stay
away from Plaintiff, KP continued to live with Plaintiff.

Id.

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¶ 18(n).

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and emotionally abused Plaintiff.

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reported KP’s violations of the restraining order to the CPD.

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Id. ¶ 18(m).

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CPD alerted KP whenever Plaintiff called the CPD.

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found out about Plaintiff’s calls to the CPD, KP would physically

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abuse Plaintiff.

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was never arrested for violating the restraining order or abusing

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Plaintiff.

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18, 2013.

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other, but KP continued to contact Plaintiff in violation of the

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restraining order.

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Between June and August 2013, KP physically, sexually,
Id. ¶ 18(k)-(l).

Plaintiff

High and another unidentified records clerk for the

Id.

Id.

When KP

From June through early September 2013, KP

Id. ¶ 18(n).
Id. ¶ 18(m).

KP was finally arrested on September
KP and Plaintiff moved away from each

Id. ¶ 18(n)-(o).

KP was eventually charged with domestic violence, threats,

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false imprisonment, violating a restraining order, and more.

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¶ 18(j).

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but were unable to reach a unanimous verdict on the other

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charges.

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charge to avoid a retrial.

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Id.

A jury convicted KP of violating the restraining order

Id. ¶ 19.

KP pled guilty to one domestic violence
Id.

Plaintiff sued KP, KP’s parents Kim and Connie Pennington,
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the cities of Clovis and Sanger, and High, Hershberger,

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Santillan, Yambupah, Salazar, and Sanders (Doc. #1).

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the Court’s January 6, 2016 Order granting in part and denying in

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part Defendants’ motion to dismiss, Plaintiff filed her SAC (Doc.

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#44).

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Following

Defendants Clovis, Sanger, High, Hershberger, Santillan,

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Yambupah, Salazar, and Sanders now move to dismiss Plaintiff’s

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first and second causes of action (Doc. #50).

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II.

OPINION

The only substantive addition to Plaintiff’s complaint is

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paragraph 22.

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“Clovis and Sanger fail to require their police officers to abide

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by the Federal Violence Against Women Act, or the corresponding

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California laws.”

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belief” that police officers in Clovis and Sanger are trained and

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permitted to enforce domestic violence laws differently than

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other laws.

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paragraph 22 to Plaintiff’s complaint, Plaintiff fails to allege

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equal protection violations against all Defendants and fails to

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allege a due process claim against Sanger.

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A.

That paragraph alleges, among other things, that

Id.

SAC ¶ 22.

It also alleges “on information and

Defendants argue that despite the addition of

MTD at 5-7.

Plaintiff’s Equal Protection Claims Against Clovis and
Sanger

To allege a § 1983 claim against a city, a plaintiff must

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state facts to show that the city had a custom or policy that

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caused the plaintiff’s constitutional injury.

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Soc. Servs. of N.Y.C., 436 U.S. 658, 694 (1978).

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custom” under Monell is a “longstanding practice . . . which

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constitutes the ‘standard operating procedure’ of the local
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Monell v. Dep’t of
A “policy or

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government entity.”

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F.3d 968, 984-85 (9th Cir. 2002).

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the policy, as well as its causal relationship to the

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constitutional injury, in sufficient detail.”

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Cty. Sheriff’s Dept., 2014 WL 1616440, at *5 (E.D. Cal Apr. 18,

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2014).

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Ulrich v. City & Cty. of San Francisco, 308
“[T]he complaint must allege

Hass v. Sacramento

The Equal Protection Clause of the Fourteenth Amendment

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requires government actors to treat similarly situated people

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alike.

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

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439 (1985).

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must allege that she was treated differently from others in a

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similar position.

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proceed on the theory that a municipality violated equal

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protection by not treating domestic violence victims the same as

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victims of other types of abuse.

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716-17 (9th Cir. 1995).

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Thus, a plaintiff alleging an equal protection claim

The Ninth Circuit has allowed a plaintiff to

Navarro v. Block, 72 F.3d 712,

Defendants move to dismiss Plaintiff’s equal protection

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claim on the basis that none of the new allegations in the SAC

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“provide enough facts to support Plaintiff’s claim that she as a

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victim of domestic violence was treated any differently by the

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CPD or SPD from victims of other crimes.”

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MTD at 5.

Plaintiff argues that the allegations in paragraph 22—that

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the Clovis and Sanger police departments failed to properly train

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and enforce domestic violence laws—are sufficient to withstand a

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motion to dismiss because the facts to support such claims are

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solely controlled and possessed by Defendants.

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Plaintiff cites to Estate of Duran v. Chavez, which states that

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“where most of the information needed to support a claim is in
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Opp. at 4-5.

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the defendants’ custody and not available to plaintiffs prior to

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discovery, a more conclusory and formulaic approach to pleadings

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is acceptable.”

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Duran further held that “[p]laintiffs need only provide

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information sufficient to supply notice to Defendants as to the

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sorts of information they will need to provide to refute, if they

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can, Plaintiffs’ allegations in a subsequent motion for summary

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judgment.”

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6243278, at *10 (E.D. Cal. Dec. 3, 2013)) (internal quotation

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2015 WL 8011685, at *9 (E.D. Cal. Dec. 7, 2015).

Id. (quoting Phillips v. Cty. of Fresno, 2013 WL

marks omitted).
The Phillips court, cited by the Duran Court, held that

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allegations based on “information and belief” may be sufficient

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to establish a “causal connection between the existing or non-

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existing policies, procedures and practices and the harms [the

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plaintiff] experienced” when “the facts that might demonstrate

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the causal connection—such as . . . corrective actions taken or

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not taken—are not available to the pleading party prior to

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discovery.”

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plaintiff’s failure to train theory in Phillips, the court

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stated:

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Phillips, 2013 WL 6243278, at *10.

As to the

Defendants’ motion to dismiss Plaintiffs[’] claim for
entity and supervisory liability on the theory of
failure to supervise, train or discipline . . . is out
of place in a motion to dismiss where most or all the
information pertaining to training and discipline are
not available to Plaintiffs prior to discovery.
Again, Plaintiffs have alleged “on knowledge and
belief” that a laundry list of training, supervision
and discipline functions have gone unperformed or
performed deficiently so as to have caused Decedent's
harm. While this approach is conclusory and sparsely
supported with alleged facts, it is sufficient to
supply notice to Defendants as to the sorts of
information they will need to provide to refute . . .
Plaintiffs' allegations . . . [T]his conclusory and
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somewhat formulaic approach to alleging claims for
entity and supervisory liability is sufficient where,
as here, Defendants may be presumed to be in sole
possession of the facts needed to support or refute
the claims and discovery has not made those facts
available.

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Id. at *11.
Here, Plaintiff alleges that she will support her

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contentions with “a review of the historic performance of Clovis

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and Sanger police officers in response to domestic violence

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requests for service” and “records confirming the lack of

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discipline of such officers.”

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sole possession of historic performance records and discipline

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records regarding officers’ responses to domestic violence calls

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versus calls for other crimes.

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Defendants on notice of what they “will need to provide to

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refute . . . Plaintiff’s allegations.”

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6243278, at *11.

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SAC ¶ 22.

The SPD and CPD are in

Plaintiff’s complaint puts

See Phillips, 2013 WL

Defendants do not address the Phillips and Duran cases in

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their Reply.

Defendants only state that Plaintiff’s argument

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regarding allegations based on information and belief “is a red

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herring.”

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Applying the Phillips and Duran holdings to the case at bar, the

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Court finds that Plaintiff has sufficiently and properly alleged

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equal protection claims against Clovis and Sanger.

Reply at 3. Defendants’ argument is insufficient.

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B.

Plaintiff’s Due Process Claim Against Sanger

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In Plaintiff’s SAC, she alleges that Sanger had a policy or

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custom of not providing proper responses to domestic violence

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calls.

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Plaintiff’s due process claim against Sanger because a “single

SAC ¶¶ 22, 24.

This Court previously dismissed

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instance is not enough to allege a policy of lax domestic

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violence enforcement.”

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added allegations that other instances of lax enforcement of

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domestic violence laws have occurred that will be revealed

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through “a review of historic performance” of SPD officers.

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¶ 22.

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factual incident, but the SPD has control and possession of

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information regarding how other domestic violence cases were

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handled.

1/06/16 Order at 8.

Plaintiff has now

SAC

Plaintiff’s allegations are not supported by more than one

Plaintiff will not be able to include in her

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allegations any other such incidents until after the pleading

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stage.

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Plaintiff has stated a viable cause of action against Sanger for

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violation of due process and Sanger’s motion to dismiss is

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denied.

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C.

Thus, under Phillips and Duran, the Court finds that

Plaintiff’s Equal Protection Claims Against Individual
Defendants

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Plaintiff also brings equal protection claims against

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Hershberger, Santillan, High, Yambupah, Salazar, and Sanders.

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SAC ¶¶ 28-31.

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individual officer defendants, Plaintiff must show that the

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defendants treated Plaintiff differently than victims of other

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crimes.

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May 19, 2011).

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defendant individually violated Plaintiff’s right to equal

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protection under the law.

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To plead equal protection claims against the

See Giles v. Olmeide, 2011 WL 3300062, at *4 (C.D. Cal.

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Plaintiff must allege facts showing that each

Defendants Hershberger and Santillan

Plaintiff alleges that when Hershberger and Santillan
responded to Plaintiff’s call reporting KP’s abuse, the officers
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did not speak to Plaintiff outside KP’s view and earshot.

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¶ 18(a).

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arrest KP and did not inform Plaintiff of her rights to a

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private person’s arrest or a restraining order.

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pleads facts showing how Santillan and Hershberger treated her

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as a domestic violence victim, but she does not include any

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facts regarding how Santillan and Hershberger treated other

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victims differently.

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Santillan, Hershberger, and the CPD.

SAC

Plaintiff also alleges that the officers did not

Id.

Plaintiff

However, such facts are known only to
Absent discovery, it is

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difficult if not impossible for Plaintiff to plead specific

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facts regarding how Santillan and Hershberger treated other

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domestic violence victims in other cases.

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allegations in the SAC are sufficient to put Santillan and

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Hershberger on notice of what information and evidence they will

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need to produce to refute Plaintiff’s claims.

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information is in the possession and control of these

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Defendants, Plaintiff’s allegations that she was treated

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differently from other domestic violence victims is sufficient

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to allege equal protection claims against Hershberger and

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Santillan.

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2.

Additionally, the

Because such

Defendant High

Plaintiff alleges that High called KP to tell KP that

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Plaintiff had reported KP’s abuse.

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not provide any facts regarding High’s treatment of other

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domestic violence victims, but, again, such information is in

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the control and possession of High and CPD.

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protection allegations against High are sufficient to defeat

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High’s motion to dismiss for the same reasons as those set forth
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SAC ¶ 18(g).

Plaintiff does

Plaintiff’s equal

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above with regard to Plaintiff’s allegations against Santillan

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and Hershberger.

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3.

Defendants Salazar, Yambupah, and Sanders

Plaintiff alleges that SPD officers Salazar, Yambupah, and

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Sanders responded to a 911 call concerning a fight between KP

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and Plaintiff but that the officers did not separate Plaintiff

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from KP to talk to her.

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did not arrest KP or inform Plaintiff of any of her rights as a

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domestic violence victim.

SAC ¶ 18(i).

Id.

The SPD officers also

As with the CPD officers, the

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SPD officers possess and control information regarding how they

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have treated domestic violence victims other than Plaintiff.

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Such information will be sought by Plaintiff as part of her

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discovery in this case. And she has sufficiently pled enough

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facts to put these individual defendants on notice as to what

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evidence and information they will need to produce to refute

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Plaintiff’s allegations.

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Salazar, Yambupah, and Sanders regarding their treatment of

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Plaintiff are sufficient under Phillips and Duran to state equal

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protection claims against these three defendants.

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Thus, Plaintiff’s allegations against

III. ORDER
For the reasons set forth above, the Court DENIES

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Defendants’ motion to dismiss.

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their Answers to the SAC within twenty days from the date of this

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order.

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These eight Defendants must file

IT IS SO ORDERED.
Dated: August 8, 2016

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